IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 OP.No. 7109 of 2003(U) ---------------------------------- PETITIONER(S): ------------------------ M/S. HI-TECH ELECTROTHERMICS (P) LTD., INDUSTRIAL DEVELOPMENT AREA, MUPPATHADAM P.O., ALUVA, REPRESENTED BY ITS ADMINISTRATIVE OFFICER. BY ADV. MR.J.JULIAN XAVIER MR.RAJESH THOMAS RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVT., POWER DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. SPECIAL OFFICER (REVENUE) KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 4. EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, TMR DIVISION, PALLOM, KOTTAYAM. BY ADVS. MR.P.SANTHALINGAM, SC, KSEB FOR R2TO4 MR.C.K.KARUNAKARAN, SC FOR KSEB FOR R2 TO R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.12409/2003 IN OP. NO.71 09/2003 CLOSED 15.06.2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTICE DT. 4.4.02 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER. P2:- COPY OF THE LETTER DT. 10.5.02 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P3:- COPY OF THE LETTER DT. 30.5.02 SUBMITTED BEFORE THE ASSISTANT EXECUTIVE ENGINEER, HT METER TESTING UNIT , ERNAKULAM. P4:- COPY OF THE REPORT OF REPLACEMENT OF THE M.D. METER DT. 3.6.02. P5:- COPY OF THE LETTER DT. 10.7.02 ADDRESSED TO THE PETITIONER DECLINING THE REQUEST TO CANCEL THE PENALTY. P6:- COPY OF THE CALCULATION SHEET ISSUED ALONG WITH EXT.P5. P7:- COPY OF THE APPEAL DT. 20.7.02 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P8:- COPY OF THE ORDER DT. 5.2.03. P9:- COPY OF THE DEMAND DT. 18.2.03. TRUE COPY P.A. TO JUDGE TSS V.K.MOHANAN, J. --------------------------------------------- O.P.No. 7109 of 2003 - U --------------------------------------------- Dated this the 15th day of June, 2009 J U D G M E N T The petitioner is a consumer of electrical energy under H.T.Tariff with consumer No.19/2030. He challenges Exts.P5, P6, P8 and P9 orders. Admittedly, the meters installed in the petitioner's premises were defective and the same was intimated to the consumer vide Ext.P1. In Ext.P1, it is stated that the meter was to be replaced within one month after testing at T.M.R. Division, Pallom. It is beyond dispute that as per the rules and procedures, only the Board officials can remove the meter and accordingly, the meter was removed only on 12.4.2002 even though Ext.P1 is dated 4.4.2002. According to the petitioner, after curing the defect, he handed over the same to fourth respondent on 2.5.2002 for calibration, but according to the Board, it was handed over only on 4.5.2002. However, according to the petitioner, after calibrating the repaired meter, the same was given back to the petitioner only on 29.5.2002. Hence, with a covering letter dated 30.5.2002, the petitioner again entrusted the same with the Board authorities for installation, but finally, the meter was OP NO.7109 OF 2003 :-2-: reinstalled only on 3.6.2002. In the mean while, Ext.P2 bill was issued for the electrical energy used by the petitioner for the month of April,2002 and the same was remitted in time. According to the petitioner, even in Ext.P2, by way of remark as warning was given to the petitioner that 50% extra would be charged in the next bill if the rectification of meter is not made before the issue of next bill. Ext.P2 is dated 10.5.2002 and therefore, the next bill means, bill dated at least 10.6.2002. Thus, according to the petitioner, the meter was installed on 3.6.2002 and therefore, the meter was installed within one month even from the date of Ext.P2 that is, 10.5.2002. Therefore, it is the contention of the petitioner that the Board has no authority to realise the penal charge from the petitioner. 2. The Board has filed a detailed counter affidavit justifying Exts.P5,P6,P8 and P9. According to the learned counsel for the Board, the consumer is liable to pay the penal charge if there is laches or default on his part in installing the meter after curing the defect, if once the defect is brought to his notice. Learned counsel also very much relied upon the provisions of the Kerala State Electricity Board Extra High Tension Tariff Revision Order (for short 'the Tariff Revision OP NO.7109 OF 2003 :-3-: Order) , 2002. 3. I have heard both counsel for the petitioner as well as the respondents. 4. Learned counsel for the petitioner submits that one month's time is incorporated in the Tariff Revision Order 2002 which came into force with effect from 1.10.2002 whereas Ext.P1 is dated 4.4.2002 and the meter was re-installed after curing the defect on 3.6.2002. Therefore, the provisions of Tariff Revision Order 2002 would not be applicable in the present case. Learned counsel also invited my attention to Tariff Revision Order, 2001 which was relied on by the Board while filing the counter affidavit. There is no provision in the Tariff Revision Order,2001 fixing the time limit for reinstalling the meter after curing the defect. If that be so, absolutely there is no provision enabling the Board to realise the penal charge from the consumer. In the present case, it is relevant to note that though Ext.P1 is dated 4.4.2002, the Board officials removed the defective meter only on 12.4.2002 and handed over the same to the petitioner on that date. Thereafter, the petitioner, after curing the defect, again entrusted the meter with the fourth respondent for calibrating the meters, on 4.5.2002. But the said meter was returned to the petitioner only OP NO.7109 OF 2003 :-4-: on 29.5.2002 and there is a delay of 25 days from the part of the Board authorities in returning the meter to the petitioner. Again with a covering letter dated 30.5.2002, the Board Officials were requested to install the meter, but the same was done only on 3.6.2002. There is no material or evidence to show that the petitioner was requested or intimated regarding the completion of the work relating to the calibration of the meter before 29.5.2002. Therefore, it cannot be said that there is any failure or lapse on the part of the petitioner. As there is no time limit in the Tariff Revision Order, 2001 and the meter has already been installed on 3.6.2002, there is no justification for realising the penal charge from the petitioner. 5. When Ext.P6 was issued, the petitioner approached this Court by filing O.P.No.20648 of 2002 , which was disposed of directing the Board authorities to reconsider the matter and thus, the petitioner had preferred Ext.P7 before the second respondent and he issued Ext.P8 order. As per Ext.P8, it is seen that he had asked the Special Officer (Revenue), K.S.E.B, Thiruvananthapuram to revise Ext.P6 bill and to effect proportionate reduction in the penal charges for the period from 4.5.2002 to 15.5.2002 (11 days) in the penal bill for OP NO.7109 OF 2003 :-5-: Rs.3,45,438/-. Thus, Ext.P9 was issued for an amount of Rs.1,60,814/-, which is not in accordance with rules and regulations which were in force during the relevant time. 6. In the light of the above discussion, it can be seen that the Board is not entitled to realise penal charges from the petitioner in the given facts and circumstances of the present case and therefore, Exts.P5,P6,P8 and P9 are legally and factually not sustainable and the same are liable to be quashed. In the result, Exts.P5,P6,P8 and P9 are quashed and the Original Petition is allowed. V.K.Mohanan, Judge MBS/ OP NO.7109 OF 2003 :-6-: V.K.MOHANAN, J. -------------------------------------------- O.P.NO. 7109 OF 2003 -------------------------------------------- J U D G M E N T DATED: 15-6-2009 OP NO.7109 OF 2003 :-7-: