IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.11.2011 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN Writ Petition No.22337 of 2011 & M.P.No.1 of 2011 A.S.Krishnamoorthy .. Petitioner Vs. 1. The Executive Engineer/O & M, Tamil Nadu Electricity Board, Avinashi, Coimbatore District. 2. The Assistant Executive Engineer (Town), Tamil Nadu Electricity Board, Avinashi, Coimbatore District. 3. The Superintending Engineer, Tirupur Electricity Distribution Circle, Tirupur. 4. The Asst. Engineer, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Cheyur South, Avinashi Taluk, Coimbatore District. .. Respondents Writ Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus to call for the records of the order passed by the fourth respondent in f/vz;/c/kp/bgh-,ng-nrbj-nfh/th/jp/gp-j/fh/v/3-m-ehs;//3-2011 (signed on 27.3.2011) and quash the same and consequently direct the fourth respondent to re-assess the consumption charges by considering the petitioner's representation dated 14.6.2010 and 9.5.2011. For petitioner : Mr.R.Marudhachalamurthy For respondents: Mr.S.K.Rameshwar https://hcservices.ecourts.gov.in/hcservices/ ORDER By consent of the learned counsel appearing for the parties, the writ petition itself is taken up for disposal. 2. The order of the fourth respondent in proceedings in f/vz;/c/kp/bgh-,ng-nrbj-nfh/th/jp/gp-j/fh/v/3-m-ehs;//3-2011 (signed on 27.3.2011), is challenged by the petitioner in this writ petition, seeking to quash the same, with a consequential direction to re-assess the consumption charges by considering the petitioner's representation dated 14.6.2010 and 9.5.2011. 3. The case of the petitioner is as follows: (a) The petitioner is doing knitting business in Door No.1/35-B, "Vazhga Valamudan Thottam", A-Kurumbapalayam, Vettuvapalayam Village, Cheyur Post, Avinashi Taluk. The fourth respondent provided 56 Kilo Watts Electricity Service Connection to the petitioner's knitting unit in Service Connection No.161-002-847- IIIB, and they installed the high quality electricity meter and the mark of the meter is GNUS. The meter number is 3081278. It is the latest electronic digital meter. Right from the beginning of the installation of the said meter, the meter reading was recorded bi- monthly and the person who came to register the meter had been verifying the status of the meter every time, and the petitioner paid consumption charges as per the meter reading to the respondents-TNEB promptly. (b) In the month of May 2010, the petitioner found that the meter was not functioning and there was no display in the digital display board, and immediately after noticing the same, the petitioner gave representation to the fourth respondent on 5.5.2010 regarding the said fact and requested the fourth respondent to repair/replace the same immediately. Because of non-functioning of the meter, the fourth respondent on 5.6.2010, calculated the average and arrived at the consumption unit of 21554 and directed the petitioner to pay a sum of Rs.91,116/- and the petitioner has paid the same on that month. The fourth respondent calculated the average unit without any basis on a higher side and as per his average calculation, directed the petitioner to pay the said amount and the same was questioned by the petitioner through his letter dated 14.6.2010. (c) While so, the fourth respondent, without considering the letters dated 5.5.2010 and 14.6.2010, replaced the meter only on 22.12.2010. Till the replacement of the new meter as per the fourth respondent's direction, the petitioner paid the average consumption charges of Rs.91,116/- to the unit of 21554, as calculated by the fourth respondent. The fourth respondent declared the period from https://hcservices.ecourts.gov.in/hcservices/ 30.5.2010 to 24.11.2010 as defective period and calculated the average consumption charges for four bi-monthly periods. (d) On 14.6.2010 onwards, the petitioner approached the fourth respondent and requested him to calculate the average properly for the abovesaid four bi-monthly period, i.e. from 30.5.2010 to 24.11.2010, but the fourth respondent has not considered his request, and hence, the petitioner approached Tirupur Consumer Voice, which is registered under the Tamil Nadu Societies Registration Act, and through this organisation, the petitioner made a request to them to re-consider the excess amount received from the petitioner for the four bi-monthly period. After receipt of the said representation, the third respondent passed the impugned assessment order without any basis. (e) The fourth respondent served the impugned assessment order on the petitioner on 4.5.2011, in which, they have