IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 30094 of 2004(G) --------------------------------------- PETITIONER: ------------------- ABDUL KHADER, S/O. MOHAMMED KOYA, PATTARAKANDY HOUSE, NALLALAM P.O., KOZHIKODE, NOW RESIDING AT 45/1967, PACHALAM P.O., IRATTAKULANGARA ROAD, ERNAKULAM. BY ADVS. MR.K.K.M.SHERIF, MR.P.A.MOHAMMED ASHROF, MR.LAL K.JOSEPH, MR.A.A.ZIYAD RAHMAN, SMT.K.K.RATNALATHA, SMT.K.A.CIJILA. RESPONDENTS: ------------------------ 1. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN, TRIVANDRUM. 2. THE DEPUTY CHIEF ENGINEER (APTS), VYDHYUTHI BHAVANAM, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, K.S.E.BOARD, ELECTRICAL DIVISION, POWER HOUSE ROAD, COCHIN-18. 4. THE ASSISTANT ENGINEER, CENTRAL SECTION, ERNAKULAM. 5. THE EXECUTIVE ENGINEER, T.M.R. DIVISION KERALA STATE ELECTRICITY BOARD, PALLOM, KOTTAYAM. W.P.(C). NO.30094/2004-G: 6. THE CORPORATION OF COCHIN, REPRESENTED BY ITS COMMISSIONER, COCHIN-18. 7. THE CHIEF ELECTRICAL INSPECTOR, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM. R1 TO R5 BY ADV.MR.C.K.KARUNAKARAN, SC, KSEB, R6 BY ADV. MR.A.K.SAITHU MOHAMMED, R7 BY GOVERNMENT PLEADER MR. I.V. PRAMOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.30094/2004-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE DEED OF PARTNERSHIP DTD. 01/04/2003. EXT.P.2: COPY OF THE MAHAZER DTD. 26/09/2003. EXT.P.3: COPY OF THE INVOICE DTD. 27/09/2003. EXT.P.4: COPY OF THE APPEAL DTD. NIL. EXT.P.5: COPY OF THE BROCHURE ISSUED BY THE MANUFACTURER OF THE METER. EXT.P.6: COPY OF THE MAHAZER PREPARED BY THE R.4. DTD. 17/03/2004. EXT.P.7: COPY OF THE JUDGMENT DTD. 15/06/2004. EXT.P.8: COPY OF THE COMMUNICATION DTD. 07/07/2004. EXT.P.9: COPY OF THE ORDER DTD. 14/07/2004. EXT.P.10: COPY OF THE COMMUNICATION DTD. 15/08/2004. EXT.P.11: COPY OF THE DEMAND NOTICE DTD. 29/07/2004. EXT.P.11.A: COPY OF THE CALCULATION STATEMENT. EXT.P.12: COPY OF THE RECEIPT DTD. 03/08/2004. EXT.P.13: COPY OF THE MAHAZER DTD. 18/11/2003. EXT.P.14: COPY OF THE ORDER DTD. 11/08/2004. RESPONDENTS' EXHIBIT: EXT.R1.A: COPY OF THE REPORT NO.DB33/2004-05/DTD. 27/11/04 ISSUED BY K.S.E. BOARD TO THE EXE. ENGINEER, ELECTRICAL DIVISION, ERNAKULAM. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC,J. --------------------- W.P.(C).No.30094 OF 2004 (G) ------------------------- Dated this the 10th day of June, 2009. JUDGMENT Petitioner was running a hotel in a building taken on lease. According to the petitioner, he has been paying electricity dues on the basis of the bills that were periodically issued. On 26.9.2003, there was an inspection by the Anti Power Theft Squad of the Board and Ext.P2 mahazar was prepared. Based on Ext.P2, Ext.P3 penal bill was issued demanding an amount of Rs.5,43,922/-. petitioner challenged Ext.P3 in Ext.P4 appeal and the appeal was disposed of as per Ext.P9 order. Following Ext.P9 Ext.P11 bill was issued. Although the amount due under Ext.P9 was paid by the petitioner in full, this writ petition is filed challenging Ext.P9. 2. Contention raised by the petitioner is mainly relying on Exts.P2, P5 and P13. According to the petitioner WP(c).No.30094/04 2 the finding in the Mahazar that the meter was not recording the correct consumption is incorrect. Referring to Ext.P5, petitioner submits the meter was a sophisticated one and if at all there was any defect in the meter that would have resulted in display of error code. He is also referring to Ext.P13, a mahazar prepared by the APTS in respect of a similar meter and submits that if any attempt was made to tamper with the meter that would have been recorded in the meter itself. It is stated no such findings are there in Ext.P2 Mahazar. It is on this basis the petitioner impugns Ext.P9. 3. However, pursuant to an order of this court the meter was got tested and the text report has been produced before this court as Ext.R1(a). This report says that tampering indication is possible only when there is loss of voltage/current or injection of signals meant to distort the energy measurement inside the meter. Proceeding further it is stated that in so far as the meter in question is concerned, tampering might have been done in the circuit external to the WP(c).No.30094/04 3 meter. It is also stated that tampering of the input circuit to the meter might have taken place at the consumer's premises. 4. A reading of Ext.R1(a) give the impression that, if the tampering was external to the meter that would not have resulted in display of error code. If that be so, the petitioner cannot take advantage of Exts.P2,P5 and P13. Necessarily therefore, the challenge against Ext.P9 has to fail on this count. 5. Yet another contention that was raised by the petitioner is that in Ext.P11, issued following Ext.P9, an amount of Rs.24,508/- was demanded from him towards the electricity duty payable under the Kerala Electricity Duty Act, 1963. It is contended that the Act does not contemplate levy of duty on penalty as levied on the petitioner. This position is fully supported by the provisions of the said Act and therefore demand for duty of Rs.24,508/- raised on the petitioner as per Ext.P11 cannot be sustained. 6. Therefore, Ext.P11 issued as a consequence of WP(c).No.30094/04 4 Ext.P9 to the extent the duty is demanded from the petitioner will stand set aside. It is directed that Rs.24,508/- realized from the petitioner towards electricity duty to be adjusted in its future bill or refunded to him. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.30094/04 5