IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 OP.No. 19829 of 2001(I) ---------------------------------- PETITIONER(S): ------------------------ VALLAKKALIL MOHAN JACOB JOHN, PROPRIETOR, VALLAKKALIL ICE & COLD STORAGE, WEST HILL, KOZHIKODE – 5. BY ADV. MR.N.RAGHURAJ RESPONDENT(S): -------------------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM. 2. THE DEPUTY CHIEF ENGINEER, ANTI POWER THEFT SQUAD (APTS), THIRUVANANTHAPURAM. 3. ASSISTANT ENGINEER, ELECTRICAL MAJOR SECTION, KERALA STATE ELECTRICITY BOARD, WEST HILL, KOZHIKODE. 4. CHIEF ELECTRICAL INSPECTOR, THIRUVANANTHAPURAM. R1 TO R4 BY ADV. MR.C.K.KARUNAKARAN, SC FOR KSEB THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.32129/2001 IN O.P.NO.19829/2001 I DISMISSED 25/05/2009 SD/- ANTONY DOMINIC, JUDGE APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF BILL NO.APTS/97-98/7 DTD. 5/06/1997 ISSUED BY THE ASSISTANT ENGINEER, KSEB, WEST HILL TO THE PETITIONER. P2: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE ASSISTANT ENGINEER, KSEB, KOZHIKODE DTD.31/05/97. P3: COPY OF THE ORDER DTD. 27/08/97 ISSUED BY THE 2ND RESPONDENT, DEPUTY CHIEF ENGINEER, APTS. P4: COPY OF THE JUDGMENT OF THIS HON'BLE COURT DTD. 12/01/2000 IN O.P.NO.16211/97. P5: COPY OF THE REPRESENTATION DTD. 28/04/2000 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P6: COPY OF THE ORDER NO.VIG.BV.4332/Kkd/97/1572 DTD.15/01/2001 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P7: COPY OF THE EXPERT OPINION DTD. 2/07/2001 FROM THE CHIEF ELECTRICAL INSPECTOR TO GOVT. OF KERALA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ================ OP NO. 19829 OF 2001 (I) ===================== Dated this the 25th day of May, 2009 J U D G M E N T Petitioner claims to be the proprietor of an Ice and Cold Storage Factory consuming electricity as per Consumer No.9922. It is stated that on 27/5/97, the premises were inspected by the Anti Power Theft Squad of the Board and Ext.P1 is the inspection report, where it is stated that they had noticed that the power meter was recording only 1/3rd of the consumption and that the R phase CT lead wire was seen cut and separated and that Y phase CT lead wire was seen burnt and separated. On this basis, petitioner was issued a reassessed bill for Rs.4,06,824/- and he was requested to remit the amount. 2. Petitioner represented against Ext.P1 to the 3rd respondent as per Ext.P2. The matter apparently was referred to the 2nd respondent, who by Ext.P3 rejected the objections and held it to be a case of tampering with the meter. The petitioner challenged Ext.P3 before this Court in OP No.16211/97. That original petition was disposed of by Ext.P4 judgment directing the 2nd respondent to reconsider the matter. Accordingly, the matter OP NO.19829/01 :2 : was reconsidered and by Ext.P6 order, the 2nd respondent again concluded that this was a case of tampering and theft of energy and held that the reassessment done was correct and proper. It is in this background challenging Ext.P6 this original petition has been filed. 3. The main contention raised in the original petition is that in view of the provisions contained in Section 26(6) of the Indian Electricity Act, 1910, without getting the meter inspected by the Electrical Inspector, the respondents could not have concluded that the meter was not recording correct consumption or that this was a case of theft of energy. 4. A reading of Ext.P6 shows that the 2nd respondent on the materials placed before it was satisfied that the petitioner was illegally abstracting energy by disconnecting the CT leads and keeping it folded and taped with insulation tape to ensure that there was no electric contact and thus reduced the recording of the energy consumed in their establishment. It is this irregularity which is mentioned in Ext.P1 inspection report as well. Evidently therefore, this is a clear case of theft of electrical energy and not a case of any defect in the meter, the question is whether in such OP NO.19829/01 :3 : a situation Section 26(6) of the Indian Electricity Act, 1910 has any application. 5. Counsel for the Board referred me to the decisions of the Apex Court in M.P.Electricity Board v. Harsh Wood Products{(1996) 4 SCC 522}, State of W.B v. Rupa Ice Factory (P) Ltd. {(2004) 10 SCC 635} and J.M.D.Alloys Ltd. v. Bihar Seb {(2003) 5 SCC 226}. In all the three cases, the Apex Court has consistently held that in a case of tampering or theft or pilferage of electricity, the demand raised falls outside the purview of Section 26 of the Electricity Act. If that be the legal position as settled by the Apex Court, the contention raised in the original petition that without having taken recourse to Section 26 (6), the respondents could not have issued the revised demand is only to be rejected. Therefore, there is no substance in the contentions raised. Original petition deserves to be dismissed and I do so. ANTONY DOMINIC, JUDGE Rp