IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 WP(C).No. 32072 of 2006(R) ------------------------------------ PETITIONER(S): ------------------------ KAILASH GUPTA, PROPRIETOR, KAMAL PIPES, VII/720 B, UTHAYATHUMVADIL, PANANGAD P.O., KOCHI-6. BY ADV. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT(S): -------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, KSEB, ELECTRICAL DIVISION, TRIPUNITHURA. 3. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, MARADU. R1 TO R3 BY ADV. SRI.JOSE J.MATHEIKEL, SC, KSEB SRI.T.R.RAJAN,SC,K.S.E.B. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.32072/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE BOARD ORDER 83/96 (PLG.COM.2929/95) DTD. 11.1.96. P2:- COPY OF THE LETTER DTD. 22.3.96 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P3:- COPY OF THE BILL FOR THE MONTH OF 3/96. P4:- COPY OF THE BILL FOR THE MONTH OF 4/96. P5:- COPY OF THE NOTICE DTD. 8.7.96. P6:- COPY OF THE NOTICE DTD. 24.1.97 ISSUED BY THE 2ND RESPONDENT. P7:- COPY OF THE NOTICES DT. 25.3.97 5.4.97 , 17.6.97 AND 29.7.97. P8:- COPY OF THE COPY OF THE INVOICE DTD. 10.4.2000. P8(a):- COPY OF THE DETAILS OF CALCULATION ISSUED BY the 3RD RESPONDENT. P9:- COPY OF THE APPEAL DTD. 9.3.2002 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P10:- COPY OF THE ORDER DTD. 25.5.02. P11:- COPY OF THE JUDGMENT DTD. 26.5.2006 IN OP. 14014/2002. P12:- COPY OF THE ORDER DTD. 16.10.2006 PASSED BY THE 2ND RESPONDENT P13:- COPY OF THE LETTER DTD. 1.11.06. P13(a):- COPY OF THE PENALTY BILL DTD. 1.11.06 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P14:- COPY OF THE LETTER DTD. 7.11.2006 FILED BY THE PETITIONER. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.32072 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of November, 2011 J U D G M E N T The petitioner is a low tension industrial consumer of electricity. During the year 1996, power cut was imposed in the State. There was restriction in the use of electricity by industrial consumers. Ext.P1 order was issued by the Board in this regard. As per Ext.P1, for each month quota of electricity which can be consumed was to be fixed for each consumer. The consumer was not expected to exceed the quota. If he exceeds the quota for the excess energy consumed electricity charges were to be paid at double the rates. The energy consumed in excess of the quota was also to be deducted from the quota for the next month. For the months of January 1996, February 1996 and March (up to 22.3.1996) the petitioner was not informed about the quota fixed for the petitioner. For the first time, the petitioner was intimated about the quota fixed for him only by Ext.P2 dated 22.3.96. But the Board assumed that for W.P.(C)No.32072 of 2006 -2- January, February and March also quota was already fixed for the petitioner. In the year 2000, the petitioner was served with Ext.P8 bill towards arrears of electricity charges on the ground that he has exceeded the quota fixed for him and therefore he is liable to pay penal charges in respect of the same. Ext.P8 (a) calculation sheet was also issued. Against the same, the petitioner filed an appeal, Ext.P9. That was rejected by Ext.P10, in which, although it was acknowledged that the petitioner was intimated about the quota only in March 1996, the petitioner was directed to pay the amount demanded. The petitioner again approached this court by filing O.P. No.14014/2002, in which, by Ext.P11 judgment there was a direction to reconsider the matter. After reconsideration, by Ext.P12, again the demand was confirmed. The petitioner paid the demand under protest and filed this writ petition seeking refund of the amount. The contention of the petitioner is that, without getting intimation about the quota fixed for January, February and March in advance, the petitioner cannot regulate consumption in accordance with the quota. W.P.(C)No.32072 of 2006 -3- That being so, the petitioner cannot be found fault with for consuming electricity in excess of the quota and he cannot be penalised for the same is his contention. The petitioner therefore submits that, for the purpose of calculating penal charges payable by the petitioner, the consumption for the months of January, February and March has to be excluded and only excess electricity consumed after March should be taken into account for the purpose of calculating penal charges. The petitioner seeks the following reliefs: “i. To call for the records connected with the case leading to Ext.P12 and quash the same by issuing a writ of certiorari. ii. To direct the 3rd respondent to refund an amount of Rs.101274/- collected from the petitioner with interest.” 2. No counter affidavit is filed in this case. The Standing Counsel for the K.S.E. Board opposes the prayers. According to him, Ext.P8 (a) is the correct calculation of penal charges payable by the petitioner and he is liable to pay the same. 3. I have considered the rival contentions in detail. 4. To appreciate the contention of the parties, it would be advantageous to re-produce Ext.P8 (a) which W.P.(C)No.32072 of 2006 -4- reads as follows: Month Quota P L Eligible quota P L Consumption P L Excess P L CC to be charged CC already charged Balance 1 2 3 4 5 6 7 8 1/96 10237 - 257 10237 - 257 20764 - 10527 - 26172 - 15645 - x 10527 - 2/96 9023 -274 (-) 1504 - 274 13631 - 15135 - 27262 - 15135 - x 12127 - 3/96 9023 - 274 (-) 6112 - 274 14412 - 20524 - 28824 - 20524 - x 8300 - 4/96 9023 - 274(-) 11601 - 274 4324 - 15825 8648 - 2853 - 10 5794 - 90 5/96 9023 - 274(-) 6802 - 274 4746 - 134 11548 - 9626 - 2507 - 30 7118 - 70 8/96 9023 - 274(-) 2525 - 274 8173 - 152 10698 - 16498 - 4238 - 15 12259 - 85 7/96 9023 - 274(-) 1675 - 274 11275 - 12950 - 35500 - 6763 - 65 28736 - 35 1/97 9363 - 183 9363 - 183 9559 - 74 196 - 5284 - 70 4853 - 05 431 - 65 2/97 5924 - 183 5728 - 183 10464 - 218 4736 - 35 15949 - 70 15438 - 511 - 70 3/97 5924 - 183 1188 - 148 2894 - 282 1706 -134 5790 - 40 2277 - 10 3513 - 30 4/97 4859 - 148 3153 - 14 3222 - 170 69 - 156 2291 - 70 2277 - 10 14 - 60 5/97 4859 - 148 4790 -(-)8 8299 - 124 3509 -132 12278 - 50 11841 - 50 437 6/97 4859 - 148 1350 - 16 1078 - 539 - 539 - 7/97 4859 - 148 4859 -1148 1862 - 723 - 575 2976 - 50 2277 - 10 699 - 40 8/97 4859 - 148 4859-(-)427 5073 - 327 214 - 641 5341 - 85 3746 - 1595 - 85 Total -------------- 92067 - 30 Excess charged Rs.3609-10 in 1/96 adjusted in 4/96 Short charged Rs.3845.50 in 2/96 charged in 4/96 ----do----- Rs.6147.30 in 3/96 charged in 4/96 Duty 9206 - 70 -------------- 101274 - 00 5. It is not disputed before me that the 1st time the petitioner was informed about the quota fixed for him was only by Ext.P2 dated 22.3.1996. But Ext.P8 (a) proceeds on the basis that the petitioner was informed about the quota in January itself. Consequently, the excess consumption by the petitioner for January, February and March was deducted from the quota for subsequent months. As a W.P.(C)No.32072 of 2006 -5- result of which, although the petitioner reduced consumption considerably, that consumption also became in excess of the quota, since taking into account the excess consumption for the previous months the quota fixed for the petitioner was minus. I am of opinion that, that is unjust. A person cannot be expected to regulate his consumption of electricity unless he is put on notice in advance about the quota fixed for him. When the quota was fixed only on 22.3.1996 the consumption by the petitioner before that date cannot be taken into account for the purpose of imposition of penal charges on the petitioner. But for the period subsequent to March, certainly if there is an excess consumption than the quota fixed for the petitioner, the respondents are entitled to recover penal charges in accordance with Ext.P1 Board order. Accordingly the writ petition is disposed of as follows: Ext.P12 order is quashed. The 3rd respondent is directed to re-work the amount payable by the petitioner without taking into account the excess consumption by the petitioner for the months of January, February and March, W.P.(C)No.32072 of 2006 -6- meaning thereby that, it shall be deemed that the petitioner has not consumed any excess electricity during January, February and March. But of course, from April onwards, if the petitioner has consumed electricity in excess of the quota, the penal charges can be recovered from the petitioner in accordance with Ext.P1 Board Order. The amounts due, if any, calculated as per the above directions, shall be intimated to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. If consequent to the re- calculation any refund becomes due to the petitioner, the same shall be refunded to the petitioner within a period of another month. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/