IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 WP(C).No. 13010 of 2006(W) -------------------------- PETITIONER(S): --------------- K.S.ABDUL SATHAR, PROPRIETOR, CENTURY PLYWOODS, KEERIYAD, P.O.KATTAMPALLY, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VIDHYUTHIBHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. DEPUTY CHIEF ENGINEER, ANTI POWER THEFT SQUAD, KSEB, KOZHIKODE. 3. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KSEB, VALAPATTANAM, KANNUR DISTRICT. R1 TOR3 BY ADVS. SRI.JOSE J.MATHEIKEL, SC, KSEB SMT.P.K.RADHIKA-KSEB SMT.P.K.RADHIKA-KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON 27/10/2011 DELIVERED THE FOLLOWING: WP(C).No. 13010 of 2006(W) APPENDIX PETITIONER'S EXHIBITS :- EXT.P1 : TRUE COPY OF THE SITE MAHAZAR DATED 5-4-03 PREPARED BY A SUB ENGINEER OF THE ANTI POWER THEFT SQUARD. EXT.P2 : TRUE PHOTOCOPY OF THE ADDITIONAL BILL FOR RS.69,048/- TO THE PETITIONER BY KSEB DATED 28-4-03 EXT.P3 : TRUE PHOTOCOPY OF THE LETTER DATED 6-5-03 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER EXT.P4 : TRUE PHOTOCOPY OF THE ADDITIONAL BILL FOR RS.1,95,844/- ISSUED TO THE PETITIONER BY KSEB EXT.P5 : TRUE PHOTOCOPY OF THE APPEAL DATED 22-5-03 FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT EXT.P6 : TRUE PHOTOCOPY OF THE JUDGMENT DATED 28-5-03 WP(C) NO.16298 OF 2003 OF THIS HON'BLE COURT. EXT.P7 : TRUE PHOTOCOPY OF THE WRITTEN STATEMENT DATED 31-3-06 FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT EXT.P8 : TRUE PHTOTCOPY OF THE ORDER DATED 28-4-06 ISSUED BY THE SECOND RESPONDENT EXT.P9 : TRUE PHOTOCOPY OF THE REVISED BILL DATED 10-5-06 FOR RS.75,826/- RESPONDENTS EXHIBITS : NIL. //TRUE COPY// P.A TO JUDGE amk. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.13010 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of October, 2011 J U D G M E N T The petitioner is an industrial consumer of electricity with consumer No.8207. The Anti Power Theft Squad of the Kerala State Electricity Board, inspected the petitioner's industrial unit on 05.04.2003 and found that the meter installed in the petitioner's premises is not working properly. Ext.P1 mahazar was prepared in respect thereof. Thereafter, Exts.P2 & P4 supplementary bills were issued demanding Rs.69,048/- in respect of defective capacitors which the petitioner had not replaced and difference in electricity charges of Rs.1,95,844/- on account of the fault of the meter. The petitioner filed an appeal before the 2nd respondent. By ExtP6 judgment in W.P.(C) No.16298/2003, this Court directed the appellate authority to dispose of the appeal. The 2nd respondent passed Ext.P8 order in the appeal, wherein the demand by Ext.P2 was cancelled but demand by Ext.P4 for difference in electricity W.P.(C)No.13010 of 2006 -2- charges was upheld. Pursuant thereto, Ext.P9 bill has been raised for Rs.75,826/- after adjusting payments made by the petitioner in the meanwhile. The petitioner is challenging Exts.P8 & P9 in this writ petition. As a condition for interim stay, the petitioner has paid Rs.15,000/- in this writ petition. The petitioner's contention is that, immediately after the inspection, the meter was replaced. Therefore, it is clear that the meter was faulty, in which case, the 3rd respondent had a duty to refer the dispute regarding the correctness of the meter to the Electrical Inspector as provided under Section 26 (6) of the Indian Electricity Act, 1910, which was applicable at the relevant time, in view of the fact that the new Electricity Act came into force only in June 2003 whereas the inspection in this case was on 05.04.2003. (I referred to the New Act only because in the writ petition, the petitioner has referred to provisions of the 2003 Act, which the counsel for the petitioner submits is a mistake). The petitioner relies on a Division Bench decision of this court in Nirmala Metal Industries v. K.S.E.B [2006 (3) W.P.