IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 AS.No. 149 of 2000(E) --------------------- AGAINST THE JUDGMENT AND DECREE DATED 9.4.1999 IN OS.363/1994 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT/PLAINTIFF: ------------------------ P.T.JOSE, H.NO.195, HILL GARDEN, 3RD GATE, WARD NO.VII, KUTTANELLUR, OLLUR VILLAGE, TRICHUR TALUK. BY ADV. MR.K.P.SREEKUMAR MR.S.GOPINATHAN RESPONDENTS/DEFENDANTS: -------------------------------- 1. THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY THE SECRETARY, PATTOM, TRIVANDRUM. 2. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KSEB, KOTTAPPURAM, TRICHUR - 4. 3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.B, OLLUR. 4. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB, KURIACHIRA, OLLUR VILLAGE. ADV. MR.T.G.RAJENDRAN SC FOR K.S.E.B. FOR R1 TO R4 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No.149 of 2000(E) ORDER ON C.M.P.NO.1326/2000 IN A.S.NO.149/2000 DISMISSED. 28.1.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ----------------------------------- A.S.No.149 of 2000 - E --------------------------------- Dated this the 28th day of January, 2010 J U D G M E N T The plaintiff in O.S.No.363 of 1994 on the file of the Sub Court, Thrissur, is the appellant. The suit is filed for declaration and permanent injunction. The court below held that the plaintiff is not entitled to get a decree of declaration to the effect that Ext.A3 and A6 are null and void, and the consequential prayer for perpetual injunction was also disallowed. Hence the appeal. Parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff challenge Ext.A6 mahazar alleged to have been prepared by the 4th defendant on 19.1.1994 and Ext.A3 notice issued on 21.1.1994. Plaintiff is running an oil mill as per Ext.A2 licence. Ext.A1 is the order of power allocation. As per Ext.A1, plaintiff is entitled to use motor power to the extent of 30 H.P in his oil mill. On 19.1.1994, the 4th defendant, Assistant Engineer, Electrical Section, KSEB and other officials inspected the plaintiff's premises. It is alleged that without prior A.S.No.149 of 2000 - E 2 information the officers of the KSEB disconnected the service line of the plaintiff's industrial unit. Ext.A6 mahazar and A3 demand notice were issued after disconnection. It is contended that Ext.A6 mahazar alleged to have been prepared was a concocted document. 3. The plaintiff adduced oral and documentary evidence. Plaintiff was examined as PW1. He produced documents which are marked as Exts.A1 to A16. One witness was examined on the side of the defendants as DW1 and Exts.B1 and B1(a) are marked. 4. It is submitted by the plaintiff that as directed by the District Court in C.M.A.No.90 of 1994 which arises from O.S.No.91 of 1994, the District Court deputed an expert. Exts.A12, A13 and A13(a) are the copies of the report submitted by the expert. It is submitted that the District Court after perusing the report directed the defendants to restore the electric connection. Ext.A14 is the certified copy of the order in C.M.A.No.90 of 1994. Ext.A9 is the judgment in the suit. The suit was decreed as per Ext.A9 judgment. Based on the above A.S.No.149 of 2000 - E 3 said facts the plaintiff filed the suit for the relief of declaration. 5. The relief sought for was opposed by the defendants. According to the power allocation letter the plaintiff is allowed to use power consumption of 22.480 KW. But on inspection by DW1 along with members of Anti Power Theft Squad it was found that the plaintiff had consumed unauthorisedly additional load of energy over and above the sanctioned load. This fact was noticed in Ext.A6 mahazar prepared in the presence of the plaintiff and other staff members of the industrial unit. DW1 testified before the court that on inspection it was noticed that capacitors were found disconnected from the motors. Energy consumed in one of the phases was not seen recorded in the meter and there was an unauthorized drawing of additional line through plastic wire to another building. Ext.A6 mahazar reveals that the defects were noticed on inspection. Later, Ext.A3 notice was issued under clause 42(d) and 43 of Conditions of Supply of Electricity Energy Regulation Act. 6. By Ext.A9 judgment a direction was issued to the defendants to restore the electric connection only because there A.S.No.149 of 2000 - E 4 was no proper notice of disconnection. In Ext.A9 judgment there is no finding to the effect that Ext.A6 mahazar and Ext.A3 notice are illegal and void. The dispute involved in this case is about the act of disconnection on 21.6.1994. The said incident happened during the pendency of O.S.No.91 of 1994 on the file of the Munsiff Court, Thrissur. The court below examined the issue whether there is unauthorized consumption of additional load of 25.799 KW by the plaintiff in addition to the registered load of 22.840 KW on 19.1.1994 as noticed by the defendants during inspection. It cannot be disputed that Ext.A6 mahazar reveals that the inspection was conducted by the officials of KSEB and, irregularities and discrepancies as stated in Ext.A6 are noticed. Plaintiff failed to prove that the irregularities and discrepancies noticed by the KSEB are false and cooked up stories. The trial court in detail examined the evidence tendered by the plaintiff and DW1 and examined all the documents in detail. 7. Referring to Clause 40 of the Conditions of Supply of Electrical Energy trial court held that capacitors are necessary, A.S.No.149 of 2000 - E 5 and if they are not installed, the consumer can be penalized by charging penal rates as specified by the Board from time to time. Clause 44 was also referred to which empowered the Board to disconnect the service line on giving less than 24 hours notice, if there is reason to believe that there is breach of agreement at the instance of the consumer. The trial court held that the plaintiff failed to convince the court that Ext.A6 and A3 are null and void and therefore held that the plaintiff is not entitled to get a decree for declaration and consequential injunction as prayed for. I find that sufficient grounds are not made out for interference in appeal. The view taken by the court below is the only view possible in the given circumstances. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. bkn/-