IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 OP.No. 37150 of 2001(V) ---------------------------------- PETITIONER(S): ----------------------- MESSERS BHIMA JEWELS, M.G.ROAD, KOCHI-11, REP.BY ITS MANAGING PARTNER, BINDHU MADHAV, AGED 1 , S/O. BHIMA BHATTAR. BY ADV. MR.P.R.VENKETESH RESPONDENT(S): ---------------------------- 1. THE CHIEF ENGINEER(COMMERCIAL & TARIFF), THIRUVANANTHAPUAM. 2. THE SPECIAL OFFICER (REVENUE), KERALA STATE ELECTRICITY BOARD, VYDUTHIBHAVAN, PATTOM PALACE, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, COLLEGE GROUND, ERNAKULAM. R1 TO R3 BY ADV. MR.P.SANTHALINGAM, SC, KSEB R1 TO R3 BY MR. C.K.KARUNAKARAN, SC FOR KSEB THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.37150/2001 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REPORT OF THE 3RD RESPONDENT DTD. 27.1.2000. P2:- COPY OF THE UNDERTAKING MADE BY THE PETITIONER ON 27.11.2000. P3:- COPY OF THE COMMUNICATION DTD. 12.12.2000. P4:- COPY OF THE ADDITIONAL BILL ISSUED BY THE 2ND RESPONDENT. P5:- COPY OF THE JUDGMENT DTD. 14.6.01 IN OP. 17446/01 ON THE FILES OF THIS HONOURABLE COURT. P6:- COPY OF THE APPEAL PREFERRED BY THE PETITIONER BEFORE THE IST RESPONDENT. P7:- COPY OF THE ORDER DTD. 26.9.01 ISSUED BY THE IST RESPONDENT AND RECEIVED BY THE PETITIONER ON 24.10.01. RESPONDENT'S EXHIBITS R1(a):- STATEMENT SHOWING ENERGY RECORDED FROM 3/98 TO 12/2001. TRUE COPY P.S.TO JUDGE tss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 37150 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 8th September, 2009. J U D G M E N T The petitioner is a commercial consumer of electricity from the Kerala State Electricity Board. On 27-11-2000, the Assistant Executive Engineer of the High Tension Meter Testing Unit inspected the electrical installation of the petitioner and found that the P.T Unit installed in the petitioner's premises was faulty. By Ext. P1, the petitioner was directed to replace the P.T. Unit with a new one. The petitioner replaced the same on 12-12-2000. Thereafter, the petitioner was served with Ext. P4 bill for arrears of electricity charges for the period from 2/1999 onwards. The petitioner filed an original petition against that demand, which was disposed of by Ext. P5 judgment permitting the petitioner to file an appeal. The petitioner's appeal was rejected by Ext. P7 order. The petitioner is challenging Exts.P4 and P7 in this original petition. 2. The contention of the petitioner is that without referring the dispute regarding fault in the meter to the Electrical Inspector as required under Section 26(6) of the Indian Electricity Act, the respondents cannot recover arrears of electricity charges from the petitioner. The petitioner contends that the meter was recording the correct consumption. It is further contended that even assuming that arrears can be recovered, that can only be for the period of six months prior to the date of detecting fault in the meter. 3. A statement has been filed on behalf of the respondents, in which they would take the contention that insofar as the petitioner never sought reference of the dispute regarding the meter to the Electrical Inspector and they acknowledged the fact that the meter is faulty by replacing the P.T Unit by themselves. Therefore, they cannot now contend that they are not liable to pay arrears of electricity charges for the period when on account of the fault in the O.P. No. 37150/2001 -: 2 :- P.T Unit, the meter was not recording the correct consumption of electricity. They would further contend that as is clear from the petitioner's pattern of consumption of electricity, it is abundantly clear that the reading drastically came down in February, 1999 and again drastically increased after the P.T Unit was re-commissioned on 9-1-2001. They have produced Ext. R1(a) statement regarding the consumption of electrical energy by the petitioner every month from March, 1998 onwards till December, 2001. The respondents would, therefore, contend that the petitioner is liable to pay the arrears of electricity charges. 4. I have considered the rival contentions in detail. 5. It is not as if the petitioner was not aware of the fact that according to the respondents the meter was faulty. In fact, when by Ext. P1 the petitioner was directed to change the P.T Unit on the ground that it is faulty, without any objection, the petitioner replaced the P.T Unit. If the petitioner had a contention that the P.T Unit was not faulty, the petitioner would certainly have disputed Ext. P1, instead of replacing the P.T Unit in accordance with the directions in Ext. P1. Therefore, the petitioner was aware of the fact that recording of electrical energy in the petitioner's premises was not correct. If the petitioner had any dispute regarding that fact, it was perfectly open to the petitioner to seek a reference of the matter to the Electrical Inspector under Section 26(6) of the Act before changing the P.T Unit. By changing the P.T Unit by themselves, the petitioner themselves made it impossible to get the matter referred to the Electrical Inspector. That being so, the petitioner cannot now contend that no arrears can be recovered from the petitioner without referring the matter to the Electrical Inspector. 6. The pattern of consumption of electrical energy by the O.P. No. 37150/2001 -: 3 :- petitioner is given in Ext. R1(a), which corresponds to the readings given by the petitioner in the original petition itself up to 13-12-2000. Ext. R1(a) reads thus: ---------------------------------------------------------------------------- MONTH UNITS CONSUMED ---------------------------------------------------------------------------- 3/98 14672 4/98 14796 5/98 15584 6/98 13607 7/98 15313 8/98 16552 9/98 14946 10/98 17816 11/98 16748 12/98 15900 1/99 16988 2/99 9288 3/99 9972 4/99 9352 5/99 8444 6/99 7952 7/99 7668 8/99 9504 9/99 6452 10/99 7632 11/99 8276 12/99 9256 O.P. No. 37150/2001 -: 4 :- 1/2000 9620 2/2000 7844 3/2000 8860 4/2000 11292 5/2000 12392 6/2000 9212 7/2000 8708 8/2000 8628 9/2000 8996 10/2000 8592 11/2000 PT dismantled for repairs on 27-11-2000 12/2000 P T recommissioned on 9-1-2001 1/2001 10056 units from 9.1.2001 to 31.1.2001. 2/2001 14496 3/2001 13436 4/2001 19212 5/2001 19020 6/2001 14152 7/2001 14512 8/2001 19696 9/2001 14980 10/2001 14764 11/2001 15248 12/2001 14884 From the same, it is for anybody to see that up to January, 1999, the consumption of electrical energy by the petitioner was between 14000 O.P. No. 37150/2001 -: 5 :- and 17000 units. In February,1999, the same drastically came down to 9288. Thereafter, it ranged between 6452 to 9972 until January, 2001, except for two months in April and May, 2000 in which months, the consumption was 11292 and 12390. Again, after the P.T Unit was recommissioned on 9-1-2001, from January 2001 onwards, it suddenly increased to 10056 units and thereafter ranged between 19696 and 14152. The petitioner does not dispute the readings given in Ext. R1(a). Therefore, that evidence is clear to the effect that during February 1999 to November,2000, the meter was really faulty. I am of opinion that, therefore, the petitioner is liable to pay the difference in electricity charges for that period. 7. Of course, the petitioner would strenuously contend that in view of the Supreme Court decisions on the subject (see Belwal Spinning Mills Ltd. v. U.P. State Electricity Board and others, AIR 1977 SC 2793 and M.P.E.B. & others v. Smt. Basantibai, AIR 1998 SC 71), the respondents cannot demand arrears of electricity charges without referring the dispute to the Electrical Inspector. I am of opinion that the ratio of those decisions cannot be applied to the present case insofar as in this case, the petitioner did not raise a dispute regarding the fault in the meter at all. On the other hand, as directed in Ext. P1, the petitioner readily replaced the P.T Unit by a new one, which would go to show that the petitioner was satisfied that the meter was in fact faulty. The decisions referred can be applied only in cases where the consumer had, in fact, a dispute regarding the fault in the meter. When the consumer himself did not have a dispute regarding the fault in the meter, the ratio of that decision cannot be applied. Further, it is not the respondents who made the reference to the Electrical Inspector, but the petitioner themselves. The procedure prescribed in Section 26(6) is applicable O.P. No. 37150/2001 -: 6 :- only when there is a dispute as to whether the meter is faulty or not. In any event, in view of my above findings, there cannot be absolutely any doubt whatsoever that the meter was faulty for the period between February, 1999 to November, 2000. 8. But, I am not inclined to accept the method of calculation of arrears adopted by the respondents in the matter. In the peculiar circumstances of the case, I am of opinion that the arrears should be computed on the basis of the average consumption for the period from April, 1998 to January, 1999 for calculating arrears for the period from February, 1999 to November, 2000. Fresh demand for arrears, as calculated above, shall be issued to the petitioner expeditiously, on receipt of which the petitioner shall pay the same after adjusting the amounts already paid, in ten equal monthly instalments along with the monthly bills. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/