IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 AS.No. 25 of 2000() -------------------------- OS.495/1996 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANTS/DEFENDANTS: ----------------------------------------- 1. K.S.E. BOARD, REP. BY ITS CHAIRMAN, OFFICE OF THE K.S.E. BOARD, THIRUVANANTHPURAM. 2. ASST. EXECUTIVE ENGINEER, ELE. MAJOR SECTION, K.S.E. BOARD, BALUSSERY, KOZHIKODE. BY ADV. MR.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT/PLAINTIFF: ------------------------------------- DR. S.VIDYA PRAKASH, CHAIRMAN & MANAGING DIRECTOR, M/S.DOCTOR PRAKASHAN HOMEOPATHIC, PHRMACEUTICALS PVT. LTD., P.O. CHELANNUR, KOZHIKODE. BY MR.U.K.RAMAKRISHNAN, SENIOR ADVOCATE, ADV. MR.E.K.MADHAVAN, MR.P.V.LOHITHAKSHAN, SMT.P.VIJAYAMMA. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. C.R. K.SURENDRA MOHAN, J. ----------------------------------- A.S.No.25 of 2000 ----------------------------------- Dated this the 10th day of July, 2009 JUDGMENT This appeal is filed by the defendants in O.S.No.495 of 1996 of the Sub Court, Kozhikode, challenging the judgment and decree dated 31.3.1999, decreeing the suit. The suit was filed for a declaration that the plaintiff was entitled to be charged only at the Low Tension tariff rates and also to declare that a bill dated 10.8.1994 issued to the plaintiff was not liable to be enforced. Permanent injunction restraining the defendants from terminating or disconnecting the electric supply connection of the plaintiff for non-payment of the bill dated 10.8.1994 was also sought. The plaintiff is the respondent in the above appeal. 2. The respondent-plaintiff is the Chairman and Managing Director of M/s Doctor Prakashan Homoepathic Pharmaceuticals Pvt. Ltd., Chelannur, which is a private limited company engaged in the manufacture of A.S.No.25 of 2000 2 Homoeopathic medicines. The factory of the plaintiff is functioning from its own premises in Chelannur Panchayat having Door No.750D. The factory was alloted a Low Tension electric connection permitting usage of 48 KW (equivalent to 57KVA) of electric energy. The plaintiff has set up two other units in the same compound, one for the production of eye drops and the other for the production of cosmetics. Though the plaintiff had applied for an enhancement in the connected load allotted, for the purpose of operating the other units, his request was not considered by the authorities. According to the plaintiff, several applications in this regard are pending with the defendants. However, the plaintiff has installed the required machinery for the production of eye drops and cosmetics in the factory premises. But, he is not able to work the factory because power has not been allotted by the first defendant - Board. According to the plaintiff, he has obtained permission for running the factory using a generator set. It is further alleged that, on several A.S.No.25 of 2000 3 occasions, the defendants had changed the phase line, as a result of which the revolution of the plaintiff's machinery was reversed, causing break down of the machinery and injury to the plaintiff's workers. The plaintiff had issued letters claiming compensation and requesting the defendants not to let such incidents happen. The defendants being infuriated, inspected the factory premises on 20.7.1994. They noted the details of all the items of machinery available in the factory premises and came to a conclusion that the plaintiff had a connected load of 96.28 KW. On the above basis, they brought the tariff rate of the plaintiff under the High Tension category. Thereafter, they prepared a bill for an amount of Rs.75,780/- and demanded payment of the said amount. The contention of the plaintiff is that if he is charged as a Low Tension consumer, he need pay only at the rate of Rs.15/- per KW while he has been charged at the rate of Rs.85/- per KW, the High Tension tariff rate. According to him, the action of the defendants is illegal and violative of the terms of the agreement entered A.S.No.25 of 2000 4 into between the plaintiff and the Board. Therefore, he challenged the action of the defendants by filing the suit. 3. The suit was contested by the appellants/defendants by filing a joint written statement. According to them, it is not on the basis of the actual consumption of energy that the tariff rate is fixed. The tariff rate is fixed on the basis of the connected load. The allotted load of the plaintiff as per agreement No.12/86-87 is only 47.51 KW, which includes 4.20 KW as lighting load. An application made by the plaintiff for additional allotment to the extent of 30 KW was sanctioned but, the plaintiff did not avail of the same and therefore it got cancelled. 4. An inspection conducted on 10.8.1992 revealed that the plaintiff had connected an additional load of 37 KW. Therefore, he was charged an amount of Rs.16,924/- which was paid by him. Another application made by the plaintiff for additional power allocation of 43.5 HP was not sanctioned for technical reasons. The matter was also brought to the notice of the General Manager of the A.S.No.25 of 2000 5 plaintiff company. On 20.7.1994, an inspection of the premises was conducted by the Inspection Wing of the defendants called the Anti Power Theft Squad. They noticed that the plaintiff had connected an unauthorized load of 48.28 KW over and above his permissible load. The inspection was conducted in the presence of the Manager of the plaintiff who signed the mahazar prepared at the time of inspection. The entire load mentioned above was connected through the existing meter installed in the premises. The same was in violation of clause-24 of the Conditions of Supply of Electrical Energy and was liable to penal action