IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 OP.No. 10286 of 2002(Y) ----------------------- PETITIONER(S): --------------- AMALA CANCER HOSPITAL, AMALA NAGAR, TRICHUR REPRESENTED BY ITS JOINT DIRECTOR, FR.WALTER THALAPILLY C.M.I. BY ADV. SRI.SABU GEORGE RESPONDENT(S): --------------- 1. THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS CHAIRMAN, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE SPECIAL OFFICER (REVENUE),K.S.E.B., VAIDYUTHI BHAVAN, THIRUVANANTHAPURAM. 3. DEPUTY CHIEF ENGINEER IN-CHARGE (COMMERCIAL & TARIFF), VAIDYUTHI BHAVAN, THIRUVANANTHAPURAM. 4. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, MUDUVARA, POZHAKKAL P.O., THRISSUR. ADV. SRI.KODOTH SREEDHARAN, SC, KSEB SRI.C.K.KARUNAKARAN, SC FOR KSEB THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.10286/2002 ORDER ON CMP NO.18286/2002 IN OP NO.10286/2002 DISMISSED. 28/05/2009 SD/- (ANTONY DOMINIC, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE BILL ISSUED FOR THE MONTH OF NOVEMBER, 2000 ALONG WITH THE BILL WORKING SHEET. P2 : COPY OF WORKING SHEET. P3 : COPY OF ADDITIONAL BILL DATED 04/01/2002 ALONG OTHER RECORDS. P4 : COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TOT HE HONOURABLE MINISTER FOR ELECTRICITY DATED 08/01/2002. P5 : COPY OF ORDER PASSED BY R3 RECEIVED BY PETITIONER ON 27/03/2002 DATED 20/03/2002. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- O.P. No.10286 of 2002 --------------------------------- Dated, this the 28th day of May, 2009 J U D G M E N T The petitioner, a hospital, is a High Tension consumer of the 1st respondent Board. It is stated that on the basis of the energy consumed, which was being recorded in the meter, of which reading was taken by the Officers of the Board periodically, the bills were being raised, and charges were being paid. 2. According to the petitioner, on 01/11/2000, the Assistant Engineer of the Board, took the meter reading and on that basis, Ext.P1 bill was issued, which was also paid. Immediately thereafter, on 03/11/2000, the Special Squad of the Board inspected the Electrical installations in the petitioner's premises. It is stated that on inspection, it was noticed that R phase PT fuse was found to be blown off, and that the meter was recording only 2/3rd of the actual consumption. The defect was rectified on 13/11/2000, and the petitioner was held liable for revised charges for the period from March, 2000 to 13/11/2000. O.P.No.10286/2002 -2- 3. On this basis, under cover of Ext.P3, revised bills were issued to the petitioner. Since demand was for more than Rs.5 lakhs, the petitioner submitted Ext.P4 representation, which was treated as an appeal. The appeal was heard by the Chief Engineer of the Board, and was disposed of by Ext.P5 order. In Ext.P5 it was directed that for the period from June, 2000 to August, 2000, the petitioner may be charged at 50% of the recorded consumption. It is also stated that for the period from September, 2000 to November, 2000, the petitioner may be charged adopting the average of three month's consumption for the period after the defective meter was replaced. It is challenging this proceedings, the original petition has been filed. 4. The main contention raised is that even if the meter has ceased to record the correct consumption, it could only have started after 01/11/2000 when the meter reading was taken. According to the petitioner, fact that the meter was working correctly was certified by the MRT Shornur Team pursuant to the inspection held on 09/06/2000. It is also contended that the respondents having not resorted to the procedure laid down in Section 26(6) of the O.P.No.10286/2002 -3- Indian Electricity Act, did not have the unilateral freedom to quantify and demand the dues. 5. On behalf of the respondents, these claims of the petitioner are disputed. According to the respondent Board, there was no defect in the meter to apply the procedure under Section 26 (6) of the Act referred to above. It is stated that the fault was internal to the meter and the same was caused due to entrapment of a lizard, which resulted that the fuse being blown off. It is stated that since there was no inherent defect in the meter, Section 26(6) is inapplicable. It is also their case that since the actual consumption was not being recorded in the meanwhile, they are entitled to levy charges for the previous six months. It is stated that when the petitioner produced documents certifying the meter to be correct as on 09/06/2000, that was taken note of by the appellate authority, and that it was on that basis, the demand was revised and restricted from June onwards in Ext.P5 appellate order. 6. In my view, the issue to consider is whether the respondents were justified in levying charges revising the invoice of the petitioner with effect from June, 2000. Exts.P3 & P5 show that O.P.No.10286/2002 -4- the bills were initially revised from March, 2000, onwards. This was on the assumption that the meter reading were incorrect from that point of time onwards. This conclusion in Ext.P3 was disproved by the petitioner by producing the test result issued by the MRT Shornur Team. This was accepted by the appellate authority as can be seen from Ext.P5. If that be so, the estimation done in Ext.P3 was accepted as incorrect. However, in my view, that conclusion of the appellate authority does not mean that the appellate authority should have straight away ordered revision of the bills from June onwards. On the other hand, in my view, the primary responsibility of the appellate authority was to find out the point of time, when the meter ceased to record the correct consumption. According to the petitioner, any such error, could be only subsequent to 01/11/2000 when reading was taken. Such an attempt to find out the point of time, when the meter ceased to record the correct consumption, has not been done by the appellate authority. On the other hand, the appellate authority has straight away ordered revision of invoices from June, 2000, taking into account the liberty given them under Section 26(6) of the Indian Electricity Act. Even O.P.No.10286/2002 -5- that section gives only an outer time limit, but does not exonerate the appellate authority from its responsibility to make an attempt for making a correct estimation. 7. Since in this case, the appellate authority has not undertaken such an exercise, I can not uphold Ext.P5. Accordingly, Ext.P5 will stand set aside, and I direct the Chief Engineer, who passed Ext.P5, to reconsider Ext.P4 and pass orders thereon as expeditiously as possible. It is directed that every endeavor shall be made to find out the point of time from which the meter has ceased to record the correct quantity of energy that was consumed by the petitioner. On that basis alone should the petitioner be made liable for revised electricity charges. Needless to say that before final orders are passed, the petitioner or his representative will be given an opportunity of hearing. 8. Depending upon the outcome of the appeal, the amount deposited by the petitioner pursuant to the interim order dated 12/04/2002 will be appropriated. The original petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg