IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 WP(C).No. 24644 of 2003(H) -------------------------- PETITIONER(S): --------------- CAPTAIN C.P.GIRILAL, SON OF SRI.MOTILAL SREEDHARAN, AGED 52 YEARS, RESIDING AT 6-B KANARKAT CONDOMINIUM, NEAR TOC-H HIGH SCHOOL, VYTILA, COCHIN-19 BY ADV. SRI.JACOB MATHEW MANALIL RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY SECRETARY, VYDHUTHI BHAVAN, PATTOM P.O., TRIVANDRUM-4 PIN 695004 2. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KERALA STATE ELECTRICITY BOARD, PUTHEN CHANTHAI, TRIVANDRUM-695001 ADV. SRI.C.C.THOMAS, SC, K.S.E.B FOR R1 & R2 SRI.P.SANTHALINGAM, SC, KSEB FOR R1 & R2 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).24644/03 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF COMPLAINT TO THE POLICE DT.6.3.2000 EXT.P2:- TRUE COPY OF NOTICE FROM KSEB DT.28.3.2000 EXT.P3:- TRUE COPY OF REPLY LETTER DT.29.3.2000 EXT.P4:- TRUE COPY OF REPRESENTATION DT.5.5.2000 EXT.P5:- TRUE COPY OF NOTICE FROM KSEB DT.9.7.2003 EXT.P6:- TRUE COPY OF VOUCHER DT.26.1.2000 EXT.P7:- TRUE COPY OF VOUCHER DT.28.1.2000 EXT.P8:- TRUE COPY OF BILL NO.008188 DT.15.1.1999 RESPONDENT'S EXHIBITS:- EXT.R1(A):- TRUE COPY OF MAHAZAR DT.24.3.2000 EXT.R1(B):- TRUE COPY OF LETTER NO.DB6/99-2000/ADDL.LOAD/CONSUMER NO.1139 DT.28.3.2000 EXT.R1(C):- TRUE COPY OF INVOICE NO.11182 DT.28.3.2000 EXT.R1(D):- TRUE COPY OF REVISED INVOICE.71775 DT.28.3.2000 FOR RS.57357/- EXT.R1(E):- TRUE COPY OF LETTER NO.DB6/2000-01/ADDL.LOAD/CON NO.1139 DT.29.3.2000 EXT.R1(F):- TRUE COPY OF LETTER DT.29.3.2000 EXT.R1(G):- TRUE COPY OF PLAINT IN O.S.732/2000 DT.1.4.2000 EXT.R1(H):- TRUE COPY OF AFFIDAVIT AND PETITION DT.1.4.2000 IN I.A.3720/2000 IN O.S.732/2000 EXT.R1(I):- TRUE COPY OF JUDGEMENT & DECREE DT.6.9.01 OF ADDL.MUNSIFF'S COURT, THIRUVANANTHAPURAM IN O.S.732/2000 EXT.R1(J):- TRUE COPY OF LETTER NO.VIG.APTS/AV-13.5/2000/766 DT.17.6.2000 EXT.R1(K):- TRUE COPY OF LETTER DT.DB/CASE/O.S.732/2000/2002-03 DT.16.9.02 EXT.R1(L):- TRUE COPY OF STATEMENT OF COMPENSATION OKB //TRUE COPY// P.A. TO JUDGE C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.24644 of 2003 ------------------------------ Dated this the 22nd day of June, 2010 J U D G M E N T ---------------------- 1. The petitioner is challenging Ext.P5 demand for payment of an amount of Rs.1,03,434/-, towards penalty on detection of unauthorised additional connected load. Petitioner is a consumer of Electricity for running a restaurant, under the 2nd respondent with Consumer No:1139. According to the petitioner, he has approached the 2nd respondent during January 2000 for converting the connection as 3-Phase supply. The 2nd respondent had introduced one Sri.Mathew John, a licensed Wireman, to do the necessary wiring and to complete the required formalities for getting the connection altered as 3-Phase. It is stated that the petitioner had paid an amount of Rs.20,100/- to the said Sri.Mathew John. But he has not done anything as promised. On 6.3.2000 the petitioner lodged a complaint W.P.(C).24644/03 -2- against Sri.Mathew John before the police authorities, a copy of which is marked as Ext.P1. According to the petitioner, as a vengeance against the said action, authorities of 1st respondent Board conducted an inspection at the premises on 24.3.2000. Based on the inspection Ext.P2 demand was issued directing the petitioner to remit a sum of Rs.59,517/- on or before 10.4.2000. Through Ext.P3 the petitioner requested to furnish split up details of the demand. But such request was not responded and therefore he submitted Ext.P4 representation to the Chairman of the 1st respondent Board, in the year 2000 itself. As per the averments in the writ petition there was no response, but Ext.P5 notice was issued in July 2003 threatening recovery steps alleging default in payment of Rs.1,03,434/-. It is contended that the entire action of the respondents are totally malafide as it is motivated by extraneous considerations and since it is taken only to wreak vengeance against the petitioner because he instituted criminal complaint against the above said Sri.Mathew W.P.(C).24644/03 -3- John. 2. Respondents in their counter affidavit had produced Ext.R1(a), which is the Mahazar prepared by the Anti Power Theft Squad (APTS) at the time of inspection. It contains a list of installations and Electrical appliances found at the premises. The Mahazar contains signature of the Manager of the petitioner, Sri.Deepu. According to the respondents, the petitioner was using unauthorised additional load of 6 KW. Ext.R1(b) is the notice issued to the petitioner enclosing Ext.R1(c) bill for penal charges. The amount demanded in Ext.R1(c) was subsequently corrected and per Exts.R1(d) and R1(e) were issued for Rs.57,357/-. Ext.R1(f) is a statement given by the petitioner to the 2nd respondent conceding that he had already removed the additional connected load of 6KW and therefore requesting to refrain from disconnecting the supply. It is pertinent to note that the date of Ext.R1(f) is 29.3.2000, whereas according to the petitioner on 29.3.2000 he had submitted Ext.P3. But the respondent denies receipt of W.P.(C).24644/03 -4- any such letter as Ext.P3. On a comparison of the signature contained in Exts.P3 and R1(f), I am of the opinion that Ext.R1(f) bears true signature of the petitioner. 3. It is revealed through the counter affidavit that, against the demand under Ext.R1(d) the petitioner had filed a civil suit as O.S.732/2000 before the Munsiff Court, Thiruvananthapuram and obtained an injunction against disconnection of supply. But he failed to prosecute the suit by paying balance court fee and consequently the suit was dismissed on 26.9.2001, as per Judgment Ext.R1(i). It is further revealed that the petitioner had also filed an appeal before the Appellate Authority, the Deputy Chief Engineer (APTS), Thiruvananthapuram. Ext.R1(j) is a letter issued by the said authority requiring the petitioner to pay 25% as pre- condition for granting stay against realisation of the amount in dispute, pending disposal of the appeal. The petitioner was also requested to furnish further documents and details with respect to the subject matter W.P.(C).24644/03 -5- of the appeal. But the petitioner had not pursued that remedy also, nor had he remitted 25% as demanded. 4. It is evident and clear that the petitioner had suppressed material facts regarding the steps taken by him to challenge the impugned demand before the civil court and before the Appellate Authority. It is evident that the petitioner has not approached this court with clean hands revealing all relevant facts on the issue. At the same time argument of the petitioner is that this court need to look into the allegations of malafides and should take note of the manifest injustice done with respect to raising a high demand of penal charges. 5. With respect to the allegations of malafides, apart from assertion of the petitioner that the entire action was instigated due to vengeance, because the petitioner had initiated criminal action against Sri.Mathew John, there is nothing on record to show that the inspection conducted by the APTS was on the basis of any such action. On the other hand, there is no denial from the side of the petitioner with respect to the W.P.(C).24644/03 -6- unauthorised additional load. As per the provisions contained in the Conditions of Supply of Electrical Energy, usage of unauthorised additional load is liable to be imposed with penalty. If the consumer has got any dispute regarding the liability or with respect to correctness of such penal charges imposed, the said regulations provide for effective appellate remedy. In the case at hand, the petitioner has chosen to resort to such remedy by filing appeal. But he failed to pursue the said remedy. Apart from that he has also impugned the demand by filing civil suit, which also he failed to pursue. Further, as stated above, the petitioner had purposefully suppressed all such material facts in this writ petition. 6. Under the above mentioned circumstances I am of the opinion that this court is not justified in examining correctness of the demand or to enter upon any adjudication on disputed facts regarding basis on which such demand is raised. Therefore, I am of the considered opinion that the writ petition could not be entertained and the same is liable to be dismissed. W.P.(C).24644/03 -7- 7. However, learned counsel for the petitioner has brought to my attention a Division Bench decision of this court in W.A.No:1231/2003 dt.9.11.2005. It is held therein that in case of detection of unauthorised connected load, imposition of maximum penalty is unwarranted in all cases. In other words, when there is no theft or mischief done with any intention to extort electrical energy, mere installation of unauthorised connected load may not invite maximum penalty provided under the relevant regulations. Considering the dictum laid in the above said judgment, I am of the opinion that the petitioner can be given a chance to make representation before the 1st respondent seeking for re- consideration of the quantum of penalty imposed. 8. If the petitioner makes any representation as above to the Secretary of the 1st respondent Board, the same will be considered and appropriate decision will be taken by the Secretary, after affording an opportunity of hearing to the petitioner as early as possible, at any rate within a period of two months from the date of receipt of W.P.(C).24644/03 -8- such representation. It is also left to the petitioner to move before that authority seeking to keep in abeyance any coercive steps for recovery till such a decision is taken. The writ petition is disposed of with the above directions. C.K.ABDUL REHIM, JUDGE. okb