IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24644 of 2003(H)
1. CAPTAIN C.P.GIRILAL,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. ASSISTANT EXECUTIVE ENGINEER,
For Petitioner :SRI.JACOB MATHEW MANALIL
For Respondent :SRI.C.C.THOMAS, SC, K.S.E.B
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :22/06/2010
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.24644 of 2003
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Dated this the 22nd day of June, 2010
J U D G M E N T
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1. The petitioner is challenging Ext.P5 demand
for payment of an amount of Rs.1,03,434/-, towards
penalty on detection of unauthorised additional
connected load. Petitioner is a consumer of Electricity
for running a restaurant, under the 2nd respondent with
Consumer No:1139. According to the petitioner, he has
approached the 2nd respondent during January 2000 for
converting the connection as 3-Phase supply. The 2nd
respondent had introduced one Sri.Mathew John, a
licensed Wireman, to do the necessary wiring and to
complete the required formalities for getting the
connection altered as 3-Phase. It is stated that the
petitioner had paid an amount of Rs.20,100/- to the said
Sri.Mathew John. But he has not done anything as
promised. On 6.3.2000 the petitioner lodged a complaint
W.P.(C).24644/03 -2-
against Sri.Mathew John before the police authorities, a
copy of which is marked as Ext.P1. According to the
petitioner, as a vengeance against the said action,
authorities of 1st respondent Board conducted an
inspection at the premises on 24.3.2000. Based on the
inspection Ext.P2 demand was issued directing the
petitioner to remit a sum of Rs.59,517/- on or before
10.4.2000. Through Ext.P3 the petitioner requested to
furnish split up details of the demand. But such request
was not responded and therefore he submitted Ext.P4
representation to the Chairman of the 1st respondent
Board, in the year 2000 itself. As per the averments in
the writ petition there was no response, but Ext.P5 notice
was issued in July 2003 threatening recovery steps
alleging default in payment of Rs.1,03,434/-. It is
contended that the entire action of the respondents are
totally malafide as it is motivated by extraneous
considerations and since it is taken only to wreak
vengeance against the petitioner because he instituted
criminal complaint against the above said Sri.Mathew
W.P.(C).24644/03 -3-
John.
2. Respondents in their counter affidavit had
produced Ext.R1(a), which is the Mahazar prepared by
the Anti Power Theft Squad (APTS) at the time of
inspection. It contains a list of installations and
Electrical appliances found at the premises. The
Mahazar contains signature of the Manager of the
petitioner, Sri.Deepu. According to the respondents, the
petitioner was using unauthorised additional load of 6
KW. Ext.R1(b) is the notice issued to the petitioner
enclosing Ext.R1(c) bill for penal charges. The amount
demanded in Ext.R1(c) was subsequently corrected and
per Exts.R1(d) and R1(e) were issued for Rs.57,357/-.
Ext.R1(f) is a statement given by the petitioner to the 2nd
respondent conceding that he had already removed the
additional connected load of 6KW and therefore
requesting to refrain from disconnecting the supply. It is
pertinent to note that the date of Ext.R1(f) is 29.3.2000,
whereas according to the petitioner on 29.3.2000 he had
submitted Ext.P3. But the respondent denies receipt of
W.P.(C).24644/03 -4-
any such letter as Ext.P3. On a comparison of the
signature contained in Exts.P3 and R1(f), I am of the
opinion that Ext.R1(f) bears true signature of the
petitioner.
3. It is revealed through the counter affidavit that,
against the demand under Ext.R1(d) the petitioner had
filed a civil suit as O.S.732/2000 before the Munsiff
Court, Thiruvananthapuram and obtained an injunction
against disconnection of supply. But he failed to
prosecute the suit by paying balance court fee and
consequently the suit was dismissed on 26.9.2001, as per
Judgment Ext.R1(i). It is further revealed that the
petitioner had also filed an appeal before the Appellate
Authority, the Deputy Chief Engineer (APTS),
Thiruvananthapuram. Ext.R1(j) is a letter issued by the
said authority requiring the petitioner to pay 25% as pre-
condition for granting stay against realisation of the
amount in dispute, pending disposal of the appeal. The
petitioner was also requested to furnish further
documents and details with respect to the subject matter
W.P.(C).24644/03 -5-
of the appeal. But the petitioner had not pursued that
remedy also, nor had he remitted 25% as demanded.
4. It is evident and clear that the petitioner had
suppressed material facts regarding the steps taken by
him to challenge the impugned demand before the civil
court and before the Appellate Authority. It is evident
that the petitioner has not approached this court with
clean hands revealing all relevant facts on the issue. At
the same time argument of the petitioner is that this
court need to look into the allegations of malafides and
should take note of the manifest injustice done with
respect to raising a high demand of penal charges.
5. With respect to the allegations of malafides,
apart from assertion of the petitioner that the entire
action was instigated due to vengeance, because the
petitioner had initiated criminal action against
Sri.Mathew John, there is nothing on record to show that
the inspection conducted by the APTS was on the basis of
any such action. On the other hand, there is no denial
from the side of the petitioner with respect to the
W.P.(C).24644/03 -6-
unauthorised additional load. As per the provisions
contained in the Conditions of Supply of Electrical
Energy, usage of unauthorised additional load is liable to
be imposed with penalty. If the consumer has got any
dispute regarding the liability or with respect to
correctness of such penal charges imposed, the said
regulations provide for effective appellate remedy. In the
case at hand, the petitioner has chosen to resort to such
remedy by filing appeal. But he failed to pursue the said
remedy. Apart from that he has also impugned the
demand by filing civil suit, which also he failed to pursue.
Further, as stated above, the petitioner had purposefully
suppressed all such material facts in this writ petition.
6. Under the above mentioned circumstances I am
of the opinion that this court is not justified in examining
correctness of the demand or to enter upon any
adjudication on disputed facts regarding basis on which
such demand is raised. Therefore, I am of the considered
opinion that the writ petition could not be entertained
and the same is liable to be dismissed.
W.P.(C).24644/03 -7-
7. However, learned counsel for the petitioner has
brought to my attention a Division Bench decision of this
court in W.A.No:1231/2003 dt.9.11.2005. It is held
therein that in case of detection of unauthorised
connected load, imposition of maximum penalty is
unwarranted in all cases. In other words, when there is
no theft or mischief done with any intention to extort
electrical energy, mere installation of unauthorised
connected load may not invite maximum penalty provided
under the relevant regulations. Considering the dictum
laid in the above said judgment, I am of the opinion that
the petitioner can be given a chance to make
representation before the 1st respondent seeking for re-
consideration of the quantum of penalty imposed.
8. If the petitioner makes any representation as
above to the Secretary of the 1st respondent Board, the
same will be considered and appropriate decision will be
taken by the Secretary, after affording an opportunity of
hearing to the petitioner as early as possible, at any rate
within a period of two months from the date of receipt of
W.P.(C).24644/03 -8-
such representation. It is also left to the petitioner to
move before that authority seeking to keep in abeyance
any coercive steps for recovery till such a decision is
taken.
The writ petition is disposed of with the above
directions.
C.K.ABDUL REHIM, JUDGE.
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