IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 WP(C).No. 10195 of 2006(L) -------------------------- PETITIONER(S): --------------- P.K.KUNHANKUTTY HAJI, PUTHENKOTT HOUSE, NADUVATTOM P.O., KUTTIPPURAM (VIA), TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.T.KRISHNAUNNI RESPONDENT(S): --------------- 1. THE DEPUTY CHIEF ENGINEER, APTS, KERALA STATE ELECTRICITY BOARD, KOZHIKODE. 2. THE EXECUTIVE ENGINEER, K.S.E.BOARD, ELECTRICAL DIVISION, TIRUR, MALAPPURAM DISTRICT. 3. THE ASSISTANT EXECUTIVE ENGINEER, K.S.E.BOARD, ELECTRICAL MAJOR SECTION, THIRUNAVAYA, MALAPPURAM DISTRICT. 4. THE SUB ENGINEER-IN-CHARGE, ELECTRICAL SECTION, THIRUNAVAYA, MALAPPURAM DISTRICT. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).10195/06 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- COPY OF NOTICE NO.DB/THEFT/TVA/05-06 DT.19.5.05 ISSUED BY R4 EXT.P2:- COPY OF APPEAL DT.21.5.05 SUBMITTED BEFORE R4 EXT.P3:- COPY OF JUDGMENT DT.27.7.05 IN WP(C).16685/05 EXT.P4:- COPY OF ORDER NO.APTS/DCE/KDE/AA/35/05/672 DT.24.10.05 BY R1 EXT.P5:- COPY OF ORDER NO.PB/ARREAR NOTICE/KLP2505/05-06/95 DT. 31.12.05 BY THE ASST.ENGINEER, ELECTRICAL SECTION, THIRUNAVAYA. EXT.P6:- COPY OF NOTICE NO.D4.12067/06 DT.29.5.06 ISSUED BY DY. TAHSILDAR (RR), TIRUR. RESPONDENT'S EXHIBITS:- EXT.R3(a):- COPY OF BOARD ORDER NO.(FB)676/03(DPCI/G1/203)DT.24.5.03 PASSED BY KSEB. EXT.R3(b):- COPY OF BOARD ORDER NO.(FB)2205/04(dpc1/G1/2003 DT.4.9.04 PASSED BY KSEB. okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No. 10195 OF 2006 ------------------------------ Dated this the 4th day of August, 2009 J U D G M E N T ---------------------- The petitioner is aggrieved by Ext.P4 order issued by 1st respondent and the consequential demand raised under Ext.P5 notice. The matter relates to theft of Electricity detected in the premises of the industry owned by the petitioner. There was an inspection conducted by Anti Power Theft Squad (APTS) on 19.5.2005. It is alleged that the Meter Box seals were found tampered with, and on detailed checking made after breaking open the lock provided by the petitioner himself to the Meter Box, it was found that the CT-Meter inside the Box was not working and the pressure wire was seen detached resulting in reduced recording of consumption. 2. Pursuant to the inspection Ext.P1 notice was issued by the 4th respondent. The petitioner was intimated that an amount of Rs.1,86,030/- is fixed provisionally as penalty and this amount less the amount already paid during the relevant period will be realised from him. The petitioner was called upon to submit objections if any against the proposal and also to make personal submissions if necessary. The petitioner submitted Ext.P2 W.P.(C).10195/06-L 2 objections. Since the matter was not disposed of by the respondents, the petitioner approached this Court in WP(C) No.16685/05. In Ext.P3 Judgment this Court directed the competent authority under Section 126 of the Electricity Act 2003 (hereinafter referred to as the Act) to hear the petitioner and to pass orders on Ext.P2 objections (Ext.P3 in that writ petition) as early as possible at any rate within a period of two weeks from the date of receipt of a copy of the judgment. 3. But pursuant to Ext.P3 judgment the 1st respondent issued Ext.P4 order on the matter, after hearing the petitioner and the authorities concerned, treating the objections filed by the petitioner as an appeal. Finding that the petitioner had committed theft of Electricity on a previous occasion also for which a criminal case was registered, the penalty imposed was confirmed. Ext.P5 is the notice of demand issued consequent to the order issued by 1st respondent. 4. It is stated that apart from the amount of penalty imposed, the petitioner is in huge arrears of Electricity charges due for different periods, including the penalty imposed on the earlier occasion. It is submitted that the liability at present is more than Rs.8,00,000/-, and the connection is standing dismantled. W.P.(C).10195/06-L 3 5. Before considering the merits of the impugned order, it is noticed that Ext.P4 order is not issued on the basis of any appeal filed by the petitioner under the provisions of Section 127 of the Act. In fact the assessing authority has not finalised imposition of penalty as provided under Section 126 pursuant to Ext.P3 judgment. From the counter affidavit filed by the 1st respondent dt:25.7.2006 it is clearly evident that pursuant to Ext.P3 judgment the 1st respondent took up the matter on a mistaken impression that the direction issued in Ext.P3 judgment is to the 1st respondent to dispose of the matter. 6. On going through the provisions contained in Section 126 of the Act it is evident that, on being convinced of the fact that the consumer is indulging in unauthorised use of Electricity, then the Assessing Officer has to make a provisional assessment and to serve the same upon the consumer. On getting the provisional assessment the consumer is entitled to file objections under Section 126(3), before the Assessing Officer himself. The Assessing Officer is thereupon obliged to afford a reasonable opportunity of hearing to the consumer before passing final orders of assessment. After hearing the objections the Assessing Officer has to finalise the assessment and to make a demand for payment of the amount. The “Assessing Officer” authorised W.P.(C).10195/06-L 4 under Section 126, as per the relevant notification issued by the Government, is the Assistant Engineer of the Electrical Section concerned. In this case it is noticed that Ext.P1 notice itself was issued by the Sub Engineer. However the specific direction in Ext.P3 Judgment is to the competent authority to hear the petitioner and to pass orders on the objections submitted. As per the provisions under Section 126 and as per the directions issued by this Court in Ext.P3 Judgment the Assessing Officer ought to have considered the objections and to have finalised the assessment. Against such assessment if finalised, the consumer has got a remedy of appeal as provided under Section 127 of the Act. In the case at hand it is evident that no final assessment was issued on the order by the competent authority (Assessing Officer) nor the petitioner had filed any appeal against such order. Ext.P4 order is issued by 1st respondent without there being any appeal filed by the petitioner, presumbaly on a mistaken impression that direction issued by this Court in Ext.P3 judgment is to the 1st respondent. Therefore Ext.P4 order cannot be sustained in view of the provisions contained in Section 126 & 127 and in view of the specific directions issued in Ext.P3 judgment. 7. It is submitted by the learned standing counsel that W.P.(C).10195/06-L 5 there is huge arrears of Electricity charges due from the petitioner and his electric connection stands already dismantled. I do not think that those aspects are not relevant, to hold that the impugned order is irregular and improper. Further, it is clear that this Court is dealing only with the legality and propriety of the penalty imposed pursuant to the inspection conducted on 19.5.2005. Any order issued in this writ petition will not affect any proceedings initiated or proposed for realisation of other amounts due from the petitioner, nor it will affect the status of electric connection. 8. Under the above circumstances the writ petition is disposed of quashing Ext.P4 order and the consequential demand raised under Ext.P5. The competent authority (Assessing Officer) under Section 126 having jurisdiction over the area is directed to consider Ext.P2 objections submitted against Ext.P1 notice, and to finalise the assessment of penalty after affording an opportunity of personal hearing to the petitioner. Needless to say that the petitioner will be at liberty to resort to statutory remedy available by way of appeal if he is aggrieved by such order to be issued. The amounts if any deposited by virtue of the interim order of this Court will be appropriated subject to finalisation of the assessment as directed W.P.(C).10195/06-L 6 above. It is further clarified that the respondent is not prevented from proceeding in any manner against the petitioner for realisation of other arrears. C.K.ABDUL REHIM, JUDGE. okb