IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 OP.No. 15833 of 1999(I) -------------------------------- PETITIONER: ------------------- T.ABDULLA HAJI, PROPRIETOR, FIVE STAR ICE FACTORY, MOOPAN ROAD, TELLICHERRY, KANNUR DISTRICT. BY ADV. SRI.S.ABDUL SALAM RESPONDENTS: ------------------------ 1. THE KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY,' 'VYDHUTHI BHAVAN', PATTOM. 2. THE ASSISTANT ENGINEER, ELECTRICAL MAJOR SECTION, TELLICHERRY NORTH. 3. THE DEPUTY CHIEF ENGINEER (A.P.T.S.), 'VYDHUTHI BHAVAN', PATTOM. 4. THE CHIEF ELECTRICAL INSPECTOR, ELECTRICAL INSPECTOR, GOVERNMENT OF KERALA, TRIVANDRUM. BY ADV. STG.COUNSEL FOR K.S.E.B. SRI.S.RAMESH BABU, SC. KSEB SRI.P.SANTHALINGAM, SC, KSEB SRI.C.K.KARUNAKARAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON 26/02/2008 DELIVERED THE FOLLOWING: OP. NO.15833/1999 ORDER ON CMP. NO.25767/1999 IN OP. NO.15833/1999 DISMISSED 26.02.2008 SD/-P.N.RAVINDRAN, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE SITE MAHASSAR DT. 20.11.98 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P2:- COPY OF THE DEMAND CUM DISCONNECTI9ON NOTICE NO.17766 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P3:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P4:- COPY OF THE ORDER NO.VIG. B.V/KKD/99/5957 DT. 10.5.99 PASSED BY THE 3RD RESPONDENT. EXT.P5:- COPY OF THE LETTER NO.APTS/99-2000/65 DT. 2.6.99 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. /TRUE COPY/ P.S. TO JUDGE tss P.N.Ravindran, J. ======================== O.P.No.15833 of 1999 ======================== Dated this the 26th day of February, 2008. JUDGMENT The petitioner, a consumer of electrical energy, challenges Ext.P2 demand-cum-disconnection notice issued by the second respondent, Ext.P4 order passed by the third respondent rejecting his appeal against the demand in Ext.P2 and Ext.P5 demand notice calling upon him to pay the arrears of electricity charges payable under Ext.P2. The petitioner has also prayed for a direction to the respondents to abstain from disconnecting the electrical supply to his Ice plant and to refer the case to the fourth respondent. 2. The Officers of the Anti Power Theft Squad ("A.P.T.S." for short), Kozhikode inspected the business premises of the petitioner on 20.11.1998 and noticed that though the tamper proof seals put by the Board on the meter and the metal box on which the meter is mounted are intact and two of the phases of OP 15833/99 -: 2 :- the three phase meter installed in the premises, namely, R and Y phases were working properly, on a detailed inspection, it was found that the B phase of the meter was not working due to the defective pressure coil in the open circuit of the B phase. The Assistant Engineer of the A.P.T.S., Kozhikode also noticed that due to the defective pressure coil, the meter was not recording 1/3rd of the electrical energy consumed in the premises. The Assistant Engineer had after inspecting the petitioner's business premises, prepared Ext.P1 mahazar. 3. Pursuant to the inspection held on 20.11.1998, the meter was replaced on 27.11.1998 and thereafter, the second respondent issued Ext.P2 demand-cum-disconnection notice demanding payment of the sum of Rs.80,411/- as energy charges for 98785 units of electrical energy said to have been consumed in the petitioner's business establishment for a period of six months from 6/98 to 11/98. Aggrieved by Ext.P2, the petitioner submitted Ext.P3 representation before the third respondent - the Deputy Chief Engineer stating that the business premises were inspected on 4.5.1998 and 5.10.1998 by the officers of the Board, that the Sub Engineer concerned used to periodically OP 15833/99 -: 3 :- inspect the meter and record the reading in the first week of every month, that the last of such inspections was on 4.11.1998, that during the said period the meter was working properly, that the A.P.T.S. inspected the premises on 20.11.1998, that if the reading of the meter during the period from 10.1.1996 to 4.11.1998 is examined, it can be seen that the meter is not defective, that during certain months when the business was dull, the meter has recorded lesser consumption, that during October, 1998, his establishment had consumed 24828 units of electrical energy and that the A.P.T.S. was not right in coming to the conclusion that the pressure coil of the B phase of the meter was faulty for the past six months. The petitioner further contended that as 24828 units had been recorded as consumed on 15.10.1998 and 18416 units had been recorded as consumed on 4.11.1998, it can safely be assumed that the coil would have become faulty between 5.10.1998 and 4.11.1998. The essence of the contention set out by the petitioner in Ext.P3 is that the meter itself was not faulty, but the pressure coil might have become faulty between 5.10.1998 and 4.11.1998. After submitting Ext.P3 representation, objecting to the demand made OP 15833/99 -: 4 :- in Ext.P2, the petitioner filed O.P.No.25662 of 1998 in this Court, praying inter alia for a direction to the third respondent to dispose of Ext.P3 representation on the merits. O.P.No.25662 of 1998 came up for admission on 22.12.1998 and by the judgment delivered on the same day, this Court directed the third respondent to consider and pass orders on Ext.P3 representation and also directed the respondents not to disconnect the supply if the petitioner pays a sum of Rs.25,000/- towards the disputed bill. The petitioner has averred that in terms of the directions issued by this Court in O.P.No.25662 of 1998, he had remitted the sum of Rs.25,000/- towards the amount demanded in Ext.P2. 4. As directed by this Court in O.P.No.25662 of 1998, the third respondent heard the petitioner on 7.3.1999. The petitioner reiterated his contentions in Ext.P2. By Ext.P4 order passed on 10.5.1999, the third respondent overruled the contentions of the petitioner and rejected Ext.P3. The petitioner was directed to pay the amount covered by Ext.P2, less the sum of Rs.25,000/- remitted by him on 21.1.1999 in terms of the directions issued by this Court in O.P.No.25662 of 1998. Thereupon, the Assistant Engineer, Major Section, Thalassery sent Ext.P5 letter to the OP 15833/99 -: 5 :- petitioner calling upon him to pay the sum of Rs.59,844/-, the amount due as per Ext.P2. Exts.P2, P4 and P5 are under challenge in this original petition. 5. I heard Sri. S.Abdul Salam, the learned counsel appearing for the petitioner and Sri.C.K.Karunakaran, the learned Standing Counsel appearing for the Board. The learned counsel for the petitioner submitted that even according to the respondents, the meter was defective and hence, the respondents could not have issued Ext.P2 demand-cum- disconnection notice. The learned counsel for the petitioner, relying on Section 26(6) of the Indian Electricity Act, 1910 (hereinafter referred to as "the Act") contended that in a case where the meter is defective, the Electrical Inspector alone can determine the consumption of electrical energy. The learned counsel relied on the decision of the Apex Court in M.P.E.B. v. Basantibai - A.I.R. 1988 S.C. 71 in support of the said contention. The learned counsel submitted that in view of the authoritative pronouncement of the Apex Court, the respondents were not entitled to issue Ext.P2 or Ext.P4 order and demand payment of energy charges from the petitioner. Per contra, the OP 15833/99 -: 6 :- learned Standing Counsel for the respondents submitted that in the case on hand, the meter itself was not defective, that pressure coil of the B phase of the meter which was open circuited alone was defective and therefore, Section 26(6) of the Act is not attracted. The learned Standing Counsel for the respondents placed reliance on the decisions of this Court in M/s. Southern India Marine Products Co. (Pvt.) v. K.S.E.B. and another - 1994(2) K.L.T. 861, Southern India Marine Products Co. v. K.S.E.B. - 1995 (2) K.L.T. 167 and the judgment of a learned Single Judge of this Court in O.P.No.11418 of 2003, in support of the said contention. 6. I have considered the rival contentions. The mahazar prepared by the Assistant Engineer after inspection by the A.P.T.S. discloses that though two of the phases of the three phase meter, namely, the R and the Y phases, were working properly, the third phase, namely, the B phase was not recording any reading due to the defective pressure coil in the open circuit. Ext.P1 further states that third phase was not recording any reading as the open circuit pressure coil of the B phase had failed. Ext.P1 also states that for the said reason, the meter did OP 15833/99 -: 7 :- not record 1/3rd of the electrical energy consumed in the premises. In Ext.P3 objection filed by the petitioner to Ext.P2 demand notice he does not have a case that the meter was defective. On the other hand, the stand taken by the petitioner in Ext.P3 was that the meter is not faulty. The request of the petitioner in Ext.P3 was to revise the demand by adding 1/3rd to the energy charges levied for October, 1998 and to issue a revised bill. The third respondent has in Ext.P4 elaborately considered the contents of Ext.P1 mahazar and the contentions raised by the petitioner in Ext.P3. The third respondent also heard the petitioner, the Assistant Engineer of the concerned Electrical Major Section and the Assistant Executive Engineer of the A.P.T.S. The Assistant Executive Engineer of the A.P.T.S. had stated before the third respondent that the B phase of the meter was not working due to the defect in the open circuit pressure coil and that on account of the defective pressure coil, 1/3rd of the electrical energy consumed was not being recorded in the meter. Ext.P4 discloses that the Assistant Executive Engineer of the A.P.T.S. had also reported that after the meter was replaced on 27.11.1998, the initial meter reading was 21 units, that on OP 15833/99 -: 8 :- inspection on 1.12.1998 (four days later) the meter reading was 4417, that the average daily consumption is 1099 units and the average monthly consumption based on the said reading is 32970 units. The Assistant Executive Engineer had further submitted that going by the consumption recorded for four days after the meter was replaced, it is evident that 1/3rd of the consumption was left out without being recorded. The Deputy Chief Engineer, who considered Ext.P3, has after elaborately considering the rival contentions, held that when the energy consumed by a consumer is not recorded in one of the 3 phases, the quantum of energy actually consumed can be found out by applying a multiplication factor. The Deputy Chief Engineer also held that when the consumption of energy in one phase is not recorded the units actually consumed in this phase will be 50% of the recorded consumption for the other two phases, i.e., 1/3rd of the consumption will be 50% of the 2/3rd recorded consumption. According to the Deputy Chief Engineer, it is an accepted scientific method and the petitioner had been reassessed adopting that method. 7. In 1994(2) K.L.T. 861 (supra), Sri.K.G.Balakrishnan, J. OP 15833/99 -: 9 :- (as his Lordship then was) held that the defective connection to a meter resulting in the B phase of the meter reversely rotating, cannot be said to be a defect of the meter attracting Section 26 (6) of the Act. In that case, the A.P.T.S. of the Board found that the meter was rotating reversely due to wrong connection of the CT and that the meter recorded only 1/3 of the actual energy consumed. Overruling the contention of the consumer that as the meter was defective, the matter had to be referred to the Electrical Inspector as contemplated under Section 26(6) of the Act, his Lordship held that Section 26(6) of the Act is attracted only if there is a dispute as to whether the meter is correct or not. On the facts of the case, his Lordship held that the meter was recording only 1/3rd of the actual energy consumed as the B phase of the meter was rotating reversely due to wrong connection of the CT and that the said defect cannot be said to be a defect of the meter. The learned Judge, after referring to the decision of the Apex Court in A.I.R. 1988 S.C. 71 (supra) and the decision of the Mysore High Court in Gadag v. Electrical Inspectorate, Govt. of Mysore - A.I.R. 1962 Mys. 209, held that where an electrical meter does not register the actual OP 15833/99 -: 10 :- consumption of energy on account of defective wiring or wrong connection of the meter, Section 26(6) of the Act will not be attracted as the meter as such is not defective. 8. A Division Bench of this court in 1995 (2) K.L.T. 167 (supra) upheld the decision in 1994(2) K.L.T. 861 (supra) in the appeal arising therefrom. The Division Bench which considered the writ appeal arising from the decision in 1994(2) K.L.T. 861 (supra) and other cases, held after an elaborate analysis of the provisions of Section 26(6) of the Act that so long as there is no defect in the meter, the question whether the meter is correct or not does not arise and therefore, there is no scope to invoke Section 26(6)of the Act. 9. A learned Single Judge of this Court considered an identical question in O.P.No.11418 of 2003. On inspection of the business premises involved in the said case, it was noticed that one phase of the meter was not recording the actual consumption while the two other phases were correctly recording the consumption of energy. Therefore, based on the consumption recorded in the other two phases, the consumption through the third phase was estimated and bill was revised. The Board, in OP 15833/99 -: 11 :- the said case, got the meter examined by the Electrical Inspector, who was of the opinion that the percentage of error of the meter was within the permissible limits. In other words, it was found that the meter is not defective. Repelling the contention of the petitioner therein that the power consumption cannot be estimated based on the consumption recorded in the other two phases of the meter, the learned Single Judge held thus: "I do not find there is anything wrong with the above order of the Executive Engineer on the contentions raised. It is to be noted that the power consumption in one phase is estimated based on actual consumption recorded in other two phases of the meter, installed in petitioner's premises and there is nothing unreasonable or arbitrary in adopting such an estimation because distribution of power in a three phase connection is always even and therefore if one phase is not working, 50% of the actual power recorded in the other two phases will constitute a reasonable method for estimation." 10. Applying the principles laid down in the aforesaid decisions and on going through Ext.P1 mahazar, the objections raised by the petitioner in Ext.P3 and the findings in Ext.P4, I am OP 15833/99 -: 12 :- of the opinion that there is no merit in the petitioner's contentions. Even according to the petitioner, the meter was not defective. He had no case in Ext.P3 that the meter was defective and therefore, the issue has to be referred to the Electrical Inspector. Though in the original petition such a contention has been raised, the petitioner did not have such a contention before the third respondent or in Ext.P3. Further, Ext.P1 mahazar discloses that the meter was correctly working and it was recording the readings in phases R and Y . But the B phase was not working for the reason that the open circuit pressure coil was defective. The petitioner has no case in Ext.P3 or in the original petition that the observations in Ext.P1 as regards the open circuit pressure coil of the B phase are incorrect. The appellate authority has in Ext.P4 concurred with the findings in Ext.P1 that the meter was not recording the energy consumed through the B phase, due to the defect in the open circuit pressure coil. In the light of the principles laid down by this Court in the decisions referred to above, the petitioner cannot rely on Section 26(6) of the Act to assail Ext.P4. As there is no defect in the meter, no question arises as to whether the meter is correct or not. It is OP 15833/99 -: 13 :- evident from Ext.P1 mahazar, Ext.P3 appeal and Ext.P4 order that the meter itself was not defective or faulty and it was only because of the defect in the open circuit pressure coil that the B phase of the meter was not recording the energy consumed. The respondents were therefore not bound to refer the dispute to the fourth respondent. For the reasons stated above, I hold that there is no merit in this original petition. The original petition is accordingly dismissed. No costs. P.N.Ravindran, Judge. ess 5/2