IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 WP(C).No. 23238 of 2009(Y) -------------------------- PETITIONER(S): --------------- MANACAUD RUBBER INDUSTRIES, MANAKKAD P.O., THODUPUZHA 685 584, REPRESENTED BY ITS MANAGING PARTNER. BY ADV. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, THODUPUZHA. 3. ASSISTANT ENGINEER, ELECTRICAL SECTION I, THODUPUZHA. 4. REGIONAL AUDIT OFFICER, REGIONAL AUDIT OFFICE, KSEB, THODUPUZHA. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.23238 of 2009 --------------------------------- Dated, this the 18th day of August, 2009 J U D G M E N T The petitioner is a Low Tension consumer with a sanctioned load of 81 KW with consumer code 2655. They were issued Ext.P1 short assessment demand for the period from December, 2004 to March, 2005 for an amount of Rs.1,40,535/-. Ext.P1 is dated 02/05/2009, and though the amount was to be paid on 27/05/2009, according to the petitioner, this was served on them only on 29/05/2009. 2. It is stated that thereupon they filed Ext.P2 objection. But, however, by Ext.P3, the 3rd respondent confirmed Ext.P1. A reading of Ext.P3 shows that from December, 2004 the meter was found sluggish, and was replaced with a good meter on 31/03/2005. It is stated that on replacement considerable increase in the power consumption was recorded, and that average for the period subsequent to 31/03/2005 was taken and on that basis, Ext.P1 short assessment demand was issued. 3. The petitioner filed Ext.P4 appeal. However, the conditions which are specified under Section 127 were not complied WP(C) No.23238/2009 -2- with. Therefore, the 3rd respondent himself passed Ext.P5 order confirming Ext.P3. It is in these circumstances, the writ petition is filed. 4. The learned counsel for the petitioner firstly contended that the meter itself was not faulty, and therefore, the basis on which the quantification done is erroneous. However, a reading of Ext.P2 objection filed by the consumer shows that such a contention was not raised. If that be so, I am not prepared to entertain the plea raised for the first time in this writ petition. 5. The learned counsel then contended that in view of the provisions contained in section 56(2) of the Indian Electricity Act, 2003, the demand now made is time barred. Having regard to the law laid down in the judgment in WP(C) No.90/2009 dated 19/02/2009, I am not inclined to accept this contention also. In that judgment, it has been held that limitation as provided under section 56(2) will start only after a bill is issued. If so, this plea is only to be rejected and I do so. 6. Although, the learned counsel for the petitioner has also raised a plea that the demand raised is belated and therefore is arbitrary, referring to an Apex Court judgment in State of Kerala v. WP(C) No.23238/2009 -3- V.R.Kalliyanikutty (1999(2) KLT 146), having regard to the fact that the dues for the period from December, 2004 to March 2005 was demanded by Ext.P1 issued on 02/05/2009, I cannot accept the contention that there is any inordinate delay in the demand rendering the demand arbitrary for that reason. 7. Then the learned counsel for the petitioner referred to me Clause 31(c) of the Conditions of Supply of Electrical Energy and contended that the basis of the quantification adopted by the Board is erroneous. True, as contended by the learned counsel for the petitioner, Clause 31(c) of the Conditions of Supply provides that if the meter is found incorrect, 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. This provision further provides that if the average consumption cannot be quantified on the above basis, the correct consumption will be determined based on the average consumption for the succeeding three months. 8. Ext.P3 or Ext.P5 do not show that any endeavour was made by the 3rd respondent to quantify the average of the previous three months and issue the demand to the petitioner on that basis. WP(C) No.23238/2009 -4- In my view, only after failure to quantify the dues in the aforesaid manner could the respondent have adopted average of the period subsequent to the replacement of the meter and issued the short assessment demand on that basis. Therefore, Ext.P1 to that extent is illegal and is opposed to Clause 31(c) of the Conditions of Supply. 9. Therefore, rejecting all other contentions raised by the learned counsel for the petitioner, except the plea raised relying on Clause 31(c) of the Conditions of Supply, this writ petition is disposed of directing the 3rd respondent to quantify the dues of the petitioner in the manner as provided under Clause 31(c) of the Conditions of Supply. It is made clear that in case previous three months' average cannot be quantified, the 3rd respondent will be free to demand energy charges from the petitioner adopting the subsequent three months average as the basis. In order to enable the 3rd respondent to issue a fresh demand as above, I quash Ext.P1 bill. The writ petition is therefore disposed of with liberty to the respondents to issue a fresh demand in the above manner. (ANTONY DOMINIC, JUDGE) jg