IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 WA.No. 2232 of 2009 -------------------------------- AGAINST THE JUDGEMENT IN WPC.15647/2008 Dated 07/07/2009 .................... APPELLANT/PETITIONER IN WPC ------------------------------------------------ SAJ FLIGHT SERVICES [PVT] LTD, AIRPORT, TRIVANDRUM, REPRESENTED BY ITS DIRECTOR, REJI K.VARGHESE,. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE, SRI.MILLU DANDAPANI & SMT. JEBI MATHA HISHAM RESPONDENT/RESPONDENT IN WPC: ----------------------------------------------------- KERALA STATE ELECTRICITY BOARD, REPRESETED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, TRIVANDRUM 695 004. BY STANDING COUNSEL SRI.C.K.KARUNAKARAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R. Bannurmath, C.J. & A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 2232 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of December, 2009 JUDGMENT A.K. Basheer, J. Appellant is a private limited Company engaged in providing in-flight kitchen services in Aircrafts. Admittedly, appellant is a Low Tension consumer of the Kerala State Electricity Board. 2. It is beyond controversy that the Anti Power Theft Squad of the Board had detected unauthorised additional load of 29 KW at the premises of the appellant in a surprise inspection made on April 10, 1996. Since the sanctioned connected load of the appellant-consumer was only 28 KW, the Board issued a penal bill of Rs.2,95,310/- as provided under Clause 42(d) of the Conditions of Supply of Electrical Energy. Later, the bill amount was reduced to Rs.2,91,110/- pursuant to an order issued by the Deputy Chief Engineer, Anti Power Theft Squad (Headquarters), Thiruvananthapuram. WA No.2232 of 2009 -:2:- 3. The above bill was challenged by the appellant before this Court in OP No.6360 of 1998. The said Original petition was disposed of with a direction to the officer concerned to revise the penalty limiting it to the fixed charges. This order was challenged by the Board in WA 538 of 2004. The Division Bench disposed of the appeal holding that if there was no theft or illegal abstraction of energy or if it was a case where no damage had been caused to the installation of the Board, the imposition of maximum penalty was not warranted. Accordingly the Board decided to reduce the penalty of three times already imposed as per unamended Clause 42(d) to two times the tariff rate applicable. Accordingly an order was issued purportedly in terms of the direction issued by the Division Bench. The said order was challenged by the appellant in WP(C) No.3985/2007. The said writ petition was disposed of by this Court with a direction to the Secretary of the Board to reconsider the question of waiver of penalty after giving an opportunity of personal hearing to the appellant. 4. The Secretary of the Board heard the appellant and WA No.2232 of 2009 -:3:- reconsidered the entire matter. It was thereafter Ext.P6 order was passed by the Secretary holding that the appellant was not entitled to any further benefit than what it had already been granted. 5. The above order(EXt.P6) was challenged by the petitioner in the present writ petition before the learned Single Judge, who by the impugned judgment held that there was no warrant for any interference and accordingly dismissed the writ petition. The said judgment is under challenge in this Writ Appeal. 6. We have heard Ms.Jebi Mather Hisham, learned counsel for the appellant and Sri.C.K.Karunakaran, learned Standing Counsel for the respondent at length. 7. It is contended by Ms.Jebi that the appellant company was forced to install certain additional equipments in order to give better services to the Air passengers. Installation was done after making a formal request to the Board to sanction additional load and anticipating favourable orders. However, the Board did not sanction additional load. It was at this juncture, the Anti WA No.2232 of 2009 -:4:- Power Theft Squad conducted the inspection and detected the alleged additional consumption. As soon as the Board directed the appellant to remove the additional equipments, the direction was complied with and all those machineries/equipments were dismantled. It is thus contended by the appellant that there was absolutely no theft of energy. The Board also did not have such a case at all. It is contended by the learned counsel that the impugned order passed by the Secretary without keeping in view the above aspect is totally illegal and vitiated. It is further contended that Regulation 42(d) has been misinterpreted by the Secretary in Ext.P6 order. 8. We are unable to agree with the above contentions raised by the learned counsel for the appellant. 9. It is the admitted position that the Anti Power Theft Squad had detected additional load of 29 KW at the premises of the appellant in the course of the inspection. It is conceded by the learned counsel that the appellant has been consuming additional load, but according to her it was in anticipation of sanction from the Board. It is contended that the Board had sat WA No.2232 of 2009 -:5:- over the request for additional load without any justification. Therefore the appellant cannot be mulcted with penalty for the simple reason that it installed the additional equipments/machineries anticipating sanction of additional load. The above contention cannot be countenanced or accepted for reasons more than one. 10. It may be true that the appellant had applied for additional load in January 1996 but it had come out on record that the appellant had installed additional equipments/machineries right from October 1995 itself, even though a formal application was submitted only in January 1996. The inspection was made in April 1996 and the demand notice was issued for the period from October 95 till March 1996. Though initially a sum of Rs.2,95,310/- was demanded, it was reduced to Rs.2,91,110/- and still later the amount was further reduced after the judgment of the Division Bench. Board reduced the penalty of three times to two times of the tariff rate. In this context it may also be noticed that the penalty imposed on the appellant was as per unamended Clause 42(d) and penalty of WA No.2232 of 2009 -:6:- three time tariff had already been reduced to two times. In that view of the matter, in Ext.P6 order the Secretary of the Board rightly held that the appellant does not deserve any further concession. 11. Having carefully perused the entire materials available on record and the impugned judgment passed by the learned Single Judge, we are totally satisfied that there is no merit in any of the contentions raised by the appellant. In our view the levy of penalty imposed by the Board is perfectly legal and valid and the learned Single Judge was justified in dismissing the Writ Petition. The appeal is devoid of merit and it is accordingly dismissed. S.R. Bannurmath, Chief Justice. A.K. Basheer, Judge. ttb WA No.2232 of 2009 -:7:-