IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 27179 of 2008(I) -------------------------- PETITIONER(S): --------------- ANI.S,S/O. R.SUKUMARAN, ALANIS BEAUTY PARLOUR,KANATHARA SHOPPING COMPLEX RAMANCHIRA, THIRUVALLA. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SRI.B.BIPIN RESPONDENT(S): --------------- 1. THE KERALA STATE ELECTRICITY BOARD VYDYUTHI BHAVAN, PATTAM.P.O.,THIRUVANANTHAPURAM REP. BY ITS SECRETARY. 2. THE DEPUTY CHIEF ENGINEER ELECTRICAL CIRCLE,PATHANAMTHITTA. 3. THE ASSESSING OFFICER (ASSISTANT ENGINEER) ELECTRICAL SECTION, THIRUVALLA. 4. THE ASSISTANT EXECUTIVE ENGINEER APTS POOVANTHURAUTHU, KOTTAYAM. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON 18/06/2009 DELIVERED THE FOLLOWING: WP(C)No.27179/2008 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1(a): TRUE COPY OF PROVISIONAL ASSESSMENT OF THE PENALIZED BILL DATED 22.11.2007 FOR CONSUMER NO.11562.. EXHIBIT P1(b): TRUE COPY OF PROVISIONAL ASSESSMENT OF THE PENALIZED BILL DTD 22.11.2007 FOR CONSUMER NO.11537. EXHIBIT P2(a): TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DTD 13.5.2008 IN CONSUMER NOS.11562. EXHIBIT P2(b): TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DTD 13.5.2008 IN CONSUMER NOS.11537. EXHIBIT P3: TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DTD.19.08.2008. EXHIBIT P4: TRUE COPY OF THE OBJECTION FILED BEFORE THE 3RD RESPONDENT AGAINST THE PROVISIONAL ASSESSMENT ORDER WITH RESPECT TO CONSUMER NO.46170 11537 DTD 1.12.2007. EXHIBIT P5: TRUE COPY OF THE OBJECTION FILED BEFORE THE 3RD RESPONDENT AGAINST THE PROVISIONAL ASSESSMENT ORDER WITH RESPECT TO CONSUMER NO.46170 11562 DATED 1.12.2007. RESPONDENTS' ANNEXURES: ANNEXURE R1(a): PHOTOCOPY OF THE SITE MAHAZAR PREPARED BY THE APTS. ANNEXURE R1(b): PHOTOCOPY OF THE WRITTEN STATEMENT OF THE PETITIONER. ANNEXURE R1(c): PHOTOCOPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. ANNEXURE R1(d): PHOTOCOPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. /TRUE COPY/ P.A.TO JUDGE vgd S.SIRI JAGAN ----------------------------- WP(C) No.27179 of 2008 ----------------------------- Dated this the 18th day of June, 2009 JUDGMENT The petitioner is running two beauty parlours to which there are separate electricity connections. On 21.11.2007, the ATPS, Poovanthuruthu led by the 4th respondent conducted inspection in the shops of the petitioner and detected theft of electricity by tampering with the energy meters. Exts.P1(a) & P1(b) provisional assessment bills for Rs. 1,24,678/- and Rs. 1,16,527/- were issued to the petitioner in respect of two connections. The petitioner's objections were considered and rejected. The petitioner paid 50% of the amounts assessed as electricity charges and penal charges and objected to the bills before the 3rd respondent. However by Exts.P2 & P2(b) orders, the 3rd respondent confirmed Ext.P1. The petitioner filed an appeal before the 2nd respondent, who is the statutory Appellate Authority, who affirmed the bills. 2. The petitioner's contention is that Exts.P1(a) & P1(b) is bad in law, since it is issued against the express provisions of Sub rules 2(i) and 2(ii) of Rule 3 of the Kerala Electricity (Service of provisional assessment order) Rules, 2005 which stipulate that provisional bill shall contain the quantity of unauthorized use of electrical energy and the tariff applicable to W.P.(C) No.27179 of 2008 2 it, which are not given in Exts. P1(a) & P1(b). The petitioner submits that in Ext.P3 order, the 2nd respondent came to the wrong conclusion that sub rules 2(i) & 2(ii) of Rule 3 are applicable only to unauthorized use of electricity and not to theft of energy. The petitioner's contention is that the respondents seek lost sight of section 126 of the Electricity Act which says that an unauthorized use of electricity includes use of electricity through tampered meter and therefore the provisional order should contain the particulars mentioned in sub rule 2 of Rule 3 of the Rules. The petitioner therefore seeks the following reliefs: “ i) Issue a writ of certiorari or any appropriate writ or Order, call for the records leading to Ext P1 (a), Ext P1(b), Ext P2(a), Ext. P2(b) and Ext.P3 scrutinize and quash the same. ii) Issue a writ of mandamus or any other appropriate Writ or Order directing the respondents to keep in abeyance all further proceedings pursuant to Ext P1(a), Ext P1(b), Ext P2(a), Ext P2(b) and Ext P3 orders final orders are passed in the appeal preferred by the petitioner; and iii) Allow this writ petition with costs.” 3. In the statement filed by the Standing Counsel of The Kerala State Electricity Board it is stated that the petitioner did not filed any objection to the provisional assessment and W.P.(C) No.27179 of 2008 3 only filed an appeal. It is further submitted that before the authorities the petitioner never raised any contention regarding sub rule 2 of Rule 3 not being complied with. In all the petitions filed before the 2nd and 3rd respondents the petitioner only challenged the procedure for inspection, calculation of consumption, connected load and period of assessment. It is further stated that along with Exts.P1(a) and P1(b) provisional bills, the petitioner was served with calculation statements also on 22.11.2007. It is further submitted that these calculation therein were explained to the petitioner on 22.03.2008 at the time of hearing. Therefore according to the respondents, the allegations of the petitioner are totally against facts. Therefore the respondents' contention is that petitioner is not entitled to the reliefs prayed for in the writ petition. 4. I have considered the rival contentions in detail. The petitioner has not chosen to file a reply affidavit, controverting the averments in the statement filed on behalf of the respondents. From Exts.P1(a) and P1(b) bills, I find that the tariff is specifically mentioned therein, which is LT VII (A). The W.P.(C) No.27179 of 2008 4 energy charge is also mentioned as well as fixed charge. Of course the quantum of energy of the bill is not mentioned. But the respondents specifically avers that Exts.P1(a) & P1(b) were accompanied by calculation statements and the calculations therein were explained to the petitioner. Insofar as there is no denial of those averments. I cannot countenance the contention of the petitioner on the basis of 3 sub rules 2(i) and 2(ii) of Rule 3 of the Rules. Even otherwise I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner who has been found guilty of theft of electrical energy on the basis of such purely technical contentions. Therefore I do not find any merit in the writ petition. Accordingly this writ petition is dismissed. S.SIRI JAGAN JUDGE vgd