IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2232 of 2009()
1. SAJ FLIGHT SERVICES PVT.LTD,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
For Petitioner :SRI.K.P.DANDAPANI (SR.)
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.S.R.BANNURMATH
The Hon'ble MR. Justice A.K.BASHEER
Dated :22/12/2009
O R D E R
S.R. Bannurmath, C.J. & A.K. Basheer, J.
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W.A.No. 2232 OF 2009
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Dated this the 22nd day of December, 2009
JUDGMENT
A.K. Basheer, J.
Appellant is a private limited Company engaged in
providing in-flight kitchen services in Aircrafts. Admittedly,
appellant is a Low Tension consumer of the Kerala State
Electricity Board.
2. It is beyond controversy that the Anti Power Theft
Squad of the Board had detected unauthorised additional load
of 29 KW at the premises of the appellant in a surprise
inspection made on April 10, 1996. Since the sanctioned
connected load of the appellant-consumer was only 28 KW,
the Board issued a penal bill of Rs.2,95,310/- as provided
under Clause 42(d) of the Conditions of Supply of Electrical
Energy. Later, the bill amount was reduced to Rs.2,91,110/-
pursuant to an order issued by the Deputy Chief Engineer,
Anti Power Theft Squad (Headquarters),
Thiruvananthapuram.
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3. The above bill was challenged by the appellant before
this Court in OP No.6360 of 1998. The said Original petition was
disposed of with a direction to the officer concerned to revise the
penalty limiting it to the fixed charges. This order was challenged
by the Board in WA 538 of 2004. The Division Bench disposed of
the appeal holding that if there was no theft or illegal abstraction
of energy or if it was a case where no damage had been caused
to the installation of the Board, the imposition of maximum
penalty was not warranted. Accordingly the Board decided to
reduce the penalty of three times already imposed as per
unamended Clause 42(d) to two times the tariff rate applicable.
Accordingly an order was issued purportedly in terms of the
direction issued by the Division Bench. The said order was
challenged by the appellant in WP(C) No.3985/2007. The said
writ petition was disposed of by this Court with a direction to the
Secretary of the Board to reconsider the question of waiver of
penalty after giving an opportunity of personal hearing to the
appellant.
4. The Secretary of the Board heard the appellant and
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reconsidered the entire matter. It was thereafter Ext.P6 order
was passed by the Secretary holding that the appellant was not
entitled to any further benefit than what it had already been
granted.
5. The above order(EXt.P6) was challenged by the
petitioner in the present writ petition before the learned Single
Judge, who by the impugned judgment held that there was no
warrant for any interference and accordingly dismissed the writ
petition. The said judgment is under challenge in this Writ
Appeal.
6. We have heard Ms.Jebi Mather Hisham, learned counsel
for the appellant and Sri.C.K.Karunakaran, learned Standing
Counsel for the respondent at length.
7. It is contended by Ms.Jebi that the appellant company
was forced to install certain additional equipments in order to
give better services to the Air passengers. Installation was done
after making a formal request to the Board to sanction additional
load and anticipating favourable orders. However, the Board did
not sanction additional load. It was at this juncture, the Anti
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Power Theft Squad conducted the inspection and detected the
alleged additional consumption. As soon as the Board directed
the appellant to remove the additional equipments, the direction
was complied with and all those machineries/equipments were
dismantled. It is thus contended by the appellant that there was
absolutely no theft of energy. The Board also did not have such
a case at all. It is contended by the learned counsel that the
impugned order passed by the Secretary without keeping in view
the above aspect is totally illegal and vitiated. It is further
contended that Regulation 42(d) has been misinterpreted by the
Secretary in Ext.P6 order.
8. We are unable to agree with the above contentions
raised by the learned counsel for the appellant.
9. It is the admitted position that the Anti Power Theft
Squad had detected additional load of 29 KW at the premises of
the appellant in the course of the inspection. It is conceded by
the learned counsel that the appellant has been consuming
additional load, but according to her it was in anticipation of
sanction from the Board. It is contended that the Board had sat
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over the request for additional load without any justification.
Therefore the appellant cannot be mulcted with penalty for the
simple reason that it installed the additional
equipments/machineries anticipating sanction of additional load.
The above contention cannot be countenanced or accepted for
reasons more than one.
10. It may be true that the appellant had applied for
additional load in January 1996 but it had come out on record
that the appellant had installed additional
equipments/machineries right from October 1995 itself, even
though a formal application was submitted only in January 1996.
The inspection was made in April 1996 and the demand notice
was issued for the period from October 95 till March 1996.
Though initially a sum of Rs.2,95,310/- was demanded, it was
reduced to Rs.2,91,110/- and still later the amount was further
reduced after the judgment of the Division Bench. Board reduced
the penalty of three times to two times of the tariff rate. In this
context it may also be noticed that the penalty imposed on the
appellant was as per unamended Clause 42(d) and penalty of
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three time tariff had already been reduced to two times. In that
view of the matter, in Ext.P6 order the Secretary of the Board
rightly held that the appellant does not deserve any further
concession.
11. Having carefully perused the entire materials available
on record and the impugned judgment passed by the learned
Single Judge, we are totally satisfied that there is no merit in any
of the contentions raised by the appellant. In our view the levy
of penalty imposed by the Board is perfectly legal and valid and
the learned Single Judge was justified in dismissing the Writ
Petition.
The appeal is devoid of merit and it is accordingly
dismissed.
S.R. Bannurmath,
Chief Justice.
A.K. Basheer,
Judge.
ttb
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