IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 OP.No. 15005 of 1999(J) -------------------------------- PETITIONER(S): ------------------------ M/S.LENS AND FRAMES PULIMOODU JUNCTION, TRIVANDRUM, A PARTNERSHIP FIRM, REP.BY ITS MANAGING PARTNER, K.S.USMAN. BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE BY ADV. MR. RESPONDENT(S): ------------------------ 1. THE SENIOR SUPERINTENDENT, ELECTRICAL MAJOR SECTION, KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN, TRIVANDRUM. 2. THE ASST.EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION, PUTHENCHANTAI, TRIVANDRUM. 3. THE DY.CHEF ENGINEER (APTS) KERALA STATE ELECTRICITY BOARD, TRIVANDRUM. 4. KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY VYDHUTHI BHAVAN, TRIVANDRUM. R1 TO R4 BY ADV.MR.C.K.KARUNAKARAN SC , KSEB THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.24205/1999 IN OP. 15005/1999 DISMISSED 06/01/2010 SD/- K.SURENDRA MOHAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTICE ISSUED BY THE IST RESPONDENT DTD. 24.9.98. P2:- COPY OF THE APPEAL SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DT. 28.10.9.8 P3:- COPY OF THE PROCEEDINGS OF THE DEPUTY CHIEF ENGINEER APTS DTD. 30.4.99. P4:- COPY OF THE LETTER NO.BB/98/26/5/99ISSUED BY THE ASST. EXECUTIVE ENGINEER (KSEB) ELECTRICAL MAJOR SECTION, THIRUVANANTHAPURAM- I. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE DETAILED CONNECTED LOAD ISSUED BY THE ASST. EXE. ENGINEER, APTS. TRUE COPY P.S. TO JUDGE tss S. SIRI JAGAN, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= O.P. No. 15005 of 1999 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 6th day of January, 2010 JUDGMENT The petitioner is a consumer of electricity from the Kerala State Electricity Board, having three different connections in the same premises. On the basis of inspection allegedly conducted on 21-1-1998 in the premises of the petitioner, Ext.P1 bill for Rs.1,00,304/- was issued to the petitioner as penalty for using unauthorized additional load to the extent of 24 K.W. for the period from 2/97 to 2/98. Paying 50% of the said amount, as required for maintaining appeal against Ext.P1 bill, the petitioner filed Ext.P2 appeal before the 3rd respondent. After hearing the petitioner, the appeal was disposed of by Ext.P.P3. In Ext.P3 order after reducing the period of demand as from 10/97 to 2/98, the total demand was enhanced to Rs.1,32,264/-. Thereafter, Ext.P4 demand was issued directing the petitioner to pay an amount of Rs.82,112/-. The petitioner is challenged Exts.P1, P3 and P4. 2. According to the petitioner, the petitioner never used unauthorized additional load, as alleged by the respondents. It is further submitted that the very fact that after issuing Ext.P1 bill for the period from 2/97 to 2/98 for an amount of Rs.1,00,304/-, by Ext.P3 order the period was reduced as from 10/97 to 2/98 raising the demand to Rs.1,32,264/- would go to show that the respondents had OP 15005/99 2 made the demand not on the basis of any definite case of unauthorized load at all, but only on the basis of conjunctures and surmises. The petitioner would further contend that in any event, even assuming that the petitioner was using unauthorized additional load, in view of the decision of this Court in George Joseph V. K.S.E.B. and others, ILR 2008 (4) Ker.377, penalty for unauthorized additional load can only be on fixed charges and not on current charges. 3. A counter affidavit has been filed on behalf of the Electricity Board giving some explanation as to how after reducing the period of penalty, the demand was raised to Rs.1,32,264/-, which is rather unconvincing. Apart from that, I find that before undertaking such an exercise, no opportunity of being heard was given to the petitioner on that particular question regarding how after reducing the period considerably the demand had to be raised. I am of the opinion that before taking such an exercise the petitioner should have been put on notice, regarding the same which has not been done in this case. Since I intend to follow the decision in George Joseph's case (Supra) and the petitioner would be satisfied, if the benefit of that judgment would be given. I am not going into the other contentions in detail. In the above said judgment I had held that under Regulation 42(d) of the Conditions of Supply of Electrical Energy, penalty can be imposed only on fixed charges and not on current charges. Here as is clear from Ext.P3 order OP 15005/99 3 total penalty of fixed charges is only R.9,914/- and the rest is penalty on current charges and interest. The petitioner agrees for adjustment of the said amount of Rs.9,914/- from the amounts already paid by the petitioner including the amount of Rs.10,000/- paid, as per interim order dated 18-6-1999 in this original petition. 4. Accordingly, Ext.P3 order, to the extent it demands penalty from the petitioner on current charges, is quashed. However, the demand for penalty on fixed charges amounting to Rs.9,914/- is upheld. After deducting that amount and interest for the period from 24-9-1998 to the date of payment of Rs.50,000/- at the time of filing appeal, the balance amounts paid by the petitioner shall be adjusted against future bills of the petitioner. The original petition is allowed as above. S. SIRI JAGAN, JUDGE. mn.