IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 WP(C).No. 27088 of 2006(Y) -------------------------------------- PETITIONER: ------------------- G.RAMAKRISHNAN, MANAGER, GEE CEE BROTHERS, 4/1286, KURUPLAVU ROAD, COCHIN-1. BY ADV. SRI.P.V.KUNHIKRISHNAN. RESPONDENTS: ------------------------ 1. ASSISTANT ENGINEER, ELECTRICAL CIRCLE K.S.E.B., FORT COCHIN. 2. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.B., FORT COCHIN. 3. EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.B., THOPPUMPADY. 4. DEPUTY CHIEF ENGINEER, ANTI POWER THEFT SQUAD, ERNAKULAM. 5. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM. R1 TO R5 BY SRI.C.K.KARUNAKARAN, SC, KSEB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.27088/2006-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MAHAZAR DT. 10/06/2003. EXT.P.2: COPY OF THE DEMAND NOTICE-CUM-DISCONNECTION NOTICE DTD. 11/06/2003. EXT.P.3: COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE R.4. DT. 13/06/2003. EXT.P.4: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C).NO.19881/03 DT. 25/06/2003. EXT.P.5: COPY OF THE WRITTEN ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE R.4. DT. 30/08/2006. EXT.P.6: COPY OF THE ORDER NO. APTS/DCE/ALY/BV 3044/EKM/297 ALUVA, DTD. 04/10/2006. EXT.P.7: COPY OF THE RE-ASSESSMENT BILL AS PER ORDER NO. APTS/DCE/ALY/BV 3044/EKM/297 ALUVA, DTD. 11/10/2006. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.R.RAMACHANDRA MENON, J -------------------------------------------- WP(C) NO. 27088 OF 2006 -------------------------------------------- Dated this the 21st day of May, 2010 JUDGMENT Whether the authorities of the Electricity Board could have raised a supplementary bill on the consumer, alleging defect in the meter, fixing an additional liability without causing the alleged defect to be examined by the Electrical Inspector as provided under Section 26 (6) of the Indian Electricity Act is the issue involved herein. 2. The petitioner was conducting a flour mill, having electricity connection under consumer No.C 2290. On 10.06.2003, the officials of the Board conducted a surprise inspection of the premises, when it was found that the power meter fixed in the premises was not recording the energy through all the three phases and that, only one phase was working. However, since the MRT seal and the Terminal seal of power meter were found intact, the power meter was tested by supplying load to all the three phases, which confirmed the defect, leading to issuance of Ext.P1 mahazar prepared on the same day, in presence of the representative of the consumer. 3. The very next day, the authorities of the Board issued Ext.P2 supplementary bill, stating that the petitioner is liable to satisfy 'two times' the amounts covered by the earlier bill, as only 1/3 electricity was being 2 WP(C) No. 27088/2006 recorded, for the reasons stated in Ext.P1. Accordingly, a sum of Rs.95,288/- was shown as the 'deficit energy charges', with such other incidental charges; thus showing a total figure of Rs.1,07,689/-. On 12.06.2003, the defective meter was taken away by the Board and a new power meter was installed at the premises. 4. Being aggrieved of the huge liability cast upon the shoulders of the petitioner, Ext.P4 appeal was preferred before the 4th respondent on 13.06.2003 disputing the correctness and the course pursued by the concerned authorities, specifically contending that the petitioner was not liable to satisfy the additional bill and that the course contemplated under Section 26 (6) of the Indian Electricity Act had to be pursued, to sustain the demand, by causing the meter to be examined by the Electrical Inspector, who alone is the concerned authority under the Act. 5. Obviously, the petitioner has specifically contended in paragraph 5 and elsewhere that, if any defect was detected in the meter, it was the duty of the Board to have the meter referred to the Electrical Inspector, pursuing the course prescribed under the Section 26 (6) of the Electricity Act. But since coercive steps were on the anvil, the petitioner was constrained to approach this Court by filing WP(C) 19881/2003, which was disposed of as per Ext.P4 judgment, directing the appellate authority to consider the appeal and to pass appropriate orders; simultaneously 3 WP(C) No. 27088/2006 intercepting the coercive steps, on condition that the petitioner deposited an amount of Rs.30,000/- which is stated as complied with. 6. In the course of the proceedings before the 4th respondent, the petitioner submitted Ext.P5 'argument notes', wherein, besides referring to the relevant provisions of law, reference was also made to the binding judicial precedents, such as the decision rendered by the Hon'ble Supreme Court in Madhya Pradesh Electricity Board Vs. Basanthi Bai [1988 (1) SCC 23], and a Division Bench of this Court in M.C. Mammen Vs. K.S.E.B.[1995 (1) KLJ 48] wherein the earlier decision rendered by another Division Bench of this Court reported in Southern India Marine Products Company Ltd. and others Vs. K.S.E.B. [1995 (2) KLJ 125] was distinguished. The case of the petitioner is that, without considering the actual facts and circumstances and the legal provisions explained in the binding judicial precedents, the 4th respondent dismissed the appeal as per Ext.P6; which is impugned in this Writ Petition. 7. The respondents have filed a counter affidavit seeking to sustain the stand and the bill issued by the concerned authorities stating that Ext.P6 is very much in conformity with the relevant provisions of law and that no interference is warranted under any circumstance. It is also stated in the counter affidavit that the level of consumption of energy, after 4 WP(C) No. 27088/2006 installation of the new meter in the premises of the petitioner, showed three times increase in the energy being used by the petitioner than earlier. It is stated that the consumer was assessed only for '3940' units before the fault was defected; while the average monthly consumption was '9285' units after changing the meter. Actual facts and figures with regard to the different months in respect of the consumption, have been given in paragraph 4 of the counter affidavit. 8. The learned counsel for the petitioner submits that the respondents are not having any power, jurisdiction, competence or expertise to decide the question whether the meter was defective or not and also for calculating the amount payable, if at all the same was defective in any manner. It is stated that the mandate prescribed under Section 26 (6) of the Electricity Act clearly stipulates that if there is a dispute, the matter has necessarily to be referred to the Electrical Inspector to find out whether the meter is defective or not and also to calculate the amount payable by the consumer, during which period the meter was remaining defective. This by itself contemplates the situation whereby the Electrical Inspector, who is the competent authority, after examining the meter, could have arrived at a conclusion that the meter had gone defective just a few days/weeks/ months before the detection of the defects and that appropriate energy charges payable by the consumer in respect of 5 WP(C) No. 27088/2006 such period could have been fixed accordingly; though, after amendment of the relevant provisions, such liability is limited to an extent of the average consumption of 'six' months. The learned counsel further submits that, competence of the authorities of the Board to arrive at a conclusion that the meter was defective and also to fix the quantum of energy charges, is beyond the scheme of the statute, in view of the law declared by the Apex Court in Madhya Pradesh Electricity Board Vs. Basanthi Bai [1988 (1) SCC 23]. The above decision was relied on by a Division Bench of this Court in M.C. Mammen Vs. K.S.E.B.[1995 (1) KLJ 48] and also in Nirmala Metal Industries Vs. K.S.E.B. [2006 (3) KLT 465] (page 470). 9. The crux of the finding in the decisions as referred to above is that, if there is a case of tampering with the meter or fraudulent act at the hands of the consumer, it will not be a matter for referring to arbitration under Section 26 (6) so as to be considered by the Electrical Inspector. Similarly, if the defect/damage was because of the defective wiring, then also it is not a matter to be referred to the Electrical Inspector for consideration under Section 26 (6). In the instant case, there is no such adverse circumstance and the factual position is very much clear from Ext.P1 mahazar itself, wherein it is specifically stated that the 'MRT seal' and 'Terminal seal' of the meter were intact and that there was no external damage to the meter. This being the position, the matter clearly comes 6 WP(C) No. 27088/2006 within the purview of Section 26 (6) of the Electricity Act and admittedly since there is no case for the respondents that they have caused the meter to be examined by the Electrical Inspector, the additional bill raised on the petitioner and Ext.P6 order passed by the 4th respondent/appellate authority dismissing the appeal are not correct or sustainable and are liable to be intercepted. 10. The learned standing counsel appearing for the respondent Board submits that, the instant case stands entirely on a different footing and the decisions cited by the petitioner are not at all relevant or applicable. Reference under Section 26 (6) is contemplated only in a circumstance when there is a dispute as to the defect in the meter. It is also stated that either the consumer or the Board is at liberty to file an application to have the meter tested by the Electrical Inspector. Admittedly since no such application has ever been filed by the petitioner, the matter did not required to be referred to the Electrical Inspector; submits the standing counsel. It is further stated that, since the factum of the inspection conducted on 10.06.2003 was in presence of the representative of the consumer and the non working of the two phases and other adverse circumstances have not been chosen to be rebutted by the petitioner, the only question remaining is the 'quantification' alone; which has to be done in accordance with law. It is also stated with reference to the contents of 7 WP(C) No. 27088/2006 Ext.P6, that the matter was examined by the appellate authority as well and that the course more advantageous to the petitioner has been pursued; which hence does not call for any interference. Reliance is also placed on a decision rendered by this Court as per judgment dated 05.03.2007 in WP (C) 23431/2003, wherein the fixation of energy charges, when one phase of the meter was not working, effecting the estimation adding 50% of the reported consumption in the other two phases and raising the bill was justified to the extent as specified therein. 11. Going by the law declared by the Hon’ble Supreme Court and also by the Division Bench of this Court, and the specific wording under Section 26 (6), the dispute starts in the instant case when a supplementary bill is raised on the petitioner on the very next day of detecting the alleged defect, followed by the removal of the meter on the next day, i.e., on 12.06.2003, which made the petitioner to approach the appellate authority by filing Ext.P3 appeal on 13.06.2003. If there was absolutely no dispute, there was no need or necessity for the petitioner to have approached the appellate authority by filing Ext.P3. Since such a dispute is raised within three or four days, it was very much for the Board who had taken possession of the allegedly defective meter, to have it sent for examination by the Electrical Inspector. As per the statute, the Electrical Inspector alone has the power to examine the alleged defect and to arrive at a finding as to 8 WP(C) No. 27088/2006 the nature and extent of the defect and it is based on this finding, that the next step is to be pursued by the said authority, as to the fixation of quantum of liability. It may also be possible for the said authority who is having the technical expertise in the field, to ascertain whether the meter had gone wrong 'just prior to the date of inspection' or otherwise, so as to ascertain the quantum of liability to be imposed. This is more so, in view of the observations made by the Apex Court in the decision rendered in Belwal Spinning Mills Ltd. and others Vs. U.P. State Electricity Board and another [1997 (6) SCC 740] (paragraph 41 and 42). 12. In the instant case, there is no material on record to ascertain whether the alleged defect was actually in existence or not; whether the meter had gone wrong in the recent past or much before. This is for the plain reason that the meter was not sent for examination by the Electrical Inspector. In other words, after taking possession of the meter by the Board officials, a unilateral decision has been taken by the Board, fixing the liability upon the petitioner, stating that only 1/3 of the actual energy was recorded and that the petitioner is liable to pay double the amount towards the allegedly unrecorded extent of 2/3 liability. In view of the law declared by the Apex Court and by this Court (more particularly in view of the decision rendered in Nirmala Metal Industries Vs. K.S.E.B. [2006 (3) KLT 465]), the course pursued by the respondents cannot be held as 9 WP(C) No. 27088/2006 sustainable in any circumstance. 13. With regard to the decision cited by the learned standing counsel for the respondents (judgment in WP(C) 23431/2003), the factual position is not much discernible from there. It is not stated whether the defective meter was sent by the Board for examination by the Electrical Inspector; whether the amount was quantified by the Electrical Inspector or by the officers of the Board; whether the factual position as narrated in the instant case is simnomous with the situation available in the said case etc. are not clear from the above judgment. This being the position, this Court finds it difficult to accept the said judgment, to have any persuasive effect. More so, when the law stands crystal-clear, in view of the binding judicial precedents by the Apex Court and the Division Bench of this Court, as referred to hereinbefore. 14. The learned standing counsel for the Board further seeks to place reliance on the Section 31 (C) of the conditions of supply of energy. True, the course to be pursued in the case of a defective meter for calculating the electrical energy charges has been specified therein. But the same does not enable the authorities of the Board to evade the course and procedure as prescribed under Section 26 (6) of the Electricity Act. That apart, it has also been made clear by the Court in the decision cited supra that Section 31 C of the Conditions of supply cannot over ride the 10 WP(C) No. 27088/2006 provision of Section 26 (6). As such, the said submission does not come to the rescue of the respondents to sustain their stand. 15. In the above circumstances, this Court finds that the liability now cast upon the petitioner making him to satisfy a sum of Rs. 1,07,689/- as per Ext.P2, which has been upheld by the 4th respondent as per Ext.P6, cannot stand the test of law. Eventhough the petitioner is actually liable to satisfy the energy in respect of the defective meter, if the defects were got established at the hands of the Electrical Inspector, since the respondents have not chosen to pursue the mandate as prescribed in the statute, it is not possible to have it quantified at this point of time. Similarly, simply relegating the matter to be considered by the Electrical Inspector as on this day, will not tilt the balance in any manner, as the defective meter was taken away by the respondents on '12.06.2003' and almost seven years have elapsed thereafter, making it rather impossible to establish the defects existed seven years ago. 16. In the above circumstances, the payment already effected by the petitioner pursuant to the interim order passed by this Court is directed to be set off against the 'future bills' of the petitioner. The learned standing counsel also brought to the notice of this Court that, the statutory provision has undergone substantial change on enactment of the new Act (Electricity Act 2003), whereby Section 26 (6) as it existed earlier is no more available. 11 WP(C) No. 27088/2006 If at all consumer wants to have the matter challenged, the course and procedure specified under regulation 42 of the Regulations have to be pursued/satisfied. In any view of the matter, this does not form the subject matter of consideration of this Court in the present case, as the issue involved is governed by the relevant provisions of the 'Old Act'. The Writ Petition is disposed of accordingly. P.R.RAMACHANDRA MENON JUDGE dnc