IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 OP.No. 28390 of 2002(D) ------------------------------------ PETITIONER(S): ----------------------- V.K. YOUSUF HAJI, WESTERN FIBRE INDUSTRIES, P.O.MADAYI, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): --------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, ELECTRICAL DIVISION K.S.E.B., PAYYANNUR. 3. ASSISTANT ENGINEER, ELECTRICAL SECTION K.S.E.B., MADAYI, KANNUR-670 304. R1 TO R3 BY ADV. SRI.C.K. KARUNAKARAN, SC FOR KSEB. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 28390 of 2002(D) ORDER ON C.M.P. NO.48290/2002 IN O.P. NO. 28390/2002 DISMISSED 09/07/2010. SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER DATED 20/10/2000 BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P2: COPY OF THE BILL DATED 10/09/2000 FOR 8/2000 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(a): COPY OF THE BILL DATED 16/10/2000 FOR 9/2000 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(b): COPY OF THE BILL DATED 16/11/2000 FOR 10/2000 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(c): COPY OF THE BILL DATED 16/12/2000 FOR 11/2000 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(d): COPY OF THE BILL DATED 16/01/2001 FOR 12/2000 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(e): COPY OF THE BILL DATED 16/02/2001 FOR 1/2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(f): COPY OF THE BILL DATED 15/03/2001 FOR 2/2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(g): COPY OF THE BILL DATED 18/04/2001 FOR 3/2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(h): COPY OF THE BILL DATED 17/05/2001 FOR 4/2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(i): COPY OF THE BILL DATED 17/06/2001 FOR 5/2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(j): COPY OF THE BILL DATED NIL FOR 6/2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. OP.No. 28390 of 2002(D) EXT.P3(k): COPY OF THE BILL DATED 18/08/2001 FOR 7/2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(l): COPY OF THE BILL DATED 18/09/2001 FOR 8/2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(m): COPY OF THE BILL DATED 16/11/2001 FOR 10/2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(n): COPY OF THE BILL DATED NIL FOR 11/2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3(o): COPY OF THE BILL DATED 16/01/2002 FOR 12/2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P4: COPY OF THE LETTER DATED 01/12/2001 BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P5: COPY OF THE LETTER NO.BB/2001-02/MDI/177 DATED 07/12/2001 ISSUED BY 3RD RESPONDENT TO THE PETITIONER. EXT.P6: COPY OF THE APPEAL PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P7: COPY OF THE ORDER NO.GB2/AP/WFI/2002-2003/1460 DATED 31/08/2002 ISSUED BY THE SECOND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R3(a): COPY OF THE APPLICATION DATED 13/09/2000 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.R3(b): COPY OF THE REPLY DATED 26/11/2001 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. //TRUE COPY// P.S. TO JUDGE rs. P.N.RAVINDRAN, J. ---------------------------- O.P.No.28390 of 2002 ---------------------------- Dated 9th July, 2010 JUDGMENT The petitioner, the proprietor of an industrial unit known as Western Fibre Industries, was a consumer of electrical energy. Since the industrial unit was running at a loss, the petitioner closed the unit on 15.9.2000. He had in the meanwhile sent Ext.R3(a) letter dated 13.9.2000 to the third respondent, the Assistant Engineer, Electrical Section, Madayi, requesting him to disconnect the electricity supply temporarily. Thereupon electricity supply was disconnected on 16.9.2000. The petitioner states that though later, Ext.P1 letter dated 20.10.2000 was sent to the third respondent requesting him to dismantle the meter, it was not done and monthly invoices demanding payment of fixed charges were being issued. Copies thereof are produced as Exts.P3(a) to P3(o). The petitioner thereupon sent Ext.P6 letter dated 26.11.2001 objecting to the levy of fixed charges. Shortly thereafter, he sent Ext.P4 letter dated 1.12.2001 requesting the third respondent to dismantle the supply. The said letter was sent by registered post and it was received by the third respondent on 4.12.2001. The third respondent thereupon sent Ext.P5 letter dated 7.12.2001 informing the petitioner that the O.P.No.28390/2002 2 service will be dismantled. The petitioner was also called upon to pay the arrears of fixed charges. It is not in dispute that thereupon the service was dismantled on 29.12.2001. The petitioner thereafter filed Ext.P6 appeal before the second respondent objecting to the levy of fixed charges during the period from 16.9.2000 to 29.12.2001. The total amount involved was Rs.38,895/-. The said appeal was rejected by Ext.P7 order dated 31.8.2002 on the ground that under the conditions of supply, the petitioner is bound to pay fixed charges till the service is dismantled. It is also stated that the request in the application earlier received from the petitioner on 13.9.2000 was only for temporary disconnection and not for dismantling the service and that his request for dismantling the service was received only on 4.12.2001. Ext.P3 series of bills and Ext.P7 order are under challenge in this writ petition. 2. Relying on paragraph 34(c)(ii) of the Regulations Relating to Conditions of Supply of Electrical Energy, 1990 which was in force during the relevant time it is contended that the respondents ought to have dismantled the service on the expiry of six months from the date of disconnection and that instead of complying with the said regulations the respondents have levied fixed charges, alleging that the service was only disconnected and not dismantled. It is contended that the Board which relies on regulations to levy fixed charges is also O.P.No.28390/2002 3 bound by the regulations and the Board ought to have dismantled the supply on the expiry of six months from the date of temporary disconnection. The Kerala State Electricity Board has filed a counter affidavit justifying the action taken by them. It is contended that the petitioner is bound to pay fixed charges and the minimum guarantee amounts, even during the period of disconnection and therefore the invoices were properly raised. 