IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 OP.No. 24991 of 1998(A) ----------------------- PETITIONER(S): ------------------ E.A.HASSAN, S/O.PAKKER, MASEEDA MANZIL, MANANTHAVADY P.O, WAYANAD DT. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): ------------------- 1. THE DEPUTY CHIEF ENGINEER (APTS), KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KERALA STATE ELECTRICITY BOARD, MANANTHAVADY, WAYANAD DT. 3. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, MANANTHAVADY, WAYANAD DT. 4. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. ADV. SRI.P.SANTHALINGAM, SC, KSEB SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.24991/98 ORDER IN CMP NO.1042/1999 IN CMP NO.43893/98 IN OP NO.24991/98 AND CMP NO.43893/1998 IN OP NO.24991/1998. DISMISSED 12/06/2009 SD/-ANTONY DOMINIC, JUDGE APPENDIX PETITIONER'S EXHIBITS EXT.P1: A TRUE COPY OF THE PREMISES METER CARD ISSUED IN RESPECT OF CONSUMER NO.2809. EXT.P2: A TRUE COPY OF THE PREMISES METER CARD ISSUED IN RESPECT OF CONSUMER NO.2374. EXT.P3: A TRUE COPY OF THE DEMAND NOTICE ISSUED FOR THE MONTH OF APRIL 1998. EXT.P4: A TRUE COPY OF THE SITE MAHAZAR PREAPARED BY THE ASSISTANT ENGINEER ELECTRICAL MAJOR SECTION MANANTHAVADY. EXT.P5: A TRUE COPY OF THE DEMAND NOTICE ISSUED TO THE PETITIOENR IN RESPECT OF CONSUMER NO.2809 DT 30.4.1998. EXT.P6: TRUE COPY OF THE COMPLAINT PRAYING FOR REFERING THE MATTER FOR ADJUDICATION OF THE ELECTRICAL INSPECTOR. EXT.P7: A TRUE COPY FO THE JUDGMENT OF THIS HON'BLE COURT IN OP NO.8974/98 DT 27.5.98. EXT.P8: TRUE COPY OF THE ORDER IN APPEAL BEFORE THE DEPUTY CHIEF ENGINEER, APTS, THIRUVANANTHAPURAM, DT 13.11.1998. EXT.P9: //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ O.P. NO. 24991 OF 1998 (A) ===================== Dated this the 12th day of June, 2009 J U D G M E N T Petitioner is the owner of a hotel availing of supply of electrical energy and his Consumer Nos. are 2374 and 2809. This original petition concerns Consumer No.2809. 2. There was an inspection in his premises on 18/4/98 and Ext.P4 is the mahazar prepared. The mahazar shows that tampering of the seals of the meter was noticed, but however there is no finding that as a result of this, the recording of the meter was reduced or that there was pilferage of electrical energy. However, by Ext.P5, a penal bill for Rs.1,86,254/- was issued on the petitioner. That was challenged before this Court in O.P No.8974/98 and this court granted stay of recovery on condition that the petitioner remits Rs.50,000/- and also directed the petitioner to prefer an appeal against Ext.P5. It is stated that the condition was complied with and accordingly, the appeal was filed before the 1st respondent. 1st respondent considered the appeal and rejected the same by Ext.P8. It is thereupon the Original Petition is filed. OP No.24991/98 :2 : 3. In this original petition also, an order of stay was granted on condition that the petitioner should remit Rs.50,000/- and according to the petitioner that also has been complied with. Therefore, according to the petitioner, out of the total liability of Rs.1,86,254/-, he has already paid Rs.1 lakh in two instalments as above. 4. Petitioner impugns Exts.P5 and P8. According to the petitioner, though tampering of the seals of the meter has been noticed in Ext.P4 mahazar, there is absolutely no finding in the mahazar or elsewhere that the same has affected the recording of the energy consumed or that there was any indication that the energy was being pilfered. Petitioner's case is that in 1995, there was a fire incident in the hotel and the meter was burned out. It is stated that the meter was replaced and that the replaced meter did not have any seals. On this basis, the very finding in Ext.P4 that the seals were tampered is disputed by the petitioner. 5. Irrespective of the factual question as to whether the petitioner has tampered with the seals of the meter, a reading of Ext.P4 mahazar and also Ext.P8 shows that while preparing the mahazar, the respondents did not notice any defect in the meter OP No.24991/98 :3 : or any pilferage of energy. If that be so, the question is to whether by the mere fact that the seals were found to be tampered with, the petitioner can be penalised in the manner as done in Ext.P5. No rule or other regulation framed by the Board was shown to me justifying levy of penalty in such circumstances. On the other hand, specific provisions have been made in the Conditions of Supply of Electrical Energy for levying penalty in cases such as misuse of energy. The case in hand cannot fit into any one of these clauses and if so, the petitioner could not have been penalised. Consequently, Exts.P5 and P8 have to be set aside. The original petition will stand disposed of quashing Exts.P5 and P8 and directing that the amount of Rs.1 lakh stated to have been deposited by the petitioner pursuant to the judgment of this Court in OP No.8974/98 and order dated 15/12/98 passed in this original petition shall be adjusted towards the future bills of the petitioner's on the production of a copy of this judgment. ANTONY DOMINIC, JUDGE Rp