IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 OP.No. 6948 of 2002(B) --------------------------------- PETITIONER(S): ----------------------- V. PRABHAKARAN, MANAGER AND PARTNER, REGAL TILES, ITHIKKARA, KOTTIYAM, KOLLAM DISTRICT. BY ADV. DR.K.P.SATHEESAN, MR.K.K.GOPINATHAN NAIR. RESPONDENT(S): -------------------------- 1. KERALA STATE ELECTRICITY BOARD, REP. BY ITS CHAIRMAN, VYDHUTHI BHAVAN, PATTOM,THIRUVANANTHAPURAM. 2. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE OFFICE, CANTONMENT, KOLLAM. 3. THE SPECIAL OFFICER (REVENUE), K.S.E.B., VYDHUTHI BHAVAN, PATTOM, THIRUVANATHAPURAM. 4. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.B., KOTTIYAM, KOLLAM DISTRICT. R1 TO R4 BY ADV. MR.C.K.KARUNAKARAN, SC FOR KSEB. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 6948/2002-B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 13/11/1998. EXT.P2: COPY OF THE REPRESENTATION BY THE PETITIONER DATED 27/11/1998. EXT.P3: COPY OF THE LETTER GIVEN BY THE 2ND RESPONDENT DATED 04/01/2000. EXT.P4: COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 08/06/2000. EXT.P5: COPY OF THE COVERING LETTER ADDRESSED TO THE 2ND RESPONDENT DATED 20/06/2000. EXT.P6: COPY OF THE BILL ISSUED TO THE PETITIONER FOR THE MONTH OF JANUARY, 2002. EXT.P7: COPY OF THE BILL ISSUED BY THE 4TH RESPONDENT DATED 28/02/2002. EXT.P8: COPY OF THE REPRESENTATION BY THE PETITIONER DATED 07/03/2002. EXT.P9: COPY OF THE ELECTRICITY BILL DATED 15/03/1988. EXT.P10: COPY OF THE ELECTRICITY BILL DATED 15/05/1988. EXT.P11: COPY OF THE ELECTRICITY BILL DATED 29/04/1991. EXT.P12: COPY OF THE ELECTRICITY BILL DATED 30/07/1991. EXT.P13: COPY OF THE REPORT GIVEN BY THE 2ND RESONDENT TO THE PETITIONER ON 16/02/2000. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE B.O. NO.2004/99 (PLG.COM.3776/99), TRIVANDRUM DATED 08/09/1999. EXT.R1(b): COPY OF THE B.O.NO.1701/99(PLG.COM.3776/99), DATED TRIVANDRUM DATED 31/07/1999. EXT.R1(c): COPY OF THE B.O.NO.TCI/9314/88, DATED 04/12/1989. (PTO) O.P. NO. 6948/2002-B EXT.R1(d): COPY OF THE B.O.NO.2173/97(PLG.COM.3025/96, TRIVANDRUM DATED 30/09/1997. EXT.R1(e): COPY OF THE B.O.NO.179/2000(PLG.COM.3776/99), TRIVANDRUM DATED 20/01/2000. EXT.R1(f): COPY OF THE G.O.NO.TC1/N/4087/2001, DATED 28/09/2001. EXT.R1(g): COPY OF THE AUDIT REPORT FOR THE YEAR 1999-2000. //TRUE COPY// P.A. TO JUDGE rs. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 6948 of 2002 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of March, 2010 J U D G M E N T The petitioner is a consumer of electricity from the Kerala State Electricity Board. On 13.11.1998, he was issued with Ext.P1 notice stating that an inspection conducted in the premises of the petitioner on 29.10.1998, revealed that the petitioner is using connected load of 140 KVA and therefore he is liable to be treated as a deemed HT consumer, for which the petitioner would be billed under HT tariff. Petitioner filed Ext.P2 objections dated 27.11.1998, taking the contention that the connected load of the petitioner is only 98 KVA and therefore the petitioner is not a deemed HT consumer. Subsequently the Board issued Ext.P3 letter dated 4.01.2000 as a continuance of Ext.P1 letter, stating that as per the Board Order, the petitioner need not convert his service into HT since the connected load of the petitioner is only 140 KVA, which is O.P. No. 6948 of 2002 -2- less than 150 KVA. The petitioner was accordingly directed to comply with certain conditions for continuing as LT consumer as directed in Ext.P3. Petitioner claims that the petitioner complied with those conditions. Again by Ext.P4 dated 08.06.2000 the petitioner was informed that he is yet to comply with certain conditions and he was directed to submit required documents specified in the letter dated 04.01.2000 urgently, for executing LT service connection agreement. According to the petitioner by Ext.P5 dated 20.06.2000 petitioner reported compliance with the conditions. Thereupon the petitioner was continuing to pay electricity charges under LT tariff regularly as evidenced by Ext.P6 bill for the month on 10.01.2002 and the Board was accepting the same without any objection. While so, all of a sudden, Ext.P7 arrear bill was issued to the petitioner for an amount of Rs.4,74,536/- alleged to be arrears under HT tariff. The petitioner is challenging the same seeking the following reliefs: O.P. No. 6948 of 2002 -3- (i) to issue a writ of certiorari or such other appropriate writ, order or direction quashing Ext.P7 bill dated 28-2-2002 issued by the 4th respondent as it is illegal and void; (ii) to declare that the petitioner is liable to pay the current charges as per L.T. Tariff; (iii) to issue a writ of mandamus or order or direction to the 4th respondent not to disconnect the Electric Supply of Consumer No.748 for non payment of any amount as claimed in Ext.P-7; 2. According to the petitioner, since the petitioner's connected load was below 150 KVA, he was entitled to choose to continue as LT consumer, which he has done and he has also complied with the conditions stipulated by the Board for the same, which have been accepted by the Board also. Therefore petitioner is not liable to pay the arrears now demanded as per Ext.P7 is his contention. 3. Counter affidavit has been filed by the Board disputing the contentions of the petitioner. According to them petitioner is liable to pay electricity charges under HT tariff up to December 1999, which only has been demanded by Ext.P7. The reasons stated is that the petitioner's right to remain as LT consumer begins only from 01.07.1999 O.P. No. 6948 of 2002 -4- onwards and the petitioner is liable to pay HT tariff from 02/1998 to 12/1999. Therefore according to the respondents the petitioner is liable to pay HT tariff for the period from 02/1998 to 12/1999. 4. I have considered the contentions of the parties. 5. The contention of the respondents has various loopholes. First of all, they themselves have issued Ext.P1 based on an inspection report dated 29.10.1998. Therefore they could have demanded HT tariff only from that date because there is no evidence to show that the petitioner exceeded 100 KVA before 29.10.1998. If that be so, there is no logic in demanding high tension charges from February 1998. Secondly, even going by the counter affidavit the petitioner's eligibility to continue as LT consumer started from 01.07.1999. If that be so, there is no logic in demanding HT charges up to 12/1999. I am not going deep into those contentions, because I am inclined to quash Ext.P7 on another ground. In Ext.P7 there is an endorsement to the effect that the bill is being issued based O.P. No. 6948 of 2002 -5- on Accountant General's inspection report for the year 99- 2000. In view of the same, I directed the counsel for the Electricity Board to produce the audit objection, based on which Ext.P7 had been issued. With great difficulty they have ultimately produced the audit objection wherein in respect of the petitioner it is stated thus: 1. LOSS DUE TO INCORRECT CLASSIFICAITON AND CONSEQUENT UNDER ASSESSMENT -ELECTRICAL MAJOR SECTION, KOTTIYAM As per directions of the Board, all consumers whose connected load exceeded 100 KVA (85 KW) should have be treated as H.T. consumer rates and the billing should have been done at the office of the Special Officer (Revenue), Thiruvananthapuram. The connected load of Consumer No.748 (Regd Tiles) was 134 KW up to September 1998 and thereafter it was reduced to 118 KW. Even though the consumer was a deemed HT consumer to be billed at the office of the Special Officer (Revenue), the Electrical Major Section, Kottiyam continued to bill the consumer at LT IV Category till December 1999 and only from January 2000 onwards the billing was transferred to the office of the Special Officer (Revenue), Thiruvananthapuram. The Accounts Officer of the Billing Supervision Unit in February 1997 has pointed out the irregularity and suggested to transfer the consumer to the office of the Special Officer (Revenue) by treating it as a deemed HT consumer and to bill at higher rates. The serious lapse on the part of Major Section, Kottiyam in not having identified the consumer as a deemed HT consumer resulted in short assessment of current charges for the period from February 1998 to December 1999 worked out to Rs.4,74,535.68 as shown below: 6. The contention in the counter affidavit does not go hand in hand with the audit objection. The audit objection proceeds on the basis that when the petitioner exceeded 100 KVA he has become a deemed HT consumer. It does O.P. No. 6948 of 2002 -6- not take into account the subsequent Board orders issued based on which Ext.P3 letter was issued by the Board themselves allowing the petitioner to continue as LT consumer. Therefore apparently R1 (g) audit objection has been issued without considering the subsequent Board orders which permitted consumers having connected load up to 150 KVA to continue as LT consumer. Since Ext.P7 has been issued solely on the basis of that audit objection which is unsustainable, I am inclined to quash Ext.P7. I do so. If the respondents are at this point of time entitled to recover any arrears of electricity charges for any period during which he is liable to pay electricity charges under HT tariff, they may do so after affording an opportunity of being heard to the petitioner, subject to contentions of the petitioner regarding limitation. The writ petition is disposed of as above. S. SIRI JAGAN JUDGE shg/