IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 OP.No. 4247 of 2001(E) -------------------------------- PETITIONER(S): ----------------------- M.V.POULOSE, MANAGING PARTNER, TOMCOS POLY TEC, VARAPUZHA. BY ADV. SRI.P.M.KUNJIMOIDEENKUTTY SMT.ARLISS TRENCY ANTONY RESPONDENT(S): ------------------------- 1. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, TRIVANDRUM 4. 2. THE DEPUTY CHIEF ENGINEER, APTS, YDYUTHY BHAVAN, TRIVANDRUM 4. 3. THE EXECUTIVE ENGINEER, ELECTROCAL DIVISION, ALUVA. 4. THE ASST. EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, VARAPUZHA. ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO 4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.7047/2001 IN OP. 4247/2001 Dismissed 05.12.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE INVOICE NO.05973 DT. 28.2.2000. P2:- COPY OF THE MEMORANDUM APPEAL DT. 2.3.2000. P3:- COPY OF THE ORDER DT. 5.1.01. P4:- COPY OF THE BILL NO.SS/168 DT. 12.1.2000. P5:- COPY OF THE ORDER NO.VIG BV-5507/99 -2000/EKM /654 DT. 24.5.2000. P6:- COPY OF THE BOARD ORDER NO.3225/98 DT. 20.10.98. P7:- COPY OF THE RECEIPT NO.76/2517 DT. 4.9.2000. P8:- COPY OF THE INVOICE DT. 1.8.2000. P8(a):- COPY OF THE INVOICE DT. 10.11.2000. P8(b):- COPY OF THE INVOICE DT. 11.12.2000. P9:- COPY OF THE ORDER DT. 12.2.01. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.No. 4247 of 2001-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of December, 2008. JUDGMENT The original petition is filed challenging the additional bills issued consequent on the allegation of misuse of energy for the unauthorised connected load of 10 KW in the premises of the petitioner. Respective orders are produced as Exts.P3 and P9. 2. The premises were inspected by the Anti Power Theft Squad, on 24.2.2000 along with the officers of Electrical Major Section, Varappuzha. Ext.P1 is the bill issued to the petitioner whereby he had been asked to remit an amount of Rs.51,482/-. Therein, towards fixed charges three times penalty has been imposed and as far as the energy charges are concerned, two times have been charged. This was challenged by the petitioner before the Appellate Authority in appeal which was disposed of by Ext.P3. The petitioner had got a further contention relying upon Ext.P4 bill dated 12.1.2000. According to him, he had purchased a 20 HP motor and that was installed in the system, whereby the additional load was created. According to him, any imposition can be only from the date of Ext.P4, i.e. from 12.1.2000 and the calculation made by taking six months as the period OP 4247/2001 2 during which the additional load was to be assessed for additional amount of energy charges and fixed charges, is not correct. 3. Subsequent bills have also been issued, produced as Ext.P8 series, which were separately challenged by him resulting in Ext.P9 order, upholding the same. 4. Learned counsel for the petitioner raised two contentions. One is that going by Ext.P4, only from 12.1.2000 alone the additional bills could be collected. This aspect was dealt with in Ext.P3 in detail by the Appellate Authority. After considering the matter, it was found that in the absence of any information given to the concerned section, the reliance placed on the invoice to contend for the position that the said date is crucial, cannot be accepted. In the absence of any other supporting evidence of probative value, it was found that the plea does not deserve any merit. The provisions of clause 42(d) of the Conditions of Supply of Electrical Energy, provides that misuse of energy will be billed at three times the rate applicable to the respective tariff for the previous six months from the date of detection of misuse unless there are convincing reasons for adopting different periods and supply disconnected without notice. Therefore, in the absence of convincing reasons, the respondents are right in adopting the billing for misuse of energy for a period of six months prior to the date of detection. In OP 4247/2001 3 that view of the matter, I am of the opinion that the view taken by the Appellate Authority does not call for any interference. 5. The second issue raised is whether the penalty can be imposed both on the consumed energy for which energy charges have already been collected by the respondents and also for the fixed charges. Herein, going by Ext.P1, three times rate on fixed charges and two times energy charges have been imposed on the petitioner. The question is whether the Board will be justified in collecting the penalty for these two items simultaneously. Learned counsel for the petitioner has relied upon the decisions of this court in J.D.T. Islam Orphanage Committee v. Assistant Engineer, KSEB (2007 (3) KLT 388) and George Joseph v. KSEB and others (ILR 2008 (4) Ker. 377) to contend for the position that the method adopted by the respondents cannot be justified. In J.D.T. Islam Orphanage Committee's case (2007 (3) KLT 388) it was held that “in view of the procedure prescribed for extension under Regulation 24, in case any unauthorised extension is taken, and if the same is likely to cause any danger to life or loss of property, the said extension as well as the supply itself is liable to be disconnected. But there is no