IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 OP.No. 25691 of 1998(H) ---------------------------------- PETITIONER: ------------------- V.K. SUBHAKESAN, VELLAPPALLIL HOUSE, P.O. KANICHUKULANGARA, CHERTHALA. BY ADV. MR.SEBASTIAN DAVIS. RESPONDENTS: ------------------------ 1. KERALA STATE ELECTRICITY BOARD, TRIVANDRUM, REPRESENTED BY ITS SECRETARY. 2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, PATTANAKADU. 3. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, ARTHUNKAL. 4. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, CHERTHALA. R1 TO R4 BY MR. C.K. KARUNAKARAN, SC, KSEB. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 25691/1998-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE BILL DTD. 23/11/92 ISSUED BY THE R.2. EXT.P.2: COPY OF THE ORDER NO. DB58/APTS/92-93/492 DTD. 23/11/92 ISSUED BY THE R.2. EXT.P.3: COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE R.4. EXT.P.4: COPY OF THE MOTOR READING AND CONSUMPTION OF CONSUMER NO. 889 SUPPLIED TO THE PETITIONER BY THE R.4. EXT.P.5: COPY OF THE METER READING AND CONSUMPTION OF CONSUMER NO. 889 ISSUED BY THE R.3. DT. NIL. EXT.P.6: COPY OF THE SCENE MAHAZER DTD. 20/11/92. EXT.P.7: COPY OF THE ORDER DTD. 09/03/94 ISSUED BY THE R.4. EXT.P.8: COPY OF THE JUDGMENT IN O.P. 6200/94 DTD. 12/08/1998. EXT.P.9: COPY OF THE ORDER DTD. 09/12/98 ISSUED BY THE R.4. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE STATEMENT SHOWING THE METER READINGS AND CONSUMPTION OF CONSUMER NO.889 AND 1391 TVZ OF ELECTRICAL SECTION, ARTHUNGAL FROM 1/91 TO 4/93. EXT.R1.B: COPY OF THE MAHAZAR PREPARED BY THE SUB ENGINEER, ELECTRICAL SECTION, ARTHUNGAL DTD. 20/11/1992. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No. 25691 of 1998 ================== Dated this the 21st day of December, 2009 J U D G M E N T The petitioner is the owner of an ice factory at Cherthala. In the ice factory, the petitioner consumes electrical energy as per consumer No.889 of Electrical Sub Section, Arthunkal. On 20.11.1992 the Anti Power Theft Squad of the Kerala State Electricity Board conducted an inspection of the petitioner's electrical installation and prepared Ext.P6 mahazar, wherein it was noted that the box, in which the Current Transformers (CTs) were secured, was not sealed and that out of the three CTs in the box, in the middle CT two wires going into the metre were seen disconnected. Considering this as theft of electrical energy, the petitioner was directed to pay a amount of Rs.1,55,892.60 as current charges short levied and penalty. The petitioner challenged the same before this Court by filing in O.P.No.15580/1992, in which, this Court directed the petitioner to file an appeal under Regulation 48 of the Conditions of Supply of Electrical Energy. Pursuant to the same, he filed appeal, which was rejected by Ext.P7 order. The petitioner challenged that order by filing O.P.No.6200/1994, in which, by Ext.P8 judgment this Court quashed the demand and directed reconsideration of the matter after supplying the petitioner with copies of the depositions and affording an opportunity of personal hearing. Pursuant o.p.25691/98 2 to the same, Ext.P9 order has been passed confirming the demand with 24% interest. The petitioner is challenging the same in this original petition. 2. The petitioner contends that the petitioner is not in any way liable for the disconnection of the wires in the CT and he has not committed any theft of electrical energy. He submits that on account of non-functioning of one CT, there would only be non-recording 1/3rd of the electrical energy consumed and, therefore, for the defect pointed out in Ext.P6 mahazar, the petitioner would at the most be liable to pay only 50% more of the recorded consumption of electrical energy. According to the petitioner, instead of demanding charges 50% more of the recorded consumption, the respondents have calculated the total consumption on the basis of the connected load, which cannot be accepted as a method for calculating the non- recorded consumption of electrical energy. He points out that as is evident from Ext.P9 order, Sri.D.K.Rajagopalan, Assistant Executive Engineer, himself deposed on 27.11.1993 that if, out of the 3 CTs one CT is non-functional, the actual consumption would be 50% more than the consumption recorded. The petitioner, therefore, seeks the following reliefs: “(a) to call for the records of Exts.P1, P2 and P9 and to quash the same by the issuance of a writ of certiorari or other appropriate writ order or direction; o.p.25691/98 3 (b) to issue a writ of mandamus restraining the respondents from recovering the amount covered by Ext.P1 and also from disconnecting the electricity connection having consumer No.889 Thiruvisha (sic)” 3. A counter affidavit has been filed on behalf of respondents 1 to 4 disputing the contentions of the petitioner. According to the respondents, it was the duty of the petitioner to provide metallic box with locking and sealing facility as per Clause 7(c) of the Conditions of Supply of Electrical Energy for securing the CTs, which the petitioner was not willing to provide and, therefore, it is evident that the petitioner had tampered with the CTs by disconnecting the wires from one of the CTs to the meter. According to them, the proper way to calculate the actual consumption is to take the probable energy consumption of the total connected load of the petitioner's electrical installation. 