IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 OP.No. 22576 of 2002(K) ----------------------- PETITIONER(S): --------------- M/S.S.D.N.FERRITES PVT.LTD, H & C COMPOUND, KOLLAM - 1, REPRESENTED BY ITS MANAGING DIRECTOR, K.K.DIVAKARAN. BY ADV. SRI.M.A.FAYAZ SRI.JOHN NUMPELI (JUNIOR) RESPONDENT(S): --------------- 1. THE ASSISTANT EXECUTIVE ENGINEER, STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION, CANTONMENT, KOLLAM. 2. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, CANTONMENT, KOLLAM. 3. THE KERALA STATE ELECTRICITY BOARD, VAIDHUTHI BHAVAN, TRIVANDRUM, REPRESENTED BY ITS SECRETARY. ADV. SRI.C.C.THOMAS, SC, K.S.E.B SRI.P.SANTHALINGAM, SC, KSEB FOR R1TO3 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1TO3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/02/2010, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 22576/2002. ---------------------------------------------------------------- EXT.P1 TRUE COPY OF CONSUMER'S INSTALLATION COMPLETION REPORT DT. 4-2-2001. EXT.P2 NOTICE DT. 31-5-2001. EXT.P3 DEMAND CUM CONNECTION NOTICE DT. 1-6-2001. EXT.P4 LETTER DT. 5-6-2001. EXT.P5 APPEAL DT. 10-6-2001. EXT.P6 ORDER DT. 20-7-2001. EXT.P7 JUDGMENT IN W.A.NO. 408/2002. EXT.P8 ORDER DT. 7-6-2002. EXT.P9 DEMAND CUM DISCONNECTION NOTICE DT. 31-7-2002. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 22576 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 3rd day of February, 2010. J U D G M E N T The petitioner in this original petition is a L.T consumer of electricity from the Kerala State Electricity Board. On 1-2-2001, an inspection was conducted at the premises of the petitioner in which a capacitor installed by the petitioner was found to be defective. He was directed to cure the defect. The petitioner claims to have cured the defect and submitted Ext. P1 completion report, which was accepted by the Board. Thereafter, the petitioner was served with Ext. P2 notice issued by the 1st respondent stating that upon inspection, it was seen that the capacitor installed in the petitioner's premises is not working. He was therefore directed to replace the capacitor within 7 days from the date of receipt of the notice, failing which penal charges at 20% was threatened to be charged. That notice is dated 31-5-2001. That was served on the petitioner on 1-6- 2001. Thereafter, the petitioner was served with Ext. P3 bill dated 1- 6-2001 directing the petitioner to pay an amount of Rs. 32,284/- as 20% of the penal charges for the months of March and April, 2001, during which period the capacitor was stated to be not working. The petitioner filed Ext. P4 reply, in which he stated that a defect was noticed in the main switch connecting to the capacitor, which was replaced even before receipt of Ext. P2 notice. The petitioner thereafter filed Ext. P5 appeal before the 2nd respondent challenging the penal bill, which was rejected by Ext. P6 order. The petitioner challenged that order in O.P.No. 29563/2001, which was dismissed by a learned Single Judge. The petitioner filed W.A.No. 408/2002, in which Ext. P7 judgment was passed by a Division Bench of this Court directing the appellate authority to re-consider the appeal filed by the petitioner and to pass a speaking order disclosing application of mind. Thereafter, Ext. P8 order was passed again dismissing the appeal filed O.P. No. 22576/02 -: 2 :- by the petitioner. Pursuant thereto, Ext. P9 demand was made for Rs. 32,284/- again. The petitioner is challenging Exts.P3, P8 and P9 in this original petition. 2. According to the petitioner, the capacitor was never defective after the earlier defect was cured and Ext. P1 completion report was filed. He disputes the inspection alleged to have been made on 21-4- 2001. He points out that by Ext. P2 dated 31-5-2001, after giving him 7 days' time to replace the capacitor, failing which only penal charges at 20% was threatened to be charged, on the very next day, on 1-6- 2001 Ext. P3 penal bill was issued. According to the petitioner, even after 21-4-2001 also, he never replaced the capacitor and there was never any proceedings against the petitioner in respect thereof. Therefore, according to the petitioner, the demand for 20% penal charges for the alleged defect in the capacitor is totally unreasonable and unsustainable. 3. A counter affidavit has been filed by the respondents taking the contention that on 1-2-2001, a defect in the capacitor was noted in an inspection and the petitioner was directed to cure the defect. They would contend that the petitioner never cured the defect and in the inspection conducted on 24-1-2001, the defect was found to be subsisting and that is why the penal bill was issued. Therefore, they would argue for sustaining the impugned demand and the appellate order. 4. I have considered the rival contentions in detail. 5. I find several loopholes in the case of the respondents. Admittedly, no site mahazar was prepared for the alleged inspection on 21-4-2001. In fact, the respondents have not offered any evidence whatsoever regarding an inspection on 21-4-2001. In Ext. P2 notice issued to the petitioner, no date of inspection was mentioned. In Ext. P8 order of the appellate authority itself, it is specifically stated that O.P. No. 22576/02 -: 3 :- the Board was satisfied with Ext. P1 completion report of the authorised wiring contractor and hence capacitors were regularised for use and that no site mahazar was prepared for the inspection stated to have been held on 21-4-2001. In the teeth of that finding, it ill-fits the respondents to take a contention in their counter affidavit that the defect noted in the inspection dated 1-2-2001 was never cured and found to have been subsisting in the alleged inspection conducted on 21-4-2001. It is curious to note that in Ext. P2, the petitioner was directed to cure the alleged defect within 7 days, failing which only penal charges at the rate of 20% was threatened with. Ext. P2 is dated 31-5-2001. Thereafter, even without waiting for curing of the alleged defect or 7 days, Ext. P3 bill was issued on 1- 6-2001 demanding 20% peal charges for March and April, 2001. It defies logic as to how, if from January onwards the capacitors were found to be not working, the respondents restricted the penal charges for March and April. Lastly, the respondents have no case that the alleged defect noted on 21-4-2001 was cured by the petitioner at any time thereafter. They have no case that they have taken any proceedings against the petitioner for not curing that defect alleged to have been detected on 21-4-2001. The petitioner contends that after January, 2001, he never replaced the capacitor and no proceedings were initiated against him in respect of any defect in capacitor or non-compliance with any direction to cure any defect in the capacitor except the proceedings impugned in this original petition. This is not disputed before me nor is any contention taken by the respondents in respect of any further proceedings for defect in the capacitor. 6. Of course, the learned counsel for the Board would point out that in Ext. P8, there is a finding that the petitioner had admitted that inspection was conducted in his premises on 21-4-2001. But, in the O.P. No. 22576/02 -: 4 :- preceding paragraphs of Ext. P8, wherein the contentions of the petitioner have been summarised, there is no such admission by the petitioner even mentioned. On the other hand, the contentions of the petitioner had been specifically noted in Ext. P8 order itself, wherein his specific dispute that no inspection was conducted on 21-4-2001 is mentioned. The respondents could not satisfy me that the petitioner had at any time admitted that there was an inspection on 21-4-2001. On the other hand, all through out, his contention was that there was no inspection on 21-4-2001 as alleged. The respondents have not been able to satisfy me with any evidence whatsoever that there was an inspection on 21-4-2001. In the above circumstances, I do not think that on such materials, the petitioner could have been mulcted with the liability to pay penal charges as demanded by the respondents. Accordingly, Exs. P3, P8 and P9 are quashed. The amount paid by the petitioner pursuant to the interim order shall be adjusted against his future bills. If no further electricity bills are due from the petitioner, the amount shall be refunded to him within one month from the date of receipt of a copy of this judgment. The original petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/