IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 WP(C).No. 28645 of 2007(I) ------------------------------------- PETITIONER: ------------------- T.K.USMAN HAJI, S/O.KUNHAMMED, AGED 49 YEARS, RESIDING AT ARFA MANZIL, VILLIAPPALLY, POST MAYYANNUR, VADAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENTS: ------------------------ 1. DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE VADAKARA. 2. ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, VADAKARA NORTH. 3. THE KERALA STATE ELECTRICITY BOARD- WITH ADDRESS FOR SERVICE- SECRETARY, KERALA STATE ELECTRICITY BOARD, TRIVANDRUM. BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.28645/2007 I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE BILL DTD. 24TH FEB, 2006. EXT.P2: COPY OF THE BILL DTD. 20TH JUNE 2006. EXT.P3: COPY OF THE BILL DTD. 21ST AUGUST 2006. EXT.P4: COPY OF THE MAHASSAR DELIVERED TO THE WRIT PETITIONER. EXT.P5: COPY OF THE INVOICE DTD. 17/11/2006. EXT.P6: COPY OF THE MEMORANDUM OF THE APPEAL. EXT.P7: COPY OF THE ORDER DTD. 30TH MAY 2007 BY THE 1ST RESPONDENT. EXT.P8: A DIAGRAM OF THE METER. EXT.P9,P10,P11 AND P12: COPY OF THE INVOICES DTD. 22ND DECEMBER 2006, 22ND FEBRUARY 2007, 22ND JUNE 2007 AND 21ST AUGUST 2007. /TRUE COPY/ P.S.TO JUDGE tss K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 28645 OF 2007 I -------------------------------------- Dated this the 27th May, 2008 JUDGMENT Case of the petitioner, in brief, is as follows: Petitioner is a domestic consumer. According to him, the average energy consumption was between 224 and 290 units for two months as disclosed by Exts.P1 to P3 Invoices. The Sub Engineer conducted an inspection and prepared Ext.P4 Mahazar. According to petitioner, he was issued with Ext.P5 Invoice. He preferred Appeal. The Memorandum of Appeal is produced as Ext.P6. By Ext.P7, the Appellate Authority found that theft was committed, but taking a liberal view, granted some relief to the petitioner. Petitioner challenges Ext.P7 and seeks a direction to refund the amount paid by the petitioner under protest. I heard the learned counsel for the petitioner and also the learned standing counsel appearing for the Electricity Board. 2. Counsel for petitioner would submit that Ext.P4 mahazar would not show that the seal of the meter was broken. WPC. 28645/07 I 2 He then relied on Section 27 of the Kerala Electricity Supply Code, 2005, in particular sub-section (5) thereof. It reads as follows: "27. Action against tampering, distress or damage to electrical plant, electric lines or meter- (5) If the consumer or Licensee or other authorized persons discover that the protective seal of the metering equipment has been broken, he shall notify the other party (licensee or consumer as the case may be) in writing immediately. The Licensee after receiving such notification shall replace the seal on the first occasion of visit and take meter reading." He also attempted to draw support from regulation 43 of the Kerala State Electricity Board Terms and Conditions of Supply, 2005. It reads as follows: "43. Tampering, Distress or Damage to Electrical Plant, Electrical lines or meter:- (4) If the consumer or Board or other authorized persons discover that the protective seal of the metering equipment has been broken, WPC. 28645/07 I 3 he shall notify the other party (Board or consumer as the case may be) in writing immediately. The Board after receiving such notification shall replace the seal on the first occasion of visit and take meter reading, if theft is not suspected." 3. It is contended by the learned counsel for the petitioner that the fate of the meter itself is mysterious. What happened to the meter is not made known to the petitioner. He would submit that there was no basis at all to conclude that there was theft committed by the petitioner. Learned standing counsel would support the order and also point out that in fact the Appellate Authority has taken a liberal view in the case of the petitioner. 4. What is stated in the mahazar is essentially as follows: That the R phase and the B phase were found functioning. Y phase was not found functioning. He opened the meter terminal cover and inspected the meter. It was found that the wires coming from the terminal and the wires going from the meter were joined together and this resulted in the stopping of the functioning Y WPC. 28645/07 I 4 phase. It is on the basis of this, apparently, that the Appellate Authority held as follows: "After hearing and studying the documents connected with this case, it is obvious that the consumer committed theft of energy". 5. It is in the teeth of these materials that in proceedings of judicial review, I am called upon to overturn the finding of the Appellate Authority who is a Deputy Chief Engineer. Learned counsel for petitioner does not have a case that what was discovered as reflected in Ext.P4 mahazar is untrue. In other words he does not have a case that the wires coming from the terminal and coming out of the meter were found joining, is untrue. What he would harp upon is contravention of Rule 27 (5) of the Rules and Regulation 43(4). As far as Regulation 43 (4) is concerned, it is inapplicable in the case of theft. No doubt, there was no finding as such in the mahazar that the seal is broken. Apparently, there is no intimation also that the seal is WPC. 28645/07 I 5 broken. Even assuming that this provision stood contravened in the course of preparing the mahazar, I would think that in the facts of this case, it may not suffice for me to overturn the finding of the Appellate Authority. Counsel for petitioner submitted that nothing is known about the meter and if the meter was tested, the truth could be brought to light. Petitioner has no case that he has moved any authority for testing the meter as such. This is a case where what is alleged is theft of electrical energy and tampering with the meter. This essentially tantamounts to a case of tampering with the meter. In such a case, Section 26(6) of the Electricity Act will not apply. If that be so, I am not persuaded to interfere with the appellate order. I also find that by the appellate order the Appellate Authority has taken a liberal view and granted some relief to the petitioner. 6. Counsel for petitioner also made an attempt to persuade me to consider whether with reference to the aid of the earlier bills, the case of theft of electrical energy alleged against the petitioner could be found to be unfounded. I do not think, in the WPC. 28645/07 I 6 facts of this case, that the petitioner is entitled to such a course either. In such circumstances, I find no merit in the Writ Petition and I am left with no choice, but to decline jurisdiction. Accordingly, the Writ Petition fails and it is dismissed. K. M. JOSEPH, JUDGE kbk.