IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 OP.No. 14668 of 2001(U) ---------------------------------- PETITIONER(S): ------------------------ NAJATH INDUSTRIES, REP.BY ITS MANAGING PARTNER, K.M. MAHINKUTTY, NAMEERA MANZIL, KUTHIATHODU, ALAPPUZHA. BY ADV. MR.M.SASINDRAN MR.K.P.HARISH RESPONDENT(S): ---------------------------- 1. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KUTHATHODE, CHERTHALA. 2. THE EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KUTHIATHODU, ALAPPUZHA DISTRICT. 3. KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY, VAIDHUTHY BHAVAN, THIRUVANANTHAPURAM. ADV. MR. ASOK M.CHERIYAN, SC, KSEB FOR R1 TO 3 MR.N.D.PREMACHANDRAN, SC, KSEB FOR R1TO3 MR.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO 3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NOS.23148, 47375/01 IN OP. NO.14668/2001 CLOSED 01.06.2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE BIL IN RESPECT OF THE CONSUMER NO.4744 ISSUED BY THE 3RD RESPONDENT OF THREE MONTHS DT. 16.12.2000. P2:- COPY OF THE BILL IN RESPECT OF THE CONSUMER NO.4744 ISSUED BY THE 3RD RESPONDENT OF THREE MONTHS DT. 15.1.01. P3:- COPY OF THE BILL RESPECT OF THE CONSUMER NO. .4744 ISSUED BY THE 3RD RESPONDENT OF THREE MONTHS DT. 15.2.01. P4:- COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DT. 30.4.01 DB 55/01-02. P5:- COPY OF THE BILL DT. 30.4.01. P6:- COPY OF THE SITE MAHAZAR DT. 19.2.01. P7:- COPY OF THE APPEAL FILED AGAINST THE EXT. P4 AND P5 DT. 1.5.01. P8:- COPY OF THE ORDER NO.GB1/COMPLAINT/2001-02/MTD/1566 DT. 11.9.01. P9:- COPY OF THE BILL FOR RS. 33,091 DT. 22.9.01. TRUE COPY P.A. TO JUDGE TSS V.K.MOHANAN, J. --------------------------------------------- O.P.No. 14668 of 2001 - U --------------------------------------------- Dated this the 1st day of June, 2009 J U D G M E N T Petitioner is a partnership firm engaged in the business of peeling and processing connected with fisheries industries and he is a consumer of electrical energy with consumer No.4744. According to the petitioner, electric charges have been remitted by the petitioner promptly on the basis of the bill issued by the Board and in accordance with the meter reading taken by the Board Authorities. Exts.P1 to P3 are such bills issued by the Board on the basis of which payment was effected by the petitioner. According to the petitioner, the Board, all of a sudden, issued a bill for Rs.50,108/- which, according to the Board, is equivalent to the charge of 50% of the recorded consumption from January 2001 to March 2001. It is the case of the petitioner that such bill was issued on the basis of the inspection conducted on 19.2.2001 by the officers of the Board. Ext.P4 is the proceedings of the Board by which the petitioner was informed that on inspection on 19.2.2001, the meter in the factory is seen faulty due to the non-recording of one phase OP NO.14668 of 2001 :-2-: consumption and accordingly, the consumer is reassessed 50% of recorded consumption to compensate the unrecorded portion of energy retrospectively for a period from 1.2001 at normal rate till rectification. On the basis of Ext.P4, Ext.P5 bill is issued by which the petitioner was directed to pay a sum of Rs.50,108/- failing which the petitioner was informed that the service would be disconnected without any further notice. Aggrieved by Exts.P4 and P5 order, the petitioner has preferred Ext.P7 appeal before the second respondent which was dismissed as per Ext.P8 proceedings of the second respondent and based upon Ext.P8 order, EXt.P9 bill has been issued. Thus, the petitioner challenges Exts.P4,P5,P8 and P9 in this writ petition. 2. Though the writ petition is pertaining to the year 2001, no counter affidavit is seen filed so far. 3. Learned counsel for the petitioner strenuously submitted that even going by Exts.P4,P5, P8 and P9, it cannot be said that the Board has a case that the petitioner-consumer has misused the energy or committed any of the offence stated in clause 42(d) of the Conditions of Supply of Electrical Energy. But, Ext.P4 is issued under clause 42(d) of the Conditions of Supply of Electrical Energy. According to the learned counsel, OP NO.14668 of 2001 :-3-: clause 42(d) can be invoked only if the K.S.E.B authorities are satisfied that the petitioner-consumer has committed violation of clause 42(d) of the Conditions of Supply of Electrical Energy and in the absence of any such allegation or finding, clause 42(d) cannot be invoked and hence, Exts.P4,P5,P8 and P9 are liable to be set aside. 