3. I heard Sri.Mohammed Shameel, learned counsel appearing for the petitioner and Sri.C.K.Karunakaran, learned standing counsel appearing for the respondents. I have also gone through the pleadings and the materials on record. The fact that electricity supply to the petitioner's industrial unit was temporarily disconnected on 16.9.2000 based on the request evidenced by Ext.R3(a) letter dated 13.9.2000 is not in dispute. Even thereafter fixed charges were levied on the petitioner applying paragraph 34(c)(i) of the Regulations Relating to Conditions of Supply of Electrical Energy, 1990. Paragraph 34(c) reads as follows: “34. (c) When a consumer applies to the Board for temporary disconnection owing to non-tenancy/non-occupation of his house, the Board will comply with such requests subject to the following conditions. (i) If the service remains disconnected for more than one month, energy charge will not be levied for that period. But fixed charge, minimum guarantee amounts, service line rentals etc., will be levied even during the periods of disconnection. O.P.No.28390/2002 4 (ii) Normally no service shall be kept disconnected for more than six months continuously at a time. Such services will be dismantled by the Board and the agreement determined. But it a request is received from the consumer within six months of disconnection on bonafide grounds to keep the service disconnected beyond six months, the Assistant Executive Engineer concerned may consider each case on its own merits and extend the period of disconnection up to a maximum of 12 months, provided the consumer undertakes the responsibility for the safe custody of service mains, equipments and pay the prescribed charges.” Paragraph 34(c)(ii) provides that normally no service shall be kept disconnected for more than six months continuously at a time and that such services will be dismantled by the Board and the agreement determined. Clause 34(c) does not make a distinction between temporary disconnection and permanent disconnection. The term disconnection contemplates only a disconnection of supply. Therefore, as and when supply of electrical energy to a house or an industrial unit is disconnected, it has to be dismantled on the expiry of the period of six months from the date of disconnection. The dismantling can be postponed up to a maximum of 12 months from the date of disconnection only if a request in that regard is received from the consumer within six months of the disconnection. Though the disconnection can be continued beyond six months, the Assistant Executive Engineer has got the discretion to decide whether the service should be kept disconnected for the maximum permissible period of 12 months or dismantled on the expiry of six months from O.P.No.28390/2002 5 the date of disconnection. 4. In the instant case, the Assistant Executive Engineer did not pay attention to his obligation arising under paragraph 34(c)(ii). The Board has no case that the petitioner had requested the Board to keep the service disconnected beyond six months. Even if such a request had been made, the service could have been kept disconnected only for a total period of 12 months from the date of initial disconnection. In such circumstances, I am of the opinion that on the terms of paragraph 34(c)(ii), the Kerala State Electricity Board had a duty to dismantle the supply on the expiry of six months from 16.9.2000. The liability of the petitioner is only to pay the fixed charges during the period of six months which is the normal maximum permissible period of disconnection. In the absence of any request by him to continue the disconnection beyond six months, the Board had a duty to dismantle the supply on the expiry of the period of six months from the date of disconnection. I am therefore of the considered opinion that the demand made by the Board for fixed charges beyond the period of six months from the date of disconnection, namely for a period beyond six months from 16.9.2000 cannot be sustained. I accordingly declare that the petitioner is liable to pay fixed charges only for the period of six months from 16.9.2000. The Board has no case that energy charges up to 16.9.2000 have not been paid. O.P.No.28390/2002 6 In the result, I allow the original petition, quash Exts.P3(a) to P3(o) bills and Ext.P7 order and direct the respondents to issue a revised invoice confining the levy of fixed charges for a period of six months from 16.9.2000. This shall be done within one month from the date of receipt of a certified copy of this judgment. It is brought to my notice that the petitioner has pursuant to the interim orders passed by this Court on 8.10.2002 remitted the sum of Rs.16,000/- as a condition for stay of recovery of the amount covered by Exts.P3(a) to P3(o) bills. The petitioner will be liable to pay interest on the fixed charges payable during the said period of six months only from the respective due dates till the date on which the petitioner remitted the sum of Rs.16,000/- pursuant to the interim order passed in this original petition. If pursuant to the direction issued herein, on redetermination of the amount payable by the petitioner it is found that the petitioner is liable to pay only a lesser amount, the Board shall refund the balance amount to the petitioner. P.N.RAVINDRAN Judge TKS