IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).No. 18054 of 2008(Y) --------------------------------------- PETITIONER: ------------------- BONEY JOSEPH, PROPRIETOR, JOBY ENTERPRISES (ICE PLANT), MANASSERRY, KANNAMALY P.O., ERNAKULAM. BY ADVS. SRI.J.JULIAN XAVIER, SRI.ROY JOSEPH. RESPONDENTS: ------------------------ 1. THE KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURM, REPRESENTED BY ITS SECRETARY. 2. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD, ERNAKULAM. 3. THE ASSISTANT ENGINEER, K.S.E.B, ELECTRICAL SECTION, KANNAMALY, ERNAKULAM. 4. THE SUB ENGINEER, K.S.E.B., ELECTRICAL SECTION, KANNAMALY, ERNAKULAM. R1 TO R4 BY SRI.P.P.THAJUDEEN, S.C, K.S.E.B. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.18054/2008-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MAHAZAR. EXT.P.2: COPY OF THE BILL DTD. 13/09/2005. EXT.P.3: COPY OF THE PROCEEDINGS DTD. 20/10/2005 ISSUED BY THE R.3. EXT.P.3.A: COPY OF THE CONSEQUENTIAL DEMAND ISSUED BY THE R.3. EXT.P.4: COPY OF THE JUDGMENT DTD. 07/04/2006 IN W.P.(C).NO.11202/2006. EXT.P.5: COPY OF THE ORDER DTD. 19/07/2006 IN REVIEW PETITION NO.540/2006 IN W.P.(C).NO.11202/2006. EXT.P.6: COPY OF THE APPEAL DTD. 03/11/2007. EXT.P.7: COPY OF THE JUDGMENT DTD. 04/12/2007. EXT.P.8: COPY OF THE ORDER DTD. 02/04/2008 ISSUED BY THE R.2. EXT.P.9: COPY OF THE BILL DTD. 22/05/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.18054 Of 2008 ----------------------------------------------------- DATED THIS THE 7th DAY OF OCTOBER, 2010 J U D G M E N T The proceedings of the Deputy Chief Engineer, produced as Exhibit P8, is under challenge herein. The petitioner is a consumer of electricity under LT-IV Industrial Tariff with Consumer Code No.120 and with a connected load of 52KW. It is averred in the Writ Petition that because of ill-health, the petitioner gave the management of the factory on lease to one Shri T.K.Nazar. Ultimately, he was directed to vacate the Unit because of certain disputes between the petitioner and the said Nazar. There was an inspection of the premises on 12.9.2005 by the APTS Squad. It was found that the seals affixed on the power meter were found tampered and upon testing the meter with a given load of 16A, it recorded only 0.42A on all the three phases instead of 0.8A. Exhibit P2 is the copy of the mahazar. 2. The petitioner was assessed as per Exhibit P2 to pay an amount of Rs.5,51,393/-. This was challenged before this Court in a Writ Petition and by Exhibit P4 judgment, this Court directed the petitioner to file an appeal before the Deputy Chief W.P.(C)No.18054/08 -2- Engineer. It was also directed that the respondents will re- connect the electricity supply to the petitioner's premises, subject to the final orders which will have to be passed by the Deputy Chief Engineer upon the petitioner remitting an amount of Rs.75,000/-. But, subsequently, it was reviewed as per Exhibit P5 judgment by this Court, since it was submitted by the Board that the power supply had already been dismantled as early as on 30.3.2006. The Writ Petition was thereafter heard and finally disposed of by Exhibit P7 judgment directing to consider Exhibit P6 appeal produced herein. He was also directed to pay an amount of Rs.2.50 lakhs. It is submitted that because of financial difficulties, the petitioner could not remit the amount. 3. In Exhibit P8, various contentions of the petitioner have been considered. 4. The demand raised after the assessment has been finalised as per Exhibit P8 is produced as Exhibit P9. An amount of Rs.1,43,345/- has been assessed towards current charges, Rs.8,085/- towards duty, Rs.14,808/- towards cost of meter and Rs.72,687/- as interest on the principal amount. Thus a total amount of Rs.2,38,925/- has been demanded, out of which W.P.(C)No.18054/08 -3- Rs.1.40 lakhs has already paid. 5. The learned counsel for the petitioner submitted that the Ice Plant has not been working continuously for 30 days, because there were weekly holidays and on those days, there was no consumption and hence assessment has to come down on this account. This point was considered by the Deputy Chief Engineer, but it was rejected stating that being an Ice Plant, it has to work continuously for producing ice and for retaining temperature of the product. It is pointed out that there was no freezer for the Unit and the product also was being sold off without keeping anything in the premises. Apart from the same, it was also pointed out that the assessment of the duty and the cost of meter are also not correct. It is pointed out that duty is not payable for the charges assessed as penalty. Regarding the cost of meter as Rs.14,808/-, it is pointed out that the meter was purchased by the petitioner and no meter was installed by the Board, as the connection has been dismantled and hence no amount towards cost of meter can be demanded from him. 6. Heard the learned Standing Counsel for the Board, who submitted that there is no illegality in the assessment. W.P.(C)No.18054/08 -4- 7. The learned counsel for the petitioner submitted that in the light of Section 127(6) of the Electricity Act, 2003, the maximum interest that can be calculated is 16% and that it is not clear under which provision 24% interest has been calculated. 8. The question whether the petitioner was having a freezer for keeping produced ice has thus to be examined further. Relevant facts for considering the same have not been made available by the petitioner also before the Deputy Chief Engineer. If the Unit was not having such a freezer, probably, there will be some merit in the contention raised by the petitioner. Therefore, the said aspect, i.e., whether it was functioning for all the 30 days of a month will have to be again considered by the Deputy Chief Engineer. The question whether duty is payable and whether the cost of the meter that is charged as per Exhibit P9 is permissible will also be examined. In all other respects, Exhibit P8 order will stand confirmed. There will be a direction to the 2nd respondent to reconsider the matter in the light of the above and pass appropriate orders after hearing the petitioner, within a period of two months from the date of receipt of a copy of this judgment. It is open to the petitioner to produce additional W.P.(C)No.18054/08 -5- materials. It is further pointed out that the petitioner has already moved an application for availing the benefit of Amnesty Scheme. It is submitted that so far the same has not been disposed of, in the light of the pendency of this Writ Petition. After the passing of the orders as above, if the application is still pending, the same will also be considered. The Writ Petition is accordingly disposed of. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn