IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 34135 of 2007(L) -------------------------------------- PETITIONER(S): ----------------------- T.A. ABDUL RAHIMAN, S/O.MAHIN HAJI, AGED 55 YEARS, P.W.D. CONTRACTOR, JASMIN COMPOUND, CHATTANCHAL, POST THEKKIL, KASARAGOD DISTRICT. BY ADV. SRI.K.SHRIHARI RAO, SMT.N.SHOBHA. RESPONDENT(S): -------------------------- 1. THE CHIEF ELECTRICAL INSPECTOR, GOVERNMENT OF KERALA, TRIVANDRUM. 2. THE DEPUTY CHIEF ENGINEER, K.S.E.B., KASARAGOD. 3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, CHERKALA, K.S.E.B., KASARAGOD. 4. THE VILLAGE OFFICER, THEKKIL VILLAGE, POST THEKKIL, KASARAGOD TALUK AND DISTRICT. 5. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, TRIVANDRUM. R1 & R4 BY GOVT. PLEADER MR.I.V. PRAMOD. R2, R3 & R5 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 34135/2007-L APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 31/07/2003 OF THE 1ST RESPONDENT. EXT.P2: COPY OF THE LETTER DATED 31/10/2003 OF THE 1ST RESPONDENT TO THE 2ND RESPONDENT. EXT.P3: COPY OF THE NOTICE DATED 15/02/2006 OF THE 3RD RESPONDENT. EXT.P4(a): COPY OF THE FORM NO.1 UNDER SECTION 7(a) OF THE REVENUE RECOVERY ACT ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXT.P4(b): COPY OF THE FORM NO.10 u/s. 34 OF THE REVENUE RECOVERY ACT ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C ) No. 34135 OF 2007 ......................................................................... Dated this the 28th September , 2010 J U D G M E N T The petitioner, who is a Consumer of electricity having two connections, is before this Court challenging Ext.P3 as well as Exts.P4(a) and P4(b), whereby the petitioner has been required to satisfy a total sum of Rs.81,000/- plus interest and cost in respect of the alleged unauthorised extension of electricity connection resulting in unauthorised utilisation of energy. 2. The case of the petitioner is that there was a surprise inspection of the premises of the petitioner by the concerned Assistant Executive Engineer on 22.02.2001. It was held that the petitioner had effected unauthorised additional load of 6.7 K.W, based on which, penalty to the tune of Rs.1,13,400/- was imposed, reckoning 'three times' of the actual amount payable for a minimum period of six months. Being aggrieved of the W.P.(C ) No. 34135 OF 2007 2 proceedings of the Assistant Executive Engineer, the petitioner approached the Executive Engineer and after considering the facts and circumstances, the extent of unauthorised load was reduced from 7 K.W to 4.96 K.W and in turn, reduced the penalty from Rs.1,13,400/- to Rs.81,000/-. When the petitioner approached this Court earlier against the said order passed by the Executive Engineer, he was relegated to avail the statutory remedy by approaching the second respondent. Eventhough the petitioner approached the second respondent, that did not turn to be fruitful, as the second respondent simply confirmed the order passed by the Executive Engineer. In the said circumstance, the petitioner approached the higher authorities and also the Minister for the concerned Department, pursuant to which, the issue was referred to be dealt with by the Electrical Inspector, ie., the first respondent, who passed Ext.P1 order, after hearing both the sides. As borne by Ext.P1, the finding arrived at by the first respondent is summarised in the concluding paragraph, which is extracted below: “(i) There is no allegation that the W.P.(C ) No. 34135 OF 2007 3 purpose for which the supply was extended is to be charged at a higher tariff and therefore there is no loss of revenue to the Board; (ii) the only unauthorized act on the part of the petitioner as per proviso to section 21(1) of I.E. Act is overloading by 4.96 K.W. for which a penalty of Rs.81,000/- is not justifiable. (iii) the meter readers of the Respondent failed to take corrective action by bringing the unlawful act and its consequences to the notice of the petitioner (iv) On going through the entire history of the case, it would appear that the unauthorised extensions were made not with any intention to circumvent the law, but done out of ignorance.” 3. After passing Ext.P1, it appears that a clarification order was passed by the first respondent as borne by Ext. P2 dated 31.10.2003, whereby the quantum of penalty originally fixed by the departmental authority for a period of 'six months' was brought down to 'two months'. It was only after three years of W.P.