IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 OP.No. 32159 of 2001(C) ----------------------- PETITIONER(S): --------------- SIBU JACOB, EXECUTIVE PARTNER, KOCHUPURACKAL RUBBERS, INDUSTRIAL DEPARTMENT PLOT, POOVANTHURUTHU, KOTTAYAM. BY ADV. MR.R.SUDHIR RESPONDENT(S): --------------- 1. THE KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. SUB ENGINEER, KERALA STATE ELECTRICITY BOARD, NATTAKOM SECTION, KOTTAYAM. 3. SENIOR SUPERINTENDENT, ELECTRICAL MAJOR SECTION, PALLOM, KOTTAYAM. 4. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, PALLOM, KOTTAYAM. ADV. SRI.KODOTH SREEDHARAN, SC, KSEB SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1-3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 32159 of 2001(C) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - A TRUE COPY OF THE SITE MAHAZAR PREPARED BY THE 2ND RESPONDENT DATED 7.8.2001. EXT.P2 - A TRUE COPY OF THE NOTICE DATED 8.8.2001 ISSUED BY THE 3RD RESPONDENT. EXT.P3 - A TRUE COPY OF THE JUDGMENT IN O.P. NO. 24313 OF 2001 DATED 16.8.2001 OF THE COURT. EXT.P4 - A TRUE COPY OF THE PROCEEDINGS DATED 17.10.2001 OF THE 4TH RESPONDENT. EXT.P5 - A TRUE COPY OF THE BILL DATED 16.8.2001 INVOICE NO. 84358. EXT.P6 - A TRUE COPY OF THE BILL INVOICE NO. 84662 DATED 15.9.2001. EXT.P7 - A TRUE COPY OF THE BILL INVOICE NO. 3662 DATED 15.10.2001. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ................................................ O.P. No. 32159 of 2001 ................................................. Dated this the 3rd day of December, 2009 J U D G M E N T The petitioner is a consumer of electricity. On 7.8.2001, the 2nd respondent inspected the electrical installation at the petitioner's premises and prepared Ext.P1 Mahazar, wherein it was stated that on examination of the meter in detail, which is a three phase meter, the 1st and 3rd phases were working properly and the 2nd phase was found running in the reverse direction. Thereafter, the petitioner was served with Ext.P2 notice claiming an amount of Rs. 83,393/- which is described as a penalty charged as per the inspection report of the 2nd respondent. The petitioner challenged Ext.P2 bill before this court by filing O.P. No. 24313 of 2001. By Ext.P3 judgment, this court relegated the petitioner to the remedy by way of appeal before the Executive Engineer. Pursuant thereto, the petitioner filed an appeal before the Executive Engineer, who by Ext.P4 order rejected the contentions of the petitioner and confirmed Ext.P2 bill. Thereafter, the petitioner was again served with Exts.P6 and P7 bills demanding charges for the probable energy consumed by the petitioner through the faulty meter, on the O.P. No. 32159 of 2001 -2- assumption that the meter was recording only 1/3 rd of the actual consumption. The petitioner is challenging Exts.P2, P4, P5, P6 and P7. 2. The primary contention of the petitioner is that the respondents had no jurisdiction to decide the question as to whether the meter was faulty and if the meter was faulty, the energy charges payable by the consumer for the period in question. According to the petitioner, that jurisdiction rests exclusively with the Electrical Inspector under Section 26(6) of the Indian Electricity Act, which was applicable at the relevant time and without reference to the electrical inspector, respondents could not have demanded and recovered energy charges on the assumption that the meter was recording only 1/3 rd of the actual consumption. According to the petitioner, since the respondents have not chosen to refer the dispute to the electrical inspector under Section 26(6), going by the Division Bench decision of this court in Nirmala Metal Industries v. K.S.E.B. [2006(3) KLT 465], the Board cannot demand electricity charges for the alleged short recording of electricity consumed by the alleged faulty meter. He also relies on my decision in O.P. Nos. 26123, 27988 and 29518 of 1999, by judgment dated 14.10.2008. O.P. No. 32159 of 2001 -3- 3. The standing counsel for the electricity board contends that in so far as the petitioner has not challenged Ext.P1 Mahazar, it must be presumed that he has accepted the fact that the meter was faulty and therefore there was nothing wrong in the respondents demanding the electricity charges from the petitioner on the ground that the meter was recording only 1/3 rd of the actual consumption. The contention is that if the petitioner had a dispute that the meter is actually correct, it was for him to raise that dispute and seek reference under Section 26(6). The petitioner having not done so, he cannot now dispute the correctness of the demand made is the contention raised by the respondents. Regarding Exts.P5 to P7 bills, the contention is that in order for the petitioner to decide whether to seek reference under Section 26(6) or not the respondents did not replace the meter for three months and for that period also the electricity charges were demanded on the basis that the meter was recording only 1/3 rd of the actual consumption. 4. I have considered the rival contentions in detail. 5. In view of the pleadings before me, the question to be decided is as to whether the bills issued by the respondents for recovery of electricity charges without first resorting to reference O.P. No. 32159 of 2001 -4- under Section 26(6) of the Indian Electricity Act is valid or not. Section 26(6) reads thus: “Where any difference or dispute arises as to whether any meter referred to in sub-section (1) is or is not correct, the matter shall be decided, upon the application of either party, by an Electrical Inspector; and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector, have been correct; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity:” (underlining supplied) 6. As is clear from the first sentence of Section 26(6), in order to attract jurisdiction of the Electrical Inspector under that Section a difference or dispute as to whether any meter is or is not correct should arise. The counsel for the petitioner would argue that the word 'arise' means “come into being” or “come to notice or action as a result of” as given in Oxford Dictionary. According to him, word 'arise' should be considered in contradistinction with 'raised'. Therefore, according to him as soon as a meter is found faulty a dispute arises and therefore electricity board is bound to refer that dispute under Section 26(6) to the Electrical Inspector. I am unable to agree. If that be so, in every case, where the meter is found faulty, automatically the electricity board would be bound to O.P. No. 32159 of 2001 -5- refer the matter to the Electrical Inspector. That is not what is contemplated under Section 26(6). A dispute or difference would arise only when one party asserts the existence or non-existence of a fact and the other party disputes the existence or non-existence of that fact. When one person asserts the existence or non existence of a fact and the other party does not dispute the same there arises no difference or dispute. Therefore, going by the reasoning given by the counsel for the petitioner himself only if a difference or dispute arises the jurisdiction of the electrical inspector attracted. That is the law declared by the Supreme Court in Tata Hydro-Electric Power Supply Co. Ltd. v. Union of India [AIR 2003 SC 1581], wherein in paragraph 15 it is held thus: “It was urged before the High Court as also before us that having regard to the judgment of this Court in U.P.S.E.B. v. Atma Steel (supra) it is no longer open to the appellant to contend that CT was not an apparatus within the meaning of Section 26(7) of the Act. Having perused the judgment of this Court in Atma Steel's case (supra), we also entertain no doubt that CT is an apparatus within the meaning of Section 26(7) of the Act.” 7. Here, in Ext.P1 Mahazar it is specifically stated that on detailed inspection it was found that one phase of the three phase meter was running in reverse direction. It does not need any expertise to understand from the same that what it means is that O.P. No. 32159 of 2001 -6- the meter is faulty. Therefore as soon as Ext.P1 is received the petitioner must have known that according to the respondents the meter is faulty. If the petitioner had a case that the meter is not faulty he should have contested Ext.P1 immediately on receipt of the same. Only if he had done so, a difference or dispute would arise as to whether the meter is or is not correct. It is also pertinent to note that in Ext.P8 memorandum of writ petition in W.P(C) No. 24313/2001, which the petitioner has produced along with I.A. No. 15257 of 2009, the petitioner did not choose to challenge Ext.P1 although he had produced Ext.P1 in that writ petition also. In fact in Ext.P9 appeal filed by the petitioner as directed in Ext.P3 judgment, there is no assertion that the meter is not faulty nor is there a demand for reference of the any dispute under Section 26(6). The explanation of the petitioner for this is that at that time the petitioner was not aware that Ext.P2 demand was for deficit current charges for the past six months on account of the fault in the meter, since Ext.P2 specifically stated that demand is for penalty. It is prepared that in Ext.P2 the respondents have chosen to describe the demand as penalty charged as per the inspection report. Even then the petitioner cannot dispute the fact that going by Ext.P1 it is abundantly clear O.P. No. 32159 of 2001 -7- that according to the respondents the meter was faulty. Therefore if the petitioner had a contention that the meter was not faulty the petitioner was bound to raise that dispute, when only the dispute would arise as contemplated under Section 26(6) of the Indian Electricity Act. Therefore in my opinion since the petitioner condescended to the fact that the meter was faulty, the respondents were not bound to refer any dispute for decision of the electrical inspector as required under Section 26(6). 8. Then the only the question is whether the petitioner is liable to pay the amount demanded by the respondents on account of the defect in the meter. Nowhere has the petitioner disputed the specific statement in Ext.P1 that one of the phases of the power meter was running in the reverse direction. That being so, it is clear that the meter was recording only 1/3 rd of the consumption. In such circumstances, the respondents are justified and demanding the electricity charges for the balance 2/3 rd consumption for six months prior to the date of detection of the defect in the meter. Therefore I do not find any merit in the challenge against Exts.P2 and P4. 9. But after having found the meter to be faulty it is not proper on the part of the respondents to continue billing the O.P. No. 32159 of 2001 -8- petitioner by a calculator on the basis of the reading in the faulty meter. The maximum they could have done is to charge the petitioner for the average consumption per month as per the reading in the replaced meter. Accordingly Exts.P5 to P7 bills are quashed. The respondents are directed to issue fresh bills in the place of Ext.P6 to P7 on the basis of the average consumption of the petitioner for three months subsequent to the replacement of the meter. The writ petition is disposed of as above. sd/- S. SIRI JAGAN, JUDGE rhs // True copy // PA to Judge