4. It is also the contention of learned counsel that a reading of Ext.P4 would show that the correct provision relevant and applicable in the present case is only clause 31(c) of the Conditions of Supply of Electrical Energy. If that be so, the method adopted by the respondents in quantifying the amount as per Ext.P5 is extraneous when compared with the method prescribed in clause 31(c) of the Conditions of Supply of Electrical Energy. Thus, according to the learned counsel, Exts.P4,P5,P8 and P8 are unsustainable either on law or on facts involved in the case. 5. I have carefully considered the contentions advanced and also perused the materials available on record. It is beyond dispute that the petitioner was paying the electricity charge promptly as demanded by the Board as evidenced by Exts.P1 to P3. Ext.P4 would further show that the Board Officers failed to OP NO.14668 of 2001 :-4-: record the correct reading because “the meter in the factory seen faulty due to non recording of one phase consumption”. Ext.P6 mahazar would show that on inspection after breaking the seal, it was realised that the insulation was damaged due to high heat and due to that, connection to the pressure coil was disconnected and the same was convinced the operator in the factory. Clause 31(c) says that “In the event of any meter being found incorrect (which includes meter ceasing to record, running fast or slow, creeping or running in reverse direction) and where the actual errors on reading cannot be ascertained, the meter will be declared faulty and the correct quantity of energy shall be determined by taking the average consumption for the previous three months, due regard being paid to the conditions of working, occupancy etc. If the average consumption for the previous three months cannot be taken due to the meter ceasing to record the consumption or any other reason, the correct consumption will be determined based on the average consumption for the succeeding three months. Where any diference or dispute arises as to the OP NO.14668 of 2001 :-5-: correctness of the meter, the matter shall be decided upon by the Electrical Inspector to Government upon the application of either the Board or the consumer. During such periods the consumer will be charged only the meter minimum. After determining the correct consumption due billing will be made and necessary adjustment made in the next invoice issued.” According to me, in the light of Ext.P4 and the details given in Ext.P8, the relevant provision applicable in the present case is clause 31(c) of the Conditions of Supply of Electrical Energy. If that be so, in view of clause 31(c), if the average consumption for the previous three months cannot be taken due to the meter ceasing to record the consumption or any other reason, the correct consumption will have to be determined based on the average consumption for the succeeding three months. But, in the present case, in spite of resorting any of the methods mentioned in clause 31(c), the Board has quantified the amount on the basis of the method prescribed in clause 42(d) of the Conditions of Supply of Electrical Energy which mainly deals the case of misuse of energy. Going by the materials produced by the petitioner, it can be seen that the Board has no complaint against the petitioner- OP NO.14668 of 2001 :-6-: consumer that any malpractice is committed so as to attract any of the provisions contemplated by clause 42(d) of the Conditions of Supply of Electrical Energy. In the absence of any specific case to attract clause 42(d) and especially when the Board has not resorted to the method mentioned in clause 31(c), Exts.P4,P5,P8 and P9 are liable to be quashed. In the result, Exts.P4,P5,P8 and P9 are quashed and the respondents are directed to issue fresh notice after calculating the amount in terms of clause 31(c) of the Conditions of Supply of Electrical Energy. Till fresh bill is issued as directed, the respondents are directed to maintain status quo as on today. V.K.Mohanan, Judge MBS/ OP NO.14668 of 2001 :-7-: V.K.MOHANAN, JJ. -------------------------------------------- O.P.NO. 14668 OF 2001 -------------------------------------------- J U D G M E N T DATED: 1-6-2009 OP NO.14668 of 2001 :-8-: