IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 OP.No. 38324 of 2001(K) --------------------------------- PETITIONER(S): ----------------------- ASMA RUBBER PRODUCTS PRIVATE LTD., 39-B CSEZ, KAKKANAD, COCHIN 682 030, REP.BY ITS MANAGING DIRECTOR C.Y.A. RAHIM. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.S.JAMAL SMT.A.D.TREESA SMT.M.N.YAMUNA BAI RESPONDENT(S): ------------------------- 1. KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, THRIPPUNITHURA, COCHIN. 3. THE ASSISTANT EXECUTIVE ENGINEER , ELECTRICAL MAJOR SECTION, KERALA STATE ELECTRICITY BOARD, THRIKKAKKARA, COCHIN 30. 4. THE SENIOR SUPERINTENDENT, KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION, THRIKKAKKARA, COHIN 30. ADV. SRI.P.SANTHALINGAM, SC, KSEB FOR R1TOR4 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04/12/2008, ALONG WITH OP NO. 18588 OF 2002 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.38324/2001 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE BILL DT. 20.8.01 CLAIMING AN AMOUNT OF RS. 1,45,920/-. P2:- COPY OF THE ORDER DT. 30.11.01 PASSED BY THE 3RD RESPONDENT. P3:- COPY OF THE BILLS DT. 4.9.01, CLAIMING AN AMOUNT OF RS.1,68,286/- FOR THE MONTH OF AUGUST 2001. P4:- COPY OF THE BILL DT. 1.10.01 CLAIMING AN AMOUNT OF RS.1,94,829/-. FOR THE MONTH OF SEPTEMBER 2001. P5:- COPY OF THE BILL DT. 1.11.01 CLAIMING AN AMOUNT OF RS. 1,98,926/- FOR THE MONTH OF OCTOBER 2001. P6:- COPY OF THE ORDER DT. 12.12.01 PASSED BY THE 2ND RESPONDENT. /TRUE COPY/ P.A. TO JUDGE tss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ O.P. Nos.38324/2001 & 18588/2002-K ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 4th day of December, 2008. J U D G M E N T In these two cases the consumer is the same. The challenge in both the petitions are on similar grounds. The dispute is regarding the additional bill raised by the respondents for the charges due towards unauthorised connected load of 20KWS. The premises were inspected on 16/08/2001 by the Anti-Power Theft Squad, Regional Unit, Ernakulam and they detected the unauthorised connected load of 20KWS. The sanctioned load was for 80KWS whereas, the power unit procured was 100KWS. Thereafter, they issued Ext.P1 in O.P.No.38324/2001, demanding an amount of Rs.1,45,920/-. Challenging the same, the petitioner submitted a representation on 23/08/2001. He approached this Court by filing O.P.No.26517/2001. That petition was disposed of directing the third respondent, Assistant Executive Engineer to consider and pass orders on the appeal after hearing all the parties, on condition of payment of Rs.30,000/- towards demand. The third respondent disposed of the appeal by Ext.P2 and, subsequently, the petitioner was being issued bills for the month of August, September and October, 2001, namely, Exts.P3 to P5 produced in O.P.No.38324/2001. These were challenged before this Court in O.P. Nos.38324/2001 & 18588/2002-K -:2:- O.P.Nos.28761/2001, 32183/2001 and 35852/2001. Therein, the petitioner was directed to pay admitted amounts and to approach the authority concerned. The second respondent heard the petitioner and finally rejected his contentions by Ext.P6. 2. The petitioner contends that there is no unauthorised connected load and the basis on which the demand raised is not correct. The substantial contention raised before the authorities concerned is that he had not availed of any unauthorised connected load and since no extra load of energy over and above the sanctioned limit has ever been taken, he is not liable to pay the amount demanded. However, the said contention has not been considered by the authorities concerned. 3. In O.P.No.18588/2002, the challenge is against Ext.P5 dated 29/04/2002 passed by the Executive Engineer rejecting the appeal filed by the petitioner on similar grounds. It is found from Ext.P5 that the additional load was not removed or regularised. The additional machinery named as stand-by by the petitioner are connected to the system and hence can be used at any time. It was held that load is to be billed at penal rate as specified in Clause 42(d) of Conditions of Supply of Electrical Energy. O.P. Nos.38324/2001 & 18588/2002-K -:3:- 4. In the counter affidavit filed in O.P.No.38324/2001, it is stated that there was an unauthorised connected load of 20KWS for which penalty has been imposed under Clause 42(d) of the Conditions of Supply of Electrical Energy, 1990. It is further stated that if the petitioner does not require the additional load of 20KWS, he could have very well dismantled the same soon after the first bill with penalty was issued and the fact reported to the respondents so that he could have evaded from payment of penal charges. It is contended that the plea that the machinery is only a standby one cannot be accepted. 5. The question is whether the view taken by the authorities concerned in Exts.P6 and P5 in the respective original petitions is correct or not. Now going by the orders passed it is seen that there is unauthorised connected load of 20 KWS. Even though the petitioner contended that the machinery was only standby one, it was found that it was connected to the system and hence can be used at any time. Unless it is regularised the provisions of Clause 42(d) of the Conditions of Supply of Electrical Energy, 1990 are attracted. The bills issued, cannot therefore be faulted. 6. Since the authorities have not erred in arriving at the factual position, I find no reason to interfere with the orders passed by the authorities O.P. Nos.38324/2001 & 18588/2002-K -:4:- concerned. Being a finding of fact, this Court will not be justified in interfering merely on the assertion of the petitioner that there is no unauthorised load. No other illegality has been pointed out by the petitioner either in regard to the assessment or in regard to the bills paid. Clause 42(d) of the Conditions of Supply of Electrical Energy, 1990 was amended by the order dated 18/09/2002 wherein relaxation of penalty was made with regard to the unauthorised additional load. But the same was not retrospective and was challenged before this Court in various writ petitions. Ultimately, a Division Bench of this Court disposed of them in W.A.No.1231/2003 and connected cases. It was held that the amended clause is not retrospective. But at the same time, this Court was of the view that the authorities should have considered one fact whether the imposition of maximum penalty is justified. In the absence of any allegation of theft of energy or any evil intention and in the absence of any mens rea the Bench was of the view that imposition of maximum penalty has to be reconsidered. The Board was directed to reconsider the matter accordingly. I am of the view that the same method can be adopted here also. The petitioner is directed to move the Board seeking to waive the maximum penalty imposed as per the bills in question within a period of six weeks from today detailing the reasons for not imposing maximum penalty. If such a representation is filed, O.P. Nos.38324/2001 & 18588/2002-K -:5:- the Board will consider the same and pass orders within a further period of four months from the date of receipt of the representation. If the petitioner has remitted any amount towards arrears as per the interim orders passed by this Court that will be adjusted and revised bills will be issued. But the issuance of the revised bills should await the orders to be passed by the Board on the representation to be filed by the petitioner. If the petitioner is not seeking any relief from the Board as directed above, then the respondents can demand the balance amount by issuing a revised bill as already stated. In that case, the petitioner will have to remit the entire amount in four monthly instalments, starting from January 2009. The original petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms O.P. Nos.38324/2001 & 18588/2002-K -:6:- T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ O.P. Nos.38324/2001 & 18588/2002-K ~~~~~~~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T 4 t h D e c e m b e r , 2 0 0 8 .