IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 WP(C).No. 17929 of 2008(H) ----------------------- PETITIONER: ------------------ K.P.MOHANAN, KADAVATH PURAYIL, P.O.PARIYARAM, PROPRIETOR, SREE KRISHNA BRICKS, P.O.PARIYARAM, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): ----------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KSEB, PAYYANNUR, KANNUR DISTRICT. 3. ASSISTANT EXECUTIVE ENGINEER, KSEB, ELECTRICAL SUB DIVISION, TALIPARAMBA. 4. ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB, TALIPARAMBA. 5. DEPUTY CHIEF ENGINEER, CONSUMER GRIEVANCE REDRESSAL FORUM, KSEB NORTHERN REGION GANDHI ROAD, KOZHIKODE - 32. 6. SPECIAL DEPUTY TAHSILDAR, REVENUE RECOVERY, KANNUR. 7. DEPUTY CHIEF ENGINEER, KSEB, ELECTRICAL CIRCLE, SREEKANTAPURAM, KANNUR DISTRICT. R1 to R5 & R7 BY ADV. SRI.C.K.KARUNAKARAN, SC, KSEB R6 BY GOVT. PLEADER SRI. SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 17929 of 2008(H) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : PHOTOCOPY OF THE DEMAND FOR DECEMBER 2001. EXT.P2 : TRUE PHOTOGRAPH OF THE BURNT METER. EXT.P3 : TRUE PHOTOGRAPH OF THE REPORT DATED 29-7-04 SUBMITTED BY THE THIRD RESPONDENT TO THE SECOND RESPONDENT. EXT.P4 : PHOTOCOPY OF THE ORDER NO. DB3/04-05/TPBA/03/AEE/TPBA DATED 25-9-04. EXT.P5 : PHOTOCOPY OF THE NOTICE DATED 28-6-2007 ISSUED BY THE FORTH RESPONDENT. EXT.P6 : PHOTOCOPY OF THE COMPLAINT DATED 5-11-2007 SUBMITTED BY THE PETITIONER BEFORE THE FIFTH RESPONDENT. EXT.P7 : PHOTOCOPY OF THE NOTICE DATED 24-10-2007 RECEIVED BY THE PETITIONER ON 9-11-07. EXT.P7(a) : PHOTOCOPY OF THE NOTICE DATED 24-10-07 RECEIVED BY THE PETITIONER ON 9-11-07. EXT.P8 : PHOTOCOPY OF THE JUDGMENT DATED 15-11-07 IN WP(C) NO. 33704/07 OF THIS HON'BLE COURT. EXT.P9 : PHOTOCOPY OF THE APPLICATION DATED 17-5-08 FOR ALLOCATION OF POWER SUBMITTED BEFORE THE THIRD RESPONDENT. EXT.P10 : PHOTOCOPY OF THE ORDER NO. GB/ADALATH/2008-09/491 DATED 8-7-08 ISSUED BY THE 7TH RESPONDENT. RESPONDENT'S EXHIBITS: //TRUE COPY// P.S. TO JUDGE Mn T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.17929/2008-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5th day of October, 2010 J U D G M E N T The petitioner challenges the proceedings Ext.P10 by which the Appeal Petition filed by him, against the assessment of unauthorised additional load, has been rejected confirming the demand. 2. The amount in question, namely, Rs.1,02,724/- plus surcharge was remitted by the petitioner during the pendency of the proceedings. Now, what remains is the claim for refund. 3. It is submitted by the learned counsel for the petitioner that the petitioner's Unit is a Small Scale Industrial Unit with consumer No.18051. Initially, connected load was 30HP. But the Unit could not start functioning for various reasons. The petitioner was paying the monthly minimum current charges in order to maintain the service connection. The petitioner applied for additional power allocation and it was granted by providing 15 HP power allocation w.e.f April 2002. A new meter was installed from 24/03/2003. But, according to him, due to short circuit it was burnt two days after its improper W.P.(C). No.17929/2008 -:2:- fixing. Ext.P2 is the true photograph produced in support of the above plea. The situation continued till October, 2004. The petitioner paid monthly demands upto February, 2003 and no payment was made from March, 2003 since no meter was installed after the burning of the same. But, in April, 2003 the Sub Engineer of the Section inspected the Unit and reported that there was an additional load of 18HP and the monthly demand was to be enhanced from Rs.1035/- to Rs.2205/-. However, no site mahazar was prepared and the petitioner was not informed of the alleged inspection also. It is pointed out that even though 40HP motor was kept in the premises, that was not connected to the mains and the allocation of the unauthorised connected load is not correct. Reliance is placed on Ext.P3 a report dated 29/07/2004 submitted by the third respondent to the second respondent wherein various aspects have been pointed out. Ext.P4 is the proceedings whereby he was granted additional power allocation of 15HP. But even after this he could not commence production because of various problems. According to the petitioner there was no meter or connection from April 2003 to September 2004 and at the end of September, 2004 the meter was changed and he is liable to pay the charges from October, 2004 to May 2005. Ext.P5 is the W.P.(C). No.17929/2008 -:3:- demand, which was disputed by him in Ext.P6. It is pointed out that thereafter, based on an interim order passed by this Court on 14/10/2008 in this writ petition, an amount of Rs.1,31,327/- has been paid. 4. Ext.P6 filed before the Consumer Forum was transferred to the Deputy Chief Engineer in the light of Section 127 of the Electricity Act, 2003 which resulted in Ext.P10 Order. The learned counsel for the petitioner submitted that all the points raised by the petitioner have not been considered in Ext.P10. It is pointed out that the allocation of the unauthorised connected load is not correct. The Deputy Chief Engineer has accepted the contentions of the concerned officers without verifying the real facts. My attention was invited to Regulation 27A(4) (i) of the Kerala Electricity Supply Code, 2005 which provides as follows:- “In case of prejudicial use of power supply, the Licensee should draw mahazar at the time of inspection when such prejudicial use is detected. The mahazar shall be drawn in the presence of the Consumer or his representative along with two other witnesses who shall sign the mahazar report. One copy of such report shall be handed W.P.(C). No.17929/2008 -:4:- over under acknowledgment of the Consumer or his representative.” The learned counsel for the petitioner submitted that this is a mandatory process even under the earlier regulations, and the absence of mahazar vitiates the order itself. 5. Whether there was any unauthorised connected load has to be assessed only on the basis of the materials. The Deputy Chief Engineer has really presumed that there was an unauthorised connected load whereas the petitioner maintains the stand that the 40HP motor was never used. Herein, the report, Ext.P3 is relevant. It is not clear from the order Ext.P10 whether the report was available before the Deputy Chief Engineer. 6. The respondents have filed a counter affidavit supporting Ext.P10 order. 7. The learned counsel for the petitioner submitted that as the relevant materials have not been considered by the Deputy Chief Engineer, the order cannot be supported. 8. The question is whether actually there was any unauthorised connected load. The internal reports if any of the officers are not discussed in Ext.P10. Ext.P3 has also not been brought to the notice of the Deputy Chief Engineer. The conditions of supply and the regulations W.P.(C). No.17929/2008 -:5:- which are in force prior to the Supply Code also, according to the learned counsel for the petitioner, necessitate for the drawing of a mahazar and supply of the copy of the same to the petitioner also. But this was never done. 9. All these are matters for the Deputy Chief Engineer to consider afresh. In that view of the matter, Ext.P10 is quashed. There will be a direction to seventh respondent reconsider the matter with notice to the petitioner. All the relevant materials including the original of Ext.P3 will be called for and after hearing the petitioner, appropriate orders will be passed within a period of four months from the date of receipt of a copy of this Judgment. Ultimately, if the petitioner is found entitled for refund, the amount will be refunded within a reasonable time. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms