IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 WP(C).No. 31670 of 2009(C) -------------------------- PETITIONER(S): --------------- M/S.LYRIL PLASTICS,ELANJIPARA.PO, CHALAKUDY,REPRESENTED BY ITS PROPRIETOR SRI.P.P.JOY. BY ADV. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY,VYDYUTHI BHAVAN, PATTOM,THIRUVANANTHAPURAM. 2. DEPUTY CHIEF ENGINEER,APTS,KERALA STATE ELECTRICITY BOARD,THIRUVANANTHAPURAM. 3. ASSISTANT ENGINEER,KERALA STATE ELECTRICITY BOARD,ELECTRICAL SECTION, PARIYARAM. 4. SRI.PRASAD MATHEW,ASSISTANT EXECUTIVE ENGINEER,APTS,KERALA STATE ELECTRICITY BOARD, PALAKKAD. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 31670 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 6th November, 2009. J U D G M E N T The Anti-power Theft Squad of the Kerala State Electricity Board inspected the electrical installation of the petitioner and prepared Ext. P2 mahazar, in which it is alleged that the findings of the squad suggested that the petitioner has been indulging in theft of electrical energy. Accordingly, penal bill has been issued to the petitioner and their electricity supply has been disconnected. Challenging the same, the petitioner earlier approached this Court and the 3rd respondent was directed to consider the objections of the petitioner and to take a final decision in the matter. It was also directed that the connection would be restored on the petitioner paying an amount of Rs. 1 lakh. Subsequently, the petitioner was heard in the matter as evidenced by Ext. P12 minutes. Thereafter, Ext. P13 order has been passed by the 3rd respondent confirming the demand. The petitioner is challenging Ext. P13. 2. According to the petitioner, as is evident from Ext. P3 photograph of the electrical installation, the meter is enclosed in a metal box, which is locked and the key is kept by the 3rd respondent. According to the petitioner, the mahazar does not state that that metal box has been breached in any manner. He also submits that the squad themselves opened the metal box with the help of a blacksmith. That being so, there is no chance of the petitioner committing any theft of electrical energy by manipulating the meter which is kept locked inside the metal bos. The petitioner submits that the pattern of consumption of electrical energy, the details of which are given in Ext. P4, even after the inspection, does not suggest that prior to the period covered by the inspection the petitioner had been consuming more electricity than what has been recorded in the meter. The petitioner has got another contention that as is clear from Ext. W.P.C. No. 31670/09 -: 2 :- P12 minutes of the hearing before the 3rd respondent, the petitioner had specifically requested the 3rd respondent for permission to cross examine two of the engineers who were members of the inspecting team, which has not been permitted by the 3rd respondent and therefore Ext. P13 oder is violative of principles of natural justice as well. 3. I have heard the learned standing counsel for the Kerala State Electricity Board also. He stoutly opposes the prayers in the writ petition. According to him, as is evident from Ext. P4 complaint filed by the petitioner before the Police, it is specifically stated by him that the squad themselves demonstrated to the petitioner as to how by inserting a rod through the metal case the meter can be manipulated. Therefore, even if the metal case is kept locked, it was possible for the petitioner to manipulate the meter, is the contention raised. Standing counsel further points out that under Section 126 of the Electricity Act, only a hearing is contemplated and the question of taking evidence arises only at the stage of appeal. He has got another contention to the effect that the petitioner did not seek cross examination as such in Ext. P12, but only wanted hearing in the presence of M/s. T.K. Krishnan and P.S. Gopinathan. 4. I have considered the rival contentions in detail. 5. I am not inclined to go into the merits of the rival contentions regarding the possibility of the petitioner committing theft of electrical energy. I am of opinion that when the petitioner wanted to cross examine the members of the squad, who prepared the mahazar, he was entitled for an opportunity. Of course, in Ext. P12, the request of the petitioner in that regard is not happily worded. Still, it is evident that what the petitioner intended is cross examination of the members of the squad. W.P.C. No. 31670/09 -: 3 :- 6. I do not find any merit in the contention of learned standing counsel that Section 126 of the Electricity Act does not contemplate permission to adduce evidence insofar as it mentions only a hearing. I am of opinion that the word “hearing” would include opportunity to adduce evidence wherever there is scope for defending an action under Section 126 by adducing evidence. In fact, proceedings before the 3rd respondent are original proceedings and the question of facts has to be decided in the first instance by the 3rd respondent, which can only be on the basis of evidence before the 3rd respondent. That being so, the proceedings under Section 126 would include opportunity to adduce evidence, whenever the consumer requests for permission to adduce evidence. Evidence can be adduced either by examining witnesses or by cross examining the authors of the mahazar relied upon for the purpose of action under Section 126. Here, admittedly, the proceedings are based on the mahazar prepared by the members of the Anti-power Theft Squad. Therefore, in order to disprove the mahazar, the petitioner is entitled to cross examine the members of the squad if he so requests. As is evident from Ext. P12, the petitioner had made such a request although in so many words. That opportunity was not granted to the petitioner. That amounts to violation of principles of natural justice. Ext. P13 is liable to be quashed on that ground. I do so. The 3rd respondent shall re-consider the matter after affording an opportunity to the petitioner to cross examine the two persons mentioned in paragraph 1 of Ext. P12 and to adduce evidence on his side. On the date of hearing, the 3rd respondent shall make available the two persons referred to in Ext. P12 for cross examination by the petitioner. After the petitioner completes the evidence by cross examining the squad members or otherwise, the 3rd respondent shall W.P.C. No. 31670/09 -: 4 :- consider that evidence also and pass fresh orders under Section 126 of the Act. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.