IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 WP(C).No. 10085 of 2009(E) ---------------------------------- PETITIONER: --------------- NASRATHUL ISLAM TRUST, TIRURKAD,MALAPPURAM DISTRICT, REP.BY ITS SECRETARY,AHAMED FAROOQ.T. BY ADVS. MR.P.VIJAYA BHANU MR.P.VENUGOPAL (1086/92) MR.P.BABU KARTHIKEYAN. RESPONDENTS: ------------------- 1. SUB ENGINEER,ELECTRICAL SECTION, K.S.E.B.,ANGADIPPURAM,MALAPPURAM DISTRICT. 2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION,K.S.E.B., ANGADIPPURAM,MALAPPURAM DISTRICT. 3. THE DEPUTY CHIEF ENGIEER, ELECTRICAL CIRCLE,K.S.E.B., MANJERI,MALAPPURAM DISTRICT. 4. KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY,VYDUTHI BHAVAN, THIRUVANANTHAPURAM. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 10085 of 2009 APPENDIX PETITIOENR'S EXHIBITS EXT.P1: COPY OF SITE MAHAZAR PREPARED BY R1 DTD 18.8.2008. EXT.P2: COPY OF REPRESENTATION SUBMITTED ON BEHALF OF PETITIOENR TO THE DEPUTY CHIEF ENGINEER, APTS, VYDYUTHI BHAVANAM, THIRUVANANTHAPURAM DTD 21.08.2008. EXT.P3: COPY OF COMMUNICATION ISSUED BY SUB ENGINEER-IN- CHARGE TO THE PETITIONER DTD 26.8.2008. EXT.P4: COPY OF LETTER SENT BY PETITIONER TO R2 DTD 27.8.2008. EXT.P5: COPY OF OBJECTION SUBMITTED BY PETITIONER TO R2 DATED 29.8.2008. EXT.P6: COPY OF FINAL ORDER OF ASSESSMENT DTD 9.9.2008 ISSUED BY THE SUB ENGINEER-IN-CHARGE. EXT.P7: COPY OF PENAL BILL DTD 9.9.2008 FOR A TOTAL SUM OF RS.79,543/- ISSUED BY THE SUB ENGINEER-IN-CHARGE. EXT.P8: COPY OF APPLICATION DTD 15.9.2008 SUBMITTED BY PETITIONER TO R3. EXT.P9: COPY OF REPLY SENT BY THE ASSISTANT EXECUTIVE ENGINEER, PERINTHALMANNA TO THE PETITIOENR DTD 15.9.2008. EXT.P10: COPY OF APPEAL PREFERRED BY THE PETITIONER BEFORE R3 DATED 22.9.2008. EXT.P11: COPY OF ORDER NO.GBI/APPEAL/08-09/26/4990 DTD 16.3.2009 PASSED BY R3. TRUE COPY PA TO JUDGE. ACD ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.10085 of 2009 --------------------------------- Dated, this the 3rd day of July, 2009 J U D G M E N T Challenge in this writ petition is against Exts.P6, P7 & P11. 2. The petitioner submits that it is a charitable institution running an Industrial Training Centre. They are availing of supply with Consumer No.7231 of Angadippuram Electrical Section. On 18/08/2008, the 1st respondent inspected their premises and prepared Ext.P1 mahazar. In the mahazar he noticed availability of certain equipments and has recorded that these equipments were connected to the electrical installations. Immediately thereafter on 21/08/2008, the petitioner submitted Ext.P2 representation informing the 1st respondent that the equipments mentioned in Ext.P1 were those kept only for demonstration purposes, and not connected to the electrical installation. Ext.P2 also mentions that the correctness of their statement, that the equipments were kept only for demonstration purposes, could be verified, if an inspection is held. WP(C) No.10085/2009 -2- 3. Following Ext.P1, they were issued Ext.P3 provisional bill demanding Rs.79,543/-, which was objected to by the petitioner. Finally by Ext.P6, their objections were over-ruled and Ext.P7 final bill for an amount of Rs.79,543/- was issued. In the meanwhile, the petitioner also submitted Ext.P5 representation to the Assistant Engineer requesting for an inspection of the premises in order to prove their contention that the equipments were kept only for demonstration purposes. However, without conducting any inspection as requested by them, the provisional bill was confirmed and Ext.P7 final bill was issued. 4. The petitioner filed Ext.P10 appeal against Ext.P7 final bill, and the appeal was rejected as per Ext.P11 order. In this writ petition, while challenging Exts.P6, P7 & P11, the petitioner reiterates its plea that the equipments, the presence of which led the authorities to issue the impugned demand, were kept only for demonstration purposes. It is stated that even the air conditioners noticed in Ext.P1 were purchased for commencing Architecture Course, and that at the time when the inspection was held on 18/08/2008, the petitioner had not even got approval from the WP(C) No.10085/2009 -3- NCVT. 5. A perusal of the records in this writ petition show that although in Exts.P2, and P5 representations and also in P10 appeal, the petitioner has requested the authorities for an inspection in their premises to convince them that the equipments noticed in Ext.P1 mahazar were not connected to the electrical installation, and were kept only for demonstration purposes, it is without considering or allowing the petitioner's request and based only on the statement in Ext.P1, the mahazar prepared on 18/08/2008, that the equipments are connected to the system, that the petitioner has been penalised. In my view, it is clearly erroneous. When repeated requests are made, the respondents ought to have inspected the premises of the petitioner and ascertained the correctness of their case before the liability was fixed on them. 6. Therefore, having regard to the fact that the final order has been passed against the petitioner without inspecting their premises, I feel the proceedings are liable to be invalidated. For that reason, I dispose of the writ petition with the following directions:- WP(C) No.10085/2009 -4- That it will be open to respondents 1 & 2 to inspect the premises of the petitioner, and ascertain whether the equipments noticed in Ext.P1 mahazar were connected to the electrical installation of the petitioner as on 18/08/2008. In the inspection, if it is found that the equipments in question were connected to the electrical installation as on 18/08/2008, it will be open to respondents 1 & 2 to realise the amount demanded as per Exts.P7 & P11. On the other hand, if inspection reveals that the equipments were not connected, the respondents will issue revised proceedings demanding amount, if any, actually due from the petitioner for the equipments, which are found to have been connected to the system. 7. It is stated by the petitioner that the amount demanded as per Exts.P7 & P11 has been fully paid. Therefore, it is directed that if any amount as above is found to be due from the petitioner, it will be open to the respondents to appropriate the same from the payment already made and if any excess amount has been realised from the petitioner, the same will be adjusted towards their future bills. 8. Two other objections raised by the petitioner is WP(C) No.10085/2009 -5- regarding the tariff that is applied to them in Ext.P7. 9. It is stated that Ext.P7 has been issued applying LT VII A tariff. On the other hand, as is evident from Ext.P1 mahazar itself, the connection was given at LT VI B tariff. A reading of the mahazar would show that the submission made by the learned counsel is factually correct. If that be so, while revising the bills as above, the petitioner shall be charged only at applicable tariff. 10. Next, it was contended that the period covered by Ext.P7 is 12 months and that in terms of the provisions contained under Clause 50(5) of the Terms and Conditions of Supply, 2005, such levy can be only for a maximum period of six months. It is also stated that the assessment under Clause 50(5) could be only at the rate equal to 1½ times of tariff applicable and not twice the rate as applied in Ext.P7. This submission of the learned counsel for the petitioner is sought to be contradicted by the learned standing counsel for the Board relying on Section 126(5) & (6) of the Indian Electricity Act, 2003. A reading of Section 126(5) shows that if unauthorised use of electricity has taken place and if the period could not be ascertained, such period shall be limited for a period of WP(C) No.10085/2009 -6- 12 months immediately preceding the date of inspection. In this case, obviously, because it was not possible to fix the period, that the respondents have levied charges on the petitioner for 12 months. This is perfectly in consonance with Section 126(5) of the Act. Similarly, going by Section 126(6), the rate to be applied is twice the tariff applicable and not 1.5 times as contended by the learned counsel for the petitioner relying on the Terms and Conditions of Supply. True, there appears to be a contradiction between the Statute and the Regulations. Even if it is so, what is provided in the statute will govern the matter. Therefore, these two contentions raised by the learned counsel for the petitioner cannot be accepted. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg