IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 OP.No. 8355 of 1999(T) ---------------------- PETITIONER(S): --------------- PREMJI K.K.KOTTAVELI HOUSE, EZHUPUNNA SOUTH P.O., CHERTHALA, ALAPPUZHA DIST. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): --------------- 1. ASST. EXE. ENGINEER, ELECTRICAL MAJOR SECTION, KUTHIATHODE, CHERTHALA. 2. THE SECRETARY, K.S.E.B.,VYDYUTHI BHAVAN, PATTAM, TRIVANDRUM. 3. THE CHIEF ELECTRICAL INSPECTOR, STATE OF KERALA, THIRUVANANTHAPURAM. 4. THE EXE. ENGINEER, ELECTRICAL DIVISION, (KSEB), CHERTHALA. ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO 4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 3/11/2008, THE COURT ON 26.11.2008 DELIVERED THE FOLLOWING: O.P.NO.8355/99. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE INVOICE. P2. COPY OF THE NOTICE. P3. COPY OF THE JUDGMENT DTD.26.10.99 IN O.P.NO.20700/98. P4. COPY OF THE APPEAL DTD.5.11.98. P5. COPY OF THE DEPOSITION. P6. COPY OF THE ORDER OF R4 DTD.16.3.99. P7. COPY OF THE SPOT BILLS. P8. COPY OF THE NOTICE DTD.7.10.2002. RESPONDENTS' EXHIBITS: R1(A) COPY OF THE PROCEEDINGS OF THE EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, CHERTHALA, DTD.16.3.99. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.8355 of 1999 ================== Dated this the 26th day of November, 2008 J U D G M E N T The petitioner is the occupier of a building with an electricity connection bearing consumer No.3121, in the name of the one Sri.Sugathan. The petitioner started a jwellery shop in that building. Initially, the authorised load for the electricity connection was 220 watts. At that time, payment of electricity charges was regulated by issuing provisional invoice cards on the basis of slab rates. The slab rate fixed for the petitioner was Rs.38/-. On 21.11.1994 the petitioner applied for increase of the connected load to 1000 watts, which was sanctioned. In 1996, the petitioner installed an air conditioner. According to the petitioner, although the air conditioner was installed, the same was used sparingly and that did not actually affect the consumption of the electricity by much. The petitioner paid additional security deposit of Rs.744/- also. The slab rate was increased to Rs.182/-. All on a sudden on 16.10.1998 the electricity supplied to the petitioner's building was disconnected. The petitioner was also given Ext.P1 additional bill dated 17.10.1998. The slab rate was also raised to Rs.1265/-. o.p.8355/99 2 Challenging the disconnection, the petitioner filed O.P.No. 20700/1998, in which, this Court by Ext.P3 judgment, directed reconnection. The petitioner was also directed to file objections in Ext.P1 bill before the Executive Engineer, Electrical Major Section, with a direction to the Executive Engineer to consider the same and pass appropriate orders. The petitioner filed Ext.P4 before the Executive Engineer. On the same, Ext.P6 order was passed by the Executive Engineer, in which it was stated that the meter was faulty and the same was replaced by the Electricity Board on 29.4.1997. Subsequently on the basis of the average monthly consumption, an arrear bill was stated to have been raised, which is Ext.P1. It was further held in Ext.P6 that the petitioner had used connected load of 3860 watts whereas the authorised connected load was only 1000 watts. The petitioner was all along paying the electricity charges only at the rate of Rs.182/- and therefore, the petitioner was liable to pay arrears of electricity charges as well as penalty under Regulation 42(d) of the Conditions of Supply of Electrical Energy. Accordingly, the Executive Engineer directed recovery of the bill amount from the petitioner as per the revised bill to be issued to the petitioner o.p.8355/99 3 incorporating penal charges at 3 times for the proportionate consumption of energy for the unauthorised load and to levy penal rate for fixed charges as per clause 42(d) of the Conditions of Supply of Electrical Energy till the regularisation of the unauthorised load. In the revised bill to be issued demanded for up to to date current charges was also directed to be included. The petitioner is now challenging Ext.P6 and seeking the following reliefs in this original petition. “(i) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibit P6 and quash the same; (ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the first respondent to refer the matter before the 3rd respondent as per law; (iii) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to install a new meter under the supervision of 3rd respondent and calculate the actual reading of the meter by noting the meter reading for the next 3 months after installation.” 2. The contention of the petitioner is that the petitioner was all along paying the current charges in accordance with the slab rate fixed and the meter reading. The petitioner would contend that at no point of time the petitioner was ever informed that the meter installed in his premises was not recording energy consumption correctly. He categorically disputes the claim of the respondents that the meter was replaced on 29.4.1997. He o.p.8355/99 4 asserts that he was never informed about the fault in the meter or any intention to change the meter because it was faulty. He submits that the meter in his premises could not have been replaced without his knowledge and in fact the meter was never replaced also. That being so, according to the petitioner, the petitioner is not liable to pay any charges other than the electricity charges for the electricity consumed by him as recorded in the meter installed in his premises. He would further submit that even if the Electricity Board was of the opinion that the meter was faulty, they had a duty to inform the petitioner about the same and if the petitioner objected to the same, to refer the question as to whether is meter is not recording consumption of energy correctly, to the Electrical Inspector as required under Section 26(6) of the Indian Electricity Act, which admittedly has not been done in this case. The petitioner would submit that in view of the decisions of this Court, without referring the issue as to whether the meter is recording the energy consumption correctly or not, to the Electrical Inspector, no arrears could have been validly demanded by the Board from the petitioner unilaterally. The petitioner also disputes the liability o.p.8355/99 5 to pay any penalty under Regulation 42(d) of the Conditions of Supply of Electrical Energy on the ground that he is liable to penalty only if he exceeds the contracted load without prior permission. According to the petitioner, the contracted load is defined in the Conditions of Supply of Electrical Energy as the maximum KVA/KW for supply of which the Board undertakes to provide a facility from time to time, which is not applicable to the petitioner's case in so far as the petitioner has not executed any agreement for a contracted load coming within the purview of Regulation 42(d). Therefore, the question of the petitioner becoming liable for payment of penal charges under Regulation 42(d) for exceeding the contracted load does not arise, is the contention raised by the petitioner. 3. The contentions of the petitioner are stoutly opposed by the learned Standing Counsel appearing for the KSEB. They would contend that the meter was replaced on 29.4.1997 because the meter was not recording the consumption correctly and therefore, the petitioner is liable to pay arrears of charges for a period of one year on the basis of the average monthly consumption recorded in the meter. The petitioner is also liable o.p.8355/99 6 to pay penalty under Regulation 42(d) both for the fixed charges and energy charges, is the contention raised. 4. I have considered the rival contentions in detail. 5. First I shall deal with the contentions regarding the change of meter. I am constrained to note that the Electricity Board has not been able to produce before me any material whatsoever to show that the electrical meter installed in the premises of the petitioner was replaced at any time. It is common knowledge that each electricity meter would have a serial number. The records would show the serial number of every meter installed and replaced in the premises of every consumer. That being so, the Electricity Board must be able to tell this Court the details regarding the original meter and the replaced meter supported by records. No attempt whatsoever in that direction has been made by the respondents in this case. The premises in question is a shop room containing only one room. The Electricity Board cannot replace the meter without the knowledge of the petitioner. The petitioner asserts that the meter had never been replaced. The Electricity Board has not been able to produce any material to show that the petitioner had been o.p.8355/99 7 informed of the necessity to replace the meter or about replacement of the meter. As such, the Electricity Board has sadly failed to prove before me that the contention that the meter had been replaced is correct. Therefore, I am unable to accept that contention. 6. Even otherwise when the Electricity Board holds the opinion that the electricity meter installed in the premises of a consumer is not recording the electricity charges correctly, Section 26(6) of the Indian Electricity Act, 1910 requires that the dispute in respect of the same has to be referred to the Electrical Inspector for his decision and it is for him to calculate the arrears of upto a maximum of six months. This has been held so by the Supreme Court and a Division Bench of this Court. After noting the Supreme Court decision and that of the Division Bench of this Court, I had in George Joseph v. K.S.E.B,. and others [ILR 2008 (4) 377] held that if the Board wants to raise bill on the plea that the meter is defective, the Board has to compulsorily refer the question of correctness of the meter for adjudication to the Electrical Inspector under Section 26(6) of the Indian Electricity Act, without which no arrears can be o.p.8355/99 8 demanded from the consumer. That decision squarely applies to the facts of this case and therefore, I hold that the petitioner cannot be directed to pay any arrears of electricity charges if the petitioner has paid electricity charges in accordance with the slab rate and actual readings in the meter from time to time. Since in this case, the petitioner was paying electricity charges on the basis of the provisional invoice card, he is liable to pay the charges in accordance with the slab rate fixed in the provisional invoice card and arrears after adjustment as per actual reading in the meter from time to time. 7. Next I come to the question of penalty payable under Regulation 42(d) of the Conditions of Supply of Electrical Energy. This issue is also covered by my decision in George Joseph's case (supra) wherein I have held that unless there is an allegation of theft of electrical energy, no penalty can be imposed on the energy charges, but in case of unauthorised additional load 3 times penalty on fixed charges alone can be levied under Section 42(d). I am also not inclined to go into the dispute as to whether Regulation 42(d) covers both connected load and contracted load and whether Regulation 42(d) is applicable o.p.8355/99 9 where there is unauthorised connected load, in so far as in this case the fixed charges would be very nominal. Admittedly the authorised connected load of the petitioner was only 1000 watts whereas the petitioner's actual connected load was 3860 watts. Even if the contention of the petitioner regarding the connected load in respect of the air conditioner is accepted, then also the difference would be only nominal. For having connected unauthorized connected load without prior permission the petitioner has to pay some penalty and therefore, I am not inclined to interfere with demand for penalty on fixed charges, in exercise of my discretionary jurisdiction leaving the question raised regarding the applicability of Regulation 42(d) to unauthorised connected load open to be agitated in an appropriate case. Accordingly, Ext.P6 is quashed to the above extent. The respondents are directed to issue fresh bill to the petitioner in accordance with the above findings, which shall be paid by the petitioner. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.8355/99 10 S.SIRI JAGAN, J. ================ O.P.No.8355 of 1999-T ================ J U D G M E N T 26th November, 2008 o.p.8355/99 11