IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 WP(C).No. 16742 of 2009(K) -------------------------- PETITIONER(S): ----------------- JANAKI.M.P., MARUMAPARAMBATH HOUSE, CHERUVATHUR POST, KOZHIKODE. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): ------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, RAMANATTUKARA. 3. THE DEPUTY CHIEF ENGINEER, (APPELLATE AUTHORITY) ELECTRICAL CIRCLE, KOZHIKODE. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 16742 OF 2009 (K) ===================== Dated this the 22nd day of June, 2009 J U D G M E N T Petitioner is a small scale industrial unit manufacturing crumb rubber. There was an APTS inspection and Ext.P2(a) is the mahazar. Subsequently, by Exts.P1 and P2, petitioner was called upon to pay Rs.5,59,757.25. That was challenged before this Court in WP(C) No.21295/08 resulting in Ext.P3 judgment, where the petitioner was asked to pay 1/3rd, and on that basis, connection was ordered to be restored. They were also directed to file objections to Exts.P1 and P2. Accordingly, petitioner filed Ext.P4 objection. But, however, the same was rejected by Ext.P6. He filed Ext.P7 appeal, which finally came to be disposed of by Ext.P13 appellate order. Following Ext.P13, Ext.P14 invoice has been issued demanding a total sum of Rs.3,09,093/-. Out of the said amount, petitioner has already remitted Rs.2,69,962/- and the balance to be remitted is only Rs.39,131/- 2. Two contentions are raised. One is relying on Regulation 52(5) of the KSEB Terms and Conditions of Supply 2005 and it is contended that no theft case shall be booked for WPC 16742/09 :2 : breakage of glass or seal of energy meter when it is concluded that the consumption pattern for the last 12 months is reasonably uniform unless prima facie evidence of theft of energy is made out. It is stated that consumption was uniform and therefore the proceedings are unwarranted. 3. Yet another contention that is raised is that out of the balance Rs.39,131/-, Rs.24,113.65 is demanded towards duty. It is contended that neither under Section 126 of the Indian Electricity Act, 2003 nor under the Electricity Duty Act, can duty be levied on penalty. 4. In so far as the first plea relying on Clause 52(5) of the KSEB Terms and Conditions of Supply, 2005 is concerned, that contention has been dealt with in Ext.P13 order, where it is stated that on verification of the consumption pattern, the same is found to be not uniform. Nothing has been placed on record to contradict this finding of fact and therefore, I am not inclined to accept the plea raised by the counsel for the petitioner. 5. In so far as the second plea regarding the impermissibility of levy of duty on penalty is concerned, in my view, the petitioner is well founded. Standing counsel for the WPC 16742/09 :3 : respondents could not point out any provision either in Section 126 or under the Duty Act justifying levy of duty on penalty as has been done in Ext.P14. If that be so, the duty of Rs.24,113.65 demanded on the petitioner as per Ext.P14 deserves to be set aside and I do so. In view of the above, the writ petition is disposed of directing that the duty element demanded in Ext.P14 shall stand deleted and the petitioner shall within 10 days from today, remit the balance amount as per Ext.P14, which shall be in full settlement of their liability. ANTONY DOMINIC, JUDGE Rp