in accordance with clause 42 (d) of the conditions referred to above. Pursuant to the inspection, an invoice for Rs.75,780.16/- was prepared and served on the plaintiff, which was challenged in his suit. The defendants contended that the act of the plaintiff in making alteration and extension in the wiring and installation in his premises and connecting it to an unauthorized additional load is nothing but, misuse of A.S.No.25 of 2000 6 energy and breach of contract under clause-24 of the Conditions of Supply of Electrical Energy. The plaintiff has not obtained any permission for wiring or installation of the machinery. The contention of the plaintiff that the meter reader who regularly visits the premises did not have any complaint is not sustainable because the present complaint is not one coming within the duties of a meter reader. On the above contentions, they prayed for dismissal of the suit. 5. On the above pleadings, the court below framed five issues and tried the suit. The evidence in the case consists of the oral testimonies of PW1, DW1 and CW1 and exhibits A1 to A13, B1, B2 and C1 documents. 6. The court below considered the contentions of the parties in the light of the evidence on record and the pleadings in the case and came to the conclusion that the suit was liable to be decreed. It is found by the court below that the mahazar produced by the defendants, marked as Ext.B1 by the court below, has not been properly proved in the case. There is no evidence available as to what are the A.S.No.25 of 2000 7 items of machinery connected to the electrical connection sanctioned to the plaintiff. No details thereof are mentioned anywhere in Ext.B1. Since the plaintiff has disclosed in his complaint that the machinery for running two other facilities, one manufacturing eye drops and the other producing cosmetics, are already installed in the premises, unless there is evidence to show that the said machinery were actually connected at the time of inspection, the plaintiff cannot be made liable to pay the penalty charges levied on him. The court has also found that the plaintiff could not be treated as a High Tension consumer as done in the present case. Therefore, the court below has decreed the suit. 7. The appellants challenge the judgment and decree of the court below on various counts. According to the counsel for the appellant, Ext.B1 mahazar clearly shows that the plaintiff had unauthorizedly connected other items of machinery to the existing connection. Consequently, the connected load has been increased to 48.28 KW. At the time of inspection on 20.7.1994, the Anti Power Theft Squad A.S.No.25 of 2000 8 along with the Assistant Engineer of the local area had detected the unauthorized connected load that was used by the plaintiff. According to the counsel, the connection of the machinery could be easily detached at any time. Therefore, it was only on a surprise inspection that the violation committed by the plaintiff was detected. Hence, the contention of the respondent - plaintiff that there was no violation is unacceptable. In all cases where the connected load exceeds 100 KVA, the appellants are entitled to charge at the rates applicable to a consumer under the High Tension Tariff, it is pointed out. Therefore, there is nothing wrong in the demand that is made as per Ext.A9 bill. It is pointed out that the court below seriously went wrong in finding that Ext.A10 bill was also illegal, especially in view of the fact that only Ext.B9 bill has been challenged in the suit and court fee has been paid only in respect of the relief sought against Ext.A9 bill. 8. The counsel for the respondent on the other hand contends that both Exts.A9 and A10 bills are issued on the A.S.No.25 of 2000 9 basis of the inspection conducted on 20.7.1994. Ext.A9 is the first bill issued, while Ext.A10 is a subsequent bill for a much larger amount, which includes the amount demanded as per Ext.A9 bill also. Both the bills have been issued on the basis of Ext.B1 mahazar and Ext.B2 report which relates to the inspection of 20.7.1994. Therefore, when the court below found that Ext.B1 was not proved, it is only a natural consequence that both Exts.A9 and A10 bills are invalid and incapable of enforcement. It is further pointed out that there is no evidence to show that the various items of machinery found in the premises of the plaintiff were connected to the existing electric connection given to the plaintiff. At the same time, the plaintiff took out a commission and the said Commissioner has inspected the premises and submitted Ext.C1 report which shows that the machinery are in fact not connected. The amount claimed in Exts.A9 and A10 bills are also attacked by the counsel pointing out that as per the regulations applicable, even if the plaintiff is found to have connected machinery in excess A.S.No.25 of 2000 10 of its connected load, the excess can be billed only at 3 times the rates applicable and not at the rates applicable to High Tension consumers. According to him, there is no provision authorizing the defendants to charge him at the rates applicable to High Tension consumers. 9. I have been taken through the pleadings in the case as well as the evidence in detail. I have perused the records of the case. I have also heard the counsel for the contesting parties. 