IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 8TH APRIL 2011 / 18TH CHAITHRA 1933 SA.No. 380 of 1998(C) AND CROSS OBJECTION -------------------------------------------------------------------- AS.NO.9/1994 OF ADDITIONAL DISTRICT COURT, KOZHIKODE, OS.NO. 155/1991 OF PRINCIPAL MUNSIFF'S COURT, KOZHIKODE-I] .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 TO 3: ------------------------------------------------------------------------ 1. THE ASST. EXE. ENGINEER, ELE. MAJOR SECTION, K.S.E. BOARD, CALICUT. 2. THE SENIOR SUPERINTENDENT, ELE. MAJOR SECTION, K.S.E. BOARD, KOZHIKODE. 3. THE KERALA STATE ELECTRICITY BOARD, REP. BY ITS CHAIRMAN, TRIVANDRUM. BY SRI.C.K. KARUNAKARAN, S.C, K.S.E.B. RESPONDENT/RESPONDENT/PLAINTIFF: ----------------------------------------------------------- M/S. NATIONAL RUBBER WORKS, REP. BY MANAGING PARTNER, THANKACHAN GEORGE, SON OF K. GEORGE, RAM NIVAS, HOUSE NO.2/3056, VENGARI AMSOM AND DESOM OF KOZHIKODE TALUK. BY ADVS. SRI.D.KRISHNA PRASAD, SRI.M.HARISHARMA. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 380 of 1998 & Cross Objection - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of April, 2011. JUDGMENT Kerala State Electricity Board, hereinafter referred to as the Board has approached this court aggrieved by the decree in O.S.155 of 1991 before the Munsiff's Court, Kozhikode as modified in A.S.9 of 1994 before the District Court, Kozhikode. The Board and its officers were the defendants in the suit. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff partnership firm engaged in the manufacture of tread rubber. It is claimed that they were working three electric motors having the capacity of 60 HP, 20 HP and 3 HP. They ran into loss. Therefore the firm was closed for nearly 1 ½ tears upto May, 1988. From June, 1988 onwards the firm is engaged in mixing hawai sheets and for that a mixing mill alone is S.A.380/1998. 2 necessary. It is claimed that for five years the extruder has not been operated. The plaintiff would claim that since the firm was using only minimum consumption level it used to pay the necessary amounts. It is admitted that the firm was working for 8 hours per day. While so, the complaint is that they were served with Ext.A10 bill calling upon them to pay Rs.80,116/- on or before 26.2.1991 and threatening disconnection on 7.3.1991 in the event of non-payment. The bill discloses the unit charges from July 1985 till January, 1991 and the electricity duty imposed on the current charge for the said period. The plaintiff complained that the bill did not disclose the details at all and was drawn up arbitrarily without notice to the plaintiff. He therefore issued Ext.A11 notice to the Board. There was no reply from the Board. Fearing disconnection from the Bord, the suit was laid. 3. Defendants 2 and 3 resisted the suit by filing a written statement. Their main contention was that the suit was not maintainable under the provisions of the Indian Electricity Act and Indian Electricity (Supply) Act. According S.A.380/1998. 3 to them the plaintiff is a huge industrial consumer with a connected load of 83 HP using 3 motors of 60 HP, 20 HP and 3 HP. They admitted that for certain period the firm remained closed for unknown reasons. The alleged bill represents the short assessment from July, 1985 to January, 1990 during which period the energy meter placed in the plaintiff's premises recorded only 1/5th of the actual consumption. The meter had a multiplication factor of 5, which had to be applied to the consumption recorded by the meter. That was omitted to be done. Later the mistake was confirmed by the inspection report dated 16.9.1987. The meter was replaced in June, 1990. The second part of assessment involves the period from July, 1990 to January, 1991, during which period the meter was running in the reverse direction. It was discovered in the surprise inspection conducted by the Anti Power Theft Squad on 2.2.1991 and a scene mahazar was also prepared. After the replacement of the meter in June, 1990, consumption of the plaintiff had shown considerable increase, which pointed to S.A.380/1998. 4 the irregularity in the meter. They thus sought to justify Ext.A10 bill. 4. The trial court on the basis of the above pleadings raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A18 from the side of the plaintiff. Defendants examined D.Ws.1 to 3 and had marked Exts. B1 to B14. Ext.C1 is the commission report. The trial court on an evaluation of the evidence found that there was no justification in issuing Ext.A10 bill as it is not supported by materials and decreed the suit as prayed for and declared that Ext.A10 bill is unenforceable. The Board, aggrieved by the said judgment and decree, took up the matter in appeal as A.S.9 of 1994. The lower appellate court also found that Ext.A10 wass arbitrarily and unilaterally prepared without notice to the plaintiff and that is bad in law. But the lower appellate court was of the view that a proper assessment could be made after issuing notice to the petitioner for three years immediately preceding 6.2.1991 and accordingly S.A.380/1998. 5 modified the decree of the trial court to that extent. Aggrieved by the modified decree, the Board has come up in appeal and the plaintiff has come forward with a cross objection. 5. Notice is seen issued on the following questions of law: “i) Whether the suit is not barred by section 56 of the Indian Electricity Act read with Section 82 of the Electricity (Supply) Act? ii) Whether the Electrical Inspector has properly and judicially exercised his jurisdiction vested with him under Section 36 read with Section 26 of the Indian Electricity Act? iii) Whether the court below is correct in allowing the declaration and injunction as prayed for declaring Ext.A10 bill as arbitrary, void an unenforceable etc., especially when the appellate court directed to make fresh assessment?” 6. Learned counsel appearing for the appellants contended that both the courts were not justified in finding fault with Ext.A10 bill, which was in accordance with the provisions of the Electricity Act and Electricity (Supply) Act. S.A.380/1998. 6 It is further contended that the suit was not maintainable as the plaintiff had several efficacious alternate remedies. Drawing attention of this court to Ext.A10 bill it is pointed out that if the plaintiff was aggrieved by the reading or the rates made mention of therein, his remedy was to file a complaint before the Assistant Executive Engineer and not to rush to the court. It was then contended that it was due to a bonafide mistake that there was an error of proper assessment of consumption of the unit. The courts below were not justified in interfering with the bill issued by the Board. The Board had claimed that the meter had been replaced in the presence of the plaintiff and there was no right on the part of the plaintiff to object to the bill since he is well aware of the fact that he has actually consumed the energy which was taken notice of by the Board. It is also contended that in such cases even if there is some laches on the part of the Board, that should not go in favour of the consumer, who was well aware of the situation and who was aware of the quantum of energy consumed by him. In S.A.380/1998. 7 support of his contention, learned counsel for the appellants relied on the decisions in O.P. 35824 of 2002 and W.A. 2076 of 2004. It was therefore contended that the judgments and decrees of the courts below are unsustainable both on facts and in law and the appeal is only to be allowed and the suit is to be dismissed. 7. Per contra, learned counsel appearing for the respondent very vehemently contended that infact the lower appellate court should not have interfered with the trial court decree, which found that Ext.A10 bill was absolutely illegal and uncalled for. The lower appellate court and the trial court has noticed that several vital documents, which have a bearing on the issue have not been produced and if that be so, there is no error in that finding by the lower appellate court giving liberty to the Board to proceed for three years immediately prior to 6.2.1991. Learned counsel pointed out that on going through the judgments of the courts below, it would appear that the Board was aware of the error as early as in 1987 and they waited till 1991 to S.A.380/1998. 8 slap the plaintiff with a bill for Rs.80,116/-. There was no justification for not doing so and it could not be said that there was no defect in the connection of the Board. 8. Regarding the right of the Board to assess the consumer for defective meter and to take action against the consumer on that basis, learned counsel for the plaintiff contended that the matter has to be referred to the Electrical Inspector and the Board could not unilaterally decide the issue. In support of her contention, learned counsel relied on the decisions reported in Basantibai v. M.P. Electricity Board, Indore (AIR 1985 M.P. 70), M/s. Sri. Krishna Rajendra Mills Ltd. v. Chairman, K.E.B. Bangalore (AIR 1991 Karnataka 345), M/s. Regal Theatre v. M.P.E.B. Rampur (AIR 1987 M.P. 276). It was therefore contended that the lower appellate court was not justified in modifying the trial court decree and the lower appellate court ought to have confirmed the judgment and decree of the trial court. To that extent the cross objection needs to be allowed, so says the learned counsel for the respondent. S.A.380/1998. 9 9. Both the courts below have considered the matter in considerable detail. The main contention was that if the plaintiff was aggrieved by Ext.A10 bill, his remedy was to approach the Assistant Executive Engineer as is mentioned at the reverse side of the bill and not to rush to the court is without basis. As could be seen from the records, the plaintiff had issued Ext.A11 lawyer notice dated 16.2.1991. The Board has no case that it did not receive the notice. May be that it is not a complaint as envisaged by the Board. But it reflects the grievance of the plaintiff and he had clearly pointed out that it was not discernible from the bill as to how the amount has been arrived at as it contains no details at all. The plaintiff has pointed out that he had not consumed so much energy as has been assessed by the Board. The Board chose to slap him with a bill and that has prompted the plaintiff to institute the suit. 10. Both the courts below found that going by the evidence, it is not possible to come to the conclusion that Ext.A10 bill could be justified. Both the courts below have S.A.380/1998. 10 found that several vital documents have not been produced at all. 11. There are two parts to the bill. First part relates to the period from July, 1985 to June, 1990 and the second part relates to the period from July, 1990 to January, 1991. As far as the later part of the bill is concerned, the claim of the Board is that it was detected by the Board that the meter was running reverse due to a defective connection and that can be attributed to the act committed by the plaintiff. The lower appellate court has considered this aspect and found that the plaintiff cannot escape by pretending ignorance regarding this aspect as there was an inspection by the Squad of the Board. However, it is found that since Ext.A10 bill cannot be enforced as it is issued arbitrarily and without notice to the plaintiff, that portion of the bill also cannot be given effect to. 12. As far as the first portion is concerned, which is for the period from July, 1985 to June, 1990, the lower appellate court has considered the matter in considerable S.A.380/1998. 11 detail. It was found that the Board was not able to justify its act producing relevant documents. It was also noticed by the lower appellate court that the Board was aware of the defect in 1987 itself and there is no reason as to why the Board had not reacted till 1991. The lower appellate court had come to a categoric finding that there is no evidence to show that the meter in question had the multiplying factor of 5 and the Board has not succeeded in establishing that they were justified in issuing Ext.A10 bill which mentioned that for the period from 1985 to 1991 there was a short assessment of consumption as they had applied the wrong multiplying factor. The lower appellate court has also noticed that R.W.1, who was examined on behalf of the Board had deposed before the court that there were several inspections conducted by the Board and the plaintiff was aware of the same. However, the court has noticed that except for the statements made by R.W.1, there were no documents in support of the above claim. S.A.380/1998. 12 13. It was under the above circumstances, the lower appellate court was of the opinion that if the Board has a case as it did, it is only proper that notice be issued to the plaintiff and a proper assessment be made after hearing him also. Of course, the lower appellate court has confined the authority of the Board to make assessment immediately preceding three years. 14. In this connection, learned counsel for the respondent relied on certain decisions, which are already made mention of and it was held that in such cases the view taken in the decisions relied on by the learned counsel for the respondent shall not be a criterion at all and that public interest is involved and no leniency ought to have been shown to the consumer. 15. On going through the decision cited by the learned counsel for the appellants, it is seen that they are of totally different facts and has no application to the facts of this case. In those cases, consumers were well aware of the quantum of energy they had used. In the case on hand, at S.A.380/1998. 13 no point of time the plaintiff was alerted about the nature of the assessment that was sought to be made and even going by the evidence on record the Board was aware of the mistake in 1987 and they still chose to do nothing. It could not be said that it was a mistake. Because even after knowing that there was an error, still they chose to keep on issuing the bills as before and did not rectify the same. Moreover, the lower appellate court says that there was no evidence to indicate the multiplier, which had to be adopted in this case. 16. Therefore, the lower appellate court was justified in confining the right of the Board to make assessment for a maximum period of three years preceding 6.2.1991. One must notice that the lower appellate court has found that as far as the second portion of the bill the plaintiff cannot plead ignorance as he was aware of the defect in the meter since he has signed in the mahazar prepared by the Board. S.A.380/1998. 14 17. Coming to the cross objection, it is without any merits whatsoever. The decisions relied on by the learned counsel for the appellants have been considered in the decision reported in Southern India Marine Products Co. v. K.S.E.B. (1995(2) K.L.T. 167). It is too premature at this point of time to decide on the issue in the light of the fact that the lower appellate court has directed the Board to issue notice to the plaintiff and to make a reassessment after hearing the plaintiff also. That gives an opportunity to the plaintiff to raise all the contentions before the Board when it seeks to make an assessment in terms of the appellate decree. It therefore follows that this appeal and the cross objection are without merits and they are dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.