(C)No.13010 of 2006 -3- KLT 465] and that of the Supreme Court in M.P.E.B. and others v. Smt. Basantibai [AIR 1988 SC 71] in support of the contention of the petitioner that when a defect in the meter is detected, the Electricity Board is duty bound to refer the matter to the Electrical Inspector. The petitioner submits that insofar as the matter has not been referred to the Electrical Inspector, the respondents cannot recover any additional charges from the petitioner insofar as the Act itself specifically provides that unless it is proved otherwise the meter installed at the premises of the consumer should be assumed to be recording the correct consumption of electrical energy consumed by the petitioner. The petitioner therefore seeks following reliefs: “1) A writ of certiorari or other appropriate writ, direction or order calling for the records leading to Exts.P4, P8 and P9 and quash the same to the extent it demands. Rs.75,826/- from the petitioner after adjusting Rs.1,20,018/- already paid by the petitioner. 2) A writ of mandamus or other appropriate writ, direction or order commanding the respondents to refund to the petitioner an amount of Rs.1,20,018/- already paid by the petitioner as directed by this Hon'ble Court and the appellate authority. 3) A declaration to the effect that in view of Ext.P1 mahazar since the petitioner has not resorted to any unauthorised W.P.(C)No.13010 of 2006 -4- use of energy he is not liable to be imposed any penal bill for six months. 4) A direction to the 3rd respondent to refer the dispute regarding correctness of the meter of the petitioner's Consumer No.8207 to the electrical Inspector.” 2. A counter affidavit has been filed by the Electricity Board. The counsel for the Board submits that, the question of reference to the Electrical Inspector under Section 26 (6) of the Indian Electricity Act 1910, arises only where any difference or dispute arises as to the correctness of the meter and on arising such dispute, on the application of either party the Electrical Inspector has to decide the issue. It is submitted before me that, at no point of time the petitioner has ever raised a dispute as to the correctness of the meter. When the meter was replaced also the petitioner did not object to the same. Therefore in so far as the petitioner did not raise any dispute regarding the fault in the meter, there was no necessity to refer the matter to the Electrical Inspector as provided under Section 26 (6) of the Indian Electricity Act, 1910. Therefore the probable consumption of electricity by the petitioner for the W.P.(C)No.13010 of 2006 -5- previous six months which was not recorded in the electricity meter was calculated by the Electricity Board on the basis of the average consumption of electricity recorded in the new meter. The Board would therefore argue to sustain their action. 3. In answer, the petitioner would contend that the Electricity Board has no power to decide by themselves as to the correctness or otherwise of the meter or the probable difference in consumption. Such power has been vested with the Electrical Inspector under Section 26 (6) is his contention. According to the learned counsel for the petitioner, in the two decisions referred to also there was no dispute raised by the consumer. Even then this Court and the Supreme Court has held that the matter should be referred to the Electrical Inspector in such cases. The counsel also submits that even assuming that there is defect in the meter, the procedure adopted by the Electricity Board in calculating the actual consumption of electricity is illegal in so far as such a procedure is not contemplated by W.P.(C)No.13010 of 2006 -6- any provisions of the Act or Conditions of Supply of Electrical Energy. 4. I have considered the rival contentions in detail. 5. Section 26 (6) reads thus: “(6) Where any difference or dispute arises as to whether any meter referred to in sub-section (1) is or is not correct, the matter shall be decided, upon the application of either party, by an Electrical Inspector; and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector, have been correct; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity: Provided that before either a licensee or a consumer applies to the Electrical Inspector under this sub-section, he shall give to the other party not less than seven days' notice of his intention so to do.” I am of opinion that the question of invoking Section 26 (6) arises only where any difference or dispute arises as to whether any meter referred to in sub-section (1) is or is not correct. A difference or dispute arises when one person asserts a fact and the other person denies that fact. Therefore when the Electricity Board asserted on the basis of Ext.P1 mahazar that the meter is defective if the petitioner had any dispute relating to the same, he could W.P.(C)No.13010 of 2006 -7- have immediately raised the same. Admittedly, the petitioner did not object to the removal of the faulty meter and replacement of the same with a new meter. Of course, in Ext.P5 appeal, the petitioner submitted that “Though under law correctness of the power meter is to be decided by the Electrical Inspector who is the statutory authority under Section 26 (6) of the Indian Electricity Act, the respondent usurped those powers and presumed that consumption recorded for the last six months is only that of two phase.”, that appeal was filed only on 22.5.2003. Ext.P1 mahazar was prepared on 05.04.2003. There is nothing on record to show that the petitioner had disputed the findings in Ext.P1. Ext.P2 bill was issued on 28.4.2003 and the meter was replaced on 15.5.2003. The petitioner was informed by Ext.P1 mahazar dated 5.4.2003 that meter is not functioning properly and the meter was replaced only 15.5.2003, one month and 10 days later. Petitioner did not raise any dispute in respect of the same. Therefore the petitioner cannot now be heard to contend that the meter W.P.(C)No.13010 of 2006 -8- was not faulty and since there was a dispute regarding the same, the matter should have been referred to the Electrical Inspector. Apart from the averment in Ext.P5 appeal filed by the petitioner quoted above, there is no material whatsoever to show that the petitioner had raised any dispute regarding the correctness of the meter. In fact the petitioner does not dispute the fact that prior to the changing of the meter the average monthly consumption was 15432 units, whereas after the replacement of the meter for 17 days the meter recorded consumption of 12760 units of energy. The petitioner never had any dispute as to the fact that the meter was actually faulty. He did not raise any dispute in respect of the same. The question of invoking Section 26 (6) arises only if the petitioner had actually raised a dispute regarding the correctness or otherwise of the meter at the time when the Board officials intimated the petitioner that the meter is not working properly. Apart from that, if the petitioner had a dispute as to the correctness of the meter, he could have very well W.P.(C)No.13010 of 2006 -9- applied to the Electrical Inspector under Section 26 (6) to decide that dispute which also the petitioner had not done. I am not satisfied that in the cases referred to by the counsel for the petitioner also no dispute was raised by the consumer. In Nirmala Metal Industries's case, the Division Bench quoted with approval an earlier Division Bench and a Supreme Court decision, from which it is clear that as per those decisions, it has been held that only when a dispute is raised the matter should be referred to the Electrical Inspector. In fact in paragraph 6 of that judgment, after referring to the Supreme Court decision it is stated that the Apex Court held that according to the proviso appended to sub section (4) of Section 26, the licensee cannot take off or remove any such meter as to which difference or dispute of the nature described in sub section (6) has arisen until the matter has been determined by the Electrical Inspector. Therefore the question of invoking Section 26 (6) arises only when there arises a dispute between the consumer and the licensee. For that, either party should raise a dispute. In W.P.(C)No.13010 of 2006 -10- this case, both parties agreed that there was a defect in the meter. The petitioner never raised a dispute regarding that question. Therefore the question of referring the matter to the Electrical Inspector under Section 26 (6) does not arise at all. I am also unable to countenance the contention of the petitioner that the procedure adopted by the Electricity Board in calculating the difference in consumption is faulty. A new correct meter has been installed and the difference in consumption has been calculated on the basis of the average readings recorded in the correct meter. After the meter has become faulty, I am of opinion that, that is a reasonable method of calculating the difference in consumption. In the above circumstances, I do not find any merit in the writ petition and accordingly, the writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/