IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 15647 of 2008(K) -------------------------- PETITIONER(S): ------------------ SAJ FLIGHT SERVICES PVT.LTD, AIRPORT, TRIVANDRUM, REP.BY ITS DIRECTOR, REJI K.VARGHESE. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): ------------------- KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, TRIVANDRUM 695 004. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.15647/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: PHOTOCOPY OF JUDGMENT OF THIS HON'BLE COURT DT 6.11.2003 IN WPC NO.10068/1995 W. EXT.P2: PHOTOCOPY OF COMMON JUDGMENT OF THIS HON'BLE COURT, DT 9.11.2005 IN WA NO.538/2004 AND CONNECTED CASES. EXT.P3: PHOTOCOPY OF ORDER NO.B.O(FB) NO.2710/2006/LAW/2309/2004) DT 24.11.2004 OF THE RESPONDENT. EXT.P4: PHOTOCOPY OF JUDGMENT OF THIS HON'BLE COURT DT 5.9.07 IN WPC NO.3985/2007 Y. EXT.P5: PHOTOCOPY OF NOTES OF ARGUMENT DT 17.12.2007 ALONG WITH THE ANNEXURES SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P6: PHOTOCOPY OF ORDER NO.LA.V/2579/2007 DT 17.3.2008 OF THE RESPONDENT ISSUED TO THE PETITIONER. EXT.P7: TRUE COPY OF DEMAND NO.BB/SVHM/08-09 DT 17.5.2008 FOR RS.74,81,182/- ISSUED BY RESPONDENT. EXT.P8: TRUE COPY OF REPLY NO.SFS/D-025/2008-09 DT 20.5.2008 ALONG WITH SUPPORTING DOCUMENTS SUBMITTED BY PETITIONER BEFORE RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 15647 OF 2008 (K) ===================== Dated this the 7th day of July, 2009 J U D G M E N T The prayer sought in this writ petition is to quash Ext.P6 and to direct the respondent not to enforce Ext.P6. Petitioner is a Private Limited Company incorporated under the provisions of the Companies Act engaged in providing flight kitchen services at Airports. 2. In so far as this writ petition is concerned, petitioner is having an electric connection with Consumer No.7378, with a connected load of 28 KW. According to the petitioner, in January, 1996, they applied for an additional connected load of 42 KW. However, orders on the application were not passed and in the meantime, even according to the petitioner in order to meet their requirements, additional equipments were installed in the premises. 3. The Anti Power Theft Squad of the Board conducted an inspection of the premises in question on 10/4/96 and finding that there was an unauthorised connected load of 31 KW, a penal bill for Rs.2,95,310/- was issued to the petitioner on 5/5/96. It is WPC 15647/08 :2 : stated that an appeal was filed before the Deputy Chief Engineer, in which pursuant to an interim order, petitioner remitted 25% of the amount demanded. 4. During the pendency of the appeal, according to the petitioner, on 18/5/96, notice was issued calling upon them to either regularize the unauthorised connected load or remove the same. According to the petitioner, in pursuance to the said notice, unauthorised additional connected load was removed on 24/5/96. The appeal was finally disposed of by order dated 30/9/96 reducing the petitioner's bill amount to Rs.2,91,100/-. 5. That order was challenged before this Court in OP No.10068/1996. The original petition was disposed of as per Ext.P1 judgment directing the respondent to revise the bill levying penalty only on fixed charges. Respondents filed appeal against Ext.P1 as WA No.538/2004. That writ appeal was disposed of by Ext.P2 judgment of the Division Bench, where the Division Bench although upheld the competence of the Board to levy penal rate on both fixed charges and energy charges, it was directed that each case should be considered separately depending on the culpability of the consumer concerned. Division Bench also took WPC 15647/08 :3 : note of the amendment to Clause 42(d) of the Conditions of Supply of Electrical Energy framed by the Board, which was introduced w.e.f. 18/9/2002, where the rate of penalty fixed was reduced to two times as against three times fixed charges and the energy charges. 6. The matter was accordingly considered by the Board as directed by the Division Bench along with similar other issues. The Board thereafter issued Ext.P3 common order revising the penalty to twice the fixed charges and energy charges. The common order passed by the Board was again challenged before this Court in WP(C) No.3985/2007. Setting aside Ext.P3 order and directing consideration of each case on its facts, the writ petition was disposed of by Ext.P4 judgment. The petitioner was thereupon issued a notice of hearing when they say they filed Ext.P5 argument notes and its annexures. The matter was reconsidered and Ext.P6 order was passed taking the view that further concession cannot be extended to the petitioner. It is challenging Ext.P6 in the aforesaid background, the writ petition is filed. 