IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 WP(C).No. 17169 of 2010(U) -------------------------- PETITIONERS: --------------- 1. VODAFONE ESSAR CELLULAR LTD., FORMERLY KNOWN AS HUTCHISON ESSAR CELLULAR LTD. ASHISH BUILDING, COICHIN-31, REPRESENTED BY ITS SENIOR MANAGER-LEGAL, RAJESH MELETH VEETTIL, AGED 39 YEARS, S/O. RAGHAVAN, MELETH VEETIL. 2. SIBI EMMANUEL, VELLUR BUILDING, SASHI ROAD, KOTTAYAM. BY ADV. SRI.P.SATHISAN RESPONDENTS: --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, BOARD SECRETARIAT, VYDHYUTHIBHAVANAM, THIRUVANANTHAPURAM. 2. ASSISTANT ENGINEER, ELECTRICAL SECTION, KOTTAYAM(E). 3. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KOTTAYAM. 4. KERALA STATE ELECTRICITY REGULATORY COMMISSIONER REPRESENTED BY ITS CHAIRMAN, THIRUVANANTHAPURAM. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1-3 STANDING COUNSEL SRI.P.NANDAKUMAR FOR R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON,J. ------------------------------------------------- W.P.(C).NO.17169 OF 2010 ---------------------------------------- Dated this the 10th day of June, 2010 J U D G M E N T The petitioner has approached this court with the following prayers: i. Issue to writ of Certiorari or such other writ or direction calling for entire records leading up to Exhibit P7 and P7(a) and quash the same as illegal and improper. ii. Issue a writ of mandamus or such other writ of direction directing the respondents 1 to 3 to process Exhibit P1, P2 and P4 application and documents for additional load and regularization on a time bound basis at any rate within one month. iii. Issue a writ of mandamus or such other writ of direction directing respondents 1 to 3 to effect refund of amounts collected as penalty on unauthorized additional load from the petitioners as against consumer No.21621 under 2nd respondent. W.P.(C).NO.17169 OF 2010 2 iv. Declare that Regulation 51 of K.S.E.Board Terms and Conditions of Supply 2005 and Sec.126 of Electricity Act 2003 are unconstitutional and illegal to the extend the said provisions calls for penalty on unauthorized additional load. v. To issue a writ of mandamus or such of the writ or direction directing the 2nd respondent not to impose penalty on energy charges which has been already paid by petitioner and to provide all reports as to the mode of imposing penalty on fixed charges and to impose penalty after due hearing of the petitioner. vi. To award costs of the proceedings to the petitioners vii. Issue such other writs, orders or directions which this Hon'ble Court may find deem fit and proper in the circumstances of the case. 2. The learned counsel for the petitioner submits that in spite of filing necessary application to regularize the additional load, satisfying the requirements under the LT VIIA tariff, the respondents W.P.(C).NO.17169 OF 2010 3 repeatedly issuing various bills such as Ext.P7 and Ext.P7(a) fixing huge liability; which hence is sought to be intercepted by this Court. 3. The learned Standing Counsel with reference to the counter affidavit on behalf of the respondents 1 to 3 submits that idea and understanding of the petitioner is quite wrong and misconcerned. It is stated that the amount earlier demanded by authorities and deposited by the petitioner was in respect of the necessity to have installed a 'new transformer' and for providing necessary infrastructure, as the additional load exceeded 16 KW. The application preferred by the petitioner was not for regularizing the unauthorized additional load and it further, pointed out that the petitioner is to remit the necessary O.Y.E.C charges as well as cash deposit, besides submitting the 'completion report' along with the application for regularization. 4. Considering the facts and circumstances of the case, this Court finds that Ext.P7 and Ext.P7(a) bills raising penalty upon the petitioner have to be treated as provisional bills, giving an opportunity to the petitioner to raise objections. Accordingly, the petitioner is permitted to treat the said bills/proceedings as provisional bills and the petitioner shall prefer statement of objections if any, in response W.P.(C).NO.17169 OF 2010 4 to the same within two weeks; on which event, the objections shall be considered and final assessment orders shall be finalized in accordance with law, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. Till such time, the implementation of Ext.P7 and P7(a) shall be kept in abeyance. 5. With regard to the question and regularization, the petitioner shall comply with the requirements as stated in the counter affidavit filed by the respondents 1 to 3, on which event the said issue shall be finalized without any further delay and at any rate within one month thereafter. The Writ petition is disposed of. P.R.RAMACHANDRA MENON,JUDGE. pm