IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 WP(C).No. 27460 of 2008(R) --------------------------------------- PETITIONER(S): ----------------------- ST.ANTONY'S MOTORS INDIA LTD., REPRESENTED BY ITS DIRECTOR, HAVING ITS REGISTERED OFFICE AT NO.1.MRA MEHAR BUILDING, S.N. COLLEGE JUNCTION, KOLLAM - 691001, KERALA STATE. BY ADV. MR.JOHNSON GOMEZ RESPONDENT(S): -------------------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYTHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE SUB ENGINEER IN CHARGE OF THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, MANARCADU, KOTTAYAM. 3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, MANARCAD, KOTTAYAM. 4. THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, KOTTAYAM. 5. THE SUB ENGINEER, ELECTRICAL SECTION, KOTTAYAM EAST, KOTTAYAM. BY ADV. MR.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 TO 5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.27460/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SITE MAHAZAR DT. 22ND SEPTEMBER 2007 PREPARED BY THE 5TH RESPONDENT. P2:- COPY OF THE NOTICE NO.2007-08 DT. 3.10.07. P3:- COPY OF THE OBJECTION DT. 6.10.07 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P4:- COPY OF THE BILL DT. 3.10.07 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P5:- COPY OF THE BILL DT. 28.6.08 ISSUED BY THE 2ND RESPONDENT. P6:- COPY OF THE LETTER NO.ADMIN/16/839/08-09 DT. 14.7.08. P7:- COPY OF THE BOARD ORDER NO.B.O.(FM) NO.368/08(DPCI)/C-G1/182/2007 DT. 7.2.08. P8:- COPY OF THE JUDGMENT DT. 16TH JULY 2008 IN WPC. NO.21502 / 08 OF THIS HONOURABLE COURT. P9:- COPY OF THE WRITTEN OBJECTION DT. 25.7.08 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P10:- COPY OF THE ORDER NO.DB/ST.ANTHONY /08-09/50/2/9/08 ISSUED BY THE 2ND RESPONDENT. P11:- COPY OF THE MAHAZAR DT. 18.4.05 PREPARED BY THE 2ND RESPONDENT. P12:- COPY OF THE BILL NO.27169 DT. 13/5/05 ISSUED BY THE 2ND RESPONDENT. P13(a):- COPY OF THE BILL N O.39014 DT. 16/12/06 FOR AN AMOUNT OF RS. 46,084/- ISSUED BY THE2ND RESPONDENT. P13(b):- COPY OF THE BILL NO.14603 DT. 16.6.07 FOR AN AMOUNT OF RS. 102579/- ISSUED BY THE 2ND RESPONDENT. P14:- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR ADDITIONAL POWER ALLOCATION DT. 6.10.07. P15:- COPY OF THE LETTER NO.MSD/ESM/PA/08-09 DT. 30.6.08 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION MANARCADU. W.P.(C) NO.27460/2008 P16(a):- COPY OF THE BILL NO.33591 DT. 17 TH MAY 2008 FOR AN AMOUNT OF RS. 59,402/- ISSUED BY THE 2ND RESPONDENT. P16(b):- COPY OF THE BILL NO.3886 DT. 17TH APRIL 2008 FOR AN AMOUNT OF RS. 43,117/- ISSUED BY THE 2ND RESPONDENT. P17:- NIL. P18:- COPY OF THE LETTER NO.ESD/MCD/PA/08-09 /112/18-12-08 DT. 18.12.08 ISSUED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS NIL. TRUE COPY P.S. TO JUDGE TSS ANTONY DOMINIC,J. --------------------- W.P.(C).No.27460 OF 2008 ------------------------ Dated this the 23rd day of May, 2009. JUDGMENT The main challenge in this writ petition is against Ext.P5. Petitioner, a company registered under the Companies Act is a Dealer for passenger cars manufactured by Tata Motors Ltd. They are availing of energy supply of respondent Board with consumer No.9320. In this writ petition what they challenge is Exts.P5 and P10. 2. There was an inspection by the Special Squad of the Board on 29.7.2007. In the inspection so conducted additional unauthorized load of 60 K.W was found and it was in pursuance there of that Ext.P5 bill was issued demanding an amount of Rs.9,74,257/-. Ext.P5 shows that quantification of the dues have been made on the basis of Ext.P7, a Board order issued, in view of the amendments to Section 126 with effect from 15.6.2007. Petitioner filed WP(c).No.27460/08 2 Ext.P9 objection and that was rejected and Ext.P5 was confirmed as per Ext.P10 order passed by the respondents. It is in this background the writ petition has been filed challenging the aforesaid orders. 3. It is now disclosed that against Exts.P5 and P10 availing of statutory remedy of appeal as per Section 127 of the Electricity Act 2003, petitioner has already preferred Ext.P17 appeal before the 4th respondent. Now that the petitioner has availed of the statutory remedy it is for the 4th respondent to consider the appeal on merits and dispose of the same in accordance with law. 4. The further question that remains to be resolved is whether the petitioner should be called upon to remit 50% of the dues as required under Section 127 of the Act. It is seen that pursuant to the order passed by this court on 16.9.2008, the petitioner has already remitted Rs.2 lakhs. On facts I also notice that Ext.P7 Board Order referred to above provides that the penal charges can be levied on energy charges and fixed WP(c).No.27460/08 3 charges, at twice the rate only with effect from 15.6.2007, in view of the amendment to Section 127 of the Act. Petitioner has a case that Ext.P7 being prospective, from 15.6.2007, could not have been made applicable to them for any prior period and on that basis he contends that the quantification made in Ext.P5 is erroneous. Prima facie there appears to be substance in what the petitioner contends. In view of this I feel it is only appropriate that Ext.P17 appeal filed by the petitioner before the 4th respondent should be considered without insisting on the petitioner making any further remittance . 5. Therefore the writ petition is disposed of directing the 4th respondent to consider Ext.P17 appeal filed by the petitioner with notice to the parties as expeditiously as possible and without insisting on the remittance of any further amount. Petitioner also has a case that though he has applied for additional allocation of power, respondents are not taking WP(c).No.27460/08 4 action on the application so made. Counsel submits that there is some progress in this regard and therefore is not the pressing this claim at this stage. It is clarified that the contention regarding the entitlement of the petitioner for additional allocation of power is left open. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.27460/08 5