IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WA.No. 363 of 2009() -------------------- {IN OP.2964/2003 OF THIS COURT} .................... APPELLANT(S)/RESPONDENTS: -------------------------------------------------- 1. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER ELECTRICAL DIVISION, CHITTUR, PALAKKAD. 3. ASST.EXECUTIVE ENGINEER, ELCTRICAL MAJOR SECTION, KOZHINJAMPARA, PALAKKAD. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT(S)/PETITIONER: ------------------------------------------------- V.K.MOOSA, S/O.MOIDEEN HAJI MANAGING PARTNER, VEENUS INDUSTRIES NADUPPUNI, R.V. PUDUR, PALAKKAD. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY, Ag.C.J. & V.GIRI, J. ------------------------- W.A.No.363 of 2009 ------------------------- Dated this the 17th day of February, 2009. JUDGMENT GIRI, J. The Board challenges the judgment of the learned single Judge, by which the levy of penalty charges, effected by the Board consequent upon unauthorised connected load in the unit run by the petitioner, was quashed to the extent to which penal charges was levied on electricity charges as well. 2. The learned single Judge proceeded to observe that it is settled law that in view of the Bench decision in W.A.No.1231/03 that penalty has to be limited to the fixed charges portion and that there shall not be penalty by way of proportionate energy charges. 3. It is contended that in the instant case, inspection of the premises of the consumer was effected on 6.7.2002; that the Division Bench has upheld the right of the Board to levy penalty charges on the electricity charges component also in respect of cases, which have been detected prior to 18.9.2002, the date on which the amended Board order came into force. It is, therefore, W.A.No.363 of 2009 :: 2 :: contended that the law laid down by the Division Bench has not been correctly applied by the learned single Judge. 4. Learned counsel for the Board is correct in submitting that the Bench of this court in W.A.1231/03 has held that the Board order dated 18.9.2002, which directs the levy of penal charges to be restricted to the fixed charges alone, does not have retrospective operation. But, we are of the view that, notwithstanding the same, the levy of penal charges on electricity charges also may not be justified in the present case. We proceed to take this view, in the facts and circumstances of this case. 5. We take note of the fact that, according to the consumer, a 7.5 HP motor was purchased only on 10.6.2002. 6. The counter affidavit of the Electricity Board does not refer to any attempt at tampering the meter. In fact, the consumption patterns reveals reduction of consumption from June, 2002. The case of the consumer, that a new meter was installed, instead of the old meter and this resulted in reduction of the consumption, cannot be brushed aside. Further, the consumer also has a case that the factory was facing problems and this is one of the reasons why the consumption has come down. W.A.No.363 of 2009 :: 3 :: 7. There is yet another crucial factor, which dissuades us from interfering with the judgment of the learned single Judge. According to the writ petitioner, the premises in question were not inspected by the officials of the Electricity Board prior to the issuance of the impugned bill. 8. Though in the counter affidavit it is stated that the premises were inspected by the Sub Engineer, along with the line man and reference is made to Ext.R1(a) site mahazar, we do not find an averment in the counter affidavit that a copy of the site mahazar was supplied to the consumer or forwarded to him. It is significant because, according to the consumer, no inspection, as alleged by the Electricity Board, took place on 6.7.2002 and no team inspected the premises, as such, prior to the impugned bill. In the mahazar, it is stated that the persons, who have found at site refused to witness the drawing up of the mahazar. If that be so, a copy of the mahazar could either have been affixed or later could have been forwarded to the consumer, along with the impugned bill. There is no case that the same has been done. We also take note of the fact that Ext.R1(a) mahazar is seen to have been drawn up by the Sub Engineer in charge of the vehicle section, Velanthavalam. W.A.No.363 of 2009 :: 4 :: 9. In the facts and circumstances of the case, especially in the absence of a significant variation in the consumption pattern, we are of the view that it would not be appropriate to sustain the levy of penalty charges on electricity charges as well. 10. In these circumstances, we are inclined to uphold the directions issued by the learned single Judge, though not for the same reasons as those which found favour with the learned single Judge. Writ appeal is disposed of with the above directions. Sd/- (J.B. KOSHY) ACTING CHIEF JUSTICE Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge