IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 WP(C).No. 26542 of 2003(I) ------------------------------------ PETITIONER(S): ---------------------- TRIVENI PRAMANAND, RATHNAMMA FREEZE LAND, P.O. PUTHYANGADI, CALICUT. BY ADV. MR.P.V.JYOTHI PRASAD RESPONDENT(S): ------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY CHAIRMAN, TRIVANDRUM. 2. THE DEPUTY CHIEF ENGINEER, APTS (HQ), VYDYUTHI BHAVAN, TRIVANDRUM. 3. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, ERANLIKKAL, P.O. PUTHYANGADI, CALICUT. 4. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, WEST HILL, CALICUT. BY ADVS. MR.KODOTH SREEDHARAN, SC, KSEB MR.C.K.KARUNAKARAN.SC.KSEB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.26542/2003 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER DT. 3.5.00. P2:- COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DT. 12.5.00. P3:- COPY OF THE PAYMENT MADE PURSUANT TO EXT.P2. P4:- COPY OF THE ORDER OF THE 2ND RESPONDENT DT. 3.3.01. P5:- COPY OF THE REVIEW PETITION FILED BY THE PETITIONER DT. 26.6.01. P6:- COPY OF THE ORDER AND BILL ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DT. 11.8.03. TRUE COPY P.S. TO JUDGE TSS K. SURENDRA MOHAN, J ------------------------------------------------------------ W.P(C) NO: 26542 OF 2003 ----------------------------------------------------------- Dated this the 1st April, 2009. JUDGMENT The petitioner challenges the levy of electricity charges on him as per Ext.P6 proceedings, is being arbtirary and uncalled for. 2. The petitioner is running an industrial unit and for the purpose, she has taken an electricity connection from the respondents, consumer No: ES 4096. According to her she was paying the electricity charges regularly and there was no complaint against her at any time. While so on 24.7.1999 the Anti Power Theft Squad inspected the petitioner's premises and found that her metre was in order. Subsequently on 11.4.2000 there was a further inspection by the same squad. After inspection, they recorded that the existing metering system was showing a negative percentage error of 16.6%. Based on the above, the meter reading of the previous six months was taken, 16.6% of the reading was added to it and charges for electricity energy was computed at the rate of Rs.2.20 per unit. Accordingly an amount of Rs.21,504.76 was demanded. The said order is Ext.P1. 2. The petitioner challenged Ext.P1 before the Deputy Chief WPC 26542/2003 2 Engineer, Thiruvananthapuram who is the Appellate Authority. The petitioner paid 1/5th of the amount demanded as a condition for maintaining the bill. Though the meter was found faulty on 11.4.2000, the same was not replaced. Therefore, the petitioner requested the fourth respondent, Assistant Executive Engineer to replace the same and to keep the faulty meter in safe custody till the dispute was finally settled. Finally on 20.7.2000 the old meter was replaced by a new meter. Meanwhile the appeal was finally heard on 28.6.2000. 3. As per order dated 3.3.2001, the Government authority found that the reassessment made as per Ext.P1 was not in order. Therefore the appeal was set aside. According to the Appellate Authority, the petitioner was due for re-assessment for the period from 1999 onwards. The Appellate Authority further directed reassessment to be conducted on the basis of the average consumption of the petitioner for the future three months after replacing the faulty meter. On the above basis an amount of Rs.69,033/- has been demanded from the petitioner. The petitioner challenges the above demand, evidenced herein by Ext.P6 has being arbitrary and unsustainable. 4. Though the above writ petition was admitted on WPC 26542/2003 3 20.8.2003, no counter affidavit has been filed on behalf of the respondent. However, I have heard counsel for the petitioner and the standing counsel for the KSEB. 5. According to the standing counsel, Regulation 31C of the Conditions of Supply of Electrical Energy lays down only a method for finding out the average monthly consumption whenever a meter is found to be faulty. According to the standing counsel apart from the amount computed in accordance with Regulation 31C, penalty under Regulation 42 for misuse of energy could also be levied on a consumer who is found to be at fault. Therefore, the demand under Ext.P6 was perfectly justified, according to the standing counsel. Regulation 31(c) reads as follows:- “In the event of any meter being found incorrect (which includes meter ceasong to record, running fast or slow, creeping or running in reverse, direction) and where the actual errors on reading cannot be ascertained, the meter will be declared faulty and the correct quantity of energy shall be determined by taking the average consumption for the previous three months, due regard being paid to the conditions of working, occupancy etc. If the average consumption for the previous three months cannot be taken due to the meter ceasing to record the consumption or any other reason, the correct consumption will be determined based on the average consumption for the succeeding three months. Where any difference or dispute arises as to the correctness of the meter, the matter shall be decided upon by WPC 26542/2003 4 the Electrical Inspector to Government upon the application of either the Board or the consumer. During such periods the consumer will be charged only the meter minimum. After determining the correct consumption due billing will be made and necessary adjustment made in the next invoice issued.” It may be seen from the above that the procedure to be adopted under the above regulation for determining the correct quantity of energy is by taking the average consumption for the previous three months. If the average consumption for the previous three months cannot be taken due to any reason, then the average consumption can be determined by taking into account the consumption after exceeding three months. It has further been provided that where there is difference or dispute regarding the correctness of the meter, the matter shall be decided by the Electrical Inspector to Government upon an application either by the Board or the consumer. The Appellate Authority does not advert to any of the above procedures against the order evidenced by Ext.P4. The appellate authority has directed re-assessment of the consumption of the petitioner for the period from 1/1999 onwards, without any basis. Therefore the direction in Ext.P4 is not in conformity with the regulation referred to above. The standing counsel has not been able to point out any other provison of law which authorise WPC 26542/2003 5 the procedure that has been directed to be followed by appellate authority in Ext.P4. Therefore the directions in Ext.P4 are unsustainable. Ext.P6 which has been issued pursuant to the directions in Ext.P4 are also unsustainable. Exts.P4 and P6 proceedings are set aside. 6. The respondents have no case that the petitioner is guilty of tampering with the electricity meter. If so, the defect in the working of the meter could be due to various factors including mechanical defects. For such discrepancies the consumer is not responsible and cannot be made liable. Therefore as required in the latter part of Regulation 31(c) it is necessary to ascertain the reason for the fault in the electrical meter. The appellate authority is not entitled to invoke the penal provisions under Regulation 42 in the absence of any allegation of tampering. The standing counsel for the KSEB has relied on the decision of this Court in W.P(C) 16312/2006 to point out that while Regulation 31(c) deals with the method of finding out the average monthly consumption when the meter is faulty regulation 42 deals with levy of penal charges. According to the standing counsel the Board has the right not only to compute the correct electricity charges but also to levy penal charges. It is true that the authorities have both the powers WPC 26542/2003 6 referred to above viz., the power to compute the correct electricity charges as well as to levy penalty in appropriate cases. But, the order of the appellate authority shows that the said authority has not referred to any of the above provisions or found a case for invoking the powers thereunder. Therefore, the appeal filed by the petitioner is directed to be reconsidered by the appellate authority in the light of regulation 31(c) referred to above and the decision of this Court reported in Nirmala Metal Industries v. KSEB (2006(3) KLT 465) after affording an opportunity to the petitioner of being heard in the matter. Such orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. Any further payment of electricity charges from the petitioner shall be made only after such final orders are passed. While passing such final orders credit shall be given to the petitioner for the amounts already paid by him. In case of there being any excess the same shall be adjusted towards future electricity charges payable by him. Writ petition is allowed on the above terms. K. SURENDRA MOHAN Judge jj WPC 26542/2003 7 K. SURENDRA MOHAN, J. ----------------------------- W.P(C) NO:26542 OF 2003-I ----------------------------- JUDGMENT Dated: 1st April, 2009.