IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 WP(C).No. 27227 of 2007(N) -------------------------- PETITIONER(S): --------------- M/S MET-ROLLA STEELS LTD., RE-ROLLING DIVISION UNIT, PAIPRA, PEZHAKKAPPILLY, MOOVATTUPUZHA, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVT., POWER DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. DEPUTY CHIEF ENGINEER(COMMERCIAL), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 4. SPECIAL OFFICER(REVENUE), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. SMT. P.K. RADHIKA - SC FOR KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27227 of 2007(N) APPENDIX PETITIONER'S EXHIBITS EXT.P1 COPY OF THE RELEVANT EXTRACT OF THE HT AGREEMENT EXECUTED BY THE PETITIONER AND THE KSEB. EXT.P2 COPY OF THE DEMAND DATED 7.8.2007. EXT.P3 COPY OF THE JUDGMENT DATED 28..3.2005 IN OP.NO.15574/98 EXT.P4 COPY OF THE LETTER DATED 8.12.2005. EXT.P5 COPY OF THE OBJECTION DATED 20.8.2007 FILED BY THE PETITIONER BEFORE R4. EXT.P6 COPY OF THE RECEIPT ISSUED BY R4. EXT.P7 COPY OF THE DEMAND DATED 30.8.2007. /TRUE COPY/ P.S. TO JUDGE cl P.R.RAMACHANDRA MENON, J. .............................................. W.P(C).NO.27227 OF 2007 ............................................. Dated this the 26th day of September, 2011. JUDGMENT Whose liability is it, to instal a 'TOD Meter' in the premises of an industrialist having 'HT' connection for recording the energy consumed with regard to time of consumption and to satisfy the bills issued accordingly, is the point involved. The question is, whether the petitioner is liable to satisfy the 'penalty', allegedly for not installing TOD Meter in the premises, which is sought to be realised at the rate of 25% of the energy charges as given in Exts.P2 and P7. 2. The case of the petitioner - a private limited company incorporated under the Indian Companies Act, 1956, is that it has obtained an industrial connection as HT Consumer bearing No.HTB No.24/3287 and the company started production way back in 1987. While so, there was a move from the part of the Board to cause similar industrialists like the petitioner herein to have installed TOD Meter in the premises, stating that it was very necessary to have recorded the energy consumed especially in the 'peak hours' (between W.P(C).NO.27227 OF 2007 : 2 : 6 p.m and 10 p.m) to decide the actual rates, since the rates varied depending upon peak hours. The steps taken by the Board as above were under challenge before this Court in various writ petitions, which were considered together and disposed of as per Ext.P3 judgment dated 28.3.2005. It was observed by this Court that the petitioners cannot contend that TOD Meters cannot be insisted upon by the Board, for the reason that without such Meter, time of consumption of energy cannot be found out. The relevant portion reads as follows: “Petitioners' cannot contend that TOD meters cannot be insisted upon by the Board as without such meter time of consumption cannot be found out. However, their contention is that the Board should provide TOD meters and consumers cannot get it. I do not think the Board should have any difficulty to purchase TOD meters from open market and instal them in the premises of consumers. Regulation 31(1) of the Conditions of Supply provides for recovery of cost in advance from the consumers. Therefore if the consumers are unwilling to procure and instal TOD meters the Board can get quotation from the market, collect advance from the consumers and purchase meters and instal them at the premises of the consumers, adjust the actual cost from advance and refund or demand difference if any.” W.P(C).NO.27227 OF 2007 : 3 : It was accordingly, that the original petitions were disposed of, making it clear that the Board was free to raise penal bills for consumption in violation of the 'peak hour restrictions'; subject to proof after individual notices to the parties concerned and after hearing them. 3. The case of the petitioner is that, nothing transpired after passing Ext.P3 judgment; despite forwarding a copy of the same to the Board vide Ext.P4, expressing willingness to purchase and install 'TOD Meter' or as to the readiness in remitting advance amount towards the cost of procurement and supervision charges with regard to installation of the Meter. The grievance is in respect of Ext.P2 bill, wherein, a sum of Rs.4.03,470/= has been shown as the 'penalty' in respect of non-installation of TOD Meter (worked out at the rate of 25% of the electricity charges). Even though the petitioner had brought it to the notice of the concerned respondents that imposition of penalty was not sustainable, the same did not turn to be fruitful and the petitioner was served with Ext.P7, raising the very same demand to satisfy the dues, which made them to approach this Court by filing W.P(C).NO.27227 OF 2007 : 4 : this writ petition. 4. Heard the learned Standing Counsel for the respondents as well. 5. The learned counsel for the petitioner submits that, subsequent to the filing of the writ petition, the Board had installed a TOD Meter and there is no grievance with regard to the subsequent bills and submits that the only issue is with regard to the justifiability of imposing penalty as per Ext.P2, followed by Ext.P7 notice to the earlier bill. It is also brought to the notice of this Court that the entire amount covered by Ext.P2 except the portion representing the 'penalty' has been satisfied by the petitioner and that there no amounts are due towards consumption of electricity charges as on date. 6. With regard to sustainability of imposition of penalty, the petitioner strongly relies upon Section 55(1) of the Kerala Electricity Act, 2003; besides placing reliance on Regulations 15(5) and 42(1) of the Kerala State Electricity Board Terms and Conditions of supply, 2005. For the purpose of convenience of reference; the provisions as above W.P(C).NO.27227 OF 2007 : 5 : are extracted below: “S.55. Use, etc., of meters:- (1) No licence shall supply electricity, after the expiry of two years from the appointed date, except through installation of a correct meter in accordance with the regulations to be made in this behalf by the Authority: Provided that the licensee may require the consumer to give him security for the price of a meter and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter: Provided further that the State Commission may, by notification extend the said period of two years for a class or classes of persons or for such area as may be specified in that notification”. Reg.15(5). The Board will charge a rent for the meter as per the rates approved by the Commission unless consumer elects to purchase a meter. Reg.42. Accuracy of Meters:- (1) The amount of energy supplied to a consumer will be ascertained by means of meter of meters installed and kept in good condition by the Board. The consumer will have to pay hire charges for the meter or meters. Should the consumer dispute the accuracy of the meter installed in his premises, he may send a written application to the Asst. Engineer and pay the prescribed fee for the test. On receipt of the application and testing fee, the Asst. Engineer shall have the meter specifically tested by the Board or Electrical W.P(C).NO.27227 OF 2007 : 6 : Inspector to Govt. and where the meter is found to be beyond the limits of accuracy as prescribed in the I.E. Rules, in force from time to time, the testing fee shall be returned to the consumer and the consumer's bill adjusted in accordance with the result of the test taken with respect to the meter reading of six months prior to the month in which the dispute has arisen, due regard being paid to conditions of occupancy during the month. The faulty meter will be replaced by another one in good working order or the same will be repaired and reinstalled. If the error is found to be within the limits allowed by the Indian Electricity Rules, testing fee shall be forfeited to the Board and the consumer's bill shall be confirmed.” 7. The case of the petitioner is that the liability to supply the Meter stands always vested with the Board; unless the consumer expresses willingness to purchase the Meter and installs it in accordance with the provisions of law. The specific observations of this Court in Ext.P3 judgment also make it crystal-clear that, though the petitioner cannot insist that installation of TOD Meter is not necessary, it is for the Board to have it installed by receiving advance amount towards the cost of procurement so as to record energy charges with reference to the 'peak hours'. Reference W.P(C).NO.27227 OF 2007 : 7 : is also made to 'Clause 4' of Ext.P1 Agreement executed between the petitioner and the Board; which reads as follows: “4. The quantity of electrical power and energy supplied by the Board to the consumer shall be ascertained by means of a meter or meters to be provided, kept in repair and calibrated by the Board”. 8. In view of the position as above, the learned counsel submits that there is absolutely no rationale on the part of the respondents to have imposed 'penalty'; followed by the demand, which is sought to be intercepted. 9. Going by the contents of Ext.P1 Agreement and also the statutory prescription; particularly the 'proviso' to Section 55(1) of the Act and Regulations 15(5) and 42(1) cited supra, this Court finds that there is considerable force in the submission made on the part of the petitioner. The subsequent events also reveal that the Board does not have any grievance with regard to the position as on date. Further, the Board has not chosen to file any counter affidavit disputing the contentions with reference to the W.P(C).NO.27227 OF 2007 : 8 : relevant facts and the relevant provisions of law. As it stands so, this Court finds that the petitioner is entitled to succeed. 10. In the above facts and circumstances, Ext.P7 demanding 'penalty' to the extent of 25% of the electricity consumption charges for not installing the TOD Meter at the relevant time is set aside. It is made clear that, if any violation is made on the part of the petitioner with regard to the consumption of electricity, it is always open for the Board to proceed against the petitioner under the relevant provisions of law. The amount stated as remitted by the petitioner during the pendency of the writ petition, in satisfaction of the interim order to avail the benefit of 'stay', shall be set off against the future liability of the petitioner. The writ petition is allowed. No costs. P.R.RAMACHANDRA MENON, JUDGE. cl W.P(C).NO.27227 OF 2007 : 9 :