10. It is an admitted fact that the respondent - plaintiff is a consumer under the appellants and that he is running a factory manufacturing Homoeopathic medicines. He has executed a minimum guarantee agreement and service connection having a connected load of 48 KW has been given to him. He has averred that he had applied for additional allotment, but that the same was not granted. According to the defendants, he had been granted an additional connected load of 30 KW, but the same had got cancelled since he did not avail of the same. Subsequently, A.S.No.25 of 2000 11 though he had applied for additional power allocation to the extent of 43.5 HP, the same was not sanctioned. Exts.A4 and A5 reveal that he had made complaints against the authorities under the defendants complaining about deficiencies in the supply of electrical energy to him. It is also contended that the officers under the defendants were antagonized against him for the reason that he had complained against them. Be that as it may, I am not proceeding to consider the genuineness of the said allegations and counter allegations, due to paucity of evidence. 11. The present controversy relates to an inspection of the premises of the plaintiff conducted on 20.7.1994 by the Anti Power Theft Squad along with the Assistant Engineer of the local area. The mahazar, Ext.B1 prepared at the time of inspection shows that the plaintiff had connected various other machinery to his service connection thereby drastically enhancing the connected load. However, the mahazar also reveals that the electric meter installed at his premises was A.S.No.25 of 2000 12 working properly. The mahazar does not give the details of the machinery alleged to have been connected by the plaintiff nor their capacities. The plaintiff has specifically averred and explained that there were three units in his premises, namely, a Homoepathic Medicine Unit, an Eye Drops Unit and a Cosmetics Unit. Only the unit producing Homoeopathic Medicines has an electric connection. Though the machinery of the other two units have been installed, no electric connection has been granted to the said units. The specific contention of the plaintiff in paragraph-5 of his plaint is that, all the items of machinery found in the premises including those that were not given electric connection were taken into account and the connected load has been calculated on the basis of all the machinery available in the premises to find that he had exceeded his connected load. The plaintiff has therefore raised serious dispute about the mahazar Ext.B1. 12. DW1 is the Assistant Engineer who has been examined to prove Ext.B1 mahazar and Ext.B2 report. A.S.No.25 of 2000 13 According to him, he has taken charge of the office of the second defendant only in June 1998. Therefore, he is a person who does not have any direct knowledge about the inspection of 20.7.1994 or regarding the preparation of Exts.B1 and B2. According to him, the Assistant Engineer who had prepared Ext.B1 had gone abroad. It is therefore contended by the counsel for the appellants that the appellants should not be blamed for not having examined the said witnesses. It is pointed out that DW1 has deposed that he was familiar with the handwriting of the then Assistant Engineer and therefore Ext.B1 should be taken to have been proved. Since Ext.B1 does not refer to the items of machinery that are alleged to have been found connected to the service connection of the plaintiff on inspection, there is no evidence available to indicate how the connected load has been calculated in Exts.B1 and B2. If the Assistant Engineer who prepared Ext.B1 was not available, at least a member of the Anti Power Theft Squad or some other person who was available at the time of inspection on A.S.No.25 of 2000 14 20.7.1994 could have been examined. There is no justification for the non-examination of any such official. When DW1 was asked about the manner in which Ext.B1 was prepared, he was not able to say anything about the same. He does not know where Ext.B1 was prepared or where it was signed. It is admitted that there are other items of machinery installed in the other units, for the working of which electric connection has not been granted. However, it is stated that permission to run the machinery using generator has been granted. In the above circumstances, the question as to whether the machinery found installed in the premises were actually connected to the service line granted to the plaintiff, is a matter that assumes importance. However, it is with respect to this crucial aspect that no evidence is available. Since Ext.B1 is disputed, the said document as well as Ext.B2 should have been proved by the defendants. If the person who prepared the mahazar is not available, some other member of the Anti Power Theft Squad who was present at the site when Ext.B1 A.S.No.25 of 2000 15 was prepared and who had participated in the inspection, could have been examined. Therefore, it is not an impossibility to prove Ext.B1 by cogent evidence, as is sought to be made out by the counsel for the appellants. 13. At the same time, the earnestness of the plaintiff is evident from the fact that he took out a Commission from the Court and had his premises inspected by deputing an Advocate Commissioner. The Commissioner has been examined as CW1 and his report has been marked as Ext.C1. Though his report cannot throw any light on the situation as on 20.7.1994, his report is useful in certain other respects. Ext.C1 report shows that all the three units are situate in separate buildings, but in the same compound. The report also shows that the machinery in the eye drops unit as well as in the cosmetic unit are remaining idle and are not working because there was no electric connection. Ext.C1 also shows that a generator is used only for the main unit that too during break in supply of electrical energy. When the Advocate Commissioner was examined as CW1, he A.S.No.25 of 2000 16 has deposed that the items of machinery noted by him and reported in Ext.C1 are fixed or fitted in the eye drops unit and the cosmetics unit. Many of the items of machinery are reported to be very heavy, some weighing more than a quintel. It is clear from the above that the allegation that the machinery are capable of being shifted from place to place cannot be accepted. The Commissioner has also calculated the connected load of the plaintiff and has found that his connected load is slightly more than his sanctioned limit. 