IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 WP(C).No. 25059 of 2004(G) ------------------------------------ PETITIONER(S): ------------------- P.U.JOHN, PALLIVIRUTHIKUNNEL HOUSE, PALA. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): -------------------------- 1. KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, VAIDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, K.S.E.B., PALA. 3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, K.S.E.B/, PALA. 4. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, PALA. 5. SUB ENGINEER, ELECTRICAL SECTION, PALA. 6. DEEPA SURESH, INCHIYIL HOUSE, PALA. R1 TO R5 BY ADV. SRI.C.C.THOMAS, SC, K.S.E.B SRI.ANIMON A. JOHN SRI.SEBASTIAN VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/02/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.25059/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LEASE DEED DT. 17.3.03 EXECUTED BY THE PETITIONER IN FAVOR OF R6. P2:- COPY OF THE MAHAZAR IN CRIME NO.567/03 DTD. 29.10.03. P3:- COPY OF THE NOTICE DTD. 17.7.04 ISSUED TO THE PETITIONER. P4:- COPY OF THE APPEAL DTD. 3.8.04 SUBMITTED TO THE 3RD RESPONDENT. P5:- COPY OF THE ORDER DTD. 13.8.04 OF THE 3RD RESPONDENT. P6:- COPY OF THE SUMMONS ISSUED TO THE PETITIONER FROM CDRF KOTTAYAM DTD. 17.5.04. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss K.SURENDRA MOHAN, J. ------------------------------------------- W.P.(C) No.25059 of 2004 ------------------------------------------- Dated this the 11th February, 2011 JUDGMENT The petitioner is the consumer of an electric connection bearing Consumer No.14152 A1-6 of the Electrical Major Section, Pala. According to the petitioner, the premises to which the electric connection was granted was given on rent to the sixth respondent as per Ext.P1 lease deed. She was conducting a hotel by name 'Thriveni Hotel' in the said premises. While so, in the year 2003, an inspection was conducted by the officers of the Kerala State Electricity Board, whereupon, it was found that the sixth respondent had been consuming electrical energy by taking the same from the service wire directly, before it reached the meter that was installed. Immediately, Crime No.567/2003 of Pala Police Station was registered against the petitioner as well as the sixth respondent for theft of electrical energy. According to the petitioner, the criminal case that was charged pursuant to the registration of the crime has ended in acquittal of the petitioner. WPC NO.25059/2004 2 2. It is the case of the petitioner that since the sixth respondent was in occupation of the premises, he had no knowledge of the fact that the tenant was indulging in theft of electrical energy. He also alleges that no notice of any such inspection or detection of theft was ever served on the petitioner. In fact, the petitioner seriously disputes even the fact that there was any such inspection at all. Soon after the theft of electrical energy was detected, a penal bill together with the charges for the energy consumed totalling an amount of Rs.99,943/- was served on the sixth respondent. The sixth respondent thereupon challenged the said bill before the Consumer Disputes Redressel Forum, Kottayam by filing O.P.No.323/2003. It appears that the said case was subsequently dismissed for non-prosecution. According to the petitioner, he had no knowledge of the above developments. He came to know about the demand made by the Electricity Board only when Ext.P3 notice dated 17.7.2004 was served on him. At that point of time, since the regulations under the Electricity Act of 2003 had not come into force, he filed an appeal before the third respondent under Regulation 48 of the Regulations Relating to WPC NO.25059/2004 3 Conditions of Supply of Electrical Energy, 1990 (hereinafter referred to as the 'Old Regulations'). The third respondent considered the appeal and has rejected the same as per Ext.P5 order dated 13.8.2004. The said order is under challenge in this writ petition. 3. According to the counsel for the petitioner, all the three reasons mentioned by the third respondent in Ext.P5 are unsustainable. The first reason stated in Ext.P3 is that the appeal was not filed within the time stipulated by law. According to the counsel for the petitioner, the petitioner had no knowledge of the demand that was raised by the officials of the Board for the reason that no notice thereof was served on him. The only demand made on him being Ext.P3 which is dated 17.7.2004, it is contended that his appeal dated 3.8.2004 is within the period of thirty days stipulated by law. Secondly, the third respondent has found in Ext.P5 that no deposit of 1/3rd of the amount demanded, as contemplated by Section 127 of the Electricity Act, 2003 had been made while filing the appeal. According to the counsel for the petitioner, since Ext.P4 appeal was filed under Regulation 48 of the Old Regulations, which contains no WPC NO.25059/2004 4 stipulation regarding pre-deposit, it was wrong on the part of the appellate authority to have rejected his appeal on the said ground. At least, he should have been given an opportunity to make the deposit that is contemplated in view of the fact that the incident was in 2003 and the Act had been brought into force only on 10.6.2003. The third ground on which the appeal has been rejected is that O.P.No.323 of 2003 had been filed before the Consumer Disputes Redressel Forum, Kottayam concerning the very same subject matter and therefore there was no scope for a further hearing by the appellate authority. According to the counsel for the petitioner, the petitioner had not filed any case before the Consumer Disputes Redressel Forum. O.P.No.323/2003 was filed by the sixth respondent and the petitioner was only cited as a witness therein, as is evident from Ext.P6. Therefore, according to the counsel, there was no justification for penalising the petitioner for something that he had not done. For the above reasons, the counsel prays for a direction to the third respondent to re-consider the entire issue on the merits. 4. I have heard the counsel on both sides and perused WPC NO.25059/2004 5 the records of the case. I have also anxiously considered the contentions of the parties. 5. It is true that Electricity Act, 2003 had been brought into force on 10.6.2003. It is also true that Section 127 thereof stipulates the deposit of 1/3rd of the bill amount as a pre-condition for entertaining an appeal. However, considering the fact that the appeal filed by the petitioner was on 3.8.2004, it is certainly probable that the petitioner was not aware of the new provision of law that had been brought into force. Considering the further fact that the premises were in the occupation of the tenant who was conducting a hotel therein and the fact that it was the said tenant who was served with notice of the penal charges by the authorities, I am of the view that the petitioner's case cannot be dismissed as totally unjustified. It is also important to note that it was the sixth respondent who had filed O.P.No.323/2003 before the Consumer Disputes Redressel Forum in which the petitioner was cited only as a witness, as evident from Ext.P6. According to the petitioner, he came to know of the alleged demand only from Ext.P3 notice. According to the petitioner, the sixth respondent has WPC NO.25059/2004 6 thereafter vacated the premises and left the place leaving the responsibility of clearing the amounts demanded entirely on the petitioner. 6. It is not disputed that the petitioner was not heard before Ext.P5 was passed. The petitioner only wants a consideration of his appeal on the merits. It is also to be noted that the petitioner had approached the appellate authority by filing the appeal immediately on coming to know of the demand made in Ext.P3. Therefore, the conduct of the petitioner does not appear to be blameworthy. 7. For the above reasons, I feel that the petitioner can be given another opportunity to contest the demand that is made on him. However, such an opportunity can be given only subject to the petitioner satisfying the condition that is stipulated in Section 127 of the Electricity Act, 2003. If the deposit contemplated by the said provision is made by the petitioner, the third respondent shall consider and dispose of Ext.P4 appeal on the merits. In these circumstances, Ext.P5 is held to be unsustainable. 8. For the foregoing reasons, this Writ Petition is allowed; WPC NO.25059/2004 7 a) Ext.P5 order dated 13.8.2004 of the third respondent is set aside. b) The third respondent is directed to consider the appeal filed by the petitioner, evidenced herein by Ext.P4 in accordance with law and to pass appropriate orders thereon, on the merits provided that the petitioner deposits an amount of Rs.35,000/- (Rupees Thirty Five Thousand only) before the third respondent on or before 10.3.2011. c) If the amount stipulated above is deposited by the petitioner, the third respondent shall take up Ext.P4 appeal, consider the same on the merits after affording an opportunity of being heard to the petitioner and shall pass appropriate orders thereon in accordance with law, as expeditiously as possible and at any rate within a period of six weeks thereafter. K.SURENDRA MOHAN, JUDGE css/