The Assistant Engineer vs The Assistant Engineer
2021 Latest Caselaw 4274 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

                                &

              THE HONOURABLE MR. JUSTICE GOPINATH P.

     FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                        WA.No.138 OF 2021

  AGAINST THE JUDGMENT DATED 25.6.2018 IN WP(C) 23761/2007(D) OF
                       HIGH COURT OF KERALA

APPELLANTS/RESPONDENTS NO.1 TO 3:

       1      THE ASSISTANT ENGINEER
              KSEBL, ELECTRICAL SECTION, NOORANAD.

       2      THE DEPUTY CHIEF ENGINEER
              ANTI POWER THEFT SQUAD (HQ), KSEBL, VIGILANCE WING,
              VYDYUTHI BHVAN, PATTOM, P O, THIRUVANANTHAPURAM.

       3      KERALA STATE ELECTRICITY BOARD
              REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN,
              PATTOM P O, TRIVANDRUM.

              BY ADV. SRI.SUDHEER GANESH KUMAR.R.

RESPONDENT/PETITIONER/RESPONDENT:

              DR.JOSE KOSHY GEORGE
              MANAGING DIRECTOR,
              M/S JOSCO HOSPITAL(P) LIMITED, EDAPPOM, PANDALAM-

              R1 BY ADV. SRI.R.BINDU (SASTHAMANGALAM)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.02.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.138/2021                      2




                           JUDGMENT

Dated this the 5th day of February 2021

Gopinath, J.

This writ appeal has been filed by the Assistant Engineer,

Kerala State Electricity Board, Electrical Section, Nooranad and

others challenging the judgment of a learned single Judge of this

Court in W.P.(C)No.23761/2007. The respondent/writ petitioner

had approached this Court challenging Ext.P6 order of the Deputy

Chief Engineer, KSEB, by which a penalty was imposed on the

respondent/writ petitioner for 'unauthorised extension'.

2. The respondent/writ petitioner contended that he was

the Managing Director of Josco Hospital (P) Ltd., and that he had

applied for providing a connection to a new building constructed

across the road from the existing hospital building and that the

Board had negligently kept the application pending as a result of

which after obtaining sanction from the PWD authorities, a line was

drawn to the building across the road for conducting the X-ray unit

of the Hospital.

3. On a consideration of the matter, the learned single

Judge found that the fact of 'unauthorised extension' is established

as the respondent/writ petitioner had no legal right to undertake

such 'extension' without permission of the Board. The learned

Single Judge had also taken note of the contention of the appellant

Board that since the building is on the opposite side of the road, only

fresh service connection can be granted and no 'extension' can be

permitted. The contention of the respondent/writ petitioner that

the respondent/writ petitioner cannot be penalised under clause 42

(d) of Conditions of Supply of Electrical Energy was also rejected by

the learned single Judge. However, the learned single Judge found

that the respondent/writ petitioner can be penalised only for

additional connected load, which was caused on account of

'unauthorised extension' and thus found that the respondent/writ

petitioner can be penalised only for an additional load of 32kw. This

was on the specific finding that the authorised connected load of the

respondent/writ petitioner was 31kw and he was found consuming

energy at a connected load of 63kw. The learned single Judge also

reduced the penalty to one time in the place of two times penalty

imposed by the Deputy Chief Engineer in the impugned order.

4. The learned counsel for the appellant Board would

contend that the Board itself had shown some leniency in as much as

the Deputy Chief Engineer had reduced the penalty to two times the

rate applicable to the respective tariff when the statutory provisions

(the then prevailing Conditions of Supply of Electrical Energy,

1990), provided that penalty would be at three times the applicable

tariff.

5. As already noticed, in the peculiar facts and

circumstances of the case, the learned single Judge reduced the

penalty to one time in the place of two times penalty imposed by the

Deputy Chief Engineer in the impugned order. The judgment of the

learned single Judge was on 25.6.2018. The appeal was filed with a

delay of 862 days. We have condoned the delay after noticing the

circumstances which led to the delay in filing the appeal.

6. The learned counsel for the Board would contend that

when the Statute had prescribed the penalty to be three times the

applicable tariff, the learned single Judge ought not to have reduced

the penalty to one time especially considering the fact that the

Deputy Chief Engineer had himself reduced the penalty to two times

instead of statutorily fixed three times.

7. The learned counsel for the respondent/writ petitioner

would contend that the circumstances which led to the Deputy Chief

Engineer finding that the penalty should be imposed only at two

times applicable tariff are particularly that there was some

negligence on the part of the Board also in not considering the

application submitted by the respondent/writ petitioner for

connection at the proper time which, according to us, they should

have done essentially considering the fact that the respondent/writ

petitioner was running a Hospital and the extension requested for

was to operate the X-ray unit attached to the Hospital. Even

otherwise, when a consumer makes an application for extending his

electric connection, the Board should have taken a decision within a

reasonable time. In the totality of the facts and circumstances of the

case, we feel that it would be appropriate to fix the penalty at 1.5

times instead of one time as fixed by the learned single Judge,

especially considering the fact that the learned single Judge had on

merits found that the contentions raised by the respondent/writ

petitioner against the action taken by the Board cannot be sustained.

8. The learned counsel for the respondent/writ petitioner

would however contend that his client should not be penalized for

the period during which there was a delay in filing this writ appeal.

We feel that the contention of the respondent/writ petitioner is well-

founded.

9. We, accordingly, hold that no surcharge shall be levied

on the respondent/writ petitioner for the period from 25.6.2018 till

11.1.2021. However, we hold that the Board will be entitled to

recover penalty at the rate of 1.5 times instead of one time as fixed

by the learned single Judge. Therefore, we direct the appellants to

issue a revised calculation raising the demand on the

respondent/writ petitioner by fixing penalty at 1.5 times the

applicable tariff for the excess load of 32kw as found by the learned

single Judge and by not levying any surcharge for the period from

25.6.2018 till 11.1.2021. It is made clear that the demand will be for

a total period of days reckoned by the Deputy Chief Engineer in

Ext.P.6 and at the applicable rate. On such demand being raised, the

respondent/writ petitioner shall be given a reasonable time to remit

such demand.

The writ appeal will stand disposed of accordingly.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

GOPINATH P.

JUDGE

acd