IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WA.No. 925 of 2008() -------------------- {IN OP.5771/2001 OF THIS COURT} .................... APPELLANT(S): RESPONDENTS -------------------------------------------------- 1. ASSISTANT ENGINEER, KSEB, ELECTRICAL MAJOR SECTION, MANKAVU. 2. ASSISTANT EXECUTIVE ENGINEER, APTS, KOZHIKODE. 3. DEPUTY CHIEF ENGINEER, APTS (HEAD QUARTERS, THIRUVANANTHAPURAM. 4. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT(S): PETITIONER ------------------------------------------------- SRI.A.MARAKKAR, S/O.AVARAN, AGED 39 YEARS, MIRSHAD TRADING CORPORATION, OLAVANNA AMSOM OF KOZHIKODE TALUK. ADV. SRI.SUNNY MATHEW THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY, Ag.C.J. & V.GIRI, J. ------------------------- W.A.No.925 of 2008 ------------------------- Dated this the 17th day of February, 2009. JUDGMENT GIRI, J. The Electricity Board and its officials challenge the judgment of the learned single Judge, by which Ext.P2 invoice levying penal charges for additional load and Ext.P4 order passed on an appeal therefrom, were quashed by the learned single Judge declaring that the liability of the petitioner shall be restricted to fixed charges for unauthorised connection. 2. The writ petitioner runs a flour mill and going by admitted facts, a load of 57 kw, was sanctioned. Permission is also granted to use two electrical heaters along with other motors and appliances. The Anti-Power Theft Squad has conducted an inspection on 19.7.2000 and at the time of inspection they found that two of the heaters were in use and they also found another heater. It seems W.A.No.925 of 2008 :: 2 :: that, at the time of inspection, though the 3rd one was in switched off condition, it was found to be hot on touch and therefore, an inference was drawn that it was also being used. On this premise, Ext.P2 additional invoice was issued levying additional penal charges. 3. In appeal preferred by the petitioner, it was contended that though the third heater was purchased on 7.7.2000 and a copy of the invoice was made available for perusal before the appellate authority, the third one was not being used regularly . In fact, it was not connected to the supply system, it was contended. Reliance was placed on Ext.P1 invoice dated 7.7.2000 to fortify the contention that the third heater was purchased as recently as on 7.7.2000, whereas the inspection was conducted on 19.7.2000. 4. The appellate authority dismissed the appeal finding that the inspection team found that the third heater was being used regularly, and going by the consumption W.A.No.925 of 2008 :: 3 :: pattern, the third heater must have been installed more than 6 months prior to the inspection. Accordingly, the levy of penalty was affirmed. The writ petition was filed challenging the said proceedings of the appellate authority. 5. Learned single Judge proceeded to hold that the levy of penal charges can be made only in relation to fixed charges and not on hypothetical basis on electricity charges. While, therefore, setting aside Exts.P2 and P4 to the limited extent, liberty was given to the Board to move against the petitioner, in case the alleged unauthorised load has not been regularised. 6. As stated above, the Board has come up with this writ appeal. 7. It is contended by the appellants that the inspection was made on 19.7.2000 and therefore, the amended provisions of the Conditions of Supply, which came into effect on 18.9.2002 providing for penal charges to be levied only on fixed charges, could not be applied to W.A.No.925 of 2008 :: 4 :: the case on hand. Reference is made to the judgment of the Division Bench in W.A.No.1231/03 dated 21.7.2003. 8. We find that the learned single Judge has not referred to the judgment in W.A.No.1231/03, but has only proceeded to state that it is settled law that levy of charges on proportionate energy consumption is not permitted under law. But we take note of the fact that the appellate authority has proceeded to find in Ext.P4 that the consumption of energy has not gone up during the last six months, but has actually come down during July, 2000. After having observed so, the appellate authority, held that the third heater must also have been connected to the system. This finding is clearly unsustainable. We also find from a reading of Ext.P5 mahazar that the meter, at the time of inspection was found to be working in proper condition. Ext.P4 also records a finding of the inspection team that the seals of the meter were found to be in tact. There was, therefore, no attempt at tampering the meter. W.A.No.925 of 2008 :: 5 :: 9. The appellate authority has not given any valid reason for discarding Ext.P1. If that be so, the contention of the consumer that the third heater was purchased only on 7.7.2000 need not have been brushed aside as such. 10. On an overall appreciation of the facts and circumstances of the case, especially, taking note of the observations made in Ext.P5, we are of the view that the levy of penalty on electricity charges also, may not be justified in the present case. We make it clear that we take this view in the facts and circumstances of this case and therefore, the affirmation of the judgment of the learned single Judge need not be treated as a general affirmation of the principle stated, as such, in the impugned judgment. 11. We, therefore, make it clear that if the appellants take any action against the consumer, if the unauthorised load has not been regularised, then such proceedings may be taken untrammeled by anything that W.A.No.925 of 2008 :: 6 :: has been stated in the impugned judgment by the learned single Judge. Subject to the above, the writ appeal is disposed of. Sd/- (J.B. KOSHY) ACTING CHIEF JUSTICE Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge