IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WP(C).No. 28644 of 2005(I) ------------------------------------- PETITIONER: ------------------- M.B.MOHAMMED ALI, AGED 51 YEARS, S/O. SHRI.M.U.BEERAN, PROPRIETOR, M/S.MEZHUKATTIL OIL MILLS, CHUNANGAMVELY P.O., ALUVA, RESIDING AT MEZHUKATTIL HOUSE, CHUNANGAMVELY P.O., ALUVA, ERNAKULAM DISTRICT.(CONSUMER NO.3220 OF ELECTRICAL TOWN MAJOR SECTION, ALUVA). BY ADV. SRI.T.P.M.IBRAHIM KHAN. RESPONDENTS: ----------------------- 1. THE ASSISTANT ENGINEER, ANTI POWER THEFT SQUAD (A.P.T.S), ERNAKULAM UNIT, NEW NORTH RAILWAY STATION, ERNAKULAM KOCHI-18. 2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL TOWN MAJOR SECTION, ALUVA. 3. THE DEPUTY CHIEF ENGINEER, ANTI POWER THEFT SQUAD (APTS), HEADQUARTERS, VYDHYUTHI BHAVAN, THIRUVANANTHAPURAM. 4. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN, THIRUVANANTHAPURAM. ADV. SRI. C.K.KARUNAKARAN, S.C, K.S.E.B FOR R1 TO R4. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.28644/2005-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE NO. DB-2/APTS/01-02/1026 DTD. 21/05/2001 ISSUED BY THE R.2. EXT.P.2: COPY OF THE BILL NO. BG 51506 DT.D 17/05/2001 FOR RS.85783/- ISSUED BY THE R.2. EXT.P.3: COPY OF THE MAHZAR NO.NIL. DTD. 16/05/2001 ISSUED BY THE R.2. EXT.P.4: COPY OF THE APPEAL MEMORANDUM NO. NIL. DTD. 24/05/2001 FILED BY THE PETITIONER BEFORE THE R.3. EXT.P.5: COPY OF THE JUDGMENT DTD. 29/05/2001 OF THIS HONOURABLE COURT IN ORIGINAL PETITION NO. 16271/2001-K. EXT.P.6: COPY OF THE RECEIPT NO. 331 (1821) DTD. 25/06/2001 ISSUED BY THE R.2. TO THE PETITIONER. EXT.P.7: COPY OF THE ELECTRIC BILL/ INVOICE NO. O.A. NO. 99318 (CONSUMER NO. 3220) DTD. 20/05/2002 ISSUED BY THE R.2. DEMANDING AN AMOUNT OF RS.1,39,119/- FROM THE PETITIONER. EXT.P.8: COPY OF THE PETITION NO.NIL. DTD. 27/05/2002 SUBMITTED BY THE PETITIONER BEFORE THE R.3. EXT.P.9: COPY OF THE JUDGMENT DTD. 10/07/2002 OF THIS HONOURABLE COURT IN ORIGINAL PETITION NO. 14854/2002 (R). EXT.P.10: COPY OF THE RECEIPT NO. 125 DTD. 31/07/2002 ISSUED BY THE RESPONDENTS. EXT.P.11: COPY OF THE ORDER NO.APTS/DEC/BV-5952/2001-02/EKM/311 DTD. 25/07/2005 ISSUED BY THE R.3. EXT.P.12: COPY OF THE BILL/ INVOICE NO. 95629 DTD. 26/09/2005 IN CONSUMER NO. 3220 ISSUED BY THE RESPONDENTS DEMANDING AN AMOUNT OF RS.36,182/-. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. KURIAN JOSEPH, J. --------------------------------------- W.P.(C) No.28644 OF 2005 --------------------------------------- Dated this the 15th day of October, 2008. J U D G M E N T The writ petition is filed mainly with the following prayers: i) To call for the records relating to Exts.P1 to P12 and to issue a writ of certiorari or any other appropriate writ, direction or order, quashing Exhibit P7 Bill, P11 order and P12 Bill being arbitrary, illegal, unsustainable and against the Principles of natural justice. ii) To issue a writ of mandamus or any other appropriate writ, direction or order directing the Respondents to give credit for the amount already deposited by the Petitioner as evidenced by Exhibit P6 and P10 receipts. iii) To issue a declaration that the Petitioner is not bound to pay any Penalty amount imposed by the Respondents as evidenced by Exhibit P2 and P7 Bills since there was no use of unconnected load of electrical energy as alleged by the Respondents. As far as penalty for unauthorised connected load is concerned, it is now settled law in view of the Bench decision of this Court in W.A.No.1231/03 that the penalty has to be limited to the fixed charge portion. It is held that there shall not be any penalty by way of proportionate energy charges. The impugned W.P.(C) No.28644/05 2 demands are quashed making it clear that the liability of the petitioner shall only be for the penalty for fixed charge portion. The revised demand shall be issued to the petitioner and the amounts already remitted by the petitioner shall be adjusted. This writ petition is disposed of as above. KURIAN JOSEPH, JUDGE. smp W.P.(C) No.28644/05 3 KURIAN JOSEPH, J. W.P.(C) No. 28644 OF 2005 J U D G M E N T 15.10.2008