IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 20828 of 2005(D) -------------------------- PETITIONER: --------------- DR.ANTO T.JOSEPH, S/O.LATE T.JOSEPH GEORGE, THEKKEKARA HOUSE, OLLUR, THRISSUR (PROPRIETOR, HOLY FAMILY HOSPITAL OLLUR, THRISSUR). BY ADV. MR.K.N.PADMAKUMAR RESPONDENTS: --------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN, THIRUVANANTHAPURAM. 2. THE DEPUTY CHIEF ENGINEER, APTS, K.S.E.B., PALAKKAD. 3. THE ASSISTANT EXECUTIVE ENGINEER, K.S.E.B., ELECTRICAL SUB DIVISION, OLLUR, THRISSUR. ADV. MR. P.P.THAJUDHIN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).20828/05 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:-TRUE COPY OF THE PREMISES METER CARD DT/ NIL ISSUED BY KSEB EXT.P2:-TRUE COPY OF NOTICE ALONG WITH CALCULATION STATEMENT DT.16.5.01 ISSUED BY THE APTS. EXT.P3:-TRUE COPY OF SITE MAHAZAR DT/16.5.01 PREPARED BY APTS OFFICIALS EXT.P4:-TRUE COPY OF THE OBJECTION DT.14.8.01 FILED BEFORE R2 EXT.P5:-TRUE COPY OF APPEAL ORDER IN APTS/BV/6049 DT.16.5.04 OF R2 EXT.P6:-TRUE COPY OF NOTICE ALONG WITH THE BILL DT.1.7.05 ISSUED BY R3 RESPONDENT'S EXHIBITS:- NIL okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No. 20828 OF 2005 ------------------------------ Dated this the 18th day of June, 2009 J U D G M E N T ---------------------- 1. Petitioner is aggrieved by Ext.P5 appellate order of the 2nd respondent passed on an appeal filed against imposition of penal current charges and fixed charges on him, through Ext.P2. Petitioner is running a Hospital which is provided with electrical connection under the jurisdiction of the 3rd respondent. The 'Anti Power Theft Squad' conducted an inspection at the premises on 16.5.2001. Ext.P3 is the mahazar prepared, from which it is evident that the seal affixed in the Electric Meter was found to be intact. But it is noticed that 2 phaces of the Meter was not working and the Meter was not recording full consumption of energy. On counting the total connected load, it is found that there is an excess unauthorised load of 8KW connected in the premises. On the basis of the inspection Ext.P2 bill was issued. The split up in Ext.P2 revealed that penalty on fixed charges and energy charges leviable on the unauthorised additional load of 8KW was imposed at 3 times and 2 times respectively, based on the previous average consumption. Further with respect to the fault of the Electric Meter, two times W.P.(C).20828/05 2 of the average recorded consumption for the last six months period is imposed, on the basis that 2 phases was not recording consumption. The petitioner had produced Ext.P1 which is the copy of the “Premises Meter Card”. In Ext.P1, in the month of 6/01 the meter reading noted is 9949. The reading recorded with respect to the month of 5/01 was 9948. Since the Meter had shown consumption of only one unit within one month period, the Meter Reader had specifically noted on the remarks column as “Meter stuck up.” The readings noted with respect to the subsequent months shows different figures. It is not discernable from the 'Premises Meter Card' as to whether any replacement of the Meter was done in between. The inspection was during 5/01. But the remark noted as “Meter stuck up” pertains to the month of 6/01. This fact is contradictory to the version in Exts.P2 and P3 that one of the phases of the Meter was recording and only 2 phases were not recording consumption. Further, it is evident that there is no allegation of any theft or tampering of Meter or any other misuse, except the usage of unauthorised additional load of 8KW. In such circumstances, whether imposition of penalty of fixed charges and energy charges is sustainable need be considered. A Division Bench of this Court in Writ Appeal No.1231/03 decided W.P.(C).20828/05 3 that maximum penalty on fixed charges is not leviable in cases other than theft. The demand for energy charges on the presumption that 2 phases was not recording, also need reconsideration on the basis of the exact position of the Meter at that time existed. On a perusal of Ext.P5 order issued by the appellate authority it seems that the appellate authority has not gone into these aspects and considered the contention raised by the petitioner in this regard. 2. In these circumstances, the matter needs reconsideration at the hands of the appellate authority. A verification regarding working of the Meter in question is necessary to decide whether there was any escapement of consumption as unrecorded. If it is a complete fault or struck down of the Meter as noted in the reading card, it is not proper to assess the consumer with 2 times of the recorded average consumption for the previous period. On the other hand the billing has to be done based on the average consumption for the undisputed previous period, during which the Meter was working properly, after giving credit to the consumption already charged. In order to ascertain this aspect, a checking of the records kept in the concerned Sub Section about the meter reading and about replacement of the Meter is necessary. W.P.(C).20828/05 4 Further it is necessary to have testing of the Meter in question in case the dispute cannot be resolved from the data available on record. So also, the aspect of imposition of penalty on fixed charges and current charges on the basis of the unauthorised additional load, also need consideration, in view of the observations made above. 3. In the result, Ext.P5 is quashed. The 2nd respondent or the appropriate Deputy Chief Engineer having jurisdiction in the area concerned, is directed to take up Ext.P4 appeal on record and to dispose of the same afresh after affording an opportunity of hearing to the petitioner, taking note of the observations made above. This must be done as far as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. It is submitted that the petitioner had already remitted about 2/3rd of demand raised in Ext.P2. Hence recovery of the balance amount will be deferred till fresh decision is taken in the matter by the 2nd respondent. The writ petition is disposed of as above. C.K.ABDUL REHIM, JUDGE. okb