Appeal against reduction of penalty interest dates by Single Judge in electricity theft case. Bench rejected challenge to penalty quantum based on connected load, dismissed appeal, and allowed payment in instalments.
Appeal dismissed; appellant permitted to pay liability via two equal instalments within two weeks each.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938
WA.No. 675 of 2016 () IN WP(C).797/2013 -----------------------------------------
AGAINST THE JUDGMENT IN WP(C) 797/2013 of HIGH COURT OF KERALA DATED 19-06-2015
APPELLANT(S)/PETITIONER:
P B ABDUL SALAM PERUMBADAN HOUSE, CHOWARA, ALUVA, PIN - 683 571.
BY ADVS.SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA
RESPONDENTS/RESPONDENTS:
R1 to R3 BY ADV. SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2016, THE COURT ON 19-07-2016 DELIVERED THE FOLLOWING:
P.R. RAMACHANDRA MENON &
ANIL K. NARENDRAN, JJ.
W.A.No.675 OF 2016
Dated this the 19th July, 2016
JUDGMENT
P.R. Ramachandra Menon, J.
The writ petitioner is the appellant herein. The challenge is against Exts.P4 and P10 orders passed by the Original and appellate authorities in respect of the penalty imposed for unauthorised use of electricity and the interference declined by
the learned Single Judge, but for reducing the liability to pay interest, fixing the same as only from the date of passing the appellate order, i.e. Ext.P10.
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building, there was yet another building in the name of wife of the appellant, which was situated about 35 metres away, where no power connection was provided. As a matter of fact, an industrial unit was being run in the said building as well with consumer No.6894 . But admittedly, the power supply was intercepted in the year 2004 and the connection was dismantled on 29.09.2006. It is stated that the right to conduct business in the name and style as 'Perumbadan Polymers' in the premises where power connection with consumer No.5288 was in existence, was given on lease to one Aliyar, as per Lease Deed dated 22.11.2006 for a period of 11 months, subject to the terms and conditions stipulated therein. As per the same Lease Deed, the nearby building in the name of wife of the appellant was also given to the lessee allegedly for using it as a 'godown' subject to payment of a monthly rent of Rs.1000/-, over and above the lease rent fixed in respect of the former building and the machinery situated therein.
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Officer (KSEB)(I.G. Of Polcie), there was a surprise inspection by the Anti Power Theft Squad (APTS), Thiruvalla, at the premises on 15.10.2009, when serious instances of unauthorised use of electricity were noted. The Sub Engineer prepared Ext.P2 Mahazar in presence of the APTS and other witnesses then and there. It was noted by the inspecting team, that various machinery were installed in the building situated in the name of wife of the appellant, where manufacture of plastic sheet was going on, despite the fact that no power supply was obtained by the owner or occupier of the said building and inspite of the fact that the earlier supply under Consumer No. 6894 was disconnected and dismantled way back on 29.09.2006. It was also revealed to the inspection team, that the unit was being run by directly tapping the power from the supply lines drawn along the side of the road, situated nearby and by hooking the insulated wires/cables and taking the same to the main switch/Fuse unit fixed on the wall. The machinery were found working at the time of inspection. The different insinuating circumstances, accessories used for tapping the energy
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unauthorisedly etc., were noted, giving even minute particulars in Ext.P2 Mahazar.
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common judgment dated 13.02.2012, without prejudice to the right of the petitioner to file appeal before the statutory authority. The Court however, made it clear that the delay in filing the appeal would be condoned, on condition that the petitioner effected 50% of the total demand and on filing appeal within one month from the date of judgment. The appellant/petitioner filed R.P.No.217 of 2012 against the said verdict, pointing out that there was no appellate authority in existence. The said Review Petition was disposed of by order dated 12.03.2012, making it clear that the petitioner could submit an appeal before the second respondent herein. It was accordingly, that Ext.P9 appeal was filed before the second respondent, also satisfying 50% of the demand, i.e. Rs.32,68,205/-. After hearing, the appellate authority passed Ext.P10 order dated 23.11.2012 confining the period of penalty from 22.11.2006, i.e. from the date of Ext.P1 Lease Agreement and at the rate of '1.5 times' upto 14.06.2007 and thereafter at the rate of 'two times' from 15.06.2007. It was further directed that the Government declared holidays and Sundays had to be
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avoided for the purpose of calculating the actual number of working days of the industry. It was against Exts. P4 and P10, that the writ petition was filed before this Court. After hearing, the learned Single Judge observed that there was absolutely no basis to interfere with the orders under challenge, with reference to the actual extent of connected load, but for modifying the liability to pay interest. The learned Single Judge made it clear that interest shall run only from the date of Ext.P10 order passed by the appellate authority as the original extent of liability was reduced to some extent. This in turn is under challenge in this appeal.
the appellant is that, there is an observation in Ext.P2 Mahazar to the effect that all the machinery were found working at the time of inspection and if this be the position, there could not have been the connected load of '47.06 KW' and that the actual extent, according to the appellant, would work out only to be
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'23.95 KW'.
Counsel for the Board, with reference to the contents of the counter affidavit dated 26.06.2016 giving particulars of the calculation as given in paragraphs 4, 5 and 6, which are reproduced below:
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Rs.65,47,456/- for a period of 3 years. The calculation is as follows:
Penal bill = Total Kw x working hours per day x Diversity factor (here diversity factor is taken as 0.8) x 3 years x 365 days x 2 times x Tariff rate in LT IV + Duty + Penal FC (FC x 2 x Kw x 36) I.e. Penal current charge = 47.046 Kw x 22 hours per day x 0.8 x 3 x 365 x 2 x 3.25 = 5893358, Duty = 498578 Penal FC =Rs.45 x 2 x 48Kw x 36 months =155520 Hence total penal demand =5893358 +498578 +15520 =65,47,456/-
appellant, an attempt is made to quantify the connected load with reference to the intensity of the power carried through three different Phases/Lines, measured in Amperes. The term 'connected load ' has been defined under Regulation No.1(l) of the KSEB Terms and Conditions of Supply, 2005 and rated capacity in terms of KW or KVA of all energy consuming devices connected in the consumer's installation have to be reckoned, split up figures of which have been given by the respondent Board in the aforesaid paragraphs.
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building. The 'modus operandi' has been described in detail in Ext.P2 Mahazar, as to the effect that the power was tapped by hooking cables to the supply lines drawn along the road, which is a very serious instance of unauthorised tapping of electricity and amounts to an offence. In so far as the date of giving the premises on rent is discernible and since the unit was being operated accordingly, there was nothing wrong in fixing the penalty for the extent as now fixed by the departmental authority. There is absolutely no tenable ground to call for interference. Appeal fails and the same is dismissed accordingly. It is made clear that the benefit given by the learned Single Judge, reducing the liability to pay 'interest' only from the date of passing Ext.P10 order by the appellate authority, is left intact.
P.R. RAMACHANDRA MENON, JUDGE
ANIL K. NARENDRAN, JUDGE
lk
W.A.No.675 OF 2016
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P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
W.A.No.675 of 2016
Dated this the 19th day of July, 2016
ORDER
Ramachandra Menon, J.
After pronouncing the judgment dismissing the appeal the learned counsel for the appellant sought for some breathing time to clear the outstanding liability.
2. Considering the quantum of liability to be discharged
we find it appropriate to permit the appellant to satisfy the due amount by way of two equal instalments. The first instalment shall be effected within two weeks from today and next one shall be effected within two weeks thereafter.
This order will form part of the judgment.
P.R.RAMACHANDRA MENON, JUDGE
ANIL K.NARENDRAN, JUDGE
skj
2 issues framed by the court
Whether the fixations of connected load and penalty for unauthorised use of electricity were illegal or irregular.
Whether the period of penalty can be fixed beyond one year under Section 126(5) of the Electricity Act, 2003 when actual usage was clear.
2 provisions across 2 enactments
P B Abdul Salam
Kerala State Electricity Board
The Deputy Chief Engineer Kerala State Electricity Board
The Assistant Engineer Kerala State Electricity Board
The District Collector Ernakulam
The Deputy Tahasildar Revenue Recovery
P.R. Ramachandra Menon
Anil K. Narendran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
