IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 AS.No. 199 of 1997() -------------------- OS.167/1994 of SUB COURT, QUILANDY .................... APPELLANT(S): ------------------------- 1. THE ASSISTANT EXECUTIVE ENGINEER, KSE BOARD, ELECTRICAL MAJOR SECTION, KOYILANDY SOUTH, POOKKAD, P.O CHEMMANCHERY. 2. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHAIRMAN, THIRUVANANTHAPURAM. BY ADV. SRI.P.V.KUNHIKRISHNAN SRI.C.RAGHAVAN, SC, KSEB SRI.A.SUDHI VASUDEVAN, SC, KSEB RESPONDENT/ PLAINTIFF ----------------------------------------- P.MADHAVAN NAIR, S/O.LATE V.K.KRISHNAN NAIR, PICHAKACHERY HOUSE, CHEMANCHERY AMSOM, THUVAKKODE DESOM, KOYILANDI TALUK. ADV. SRI.THOMAS ANTONY KALLANPALLY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “CR” V. RAMKUMAR, J. = = = = = = = = = = = = = A.S. No.199 of 1997 = = = = = = = = = = = = = = Dated this the 10th day of June, 2009 JUDGMENT Defendants 1 and 2 (namely Assistant Executive Engineer, Kerala State Electricity Board, Electrical Major Section, Koyilandi and the Kerala State Electricity Board, Thiruvananthapuram) in O.S.No.167 of 1994 on the file of the Subordinate Judges Court, Koyilandi are the appellants in this appeal. The said suit, instituted by the respondent herein, was one for a declaration that Ext.A6 demand notice dated 25.8.1994 is null and void and not legally enforcible and for a perpetual injunction restraining the defendants from enforcing payment under the said demand notice. 2. The fact that the plaintiff installed a 1 HP electric motor with pump set in his house was admitted. The main contention raised by the plaintiff was that by installing the pump set he was not committing breach of any of the provisions of law or the Regulations issued by the Kerala A.S.No.199 of 1997 2 Electricity Board (KSEB for short). The KSEB on the other hand contended that by installing the pump set, the plaintiff was increasing the sanctioned connected load of 400 watts thereby attracting the penalty under Clause 42(d) of the Regulations Relating to Conditions of Supply of Electrical Energy (“ Regulations” for short) issued by the KSEB in exercise of the powers conferred on it by Section 79(j) of the Electricity (Supply) Act, 1948. 3. The learned Subordinate Judge was of the view that since the pump set installed by the plaintiff, although without permission, was used for domestic purpose only, Clause 42(d) of the Regulations was not attracted. According to the learned Subordinate Judge, the said provision would be attracted only if the consumer exceeded the contracted load for a purpose different from the specific purpose contemplated under the contract for that tarif. Accordingly, the suit was decreed granting the declaration as well as injunction prayed for. Hence this appeal. 4. After hearing both sides, I do not think that the view A.S.No.199 of 1997 3 taken by the court below is sustainable. The specific case of the defendants is that by installing the 1 HP pump-set without the permission of the KSEB and without notice under Clause 24 of the Regulations, the installation itself was unauthorised. According to the KSEB, the authorised load for the plaintiff's premises was only 400 watts. 5. If Clause 42(d) of the Regulations is attracted, then there is no dispute that the plaintiff will be treated as having committed misuse of energy and liable to be billed at three times the rate applicable to the respective tariff for the previous six months from the date of detection of the misuse as provided under Clause 42(d) of the Regulations. Admittedly, the KSEB has billed the plaintiff at the above rate for a period of two years which is not sanctioned by the said Clause 42(d). 6. Ext.B12 is a true copy of the relevant page of the Consumer's Personal Deposit Register pertaining to the plaintiff . It shows that a single phase connection to the plaintiff's house was given on 21.5.1977 with Consumer A.S.No.199 of 1997 4 No.902 under Tariff I(a). It also shows that connected load was 400 watts. The said load of 400 watts was fixed after taking into account 6 light points and 2 plug points only. Clause 24 of the Regulations reads as follows:- “ Should the consumer, at any time after the supply of energy has been commenced, desire to increase the number of wattage or capacity of lights, fans or motors etc., on his premises on a temporary or permanent basis or in any way alter the position of his wiring therein, notice thereof must be sent by the consumer in writing to the Board whose representative will call and inspect the alteration and, if necessary change meters and fuses and alter the service line. For this purpose if a single phase service line is to be converted to three phase or change of size of conductor to meet increased maximum demand is necessitated, the work shall be done at the cost of consumer on deposit work basis. A test report signed by a licensed wiring contractor should also be produced by the consumer along with his application for extension and alteration. The consumer should remit the testing fee. Failure to give such notice A.S.No.199 of 1997 5 may derange the supply system and will render the supply liable to be summarily discontinued. During such time as alterations, additions or repairs are being executed, the supply to the circuit, which is being altered, added to or repaired, must be entirely disconnected and it shall remain disconnected until the alterations, additions or repairs have been tested and passed by the Board. In the event of any unauthorised extensions, alterations or repairs resulting in any damage to the system of the Board, the consumer will have to pay the Board all expenses on account of such damages also. Note:- i. Supply taken from the existing plug point/mains to connect up any appliance installed within the same premises, shall be treated as additional load irrespective of length of the connecting lead, if the appliances installed are for bonafide purpose. ii. Supply taken from an existing plug point/mains to any appliance situated outside the premises will be treated as an extension. Such extension should be taken A.S.No.199 of 1997 6 only for temporary purposes. iii. Supply taken from an existing plug point for temporary film shows in Government recognised Educational Institutions is exempted from payment of testing fee, even if it will be an extension vide Note (i) and (ii) above. However, prior intimation should be given to the local K.S.E.Board office about this extension. iv. If the installation remains disconnected for a period exceeding one year the same shall be reconnected to the distribution mains only after conducting the tests prescribed above.” 7. Thus, if the consumer at any time after supply of energy has been commenced desires to increase the load on his premises either on a temporary basis or on a permanent basis, he has to give a notice in writing to the KSEB. As already noticed, at the time of giving connection to the plaintiff and fixing the connected load at 400 watts, 6 light points & 2 plug points alone were sanctioned. If so, before installing a 1 HP motor and pump-set, the plaintiff was bound A.S.No.199 of 1997 7 to give notice under Clause 24 of the Regulations. Sub Clause (d) of Clause 42 of the Regulations reads as follows:- “If the consumer exceeds the contracted load without prior permission of the Board or energy supplied for a specific purpose under a particular tariff is used without the Board's knowledge and approval for a different purpose not contemplated in the contract for supply and for which higher tariff is applicable coming under misuse of energy within the meaning of the I.E.Act 1910. Misuse of energy will be billed at three times the rate applicable to the respective tariff for the previous six months from the date of detection of misuse unless there are convincing reasons for adopting different periods and supply disconnected without notice. The imposition of this higher rate will not relieve the consumer from any penalties imposed by law.” 8. This was a case in which the above clause was squarely attracted since the plaintiff, who is the consumer, had exceeded the contracted load without obtaining permission of the Board under Clause 24. He thereby A.S.No.199 of 1997 8 became liable to be billed at three times the rate applicable to the respective tariff for the previous six months from the date of detection. Merely because the factum of installation of the pump-set came to the notice of the Board from the plaintiff himself, the same does not absolve the plaintiff from his liability to pay the penalty as provided under Clause 42(d) of the Regulations. The argument advanced on the side of the plaintiff that as long as he uses the pump-set only for domestic purposes and consumes electricity within Slab III (upto 30 units per month) which was allotted to him cannot be sustained. The slab III in which the plaintiff was put all these years was changed to Slab VIII (upto 100 units per month) in the year 1994 consequent on noting the increased consumption of power beyond Slab III after the unauthorised installation of the motor and pump set. 9. The judgment and decree passed by the court below overlooking the above vital aspects of the matter, are set aside and the suit will stand dismissed. It is, however, made clear that since under Ext.A6 invoice the defendants have A.S.No.199 of 1997 9 billed the plaintiff for a period of 2 years as against the maximum period of six months permissible under Clause 42 (d) above, the said bill cannot be enforced without rectifying the mistake thereunder. Hence, the defendants will be entitled to enforce payment against the plaintiff only after issuing a revised bill in terms of Clause 42(d) of the Regulations calculating the dues for a period of six months only. It goes without saying that the defendants will be entitled to charge interest on the amounts in the revised bill to be issued hereinafter at the rates specified under sub- clause (e) of Clause 32 of the Regulations, but only from the date of the revised bill till realisation. In the result this appeal is allowed to the limited extent as indicated above. No costs. Dated this the 10 th day of June, 2009. V. RAMKUMAR, JUDGE sj