KERALA STATE ELECTRICITY BOARD Vs. THOMAS ALAPPATT

JUDGEMENT

(1.) The Review Petitioners are the appellants, seeking review of the common judgment in W.A. Nos.2086 and 2089 of 2009. The respondent herein is the respondent in both the writ appeals and the petitioner in the respective writ petitions.

(2.) Facts in a nutshell are as follows. Business premises of the respondent, wherein an electric connection under commercial tariff was provided, was inspected by the Anti Power Theft Squad(APTS) attached to the 1 st appellant Board, on 08.12.2000. Alleging unauthorized usage of additional connected load to the extent of 10 KW., penalty was imposed on the respondent at three times of the fixed charges and the energy charges. O.P. No.10640/2001 was filed challenging the notice and the demand, as well as the order of the appellate authority dismissing the appeal filed against the imposition of penalty. O.P. No.14124/2001 was filed challenging the subsequent demand raised for payment of penalty, alleging continued usage of the unauthorized additional load. The above writ petitions were disposed by the learned Single Judge by following the ruling in George Joseph v. Kerala State Electricity Board & others (2008 (4) KLT 610). In the said case, this court held that, Regulation 43 of the Regulations relating to Conditions of Supply of Electrical Energy, 1990, cannot be invoked when there is no detection of any theft of energy. In respect of usage of unauthorized additional connected load, penal action can be taken only under Regulation 42(d) of the above said Regulations. Referring to the provisions contained in Regulation 42(d), it was held that, for unauthorized additional connected load, only three times of the fixed charges alone can be realised as penalty, and no penalty can be levied on energy charges, in so far as the actual energy consumption by the consumer had already been billed and paid. On the basis of the above ruling, the impugned demands were quashed, to the extent it demanded payment of penalty of three times on the energy charges. Revised demand was directed to be issued restricting the penalty on fixed charges alone.

(3.) The common judgment in the writ petitions were challenged at the instance of the Review Petitioners, in the writ appeals filed. The contention raised was that the term "tariff" includes not only fixed charges, but also energy charges. The purpose for which the provision enabling imposition of penalty was introduced is to prevent unauthorized usage, pilferage and malpractices by the consumers. Apart from the fact that the Board has to recoup the loss suffered by such pilferage, unauthorized usage or malpractice, it is intended to stop such practices by penalizing the consumers. It is for the said purpose, Regulations 42(d) and 43 were incorporated in the Conditions of Supply of Electrical Energy. It was introduced with the objective of deterring the consumers from causing any such loss through the pilferage, malpractice etc. The provisions contained in the Conditions of Supply of Electrical Energy forms part of the contract entered by the consumer with the Electricity Board. Therefore consumer cannot retract from the liability entangled with such mischiefs. It was contended that the dictum laid down by this court in the case in J.D.T. Islam Orphanage Committee v. Assistant Engineer, KSEB(2007 (3) KLT 388) as well as in George Joseph v. Kerala State Electricity Board (supra) has not considered the above aspects and had failed to settle the law on the issue in its correct perspective.