K.S.E. BOARD, REP v. NONE

C.R.K.SURENDRA MOHAN, J.----------------------------------- A.S.No.25 of 2000 ----------------------------------- Dated this the 10th day of July, 2009JUDGMENTThis appeal is filed by the defendants in O.S.No.495 of1996 of the Sub Court, Kozhikode, challenging thejudgment and decree dated 31.3.1999, decreeing the suit.The suit was filed for a declaration that the plaintiff wasentitled to be charged only at the Low Tension tariff ratesand also to declare that a bill dated 10.8.1994 issued to theplaintiff was not liable to be enforced. Permanentinjunction restraining the defendants from terminating ordisconnecting the electric supply connection of the plaintifffor non-payment of the bill dated 10.8.1994 was alsosought. The plaintiff is the respondent in the above appeal.2. The respondent-plaintiff is the Chairman andManaging Director of M/s Doctor Prakashan HomoepathicPharmaceuticals Pvt. Ltd., Chelannur, which is a privatelimited company engaged in the manufacture of A.S.No.25 of 2000 2Homoeopathic medicines. The factory of the plaintiff isfunctioning from its own premises in Chelannur Panchayathaving Door No.750D. The factory was alloted a LowTension electric connection permitting usage of 48 KW(equivalent to 57KVA) of electric energy. The plaintiff hasset up two other units in the same compound, one for theproduction of eye drops and the other for the production ofcosmetics. Though the plaintiff had applied for anenhancement in the connected load allotted, for thepurpose of operating the other units, his request was notconsidered by the authorities. According to the plaintiff,several applications in this regard are pending with thedefendants. However, the plaintiff has installed therequired machinery for the production of eye drops andcosmetics in the factory premises. But, he is not able towork the factory because power has not been allotted bythe first defendant - Board. According to the plaintiff, hehas obtained permission for running the factory using agenerator set. It is further alleged that, on several A.S.No.25 of 2000 3occasions, the defendants had changed the phase line, as aresult of which the revolution of the plaintiff's machinerywas reversed, causing break down of the machinery andinjury to the plaintiff's workers. The plaintiff had issuedletters claiming compensation and requesting thedefendants not to let such incidents happen. Thedefendants being infuriated, inspected the factory premiseson 20.7.1994. They noted the details of all the items ofmachinery available in the factory premises and came to aconclusion that the plaintiff had a connected load of 96.28KW. On the above basis, they brought the tariff rate of theplaintiff under the High Tension category. Thereafter, theyprepared a bill for an amount of Rs.75,780/- and demandedpayment of the said amount. The contention of the plaintiffis that if he is charged as a Low Tension consumer, he needpay only at the rate of Rs.15/- per KW while he has beencharged at the rate of Rs.85/- per KW, the High Tensiontariff rate. According to him, the action of the defendants isillegal and violative of the terms of the agreement entered A.S.No.25 of 2000 4into between the plaintiff and the Board. Therefore, hechallenged the action of the defendants by filing the suit.3. The suit was contested by theappellants/defendants by filing a joint written statement.According to them, it is not on the basis of the actualconsumption of energy that the tariff rate is fixed. Thetariff rate is fixed on the basis of the connected load. Theallotted load of the plaintiff as per agreement No.12/86-87is only 47.51 KW, which includes 4.20 KW as lighting load.An application made by the plaintiff for additional allotmentto the extent of 30 KW was sanctioned but, the plaintiff didnot avail of the same and therefore it got cancelled.4. An inspection conducted on 10.8.1992 revealedthat the plaintiff had connected an additional load of 37KW. Therefore, he was charged an amount of Rs.16,924/-which was paid by him. Another application made by theplaintiff for additional power allocation of 43.5 HP was notsanctioned for technical reasons. The matter was alsobrought to the notice of the General Manager of the A.S.No.25 of 2000 5plaintiff company. On 20.7.1994, an inspection of thepremises was conducted by the Inspection Wing of thedefendants called the Anti Power Theft Squad. Theynoticed that the plaintiff had connected anunauthorized load of 48.28 KW over and above hispermissible load. The inspection was conducted in thepresence of the Manager of the plaintiff who signed themahazar prepared at the time of inspection. The entireload mentioned above was connected through the existingmeter installed in the premises. The same was in violationof clause-24 of the Conditions of Supply of Electrical Energyand was liable to penal action in accordance with clause 42(d) of the conditions referred to above. Pursuant to theinspection, an invoice for Rs.75,780.16/- was prepared andserved on the plaintiff, which was challenged in his suit.The defendants contended that the act of the plaintiff inmaking alteration and extension in the wiring andinstallation in his premises and connecting it to anunauthorized additional load is nothing but, misuse of A.S.No.25 of 2000 6energy and breach of contract under clause-24 of theConditions of Supply of Electrical Energy. The plaintiff hasnot obtained any permission for wiring or installation of themachinery. The contention of the plaintiff that the meterreader who regularly visits the premises did not have anycomplaint is not sustainable because the present complaintis not one coming within the duties of a meter reader. Onthe above contentions, they prayed for dismissal of the suit.5. On the above pleadings, the court below framedfive issues and tried the suit. The evidence in the caseconsists of the oral testimonies of PW1, DW1 and CW1 andexhibits A1 to A13, B1, B2 and C1 documents.6. The court below considered the contentions of theparties in the light of the evidence on record and thepleadings in the case and came to the conclusion that thesuit was liable to be decreed. It is found by the court belowthat the mahazar produced by the defendants, marked asExt.B1 by the court below, has not been properly proved inthe case. There is no evidence available as to what are the A.S.No.25 of 2000 7items of machinery connected to the electrical connectionsanctioned to the plaintiff. No details thereof are mentionedanywhere in Ext.B1. Since the plaintiff has disclosed in hiscomplaint that the machinery for running two other facilities,one manufacturing eye drops and the other producingcosmetics, are already installed in the premises, unless thereis evidence to show that the said machinery were actuallyconnected at the time of inspection, the plaintiff cannot bemade liable to pay the penalty charges levied on him. Thecourt has also found that the plaintiff could not be treated asa High Tension consumer as done in the present case.Therefore, the court below has decreed the suit.7. The appellants challenge the judgment and decreeof the court below on various counts. According to thecounsel for the appellant, Ext.B1 mahazar clearly shows thatthe plaintiff had unauthorizedly connected other items ofmachinery to the existing connection. Consequently, theconnected load has been increased to 48.28 KW. At thetime of inspection on 20.7.1994, the Anti Power Theft Squad A.S.No.25 of 2000 8along with the Assistant Engineer of the local area haddetected the unauthorized connected load that was used bythe plaintiff. According to the counsel, the connection of themachinery could be easily detached at any time. Therefore,it was only on a surprise inspection that the violationcommitted by the plaintiff was detected. Hence, thecontention of the respondent - plaintiff that there was noviolation is unacceptable. In all cases where the connectedload exceeds 100 KVA, the appellants are entitled to chargeat the rates applicable to a consumer under the HighTension Tariff, it is pointed out. Therefore, there is nothingwrong in the demand that is made as per Ext.A9 bill. It ispointed out that the court below seriously went wrong infinding that Ext.A10 bill was also illegal, especially in view ofthe fact that only Ext.B9 bill has been challenged in the suitand court fee has been paid only in respect of the reliefsought against Ext.A9 bill.8. The counsel for the respondent on the other handcontends that both Exts.A9 and A10 bills are issued on the A.S.No.25 of 2000 9basis of the inspection conducted on 20.7.1994. Ext.A9 isthe first bill issued, while Ext.A10 is a subsequent bill for amuch larger amount, which includes the amount demandedas per Ext.A9 bill also. Both the bills have been issued onthe basis of Ext.B1 mahazar and Ext.B2 report which relatesto the inspection of 20.7.1994. Therefore, when the courtbelow found that Ext.B1 was not proved, it is only a naturalconsequence that both Exts.A9 and A10 bills are invalid andincapable of enforcement. It is further pointed out thatthere is no evidence to show that the various items ofmachinery found in the premises of the plaintiff wereconnected to the existing electric connection given to theplaintiff. At the same time, the plaintiff took out acommission and the said Commissioner has inspected thepremises and submitted Ext.C1 report which shows that themachinery are in fact not connected. The amount claimed inExts.A9 and A10 bills are also attacked by the counselpointing out that as per the regulations applicable, even ifthe plaintiff is found to have connected machinery in excess A.S.No.25 of 2000 10of its connected load, the excess can be billed only at 3times the rates applicable and not at the rates applicable toHigh Tension consumers. According to him, there is noprovision authorizing the defendants to charge him at therates applicable to High Tension consumers. 9. I have been taken through the pleadings in the caseas well as the evidence in detail. I have perused the recordsof the case. I have also heard the counsel for the contestingparties.10. It is an admitted fact that the respondent - plaintiffis a consumer under the appellants and that he is running afactory manufacturing Homoeopathic medicines. He hasexecuted a minimum guarantee agreement and serviceconnection having a connected load of 48 KW has beengiven to him. He has averred that he had applied foradditional allotment, but that the same was not granted.According to the defendants, he had been granted anadditional connected load of 30 KW, but the same had gotcancelled since he did not avail of the same. Subsequently, A.S.No.25 of 2000 11though he had applied for additional power allocation to theextent of 43.5 HP, the same was not sanctioned. Exts.A4and A5 reveal that he had made complaints against theauthorities under the