IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 WA.No. 1092 of 2010() --------------------- AGAINST THE JUDGEMENT IN WPC.3679/2007 Dated 19/08/2009 .................... APPELLANT(S): PETITIONER IN W.P(C)NO.3679/09 -------------------------------------------- SHINY BOBY, AGED 29 YEARS, W/O.BOBY, OOROTH HOUSE, P.P.ROAD, PATHIPALAM, PERUMBAVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): RESPONDENTS IN W.P.(C)NO.3679/07 ----------------------------------------------- 1. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, PATTOM, THIRUVANANTHAPURAM. 2. THE DEPUTY CHIEF ENGINEER, ANTI POWER THEFT SQUAD, PATTOM, THIRUVANANTHAPURAM 3. THE ASSISTANT EXECUTIVE ENGINEER, ANTI POWER THEFT SQUAD, PALAKKAD. 4. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, VENGOLA, PERUMBAVOOR. BY S.C. SRI.C.K.KARUNAKARAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ W.A..No. 1092 OF 2010 ------------------------ Dated this the 7th day of July, 2010 JUDGMENT Abdul Rehim, J. Challenge in the writ petition was against Ext.P4 appellate order issued by the 2nd respondent under Section 126 of the Electricity Act 2003, and also against the consequential demand raised Ext.P5. Penalty was imposed based on an allegation that the petitioner had misused electrical energy by extending domestic connection for commercial purpose, which was detected pursuant to an inspection conducted on 31/1/2006. The Assessing Authority had imposed penalty for a previous period of six months. In appeal the penalty was reduced by limiting the same for a period of two months, i.e: from 1-12-2005 to 31-1- 2006. It is further directed that the penalty will be continued till the petitioner avails separate connection to the commercial establishment wherein misuse was detected or till she disconnect WA.No.1092/2010 2 supply taken from the domestic connection to the said premises. 2. According to the petitioner new commercial connection was provided for the commercial activity on 21/4/2006. Exts.P6 and P7 are the requests made during February 2006 for providing new commercial connection as well as for shifting of the Electric Metre provided for the domestic connection. It is submitted that on the basis of such request, the connections were segregated on 21/4/2006. Complaint of the petitioner was that inspite of the same, the billing at the rate applicable to LT VII-A tariff and imposition of penal charges is being continued with respect to the domestic connection, which could not be done at any rate after 21/4/2006. 3. The learned single Judge while disposing the writ petition directed the 4th respondent to inspect the premises and to verify as to whether the requirement of the commercial portion is met from the new connection in order to take a decision regarding discontinuance of levy of commercial tariff with respect to the domestic connection. Further it was directed that the 4th respondent should verify as to whether the need for the commercial area is also met from another connection with WA.No.1092/2010 3 Con.No.6266. It was directed that if the 4th respondent became convinced that the commercial need is being met from the said two connections, then the domestic connection should be restored under LT 1 A tariff. 4. Even though learned Single Judge had granted relief to the petitioner to the extent of issuing direction as stated above, request of the petitioner for restoration of the benefits with effect from 21/4/2006 was declined, observing that on verification it may practically impossible to assess the situation which prevailed in the year 2006. The Appellant/petitioner contents that since the connection was segregated as early as on 24/1/2006, the continued billing on the domestic connection at LT VII A tariff as well as imposition of penalty after that date cannot be sustained at any rate. According to Sri.Shanvas Khan, learned counsel for the Appellant, the fact regarding segregation of the connections in question, is a matter which can be verified and ascertained from the records available at the office of the respondents. Further, he points out that the factum of providing new connection to the commercial requirements, is an admitted fact which was already taken note of by the Appellate Authority. So, WA.No.1092/2010 4 the fact could not disputed and the appellant is entitled for the benefit (reliefs) with effect from 21/4/2006 is the contention. 5. Contrary to the above said contentions, Sri.C.K.Karunakaran, learned standing counsel for the KSE Board submitted that there is a chance that the petitioner might have continued use of the electrical energy from the domestic connection for commercial purpose even after providing new connection for the commercial purposes, on 21/4/2006. 6. We are of the considered opinion that it is a matter which can be ascertained by the 4th respondent. Going by the normal procedure followed at the Board, the authorities will check all the wirings done at a premises at the time when a new connection is provided to any premise. Moreover, the premise will be visited by the Meter Reader periodically. There is no case for the respondent that at any time after 21/4/2006, mis use of energy from the domestic connection was noticed. It will be born out from the records as to whether the new connection was provided to meet the entire commercial requirement in the premises in question. If it is convinced by the 4th respondent that there was segregation of the connections with effect from 21/4/2006, then WA.No.1092/2010 5 there is no justification for imposing continued penalty on the domestic connection or for billing that connection at L T VII -A tariff from that date onwards. 7. Under the above mentioned circumstance, we clarify that while taking a decision in accordance with the directions contained in the impugned judgment of the learned single Judge, the 4th respondent will consider all the aspects mentioned above, and shall take a just and reasonable decision as to whether continued imposition of penalty and billing at LT VII-A tariff is warranted with respect to the domestic connection, from 21/4/2006 onwards. 8. Considering the allegation that the objectionable billing is being continued even now, we direct the 4th respondent to take a final decision in the matter as early as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment after affording an opportunity of personal hearing to the petitioner. It is made clear that the petitioner can also produce documents if any in support of her claim. Needless to say that if the 4th respondent takes any decision in favour of the petitioner, refund/adjustment of excess amount if any paid WA.No.1092/2010 6 will be done without any further delay. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk