K.J. Thomaskutty Proprietor, M/S Modern Rock Mining Industry v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940** ## **WP(C).No. 14268 of 2009** ## **PETITIONER:** **K.J.THOMASKUTTY PROPRIETOR, M/S.MODERN ROCK MINING INDUSTRY, KOMPANOLI, VADASSERIKARA, PATHANAMTHITTA.** **BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SMT.INDU SUSAN JACOB SMT.NISHA JOHN SRI.PAUL JACOB (P) SRI.ROSHEN.D.ALEXANDER** ## **RESPONDENTS:** |**1**|**KERALA STATE ELECTRICITY BOARD**| |---|---| ||**VAIDYUTHI BHAVAN, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY.**| |**2**|**EXECUTIVE ENGINEER**| ||**PATHANAMTHITTA ELECLTRICAL DIVISION, PATHANAMTHITTA.**| |**3**|**ASSISTANT ENGINEER**| ||**ELECTRICAL DIVISION,, VADASSERIKKARA, PATHANAMTHITTA.**| |**4**|**K.SURESH**| ||**ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL DIVISION,**| ||**VADASSERIKKARA,, PATHANAMTHITTA.**| **BY ADVS. SRI.SAJEEVKUMAR K.GOPAL SMT.P.K.RADHIKA SRI.P.P.THAJUDEEN SRI.SAJEEVKUMAR K.GOPAL SRI.V.V.BINU -SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 14268 of 2009 2 ## **JUDGMENT** The petitioner claims to be the proprietor of a Unit by name “Modern Rock Mining Industry” and he has challenged Exts.P7 and P10 orders in this writ petition. Ext.P7 is the penal bill issued under Section 126 of the Electricity Act 2003 and Ext.P10 is the order issued by the Assistant Engineer Electrical Division rejecting his objections against the said bill. As is clear from them, an amount of Rs.1.31 crores has been imposed against the petitioner for alleged unauthorized connected load, treating it as an unauthorized extension and imposing penalty on a daily basis; and the petitioner alleges that this is contrary to the declaration of law by this Court in various judgments before. 2. Shorn of all unnecessary details, the allegation of the KSEB against the petitioner is that he has drawn an unauthorized cable from the power meter WP(C).No. 14268 of 2009 3 installed at his Unit; thereby illegally drawing power to another industry situated 15 meters away. The petitioner says that this allegation itself is wrong, because according to him, the other industry was actually being run on diesel generator. He, however, concedes that a cable was laid between these two Units but asserts vehemently that this has been done by KSEB themselves. According to him, the mahazars prepared by the competent Authority of the KSEB, namely Exts.P5(b) and P5(d), would clearly establish the veracity of this submission. 3. I notice that on an earlier occasion, the petitioner had, in fact, impugned Ext.P7 before this Court, by filing W.P.(C)No.30027/2008 which was disposed of by a learned Judge of this Court, through Ext.P8 judgment. It is based on the directions in this judgment that the 3[rd] respondent-Assistant Engineer has considered his objections, leading to Ext.P10 order, which is impugned in this writ petition. WP(C).No. 14268 of 2009 4 4. I have heard Sri.Bechu Kurian Thomas, the learned senior counsel assisted by Sri.John Cheriyan, the learned counsel appearing for the petitioner and the learned standing counsel appearing for the KSEB. 5. The submissions of the learned senior counsel are two fold; a) That the factual finding against his client that he had unauthorizedly drawn a cable from his Unit to another is wrong. b) That even if this factual finding is correct, then the penalty imposed on him through Ext.P7 is without basis and untenable in law, going by the judgments of this Court _**Jomy Thomas Manjooran v.**_ _**Kerala State Electricity Board**_ [2013 (1) KLT 595] and _**J.D.T Islam Orphanage Committee v. Assistant Engineer,**_ _**K.S.E.B**_ [2007 (3) KLT 388] 6. On the first issue, the learned senior counsel asserts that nowhere in the materials on record would it become discernible that the petitioner had actually WP(C).No. 14268 of 2009 5 drawn the cable from his Unit to the other. According to the learned senior counsel, Ext.R5(b) mahazar would make it clear that the other Unit was being operated by a diesel generator and he says that this becomes fortified by the recordings in Ext.R5(b) mahazar also. 7. Even though I hear the learned senior counsel as afore, the fact is that in Ext.R5(b) mahazar, there is a clear finding on fact that a cable is seen running from the petitioner's Unit to the other. In fact, this is conceded by the learned senior counsel, but the contra assertion is that this was not done by the petitioner but by the KSEB itself. The learned senior counsel makes these submission based on Ext.P3(a) document where under he says that the petitioner's son, who is running the other Unit, was allowed to obtain an extension and that this extension was thereafter made by the KSEB after the petitioner's son had complied with all the conditions shown therein. 8. This is essentially a disputation on facts, WP(C).No. 14268 of 2009 6 because even though, from Ext.P3(a), it is clear that petitioner's son could have obtained the extension only after he had applied for an HT connection, no materials have been placed on record to show whether he had so obtained it and whether the KSEB had thereafter sanctioned the extension. It would not, therefore, be possible for the Court, while I act under Article 226 of the Constitution of India, to delve into it or affirmatively state on it and I am therefore inferentialy guided to accept Ext.R5(b) mahazar ex facie and to conclude that an extention was factually detected, albeit leaving open the issue as to whether it was done by the KSEB, as contended by the petitioner, to be decided in the manner as I will direct below. 9. That said, the further question that then arises is whether Exts.P7 and P10 order can obtain favour in law. On this issue, I find substantial force in the submissions of Sri.Bechu Kurian Thomas, the WP(C).No. 14268 of 2009 7 learned senior counsel, because it has been declared by this Court in the afore two judgments, cited by the petitioner, that the levy of charges for temporary extension on daily rental basis cannot be adopted for imposing penalty, when unauthorized extension is detected. However, this is not an issue that has been considered by the 3[rd] respondent, when the petitioner's objections were looked into by him, leading to Ext.P10 order. I am, therefore, of the view that even though I cannot find favour with the petitioner with respect to his contention that factually there was no extension detected, I am of the firm opinion that his factual assertion that, such extention was made by the KSEB and his contentions in law based on the afore two citations would certainly have to engage the attention of the 3[rd] respondent. 10. In such perspective, I quash Ext.P10 order, not because I have concluded affirmatively against its contents; but to pave way for the 3[rd] respondent to WP(C).No. 14268 of 2009 8 question as to if the extention detected was made as sanctioned by the KSEB and if so to reconsider the quantum of penalty imposed against the petitioner with specific reference to the afore two judgments namely, _**Jomy Thomas Manjooran v. Kerala State Electricity**_ _**Board**_ [2013 (1) KLT 595] and _**J.D.T Islam Orphanage Committee v. Assistant Engineer, K.S.E.B**_ [2007 (3) KLT 388], after affording an opportunity of being heard to the petitioner, as expeditiously as possible but not later than four months from the date of receipt of a copy of this judgment. 11. Needless to say until such time, as a decision is taken by the 3[rd] respondent and communicated to the petitioner, the order of interim stay granted by this Court will continue and the petitioner will thereafter, be governed by the orders to be issued by the said Authority subject to his rights under law against such order. It Goes without saying the 3[rd] respondent will reconsider these issues, untrammeled by the WP(C).No. 14268 of 2009 9 earlier views taken by him in Ext.P10 order. This writ petition is thus ordered. rp-10.10 **S** d/- **DEVAN RAMACHANDRAN JUDGE** WP(C).No. 14268 of 2009 10 **A P P E N D I X** ## **PETITIONERS EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER OF POWER ALLOCATION DATED 8.11.01 ISSUED BY THE 2ND RESPONDENT EXHIBIT P2 TRUE COPY OF THE LETTER DATED 16.08.04 NO. DBI/8/04-05/351 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS SON** **EXHIBIT P3 TRUE COPY OF JUDGMENT DATED 7.9.05 IN WPC 26544/05 EXHIBIT P3 A TRUE COPY OF THE LETTER DATED 28.11.06 NO. DBI/HT/2006-07 /21 ISSUED BY THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF THE MAHAZAR DATED 20.4.05 EXHIBIT P4 A TRUE COPY OF THE PENAL DEMAND DATED 29.4.05 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER EXHIBIT P5 TRUE COPY OF THE MAHAZAR DATED 9.8.05 EXHIBIT P5 A A READABLE COPY OF THE EXT.P5 EXHIBIT P5 B A TRUE COPY OF THE MAHAZAR DATED 19.7.2006 EXHIBIT P5 C A READABLE COPY OF EXT. P5 (B) EXHIBIT P5 D A TRUE COPY OF THE MAHAZAR DATED 29.4.2008 EXHIBIT P5 E A READABLE COPY OF EXT. P5 (D). EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 26.8.06 NO. DB 23/06-06/26-08-06 ISSUED BY THE 3RD RESPONDENT EXHIBIT P7 TRUE COPY OF THE BILL DATED 15.09.08 NO. DB SC/7922/08-09 SERVED ON THE PETITIONER ON 10.09.08 EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 11.11.08 IN WPC 30027/2008** WP(C).No. 14268 of 2009 11 **EXHIBIT P9** - **TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT** - **EXHIBIT P10** - **TRUE COPY OF THE ORDER DATED 28.2.2009 NO. DB/54/VAD/APTS/08-09/28-2-2009 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P11 TRUE PHOTOGRAPH SHOWING THE ELECTRIC METER AND THE CABLE** - **EXHIBIT P11 A TRUE PHOTOGRAPH SHOWING THE MAIN CABLE GOING UNDERNEATH THE GROUND FROM THE ELECTRIC METER** - **EXHIBIT P11 B TRUE PHOTOGRAPH SHOWING THE MAIN CABLE GOING TOWARDS THE SWITCH BOARD ROOM OF MODERN ROCK INDUSTRIES CLIMBING A SMALL HILLOCK** - **EXHIBIT P11 C TRUE PHOTOGRAPH SHOWING THE CABLE AFTER CLIMBING THE HILLOCK AND GOING TOWARDS THE SWITCH BOARD ROOM OF MODERN ROCK MINING INDUSTRY** - **EXHIBIT P11 D TRUE PHOTOGRAPH SHOWING THE SWITCH BOARD ROOM OF PETITIONERS INDUSTRY CALLED MODERN ROCK TO WHICH THE CABLE FROM THE METER IS CONNECTED** - **EXHIBIT P11 E TRUE PHOTOGRAPH SHOWING THE SWITCH BOARD ROOM AND GENERATOR OF MINI INDUSTRIES SITUATED AT A DISTANCE OF AROUND 70 METERS FROM THE SWITCH BOARD ROOM OF MODERN ROCK** - **EXHIBIT P11 F TRUE PHOTOGRAPH SHOWING THE SWITCH BOARD ROOM OF MINI INDUSTRIES ON THE FAR LEFT OF THE PHOTOGRAPH AND THE OPENING TO THE SWITCH BOARD ROOM OF MODERN ROCK ON THE RIGHT SIDE** ## **RESPONDENTS EXHIBITS** : **EXHIBIT R1 A** **A TRUE COPY OF THE REQUEST DATED 11/7/2008** - **EXHIBIT R1 B** **A TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE CONNECTION AGREEMENT** WP(C).No. 14268 of 2009 12 **EXHIBIT R1 C A TRUE COPY OF THE FIR SUBMITTED BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, RANNY** **EXHIBIT R1 D A TRUE COPY OF THE ORDER IN OP NO. 28521/1999 DATED 30/11/1999** **EXHIBIT R1 E A TRUE COPY OF THE ORDER IN OP.NO. 34495/2000 DATED 20/12/2000** **EXHIBIT R1 F A TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 09/09/2004** - **EXHIBIT R1 G** **A TRUE COPY OF THE REPORT OF THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, PATHANAMTHITTA DATED 22/06/2006** **EXHIBIT R1 H** **A TRUE COPY OF THE RELEVANT PAGE OF THE INFORMATION REGISTER** **EXHIBIT R1 I** **A TRUE COPY OF THE ASSESSMENT ADVICE ISSUED BY THE INSPECTING OFFICER.** **EXHIBIT R1 J EXHIBIT R1 K EXHIBIT R1 L EXHIBIT R1 M** **A TRUE COPY OF THE REPORT DATED 22/8/2007** **A TRUE COPY OF THE ORDER OF THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, PATHANAMTHITTA** **A TRUE COPY OF THE CHAIRMAN, KSEB DATED 17/12/2007** **A TRUE COPY OF THE REQUEST BY THE 2ND RESPONDENT DATED 23/4/2008** **EXHIBIT R1 N** **A TRUE COPY OF THE LETTER DATED 15/9/2006** **EXHIBIT R1 O EXHIBIT R1 P EXHIBIT R1 Q** **A TRUE COPY OF THE LETTER DATED 27/9/2006 OF THE VADASSERIKARA GRAM PANCHAYAT** **A TRUE COPY OF THE LETTER DATED 16/02/2006** **A TRUE COPY OF THE LETTER DATED 19/04/2007**