IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 WP(C).No. 7682 of 2007(M) ----------------------------------- PETITIONER(S): ----------------------- JOY RAPHEL, MANIYACHERIL HOUSE, KOOVAPADY P.O., AYATHUPADY, ERNAKULAM DIST. BY ADV. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT(S): ------------------------ 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. CHAIRMAN, CONSUMER GRIEVANCE REDRESSAL FORUM, K.S.E.BOARD, POWER HOUSE ROAD, ERNAKULAM. 3. ASST.ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, KOOVAPPADY. BY SC. KSEB SMT.P.K.RADHIKA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7682 of 2007(M) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1: COPY OF THE CHART SHOWING THE DETAILS OF PAYMENT OF ELECTRICITY CHARGES OF CONSUMER NO.4539. EXT.P2: COPY OF THE MAHAZAR DATED 21.2.2007. EXT.P3: TRUE COPY OF THE DEMAND DATED 22.2.2007 ISSUED BY THE 3RD RESPONDENT. EXT.P4: TRUE COPY OF THE COVERING LETTER DATED 23.2.2007 ISSUED BY THE 3RD RESPONDENT. EXT.P5: TRUE COPY OF THE COMPLAINT FILED BEFORE THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS:- //TRUE COPY// P.A TO JUDGE P.R.RAMACHANDRA MENON, J. --------------------------------------------- W.P.(C). NO.7682 OF 2007 ---------------------------------------------- Dated this the 2nd day of September, 2011. JUDGMENT The petitioner is challenging Ext.P3 bill issued by the respondents demanding a sum of Rs.49,913/- alleging that one of the three phases in the power meter was not recording the energy correctly, as revealed in the inspection conducted by APTS on 21.2.2007 at the premises of the petitioner. 2. It is the case of the petitioner, that the bill was raised without any basis and the 'meter' was taken away by the third respondent on the very same day without causing the same to be tested by the Electrical Inspectorate and as such, there is no liability for the petitioner to satisfy the demand. It is also stated that the issue is squarely covered by the decision rendered by the division bench of this Court in Nirmala Metal Industries v. K.S.E.B (2006 (3) KLT 465); which in W.P.(C). NO.7682 OF 2007 2 fact is based on the verdict passed by Apex Court in Bombay Electricity Supply & Transport Undertaking v. Laffans (India) (P) Ltd. & Another ((2005) 4 SCC 327). 3. Heard the learned Standing Counsel for the respondent Board as well, who sought for an adjournment. This Court finds that, despite the pendency of the matter for more than 4 years, no counter affidavit has been filed by the respondents till date and there is no justification for getting the matter adjourned. Coming to the question of law, the position has been made clear by the Division Bench of this Court in the decision stated Supra, particularly in paragraph 7 and 8 which read as follows: “7. We may indicate that it is the responsibility of the Board to install trouble free meter in the premises of the consumer and see that the meter is recording correctly the energy consumed. Duty is cast on the Board to get the defective meter tested not at the testing centre of the Board but by an independent authority like the Electrical Inspector. Report obtained from the testing centre of the W.P.(C). NO.7682 OF 2007 3 Board is not binding on the consumer in the case of a defective meter. The Board cannot take away the defective meter from the premises of a consumer and then raise a bill after getting it tested in its own testing centre. By removing the meter from the premises, the Board is spoiling the best evidence to the advantage of the consumer. Consumer has no dispute that the meter is defective. The question of consumer raising the dispute before the Electrical Inspector under S.26 does not arise though in a given case consumer can get the meter tested by an independent authority like Electrical Inspector. We may however, add that the situation is different in a case where it is noticed that the consumer has tampered with the meter. In such a situation, it is not a case of defective meter but a case of a tampered meter warranting no interference by the Electrical Inspector. This legal position is well settled by the decision of the apex court in Madha Pradesh Electricity Board v. Basantibai (1988) 1 SCC 23). Learned single Judge placed reliance in Uthup's case(supra). That is not a case of defective meter. 8. Learned single Judge of this court held that it is open to the consumer to move the Electrical Inspector to decide the dispute as to the correctness of the meter. True, if the licensee wants the meter to be tested by the Electrical Inspector he can take recourse to that; so also the consumer. As far as the present case is concerned, it is a defective meter. If the Board wants to raise a bill on the plea that it is a defective meter it is for the Board to take the meter from the premises of the consumer and also raise a bill in accordance with S.26 of the Act.” 4. Coming to the case in hand, there is no case for the respondents as to any tampering with the meter or any 'foul-play' by the petitioner. The only observation in Ext.P2 mahazar is that the two security seals of the W.P.(C). NO.7682 OF 2007 4 meter were damaged due to rust and there is specific case as to any fraudulent act on the part of the petitioner. This is more discernible from Ext.P4, forwarding letter enclosing Ext.P3 Bill. The only observation in Ext.P4 is that, consumption of electricity was being recorded only 'two phases' and hence it required an assessment in respect of the previous 6 months, thus fixing the due amount as Rs.49,913/-. Since the defective meter is stated as removed on the same date of inspection on 22.2.2007, it is not possible as on date, to ascertain the correct factual position after submitting the meter to be tested by the competent authority. In the said circumstances this Court finds considerable force in the submission made from the part of the petitioner, particularly with reference to the law declared by Division Bench of this Court in the decision sited supra. W.P.(C). NO.7682 OF 2007 5 5. In the above facts and circumstances, the impugned proceedings are set aside and the writ petition is allowed. No costs. The amounts satisfied by the petitioner pursuant to the interim order dated 7.3.2007 shall be adjusted in the future bills. P.R.RAMACHANDRA MENON, JUDGE. mns