IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 35330 of 2005(E) -------------------------------------- PETITIONER: ------------------- M/S.STAR PLYWOOD, ODAKKALI, PERUMBAVOOR, REP. BY ITS MANAGING PARTNER, SRI.K.V.ABBAS, S/O.VEERAN. BY ADVS. MR.K.A.SHAMSUDEEN, MR.K.I.ABDUL RASHEED. RESPONDENTS: ------------------------ 1. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VAIDHUTHI BHAVAN, PATTAM, THIRUVANANTHAPURAM. 2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KUIRUPPAMPADY, PERUMBAVOOR. 3. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, PERUMBAVOOR, KSEB, PERUMBAVOOR. R1 TO R3 BY MR.C.K.KARUNAKARAN, SC, KSEB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.35330/2005-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE METER SEALING CERTIFICATE ISSUED BY THE R.2. DTD. 13/01/2004. EXT.P.2: COPY OF THE INSPECTION NOTE PREPARED, DTD.18/10/2004. EXT.P.3: COPY OF THE PENAL BILL ISSUED BY THE R.2. DTD. 19/10/2004. EXT.P.4: COPY OF THE JUDGEMENT IN W.P.(C).NO.31284/04 DTD. 28/10/2004. EXT.P.5: COPY OF THE JUDGEMENT IN W.A. NO. 1987/04 DTD. 23/05/2005. EXT.P.6: COPY OF THE NOTICE ISSUED BY THE R.2. IN THIS REGARD DTD. 28/06/2005. EXT.P.7: COPY OF THE PROVISIONAL ASSESSMENT BILL ISSUED DTD. 28/06/2005. EXT.P.8: COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER TO EXT.P.7 BILL DT. 07/07/05. EXT.P.9: COPY OF THE PROCEEDINGS OF THE R.2. DTD. 30/07/2005 DB46/05-06/58. EXT.P.10: COPY OF THE APPEAL PETITION FILED BY THE PETITIONER BEFORE THE R.2. DTD. 12/08/05. EXT.P.11: COPY OF THE APPEAL ORDER ISSUED BY THE R.3. DTD. 19/11/2005. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC,J. --------------------- W.P.(C).No.35330 OF 2005 ------------------------ Dated this the 16th day of July, 2009. JUDGMENT Petitioner is a small scale industrial unit, engaged in the production of plywood with a connected load of 86 KW, with consumer No.11496. 2. On 18.10.2004, Anti Power Theft Squad inspected their premises and Ext.P2 is the mahazar prepared, which indicates that there was evidence of tampering with the meter. Therefore, petitioner was issued Ext.P3 penal bill, which was challenged in this court by filing WP(c). No.31284/04. That writ Petition was disposed of by Ext.P4 judgment, directing the Board to furnish the reasons for issuing the bill to the petitioner and leaving it open the petitioner to file his objections. It was also directed that the power supply shall be restored, on the petitioner remitting an amount of Rs.2.5 lakhs. In WA.No.1987/04 WP(c).No.35330/05 2 filed by the petitioner against Ext.P4, the Division Bench while disposing of the appeal by Ext.P5 judgment, reduced the amount to be remitted for restoring power supply, to Rs.1 lakh. 3. It is stated that, thereafter the amount was remitted and supply was restored. Later, Ext.P7 provisional bill was issued to the petitioner, for a sum of Rs.3,48,092/- which was after giving credit to Rs.1 lakh remitted by the petitioner pursuant to the judgment in the writ appeal. Ext.P8 objection was filed and by Ext.P9, the bill was confirmed. Petitioner filed Ext.P10 appeal before the Deputy Chief Engineer and as a condition thereof it is stated that he remitted Rs.1,49,364, being 1/3rd of the full amount that was due under Ext.P7. By Ext.P11 order, the appeal was rejected. It was thereupon this writ petition was filed. It is stated that, in compliance with the conditions imposed by this court for stay, petitioner remitted another sum of Rs.1 lakh. 4. Counsel for the petitioner contended that, the finding of pilferage is erroneous and that the working hours of 18 taken as the basis for quantifying his dues is incorrect. It is WP(c).No.35330/05 3 also his contention that quantification of the energy consumption is against the provisions of Section 126(6) of the Indian Electricity Act. 5. In so far as the contention that there was no pilferage is concerned, a reading of Ext.P2 mahazar, Ext.P9 and P11 orders would show, in view of the evidence referred to therein and the findings arrived at, this contention is without any merit. The seals of the meter box were found tampered. The CTs were seen reversed and error factor was also indicated. If that be so, the concurrent conclusions arrived at by the Assessing Officer and the Appellate Authority that there was pilferage cannot be upset, much less in a proceedings under Article 226 of the Constitution of India. 6. Similarly is the case with respect to the contention of the petitioner that 18 hours ought not have been adopted as the working hours. A reading of the petition filed by the petitioner and also the appeal filed by him shows that the objections raised in this behalf were too vague and did not merit acceptance. If that be so, this findings also cannot be accepted. WP(c).No.35330/05 4 7. However, from the counter affidavit filed, it can be seen that the method adopted by the respondent for quantifying the energy consumed is that the total units have been assessed for the past six months and that quantity is multiplied with 1.5, as provided in Section 126(6). Thereafter, the units recorded has been deducted and the balance is taken for billing purposes. In my view this method is incorrect. Once total unit for six months has been assessed, the units recorded should have been deducted from the said quantity and the balance quantity arrived at should be multiplied with 1.5, in terms of Section 126(6) and that shall be adopted for billing purpose. Therefore the total liability estimated on the aforesaid basis as is reflected from paragraph 9 of the counter affidavit is unsustainable. For that reason the writ petition is disposed of directing the Assistant Engineer, the 2nd respondent, to revise the bill issued to the petitioner in terms of 126(6) of the Indian Electricity Act. It is directed that on such revision, if any further amount is found to be due from the petitioner, the respondents will be at liberty to realize the same and on the WP(c).No.35330/05 5 other hand, if the payment made by the petitioner is in excess of what is actually due, the excess amount shall be adjusted towards the petitioner's future bill. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.35330/05 6