IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 WP(C).No. 1051 of 2006(A) ----------------------------------- - PETITIONER(S): ----------------------- M.V.UMESHAN, S/O.KRISHNAN, AGED 46 YEARS, SAGAR ICE FACTORY, DURGA ROAD, KOYILANDY.P.O, KOZHIKODE. BY ADV. SRI.P.R.SREEJITH RESPONDENT(S): -------------------------- 1. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB, KOYILANDY SOUTH, CHEMANCHERRY, KOZHIKODE. 2. THE DEPUTY CHIEF CO-ORDINATOR, ANTI-POWER THEFT SQUAD, K.S.E.BOARD, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 3. THE DEPUTY CHIEF ENGINEER, ANTI-POWER THEFT SQUAD, K.S.E.BOARD, KOZHIKODE. BY ADV. SRI.P.P.THAJUDEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss S. SIRI JAGAN, J. ------------------------------ W.P.(C) No.1051 OF 2006 ------------------------------- Dated this the 18th day of October, 2010 J U D G M E N T The petitioner has an electricity connection to his Ice Plant under LT-IV industrial tariff. He is aggrieved by an additional bill demanding Rs.54,564/-, being 20% of the actual energy charges on the ground that he used electricity without a capacitor, which is a requirement under the relevant provisions applicable to industrial consumers of electricity. Against the same, the petitioner filed an appeal by paying 25% of the demand amounting to Rs.13,641/-. But by Ext.P3 order, the appeal was rejected. Challenging the demand and the appellate order, the petitioner has filed this writ petition seeking the following reliefs: “(i) Call for the records leading to Exts.P3 and P4 and quash the same by issuance a writ of certiorari or any other appropriate writ, order or direction (ii) Declare that the levy of current charge in case of capacitors not installed or becoming faulty and unserviceable in a LT-IV Industrial connection, is not the dominion of APTS and that Ext.P3 order is illegal, arbitrary, ultravires and void. (iii) Declare that the failure of the static W.P.(c)No.1051/06 2 capacitor in a LT-IV Industrial connection does not result in unauthorized use of electricity warranting penal assessment but will only result in billing the consumer at a higher rate for the period during which the capacitor remained defective in terms of the LT Industrial Tariff Notification dated 25-12-2002. (iv) Declare that the petitioner cannot be levied any enhanced charges in respect of the faulty capacitor, taking in to account the facts and circumstances of the case and the amount already remitted by the petitioner in this regard is therefore liable to be refunded. (v) Issue writ of mandamus or any other appropriate writ, order or direction commanding the respondents to refund the amount of Rs.13,641/- remitted vide Rt.No.395/398 dated 30-7-2003 by the petitioner” 2. The contention of the petitioner is that the non- connection of the capacitor was noted by the Anti-Power Theft Squad (APTS) on 25.7.2003. During the same month the meter reader had taken meter reading on 2.5.2003. On that date, the meter reader did not notice any defects and he served a bill for actual energy charges. That being so, the capacitor must have become non-functional subsequent to 2.5.2003 and therefore, the petitioner is liable to pay, if at all, 20% extra only for the month of May. He also submits that the collection of 20% extra is based on the Industrial Tariff notification dated 24.10.2002. According to him, that is not W.P.(c)No.1051/06 3 penal charges. The respondents have demanded 20% extra for six months which is not justifiable by any stretch of imagination, especially since the meter reader did not notice any defect in the installation on 2.5.2003 when he took the meter reading is the petitioner's contention. Therefore, according to him, the respondents cannot recover 20% additional charges for more than a month. 3. The learned Standing Counsel for the Kerala State Electricity Board submits that it is the duty of the petitioner to inform the Board immediately when the capacitor became non- functional. According to the learned Standing Counsel for the Board, as per the Tariff Notification, in the event of the static capacitor becoming faulty or unserviceable, the consumer is bound to intimate the matter to the Asst. Engineer/Asst. Executive Engineer of the concerned Electrical Section/Major Section forthwith and the consumer is bound to make immediate arrangements for repair. Such repair shall be carried out within two weeks also. The petitioner has not chosen to inform the officer of the Board, despite he having been aware of the capacitor having been burnt. Therefore, W.P.(c)No.1051/06 4 the petitioner’s contention that it became defective only after 2.5.2003 cannot be accepted on face value, is the contention raised. Therefore, the Board had to fix the period during which the capacitor was not non-functional. They adopted a reasonable period namely, six months, which cannot be faulted is the contention raised. 4. I have considered the rival contentions in detail. The relevant provisions of the Tariff Order applicable read as follows: “Note:-I. For consumers who have not installed ISI approved capacitors of recommended value the rate applicable will be higher by 20% (both on Fixed and Energy charges) than the rates shown above. xxxx xxxx xxxx IV. All LT. Industrial Consumers are required to install static capacitors approved by ISI for power factor improvement, for their inductive loads as recommended in the Annexure-II attached to this notification and obtain approval of the Board. The capacitors shall be only for the inductive loads. New service connections will not be given unless the (sic) the installations of the prospective consumers include static capacitors of the recommended rating. V. In the event of the static capacitor becoming faulty or unserviceable, the consumer shall forthwith intimate the matter to the Assistant Engineer/Assistant Executive Engineer of the concerned Electrical Section/Major Section and the consumer shall make immediate arrangements for repair. VI. If the capacitor is not put back into service duly repaired and to the satisfaction of the Board within two weeks, enhanced charges as per Note 1 W.P.(c)No.1051/06 5 above shall be payable for the whole period during which the capacitor was faulty” (underlining supplied) No doubt, as per the same, the petitioner was bound to intimate the officers of the Board that the static capacitor was faulty or unserviceable forthwith. Admittedly, he has not done the same. He was also expected to repair the same to the satisfaction of the Board within two weeks. Till the ATPS found out the defect, the petitioner did not care to repair the defective capacitor also. The petitioner was quite aware that the capacitor was burnt. Admittedly he did not inform the same to the Board at any time and it is the ATPS who found out the same. The petitioner repaired the same also subsequently. Therefore, I am not inclined to believe the words of such a consumer on face value. As such I am not inclined to accept the contention of the petitioner that the capacitor became faulty subsequent to 2.5.2003. But that does not mean that the Electricity Board can arbitrarily assume that the capacitor would have been faulty or unserviceable for a period of six months without any reasonable assessment of the period during which it would have been faulty or W.P.(c)No.1051/06 6 unserviceable based on some facts. In fact, all consumers pay inspection fee every month along with the current charges. The inspection fee is paid on the assumption that every month the officers of the Board do inspect the electrical installation of every consumer for defects. But the fact that on 2.5.2003, the meter reader had taken meter reading does not ipso facto mean that if the capacitor was faulty, the meter reader would have noticed the same. At this point of time, it would not be possible even to make an educated guess as to the period during which the capacitor remained faulty. 5. In view of my above findings, I think that a reasonable assessment would be to close the matter by directing the respondents to accept the amounts already paid by the petitioner as the amount due from the petitioner towards the 20% additional charges payable by him for using his installation with a faulty/unserviceable capacitor. The petitioner had at the time of filing the appeal paid Rs.13,641/-. As a condition for stay in this writ petition, he had paid another Rs.10,000/-. The respondents shall accept the said amount as the amount payable by the petitioner towards 20% payable by W.P.(c)No.1051/06 7 him as per the Tariff Order for using electricity without a proper capacitor. To that extent, the impugned orders are quashed. It is declared that the petitioner is not liable to pay any further amount than what he has already paid towards 20% charges as per the Tariff Order for using electricity without a proper capacitor in place. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE acd W.P.(c)No.1051/06 8 W.P.(c)No.1051/06 9