IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WA.No. 1237 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.15651/2010 Dated 22/06/2010 .................... APPELLANT(S): PETITIONER ------------------------ SHAMSUDEEN.O.P,S/O.SAIDUTTY,AGED 39 YRS, ONAPARAMBIL HOUSE,CHUNANGAD .PO,OTTAPPALAM, PALAKKAD DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S)/RESPONDENTS: --------------- 1. KERALA STATE ELECTRICITY BOARD REP;BY ITS ASSISTANT EXECUTIVE ENGINEER,ELECTRICAL SUB DIVISION,OTTAPPALAM,PALAKKAD DISTRICT. 2. ASSISTANT ENGINEER,KERALA STATE ELECTIRICITY BOARD,ELECTRICAL SECTION,OTTAPPALAM, PALAKKAD DISTRICT. 3. SUB ENGINEER,ELECTRICAL SECTION, OTTAPPALAM,PALAKKAD DISTRICT. 4. THE DEPUTY CHIEF ENGINEER, KSEB ELECTRICAL CIRCLE,SHORNUR. BY S.C. SRI.C.K.KARUNAKARAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ W.A.No. 1237 OF 2010 ------------------------ Dated this the 20thday of July, 2010 JUDGMENT Abdul Rehim, J. The petitioner in the writ petition is in appeal. Pursuant to an inspection conducted at the premises of the petitioner, assessment of energy charges was made under Exts.P11 and P12, as per Section 126 of Electricity Act 2003 (for short 'the Act') based on an allegation that the petitioner had committed theft of electricity by abstracting energy provided under industrial tariff for purposes which are commercial in nature. Steps for prosecution alleging offences under Section 135 was also initiated. Ext.P10 was issued informing that the petitioner will have option for compounding the offence by remitting compounding fee of Rs.1,80,000/-. The petitioner has not so far compounded the offence. Against the provisional assessment made, the petitioner filed objections and the assessing authority had finalised the assessment as per Ext.P15. Petitioner had W.A..No.1237/2010 2 preferred appeal from Ext.P15 before the additional 4th respondent, under Section 127 of the Act, as evidenced from Ext.P16. Since the electric connection remained disconnected, petitioner sought for reconnection, pending disposal of the appeal. But the respondents insisted for payment of full amount assessed under Ext.P15. Hence the writ petition was filed inter alia seeking direction for restoration of supply. The learned Single Judge accepted contentions of the respondents that, electric connection can be restored only if the petitioner makes payment of the entire amount assessed in view of provisions contained in Section 135 (IA) of the Act. The petitioner has filed this writ appeal being aggrieved by such findings. 2. Sri.C.P.Peethambaran, learned counsel appearing for the appellant/petitioner contended that Ext.P15 order of assessment is highly arbitrary and exorbitant. According to him, Ext.P16 appeal deserve merit, because the allegation of theft itself is in dispute. The learned counsels submitted that there is every chance of the appellate authority allowing his appeal or rather reducing quantum of assessment to a considerable extent. In such circumstances, insistence for remittance of the entire W.A..No.1237/2010 3 amount for getting reconnection will be highly unworkable and will put him to irreparable prejudice. 3. Per contra, Sri.C.K.Karunakaran, learned standing counsel for respondents, drawn our attention to the provisions of Section 135 (a) and 135 (IA). Illustrated on the basis of the mahazar prepared at the time of inspection as well as on the conclusions of the assessing authority in Ext.P15, learned standing counsel contended that it is a clear case of theft, which is punishable under Section 135. Hence going by the provisions of Section 135 (1A) reconnection can be given only on payment of the entire amount assessed, is the contention. 4. Considering the facts and circumstances, we are of the opinion that whether there was theft of energy or not is a matter which needs adjudication by the competent special Court having jurisdiction. Of course, the petitioner is also at liberty to compound the offence in lieu of prosecution. As such the petitioner is disputing the allegation of theft. As far as the assessment under Section 126 is concerned, the petitioner has already approached the appellate authority under Section 127. On the sustainability of the assessment as well as correctness of W.A..No.1237/2010 4 the quantum of assessment are matters to be considered and decided in the appeal. Since adjudication on the above aspects are pending, we are not expressing any opinion at present. 5. While considering the aspect of payment of the entire amount for getting re-connection, we take note of the provisions in Section 127 of the Act. Payment of 30% of the amount is a pre-requisite for entertaining the appeal under Section 127. Section 135(IA) contemplates payment of the 'assessment amount' or 'electricity charges' as a condition precedent for restoration of supply. It is evident from Ext.15 that the assessed amount includes electricity charges as well as the penal charges imposed. It is contended by the learned standing counsel that the assessed amount is electricity charges, going by the provisions of Section 126. On the other hand, learned counsel for the appellant/petitioner contended that major portion of the amount is penal charges assessed at two times of the electricity charges for a previous period of 12 months. 6. Considering the fact that the very allegation of theft punishable under Section 135 is in dispute and also considering the fact that the assessment is yet to be finalised in the appeal, W.A..No.1237/2010 5 we are not proposing to enter on any finding as to whther Section 135(1A) is applicable or not in the case at hand. We are of the considered opinion that a modification of the directions contained in the Judgment of the learned Single Judge to extent of limiting the liability of the petitioner to payment of 50% for securing re-connection will be sufficient to meet the ends of justice. 7. In the result, the appeal is allowed in part modifying the impugned judgment to the extent of directing the respondents to reconnect electricity supply to the petitioner on his payment of 50% of the amount covered under Ext.P15. 8. Reconnection shall be made within three days of remittance of the amount. The 4th respondent shall consider and dispose of Ext.P16 appeal in accordance with law after affording an adequate opportunity of hearing to the petitioner. It is made clear that we have not expressed any opinion with respect to sustainability of the prosecution initiated under Section 135. It is also made clear that the direction for reconnection made above is on the basis of consideration of facts and circumstances attendant in this case, which shall not W.A..No.1237/2010 6 be treated as a precedent in any other case. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk