IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 WP(C).No. 4258 of 2008(F) ------------------------- PETITIONER: ------------- K.S.MOHAMMED ALI, HERO PLYWOODS AND BOARDS, PORT ROAD, AZHEEKODE, KANNUR-9. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE K.S.E.B, VIDYUTHI BHAVANAM, KANNUR 670 002. 3. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, PAPPINISSERY, KANNUR DISTRICT. 4. ASSISTANT ENGINEER, ELECTRICAL SECTION, AZHEEKODE, KANNUR DISTRICT. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.4258/08 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE PROCEEDINGS DATED 20.8.07 ISSUED BY THE 3RD RESPONDENT. EXT.P2: TRUE COPY OF DEMAND NOTICE DATED 17.5.07. EXT.P3: TRUE COPY OF APPEAL DATED 23.5.07 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4: TRUE COPY OF PROCEEDINGS DATED 25.1.08 ISSUED BY THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF DEMAND NOTICE DATED 28.1.08 FOR `.1,12,500/-. TRUE COPY P.A.TO JUDGE T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.4258 Of 2008 ----------------------------------------------------- DATED THIS THE 13th DAY OF DECEMBER, 2010 J U D G M E N T This Writ Petition is filed challenging the order Exhibit P4 passed by the Deputy Chief Engineer, Electrical Circle, Kannur whereby a penal bill for Rs.1,68,750/- issued against the petitioner was sustained, after rejecting his appeal. 2. The petitioner is having an industrial unit, namely, an SSI Unit for manufacture of plywoods, under the name and style “Hero Plywoods, near Azheekkal Port in Kannur District. The said Unit is drawing electricity from Consumer No.10091 under the jurisdiction of the 4th respondent. The Unit has a connected load of 79.5KW, even though power allocation sanctioned as per order of the 3rd respondent is for 81.25 KW. 3. As per the direction of the Azheekode Port authorities, a portion of the factory building had to be demolished for the expansion of the Azheekode Port. This required the shifting of machinery with the capacity of approximate 50KW to a new building in the same compound. The above work was carried out by the petitioner; but without any sanction from the authorities W.P.(C)No.4258/08 -2- concerned. 4. There was an inspection at the premises on 24.4.2007 by the 4th respondent. By Exhibit P1, ultimately it was regularised also. But, thereafter a penal bill for an amount of Rs.1,68,750/- was issued as per Exhibit P2 for alleged unauthorised extension of 50KW of connected load. Challenging the same, Exhibit P3 appeal was filed, which resulted in Exhibit P4 order. 5. The learned counsel for the petitioner submitted that the assessment of penal bill, that too on a daily basis cannot be supported in the light of the decision of this Court in JDT Islam Orphanage Committee v. Assistant Engineer, KSEB(2007 (3) KLT 388). Herein the connection is under LT IV being an industrial unit. In the above said decision, this Court examined a similar question and laid down the principles in paragraphs 2, 3 and 4 as follows: “In view of procedure prescribed for extension under Regulation 24,in case any unauthorised extension is taken, and if the same is likely to cause any danger to life or loss of property, the said extension as well as the supply itself is liable to be disconnected. LT VIII Tariff was intended for temporary extensions. But there is no W.P.(C)No.4258/08 -3- provision under the Conditions of Supply of Electrical Energy or the Tariff Notification that the unauthorised extension shall be treated as temporary extension for the purpose of Tariff. In the absence of any provision enabling the Board to levy energy charges under LT VIII Tariff for the alleged unauthorised extension, billing at penal rates on the basis of the connected load on daily basis is impermissible. Liability is only for the penal rates at three times the fixed charges alone under LT VI tariff for six months, during the relevant period.” The reasoning of the learned Judge above, squarely applies to the facts of this case. Here the connection has already been regularised. The Deputy Chief Engineer in Exhibit P4 found that the installation was done at the premise without giving intimation to the KSEB or obtaining power sanction from the department. Accordingly, it was found that the petitioner will be penalised for per day penal rate on connected load applicable for unauthorised line extension itself. In the light of the dictum laid down in the above mentioned case, the same cannot be supported. 6. Herein the tariff being LT IV, the liability is only for the penal daily rate as 1.5 times of the fixed charges for 45 days. Exhibit P4 is therefore quashed, to that extent. The respondent will issue revised bill accordingly within a period of one month from the date of receipt of a copy of this judgment. Since the W.P.(C)No.4258/08 -4- petitioner has remitted a substantial portion of the amount, the balance amount after adjustment can be refunded or the same can be adjusted towards the future bills of the petitioner. The Writ Petition is allowed as above. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn