IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 SA.No. 46 of 1999(E) ----------------------------- AS.29/1996 of III ADDL.SUB COURT, KOZHIKODE OS.797/1991 of PRL. MUNSIFF COURT, KOZHIKODE-II .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------ 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHAIRMAN, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. THE ASST. ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.BOARD, KARAPARAMBA, KOZHIKODE. 3. THE SENIOR SUPERINTENDENT, ELECTRICAL MAJOR SECTION, K.S.E.BOARD, KARAPARAMBA, KOZHIKODE. BY ADV. SRI.C.K.KARUNAKARAN (SC KSEB). RESPONDENT/APPELLANT/PLAINTIFF: --------------------------------------------------------- M. VASUDEVAN, S/O.RARU, PROPRIETOR, MANNARKKAL OIL MILL, MALAPARAMBA, KOZHIKODE-673 009. BY SRI.M.C.SEN, SENIOR ADVOCATE, ADV. SRI.JACOB CHACKO. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2011,THE COURT ON 27/01/2011 DELIVERED THE FOLLOWING: rs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 46 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of January, 2011. JUDGMENT The facts of this case fall within a narrow compass. It appears that on 3.9.1991 the officers of the first defendant visited the manufacturing unit run by the plaintiff and found that electricity meter was running in the reverse direction. They therefore prepared Ext. B1 mahazar dated 3.9.1991. Thereafter, they issued Ext.A2 dated 16.9.1991 calling upon the plaintiff to pay a sum of Rs.23,950/- as charges for electricity consumption by his unit. The plaintiff therefore filed O.S.797 of 1991 taking objection to the above conduct of the defendants in the suit. It is pointed out by him that there was nothing to indicate that it was due to his act that the meter had been running in the reverse direction and he had not given any notice before issuing Ext.A2 bill for the amount mentioned above. Pointing out that the defendants have S.A.46/1999. 2 not followed the procedures, laws and rules and the demand being excessive and arbitrary, he prayed for necessary reliefs. 2. The defendants resisted the suit by pointing out that the suit is not maintainable, since alternate remedies are available to the plaintiff. They also pointed out that on inspection on 3.9.1991 it was found that the meter installed in the premises of the plaintiff was running in the reverse direction and the seal had been tampered with. According to them, the meter was recording only 1/3rd of the energy consumed and therefore he was liable to pay the amount demanded. On the basis of these contentions, they prayed for a dismissal of the suit. 3. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A5 from the side of the plaintiff. Defendants had examined D.W.1 and Ext.B1 marked. Holding that there is no defect in the bill, the trial court dismissed the suit. S.A.46/1999. 3 4. The plaintiff carried the matter in appeal as A.S. 29 of 1996. The lower appellate court found that the suit is maintainable and also found that the issuance of Ext.A2 bill was illegal, arbitrary and not supported by any materials. Accordingly, the appeal was allowed and relief was granted to the plaintiff. This has brought the defendants before this court challenging the lower appellate court decree. 5. Notice is seen to have been issued on the following substantial questions of law: “i) Is the learned Sub Judge justified in applying Section 26(6) of the Electricity Act when there was no complaint that the meter was defective? ii) When the learned Sub Judge has recorded a finding that the demand was not preceded by a notice is he justified in restraining the appellant from claiming the charges for electricity consumed by the respondent after due notice to the consumer-respondent? S.A.46/1999. 4 iii) Is declaration and injunction a proper relief in this case where loss of revenue to the appellant was detected by the inspection team on a surprise check as a routine measure? iv) Whether the suit as framed is maintainable before the civil court?” 6. Learned counsel appearing for the appellant pointed out that the court below was not justified in taking the view that the matter is coming within the ambit of Section 26 (6) of the Electricity Act and the plaintiff had to resort to alternate remedies available under the Electricity Supply Act. Without doing so, he had approached this court. Learned counsel relied on the decision reported in Southern India Marine Products Co. v. K.S.E.B. (1995(2) K.L.T. 167) . They therefore contended that the lower appellate court has erred both on facts and in law in decreeing the suit. 7. Per contra, learned counsel appearing for the respondents pointed out that the contentions taken before this court are without any basis whatsoever. There was S.A.46/1999. 5 nothing to show that it was due to any act committed by the plaintiff that the meter had been running in the reverse direction and there was no allegation against him. It was not the case of the defendants that the seal said to have been removed was done by the plaintiff. In fact there was nothing to indicate that it was due to any act on his part that the meter had been running in the reverse direction. At any rate, the defendants were bound to give him an opportunity to explain his position and without doing so, the issuance of Ext.A2 bill cannot be supported in law. It was also contended that at worse, as far as the plaintiff is concerned, the defendants could seek arrears for a period of six months from the date of inspection, while by Ext.A2 bill arrears were being claimed from July, 1990. Pointing out that the decision reported in Southern India Marine Products c. v. K.S.E.B. (1995(2) K.L.T. 167) is no longer good law in view of the decision reported in George Joseph v. K.S.E.B. (2008(4) K.L.T. 610), learned counsel appearing for the respondents pointed out that the matter is covered by the S.A.46/1999. 6 latter decision and the lower appellate court was perfectly justified in decreeing the suit. 8. It is true that the regulation in the Conditions of supply of Electrical Energy, namely, Regulation No.32, provides that if there is any complaint regarding the accuracy of the invoice issued, the aggrieved person has to file an objection in writing to the officer who issued the same. Regulation 48 provides that against the decision of the officer of the Board, appeal lies to the higher authority. It is therefore clear that the alternate remedies are infact provided for under the Electricity Act and its Regulations. The question is whether that is applicable in the case on hand. It may at once be noticed that all that is stated in Ext.B1 mahazar said to have been prepared by the officers of the Board at the time of inspection is that the meter was seen running in the reverse direction. It is true that it is also stated that the seal is seen to have been removed. But it is significant to notice that Ext.B1 does not attribute any act to the plaintiff as a result of which the meter was S.A.46/1999. 7 running in the reverse direction and the seal was seen removed. Of course as regards the removal of the seal, it could be said that it is for the plaintiff to explain the missing of the seal. But as regards the running of the meter in the reverse direction, it was necessary atleast to allege that it was due to some act on the part of the plaintiff the meter was running in that manner. Even without issuing a notice to him, Ext.A2 bill was slapped on him. 9. The argument now taken is that he was bound to prefer objection to the officer, who had issued the bill and then thereafter resort to the other statutory remedies. 10. It has to be noticed that there is no notice issued to the plaintiff indicating any allegation against him, which he had to meet and thereby raise a dispute. All that was done was to issue an invoice showing arrears of current charges due from him from the month of July, 1990. There was no explanation from the side of the appellant as to how S.A.46/1999. 8 they could have done so. The provisions of the Act and Regulations clearly provide that at best they could seek arrears for a period of six months. 11. There may not be strictly a dispute as contemplated under Section 26(6) of the Electricity Act. But that does not mean that the Board can resort to arbitrary actions. Even at the time of hearing of the appeal the appellant was not able to explain as to how the meter could have been running in the reverse direction and that it could have been only due to the act committed by the plaintiff. 12. It is true that in the decision reported in Southern India Marine Products Co.'s case (supra) it has been held that in such cases it could not be said that the dispute as a result of the defective meter has to be referred to the Electrical Inspector. in the said decision. it was observed as follows: “In all these cases the meters referred to above were capable of registering the amount of energy supplied. However, the meters could not register the amount of energy supplied due to S.A.46/1999. 9 the fact that the wiring given to the meter was not properly made. Therefore there is no question of dispute as to the correctness of the meter. But it is only due to the wrong connection to the meter which has resulted in the meter not registering the quantity supplied to the consumer.” 13. In the decision reported in George Joseph's case (supra), this court had occasion to consider the decision reported in Southern India Marine Products Co.'s case (supra) and this court has observed that in view of the subsequent decision by the Apex Court, the decision reported in Southern India Marine Products Co.'s case (supra) cannot be held to be good law. 14. In the decision reported in George Joseph's case (supra) almost a similar situation was considered. It has been held as follows: “After referring to the above decision, a Division Bench of this Court has also come to the same conclusion in Nirmala Metal Industries v. K.S.E.B. (2006(3) KLT 465) wherein the Division Bench held that if the Board wants to raise a bill S.A.46/1999. 10 on the plea that it is a defective meter, it is for the Board to do the same in accordance with S.26 of the Act and that when the meter has already been removed by the Board to its testing centre and not to the Electrical Inspector under S.26(6), the Board is not justified in raising the bill against the consumer. In that decision, the Division Bench quashed similar demands as in this case. Coming to the present case, he Board has unilterally come to the conclusion that one phase of the meter was not recording consumption, purported to have corrected the meter themselves, without first referring the matter to the Electrical Inspector and raised demand for additional electricity charges from the petitioner on that ground. As already stated, the Board has no case that the petitioner has tampered with the meter. Their case is that the meter was not recording the actual consumption since one phase of the meter was not working. That essentially means that the meter was not running correctly and the same was running slow, which case is squarely covered by the Supreme Court decisions quoted above. Since the Board has, without referring the dispute to the Electrical Inspector, S.A.46/1999. 11 purported to correct the meter and raise additional demand, the petitioner is entitled to the reliefs as granted by the Supreme Court to the appellant in Bombay Electricity Supply's case and the Division Bench of this court in Nirmala Metal Industries' case.” 15. Even assuming that the above decision does not strictly apply to the facts of this case, the fact remains that there is no allegation against the plaintiff that it was due to any act committed by the plaintiff that the meter was running in the reverse direction. To raise a dispute there should be an allegation against the plaintiff. Without issuing any notice calling upon him to explain the situation, simply serving a bill without any details cannot be accepted. It was the above circumstances, which compelled the lower appellate court to interfere in the matter. 16. Learned counsel appearing for the appellant then pointed out that in the decree, the lower appellate court precluded the Board from proceeding against the appellant and that is unjust and unfair. S.A.46/1999. 12 17. There seems to be some basis for the above complaint. To that extent, the decree of the lower appellate court requires modification. In the result, subject to the modification that the defendant will be entitled to take steps in accordance with law after following proper procedure with reference to the mahazar prepared on 3.9.1991, after giving an opportunity of hearing to the plaintiff, this appeal is dismissed confirming the judgment and decree of the lower appellate court. There will be no order as to costs in this appeal. P. BHAVADASAN, JUDGE sb.