IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WP(C).No. 26907 of 2004(C) -------------------------- PETITIONER(S): ------------------ 1. C.BALAN NAIR, DOOR NO.17/503 G AND I, MARUTHI BUILDING, I.G.ROAD, KOZHIKODE. 2. JOSEPH K.THOMAS, AGED 47 YEARS, S/O. THOMAS, RESIDING AT SI FLAT NO.8B, BANK ROAD, CALICUT. BY ADV. SRI.KKM.SHERIF SRI.P.M.KUNJIMOIDEENKUTTY SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SMT.K.K.RATNALATHA RESPONDENT(S): ------------------- 1. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDHYUTHI BHAVAN, PATTOM, TRIVANDRUM. 2. THE DEPUTY CHIEF ENGINEER (APTS), VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, APTS (NR), KOZHIKODE. 4. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KOZHIKODE. 5. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, CENTRAL, KOZHIKODE. 6. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, POTTAMMEL, KOZHIKODE. ADV. SRI.K.S.ANIL, SC, KSEB FOR R1TO6 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO 6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.26907/2004 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE MAHAZAR DT 17.10.2001. EXT.P1(a): TRUE COPY OF THE MAHAZAR DATED 17.10.2001. EXT.P1(b): TRUE COPY OF THE MAHAZAR DT 17.10.2001. EXT.P2: TRUE COPY OF THE INVOICE DT 27.10.2001. EXT.P2(a): TRUE COPY OF THE INVOICE DT 27.10.2001. EXT.P2(b): TRUE COPY OF THE INVOICE DT 27.10.2001. EXT.P3: TRUE COPY OF THE APPEAL DT 21.11.2001. EXT.P3(a): TRUE CPY OF THE APPEAL DT 21.11.2001. EXT.P3(b): TRUE COPY OF THE APPEAL DT 21.11.2001. EXT.P4: TRUE COPY OF THE JUDGMENT DT 22.11.2001 IN OP 35557/2001. EXT.P5: TRUE COPY OF THE INVOICES ISSUED DURING THE MONTH OF NOVEMBER, 2001. EXT.P5(a): TRUE COPYOF THE INVOICES ISSUED DURING THE MONTH OF NOVEMBER, 2001. EXT.P5(b): TRUE COPY OF THE INVOICES ISSUED DURING THE MONTH OF NOVEMBER, 2001. EXT.P6: TRUE COPY OF THE JUDGMENT DT 29.11.2001 IN OP 36314/2001. EXT.P7: TRUE COPY OF THE ORDER BEARING NO.APTS/BV/18/02/KKD/1266 DT 11.8.2004. EXT.P8: TRUE COPY OF THE ORDER NO.B1-29161/93/CEI/DT 27.8.1994. EXT.P9: TRUE COPY OF THE JUDGMENT DT 6.2.2004 IN OP 6360/1998. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 26907 OF 2004 (C) ===================== Dated this the 23rd day of June, 2009 J U D G M E N T First petitioner is the landlord and the second petitioner is the tenant. In the building, the tenant is running a hotel and is availing of supply of electricity with three consumer numbers. 2. The Anti Power Theft Squad of the Board had conducted an inspection of the premises on 17/10/2001 and Ext.P1 series are the three mahazars prepared. In all the three consumer numbers, unauthorised additional load of 2 KW, 23KW and 12 KW respectively were found. Accordingly, Ext.P2 series of bills were issued and the 1st petitioner filed Ext.P3 appeal to the 2nd respondent. The appeal was rejected as per Ext.P7. It is challenging Ext.P7 the writ petition is filed. 3. The contention raised by the counsel for the petitioners is confined to the levy of twice the energy charges as penalty in addition to fixed charges at 3 times. It is stated that such levy is not contemplated under Regulation 42 and 43 of the Conditions of Supply of Electrical Energy. Counsel also placed reliance on the judgment of this Court in George Joseph v. K.S.E.B (2008(4) WPC 26907/04 :2 : KLT 610). 4. On the other hand, the counsel for the Board referred me to the tariff order of 2002, in terms of which, according to her, fixed charge plus energy charge is leviable. It is therefore submitted that energy charges cannot be separated from fixed charges when penalty is to be levied. Reference is also made to the judgment of the Apex Court in Municipal Corporation, Delhi v. Asian Art Printers (P) Ltd. (AIR 1995 SC 196) where the Apex Court has accepted the contention identical to the one raised by the counsel for the Board referring to the tariff order issued by the Municipal Corporation, Delhi. Counsel for the Board also placed considerable reliance on the judgment rendered by the Division Bench of this Court in WA No.1231/2003, where according to the counsel, the Division Bench has accepted the competence of the Board to levy twice the energy charges as penalty prior to 18/9/2002 when the Board issued a notification reducing the penalty on detection of unauthorised additional load. 5. A reading of Ext.P2 series of invoices show that the petitioner has been penalised both by levying fixed charges and also energy charges. The dispute in this writ petition is confined WPC 26907/04 :3 : to the levy of energy charges only. 6. In so far as levy of penalty is concerned, that is governed by Clauses 42 and 43 of the Conditions of Supply of Electrical Energy. In the judgment in George Joseph v. K.S.E.B (2008(4) KLT 610) referred to by the counsel for the petitioner interpreting Clause 43 of the Conditions of Supply, a learned Judge of this Court has held that such penalty is leviable only in the case of theft of energy. In this case also, neither in the mahazar or elsewhere, is there a case for the Board that there has been theft of energy committed by the petitioners. If that be so, Clause 43 is inapplicable to the case of the petitioners. 7. However Clause 42(d) of the Conditions of Supply of Electrical Energy provides that in cases where the consumer exceeds the contract load without the prior permission of the Board, that amounts to misuse of energy and the consumer is liable to be billed at thrice the rate applicable for the respective tariff. Regular energy bill having already been issued ,as per the impugned demand, twice the energy charges are demanded. 8. In my view, this is a case where the contract load has been exceeded by the petitioner. If that be so, the levy of penalty WPC 26907/04 :4 : as done by Ext.P2 bill is permissible in terms of Clause 42(d) of the Conditions of Supply of Electrical Energy. However, illegality in the uniform levy of penalty as provided under Clause 42(d) of the Conditions of Supply has already engaged the attention of a Division Bench in the judgment in WA 1231/2003 where the Division Bench has directed that the Board shall examine each of the cases and decide on the penalty to be levied depending upon the culpability of the consumer concerned. 9. It is now informed that the benefit of this judgment has been uniformly made applicable by issuing general directions. If that be so, necessarily, the petitioner should also get the benefit of such reduction. It is therefore, directed that the respondents shall rework the liability of the petitioner and after giving credit to the amount already remitted by the petitioner pursuant to the interim orders of this Court, the balance, if any, will be demanded and paid by the petitioner. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp