IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 OP.No. 18703 of 1997(B) ----------------------- PETITIONER(S): --------------- M/S. K & T AGRO MILLS, KALADY, REPRESENTED BY ITS DIRECTOR. BY ADV. SRI.FIROZ K.ROBIN SRI.FIROZ K.ROBIN RESPONDENT(S): --------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. SPECIAL OFFICER (REVENUE), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. ADV. SRI.R.K.VENU NAYAR, SC, KSEB SRI.A.SUDHI VASUDEVAN, SC, KSEB FOR R1,2 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1,2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 18703 of 1997 ORDER ON C.M.P.NO.33488/97 IN O.P.NO.18703/97 DISMISSED. 20.10.2008 SD/ S. SIRI JAGAN, JUDGE. EXT.P1: COPY OF THE CONNECTED LOAD DETAILS PREPARED BY R1. EXT.P2: COPY OF THE PROCEEDINGS DTD 25.9.96 OF R2. EXT.P3: COPY OF THE APPEAL DATED 3.10.1996. EXT.P4: COPY OF THE REPRESENTATION DTD 3.10.1996 BEFORE R2. EXT.P5: COPY OF THE JUDGMENT DTD 15.10.96 IN O.P.16138/96. EXT.P6: COPY OF THE ORDER DATED 3.6.97 OF R1. EXT.P7: COPY OF THE ORDER DTD 4.8.97 OF R2. EXT.P8: COPY OF THE PROCEEDINGS OF R2 DTD 14.10.97. EXT.P9(a,b, c, d, e, f, g, h) series. COPY OF THE DEMANDS PURSUANT TO EXT.P8. EXT.P10: COPY OF THE B.O.(FB) NO,1292/2002 (PLG.COM 4206/01) DTD 18.9.2002. EXT.P11: COPY OF THE JUDGMENT DTD 9.11.2005 IN W.A.NO.1231/2003 AND CONNECTED CASES. EXT.P12: COPY OF THE BOARD ORDER NO.3225/98 (PLG: COM. 3639/98) DTD 20.10.1998. EXT.P13: COPY OF THE BOARD ORDER NO.291/1999 (PLG.COM. 3568/98) DATED 2.2.1999. EXT.P14: COPY OF THE JUDGMENT DTD 12.12.2005 IN W.P.(C) NO.4983/2005. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 18703 OF 1997 ---------------------------------------- Dated this the 20th day of October, 2008 JUDGMENT The petitioner is a consumer of electricity supplied by the Kerala State Electricity Board. The Anti Power Theft Squad of the Kerala State Electricity Board conducted an inspection of the petitioner's electrical installation on 15.5.1996. The sanctioned load of the petitioner's electrical installation was 85KVA. The Squad detected that the petitioner was actually using connected load of 139 KVA of which 54 KVA was unauthorised load. Proceedings were initiated for recovery of penal charges, under Regulation 42(d) of the Conditions of Supply of Electrical Energy, for the period of six months prior to 16.5.1996 and for the period from 16.5.1996 to 10.10.1996 on the ground that the unauthorised load was regularised only on 11.10.1996. Further, the penal charges were levied as applicable to High Tension Tariff. According to the petitioner, after inspection on 15.5.1996, immediately the petitioner reduced the connected load to 97 KVA and submitted a completion report on 2.7.1996 seeking O.P.No.18703/97 2 regularisation of the additional load. The Electricity Board delayed inspection of the petitioner's installation pursuant to the application for regularisation and they sanctioned additional load only on 11.10.1996 for which the petitioner cannot be penalised is the contention raised. The petitioner has got another contention that the petitioner can be billed for penal charges only at Low Tension Tariff. They would further submit that in any event, the respondents could not have realised the penal charges subsequent to 2.7.1996 when the petitioner submitted a completion report seeking regularisation of the connected load of 97KVA. However, by Exts.P2, P6, P7, P8 and P9, the petitioner has been directed to pay penal charges as per Regulation 42(d) of the Conditions of Supply of Electrical Energy for the period from 11/95 to 10.10.1996 on the High Tension Tariff for the unauthorised additional load of 54KVA, which according to the petitioner is unsustainable. The petitioner, therefore, seeks the following reliefs: i) To call for the records leading to Exts.P1, P2, P6, P7, P8 and P9 and quash the same. ii) Alternatively, direct the 1 st respondent to reconsider petitioners Ext.P3 appeal in accordance with law. O.P.No.18703/97 3 iii) To stay all further proceedings for the implementation of Ext.P8, pending disposal of the original petition”. The petitioner also relies on my decision in O.P.No.12740/1998, wherein on an admission made by the Kerala State Electricity Board on the basis of Board Order No.3225/98(Plg.Com.3639/98) dated 20.10.1998, I had held that even when a Low Tension consumer exceeds connected load beyond 100 KVA, the penal charges have to be calculated at the rate applicable to Low Tension consumers and not High Tension consumers. 2. A counter affidavit is stated to have been filed by the KSEB, a copy of which has been made available for my perusal. However, the same is not available in the files. According to them, the petitioner is liable to pay penal charges upto 10.10.1996 since it is only on 11.10.1996 the unauthorised load was regularised. They would also submit that at the relevant time, the Board order referred to above was not in force and therefore, the Electricity Board was entitled to recover penal charges as applicable to High Tension consumer since admittedly the petitioner was enjoying O.P.No.18703/97 4 connected load of more than 100KVA. On crossing 100KVA, all consumers are compulsorily liable to be billed as High Tension consumers is the contention raised. 3. I have considered the rival contentions in detail. As far as the demand upto 2.7.1996 is concerned, when the petitioner themselves applied for regularisation of unauthorised load after reducing the connected load to 97 KVA, the petitioner cannot now complain that they are not liable for penal charges. Therefore, I do not find any merit in the challenge against the demand for penal charges under Regulation 42(d) for unauthorised load enjoyed by the petitioner for the period from 11/95 to 2.7.1996. Accordingly, the demand for penal charges for the period from 1/95 to 2.7.1996 is confirmed. The demand at the rate of High Tension Tariff cannot also be faulted since the petitioner cannot take advantage of their own wrong doing. They have unauthorisedly enjoyed supply of electricity as applicable to a High Tension consumer by paying only Low Tension Tariff. That cannot be countenanced. Therefore, the petitioner is liable to be billed for penal charges also at the rate applicable O.P.No.18703/97 5 to High Tension consumers and not Low Tension consumers. The reliance of the judgment in O.P.No.12740/98 is misplaced in so far as at the relevant time, the said Board order was not in force. Simply because later the Electricity Board was magnanimous enough to let off violators allowing them to pay penal charges at Low Tension Tariff, while they were actually consuming electrical energy as a High Tension consumer that cannot be of any assistance of the petitioner in this case, in so far as that order is not retrospective. Therefore, the demand for penal charges at High Tension Tariff also cannot be faulted upto 2.7.1996. However, it is a different question altogether, after 2.7.1996. On 2.7.1996, the petitioner has filed a completion report before the Electricity Board stating that they have reduced their connected load to 97 KVA and sought regularisation of the same. That regularisation was sanctioned on 11.10.1996 also. Simply because the Electricity Board took more than three months time to complete the proceedings, I do not think that the petitioner can be penalised. After 2.7.1996, although technically the petitioner could not have used the additional connected load until the same is O.P.No.18703/97 6 sanctioned, the petitioner submitted application for regularisation of the additional load, that too only for 12 KVA, on 2.7.1996, which was ultimately sanctioned also. The delay in sanctioning the additional load is attributable only to the Board for which the petitioner cannot be penalised. Therefore, I set aside that part of the demand subsequent to 2.7.1996. The impugned orders are quashed to the above extent. Revised bill in accordance with the above directions shall be issued to the petitioner, which shall be paid by the petitioner within a period of one month from the date of receipt of demand. S. SIRI JAGAN, JUDGE Acd O.P.No.18703/97 7