defendants complaining aboutdeficiencies in the supply of electrical energy to him. It isalso contended that the officers under the defendants wereantagonized against him for the reason that he hadcomplained against them. Be that as it may, I am notproceeding to consider the genuineness of the saidallegations and counter allegations, due to paucity ofevidence.11. The present controversy relates to an inspection ofthe premises of the plaintiff conducted on 20.7.1994 by theAnti Power Theft Squad along with the Assistant Engineer ofthe local area. The mahazar, Ext.B1 prepared at the time ofinspection shows that the plaintiff had connected variousother machinery to his service connection thereby drasticallyenhancing the connected load. However, the mahazar alsoreveals that the electric meter installed at his premises was A.S.No.25 of 2000 12working properly. The mahazar does not give the details ofthe machinery alleged to have been connected by theplaintiff nor their capacities. The plaintiff has specificallyaverred and explained that there were three units in hispremises, namely, a Homoepathic Medicine Unit, an EyeDrops Unit and a Cosmetics Unit. Only the unit producingHomoeopathic Medicines has an electric connection. Thoughthe machinery of the other two units have been installed, noelectric connection has been granted to the said units. Thespecific contention of the plaintiff in paragraph-5 of hisplaint is that, all the items of machinery found in thepremises including those that were not given electricconnection were taken into account and the connected loadhas been calculated on the basis of all the machineryavailable in the premises to find that he had exceeded hisconnected load. The plaintiff has therefore raised seriousdispute about the mahazar Ext.B1.12. DW1 is the Assistant Engineer who has beenexamined to prove Ext.B1 mahazar and Ext.B2 report. A.S.No.25 of 2000 13According to him, he has taken charge of the office of thesecond defendant only in June 1998. Therefore, he is aperson who does not have any direct knowledge about theinspection of 20.7.1994 or regarding the preparation ofExts.B1 and B2. According to him, the Assistant Engineerwho had prepared Ext.B1 had gone abroad. It is thereforecontended by the counsel for the appellants that theappellants should not be blamed for not having examinedthe said witnesses. It is pointed out that DW1 has deposedthat he was familiar with the handwriting of the thenAssistant Engineer and therefore Ext.B1 should be taken tohave been proved. Since Ext.B1 does not refer to the itemsof machinery that are alleged to have been found connectedto the service connection of the plaintiff on inspection, thereis no evidence available to indicate how the connected loadhas been calculated in Exts.B1 and B2. If the AssistantEngineer who prepared Ext.B1 was not available, at least amember of the Anti Power Theft Squad or some otherperson who was available at the time of inspection on A.S.No.25 of 2000 1420.7.1994 could have been examined. There is nojustification for the non-examination of any such official.When DW1 was asked about the manner in which Ext.B1was prepared, he was not able to say anything about thesame. He does not know where Ext.B1 was prepared orwhere it was signed. It is admitted that there are otheritems of machinery installed in the other units, for theworking of which electric connection has not been granted.However, it is stated that permission to run the machineryusing generator has been granted. In the abovecircumstances, the question as to whether the machineryfound installed in the premises were actually connected tothe service line granted to the plaintiff, is a matter thatassumes importance. However, it is with respect to thiscrucial aspect that no evidence is available. Since Ext.B1 isdisputed, the said document as well as Ext.B2 should havebeen proved by the defendants. If the person who preparedthe mahazar is not available, some other member of the AntiPower Theft Squad who was present at the site when Ext.B1 A.S.No.25 of 2000 15was prepared and who had participated in the inspection,could have been examined. Therefore, it is not animpossibility to prove Ext.B1 by cogent evidence, as issought to be made out by the counsel for the appellants.13. At the same time, the earnestness of the plaintiff isevident from the fact that he took out a Commission fromthe Court and had his premises inspected by deputing anAdvocate Commissioner. The Commissioner has beenexamined as CW1 and his report has been marked asExt.C1. Though his report cannot throw any light on thesituation as on 20.7.1994, his report is useful in certainother respects. Ext.C1 report shows that all the three unitsare situate in separate buildings, but in the same compound.The report also shows that the machinery in the eye dropsunit as well as in the cosmetic unit are remaining idle andare not working because there was no electric connection.Ext.C1 also shows that a generator is used only for the mainunit that too during break in supply of electrical energy.When the Advocate Commissioner was examined as CW1, he A.S.No.25 of 2000 16has deposed that the items of machinery noted by him andreported in Ext.C1 are fixed or fitted in the eye drops unitand the cosmetics unit. Many of the items of machinery arereported to be very heavy, some weighing more than aquintel. It is clear from the above that the allegation thatthe machinery are capable of being shifted from place toplace cannot be accepted. The Commissioner has alsocalculated the connected load of the plaintiff and has foundthat his connected load is slightly more than his sanctionedlimit.14. From the available evidence, it is clear that theplaintiff is not working his eye drops unit and cosmetic unitfor want of electric connection. Exts.A1 to A5 and A11 toA13 show the correspondence that the plaintiff was havingwith the defendants. The number of requests made by theplaintiff for enhancement of power allotted to him is alsoseen. Though it is disputed that any request forenhancement of power is pending in relation to the plaintiff'sunits, it cannot be presumed that the plaintiff after having A.S.No.25 of 2000 17made substantial investment and established two additionalfactories would have allowed the same to idle, withouttaking any effort to obtain electric connection. The AdvocateCommissioner has also reported that there was nothing toindicate that all the three factories could be given electricconnection from the service line that was available in thepremises. As already noted, on the basis of the machineryin the plaintiff's premises, the connected load of the plaintiffhas been worked out by the Advocate Commissioner, whichbelies the allegations contained in Exts.B1 and B2. SinceExts.B1 and B2 have not been satisfactorily proved, thecourt below was right in declining to rely on the saiddocuments. The term 'connected load' is defined in clause1(n) of the Conditions of Supply of Electrical Energy asfollows: 1(n) - “Connected load” means the sumtotal of the installed capacities of all theenergy consuming devices on theconsumer's premises connected to thesystem which can be operatedsimultaneously”. A.S.No.25 of 2000 1815. As per the above definition, unless there isevidence to show that the energy consuming devices in theplaintiff's factory were connected to the system, theequipment cannot be taken into account for calculating theconnected load. In the present case, there is a totalabsence of evidence to show that there were machineryconnected to the service line of the plaintiff unauthorizedly.In other words, it has not been established that the otheritems of machinery in the premises had been connected tothe service line of the plaintiff. 16. The next contention urged before me is that thedefendants have the authority to apply the High Tensiontariff rates to the plaintiff, though he was a Low Tensionconsumer. Condition No.42(d) of the Conditions of Supplyof Electrical Energy reads as follows:“42(d) - If the consumer exceeds thecontracted load without prior permission ofthe Board or energy supplied for a specificpurpose under a particular tariff is usedwithout the Board's knowledge andapproval for a different purpose notcontemplated in the contract for supply A.S.No.25 of 2000 19and for which higher tariff is applicablecoming under misuse of energy within themeaning of the I.E.Act, 1910. Misuse ofenergy will be billed at three times the rateapplicable to the respective tariff for theprevious six months from the date ofdetection of misuse unless there areconvincing reason for adopting differentperiods and supply disconnected withoutnotice. The imposition of this higher ratewill not relieve the consumer from anypenalties imposed by law.” 17. As per the above provision, any excessconsumption can be billed at three times the rates applicableto the respective tariff of consumption for the past sixmonths. Since the billing procedure applicable to thepresent situation is prescribed by the above provision, thedefendants had no authority to charge the plaintiff at therates applicable to the High Tension consumers, as done inExts.A9 and A10. Therefore, it is found that the calculationin Exts.A9 and A10 are also wrong and without the authorityof law.18. The counsel for the appellant vehemently contendsthat Ext.A10 has not been challenged in the plaint and no A.S.No.25 of 2000 20court fee has been paid on the amount that is demanded inExt.A10. Therefore, it is contended that the court belowwent wrong in holding that the said bill was also incapable ofbeing enforced. The inspection of the factory of the plaintiffwas on 20.7.1994. Ext.A9 is the bill dated 31.8.1994 wherecharges for electrical energy is calculated on the basis of thealleged unauthorized connected load detected. Ext.A10 billhas been issued subsequently demanding a much higheramount, seeking to rectify some errors that are alleged tohave crept into Ext.A9. Ext.A10 is dated 2.6.1997 and isafter filing of the suit. Since Exts.A9 and A10 are bothissued on the basis of one and the same allegation thatunauthorized connected load exceeding the plaintiff'ssanctioned limit was detected on 20.7.1994 and since bothbills relate to the same transaction, a finding that Ext.A9 iswrong and without any authority would render Ext.A10 alsoinvalid. The court below has only made explicit the aboveposition. Therefore, the court below was justified in findingthat Ext.A10 bill also was unenforceable. A.S.No.25 of 2000 21For the above reasons, the appeal fails and isdismissed. The judgment and decree of the Sub Court,Kozhikode dated 31.3.1999 in O.S.No.495 of 1996 is herebyconfirmed. No costs. K.SURENDRA MOHANJudgecss/ A.S.No.25 of 2000 22 C.R. K.SURENDRA MOHAN JUDGE--------------------------------------- AS.No.25 of 2000---------------------------------------JUDGMENT 10.7.2009