directed the petitioner to pay Rs.2,04,362/- for the unit of 21554 assessed by them and along with the assessment order, they enclosed the assessment calculation sheet. After receipt of the impugned assessment order, a representation dated 27.4.2011 was sent to the fourth respondent, questioning the erroneous calculation of average unit. The petitioner claimed that the average calculation unit for the abovesaid period is 13722, but the fourth respondent erroneously, without following Regulation 11(2) of the Tamil Nadu Electricity Supply Code, 2004, (for short, 'the Supply Code') arrived at the average unit erroneously as 21554 instead of 13722. (f) As the petitioner's representation was not considered, a legal notice was sent on 9.5.2011, which was also not replied. However, the impugned assessment order was passed by the fourth respondent to the seven bi-monthly period, i.e. 11/2009, 1/2010, 3/2010, 5/2010, 7/2010, 9/2010, 11/2010 and 28 days in 12/2010, which is contrary to the impugned assessment order and the respondents' own computer generated report shows that the assessment status is normal to the above period from 11/2009, 1/2010 and 3/2010. (g) The petitioner assailed the impugned assessment order on the ground that as per Regulation 11(2) of the Supply Code, 2004, the quantity of electricity supplied during the period in question shall be determined by taking the average of electricity supplied during the preceding four months in respect of both high tension service connections and low tension service connections and contrary to the said Regulation 11(2), the calculation has been made in the impugned assessment order. 4. The respondents have filed counter affidavit, inter-alia stating as follows: https://hcservices.ecourts.gov.in/hcservices/ (i) The petitioner was originally sanctioned 50.0 HP for his industrial purpose and the application of the petitioner for additional load of 17.0 HP, was forwarded and the same was sanctioned and he is utilising the additional load also from 5.1.2009. The electronic meter was installed in the service connection to record the consumption of electricity by the petitioner and the payment has to be made bi-monthly. While so, the petitioner informed the respondents that he noticed the non-recording of the consumption and non-functioning of the meter and he immediately informed the same on 5.5.2010 for replacement of a new meter. (ii) Hence, the respondents have informed the petitioner to pay the charges as per Regulation 11(2) and (5) of the Supply Code, by calculating the average for the defective period and the average was calculated based on the recording of meters and the petitioner accepted the same and paid the amount at the rate of 21,554 units for the bi-monthly periods 5/2010, 7/2010, 9/2010 and 11/2010. The new meter was installed on 22.12.2010. (iii) During the audit conducted by the TNEB, it was found that correct consumption of electricity was not recorded for the periods 11/2009, 1/2010 and 3/2010 also and during the said period, one phase in the meter was not recording the consumption and hence, the meter was running slow during those periods and totally not functioning from 5/2010. Hence, in the audit report, it is stated that there is a short levy for the period from 11/2009 to 3/2010 and the same has also to be collected from the petitioner. Therefore, the short levy was calculated as per Regulation 11(2) and (5) of the Supply Code and the petitioner was directed to pay a sum of Rs.2,04,362/-, which the petitioner is liable to pay to the TNEB. (iv) The average consumption till 9/2009 is above 20,000 units and only due to the defect in the meter, the recording of the consumption suddenly got reduced from 11/2009 onwards and not recorded from 5/2010. The meter card amply proves the above facts. After the installation of the new meter, the consumption has risen to above 20,000 units. The petitioner was fully apprised of the Supply Code in calculating the average in the case of non-functioning of the meter and he has also accepted the same and paid the amount. Therefore, having come to know that the petitioner would be liable to pay the short levy for the period from 11/2009 to 3/2010, issued a notice, which was also replied by the respondents, setting out the facts by letters dated 17.5.2011 and 6.9.2011. (v) The allegations of the petitioner in his affidavit, are not correct, and the entire facts have been clearly intimated to the petitioner after giving an opportunity to make the representation to the first respondent within 15 days, and the petitioner, without making any representation to the first respondent, has come forward with the present Writ Petition on false grounds. https://hcservices.ecourts.gov.in/hcservices/ 5. On the above background of pleading, I have heard the learned counsel appearing for the parties and perused the material documents annexed in the typed set of papers filed in support of the writ petition. 