IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 OP.No. 36638 of 2001(J) ----------------------- PETITIONER(S): ------------------ M/S.SAGAR HOTEL, INDIRA GANDHI ROAD, KOZHIKODE-1, REPRESENTED BY ITS MANAGER T.MOHAMMED ASHRAF,SON OF M.P.ALI, PATTELTHAZHAM, KOZHIKODE-13. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT(S): ------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KOZHIKODE. 3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION (CENTRAL), GANDHI ROAD, KOZHIKODE. 4. THE DEPUTY CHIEF ENGINEER, A.P.T.S.(ANTI POWER THEFT SQUAD) (HQ), THIRUVANANTHAPURAM. ADV. SRI.T.G.RAJENDRAN SC FOR K.S.E.B. FOR R1TOR4 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO 3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/6/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.36638/01 ORDER IN CMP NO.59938/01 IN OP NO.36638/01 DISMISSED 12/06/2009 SD/-ANTONY DOMINIC, JUDGE APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER DT 9.10.2000 WAS ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER (3RD RESPONDENT) TO THE PETITIONER. EXT.P2: TRUE COPY OF THE APPEAL DT 27.10.2000 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXT.P3: TRUE COPY OF the JUDGMENT DT 6.11.2000 IN OP NO.29099 OF 2000, HIGH COURT OF KERALA. EXT.P4: TRUE COPY OF THE ORDER DT 12.10.2001 PASSED BY THE 4TH RESPONDENT. EXT.P5: TRUE COPY OF THE BILL DT NIL ISSUED BY THE KERALA STATE ELECTRICITY BOARD TO THE PETITIONER. EXT.P6: TRUE COPY OF THE LETTER DT 22.11.2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXTS.OF R1 EXT.R1(a): TRUE COPY OF THE LETTER DT 22.11.2001 FROM 3RD RESPONDENT TO THE MANAGER OF THE BANK. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ O.P. NO. 36638 OF 2001 (J) ===================== Dated this the 12th day of June, 2009 J U D G M E N T Petitioner is a hotel, availing of supply of electricity with consumer Nos.5575 and 3146. The Anti Power Theft Squad of the Board inspected the premises of the petitioner on 9/10/2000. Ext.P1 is the mahazar, which states that in so far as Consumer No.3146 is concerned, in the meter, a gap was seen provided between the glass and top cover of the energy meter, which according to the respondents enabled insertion of foreign material, which could affect the functioning of the meter. On the aforesaid basis, the penal bill demanding Rs.2,56,917/- was issued to the petitioner. Petitioner filed an appeal before the Deputy Chief Engineer. The appeal was disposed of by Ext.P4. It is challenging these proceedings the original petition is filed. 2. Learned counsel for the petitioner submits that the claim regarding the alleged tampering of the meter is factually erroneous. According to him, at best, this could have been a manufacturing defect and in any case, even the mahazar does not suggest a human intervention. However, having regard to the OP No.36638/01 :2 : factual findings in the mahazar and also the submissions made by the Assistant Executive Engineer before the Appellate Authority as is seen from Ext.P4, I do not think this Court will be justified in upsetting those factual findings in this proceedings. 3. Counsel proceeds to contend that Ext.P4 is invalid for other reasons. Firstly, it was contended that appeal was filed against a penal demand for Rs.2,56,917/- and that in his appeal, his liability has been increased and the present demand is Rs.4,42,864.80/-. The order shows that the original authority had taken connected load at 24 KW and average working hours as 12. On this basis, after quantifying the units, the units already assessed has been deducted and the balance is multiplied with 3, and on that basis, the energy consumed has been quantified and penalty has been levied. However, it is seen from the appellate order that the connected load has been reduced to 14 KW, the average working hours has been increased to 16 and for the quantification of the energy consumed, a different method has been adopted. Thus, the liability of the petitioner is increased considerably. 4. In my view, in an appeal filed by the petitioner, an OP No.36638/01 :3 : order prejudicial to the interest of the petitioner could not have been passed in the manner that has been done. If at all the appellate authority is competent, the appellate authority ought to have issued notice to the petitioner, informing him of the proposal to adopt any basis other than what was adopted by the original authority and only after giving the petitioner an opportunity to resist such proposal, an order prejudicial to them could have been passed. This has not been done in this case and for that reason Ext.P4 is bad. 5. Counsel for the petitioner submits that there is absolutely no justification for the claim that in Consumer No.3146, the consumption was low as compared to Consumer No.5575. It is contended that consumer No.5575 was connected to the air conditioned restaurant area of the hotel and naturally, therefore, the consumption was on the higher side. It is also stated, referring to the consumption pattern of consumer No.3146 that there has not been any significant reduction in the quantity consumed. It is also contended that the finding in Ext.P4 to the effect that from January 96 to December 98, there was low consumption is erroneous. In para 13 of the original petition, the OP No.36638/01 :4 : monthly quota fixed by the Board during the period from 5/2/96 to 31/3/97, consequent on the imposition of power cut has been furnished. This shows that there were severe restrictions on the consumption of energy and according to the learned counsel, it was therefore that the consumption was low. 6. Now that on the first question itself I found Ext.P4 to be illegal and as the matter requires reconsideration, necessarily, the other issues are also matters which the appellate authority should duly advert to while passing revised orders. 7. Therefore Original petition is disposed of quashing Exts.P4, P5 the consequent bill and P6 and the 4th respondent is directed to reconsider the appeal filed by the petitioner with notice to him, as expeditiously as possible. It is directed that depending upon the revised orders to be passed, necessary orders regarding the appropriation of the amount deposited towards the amount demanded shall also be passed by the respondents themselves. ANTONY DOMINIC, JUDGE Rp