IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 RSA.No. 494 of 2008 --------------------------------- AS.8/2006 of SUB COURT, HOSDRUG OS.243/2002 of MUNSIFF COURT, HOSDRUG .................... APPELLANTS/APPELLANTS/DEFENDANTS: 1. KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM REP. BY ITS SECRETARY. 2. ASSISTANT EXECUTIVE ENGINEER, K.S.E.B., SUB DIVISION PILICODE. 3. ASSISTANT ENGINEER, K.S.E.B., ELECTRICAL SECTION PILICODE. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB RESPONDENT/RESPONDENT/PLAINTIFF: V.P.P.MOHAMMED KUNHI, AGED 70, S/O.IBRAHIM, ICE PLANT OWNER, NATIONAL ICE PLANT, KOVVAL RESIDING AT NISRIYA MANZIL, KOOLARI, TRIKKARIPUR VILLAGE, TRIKKARIPUR POST, HOSDURG TALUK, KASARGOD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No. 494 of 2008 --------------------------- JUDGMENT The Kerala State Electricity Board, its Assistant executive Engineer and Assistant Engineer are the appellants in this appeal, they having lost their defence concurrently in both the courts below. 2. The respondent/plaintiff filed O.S.No.243/02 against the appellants/defendants in the Munsiff's Court, Hosdurg for declaration and for injunction against them alleging, inter alia, that he is the owner of 'National Ice Plant' Kovval in Cheruvathur Village, which is a small scale industry having electricity connection with Consumer No.15607 of Pilicode; that the officers of the defendants used to take meter reading every month and used to issue bills, which are being regularly paid by him; that a notice was served upon him under Section 24(1) of the Indian Electricity Act, calling upon him to make payment of an amount of Rs.80,853/-, fixing RSA 494/08 2 the last date for payment as 31.5.2002; that the said notice was issued in addition to the charges which have been paid already by him as per the meter readings; that the present bill issued by the defendants is illegal and unjust and he is not liable to pay the same; that in the month of April 1999, the defendants had issued a similar bill for an amount of Rs.82,180/-, against which, he filed O.S.No.286/99 and it was decreed in his favour; that the present bill has been issued without any basis as a result of vengeance; that the second and third defendants are threatening him stating that unless he pays the amount due under the bill, the electricity supply will be disconnected; that in that even, he will be put to irreparable injury and hardship and that therefore, the defendants are liable to be restrained by means of an injunction from disconnecting the electricity supply to his ice plant. He also prays for a declaration that he is not bound to pay the amount under the demand- cum-disconnection notice-cum-bill dated 25.6.2002 RSA 494/08 3 and for consequential injunction restraining the defendants from disconnecting the power supply. 3. The defendants resisted the suit by filing a joint written statement contending that the suit is not maintainable; that the plaintiff ought to have resorted to the remedies as envisaged in the conditions of supply of electrical energy; that on 23.5.2002, the Anti Power Theft Squad (APTS) inspected the premises of the plaintiff and detected that the pressure coil of two phases 'Y' and 'B' of CT operated energy meter were inter changed and thereby only two third of the energy used was recorded and one third was left unrecorded; that site mahazar was prepared in the presence of the Manager of the ice plant Sri.P.P.Ahamad and the defect in the meter, viz., the inter changed connection was set right and a copy of the site mahazar was handed over to the Manager; that as the supply voltage of Y and B phases were inter changed, the consumption recorded by the energy meter was only two third of the RSA 494/08 4 actual consumption; that there was no defect in the meter, but it failed to record the entire consumption due to wrong connection; that in that event, the Board is fully entitled to realise the cost of energy escaped from assessment due to mistake in connection of Y and B phases; that in pursuance of the defect noticed by the APTS, an additional bill for previous five months was issued to the plaintiff and he is bound to make payment of the same; that where there is under billing, it is always open to the defendants to rectify the mistake and demand proper charges; that from 11/2001 to 4/2002, the meter reading was defective; that for this period the average monthly consumption was 564 units; that from 6/2002 to 10/2002 the average consumption came to 876 units and this would make it clear that there was defect in recording of consumed energy in the meter; that the demand notice issued is not illegal and it was issued as per Section 23(3)(1)(a) and 1(b) of the Indian Electricity Act and Regulation 32 of RSA 494/08 5 Conditions of Supply of Electrical Energy; that against the judgment and decree in O.S.No.286/99, the defendants have preferred an appeal, which is pending disposal before the Sub Court, Hosdurg; that it is incorrect to say that they have threatened the plaintiff with disconnection of power supply and that in fact, they have offered easy instalment facility for remitting the amount of the bill and that the suit has only to be dismissed with costs. 4. On the above pleadings, the trial court raised necessary issues for trial and considering the pleadings and the evidence adduced in the case at trial, which consisted of oral evidence of PW1 and DWs 1 and 2 and documentary evidence Exhibits A1, A2, B1 and B2 decreed the suit with costs, declaring that the plaintiff is not bound to pay the amount mentioned in Exhibit A1 bill and consequently, restraining the defendants from disconnecting the electricity supply to the plaintiff's premises for reason of non payment of RSA 494/08 6 Exhibit A1 bill. The defendants filed A.S.No.8/06 before the Sub Court, Hosdurg assailing the decree so passed by the trial court and the appellate court concurring with the findings of the trial court dismissed the appeal with costs. Hence this Regular Second Appeal by the defendants. 5. It is contended before me by the learned counsel for the appellants, on the strength of the decision of the Apex Court in Punjab State Electricity Board v. Ashwani Kumar ((1997) 5 SCC 120), that the civil court had no jurisdiction to deal with the subject matter in issue; that the suit should have been dismissed by the courts below and that the decree passed by the trial court and confirmed in first appeal has to be set aside. In the decision cited supra, the Apex Court was considering a case where, the Punjab State Electricity Board had issued statutory instructions regarding and dealing with cases of tampering with meter and accordingly sending bills to the respondent consumer, whose meter was removed RSA 494/08 7 suspecting tampering, but later a new meter was installed on application and thereafter, a bill for Rs.1,90,000/- and odd was issued and a suit for permanent injunction restraining the Board and its officials from collecting the said amount was filed. Therein, it was held that fundamental fairness of procedure had been followed by the Board and hence the suit filed by the respondent seeking permanent injunction restraining the Board from collecting and recovering the amount demanded without first availing the remedy provided under the Electricity Act and Electricity (Supply) Act and the instructions issued by the Board cannot be entertained by the civil court. However, it was further held that ordinarily, the civil court has jurisdiction to go into the disputed questions of civil nature, where fundamental fairness of procedure is violated. 6. The decision has no application to the facts of this case, wherein, the appellants/defendants have no case that the respondent did any tampering RSA 494/08 8 with the meter installed by the Board in his premises. On the other hand, the stand taken by the appellant in their written statement is that the mistake in reading has occurred for reason of mistake in connection of Y and B phases and consequently, there was short recording of power consumed and that was detected on an inspection conducted by the APTS. They had also taken the stand that where there is under billing it is always open to them to rectify the mistake and demand proper charges and contended that the instant case was one where there was a defect in the recording of consumed energy in the meter. 7. It is worthy to note that the purpose of installing the meter is to record the actual quantity of power consumed. The appellants have no case that there was any defect to the meter or that any defect existed, which the plaintiff/consumer was bound to bring to the notice of the Board. On the other hand, their case is that the short recording of energy consumed was due to the mistake RSA 494/08 9 in connection of Y and B phases, which, even according to the defendants, is not something within the knowledge of the respondent/plaintiff. There is also no case for the appellants that the respondent has tampered with the meter installed in his premises. Therefore, the respondent/plaintiff cannot be found responsible for any short recording of power consumed for reason of the mistake committed by the officials of the appellant/ Electricity Board. There is also no case for the appellant that the plaintiff has not paid any monthly or bi-monthly bill, as the case may be, which was issued to him for the power consumed. Though the appellants have contended in their written statement that the judgment and decree in O.S.No.286/99 is assailed in an appeal filed before the Sub Court, Hosdurg, absolutely nothing is produced to show that the decree in the said suit has not become final. It is also worthy to note that the case of the plaintiff is that the said suit was necessitated as in the month of April RSA 494/08 10 1999, the defendants had issued a similar bill for an amount of Rs.82,180/-. However, if the decree in O.S.No.286/99 aforesaid has become final, the contentions of the appellant are barred also on principles of res judicata. Further, I fail to understand for what purpose the Board is installing meters in the consumer's premises, if it is not intended to record the actual quantity of power consumed and the fun of issuing additional bills at lucid intervals at the whims and fancies of the officials of the Board. If at all there was shortage in recording the power consumed due to some mistake that must have been rectified in the first instance in April 1999 when the bill that was the subject matter of the suit O.S.No.286/99 had to be issued. Even thereafter if the mistake continues, the Board has to blame their own officials and a consumer like the plaintiff cannot be taken to task on that score. This is a case, wherein, fundamental fairness of procedure is violated and the civil court has, hence, got RSA 494/08 11 jurisdiction to entertain and decide the disputed question, which is of a civil nature. The decision cited by the learned counsel for the appellants also does not come to the rescue of the appellants in the circumstances of this case, which are not akin to the facts of the case that was cited before me, especially, when the appellants do not even suspect any tampering with the meter by the respondent or any foul play by the respondent/ consumer in the matter of short reading of energy consumed. For all the above reasons, I find that there is no merit in this appeal and further, there is no question of law and much less, any substantial question of law arising for consideration by this Court in this Regular Second Appeal. This Regular Second Appeal, in the circumstances, is dismissed in limine, refusing admission. 1st July, 2008 (K.P.Balachandran, Judge) tkv