4. I have considered the rival contentions in detail. 5. At the outset, I note that in Ext.P6 mahazar there is no allegation that the petitioner has tampered with the seal of the box, wherein three CTs were placed. All what is stated in Ext.P6 is that the box was not sealed. It does not say that the seal was broken. 6. Regulation 7(c) reads thus: “7. Fixing the position of Meter Board etc. xxx xxxx xxx xxx (c ) Where the energy consumption of the consumer can be metered only with the aid of L.T. Current transformers, a metallic meter o.p.25691/98 4 box of minimum dimension 60 cm x 45 cm x 25 cm shall be provided by the consumer to house the current transformers, cut-out energy meter etc. with provision for locking and sealing.” When the Regulation stipulates for the consumer to provide a metallic meter box to use CTs, it was improper on the part of the respondents to supply electrical energy to the petitioner without the petitioner providing a metallic meter box to use the CTs with a provision for locking and sealing and the Board actually sealing the metal box with the CTs safely secured inside. Unless and until such a metallic box was provided and the CTs were placed inside locked and sealed by the respondents, they should not have, under law, supplied electrical energy to the petitioner. According to me, it is vain for the respondents to allege that the petitioner is guilty of theft of electrical energy without the Board officials doing what they ought to have. Without first insisting on the petitioner providing a metallic box with locking and sealing facility and the respondents sealing that box appropriately, I am of opinion that for the defect pointed out in Ext.P6, the respondents are also equally guilty and the respondents are also liable to be held responsible for the resultant non-recording of electrical energy in the meter. From Ext.P9, I find that for the purpose of arriving at the probable electricity short paid for by the petitioner, they have taken the total average monthly consumption of the petitioner as 10800 units. The respondents themselves have provided o.p.25691/98 5 the pattern of electrical consumption by the petitioner before and after the defect noted in Ext.P6 mahazar. Ext.P4 is the same. Therein, the maximum consumption is in September 1991, which is only 6770 units and the minimum is in July, 1991, ie. 280. The petitioner points out that the total consumption for six months prior to the inspection was 13219 and the total consumption for six months after the inspection was 16780. Going by the same, the average monthly consumption before the inspection was only 2203 whereas after inspection the average monthly consumption was only 2796 units per month. The respondents have no case that at any point after the petitioner started using electrical energy in 1973, the petitioner had consumed electrical energy anywhere near 10800 units. That itself shows that the method adopted by the respondents is totally faulty. Simply because an irregularity has been noted in the electrical installation for securing which from tampering with, the respondents have not taken adequate precaution, the petitioner cannot be saddled with such a huge liability on the basis of a process of calculating consumption on the basis of total connected load. The calculation of probable consumption should have some connection with reality. From the facts noted above, by any stretch of imagination I cannot accept the calculation of 10800 units as average monthly consumption of the petitioner prior to the date of inspection, for which period the demand o.p.25691/98 6 has been issued to the petitioner. In the above circumstances, going by the figures noted above, I am of opinion that the probable actual consumption would be 50% more of the recorded consumption. Therefore, the petitioner would be liable to pay only for consumption calculated thus. 7. The petitioner also challenges the demand for 24% interest. According to him, that is clearly excessive as held by this Court in the decisions in K.R.Alloy's Ltd. v. State of Kerala [2005 (2) KLT 177] and Abdul Nazer v. K.S.E.B. [2006 (1) KLT 811]. But I find that in Regulation 32(3) it is stipulated that if the dues are not paid on or before the due dates, interest will be levied at 24% per annum. When the statute fixes interest at 24% I do not think that this Court can exercise powers under Article 226 of the Constitution of India to reduce the rate of interest. Although in the two decisions cited by the petitioner, interest had only been reduced, there is no discussion as to whether under law the statutory interest could have been reduced by this Court by exercise of powers under Article 226 of the Constitution of India. I am of opinion that this Court under law cannot reduce the statutory interest. Therefore, I am not inclined to interfere with the demand for interest at the rate of 24%, which is statutory. Accordingly, the impugned orders are quashed. The respondents are directed to recompute the electrical charges of the petitioner for o.p.25691/98 7 six months prior to the date of inspection in accordance with the above findings and issue a fresh bill accordingly. Needless to say, payments already made by the petitioner towards the demand shall be adjusted as on the date of payment. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 25691 of 1998-H ================== J U D G M E N T 21st December, 2009