IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 WP(C).No. 36798 of 2009(T) -------------------------- PETITIONER: --------------- E.K.MOHAMMED IQBAL, S/O. BEERANKUTTY, PATTIYATTU HOUSE, IRIMBUCHOLA, POST A.R.NAGAR, MALAPPURAM DISTRICT. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENTS: --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, K.S.E.B., TIRURANGADI. 3. DEPUTY CHIEF ENGINEER, ANTI-POWER THEFT SQUAD, THIRUVANANTHAPURAM. BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B SRI.C.K.KARUNAKARAN, SC FOR KSEB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 36798 OF 2009 ......................................................................... Dated this the 17th February, 2010 J U D G M E N T The petitioner was running an SSI unit under the name and style as 'Hindustan Rubbers' . In the course of operation of the above unit, the petitioner was required to satisfy huge amounts by way of penalty, because of the incriminating circumstances noted; which step was challenged by the petitioner in appeal. 2. During the pendency of the appeal, the petitioner was required to pay 25% of the liability. The petitioner approached this Court by filing W.P.(C) No.39067 of 2003 and as a condition to avail the fruits of the interim order of stay, the petitioners was required to pay a further sum of Rs. One lakh, which is stated as satisfied by the petitioner. Finally, as per Ext.P2 judgment, a learned Single Judge of this Court, placing reliance on the dictum laid down by the Division Bench in W.A.No.1231 of 2003, held that the penalty in respect of the unauthorized W.P.(C) No. 36798 OF 2009 2 connected load had to be limited to the 'fixed charge portion' and that there could not be any penalty by way of proportionate energy charges. Accordingly, the impugned demands were quashed, making it clear that the liability of the petitioner would only be for the fixed charge portion. The respondents were directed to issue revised demand, giving credit to the amount already stated as remitted by the petitioner. 3. The specific case projected by the petitioner in this Writ Petition is that, as on the date, a total sum of Rs.3,86,923/- has been paid by the petitioner in respect of the cause of action projected herein; whereas the actual fixed charge payable by him is only Rs.8350/- and that the balance is liable to be refunded. It was in the said circumstances, the petitioner preferred Ext.P5 representation, which however was not acted upon, whereupon, the petitioner was constrained to approach this Court by filing W.P.(C) No.27108 of 2009, which was disposed of as per Ext.P6 judgment, directing the respondents to consider the representation and to pass appropriate orders on W.P.(C) No. 36798 OF 2009 3 merits. It is stated that, pursuant to Ext.P6 verdict, the matter was considered and Ext.P7 was passed on 31.10.2009 and the claim for refund has been rejected, simply holding that the judgment dated 23.11.2007 passed by this Court in W.P.(C) No.39067 of 2003 was “proposed to be challenged” by filing Writ Appeal and that necessary instructions had been given to the Standing Counsel in this regard. It is stated in Ext.P7 that implementation of Ext.P2 judgment would be subject to 'final judgment' to be obtained in the appeal, so proposed to be filed . 4. Even a cursory reading of Ext.P7 itself is sufficient to hold that the directions given by this Court vide Exts.P2 and P6 judgments have been simply thrown to wind by the concerned respondents and that it is a matter to be looked into as to whether any contumacious action is there on the part of the respondents, so as to invite other appropriate proceedings. 5. In any view of the matter, it cannot but be held that there is a positive direction given by this Court, declaring the extent of liability of the petitioner, as borne by Ext.P6, i.e., to W.P.(C) No. 36798 OF 2009 4 consider Ext.P5 representation, which ought to have been honoured by the respondents in the right spirit and perspective, giving effect to Ext. P2 judgment, unless the respondents have a case that the verdict passed by this Court vide Ext. P2 judgment has been subjected to challenge, obtaining appropriate interim orders. Even otherwise, it is relevant to note that there is no case for the respondents that they have already challenged the verdict passed by the Division Bench in W.A.No.1231 of 2003 declaring the law, by approaching the Supreme Court. Obviously, it was placing reliance on the said decision, that Ext.P2 verdict was passed by the learned single Judge. Since there is no case either in Ext.P7 or in the counter affidavit that the verdict passed by the Division Bench has been subjected to challenge, the proposed step to challenge Ext.P2 is rather of no consequence . 6. In the above facts and circumstance, Ext.P7 is set aside and the respondents are directed to refund the amount actually due to the petitioner, taking note of the amounts, if any due from the petitioner to the respondent Board . The balance payable as above shall be disbursed to the petitioner positively W.P.(C) No. 36798 OF 2009 5 within two weeks from the date of receipt of a copy of the judgment, lest it should attract interest payable @ 8% per annum; besides other consequences. It will be open to the petitioner to challenge the correctness of the figures, if aggrieved. The Writ Petition is allowed as above. No cost. P.R. RAMACHANDRA MENON, JUDGE. lk