IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 OP.No. 14200 of 2002(M) ---------------------------------- PETITIONER: ------------------- M.ABDUL SALAM, PROPRIETOR, 'SALAM PLAZA', TALAP,KANNUR. BY ADV. MR.P.M.PAREETH. RESPONDENTS: ------------------------ 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY,VIDYUTHI BHAVANAM, PATTOM,THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD,KANNUR-2. 3. ASSISTANT EXECUTIVE ENGINEER,ELECTRICAL MAJOR SECTION, KANNUR. R1 TO R3 BY MR.C.K.KARUNAKARAN, S.C, K.S.E.B. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 14200/2002-M: ORDER ON C.M.P. NO. 23900/2002 IN O.P. NO. 14200/2002-M DISMISSED 01/06/2009. SD/- ANTONY DOMINIC, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ADDITIONAL BILL DTD. 01/03/2002 IN RESPECT OF CONSUMER NO. 3368 ISSUED BY THE R.3. EXT.P.2: COPY OF THE ADDITIONAL BILL DTD. 01/03/2002 IN RESPECT OF CONSUMER NO. 13353 ISSUED BY THE R.3. EXT.P.3: COPY OF THE ADDITIONAL BILL DTD. 01/03/2002 IN RESPECT OF CONSUMER NO. 13590 ISSUED BY THE R.3. EXT.P.4: COPY OF THE ADDITIONAL BILL DTD. 01/03/2002 IN RESPECT OF CONSUMER NO. 13593 ISSUED BY THE R.3. EXT.P.5: COPY OF THE APPEAL WITH STATEMENT FILED BY THE PETITIONER BEFORE THE R.2. UNDER REGULATION 48 (A) OF THE CONDITIONS OF SUPPLY OF ELECTRICAL ENERGY. EXT.P.6: COPY OF THE JUDGMENT IN O.P. NO. 7072/2002 DTD. 14/03/2002. EXT.P.7: COPY OF THE ORDER DTD. 18/05/2002 ISSUED BY THE R.2. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE MAHAZAR WITH RESPECT TO CONSUMER NO:3368. EXT.R1.B: COPY OF THE MAHAZAR WITH RESPECT TO CONSUMER NO.13590. EXT.R1.C: COPY OF THE LETTER OF DR. DHANYA JAYAPRASAD DTD.1 5/02/2002. EXT.R1.D: COPY OF THE MAHASAR WITH RESPECT TO CONSUMER NO. 13593. EXT.R1.E: COPY OF THE MAHASAR WITH RESPECT TO CONSUMER NO.13353. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J. ================ O.P. NO. 14200 OF 2002 (M) ===================== Dated this the 1st day of June, 2009 J U D G M E N T Petitioner is the proprietor of a shopping complex under the name and style of “Salam Plaza” at Kannur. To the different rooms in the shopping complex, supply of energy is availed of. 2. In so far as this original petition is concerned, the relevant consumer numbers are 3368, 13353, 13590 and 13593 under LT VII A. It is stated that on 15/2/2002, the Anti Power Theft Squad inspected the premises, to which the aforesaid consumer numbers are assigned. In so far as consumer numbers 3368, 13590 and 13593 are concerned, unauthorised extension was found. In so far as consumer no.13353 is concerned, unauthorized additional load was found in the premises. 3. Accordingly, Exts.P1 to P4 bills were issued demanding the amounts mentioned therein. Ext.P5 appeal was filed before the 2nd respondent. At that stage, petitioner approached this Court apprehending disconnection of the supply by filing OP No.7072/2002. That original petition was disposed of by Ext.P6 judgment directing disposal of Ext.P5 appeal and granting stay of OP No.14200/02 :2 : disconnection on payment of Rs.10,000/- by each of the consumers. It is stated by the petitioner that accordingly Rs.40,000/- was paid. The 2nd respondent passed Ext.P7 order rejecting the appeal and it was thereupon this original petition is filed and this Court granted a stay of further proceedings on the petitioner remitting a further sum of Rs.15,000/-, which is also stated to have been complied with. 4. Two contentions have been raised by the counsel for the petitioner. In so far as Exts.P1, P3 and P4 issued by the respondents in relation to Consumer Nos.3368, 13590 and 13593 are concerned, they were cases where unauthorised extension was found. Counsel contends that in the aforesaid bills, fixed charges of Rs.38 has been levied on a daily basis for the whole period at 3 times. It is stated that in terms of the provisions contained in Clause 42(d) of the Conditions of Supply of Electrical Energy, which was prevalent at the relevant time, the fixed charges that was leviable was only at the rate as prescribed for LT VII A tariff and nothing more. He relies on the judgment of this Court in J.D.T.Islam Orphanage Committee v. Assistant Engineer, K.S.E.B.(2007(3) KLT 388) to support this contention. OP No.14200/02 :3 : Elaborating on this, counsel referred me to para 3 of the judgment and contended that the term respective tariff used in Clause 42(d) of the Conditions of Supply Code is in the context of the tariff that is applicable. According to him, therefore, the tariff enabled levy of fixed charges of Rs.38 for a month and the respondents could have levied only 3 times of what is payable in the tariff. 5. On the other hand, the learned counsel for the Board contended that this was a case where unauthorized extension was found and for such extension, the applicable tariff is LT VIII and therefore, the petitioner is bound to be penalized under LT VIII. In my view, I do not think it necessary to labour much on this question for the reason that this issue is squarely covered by the judgment relied on by the counsel for the petitioner. 6. A reading of Para 3 relied on by the counsel shows that the liability is only to pay the fixed charges as provided in the tariff applicable in respect of LT VII A consumers and at 3 times of the normal tariffs. If so, the fixed charges has to be reworked levying Rs. 38 per month at 3 times as provided under Clause 42 (d) of the Conditions of Supply Code. Necessarily, therefore, the bill has to be revised in the light of Clause 42(d) as interpreted by OP No.14200/02 :4 : this Court in the judgment relied on by the counsel for the petitioner. 7. The other point that is raised is for the benefit of the amendment to Clause 42(d). In so far as Ext.P2 bill concerning consumer No.13353 where additional load was found is concerned, the amendment was effected w.e.f. 18/7/2002 and therefore cannot apply to the case of the petitioner. However, in the judgment of this Court in WA No.1231/2003, a Division Bench has directed that the Board will examine individual cases and consider whether levy of penalty at three times is justified or not. In essence, what is directed is to consider whether the benefit of the amendment could be extended to cases such as that of the Consumer No.13353. Therefore, Ext.P2 bill also has to be reconsidered in the light of the principles laid down by this Court in the judgment in WA 1231/2003. 8. Necessarily therefore Exts.P1 to P4 has to be reworked in the manner as directed above. This the 2nd respondent shall do, as expeditiously as possible, at any rate within 4 weeks of production of a copy of this judgment. 9. Petitioner may produce a copy of this judgment before OP No.14200/02 :5 : the 2nd respondent, who shall reconsider the matter as directed above. Needless to say that on such reconsideration, if any payment already made is found to be in excess, the same will be adjusted in the future bills of the respective consumers. Original petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp