IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 OP.No. 32657 of 2002(K) ----------------------- PETITIONER: --------------- M/S.VTM BUILDERS, COCHIN, REPRESENTED BY ITS MANAGING PARTNER. BY ADV. SRI.J.JULIAN XAVIER SRI.RAJESH THOMAS RESPONDENTS: --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, ERNAKULAM. 3. ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION, KALOOR. BY STANDING COUNSEL SRI C.K.KARUNAKARAN FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.NO.32657/2002 ORDER ON CMP.NO.55207/02 IN OP.NO.32657/2002 ------- Dismissed 19/1/2009 Sd/- HARUN-UL-RASHID, JUDGE. APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE PENALTY BILL DTD. 9/10/99 ISSUED TO THE PETITIONER. EXT.P2 TRUE COPY OF THE BILL FOR TH MONTH OF 12/99. EXT.P3 TRUE COPY OF THE MONTHLY BILL FOR THE MONTH OF 7/2001 ISSUED TO THE PETITIONER. EXT.P4 TRUE COPY OF THE REPRESENTATION DTD. 7/11/2000 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P5 TRUE COPY F THE CHART OF EXCESS REMITANCE MADE BY THE PETITIONER FROM DECEMBER 1999 TO JULY 2001. EXT.P6 TRUE COPY F THE BOARD ORER NO.291/91 (PLG.COM.3568/98) DTD. 2/2/99. EXT.P7 TRUE COPY OF THE ORDER NO.B1-18213/93/CE1 DTD. 24/8/93. EXT.P8 TRUE COPY OF THE ORDER NO.B1-13398/2000 DTD. 23/5/2001 OF THE CHIEF ELECTRICAL INSPECTOR. EXT.P9 TRUE COPY OF THE APPEAL DTD. 1/10/2001 FILED BY THE PETITIONER BEFORE THE 2D RESPONDENT EXT.P10 TRUE COPY OF THE ORDER DTD. 25/4/2002. HARUN-UL-RASHID,J. --------------------------- O.P.NO.32657 OF 2002 ---------------------------- DATED THIS THE 19TH DAY OF JANUARY, 2009 JUDGMENT Ext.P10 order passed by the Executive Engineer, Electrical Division, Ernakulam as the Appellate Authority is under challenge. The petitioner challenged the penal bills issued to him for the period from 10/99 to 2/2001. According to him, the amount realised from him is in excess of the amount due to the K.S.E. Board and therefore, he claims refund of the amount. It is contended by the petitioner that the K.S.E. Board is empowered to realise penal charges only on fixed charges and not on energy charges. The K.S.E. Board finds that there is an uauthorised load of 34 KW whereas the limit is 10KW, that the petitioner did not regularise the excess load in time and that the pendency of the original petition filed by a stranger resulted in the delay in effecting the service connection to the petitioner's premises etc. The appellate Authority, after examining -2- O.P.No.32657/2002 the factual background, passed Ext.P10 order stating that the Board has only acted as per the prevailing Orders and Rules and also observed that the pendency of the original petition filed by a neighbour caused the delay in finalising the proceedings. Recording the finding that the Board is not responsible for the delay, the appeal petition was dismissed. 2. Learned counsel for the revision petitioner invited this Court's attention to the decision reported in George Joseph v. K.S.E.B and others (ILR 2008 (4) KER. 377). This Court held in paragraph 13 that the demand of 2 times rate of current charges for the proportionate consumption to the unauthorised load in addition to 3 times normal rate of fixed charges for unauthorised additional load is clearly without jurisdiction and liable to be set aside. This Court while passing the judgment followed the decision reported in J.D.T. Islam Orphanage Committee v. Assistant Engineer (2007 (3) KLT 388). This Court in the said decision noticed that in any event for unauthorised load a penalty is already provided for in Regulation -3- O.P.No.32657/2002 42(d) and therefore Regulation 43 cannot be applied, it would amount to double jeopardy. 3. The learned counsel for the K.S.E. Board brought to this Court's notice a Division Bench decision in W.A.No.1231/2003 (A. Salim v. K.S.E. Board and others). This Court held that in a case where imposition of penalty is disproportionately high compared to the culpability a liberal interpretation of the provision is warranted, that though the amended provision would not operate retrospectively and the petitioners would not get benefit of the amended provisions as such, we are of the considered view that the Board would reconsider the petitioner's request for reduction of penalty imposed, since they had not indulged in theft of energy or acted with evil intention with the knowledge that they are committing a wrong act. In the absence of any means rea imposition of maximum penalty has to be reconsidered. On the basis of the above observation the Division Bench directed the Board to reconsider the request of the petitioners therein for reduction of -4- O.P.No.32657/2002 penalty. 4. The learned counsel for the petitioner requested this Court for a direction to reconsider Ext.P9 appeal on the basis of the decisions of this Court and Regulations 42 and 43. The Executive Engineer also should have noted the fact that the delay in completing the proceedings was not due to the fault of the petitioner; but for the reason of pendency of a case filed by a stranger. 5. So, taking into consideration all the aspects, the 2nd respondent-Appellate Authority shall reconsider Ext.P9 appeal on merits and pass appropriate orders thereon in accordance with law and to issue fresh bill of penalty on fixed charges in accordance with the said direction. Ext.P10 order is set aside. Original petition is allowed as stated above. HARUN-UL-RASHID, Judge. kcv. -5- O.P.No.32657/2002 HARUN-UL-RASHID,J. --------------------------- W.P.(C)/C.R.P.NO. OF 2005 ---------------------------- DATED THIS THE 16TH DAY OF JANUARY, 2009 JUDGMENT/O R D E R HARUN-UL-RASHID, Judge. kcv. -6- O.P.No.32657/2002 HARUN-UL-RASHID,J. -------------------------- O.P.NO.32657 OF 2002 -------------------------- JUDGMENT 19th January, 2009