14. From the available evidence, it is clear that the plaintiff is not working his eye drops unit and cosmetic unit for want of electric connection. Exts.A1 to A5 and A11 to A13 show the correspondence that the plaintiff was having with the defendants. The number of requests made by the plaintiff for enhancement of power allotted to him is also seen. Though it is disputed that any request for enhancement of power is pending in relation to the plaintiff's units, it cannot be presumed that the plaintiff after having A.S.No.25 of 2000 17 made substantial investment and established two additional factories would have allowed the same to idle, without taking any effort to obtain electric connection. The Advocate Commissioner has also reported that there was nothing to indicate that all the three factories could be given electric connection from the service line that was available in the premises. As already noted, on the basis of the machinery in the plaintiff's premises, the connected load of the plaintiff has been worked out by the Advocate Commissioner, which belies the allegations contained in Exts.B1 and B2. Since Exts.B1 and B2 have not been satisfactorily proved, the court below was right in declining to rely on the said documents. The term 'connected load' is defined in clause 1(n) of the Conditions of Supply of Electrical Energy as follows: 1(n) - “Connected load” means the sum total of the installed capacities of all the energy consuming devices on the consumer's premises connected to the system which can be operated simultaneously”. A.S.No.25 of 2000 18 15. As per the above definition, unless there is evidence to show that the energy consuming devices in the plaintiff's factory were connected to the system, the equipment cannot be taken into account for calculating the connected load. In the present case, there is a total absence of evidence to show that there were machinery connected to the service line of the plaintiff unauthorizedly. In other words, it has not been established that the other items of machinery in the premises had been connected to the service line of the plaintiff. 16. The next contention urged before me is that the defendants have the authority to apply the High Tension tariff rates to the plaintiff, though he was a Low Tension consumer. Condition No.42(d) of the Conditions of Supply of Electrical Energy reads as follows: “42(d) - If the consumer exceeds the contracted load without prior permission of the Board or energy supplied for a specific purpose under a particular tariff is used without the Board's knowledge and approval for a different purpose not contemplated in the contract for supply A.S.No.25 of 2000 19 and for which higher tariff is applicable coming under misuse of energy within the meaning of the I.E.Act, 1910. Misuse of energy will be billed at three times the rate applicable to the respective tariff for the previous six months from the date of detection of misuse unless there are convincing reason for adopting different periods and supply disconnected without notice. The imposition of this higher rate will not relieve the consumer from any penalties imposed by law.” 17. As per the above provision, any excess consumption can be billed at three times the rates applicable to the respective tariff of consumption for the past six months. Since the billing procedure applicable to the present situation is prescribed by the above provision, the defendants had no authority to charge the plaintiff at the rates applicable to the High Tension consumers, as done in Exts.A9 and A10. Therefore, it is found that the calculation in Exts.A9 and A10 are also wrong and without the authority of law. 18. The counsel for the appellant vehemently contends that Ext.A10 has not been challenged in the plaint and no A.S.No.25 of 2000 20 court fee has been paid on the amount that is demanded in Ext.A10. Therefore, it is contended that the court below went wrong in holding that the said bill was also incapable of being enforced. The inspection of the factory of the plaintiff was on 20.7.1994. Ext.A9 is the bill dated 31.8.1994 where charges for electrical energy is calculated on the basis of the alleged unauthorized connected load detected. Ext.A10 bill has been issued subsequently demanding a much higher amount, seeking to rectify some errors that are alleged to have crept into Ext.A9. Ext.A10 is dated 2.6.1997 and is after filing of the suit. Since Exts.A9 and A10 are both issued on the basis of one and the same allegation that unauthorized connected load exceeding the plaintiff's sanctioned limit was detected on 20.7.1994 and since both bills relate to the same transaction, a finding that Ext.A9 is wrong and without any authority would render Ext.A10 also invalid. The court below has only made explicit the above position. Therefore, the court below was justified in finding that Ext.A10 bill also was unenforceable. A.S.No.25 of 2000 21 For the above reasons, the appeal fails and is dismissed. The judgment and decree of the Sub Court, Kozhikode dated 31.3.1999 in O.S.No.495 of 1996 is hereby confirmed. No costs. K.SURENDRA MOHAN Judge css/ A.S.No.25 of 2000 22 C.R. K.SURENDRA MOHAN JUDGE --------------------------------------- AS.No.25 of 2000 --------------------------------------- JUDGMENT 10.7.2009