IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 363 of 2009()
1. KERALA STATE ELECTRICITY BOARD,
... Petitioner
2. EXECUTIVE ENGINEER
3. ASST.EXECUTIVE ENGINEER,
Vs
1. V.K.MOOSA, S/O.MOIDEEN HAJI
... Respondent
For Petitioner :SRI.C.K.KARUNAKARAN, SC FOR KSEB
For Respondent : No Appearance
The Hon'ble MR. Justice V.GIRI
Dated :17/02/2009
O R D E R
J.B. KOSHY, Ag.C.J. &
V.GIRI, J.
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W.A.No.363 of 2009
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Dated this the 17th day of February, 2009.
JUDGMENT
GIRI, J.
The Board challenges the judgment of the learned single
Judge, by which the levy of penalty charges, effected by the Board
consequent upon unauthorised connected load in the unit run by the
petitioner, was quashed to the extent to which penal charges was
levied on electricity charges as well.
2. The learned single Judge proceeded to observe that it
is settled law that in view of the Bench decision in W.A.No.1231/03
that penalty has to be limited to the fixed charges portion and that
there shall not be penalty by way of proportionate energy charges.
3. It is contended that in the instant case, inspection of
the premises of the consumer was effected on 6.7.2002; that the
Division Bench has upheld the right of the Board to levy penalty
charges on the electricity charges component also in respect of
cases, which have been detected prior to 18.9.2002, the date on
which the amended Board order came into force. It is, therefore,
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contended that the law laid down by the Division Bench has not been
correctly applied by the learned single Judge.
4. Learned counsel for the Board is correct in submitting
that the Bench of this court in W.A.1231/03 has held that the Board
order dated 18.9.2002, which directs the levy of penal charges to be
restricted to the fixed charges alone, does not have retrospective
operation. But, we are of the view that, notwithstanding the same,
the levy of penal charges on electricity charges also may not be
justified in the present case. We proceed to take this view, in the
facts and circumstances of this case.
5. We take note of the fact that, according to the
consumer, a 7.5 HP motor was purchased only on 10.6.2002.
6. The counter affidavit of the Electricity Board does not
refer to any attempt at tampering the meter. In fact, the
consumption patterns reveals reduction of consumption from June,
2002. The case of the consumer, that a new meter was installed,
instead of the old meter and this resulted in reduction of the
consumption, cannot be brushed aside. Further, the consumer also
has a case that the factory was facing problems and this is one of
the reasons why the consumption has come down.
W.A.No.363 of 2009
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7. There is yet another crucial factor, which dissuades us
from interfering with the judgment of the learned single Judge.
According to the writ petitioner, the premises in question were not
inspected by the officials of the Electricity Board prior to the issuance
of the impugned bill.
8. Though in the counter affidavit it is stated that the
premises were inspected by the Sub Engineer, along with the line
man and reference is made to Ext.R1(a) site mahazar, we do not
find an averment in the counter affidavit that a copy of the site
mahazar was supplied to the consumer or forwarded to him. It is
significant because, according to the consumer, no inspection, as
alleged by the Electricity Board, took place on 6.7.2002 and no team
inspected the premises, as such, prior to the impugned bill. In the
mahazar, it is stated that the persons, who have found at site
refused to witness the drawing up of the mahazar. If that be so, a
copy of the mahazar could either have been affixed or later could
have been forwarded to the consumer, along with the impugned bill.
There is no case that the same has been done. We also take note of
the fact that Ext.R1(a) mahazar is seen to have been drawn up by
the Sub Engineer in charge of the vehicle section, Velanthavalam.
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9. In the facts and circumstances of the case, especially in
the absence of a significant variation in the consumption pattern, we
are of the view that it would not be appropriate to sustain the levy of
penalty charges on electricity charges as well.
10. In these circumstances, we are inclined to uphold the
directions issued by the learned single Judge, though not for the
same reasons as those which found favour with the learned single
Judge.
Writ appeal is disposed of with the above directions.
Sd/-
(J.B. KOSHY)
ACTING CHIEF JUSTICE
Sd/-
(V.GIRI)
JUDGE
sk/
//true copy//
P.S. to Judge