1 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 22.02.2019 CORAM THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN Writ Petition No.17698 of 2010 and M.P.No.1 of 2010 K.Reena .. Petitioner Versus The Executive Engineer Adayar Revenue Branch Tamil Nadu Electricity Board TNEB/CEDC/SOUTH Velacherry Sub Station Complex Chennai – 600 042. .. Respondent Writ petition has been filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari calling for the records of the respondent which culminated in the impugned notice LR No.AAO/PDY/ASI/FBOAM/A/c No.201-001-768/D480 dated 31.05.2010, quash the same and forbear the respondent from taking any action. http://www.judis.nic.in 2 For Petitioner : Mr.A.S.Kailasam For Respondent : Mr.S.K.Rameshuwar ORDER The petitioner has filed this Writ Petition seeking to quash the impugned notice LR No.AAO/PDY/ASI/FBOAM/A/c No.201- 001-768/D480 dated 31.05.2010 and forbear the respondent from taking any action. 2. The case of the petitioner is that she is the owner of a portion of the land and building situate at No.44, First Main Road, Gandhi Nagar, Adyar, Chennai, having electricity service connection in AC No.201-001-768. The petitioner was paying electricity bill promptly as per the demands raised by the respondent without any default. In April 2008, there was a fire in the main cable and due to which, metres in the board were burnt totally and there was no supply of electricity. A fresh meter was put up by the Electricity Board, but since core cables were burnt, http://www.judis.nic.in 3 it was not connected immediately. Due to the burning of cables, for the extended period of time, there was no work carried out and connected and the respondent should not charge due to the fact and also the petitioner was paying the minimum amount as fixed by the Electricity Board. In October 2009, the respondent fixed a fresh meter, after which, the readings were taken by the Electricity Board only from 01.10.2009, when the electricity supply was resumed after April 2008. The petitioner's tenant M/s.Banyan Tree Holdings Pvt. Ltd., continued their business after the electricity supply was resumed and the tenant was paying the electricity charges without any default and suddenly on 31.05.2010, the respondent issued a notice and demanded Rs.1,43,093/- being the difference in short billing for the period from 05/2008 to 11/2009 and the same was alleged to be short levied due to non-adoption of average and according to the respondent, the same was included in the petitioner's A/c.No.201-001-768. In the letter dated 31.05.2010, there was a http://www.judis.nic.in 4 work sheet enclosed in the nature of an audit slip No.10 dated 11.05.2010, by which review of the petitioner's service Account number was done on the respondent's records in computer and as per the said findings from the data in the computer of the TNEB, it was found that the meter was defective from 05/08 to 11/09 and a new meter was fixed only on 06.10.2009, since the meter reading was normal, the petitioner objected to the same by letter dated 04.08.2010 that there was a fire in the premises and there was no electricity supply. 3. The learned counsel for the petitioner would submit that from the perusal of page 2A of the typed set of papers, it could be seen from the “EB Monthly Consumption Charge Collection Details” that from 22.01.2008 to 18.11.2008, Assessment Status has been shown as “NORMAL” and from 22.01.2009 to 16.09.2009, the Assessment Status has been shown as “DEFECTIVE”, when such being the case, the respondent has http://www.judis.nic.in 5 no authority to issue notice of demand to the petitioner when the meter has not been fixed. Even according to the counter filed by the respondent in para-8, the meter fixed was also found to be defective and there was no proper reading has been taken by the respondent. Hence the petitioner prayed for quashing of the said demand and to allow the Writ Petition. 4. The learned counsel for the respondent filed counter as well as additional counter and they would submit that the averments in the petition is not sustainable as for more than 20 months, ie., nearly 1½ years, a tenant will not be occupying the said premises without any electricity connection and it is a false statement issued only for the purpose of taking a plea to avoid payment of consumption charges. They would also submit that if the meter fixed in the service has become defective, then average has to be calculated and accordingly, the petitioner has been served with notice to pay the shortfall of Rs.1,43,093/- as http://www.judis.nic.in 6 per TNERC Supply Code since the meter fixed subsequently was also found to be defective and the current consumption usage by the consumer was not recorded properly and only the Audit party has pointed out and directed to calculate the correct amount on average basis and they would further submit that the demand issued is appropriate and there is no interference needed at this juncture. 5. The learned counsel for the respondent would also submit that in the event of the service cable faults, the supply will be resumed at the earliest after attending to the cable fault. Accordingly, the service was restored on 03.04.2008 and no proof has been produced by the petitioner regarding the non-suply of current in the premises. After the new meter was fixed on 06.10.2009, the readings were recorded as 2500 units as prior to 04/2008. Hence, the claim of the petitioner that no power supply was given to the petitioner's flat,is false and cannot be http://www.judis.nic.in 7 accepted. No evidence or proof has been filed before this Court to show that there was no current supply to the flat. According to the Audit, shortfall was found and the worksheet was also given to the petitioner, which explains the basis on which the Audit has arrived the shortfall, based on the TNERC Supply Code Ch (2), 11. 6. Heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the materials available on record. 7. Since there are various disputed facts have to be adjudicated, the petitioner's counsel was advised by the respondent counsel to file an Appeal before the concerned authority for redressing his grievance. As per TNERC Supply Code Chapter (2) 11, if the assessment of billing was done in cases where there is no meter or the meter is defective, the consumer http://www.judis.nic.in 8 has to approach the concerned authority and he can redress his grievance. Chapter (2) 11 of TNERC Supply Code is reproduced hereunder:- “11. Assessment of billing in cases where there is no meter or meter is defective : (1) Where supply to the consumer is given without a meter or where the meter fixed is found defective or to have ceased to function and no theft of energy or violation is suspected, the quantity of electricity supplied during the period when the meter was not installed or the meter installed was defective, shall be assessed as mentioned hereunder. (2) The quantity of electricity, supplied during the period in question shall be determined by taking the average of the electricity supplied during the preceding four months in respect of both High Tension service connections and Low Tension service connections provided that the conditions in regard to use of electricity during the said four months were not different from those which prevailed during the period in question. (3) In respect of High Tension service connections, where the meter fixed for measuring the maximum Demand becomes defective, the Maximum Demand shall be assessed by computation on the basis of the average of the recorded demand during the previous four months. http://www.judis.nic.in 9 (4) Where the meter becomes defective immediately after the service connection is effected, the quantum of electricity supplied during the period in question is to be determined by taking the average of the electricity supplied during the succeeding four months periods after installation of a correct meter, provided the conditions in regard to the use of electricity in respect of such Low Tension service connections are not different. The consumer shall be charged monthly minimum provisionally for defective period and after assessment the actual charges will be recovered after adjusting the amount collected provisionally. (5) If the conditions in regard to use of electricity during the periods as mentioned above were different, assessment shall be made on the basis of any consecutive four months period during the preceding twelve months when the conditions of working were similar to those in the period covered by the billing. (6) Where it is not possible to select a set of four months, the quantity of electricity supplied will be assessed in the case of Low Tension service connections by the Engineer in charge of the distribution and in the case of High Tension service connections by the next higher level officer on the basis of the connected load and the hours of usage of electricity by the consumer. (7) In case, the consumer does not agree with the assessment made by the Engineer or the higher level officer as the case may be, the matter may be referred to the next http://www.judis.nic.in 10 higher-level officer of the Licensee. In case the consumer is still not satisfied, the consumer is at liberty to approach the respective Consumer Grievance Redressal Forum of the Licensee.” 8. According to the learned counsel for the respondent, the Superintending Engineer, is the concerned authority to consider the issue and the petitioner has to file an appeal before the Chairman, Consumer Grievance Redressal Forum (CGRF), CEDC/South-II, K.K.Nagar, S.S.Complex, Chennai-78. 9. In view of the above, without going into the merits of the case, this Court directs the petitioner to approach the concerned authority. Since already the matter has been pending for more than 10 years, the petitioner is directed to file an Appeal before the said Authority within a period of three weeks from the date of receipt of a copy of this order and the said authority is directed to consider the same, after giving an opportunity to the parties concerned, within a period of 12 weeks http://www.judis.nic.in 11 thereon. The petitioner can produce all evidences before the authority concerned and the authority concerned is directed to consider the evidences and decide the Appeal in accordance with law. Till such period of passing the order, the respondent is directed not to precipitate the issue further and not to pursue their demand. 10. With the above directions, the Writ Petition is disposed. Consequently, connected Miscellaneous Petition is closed. No costs. 22.02.2019 Index : Yes/No Internet : Yes/No mra To The Executive Engineer Adayar Revenue Branch Tamil Nadu Electricity Board TNEB/CEDC/SOUTH Velacherry Sub Station Complex Chennai – 600 042. http://www.judis.nic.in 12 V.BHAVANI SUBBAROYAN, J. mra Writ Petition No.17698 of 2010 and M.P.No.1 of 2010 22.02.2019 http://www.judis.nic.in