IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 OP.No. 17640 of 1998(Y) ---------------------------------- PETITIONER: ------------------- MRS. RABIYA SYED MOHAMMED, MUNDAYATH THEKKE VEEDU, WEST VENGOLA P.O., PERUMBAVOOR 683 556. BY ADV. SRI.M.SASINDRAN RESPONDENTS: ----------------------- 1. THE KERALA STATE ELECTRICITY BOARD, PATTOM, THIRUVANANTHAPURAM - 4, REP.BY ITS SECRETARTY. 2. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, PERUMBAVOOR. 3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION,(K.S.E.B), P.O. VAZHAKKULAM, ERNAKULAM DISTRICT. BY ADV. SRI.S.RAMESH BABU, SC. KSEB SRI.P.SANTHALINGAM, SC, KSEB SRI.C.K.KARUNAKARAN, SC FOR KSEB THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.17640/1998 ORDER ON IA. NO.31088/1998 IN OP. NO.17640/1998 DISMISSED 29.02.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1;- COPY OF THE INVOICE NO.005314 FOR RS.1,62,162/-. EXT.P2:- COPY OF THE INVOICE NO.008011 FOR RS. 1,18,271/-. EXT.P3:- COPY OF THE APPEAL PETITION DT. 25.6.98 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4:- COPY OF THE PROCEEDINGS NO.GB/3/58/97-98/2290 DT. 2.9.98 OF THE 2ND RESPONDENT ON EXT.P3 APPEAL. EXT.P5:- COPY OF THE INVOICE NO.037397 DT. 7.9.98 FOR RS. 68,538/- BASED ON EXT.P4 PROCEEDINGS. EXT.P6:- COPY OF THE MAHAZAR DT. 13.8.97 PREPARED BY THE SUB ENGINEER UNDER THE 3RD RESPONDENT. EXT.P7:- COPY OF THE PROCEEDINGS DT. 5.5.98 OF THE 3RD RESPONDENT. EXT.P8:- COPY OF THE G.O.MS NO.4/92/PD DT. 6.2.92. EXT.P9;- COPY OF THE G.O.(MS) NO.71/90/ID DT. 21.5.90. EXT.P10:- COPY OF THE PROCEEDINGS NO.GBI/22/95-96/1260/ 1`6.2.98 DT. 5.1.98 OF THE EXECUTIVE ENGINEER, ELEICTRICAL DIVISION, ERNAKULAM. /TRUE COPY/ P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR, J. ========================= OP.No.17640 of 1998-Y. ========================= Dated this the 29th day of February, 2008. J U D G M E N T The challenge in this original petition is against the proceedings namely, Exts.P4 & P5 by which the petitioner has been asked to pay an amount of Rs.1,07,962/- representing the amount which was payable by him alleging misuse of energy. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel for the Electricity Board. 3. The petitioner is running a small scale industrial unit for metal crushing work. The unit is a Low Tension (L.T.) Industrial Consumer having Consumer No.8888 under the first respondent. Alleging theft of energy by Ext.P1 a demand was raised by the 3rd respondent to the tune of Rs.1,62,162/- which was based on the inspection by the APTS. The petitioner approached OP.No.17640 of 1998-Y. -: 2 :- this Court by filing OP.No.14843/1997 and based on the judgment therein the amount was reduced to Rs.1,18,271/-. That was again challenged in OP.No.12465/1998 wherein this Court directed the 2nd respondent to consider the appeal filed by the petitioner. As a condition, one-third amount was deposited as ordered by this Court. Ext.P4 is the order passed in appeal by which certain modifications have been made. Ext.P5 is the invoice for the balance amount fixed after the appeal has been disposed of. 4. The petitioner has raised various grounds. It is submitted that actually there is no theft as alleged and if at all any default is there that is in respect of the meter concerned. It is submitted that the officers of the Board have been conducting periodical inspection of the meter and they did not, at any point of time notice any defect also. 5. Lastly it is contended that penalty has been calculated at a higher rate. The rate applicable to the petitioner is 50 paise per unit which is evident from Ext.P8. But in Ext.P4 the rate OP.No.17640 of 1998-Y. -: 3 :- adopted is Rs.1.35 per unit. It is pointed out that the petitioner has all along been paying energy charges at the rate of 50 paise per unit. This concession is available for five years upto February, 1998. As the inspection conducted by the APTS was on 13.8.1997 and as the amount has been calculated in respect of the period prior to that, it is contended that the calculation at the rate of Rs.1.35 is unwarranted. It is also contended that the computation of total units is also not correct. 6. The Board has filed a statement disputing the grounds raised in the original petition. Going by the facts which emerge from the pleadings, on 13.8.1997 the APTS, Kozhikode had conducted a surprise inspection in the premises of the petitioner. They detected that the top and left side MRT seals of the power meter were seen broken. It was also found that on connecting the entire load the meter was seen running slowly. The contention of the petitioner that there is no tampering of seals is disputed in the statement. OP.No.17640 of 1998-Y. -: 4 :- 7. Going by the mahazar Ext.P6 it can be seen that the MRT seals on the top and on the left side were seen broken. Therefore it is not a case where the meter is found not recording the correct consumption as contended by the petitioner. It is not a case where the matter should have been referred to the officer concerned to find out whether there is any defect in the meter. The said contention raised in the writ petition cannot therefore be sustained. 8. In Ext.P4 the entire issue has been considered elaborately. Certain modifications have been ordered as regards the assessment to be made. The appellate authority also relied upon the mahazar to enter a finding that the top and the left side of MRT seals of the power meter were broken and the light meter was burnt off. Power meter was not operating on light loads, but only on higher loads, also very slowly. It was found that, since the power meter was found sluggish on testing due to tampering and illegitimate abstraction of energy, actual consumption had to be OP.No.17640 of 1998-Y. -: 5 :- computed based on the connected load and the working time. As regards the contention raised by the petitioner regarding the total units assessed, the appellate authority took a very lenient outlook and revised the same. Even though the learned counsel for the petitioner attacked the above findings, the petitioner could not point out vitiating circumstances to interfere with Ext.P4. As found in Ext.P4 it is a case where there were tampering with the seals of the meter. It is also worthwhile to notice that immediately after the receipt of Ext.P6 mahazar, no objection is seen filed by the petitioner to the contents thereof and no application is seen filed to test the meter by an appropriate authority in support of the contentions raised by the petitioner. Therefore, I find that there is no illegality or irregularity in the order and Ext.P4 has to be sustained. 9. But in Ext.P4 an important contention raised by the petitioner has not been considered. The inspection herein by the Sub Engineer under the 3rd respondent was on 13.8.1997. The OP.No.17640 of 1998-Y. -: 6 :- petitioner was paying charges at the rate of 50 paise per unit at that time. This concession was available for five years upto February, 1998. Therefore at the relevant time he was paying charges at the concessional rate. But in Ext.P4 the charges have been calculated at Rs.1.35 per unit. Even though this point has been raised in ground D in the original petition, in the statement filed by the respondents practically no answer has been attempted. The only answer is, 'the application of pre '92 tariff does not arise in this case', without explaining the relevant aspects. Therefore the above aspect requires reconsideration at the hands of the competent authority. 10. The 2nd respondent is directed to reconsider the matter as regards the said contention raised by the petitioner namely, that he is not liable to pay at the rate of Rs.1.35 per unit as the concessional tariff was applicable at the relevant period. The petitioner shall be afforded a personal hearing in this matter. The revised orders shall be passed within a period of three months from OP.No.17640 of 1998-Y. -: 7 :- the date of production of a copy of this judgment. Ext.P4 stands confirmed in other respects. The petitioner seeks payment of balance amount by instalments. The amounts remitted during the pendency of the original petition will be credited and the petitioner shall be allowed to pay the balance amount in three equal monthly instalments depending upon the outcome of the revised order. The Original Petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/-