6. Mr.R.Marudhachalamurthy, learned counsel for the petitioner contended that the impugned calculation of the average consumption charges, is not in accordance with Regulation 11(2) of the Supply Code, and therefore, the short levy based on the audit is not sustainable, and it requires re-assessment. 7. On the other hand, Mr.S.K.Rameshwar, learned counsel for the respondents — TNEB submitted that the impugned calculation has been arrived at based on Regulation 11(2) and (5) of the Supply Code, and the electricity supply during the period in question, was determined, taking into consideration the average consumption during the preceding four months, as there was a defect in the meter and during audit objection, it was found that there was a short levy. He consistently pleaded that in case the petitioner has any grievance with regard to the impugned calculation of average consumption charges, it is very well open for the petitioner to approach the Consumer Grievance Redressal Forum in respect of any orders passed under Regulations 3 to 17 of the Supply Code. 8. Upon hearing the learned counsel appearing for the parties, it is seen that admittedly, the petitioner is a consumer under the respondents-TNEB and was granted electricity service connection for the industrial purpose, and thereafter, additional load was also obtained by the petitioner, and he has been paying the consumption charges as per the terms and conditions of electricity supply. The petitioner has paid whatever the electricity consumption charges for the period in question. While so, as there was a defect in the electric meter resulting in irregular meter readings and it has gone to the extent of non-functioning, the same was immediately reported by the petitioner to the respondents on 5.5.2010 for replacement of a new electric meter. Immediately, the respondents have taken steps to rectify the defective electric meter. However, for the period in question, the average meter reading was done and the short levy of units was 21554. Though the respondents claim that the said calculation of average consumption charges, had been accepted by the petitioner, and he has also paid the same for the respective consumption period based on bi-monthly calculation, and the new electric meter was installed on 22.12.2010. 9. In the meantime, the audit was conducted in the TNEB, wherein, it was found that the correct consumption of electricity was not recorded for the respective periods, and therefore, the respondents-TNEB calculated the impugned demand to be paid b y the petitioner-consumer at Rs.2,04,362/-, as short levy was found as per Regulation 11(2) and (5) of the Supply Code. https://hcservices.ecourts.gov.in/hcservices/ 10. Regulation 11(1), (2) and (5) of the Supply Code reads thus: "Regulation 11: Assessment of billing in cases where there is no meter or meter is defective.-- (1) Where supply to the consumer is given without a meter or where the meter fixed is found defective or to have ceased to function and no theft of energy or violation is suspected, the quantity of electricity supplied during the period when the meter was not installed or the meter installed was defective, shall be assessed as mentioned hereunder. (2) The quantity of electricity supplied during the period in question shall be determined by taking the average of the electricity supplied during the preceding four months in respect of both high tension service connections and low tension service connections, provided that the conditions in regard to use of electricity during the said four months were not different from those which prevailed during the period in question. (5) If the conditions in regard to the use of electricity during the periods as mentioned above were different, assessment shall be made on the basis of any consecutive four months period during the preceding twelve months when the conditions of working were similar to those in the period covered by the billing." 