IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1051 of 2006(A)
1. M.V.UMESHAN,
... Petitioner
Vs
1. THE ASSISTANT ENGINEER,
... Respondent
2. THE DEPUTY CHIEF CO-ORDINATOR,
3. THE DEPUTY CHIEF ENGINEER,
For Petitioner :SRI.P.R.SREEJITH
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :18/10/2010
O R D E R
S. SIRI JAGAN, J.
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W.P.(C) No.1051 OF 2006
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Dated this the 18th day of October, 2010
J U D G M E N T
The petitioner has an electricity connection to his Ice Plant
under LT-IV industrial tariff. He is aggrieved by an additional bill
demanding Rs.54,564/-, being 20% of the actual energy charges
on the ground that he used electricity without a capacitor, which
is a requirement under the relevant provisions applicable to
industrial consumers of electricity. Against the same, the
petitioner filed an appeal by paying 25% of the demand
amounting to Rs.13,641/-. But by Ext.P3 order, the appeal was
rejected. Challenging the demand and the appellate order, the
petitioner has filed this writ petition seeking the following reliefs:
“(i) Call for the records leading to Exts.P3 and
P4 and quash the same by issuance a writ of
certiorari or any other appropriate writ, order or
direction
(ii) Declare that the levy of current charge in
case of capacitors not installed or becoming faulty
and unserviceable in a LT-IV Industrial connection,
is not the dominion of APTS and that Ext.P3 order
is illegal, arbitrary, ultravires and void.
(iii) Declare that the failure of the static
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capacitor in a LT-IV Industrial connection does
not result in unauthorized use of electricity
warranting penal assessment but will only
result in billing the consumer at a higher rate
for the period during which the capacitor
remained defective in terms of the LT Industrial
Tariff Notification dated 25-12-2002.
(iv) Declare that the petitioner cannot be
levied any enhanced charges in respect of the
faulty capacitor, taking in to account the facts
and circumstances of the case and the amount
already remitted by the petitioner in this regard
is therefore liable to be refunded.
(v) Issue writ of mandamus or any other
appropriate writ, order or direction
commanding the respondents to refund the
amount of Rs.13,641/- remitted vide
Rt.No.395/398 dated 30-7-2003 by the
petitioner”
2. The contention of the petitioner is that the non-
connection of the capacitor was noted by the Anti-Power Theft
Squad (APTS) on 25.7.2003. During the same month the
meter reader had taken meter reading on 2.5.2003. On that
date, the meter reader did not notice any defects and he
served a bill for actual energy charges. That being so, the
capacitor must have become non-functional subsequent to
2.5.2003 and therefore, the petitioner is liable to pay, if at all,
20% extra only for the month of May. He also submits that
the collection of 20% extra is based on the Industrial Tariff
notification dated 24.10.2002. According to him, that is not
W.P.(c)No.1051/06 3
penal charges. The respondents have demanded 20% extra
for six months which is not justifiable by any stretch of
imagination, especially since the meter reader did not notice
any defect in the installation on 2.5.2003 when he took the
meter reading is the petitioner’s contention. Therefore,
according to him, the respondents cannot recover 20%
additional charges for more than a month.
3. The learned Standing Counsel for the Kerala State
Electricity Board submits that it is the duty of the petitioner to
inform the Board immediately when the capacitor became non-
functional. According to the learned Standing Counsel for the
Board, as per the Tariff Notification, in the event of the static
capacitor becoming faulty or unserviceable, the consumer is
bound to intimate the matter to the Asst. Engineer/Asst.
Executive Engineer of the concerned Electrical Section/Major
Section forthwith and the consumer is bound to make
immediate arrangements for repair. Such repair shall be
carried out within two weeks also. The petitioner has not
chosen to inform the officer of the Board, despite he having
been aware of the capacitor having been burnt. Therefore,
W.P.(c)No.1051/06 4
the petitioner’s contention that it became defective only after
2.5.2003 cannot be accepted on face value, is the contention
raised. Therefore, the Board had to fix the period during
which the capacitor was not non-functional. They adopted a
reasonable period namely, six months, which cannot be faulted
is the contention raised.
4. I have considered the rival contentions in detail.
The relevant provisions of the Tariff Order applicable read as
follows:
“Note:-I. For consumers who have not installed
ISI approved capacitors of recommended value the
rate applicable will be higher by 20% (both on Fixed
and Energy charges) than the rates shown above.
xxxx xxxx xxxx
IV. All LT. Industrial Consumers are required to
install static capacitors approved by ISI for power
factor improvement, for their inductive loads as
recommended in the Annexure-II attached to this
notification and obtain approval of the Board. The
capacitors shall be only for the inductive loads. New
service connections will not be given unless the (sic)
the installations of the prospective consumers
include static capacitors of the recommended rating.
V. In the event of the static capacitor becoming
faulty or unserviceable, the consumer shall forthwith
intimate the matter to the Assistant
Engineer/Assistant Executive Engineer of the
concerned Electrical Section/Major Section and the
consumer shall make immediate arrangements for
repair.
VI. If the capacitor is not put back into service
duly repaired and to the satisfaction of the Board
within two weeks, enhanced charges as per Note 1W.P.(c)No.1051/06 5
above shall be payable for the whole period during
which the capacitor was faulty”
(underlining supplied)
No doubt, as per the same, the petitioner was bound to
intimate the officers of the Board that the static capacitor was
faulty or unserviceable forthwith. Admittedly, he has not done
the same. He was also expected to repair the same to the
satisfaction of the Board within two weeks. Till the ATPS found
out the defect, the petitioner did not care to repair the
defective capacitor also. The petitioner was quite aware that
the capacitor was burnt. Admittedly he did not inform the
same to the Board at any time and it is the ATPS who found
out the same. The petitioner repaired the same also
subsequently. Therefore, I am not inclined to believe the
words of such a consumer on face value. As such I am not
inclined to accept the contention of the petitioner that the
capacitor became faulty subsequent to 2.5.2003. But that
does not mean that the Electricity Board can arbitrarily assume
that the capacitor would have been faulty or unserviceable for
a period of six months without any reasonable assessment of
the period during which it would have been faulty or
W.P.(c)No.1051/06 6
unserviceable based on some facts. In fact, all consumers pay
inspection fee every month along with the current charges.
The inspection fee is paid on the assumption that every month
the officers of the Board do inspect the electrical installation of
every consumer for defects. But the fact that on 2.5.2003, the
meter reader had taken meter reading does not ipso facto
mean that if the capacitor was faulty, the meter reader would
have noticed the same. At this point of time, it would not be
possible even to make an educated guess as to the period
during which the capacitor remained faulty.
5. In view of my above findings, I think that a
reasonable assessment would be to close the matter by
directing the respondents to accept the amounts already paid
by the petitioner as the amount due from the petitioner
towards the 20% additional charges payable by him for using
his installation with a faulty/unserviceable capacitor. The
petitioner had at the time of filing the appeal paid Rs.13,641/-.
As a condition for stay in this writ petition, he had paid another
Rs.10,000/-. The respondents shall accept the said amount as
the amount payable by the petitioner towards 20% payable by
W.P.(c)No.1051/06 7
him as per the Tariff Order for using electricity without a
proper capacitor. To that extent, the impugned orders are
quashed. It is declared that the petitioner is not liable to pay
any further amount than what he has already paid towards
20% charges as per the Tariff Order for using electricity
without a proper capacitor in place.
The writ petition is disposed of as above.
S. SIRI JAGAN, JUDGE
acd
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