IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 OP.No. 35824 of 2002(M) ----------------------- PETITIONER(S): --------------- MOHAMMED HANEEFA KAPOOR, PROPRIETOR, GULF AUTOMOBILES, TIRUKADU, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): --------------- 1. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KERALA STATE ELECTRICITY BOARD, PERINTHALMANNA. 2. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTARICITY BOARD, PERINTHALMANNA. 3. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM. ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1-3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON 02/04/2009 DELIVERED THE FOLLOWING: O.P.No. 35824/02. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE APPLICATION DTD.9.7.02. P2. COPY OF THE BILL DTD.8.7.02. P3. COPY OF THE NOTICE DTD.9.7.02. P4. COPY OF THE NOTICE DTD.9.7.02. P5. COPY OF THE ADDITIONAL BILL DTD.8.7.02. P6. COPY OF THE NOTICE DTD.15.7.02. P7. COPY OF THE BILL DTD.15.7.02. P8. COPY OF THE BILL DTD.15.7.02. P9. COPY OF THE LAWYER NOTICE DTD.18.7.02. P10. COPY OF THE APPEAL BEFORE R2 DTD.18.7.02. P11. COPY OF THE RECEIPT DTD.15.7.02. P12. COPY OF THE JUDGMENT IN O.P.NO.20752/02 OF THIS COURT. P13. COPY OF THE ORDER DTD.6.11.02 BY R2. P14. COPY OF THE ORDER DTD.12.11.02. RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE LETTER DTD.15.7.02. B. COPY OF THE SITE MAHAZAR DTD.9.7.02. C. COPY OF THE -DO- DTD.9.7.02. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 35824 of 2002 ================== Dated this the 2nd day of April, 2009 J U D G M E N T The petitioner is a consumer of electricity from the KSEB. The petitioner is running an industry. In his industrial premises he had two connections; one bearing consumer No.15007 and the other bearing consumer No.14873. An inspection was conducted in the petitioner's premises in May, 2000. The squad detected that after May, 2000, no bills were raised against the petitioner for consumption of electricity and the petitioner was not paying electricity charges also. It was also found that on change over from slab system to spot billing system in May, 2000, appropriate adjustment invoice was not issued for the consumption of energy in excess of what has been paid for as per the slab system. In the above circumstances, four bills were issued to the petitioner in respect of the two consumer numbers. It was also found that the petitioner had used unauthorized connected load for which, bills for an amount of Rs.47,381/- in respect of consumer No.15007 and an amount of Rs.4543/- in respect of consumer No.14873 were issued to the petitioner. The petitioner contested the above said bills on the ground that he is not liable to pay those amounts. The petitioner earlier approached this Court by filing O.P.No. 20752/2002, in which, by judgment dated 24.7.2002, this Court directed the o.p.35824/02 2 Executive Engineer, Electrical Division, Perinthalmanna, to consider the appeal filed by the petitioner. Pursuant thereto, the petitioner was heard and the appeal was disposed of, by Ext.P13 order, confirming the demand as per the bills. Ext.P13 is under challenge in this original petition. 2. As before the Executive Engineer, in this original petition also the contention of the petitioner is that he is not liable to pay those amounts because he had all along been paying all bills issued to him promptly and correctly. He would raise an alternate contention that it is because of the negligence of the officers of the Board that the bills were not raised. Even if it is true, the petitioner cannot be made liable to pay such huge amount all on a sudden, which would be unjust and unreasonable is the contention raised by the petitioner. 3. The counsel for the Electricity Board would strongly dispute the contentions of the petitioner. The counsel would contend that from May, 2000 onwards till July, 2002, no bills were issued to the petitioner. According to the counsel, even if it is on account of the negligence on the part of the officers of the Board, that cannot give any undue advantage to the petitioner and he cannot take a contention that because the bills were not issued in time, he will not pay that amount. The counsel also points out that the petitioner himself admitted before this Court in the original petition that he had o.p.35824/02 3 unauthorized additional load which has been recorded in the judgment of the High Court. Therefore, according to the counsel for the Board, the realisation of penal charges for unauthorized additional load is also perfectly valid and proper. The counsel also points out that this Court has in W.A.No.2076/2004 held that even if there was delay in issue of bills, that cannot give raise to a right in the consumer not to pay for the electricity charges. 4. I have considered the rival contentions in detail. 5. The contentions of both parties have been elaborately discussed by the Executive Engineer in Ext.P13 order. He ultimately held thus: “On verification of the evidences given by both parties as above and after verifying the records, I have come to the following conclusions: I. The cut off Reading Bill No:16941 dated 8.7.2002 issued based on the reading taken during 5/2000 towards energy consumed over and above that covered by provisional Invoice Card is in order. The petitioner consumer has to pay the bill amount of Rs.34,869/- No penal charges or penalty is imposed on the above amount and it covers only the cost of energy enjoyed by the petitioner consumer from date of connection to 5/2000 but not billed in time due to over sight. II. The bill No: 821481 dated 8.7.2002 for Rs.1,23,726/- issued to the petitioner consumer towards actual energy used for the spot bill period from 5/2000 to 7/2002, but not billed due to over sight, is in order and the consumer has to pay the amount. The above amount does not include any penal charges or interest but the cost of energy as per tariff applicable at the time of consumption. III. There is no evidence of receiving any application for granting additional load from the consumer on 9.7.2002. The bill for cut off reading and bill for spot bill period for consumer No:15007 is seen issued on 8.7.2002. The consumer premises was inspected on 9.7.2002 and unauthorised additional load detected as below: The o.p.35824/02 4 petitioner consumer has accepted before the Hon'ble High Court that he has unauthorised additional load as is evident from the Judgment of the Hon'ble Court. Unauthorised Additional Load. Consumer No:15007 - 9 KW Consumer No.14873 - 2 KW. The consumer has to pay the additional bill as per Rules in force. IV. The argument of the counsel for petitioner consumer that the previous period bills are to be limited for a period of six months does not hold good. Six months limiting is applicable only to meter faulty cases and in correct meter reading. Here the meter is working properly and the meter accuracy is not disputed. Considering all the above aspects, I hereby order the following: I. The bills issued No.:16941 dated 8.7.2002 for Rs.34,869/- is in order. The Asst. Executive Engineer will take action to realise the amount deducting Rs.3549/- already remitted by the consumer. The petitioner consumer can pay the amount in Lump Sum without interest. If he desires to pay in instalments, 9 instalments may be allowed with interest. II. The bill No.:821481 dated 8.7.2002 for Rs.1,23,726 is in order. The Asst. Executive Engineer will take action to realise the balance amount after deducting Rs.12,396/- remitted by the consumer as Ist instalment and Rs.50,000/- remitted by the consumer as per direction of the Hon'ble High Court. The consumer can pay the amount in Lump Sum without interest or opt to avail instalment facility with interest. The consumer may be allowed 5 instalments if desired so. III. The Asst. Executive Engineer, Electrical Sub Division, Perinthalmanna will take action to recover the following bill amounts towards unauthorised additional load. 1) Consumer No.15007 (Bill 75474/8.7.2002 Rs.47381/- 2) Consumer No.14873 (Bill 168831/16.7.2002 Rs. 4543/- The consumer can pay the amount in lump sum without interest or avail ten instalment facility for bill No.75474 dated 8.7.2002 for Rs.47381/- and two instalments for Bill No:16883/16.7.2002 for Rs.4543/- IV. The Asst. Executive Engineer, Electrical Sub Division, o.p.35824/02 5 Perinthalmanna will arrange to issue Notice to the petitioner consumer as per rules, intimating the balance amount to be paid against each bill, mentioning instalment facility as above with due date for each instalment. In the decision in W.A.No.2076/2004, it has been held thus: “5..... Public interest shall not suffer in view of the mistake committed by the Board. Board shall have power of rectifying the mistake and bills issued after rectifying the mistake have to be honoured. Law of limitation will not apply since the default is a continuing one and the amount due to the Board was not claimed in time due to the negligence of the Board. Consumer is liable to pay the said amount on rectification of the mistake....” The Supreme Court has, in the decision in Kusumam Hotels (P) Ltd. v. State Electricity Board & Others [CDJ 2008 SC 1056], which is also reported in AIR 2008 SC 2796 and 2008 (2) KHC 792, held thus: “Whereas the bills are issued only in respect of the dues arising in terms of the law as was applicable prior to the coming into force of 2003 Act. Sub-section (2) of Section 56 shall apply after the said Act came into force. The Board could have even framed a tariff in terms of the provisions appended to Section 61 of the Act. Appellants incurred liability to pay the bill. The liability to pay electricity charges is a statutory liability. The Act provides for its consequences. Unless, therefore, the 2003 Act specifically introduced, the bar of limitation as regards the liability of the consumer incurred prior to coming into force of the said Act. In our opinion, having regard to Section 6 of the General Clauses Act, the liability continues [See Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and E.T.I.O. And Ors. [(2007 5 SCC 447].” Therefore, it is settled law that simply because there was delay on the part of the officers of the Board in issuing bills for consumption of energy, the consumer cannot escape from the liability to pay charges for the electricity consumed by him. In this case, although the petitioner would repeatedly contend that he had paid all bills he received, the petitioner has not been able to produce even a single bill o.p.35824/02 6 and any evidence to show that he had paid any electricity charges subsequent to May, 2000 till July 2004. That being so, I am unable to countenance the contention of the petitioner that because of the fault of the officers of the KSEB in not issuing bills, he is not liable to pay the amounts demanded. 6. As far as the penal charges for additional unauthorised load is concerned, the petitioner himself admitted before this Court that the petitioner had used unauthorised additional load. That being so, he cannot escape from the liability to pay penal charges for the same. In the above circumstances, I do not find any merit in this original petition and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.35824/02 7 S.SIRI JAGAN, J. ================== O.P.No. 35824 of 2002-M ================== J U D G M E N T 2nd April, 2009