provision under the Conditions of Supply of Electrical Energy or the Tariff Notification that the unauthorised extension OP 4247/2001 4 shall be treated as temporary extension for the purpose of Tariff. I the absence of any provision enabling the Board to levy energy charges under L.T.VIII for the alleged unauthorised extension, billing at penal rates on the basis of the connected load on daily basis is impermissible. Liability is only for the penal rates at three times the fixed charges alone under LT VI tariff for six months, during the relevant period.” In the recent decision in George Joseph's case (ILR 2008 (4) Ker.377) the matter was elaborately considered. It was held that “it is settled law that a penal provision has to be construed strictly. In any event for unauthorised load a penalty is already provided for in Regulation 42(d) and therefore Regulation 43 cannot be construed as another penal provision for the same irregularity”. Finally, it was held in para 13 that “the impugned demand of 2 times rate of current charges for the proportionate consumption to the unauthorised load in addition to 3 times normal rate of fixed charges for unauthorised additional load is clearly without jurisdiction and liable to be set aside.” 6. Herein, 10 KW is the additional load that is detected. As far as the energy charges for the respective months are concerned, already they have collected charges by the normal method of billing. The fixed charges alone were affected since the additional load was not detected. There is no theft of energy or misuse of energy consumed by the petitioner. Clause 43 OP 4247/2001 5 of the Conditions of Supply of Electrical Energy has no application here. In that view of the matter, learned counsel is justified in relying upon the principles stated in the above decisions to contend that liability is only as far as the fixed charges are concerned and the penalty imposed for the energy charges consumed cannot be justified. 7. Opposing the said argument, learned Standing Counsel for the Board submitted that the provision for imposing a penalty has to be construed in strict sense. The question of exercising discretion in those circumstances does not arise and the liability is depending upon the violation of the provision itself and not on the basis of any mens rea and as such when the violation is found out, the consumer is liable to be charged for the misuse of energy and the matter cannot be differentiated by taking fixed charges and energy charges as two components. Reliance is placed on the decision of the Apex Court in Union of India and others v. Dharamendra Textile Processors and others {(2008) 18 VST 180} and a decision of a Division Bench of Allahabad High Court in Hari Shankar and others v. U.P. State Electricity Board and another (AIR 1974 Allahabad 70). In Union of India and others' case {(2008) 18 VST 180}, the Apex Court was considering the question whether in the absence of OP 4247/2001 6 mens rea whether the liability for penalty is automatically attracted. In para 27, after examining the question their Lordships held as follows: “The Explanations appended to Section 271(1)(c) of the Income-tax Act, 1961, indicate the element of strict liability on the assessee for concealment or for giving inaccurate particulars while filing the return. The object behind the enactment of section 271(1)(c) read with the Explanations indicates that the section has been enacted to provide for a remedy for loss of revenue The penalty under that provision is a civil liability. Wilful concealment is not an essential ingredient for attracting civil liability as is the case in the matter of prosecution under Section 276C.” In the decision of the Allahabad High Court in Hari Shankar's case (supra), the meaning of the term 'tariff' was considered and it was held that “the tariff includes within its ambit not only the fixation of rates but also the rules and regulations relating to it.” Herein, the issue to be considered is quite different. The question is whether penalty can be imposed on these two components, viz. fixed charges and energy charges. Herein, the allegation is that the contract load exceeded the sanctioned one. Going by the view taken by this court on the interpretation of the relevant clause 42 (d), the liability is only for 3 times normal rate for the fixed charges and not for the energy charges which have already been collected as per the billing system. In that view of the matter, the issue is covered against the OP 4247/2001 7 respondents by the two decisions referred to above. The various bills issued cannot, therefore, be sustained. 8. Therefore, Exts.P3 and P9 are quashed. The petitioner has already remitted various amounts during the currency of the proceedings. In that view of the matter, a revised bill will be issued after adjusting the amounts already paid and if any excess amount has been paid, the same will be refunded to the petitioner or the same will be adjusted against future bills. The original petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/ OP 4247/2001 8 T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No. 4247 of 200-E - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 9th December, 2008.