Sajan Varghese vs The Assistant Executive Engineer
2021 Latest Caselaw 21257 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR.JUSTICE S.V.BHATTI
                                     &
              THE HONOURABLE MR.JUSTICE BASANT BALAJI
     FRIDAY, THE 29TH DAY OF OCTOBER 2021/7TH KARTHIKA, 1943
                       WRIT APPEAL NO.764 OF 2017
(AGAINST THE JUDGMENT DATED 6.2.2017 IN W.P.(C)No.13614/2016
                OF HIGH COURT OF KERALA, ERNAKULAM)
APPELLANT:

         SAJAN VARGHESE, MANAGING DIRECTOR,
         MANGALAM PUBLICATION (INDIA) PRIVATE LTD.,
         S.H.MOUNT P.O., KOTTAYAM, PIN-686 006.
         BY ADVS.
         SRI.A.A.ZIYAD RAHMAN
         SRI.JOSEPH KURIAN VALLAMATTAM
         SRI.LAL K.JOSEPH
         SRI.V.S.SHIRAZ BAVA
         SRI.M.B.SOORI
         SRI.M.SASIDHARAN


RESPONDENTS:

 1       THE ASSISTANT EXECUTIVE ENGINEER,
         ELECTRICAL SUB DIVISION, KOTTAYAM CENTRAL,
         KERALA STATE ELECTRICITY BOARD LIMITED-695 601
 2       THE STATE ELECTRICITY OMBUDSMAN,
         CHARANGATTU BHAVAN NO.34/895,
         MAMANGALAM-ANJUMANA ROAD, EDAPPALLY, KOCHI-682 024.
 3       THE CONSUMER GRIEVANCE REDRESSAL FORUM (SOUTH),
         KERALA STATE ELECTRICTY BOARD LIMITED,
         SOUTHERN REGION, VYDHYUDHI BHAVANAM, KOTTARAKKARA,
         PIN-691 506, REPRESENTED BY ITS CHAIRMAN
         BY ADVS.
         SRI.RAJU JOSEPH (SR.)
         SRI.N.SASIDHARAN UNNITHAN
         SRI.GEORGEKUTTY MATHEW, SC, KSEB

       THIS    WRIT    APPEAL   HAVING     COME    UP    FOR    ADMISSION   ON
29.10.2021,      THE    COURT   ON   THE    SAME        DAY    DELIVERED    THE
FOLLOWING:
 W. A. No.764 of 2017

                                 2




                            JUDGMENT

Basant Balaji, J

This intra court appeal is filed challenging the

judgment dated 16.02.2017 in W.P.(C)No.13614 of 2016 by

the 3rd respondent. The 1st respondent herein approached

this court by filing the above mentioned writ petition

challenging Ext.P8 order of the 2 nd respondent herein,

whereby the Ombudsmen has quashed the penal bill for

Rs.33,11,236/- issued to the appellant herein. The

appeal petition before the 2 nd respondent was filed by

the appellant herein challenging the order of the 3 rd

respondent/Consumer Grievance Redressal Forum; which

confirmed that the delay occurred to install the (CT/PT)

Unit and the 'POD Meter' is not due to the fault of the

1st respondent herein and it was the responsibility of

the appellant herein to provide metering equipments in

the premises. Hence the 1 st respondent was given liberty

to invoke penal charges according to the gazette W. A. No.764 of 2017

notification dated 27.9.2014, issued by the Kerala State

Electricity Regulatory Commission.

2. The short question to be considered in this

appeal is, whether there is any scope for interfering

with the judgment of the learned single judge? Whereby

the learned single has found that the delay in

installing the (CT/PT) Unit in the premises of the

appellant was due to the latches of both the appellant

as well as the Officials of the Board. The learned

single judge interfered with the order of the Ombudsman

and the penalty of 50% imposed on the appellant was

reduced to 25%.

3. Heard learned counsel for the appellant, Sri

Lal K.Joseph and learned Senior counsel Sri.Raju Joseph

for the 1st respondent.

4. It is an undisputed fact that the appellant's

un-authorised use of electricity was detected by the

inspection of 'Anti Power Theft Squad' (APTS) on

12.11.2012. On the basis of inspection, the appellant W. A. No.764 of 2017

was required to enhance additional contract demand, for

which he applied in December 2013. The contention of the

appellant is that, before 18.04.2014, the time permitted

by the Deputy Chief Engineer, the appellant had produced

the test report of the (CT/PT) Unit from the

transformers with a covering letter on 20.03.2014

itself. The counsel for the appellant argued that, the

Board Officials failed to install the (CT/PT) Unit, and

it is because of the said delay on the part of the

Officials in the Board that he had to pay the penal

charges.

5. The learned single judge came to the specific

conclusion that it is an admitted position that the

appellant did not produce (CT/PT) Meter, which was

calibrated and tested before the Assistant Engineer,

eventhough test reports were produced before him. The

learned single judge also found that on receipt of

Ext.R3(c), the first respondent has not sought for the

(CT/PT) Meter from the appellant herein and so the meter W. A. No.764 of 2017

was not affixed to the connection of the appellant and

he alleged that the electricity energy was used by the

appellant without any meter. The Electricity Board

eventhough had power to disconnect the connection, for

reasons unknown chose not to do so. Thus the learned

single judge came to the conclusion that both the

appellant as well as the Board Officials are at fault

for the delay in installing the (CT/PT) Unit in the

premises of the appellant.

6. Another contention raised before the learned

single judge was that, on the basis of Clause(4) of

Part-B of the Tariff Order, there could be no penal

charges levied, if there was no defect in the meter. It

was found that, the levy can be made even in case of

replacement where the consumer trying to purchase and

supply the meter. The time required for purchase and

supply of the meter as per Clause(4) of the Tariff Order

of High Tension and Extra High Tension is two months and

if the consumer does not replace the same within two W. A. No.764 of 2017

months, the consumer will be charged 50% extra rates,

applicable to him both demand and energy from the date

of expiry of two months fixed for purchase and supply of

the meter, till the date on which the meter is purchased

and supplied by the consumer to the licence. Adverting

to this, the learned single judge found that, levy of

penal charges would be permissible in the present case,

where the 3rd respondent had failed to supply the (CT/PT)

Meter in time. The learned single judge having found

that the delay occurred in replacement of the (CT/PT)

Meter was on the appellant as well as the Board

Officials reduce the penalty to 25% extra over the

prevailing rates.

We have anxiously considered the submissions made

by the counsel on both sides and perused the judgment of

the learned single judge as well as the documents

produced by both sides, and on going through the same,

we are of the opinion that, the learned single judge was

right in entering into a finding that the delay occurred W. A. No.764 of 2017

is due to the latches on the part of the appellant as

well as the lethargy on the part of the Board Officials.

Hence we are of the opinion that, no interference is

warranted on the judgment of the learned single judge

and therefore the Writ Appeal is dismissed.

Sd/-

S.V.BHATTI, JUDGE

Sd/-

BASANT BALAJI, JUDGE ss