IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 OP.No. 11562 of 2003(B) --------------------------- PETITIONER(S): -------------------------- P.O.DEVASSYKUTTY, S/O. OUSEPH, PERUMAYAN HOUSE, KANJOOR VADAKKUMBHAGOM VILLAGE, ALUVA TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): ------------------------ 1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, ELECTRICAL DIVISION PERUMBAVOOR. 3. ASSISTANT EXECUTIVE ENGINEER ELECTRICAL MAJOR SECTION, KALADY-683 574. ADV. SRI.T.G.RAJENDRAN SC FOR K.S.E.B. FOR R1 TO R3 SRI.C.K.KARUNAKARAN FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.11562/2003 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE INVOICE NO.30217 DT. NIL ISSUED TO THE PETITIONER. P2:- COPY OF THE ORDER NO.12/2000-01/DB2/52/PA/27/01-02 /2799 DT. 30.12.00 ISSUED BY THE 2ND RESPONDENT. P3:- COPY OF THE APPEAL DT. 21.11.02 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P4:- COPY OF THE ORDER NO.GB1/6/KALADY/02/03/588 DT. 15.3.03. P5:- COPY OF THE INVOICE NO.54794 DT. 24.3.03. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 11562 of 2003-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December, 2008. JUDGMENT The petitioner is a consumer of electricity with consumer No.1369. He is running a rice mill. The complaint raised is in regard to Ext.P1 bill by which an amount of Rs.59,532/- was assessed allegedly for the period the meter was faulty. He filed Ext.P3 appeal before the competent authority and by Ext.P4 order, the appeal was disposed of. Accordingly, Ext.P5 revised bill has been issued for an amount of Rs.39,532/-. 2. Learned counsel for the petitioner submitted that the method by which the whole issue was considered in the light of clause 31(c) of the Conditions of Supply of Electrical Energy framed by the Board, is unsustainable. While referring to Ext.P1, it was submitted that the meter was faulty from August to October, 2000 and it was replaced in November, 2000. But the assessment was made counting subsequent three months which covers the period after Ext.P2 order was issued, by which power allocation was enhanced and therefore it will not reflect the correct position. 3. It is also contended that in Ext.P4 there is a finding that the meter was remaining defective for almost an year which is not supported by any OP 11562/2003 2 material. Lastly, it was submitted that going by Section 26(6) of the Indian Electricity Act, the assessment made by the Board without recourse to it is unsupportable. 4. Heard learned Standing Counsel for the respondents also. What is recorded in Ext.P1 is that while consumption was in full swing, power meter was faulty from August 2000 to October 2000. The order Ext.P4 was passed after hearing the Asst. Executive Engineer also. His averments are seen recorded in Ext.P4. Nowhere it is stated that the meter was remaining defective for almost an year. Therefore, the finding by the Appellate Authority to that extent cannot be supported, especially since even in Ext.P1 it is stated that the power meter was faulty from August 2000 to October 2000. 5. Then the question is, how the average consumption could be arrived at. Going by clause 31(c) of the Conditions of Supply of Electrical Energy, a method is prescribed therein by which the consumption recorded for previous three months could be taken for the purpose of assessing the average consumption. For easy reference, clause 31(c) is extracted below: “In the event of any meter being found incorrect (which includes meter ceasing to record, running fast or slow, creeping or running in reverse direction) and where the actual errors on reading cannot be OP 11562/2003 3 ascertained, the meter will be declared faulty and 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. If the average consumption for the previous three months cannot be taken due to the meter ceasing to record the consumption or any other reason, the correct consumption will be determined based on the average consumption for the succeeding three months. Where any difference or dispute arises as to the correctness of the meter, the matter shall be decided upon by the Electrical Inspector to Government upon the application of either the Board or the consumer. During such periods the consumer will be charged only the meter minimum. After determining the correct consumption due billing will be made and necessary adjustment made in the next invoice issued.” A reading of the said clause shows that initially the authority, after declaring the meter faulty, should determine the correct quantity of energy by taking the average consumption for the previous three months, due regard being paid to the conditions of working, occupancy, etc. If the average consumption for the previous three months cannot be taken due to the meter ceasing to record the consumption or any other reason, the correct consumption will be determined based on the average consumption for the succeeding three months. Herein, the latter method was obviously adopted by the Board as seen from the details stated in Ext.P1 which was upheld by OP 11562/2003 4 the Appellate Authority in Ext.P4. The said method, according to me, goes against the first limb of clause 31(c). If the finding that the meter was remaining defective for a period of almost one year cannot be supported, then, going by Ext.P1 as well as Ext.P5, the consumption was in full swing prior to August 2000. Therefore, the average consumption for the previous three months, i.e. prior to August 2000 alone could have been taken for the purpose of assessment of charges for the previous three months. The petitioner's contention that there was an increase in power allocation by Ext.P2, is also relevant here, even though the respondents have got a case that actually the consumption was effected only later, in March 2001. Whether the question as to the petitioner, based on Ext.P2, had availed of the energy towards additional allocation, has not been finally rejected by Ext.P4 also, though it is stated therein that he remitted the amount for regularisation only on 22.3.2001. Merely because he has remitted the amount only on 22.3.2001, it cannot be conclusively held that he did not avail the additional allocation prior to the said date. In any view of the matter, even without going by the said factor, herein I am of the view that in the light of the fact that the consumption was in full swing prior to August 2000, there is no difficulty to arrive at the correct assessment based on the average consumption for the previous three months from August 2000. If OP 11562/2003 5 that be so, Exts.P1, P4 and P5 to that extent, cannot be upheld. 6. There is a very important question to be decided. Learned counsel for the petitioner submitted that in the light of the decisions of this court in Nirmala Metal Industries v. K.S.E.B [2006 (3) KLT 465] and George Joseph v. K.S.E.B and others [ ILR 2008 (4) Ker. 377], in a case where the meter is found faulty, Section 26(6) of the Indian Electricity Act and clause 31(c) of the Regulations relating to Conditions of Supply of Electrical Energy, 1990 are attracted and in the absence of a reference to the Electrical Inspector, the assessment will fail. 7. A Division Bench of this Court in Nirmala Metal Industries' case [2006 (3) KLT 465] examined the correctness of the legal position in such a situation. It was held that “once the meter installed by the Board is found to be defective, a duty is cast on the Board to install a correct meter in the premises of the consumer and get the defective meter tested by the Electrical Inspector under Section 26(6) of the Indian Electricity Act. Once the meter is found to be defective Electrical Inspector has to estimate the amount of energy supplied for a period not exceeding six months. Consumer has no statutory obligation to check as to whether the meter is recording the correct energy or not nor is he an expert to find out the OP 11562/2003 6 correctness or otherwise of the meter.” In that case, the said method was found not adopted by the Board. Therefore, the Division Bench was of the view that in the case of 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 Section 26 of the Indian Electricity Act”. In that view of the matter, the disputed bills were quashed as the said procedure was not adopted. In George Joseph's case [ILR 2008 (4) Ker. 377], the above decision was followed and it was held that “licensee cannot issue additional bill to consumer on the ground that meter is defective, before getting the meter tested by Electrical Inspector”. In the judgment in O.P.No.4969/2001 again the matter was examined by the learned Single Judge in the light of clause 31(c) of Conditions of Supply of Electrical Energy also. It was held that “if a meter is found incorrect, Section 26(6) of the Indian Electricity Act would come into play. In fact, that is exactly what Clause 31(c). Therefore, the jurisdiction to decide whether a meter is incorrect and whether for such defect, additional bills have to be raised, lies exclusively with the Electrical Inspector as per Section 26(6). Unless that procedure is complied with, the consumer is liable to pay electricity charges only in accordance with the consumption of energy recorded in the meter installed in his premises.” It OP 11562/2003 7 was therefore held that “the Board had no jurisdiction to reassess the past energy consumption of the petitioner based on the present readings of the electrical meter on the ground that there is vast difference between the average consumption recorded in two meters.” Since it is a matter concerning the jurisdiction of the Board, this Court quashed the assessment itself. 8. Going by clause 31(c) of the Regulations also, where any difference or dispute arises as to the correctness of the meter, the matter shall be decided upon by the Electrical Inspector to Government upon the application of either the Board or the consumer. There is no finding that any tampering was found. In that view of the matter, under Section 26(6) of the Indian Electricity Act, 1910 and and Clause 31(c) of the Regulations relating to Conditions of Supply of Electrical Energy, 1990, without referring the matter to the Electrical Inspector to assess the actual liability on the part of the consumer, the Board could not have issued the impugned bill. Since this is a matter affecting the jurisdiction of the Board, the entire thing will fall to the ground. In the above view of the mater, Exts.P1, P4 and P5 cannot be OP 11562/2003 8 sustained and are hereby quashed. The original petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/ OP 11562/2003 9 T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No. 11562 of 2003-B - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 9th December, 2008.