(C ) No. 34135 OF 2007 4 the above proceedings, that the third respondent issued Ext. P3 dated 15.02.2006 requiring the petitioner to satisfy a total sum of Rs.72,900/-, i.e. after deducting a sum of 8100/- towards 10% ordered to be satisfied by the second respondent when the challenge was entertained. Pursuant to Ext. P3, Ext.P4 (a) and P4(b) recovery proceedings were issued under the Revenue Recovery Act, which made the petitioner to approach this Court by filing the present Writ Petition, wherein the coercive proceedings were intercepted as per the interim order dated 19.11.2007 directing the petitioner to satisfy a sum of Rs.30,000/-, which is stated as complied with. 4. The learned Counsel for the petitioner submits that there was a specific direction issued by this Court on the very same date, i.e. 19.11.2007 requiring the respondents to ascertain as to whether Ext. P3 was issued in conformity with Exts.P1 and P2. The fact remains that no counter affidavit has been filed by the concerned respondent till date, but for the affidavit dated 12th October, 2009 filed by the first respondent. 5. The learned Standing Counsel appearing for the Board W.P.(C ) No. 34135 OF 2007 5 submits, allegedly on instructions, that the proceedings pursued by the concerned respondent are preferfectly within the four walls of law and not assailable under any circumstance. It is also stated that the orders issued by the first respondent are not binding upon the Board or other authorities of the Board; but the concerned respondent has not chosen to file any affidavit or statement with reference to the specific order passed by this Court on 19.11.2007 as mentioned herein before. Yet another aspect to be noted is that, as per Ext.P1 order passed by the first respondnet, there is a specific finding that the penalty imposed by the Executive Engineer to the tune of Rs.81,000/- is not justifiable (point No.2) and further that the materials on record revealed that the alleged unauthorised extension was made not to circumvene the law, but merely because of ignorance. 6. This Court does not propose to go into the merits of the case, but for observing that the above finding and reasoning have not been chosen to be challenged from the part of the respondents in any manner. On the other hand, the third W.P.(C ) No. 34135 OF 2007 6 respondent has referred to Ext.P1 order dated 31.07.2003 and the same has been relied on, while issuing Ext.P3 fixing liability to the tune of Rs. 81,000/-. Having placed reliance on Ext.P1 in Ext.P3 (Sl.No.2), the third respondent is not justified in taking a 'U' turn at this point of time and to say that the order passed by the first respondent is not applicable or binding upon the Board. Then the only remaining question is whether Ext. P1 order, as sought to be relied on in Ext.P3, could have been taken as it is. Admittedly, Ext. P1 order was subsequently modified or clarified by the first respondent as per Ext. P2 order dated 31.10.2003, whereby it has been held that the penalty in respect of the alleged 'unauthorised load' would stand limited to 'two months' and directed that the invoice should be revised accordingly. When the third respondent sought to rely on Ext.P1 for having issued Ext. P3, why Ext. P2 order was passed subsequently by the first respondent, clarifying/modifying Ext. P1 is not discernible from the materials on record, more so, since no counter affidavit has been chosen to be filed by the concerned respondents . W.P.(C ) No. 34135 OF 2007 7 7. In the above circumstance, this Court finds that the liability now sought to be fixed upon the shoulders of the petitioner pursuant to Ext.P1 shall stand confined to the modified order passed by the first respondent as per Ext. P2. As such, Exts. P3, P4(a) and P4(b) cannot have any valid existence in the eye of law. Accordingly they are hereby set aside. 8. The learned Counsel for the petitioner submits that if the liability is re-worked as directed in Ext. P2, it can only be to an extent of Rs.27,000/- and since the petitioner has already satisfied a sum of Rs.30000/- pursuant to the interim order dated 19.11.2007, no further amount is liable to be paid by the petitioner. 9. In the above circumstance, it is hereby declared that the respondent will not be justified in proceeding with further steps to realise any amount from the petitioner pursuant to Ext. P1 and that such steps for realisation of amount can be pursued only if any further amount is liable to be paid based on Ext. P2 clarificatory order, which has become final. If there is any execess amout, the same shall be set off againt the future W.P.(C ) No. 34135 OF 2007 8 liability of the petitioner. The Writ Petition is allowed to the above extent. No cost. P.R. RAMACHANDRA MENON, JUDGE. lk