IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 WP(C).No. 28182 of 2004(E) -------------------------- PETITIONER: ------------ M/S.MAYURA PARK, CONSUMER NO.8997, KACHERIPADI, KOCHI 18, REP. BY ITS MANAGING PARTNER, ANTO DAVIS. BY ADV. SRI.C.C.THOMAS (SR.) RESPONDENTS: ------------- 1. THE DEPUTY CHIEF ENGINEER (APTS), (HQ), THIRUVNANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.BOARD, CENTRAL, ERNAKULAM. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF BILL DT 2.8.02. P2 COPY OF LETTER DT 2.8.02. P3 COPY OF MAHAZAR DT 11.7.02. P4 COPY OF PROCEEDINGS DT 18.9.92. P5 COPY OF APPEAL DT 11.8.02. P6 COPY OF ORDER DT 18.9.02. P7 COPY OF JUDGMENT DT 6.2.04. P8 COPY OF ORDER DT 8.9.04. P9 COPY OF ARGUMENT NOTE DT 11.5.04. P10 COPY OF JUDGEMNT DT 11.10.06 P11 COPY OF CIRCULAR DT 4.11.06. P12 COPY OF JUDGMENT DT 7.7.06. RESPONDENTS' EXHIBITS: R1(A) COPY OF MAHAZAR DT 7.6.06. /TRUE COPY/ P.A.TO JUDGE K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 28182 OF 2004 E ```````````````````````````````````````````````````` Dated this the 7th day of August, 2008 J U D G M E N T Petitioner challenges Exts.P1, P2 and P8 and seeks a declaration that the assessment of energy charges and the penalty imposed as per Exts.P1 and P2 are illegal. Case of the petitioner in brief is as follows. Petitioner was conducting a hotel. In the result of an inspection conducted on 11.7.2002 in the hotel, Ext.P1 bill was issued against the petitioner on the allegation that there is an additional connected load of 41 KW. Exts.P2 and P3 are the letter and mahazar. According to the petitioner, sanction has been obtained. Ext.P4 is produced in this regard. The petitioner preferred Ext.P5 appeal. Ext.P8 is the order passed in the appeal. Accordingly, the petitioner challenges Exts.P1, P2 and P8. Counter affidavit has been filed to which the petitioner has filed reply affidavit. 2. I heard learned counsel for the petitioner and learned standing counsel. Two issues are raised in this writ petition. Firstly, it is pointed out that having regard to Ext.P10 judgment, WPC.28182/04 : 2 : now the petitioner has been called upon to pay penalty on the fixed charges and the proportionate current charges. It is also contended that noting that one of the phases was not working, the petitioner was called upon to pay the amount calculated with reference to the consumption in the other phases. Learned counsel for the petitioner would contend that with reference to Ext.P10 judgment, it is not open to the Board to levy penalty on the current charges. He further contends that with reference to Ext.P12 judgment of a Division Bench of this Court, the authority was not justified in calling upon the petitioner to pay the charges on the basis that one of the phases was not functioning. I feel that the issue relating to the levy of penalty of current charges should receive the attention of the Board in the light of the judgment in WA.1231/03. As far as the question relating to levying charges on the petitioner on the basis that one of the phases was not functioning, I am of the view that the issue is covered in favour of the petitioner by Ext.P12 judgment of the Division Bench. I would think that having regard to the case set up by the respondent in the counter affidavit and in the mahazar, it WPC.28182/04 : 3 : may not be open to the petitioner to derive support from the decisions reported in Bombay Electricity Supply & Transport Undertaking Vs. Laffans (India) (P) Ltd. and another [2005 (4) SCC 327], M.P.E.B. Jabalpur Vs. Harsh Wood Products [1996 (4) SCC 522] and I.M.D. Alloys Vs. Bihar State Electricity Board [2003 (5) SCC 226]. Accordingly, writ petition is disposed of as follows. Ext.P8 is quashed. There will be a direction to the Secretary, KSEB to look into the question regarding the levy of penalty in the light of the decision in WA.1231/03. It is also made clear that the petitioner will not be called upon to pay the amount on account of the phase found not functioning in the mahazar. Sd/- (K.M.JOSEPH, JUDGE) aks