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. 14119 of 2003(E) ---------------------------------- PETITIONER(S): ----------------------- 1. SUSAMMA MATHEW, W/O. P.K.MATHEW, POOCHERIL HOUSE, ALAMTHURUTHY P.O., VENGAL, THIRUVALLA. 2. LEENA MATHEW, W/O. SAJI MATHEW, POOCHERIL HOUSE, ALAMTHURUTHY P.O., VENGAL, THIRUVALLA. BY ADV. SRI.S.SUBHASH CHAND RESPONDENT(S): ------------------------- 1. DEPUTY CHIEF ENGINEER, ANTI POWER THEFT SQUAD (APTS), VYDYUTHI BHAVANAM, THIRUVANANTHAPURAM. 2. ASSISTANT ENGINEER, ANTI POWER THEFT SQUAD (APTS), KOTTAYAM. 3. ASSISTANT ENGINEER, ELECTRICAL MAJOR SECTION, KERALA STATE ELECTRICITY BOARD, MANIPUZHA, THIRUVALLA. ADV. SRI.P.SANTHALINGAM, SC, KSEB FOR R1 TO 3 SRI.C.C.THOMAS, SC, K.S.E.B FOR R3 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.23790/2003 IN OP. NO.14119/2003 DISMISSED 09.12.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE PEMISES METER CARD ISSUED TO THE UNIT OF THE PETITIONERS HAVING CONSUMER NO.7723 BY THE 3RD RESPONDENT. P2:- COPY OF THE DEMAND NOTICE-CUM-DISCONNECTION NOTICES ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT DT. 18.12.2002.(RS.13,258/-). P2(a):- COPY OF THE DEMAND NOTICE-CUM-DISCONNECTION NOTICES ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT DT. 18.1.2003 (RS. 15,736/-). P2(b):- COPY OF THE DEMAND NOTICE CUM-DISCONNECTION NOTICES ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT DT. 18.2.2003(15,442/-). P2(c):- COPY OF THE DEMAND NOTICE CUM-DISCONNECTION NOTICES ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT DT. 18.3.03 (RS. 15,42/-). P3:- COPY OF THE SITE MAHASSAR PREPARED BY THE 2ND RESPONDENT IN RELATION TO THE SAID INSPECTION ON 15.3.03. P4:- COPY OF THE ADDITIONAL DEMAND NOTICE CUM DISCONNECTION NOTICE DT. 19.4.03 THUS ISSUED TO THE PETITIONERS' CONSUMER NO.7723 BY THE RESPONDENT 2 AND 3. P5:- COPY OF THE APPEAL DT. 24.4.03 SUBMITTED BY THE PETITIONERS BEFORE THE IST RESPONDENT (EXCLUDING ENCLOSURES). /TRUE COPY/ P.A. TO JUDGE tss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ O.P. No.14119/2003-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 9th day of December, 2008. J U D G M E N T The petitioners are challenging Ext.P4 bill issued by the respondents after an inspection by the Anti-Power Theft Squad. The petitioners are running a Small Scale Industrial Unit, the consumer number being 7723. The assessment is preceded by an inspection, as already noticed, on 15/03/2003. Ext.P3 is the mahazar. Going by Ext.P3 mahazar, what is recorded is that two wires leading to the pressure coil terminal wires were detached due to corrosion and natural causes. Obviously, the meter was found defective and when the wires were reconnected after healing rust etc., display was restored and the meter reading was shown as 4093 units. This is clearly stated in Ext.P3. Therefore, this is a situation where the meter was found defective and no tampering is recorded in Ext.P3, either by the consumer or by his employees. The petitioner has, therefore, raised the question whether liability if any can be cast on the consumer especially by charging three times of the actual bill for the past six months. A huge amount to the tune of Rs.1,33,463/- has been assessed as per Ext.P4. The petitioner challenged the same by filing Ext.P5 and approached this Court seeking various reliefs, to quash Ext.P4 etc.. As per the interim order dated O.P. No.14119/2003 -:2:- 29/04/2003, this Court directed the petitioner to deposit an amount of Rs.25,000/- as a condition for stay of further proceedings pursuant to Ext.P4. It is stated that the amount has been deposited. 2. The learned counsel for the petitioner submitted that this is a case where meter reading was taken upto 12/3/2003 prior to the inspection on 15/03/2003 as is evident from page-12 of the writ petition, and going by the recording in the meter record. It is evident that during the period between 12/03/2003 and 15/03/2003, the wires stood disconnected due to rusting and natural causes and as no fault has been attributed against the petitioner, there is no justification for the assessment as now attempted in Ext.P4. By relying on Section 26(4) of the Indian Electricity Act, 1910 and the decisions of this Court in Nirmala Metal Industries v.K.S.E.B [2006 (3) KLT 465], George Joseph v.K.S.E.B and others [ ILR 2008 (4) Ker. 377] and the judgment of this Court in O.P.No.4969/2001 M/s.Pallathukudy Mills v.K.S.E.B and others it is submitted that in a case where the meter is found faulty, Section 26(6) of Indian Electricity Act, 1910 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. O.P. No.14119/2003 -:3:- 3. Heard the learned Standing Counsel for the respondents also. In answer to the contentions raised by the petitioner it was contended by the learned Standing Counsel that this is a case where there could be a tampering of the meter also. But as noted already, going by Ext.P3 mahazar, the wires stood detached obviously due to rust and other natural causes. If there was a tampering of the meter it would have been noticed by the Inspecting Team and as there is nothing in Ext.P3 to sustain the said plea, I reject the said contention. Then it is only a case where the meter was remaining faulty for a short period. 4. 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 correctness or otherwise of the meter.” In that case, the said method was found not adopted by the Board. Therefore, the Division O.P. No.14119/2003 -:4:- 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 was therefore held that “the Board had no jurisdiction to reassess the past energy consumption of the petitioner based on O.P. No.14119/2003 -:5:- 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. 5. I am of the view that the dictum laid down in the above cases will squarely apply in this case. Going by the details recorded in Ext.P3 mahazar as noted already, some defects occurred in the meter, which resulted in not showing correct consumption. No tampering was found also. In that view of the matter, under Section 26(6) of Indian Electricity Act, 1910 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 Ext.P4 bill. Since this is a matter affecting jurisdiction of the Board, the entire thing will fall to ground. Hence, Ext.P4 is quashed. Respondents were at fault in not making reference under Section 26(6) of the Indian Electricity Act since they were disputing the correctness of the meter. It is true that Ext.P5 appeal was filed by the petitioner before the appellate authority, which remains as such even now. In view of the legal position as noted above, there is no point in directing the appellate authority to take up the matter for decision. The amount O.P. No.14119/2003 -:6:- paid by the petitioner pursuant to the interim order passed by this Court will be adjusted towards future bills. O.P is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms O.P. No.14119/2003 -:7:- T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ O.P. No.14119/2003-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T 9 t h D e c e m b e r , 2 0 0 8 .