7. The contention raised by the counsel for the petitioner WPC 15647/08 :4 : is mainly that the points raised in Ext.P5 were not considered in Ext.P6. It is also his contention that the petitioner having applied for additional connected load as early as on 3/1/96 and removed the unauthorised additional connected load on 24/5/96, ought not have been penalized by the Board. Yet another plea is that penalty if at all permissible could have been levied only on fixed charges. 8. As far as the plea that the contentions in Ext.P5 were not considered by the Board, this contention of the petitioner is belied by Ext.P6 order itself. A reading of Ext.P6 shows that only two contentions were urged at the time of hearing, which are noticed in the order itself. First one is that the petitioner had removed the machineries and that the matter was intimated to the Board. This was examined and found that the application made by the petitioner was for a different purpose. The second contention urged was that they should be extended the same benefit as was extended to the case of M/s.Surabhi Movies, Chalakkudy, vide Ext.P5(13) dated 2/2/99. This contention also has been dealt within the order. A reading of the order shows that according to the respondent, the levy of penalty on the WPC 15647/08 :5 : petitioner is in accordance with the Regulations and therefore even if a relaxation was granted in the case of another consumer, that by itself will not entitle the petitioner to claim parity in treatment. I am inclined to agree with this view. So long as the Regulations provide for such penalty, the Board could not have relaxed the regulations and any such order is clearly a wrong one and cannot be treated as a precedent to claim parity. Therefore, the first contention that the points raised in Ext.P5 were not dealt with is only to be rejected. 9. Another contention raised by the petitioner is that they had applied for additional load on 3/1/96 and removed the unauthorised additional connected load on 24/5/96. Even if it is true that they had applied for additional load as claimed by the petitioner, so long as additional connected load was not allotted, petitioner has no justification for the unauthorised connected load that was found in his premises. If so, the fact that an application was made is of no consequence. In so far as the removal of the unauthorised connected load is concerned, that was canvassed and has been found against in Ext.P6. 10. The other contention raised by the counsel for the WPC 15647/08 :6 : petitioner is that penalty could have been levied only on fixed charges. First of all, that does not seem to be purport of Clause 42(d) of the Conditions of Supply of Electrical Energy framed by the Board under Section 79(j) of the Electricity (Supply) Act 1948. Even otherwise, the competence of the Board to levy penalty on fixed charges and energy charges has been accepted in Ext.P2 judgment of the Division Bench. If so, this contention also is only to be rejected. 11. Yet another contention that the counsel for the petitioner sought was that even at this distance of time, petitioner should be given an opportunity to pursue their grievance before the Consumer Grievance Redressal Forum, constituted under Section 181 of the Electricity Act, 2003. A reading of the Kerala State Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2005 show that 'complaint' has been defined in Clause 2(f). A reading of this provision shows that a complaint relating to unauthorised use of electricity as provided under the Electricity Act stands excluded from the definition of complaint, and if so, an issue in this nature where unauthorised connected load is found, which WPC 15647/08 :7 : amount to unauthorised use of electricity, cannot be the subject matter of a complaint before the forum. If so, this prayer sought also cannot be granted. 12. A reading of Ext.P6 shows that at the relevant point of time, it was permissible for the Board to have levied thrice the fixed charges and energy charges on the petitioner under Clause 42(d) of the Conditions of Supply of Electrical Energy. Inspite of the fact that the violation in question relates back to 1996, penalty has been levied only at twice the rate giving the petitioner the benefit of amendment introduced w.e.f. 18/9/2002. Therefore, maximum possible concession has been given and there is absolutely no merit in the challenge now raised against Ext.P6. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp