IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26907 of 2004(C)
1. C.BALAN NAIR,
... Petitioner
2. JOSEPH K.THOMAS, AGED 47 YEARS,
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. THE DEPUTY CHIEF ENGINEER (APTS),
3. THE EXECUTIVE ENGINEER,
4. THE EXECUTIVE ENGINEER,
5. THE ASSISTANT EXECUTIVE ENGINEER,
6. THE ASSISTANT ENGINEER,
For Petitioner :SRI.KKM.SHERIF
For Respondent :SRI.K.S.ANIL, SC, KSEB
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :23/06/2009
O R D E R
ANTONY DOMINIC, J.
================
W.P.(C) NO. 26907 OF 2004 (C)
=====================
Dated this the 23rd day of June, 2009
J U D G M E N T
First petitioner is the landlord and the second petitioner is
the tenant. In the building, the tenant is running a hotel and is
availing of supply of electricity with three consumer numbers.
2. The Anti Power Theft Squad of the Board had
conducted an inspection of the premises on 17/10/2001 and
Ext.P1 series are the three mahazars prepared. In all the three
consumer numbers, unauthorised additional load of 2 KW, 23KW
and 12 KW respectively were found. Accordingly, Ext.P2 series of
bills were issued and the 1st petitioner filed Ext.P3 appeal to the
2nd respondent. The appeal was rejected as per Ext.P7. It is
challenging Ext.P7 the writ petition is filed.
3. The contention raised by the counsel for the petitioners
is confined to the levy of twice the energy charges as penalty in
addition to fixed charges at 3 times. It is stated that such levy is
not contemplated under Regulation 42 and 43 of the Conditions of
Supply of Electrical Energy. Counsel also placed reliance on the
judgment of this Court in George Joseph v. K.S.E.B (2008(4)
WPC 26907/04
:2 :
KLT 610).
4. On the other hand, the counsel for the Board referred
me to the tariff order of 2002, in terms of which, according to her,
fixed charge plus energy charge is leviable. It is therefore
submitted that energy charges cannot be separated from fixed
charges when penalty is to be levied. Reference is also made to
the judgment of the Apex Court in Municipal Corporation,
Delhi v. Asian Art Printers (P) Ltd. (AIR 1995 SC 196) where
the Apex Court has accepted the contention identical to the one
raised by the counsel for the Board referring to the tariff order
issued by the Municipal Corporation, Delhi. Counsel for the Board
also placed considerable reliance on the judgment rendered by
the Division Bench of this Court in WA No.1231/2003, where
according to the counsel, the Division Bench has accepted the
competence of the Board to levy twice the energy charges as
penalty prior to 18/9/2002 when the Board issued a notification
reducing the penalty on detection of unauthorised additional load.
5. A reading of Ext.P2 series of invoices show that the
petitioner has been penalised both by levying fixed charges and
also energy charges. The dispute in this writ petition is confined
WPC 26907/04
:3 :
to the levy of energy charges only.
6. In so far as levy of penalty is concerned, that is
governed by Clauses 42 and 43 of the Conditions of Supply of
Electrical Energy. In the judgment in George Joseph v. K.S.E.B
(2008(4) KLT 610) referred to by the counsel for the petitioner
interpreting Clause 43 of the Conditions of Supply, a learned
Judge of this Court has held that such penalty is leviable only in
the case of theft of energy. In this case also, neither in the
mahazar or elsewhere, is there a case for the Board that there has
been theft of energy committed by the petitioners. If that be so,
Clause 43 is inapplicable to the case of the petitioners.
7. However Clause 42(d) of the Conditions of Supply of
Electrical Energy provides that in cases where the consumer
exceeds the contract load without the prior permission of the
Board, that amounts to misuse of energy and the consumer is
liable to be billed at thrice the rate applicable for the respective
tariff. Regular energy bill having already been issued ,as per the
impugned demand, twice the energy charges are demanded.
8. In my view, this is a case where the contract load has
been exceeded by the petitioner. If that be so, the levy of penalty
WPC 26907/04
:4 :
as done by Ext.P2 bill is permissible in terms of Clause 42(d) of
the Conditions of Supply of Electrical Energy. However, illegality
in the uniform levy of penalty as provided under Clause 42(d) of
the Conditions of Supply has already engaged the attention of a
Division Bench in the judgment in WA 1231/2003 where the
Division Bench has directed that the Board shall examine each of
the cases and decide on the penalty to be levied depending upon
the culpability of the consumer concerned.
9. It is now informed that the benefit of this judgment has
been uniformly made applicable by issuing general directions. If
that be so, necessarily, the petitioner should also get the benefit
of such reduction. It is therefore, directed that the respondents
shall rework the liability of the petitioner and after giving credit to
the amount already remitted by the petitioner pursuant to the
interim orders of this Court, the balance, if any, will be demanded
and paid by the petitioner.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE
Rp