IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WA.No. 623 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.31203/2004 Dated 16/09/2009 .................... APPELLANT(S): RESPONDENTS 2-6 ----------------------------- 1. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVANAM, THIRUVANANTHAPURAM. 2. THE DEPUTY CHIEF ENGINEER, ANTI POWER THEFT SQUAD (HQ), K.S.E.B, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, APTS (SR), THIRUVANANTHAPURAM. 4. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, THYCAUD, THIRUVANANTHAPURAM. 5. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, VELLAYAMBALAM, THIRUVANANTHAPURAM. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT(S)/PETITIONER & 1ST RESPONDENT: --------------- 1. M/S.HOTEL AMIRTHA, THYCAUD, THIRUVANANTHAPURAM, REP. BY ITS DIRECTOR, S.HARI MURALI, S/O.SREEDHARA PANICKER, HINDU, AGED 43, RESIDING AT BRINDAVAN, THYCAUD, THIRUVANANTHAPURAM-695 102. 2. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.M.RAMASWAMY PILLAI FOR R1 SRI.P.M.JOSEPH FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ W.A.No. 623 OF 2010 ------------------------ Dated this the 20th day of July, 2010 JUDGMENT Abdul Rehim, J. Kerala State Electricity Board is in appeal against the Judgment of the Single Judge. The issue pertains to imposition of penalty for unauthorised connected load. Learned Single Judge, following the decision in George Joseph v.KSEB (2008(4) ILR Ker.377) observed that penalty has to be limited to the fixed charges and there shall be no levy of proportionate energy charges and that the impugned bills require revision. The authority concerned was directed to issue revised bill in the light of the finding contained in the Judgment. 2. Sri.C.K.Karunakaran, learned standing counsel for the appellant Board has drawn our attention to the judgment in W.A. No.1231/2003. It was pointed out that the question agitated in the said case and the connected cases disposed through the common judgment was only as to whether the notification dated W.A.No.623/2010 2 18/9/2002 through which amendment was brought to the relevant regulation in the “Conditions of Supply of Electrical Energy” has got retrospectivity or not. By virtue of the said notification, the “Conditions of Supply of Electrical Energy” was amended to the effect of restricting penalty for unauthorised connected load, only on the fixed charges, and not on the energy charges. Contention was that the amendment need be treated as having retrospective operation in identical cases arisen even prior to 18/9/2002. The Division Bench held that such amendment will operate only prospectively. But in that judgment it is further held that, the question as to whether maximum penalty need be imposed on all cases is a matter left to the discretion of the Board, which need be decided taking into consideration of the facts and circumstances of each and every case. it is observed that a liberal approach should be taken in cases where there is no theft or intentional misuse of energy by tampering any of the apparatus is detected. On the basis of such observation, the cases covered by the common judgment in W.A. No.1231/2003 were remanded to the billing authorities concerned, for reconsideration on the quantum of penalty to be W.A.No.623/2010 3 imposed. 3. Under the above mentioned circumstances, learned standing counsel argued that the observations contained in the impugned judgments to the effect that penalty has to be limited to the fixed charges, is erroneous. At the same time learned standing counsel conceded that the question as to what should be the quantum of penalty is a matter which requires reconsideration taking note of the fact and circumstances of each case in view of the dictum contained in the judgment in W.A. No.1231/2003. 4. We find merit in the submission of the appellant. We are convinced that by virtue of the Judgment in W.A. No.1231/2003, there is no bar in imposing penalty on energy charges also if unauthorised connected load is detected, with respect to the period prior to 18/9/2002. Therefore, we are inclined to dispose of this appeal by clarifying the same. At the same time we observe that the impugned bill need reconsideration to the extent regarding the quantum of penalty to be imposed, taking note of the facts and circumstances prevailing. Needless to say that a lenient attitude shall be W.A.No.623/2010 4 taken in cases where there is no allegation of theft or intentional misuse of energy by tampering any of the apparatus. Considering the fact that the matter pertains to a period prior to 18/9/2002, we are of the considered opinion that a decision at the level of Secretary of the Appellant Board will be desirable to put a quietus to the issue. 5. In the result, this writ appeal is allowed to the extent of modifying the directions contained in the impugned judgment. The Secretary of the Kerala State Electricity Board is directed to reconsider the impugned bill imposing penalty issued and shall take a decision with respect to the quantum of penalty to be imposed, taking note of the observations made herein above. Such decision shall be taken after affording an opportunity of hearing to the petitioner. It is made clear that the petitioner will be at liberty to raise all contentions with respect to correctness of the imposition of penalty including the challenge against the quantum, before the Secretary. Decision as directed above shall be taken at the earliest possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. W.A.No.623/2010 5 The writ appeal is allowed as above. There will be no order as to cost. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk