IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 OP.No. 12920 of 2000(K) ---------------------------------- PETITIONER(S): ---------------------- K.S. JOSEPH, GENERAL RUBBER PRODUCTS, KANIYARKODE, THIRUVILWAMALA, THRISSUR. BY ADV. MR.S.SREEKUMAR MR.FIROZ K.ROBIN RESPONDENT(S): ------------------------- 1. KERALA STAT ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, TRICHUR. 3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION CHELAKKARA. ADV. MR.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ S.SIRI JAGAN, J. ================== O.P.No. 12920 of 2000 ================== Dated this the 23rd day of September, 2009 J U D G M E N T The petitioner is a consumer of electricity from the Kerala State Electricity Board. On 22.1.1999, the jurisdictional Assistant Engineer inspected the premises of the petitioner. He is alleged to have found that the petitioner had committed theft of electrical energy. In view of the alleged fact that the seal of the metre was found to be broken, a mahazar was prepared. Based on that inspection, the petitioner was billed three times the normal consumption of electricity energy as penalty. The petitioner filed objections against the bill, which resulted in Ext.P1 order confirming the demand for Rs.3,23,944/- which included penalty. The petitioner filed an appeal which was disposed of pursuant to the direction in O.P.No.1018/2000, by Ext.P4 order, in which the demand was confirmed. The petitioner is challenging Exts.P1 and P4 orders in this original petition. 2. The petitioner contends that there was no theft of electrical energy as alleged by the respondents. According to him, the Assistant Engineer who is stated to have conducted the inspection was inimically disposed towards him and, therefore, the Assistant Engineer cooked up a story of theft of electrical energy. According to the petitioner, the motive of the Assistant Engineer for doing this was that the petitioner obtained favourable orders from this Court for getting immediate 2 power connection to a sister concern of the petitioner. He also submits that the said Assistant Engineer was facing a vigilance enquiry on serious allegations of corruption, pursuant to which, he was on leave for some time. The petitioner, therefore, submits that the impugned orders are liable to be set aside. 3. A counter affidavit has been filed by the respondents disputing the contentions of the petitioner. According to the respondents, the concerned engineer had conducted an inspection and drawn up a mahazar which is Ext.R1(b). They would submit that a representative of the petitioner was present in the premises, who refused to sign the mahazar. It was based on the said inspection and mahazar, theft was detected and proceedings for imposition of penalty were initiated and concluded is the contention of the respondents. 4. I have considered the rival contentions in detail. 5. On a consideration of the contentions of both sides, I find loop holes in both. Ext.R1(b) is stated to be the mahazar prepared by the Assistant Engineer. But the name of the Assistant Engineer who prepared the mahazar is not stated in Ext.R1(b). Ext.R1(b) states that one Jose, a representative of the petitioner refused to sign the mahazar, though he as present during inspection. The mahazar does not state that on detection of theft of electrical energy, either the petitioner or anybody responsible for the establishment was informed. Simply the name of One Jose Thiruviluamala is mentioned in the mahazar, and there is an endorsement to the effect that he has refused to sign the mahazar. But in Ext.P1 it is stated that Sri.Joseph, 3 a responsible representative of the consumer then available at site was present when the mahazar was prepared. This does not tally with what is stated in Ext.R1(b). Curiously, in spite of theft of energy, in Ext.P1 it is stated that at the time of inspection itself the Assistant Engineer also made the terminal connections of the C.T. metre properly and sealed the meter box. That means, except what is stated in the mahazar, the veracity of which is in doubt, there is absolutely nothing on record to show that on inspection the seal of the metre was found to be broken and there was tampering with the metre. Under Clause 43 of the then prevailing regulations relating to conditions of supply of electrical energy, it is specifically stipulated that if at any time a consumer is found to misuse energy supplied to him or to make improper use of energy or dishonestly abstract, consume or use any energy in any manner prejudicial to the Board, the Board shall, without prejudice to the rights of the Board or the provisions of the Indian Electricity Act, 1910, disconnect the supply without any notice. Admittedly, the supply to the petitioner's establishment was not disconnected at all. These circumstances tend to discredit the contentions of the respondents regarding the alleged theft of electrical energy by the petitioner. In the beginning I said that I suspect the correctness of the version of the petitioner also in the matter, since going by the pattern of consumption of electrical energy before the date of inspection, the consumption of electrical energy in the power metre was considerably less than what has been after the inspection. For example, for the month of 7/98, the consumption was 3150 units, but for 5/99 it was 10590 and it continued to be high for subsequent months also. Fur June 99 the consumption was 12010, for July 99 the consumption was 8330 units, for September 99 it was 12745 units, for October, 99 it was 11540 units and for November 99 it was 9480 units. Compared to the same, prior to the inspection the energy 4 consumption was around 3000 units only. Curiously in the counter affidavit the respondents have not chosen to deny the allegation of mala fides raised by the petitioner against the Assistant Engineer. Further the Assistant Engineer who is stated to have conducted the inspection has not chosen to preserve the evidence regarding theft at least for a reasonable time. From the above circumstances, I am inclined to hold that the evidence available is hardly sufficient to penalise the petitioner on account of the alleged theft of electrical energy. Accordingly, I am inclined to quash the impugned orders. I do so. The respondents shall issue fresh demand notices to the petitioner confining the demands for the current charges alone. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 5 S.SIRI JAGAN, J. ================== O.P.No. 12920 of 2000-K ================== J U D G M E N T 23rd September, 2009