11. When this Writ Petition came up for admission on 10.10.2011, this Court passed the following order: "Mr.S.K.Rameshwar, learned counsel for the respondents, on instructions, submits that as on today, there is no disconnection, but the demand continues and learned counsel for the petitioner submits that only on recent notice, the respondents are contemplating disconnection. Learned counsel for the respondents/TNEB requests time to file counter affidavit. Post after four weeks for counter and disposal. Considering the facts and circumstances of the case, there shall be an order of interim stay on condition that the petitioner shall pay 50% of the impugned demand within a period of two weeks from the date of receipt of a copy of this order, failing compliance, this order shall stand vacated automatically. However, this payment is without prejudice to the rights of the parties." https://hcservices.ecourts.gov.in/hcservices/ 12. In compliance of the abovesaid order dated 10.10.2011, the petitioner has remitted 50% of the impugned demand, which has also been acknowledged by the learned counsel for the respondents. 13. In the given circumstances, now the questions to be decided are: (i) Whether the impugned assessment order that has been passed on the ground of re-assessment of the shortfall amount, is proper ? and (ii) Whether the impugned demand is in accordance with Regulation 11(2) and (5) of the Supply Code ?. 14. It appears from the pleadings of the parties that there was notice issued by the respondents, for which, the petitioner also replied by way of sending representations, and after considering each and every aspect of the matter, the respondents have proceeded to issue the impugned demand, though the petitioner in principle did not accept the same and requested for re-assessment of the shortfall amount/short levy. 15. It is to be noted that as per Regulation 18 of the Supply Code, if the petitioner/consumer has any grievance with regard to the calculation of the electricity consumption charges, more specifically, under Regulations (3) to (17) of the Supply Code, the same shall be referred by the consumer to the respective Consumer Grievance Redressal Forum constituted under the Electricity Act, 2003. 16. It is thus evident that where a consumer has a grievance relating to the procedures adopted in Regulations (3) to (17) of the Supply Code, the same shall be referred by the consumer concerned to the respective Consumer Grievance Redressal Forum. It is seen that earlier, the petitioner has approached a consumer organisation, called Tiruppur Consumer Voice, which has forwarded the representation of the petitioner to the respondents/TNEB, and only thereafter, the respondents have passed the impugned assessment order by following the procedures contemplated under law and the grievance of the petitioner seems to have been considered by the respondents- authorities. 17. In that view of the matter, since the petitioner challenges the impugned assessment order on the very short ground that the calculation of the average electricity consumption based on the shortfall, is not in accordance with the Regulations of the Supply Code, the same can be redressed by the petitioner/consumer before the said Forum as per Regulation 18 of the Supply Code by filing appropriate petition. https://hcservices.ecourts.gov.in/hcservices/ 18. For the foregoing reasonings and the discussion made, as this Court cannot sit over the assessment/re-assessment of the electricity consumption charges, and as an alternative statutory remedy of approaching the said Forum is available for the petitioner for redressal of the grievance, the petitioner/consumer may approach the said Consumer Grievance Redressal Forum. 19. Accordingly, the Writ Petition is disposed of, with a direction to the petitioner to move the Consumer Grievance Redressal Forum as per Regulation 18 of the Supply Code, within a period of four weeks from the date of receipt of a copy of this order, and on such approach, the said Forum shall look into the same on merits and in accordance with law, after giving an opportunity of hearing to the parties concerned. 20. Till such disposal is made by the Forum, the parties to this Writ Petition are directed to maintain the status quo as on today. No costs. The Miscellaneous Petition is closed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. cs To 1. The Executive Engineer/O & M, Tamil Nadu Electricity Board, Avinashi, Coimbatore District. 2. The Assistant Executive Engineer (Town), Tamil Nadu Electricity Board, Avinashi, Coimbatore District. 3. The Superintending Engineer, Tirupur Electricity Distribution Circle, Tirupur. 4. The Asst. Engineer, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Cheyur South, Avinashi Taluk, Coimbatore District. https://hcservices.ecourts.gov.in/hcservices/ +One C.C. to Mr.R.Marudhachalamurthy Advocate SR.70522 +One C.C. to Mr.S.K.Raameshuwar Advocate SR.70084 W.P.No.22337 of 2011 BS(CO) KSA(21/12/2011) https://hcservices.ecourts.gov.in/hcservices/