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Kerala High Court
Kunjumohammed P.K vs The Asst.Engineer, K.S.E.B on 20 May, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
WP(C) NO. 18364 OF 2014
PETITIONER:
P.K.KUNJUMUHAMMED,
MYTHREE ICE & COLD STORAGE,
THOPPUMPADY-682 005.
BY ADVS.
SRI.S.ANANTHAKRISHNAN
SRI.N.K.SUBRAMANIAN
RESPONDENTS:
1 THE ASST.ENGINEER,
ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD,
THOPPUMPADY-682 005.
2 THE SUB ENGINEER,
ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD,
THOPPUMPADY-682 005.
3 THE EXECUTIVE ENGINEER,
ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD,
THOPPUMPADY-682 005.
BY ADVS.
SMT.RIJI RAJENDRAN (SC, KSEB)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.18364/2014 2
C.R
JUDGMENT
The petitioner is a consumer of electricity (with consumer No.14294 under LT 4A tariff) under the 3rd respondent. The petitioner has approached this court challenging the demands raised on the petitioner in terms of Exts.P4, P7 to P9 and P11 to P14 bills, which have been issued to the petitioner on the basis that there was a defect in the Current Transformer (in short 'CT') resulting in 1/3rd of the actual consumption of the petitioner not being recorded by the meter installed at the premises. The impugned bills have been issued for the period between July 2013 to July 2014.
2. Sri.S.Ananthakrishnan, the learned counsel appearing for the petitioner would submits that the impugned demands are liable to be set aside on a short ground. It is submitted that the demands have been issued under Section 126 of the Electricity Act, 2003 (in short 'the 2003 Act'). It is submitted that the provisions of Section 126 of the 2003 Act do not apply to the facts of the case as there is no allegation that the petitioner had indulged in an unauthorized use of electricity. It is submitted that it is the admitted case of the respondent Board that the alleged short consumption was on account of a defect in the CT and not on account of any act on the part of the petitioner. It is submitted that W.P.(C)No.18364/2014 3 even if the proceedings against the petitioner are treated to be one under Section 126 of the 2003 Act, the procedure contemplated by that provision has not been complied with before finalizing the demands raised on the petitioner. It is submitted that the alleged dip in the consumption was on account of the fact that the industry of the petitioner was seasonal. It is submitted that the petitioner is running an Ice plant and the ice is supplied mainly for the preservation of fish and whenever there is a fall in the fish catch or when there is a trawling ban etc., there will be a corresponding fall in the demand for ice, leading to a lesser consumption in such months. It is submitted that the mahazars prepared by the Board cannot be acted upon as they are self-serving documents to suggest that there was a defect in the CT. It is submitted that the Board cannot determine for itself the amount of electricity that has allegedly escaped consumption owing to a defect in the meter or in any metering apparatus. It is submitted that the consumption pattern will indicate that even in months prior to July 2013, there have been months where the consumption of the petitioner has been much less than the average consumption, which lends credence to the contention of the petitioner that the alleged reduction in consumption is only on account of the fact that the demand for ice during certain months would have been less on account of fall in fish catch. It is submitted that if there W.P.(C)No.18364/2014 4 had been any defect in the meter/CT, the same should have been immediately rectified instead of raising huge demands for alleged escaped metering as has been done in this case. It is submitted that the contention now taken in Court that the demands are not under Section 126 of the 2003 Act cannot be sustained as the demands clearly show that they have been issued under the provisions of Section 126 of the 2003 Act. It is submitted that the allegedly defective CT and the meter have not been subjected to any testing to establish that they were not recording the correct amount of electrical energy supplied and consumed by the petitioner. It is submitted that the procedure contemplated by regulation 19(4) of the Electricity Supply Code 2005 (in short 'the 2005 Code') on which reliance is placed by the Board to justify the demands does not apply to the facts of the case. It is submitted that the contention that the petitioner had to raise his grievance before the Consumer Grievance Redressal Forum (in short 'the CGRF') is not sustainable as the demands were issued specifically referring to the provisions of Section 126 of the 2003 Act, against which the petitioner has no remedy before the CGRF. It is submitted that the demands raised on the petitioner cannot be sustained in law and the petitioner is entitled to a refund of the amounts paid by the petitioner under the threat of disconnection.
W.P.(C)No.18364/2014 5
3. Adv.Riji Rajendran, the learned Standing Counsel appearing for the Kerala State Electricity Board would submits that the petitioner is not entitled to any relief. At the outset, it is pointed out that if the petitioner had any grievance regarding the demands raised on him, the petitioner had to approach the CGRF in terms of the provisions contained in Section 42(5) of the 2003 Act. It is submitted that having failed to approach the CGRF, the petitioner cannot be heard to contend that his contentions regarding the demands raised on him must be adjudicated by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. It is submitted that the issues involve disputed questions of fact which cannot be resolved under Article 226 of the Constitution of India. It is submitted that though the impugned demands refer to the provisions of Section 126 of the 2003 Act, the petitioner was very well aware that he was not being proceeded with for unauthorized use of electricity under the provisions of Section 126 of the 2003 Act. It is submitted that when the officials of the Board had established that there was a defect in the CT, it was initially sought to be corrected by carrying out some minor repairs and by replacing a wire, which was found to be defective. It is submitted that when it was noticed that even after the said repair work, the CT was not working properly and the amount of electricity actually consumed by the petitioner was not being recorded in W.P.(C)No.18364/2014 6 the meter, the petitioner was finally required to change the CT / meter, which was done only in the month of July 2014. It is submitted that it is in such circumstances, that the petitioner was faced with a demand for the period from July 2013 to July 2014. It is submitted that when a defect is noticed in the meter or in the metering system leading to a non- recording or improper recording of consumption by the meter, the petitioner can be called upon to pay electricity charges on the basis of average consumption after the defects have been cured. It is submitted that such demand on the basis of average consumption can be for a period of 12 months in terms of Regulation 152 of the Electricity Supply Code, 2014 (in short 'the 2014 Code'). It is submitted that in such circumstances and when it was clear that the meter had not correctly recorded the consumption of the petitioner, it was open to the Board to demand the charges for electricity consumed but has escaped metering. It is submitted that when it is clear that the defect in one phase of the CT had led to the non-recording of 1/3rd of the consumption, a demand can be raised on that basis. The learned counsel placed reliance on the judgments of this Court in Kerala State Electricity Board and others v. Managing Director, M/s. Anappuram Rubber Products (P) Ltd.; 2012 (2) KHC 719, West Fort Ayurveda Hospital, Thrissur v. Thrissur Corporation and others; 2013:KER:43906, and Southern India Marine W.P.(C)No.18364/2014 7 Products Co. v. Kerala State Electricity Boar d; 1995 KHC 279 in support of his contentions. He also referred to the judgment of the Supreme Court in Executive Engineer, Southern Electricity Supply Company of Orissa Limited (South Co) and another v. Sri Seetaram Rice mill; (2012) 2 SCC 108.
4. I have considered the contentions raised. The objection raised to the maintainability of the Writ Petition must fail for two reasons. The first is that the impugned demands were issued specifically referring to the provisions of Section 126 of the 2003 Act, against which the petitioner has no remedy before the CGRF. Though a contention is now raised that the demands were not under Section 126 of the 2003 Act, after having issued the demands specifically referring to Section 126 the respondents cannot be heard to contend that the demands were not referable to the provisions of Section 126 of the 2003 Act to sustain a plea that the Writ Petition is not maintainable. Secondly, this Writ Petition was admitted on 17-07-2014. The Writ Petition has thus been on the files of this Court for nearly 10 years. The issues arising for consideration can be adjudicated with reference to the documents and no disputed question of fact arises for adjudication. Thus, it would not be proper for this Court to now non-suit the petitioner on account of the availability of any alternate remedy.
W.P.(C)No.18364/2014 8
5. The petitioner is a consumer of electricity under LT-4A tariff. The connection was availed to run an Ice plant near the Cochin Harbour. There is no allegation that the petitioner had indulged in any malpractice, as a result of which there was a failure to record the actual consumption in the meter installed at the premises of the petitioner. The inspection by the Anti Power Theft Squad (APTS) in March 2014, allegedly indicated that one phase of the meter was not recording properly on account of some defect in the CT. It is seen from Ext.P2 Mahazar and the counter affidavit filed by the respondents that a defect was noticed in the CT, which defect resulted in a short recording of the actual consumption of the petitioner. According to the respondents, the data obtained while decoding the meter was available from 10-11-2013. However, since there was a fall in consumption from May 2013 onwards a short assessment bill was issued for the period from 7/2013 to 2/2014 for a sum of Rs.4,09,115/- (Exhibits P4 and P5). The petitioner availed instalments for remitting the amount and paid the first instalment on 19-03-2014. According to the respondents on 19-03-2014 itself the Sub Engineer, Electrical Section, Thoppumpady rectified the defect in the CT. Exhibit P6 is the mahazar prepared at the time of rectification of the defect. Thereafter Exts.P7, P8 and P9 bills were issued to the petitioner. These bills were not for short assessment but were normal bills for W.P.(C)No.18364/2014 9 March, April and May 2014. While taking the monthly reading in May 2014, it was again noticed that the consumption was low and the APTS conducted a further inspection in June 2014 and determined that the meter is again not recording consumption in one phase. Thereafter a short assessment demand for a sum of Rs.1,26,423/- was raised on the petitioner which together with the amount payable for the consumption recorded in the meter totalled up to the amount reflected in Ext.P 13 bill. The petitioner objected to the further demand on account of the alleged short assessment. A further bill (Ext.P14) was issued to the petitioner demanding a sum of Rs.22,977/-. It is not clear whether the said bill (Ext.P14) is on account of any short assessment or was on account of amounts payable for normal consumption by the petitioner. When the writ petition was pending before this court, on 22-09-2014, this court passed the following order;
"Learned standing counsel submits that, non-recording of energy in one of the three phases in the meter installed in the premises of the petitioner/consumer has been detected again. But the defect is not rectified as the matter is pending consideration before this court.
2. There is no case for the respondents that, the petitioner/consumer has done any mischief. This being the position, what is the mistake, how it was occurred, when it was occurred, what is the permanent cure, etc. are matters to be considered by the experts of the Board and it has necessarily to be corrected without any chance for recurrence.W.P.(C)No.18364/2014 10
3. The 3rd respondent is directed to conduct a personal inspection with notice to the petitioner and file a report before this Court as to the defects, if any, and the exact cause/source of mischief. The actual amount payable by the petitioner, if any, shall also be incorporated in the said report.
Post after 10 days. The interim order passed by this court will continue till the next date of posting."
Following the order dated 22-09-2014, an affidavit was filed by the respondents which indicated that the defect which resulted in the short recording of actual consumption was subsisting and therefore the CT was replaced and a new meter was also installed at the premises of the petitioner. The respondents have also attempted to justify the demands raised on the petitioner in the affidavit dated 30-09-2014. The respondents have filed an additional affidavit dated 11-11-2014 again attempting to justify the demands raised on the petitioner for the period before the replacement of the CT and the meter and also justifying the demand for a sum of Rs.59,013/- on account of revision of tariff.
6. The question regarding the legality of the demands raised on the petitioner will depend on the interpretation to be placed on the provisions of the 2005 Code framed under Section 50 of the 2003 Act. The provisions applicable are those contained in the 2005 Code as the disputes relate to a period before the introduction of the 2014 Code. The Regulation 19 of the 2005 Code deals with the aspect of reading of W.P.(C)No.18364/2014 11 meters. It provides as under:-
19. Meter reading.- (1) Meter reading shall be taken by the employees or the persons authorised by Licensee and record the same on the meter card provided for such purposes by the Licensee near such meter. The meter card shall be open to inspection by the consumers.
(2) If Licensee is unable to base a bill on meter reading due to its non-recording or malfunctioning, the Licensee shall issue a bill based on the previous six months average consumption. In such cases the meter shall be replaced within one month.
[Emphasis supplied] (3) The bill shall be issued within 7 days from meter reading date and the bill date shall not be more than 4 days from meter reading date. In the case of spot billing, the meter reading date and bill date shall be the same.
(4) In case the Licensee issues a bill which covers a period not consistent with the billing period or a period during which consumer tariff changes, the Licensee shall issue the bill on pro-rata basis for relevant periods and show relevant details on the bill.
(5) When the meter reading cannot be taken due to the premises being locked up or made inaccessible, the consumer shall be provisionally charged the average consumption for the last 6 months.
(6) During the second instance of locked up premises, the consumer shall be given a written 24-hour notice to keep open the premises at a particular date and time and give facilities for reading the meter to the Licensee's designated employee. If the consumer fails to keep open the premises and give facilities for taking the meter reading as aforesaid, without giving proper reasons, the supply shall be disconnected with due notice. After taking the meter reading, the consumer shall be charged for the whole consumption since last reading less the charges already paid. (7) In cases where a consumer resides away from the premises and requests in writing that supply to his premises shall not be disconnected even though the meter may not be made accessible for reading, his request shall be complied with, provided he is agreeable to pay the fixed/minimum charges. In such cases, the consumer shall inform the Licensee's designated officer immediately on his return to the W.P.(C)No.18364/2014 12 station and to make the meter available for reading. After taking the meter reading, the consumer shall be charged for the whole consumption since last reading less the charges already paid.
(8) The Licensee shall levy fixed/minimum charges if any applicable to the consumer during the period of disconnection.
A reading of Regulation 19 indicates that where the licensee is unable to raise a bill on meter reading due to its non-recording or malfunctioning, the licensee shall issue a bill based on the previous six months' average consumption and in such case, the meter shall be replaced within one month. In the facts of the present case, the alleged defect was with the CT and not with the meter itself. As per Regulation 2(p) of the Central Electricity Authority (Installation & Operation of Meters) Regulations 2006, ''meter'' means a device suitable for measuring, indicating and recording consumption of electricity or any other quantity related with electrical system and shall include, wherever applicable, other equipment such as Current Transformer (CT), Voltage Transformer (VT) or Capacitor Voltage Transformer (CVT) necessary for such purpose' . Equipment such as Current Transformer (CT), Voltage Transformer (VT) or Capacitor Voltage Transformer (CVT) are used to step down the voltage of the supply to enable the recording of consumption by the meter. It is settled by the decision of the Supreme Court in U.P.S.E.B v. Atma Steels and others; (1998) 2 SCC 597 that since the CT is part of the W.P.(C)No.18364/2014 13 metering system, the defect in the CT will also have to be treated as a defect in the meter. (Also see the decision in Tata Hydro-Electric Power Supply Co. Ltd. and others v. Union of India; (2003) 4 SCC 172). There is nothing in Regulation 19 which contemplates or provides for the procedure to be followed if a consumer disputes any short assessment bill on account of any alleged defect in the meter. Regulation 24 of the 2005 Code deals with disputes in bills. While it provides an opportunity for a consumer to dispute the correctness of the bill, it does not stipulate any procedure for determining the amount of electrical energy that has allegedly escaped recording in the meter. The provisions of the 2005 Code dealing with cases of tampering of meter etc. are not being referred as it is not even alleged that the petitioner had employed any surreptitious means to ensure that the meter did not record the correct amount of electrical energy consumed by him. Regulation 33 of the KSEB Terms and Conditions of Supply, 2005 which, was in force at the relevant time, deals with the procedure for the reading of meters and preparation of invoices. Regulation 42 of the KSEB Terms and Conditions of Supply, 2005 deals with the accuracy of the meters. Regulation 42 reads thus:-
"42. Accuracy of Meters (1) The amount of energy supplied to a consumer will be ascertained by means of meter or meters installed and kept in good condition by the Board. The consumer will have to pay hire charges for the meter or meters.
Should the consumer dispute the accuracy of the meter W.P.(C)No.18364/2014 14 installed in his premises, he may send a written application to the Asst. Engineer and pay the prescribed fee for the test. On receipt of the application and testing fee, the Asst. Engineer shall have the meter specially tested by the Board or Electrical Inspector to Govt. and where the meter is found to be beyond the limits of accuracy as prescribed in the I.E. Rules, in force from time to time, the testing fee shall be returned to the consumer and the consumer's bill adjusted in accordance with the result of the test taken with respect to the meter reading of six months prior to the month in which the dispute has arisen, due regard being paid to conditions of occupancy during the month. The faulty meter will be replaced by another one in good working order or the same will be repaired and reinstalled. If the error is found to be within the limits allowed by the I.E. Rules, the testing fee shall be forfeited to the Board and the consumer's bill shall be confirmed.
(2) In the event of the test being undertaken by the Electrical Inspector and the meter being found to be incorrect, the period during which the meter shall be deemed to have been incorrect and the amount of energy supplied to the consumer during the period shall be decided by the Electrical Inspector.
(3) The consumer may report any complaint regarding meter to the concerned Electrical Section. The inspection of the meter will be carried out using the standard reference meter (Single Phase/Three Phase) available in the Section office which is tested, calibrated and sealed by the Electrical Inspectorate. If meter is found faulty such meters shall be replaced immediately at the expense of the Board. If the existing meter after having found faulty is replaced with a new one, the consumption recorded during the period in which the meter was faulty shall be reassessed based on the average consumption for the previous six months prior to replacement of meter. If the average consumption for the previous six months cannot be taken due to the meter ceasing to record the consumption or any other reason, the consumption will be determined based on the meter reading in the succeeding six months after replacement of meter and excess claimed if any, shall be adjusted in the future current charge bills."
A reading of Regulation 42 indicates that when there is a dispute W.P.(C)No.18364/2014 15 regarding the accuracy of the consumption recorded by a meter the matter has to be determined by the Board or the Electrical Inspector to the Government and further that where the test is conducted by the Electrical Inspector and the meter is found to be incorrect, the period during which the meter is deemed to be incorrect and the amount of energy supplied to the consumer during the said period shall be decided by the Electrical Inspector. In the facts of the present case, it does not appear that the question as to the amount of electricity that was supplied to the petitioner but not recorded by the meter has been determined by reference to the Electrical Inspector. At this juncture it may be relevant to notice the provisions of Section 26 of the erstwhile Electricity Act, 1910 which (among other things) deals with the procedure to be adopted in case there is a dispute either by the licensee or by the consumer regarding the correctness of a meter. It provided as follows:-
"26. Meters. - (1) In the absence of an agreement to the contrary, the amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of a correct meter, and the licensee shall, if required by the consumer, cause the consumer to be supplied with such a meter:
Provided-that the licensee may require the consumer to give him security for the price of a meter and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter.
(2) Where the consumer so enters into an agreement for the hire of a meter, the licensee shall keep the meter correct, and, W.P.(C)No.18364/2014 16 in default of his doing so, the consumer shall, for so long as the default continues, cease to be liable to pay for the hire of the meter.
(3) Where the meter is the property of the consumer, he shall keep the meter correct and, in default of his doing so, the licensee may, after giving him seven days' notice, for so long as the default continues, cease to be liable to pay for the hire of the meter.
(4) The licensee or any person duly authorised by the licensee shall, at any reasonable time and on informing the consumer of his intention. have access to and be at liberty to inspect and test, and for that purpose, if he thinks fit, take off and remove, any meter referred to in sub-section (1); and, except where the meter is so hired as aforesaid, all reasonable expenses of, and incidental to, such inspecting, testing, taking off and removing shall, if the meter is found to be otherwise than correct, be recovered from the consumer; and, where any difference or dispute arises as to the amount of such reasonable expenses, the matter shall be referred to an Electrical Inspector, and the decision of such Inspector shall be final:
Provided that the licensee shall not be at liberty to take off or remove any such meter if any difference or dispute of the nature described in subsection (6) has arisen until the matter has been determined as therein provided.
(5) A consumer shall not connect any meter referred to in sub-
section (1) with any electric supply-line through which energy is supplied by a licensee, or disconnect the same from any such electric supplyline but he may by giving not less than forty-eight hours notice in writing to the licensee required the licensee to connect or disconnect such meter and on receipt of any such requisition the licensee shall comply with it within the period of the notice.
(6) Where any difference or dispute arises as to whether any meter referred to in subsection (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; W.P.(C)No.18364/2014 17 but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity:
Provided that before either a licensee or a consumer applies to the Electrical Inspector under this sub-section, he shall give to the other party not less than seven days notice of his intention so to do.
(7) In addition to any meter which may be placed upon the premises of a consumer in pursuance of the provisions of sub-
section (1), the licensee may place upon such premises such meter, maximum demand indicator or other apparatus as he may think fit for the purpose of ascertaining or regulating either the amount of energy supplied to the consumer, or the number of hours during which the supply is given or the rate per unit of time at which energy is supplied to the consumer, or any other quantity or time connected with the supply:
Provided that the meter, indicator or apparatus shall not, in the absence of all agreement to the contrary be placed otherwise than between the distributing mains of the licensee and any meter referred to in sub-section (1):
Provided, also that, where the charges for the supply of energy depend wholly or partly upon the reading or indication of any such meter, indicator or apparatus as aforesaid, the licensee shall, in the absence of ail agreement to the contrary, keep the meter, indicator or apparatus correct; and the provisions of sub-section (4), (5) and 16) shall in that case apply as though the meter, indicator or apparatus were a meter referred to in sub-section (1).
Explanation. -A meter shall be deemed to be "correct" if it registers die amount of' energy supplied, or the electrical quantity contained in the supply, within the prescribed limits of error, and a maximum demand indicator or other apparatus referred to ill sub-section (7) shall be deemed to be "correct" if it complies with such conditions as may be prescribed in the case of any such indicator or other apparatus."
It is clear from a reading of Section 26 (6) of the erstwhile Electricity Act, W.P.(C)No.18364/2014 18 1910 that where a dispute was raised regarding the correctness of the meter either at the instance of the licensee or at the instance of the consumer, the matter had to be determined on reference by either party by the Electrical Inspector and the finding of the Electrical Inspector regarding the amount of electricity supplied that was short recorded by the meter or over recorded by the meter shall be final and binding on both sides. In other words, where the licensee had a case that the actual amount of energy supplied had not been recorded by the meter, the licensee was to make a reference to the Electrical Inspector and where the consumer had a case that the meter was over recording and the actual consumption was less than what is recorded in the meter, he had to make a reference to the Electrical Inspector and in both cases the determination by the Electrical Inspector of the actual amount of electricity consumed will be final and binding on both sides. Though the provisions of Regulation 42 of the Terms and Conditions of Supply, 2005 state about a reference to the Electrical Inspector, it does not set out a clear procedure as contemplated by the erstwhile provisions of the Electricity Act, 1910. At this juncture it would be useful to make reference to the judgment of the Supreme Court in M.P. Electricity Board and others v. Basantibai, (1988) 1 SCC 23 regarding Section 26 of the erstwhile Electricity Act, 1910 where it was held:-
"9. It is evident from the provisions of this section that a W.P.(C)No.18364/2014 19 dispute as to whether any meter referred to in sub-section (1) is or is not correct has to be decided by the Electrical Inspector upon application made by either of the parties. It is for the Inspector to determine whether the meter is correct or not and in case the Inspector is of the opinion that the meter is not correct he shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply during a period not exceeding six months and direct the consumer to pay the same. If there is an allegation of fraud committed by the consumer in tampering with the meter or manipulating the supply line or breaking the body seal of the meter resulting in not registering the amount of energy supplied to the consumer or the electrical quantity contained in the supply, such a dispute does not fall within the purview of sub-section (6) of Section 26. Such a dispute regarding the commission of fraud in tampering with the meter and breaking the body seal is outside the ambit of Section 26(6) of the said Act. An Electrical Inspector has, therefore, no jurisdiction to decide such cases of fraud. It is only the dispute as to whether the meter is/is not correct or it is inherently defective or faulty not recording correctly the electricity consumed, that can be decided by the Electrical Inspector under the provisions of the said Act.
10. In the instant case it appears from the report of the Assistant Engineer of the State Electricity Board that one phase of the meter was not working at all, so there is undoubtedly a dispute as to whether the meter in question is a correct one or a faulty meter and this dispute has to be decided by the Electrical Inspector whose decision will be final. It is also evident from the said provision that till the decision is made no supplementary bill can be prepared by the Board estimating the energy supplied to the consumer, as the Board is not empowered to do so by the said Act. It is pertinent to refer in this connection to the observations made in the case of Gadag Betgiri, Municipal Borough, Gadag v.
Electrical Inspector [AIR 1962 Mys 209] as follows:
"What the Inspector may decide under sub-section (6) is whether or not the readings obtainable from the meter are accurate and whether the meter is faulty or mechanically defective, producing erroneous readings. That is the limited adjudication which, in my opinion, an Inspector or other authority functioning under sub- section (6) may make under its provisions....W.P.(C)No.18364/2014 20
In my opinion, the legislative intent underlying Section 26(6) of the Act is similar. The only question into which the Inspector or other authority functioning under that sub-section might investigate is, whether the meter is a false meter capable of improper use or whether it registers correctly and accurately the quantity of electrical energy passing through it. If in that sense, the meter installed by Respondent 2 in this case was a correct meter as it undoubtedly was and as it has been admitted to be, the fact that Respondent 2, even if what the petitioner states is true, so manipulated the supply lines that more energy than what was consumed by the petitioner was allowed to pass through the meter, would not render the meter which was otherwise correct, an incorrect meter."
11. This decision was followed in M.P. Electricity Board, Jabalpur v. Chhaganlal [AIR 1981 MP 170 : 1981 MPLJ 417] where it has been observed:
"Where an electric meter is not registering correct consumption of energy not because there is any defect in the meter but because the wiring is defective Section 26(6) will not be attracted and the meter not being defective the question of arbitration by Electrical Inspector will also not arise."
12. A contrary view was however taken in the case of Abdul Razak v. M.P. Electricity Board [1982 MPLJ 22 (NOC)] where it has been held that:
"... about the fittings on the meter and tampering them in such a manner that the reading of the energy would not be correct, such a dispute in view of the language of Section 26(6) read with Rule 3 of Schedule VI of the Electricity Act squarely falls within the jurisdiction of the Electrical Inspector."
13. We are, however, unable to accept this contrary view as it is obvious from the provisions of Section 26 sub-section (6) of the said Act that the dispute whether a meter is correct or faulty would come under the said provisions and not the dispute regarding tampering of meter. In our view, the view taken about the scope of Section 26(6) in the decisions cited above are correct. In the instant case the dispute relates to whether the meter is a correct one or it is faulty not recording W.P.(C)No.18364/2014 21 the actual energy consumed in running the oil mill of the respondent. So this dispute squarely falls within the provisions of the said Act and as such it has been rightly found by the High Court that it is the Electrical Inspector who alone is empowered to decide the dispute. If the Electrical Inspector comes to the finding that the meter is faulty and due to some defect it has not registered the actual consumption of electrical energy, then the Inspector will estimate the amount of energy consumed and will fix the amount to be paid in respect of such energy consumed within a period not exceeding six months. Appellant 1 is not competent pending the determination of this dispute by the Electrical Inspector to issue the impugned notice threatening disconnection of supply of electricity for non-payment of supplementary bill prepared and sent by it. The Board is also not competent to prepare and send a supplementary bill in respect of energy consumed by the respondent from the one phase which stopped functioning and did not record any consumption of energy. For the reasons aforesaid we affirm the order of High Court and dismiss the appeal without costs."
It is clear from a reading of the provisions of Section 26 of the erstwhile Electricity Act, 1910 and the decision rendered by the Supreme Court in Basantibai (supra) that where there is a dispute regarding the correctness of a meter or associated equipment it would not be appropriate for the licensee to determine for itself that a certain amount of energy that had been supplied to the consumer had not been recorded by the meter. This amounts to the licensee being a judge in its cause, and in my view any procedure which contemplates the determination of such a question by the licensee without reference to any independent authority would not be justified. Therefore in my view, the Regulatory Commission must contemplate the framing of a definite procedure for determining the actual amount of electricity supplied in cases like these, W.P.(C)No.18364/2014 22 where the licensee disputes the correctness of the meter either on account of a defect in the CT or on account of a defect in the meter or where the consumer disputes that the meter is recording more than the actual amount of energy supplied to him. This is necessary as the provisions of the 2014 Code also do not set out any procedure akin to the procedure contemplated by Section 26(6) of the erstwhile Indian Electricity Act, 1910. The provisions of Section 26 (6) of the erstwhile Electricity Act, 1910 can act as a guide for framing suitable regulations.
7. The decision of the Supreme Court in Seetaram Rice Mill (supra) concerns a proceeding under Section 126 of the 2003 Act. It is admitted in the facts of the present case, that the impugned demands are not ones issued under Section 126 of the 2003 Act. Therefore, the law laid down in the said judgment of the Supreme Court has no application to the facts and circumstances of the present case. The decision of this Court in West Fort Ayurveda Hospital (supra) is also not applicable to the facts and circumstances of the case. That was a case where the consumer had initially approached the CGRF and this Court found that, against the order of the CGRF, the petitioner (in that case) had an effective remedy before the Ombudsman. The decisions of this Court in Southern India Marine Products (supra) and Anappuram Rubber Products (P) Ltd. (supra) take the view that where the meter did not W.P.(C)No.18364/2014 23 record the correct amount of electricity supply on account of a defect in the wiring that defect is not to be construed as a defect which would require the Board to follow the procedure contemplated by Section 26 of the Indian Electricity Act, 1910. In the facts of the present case, the meter had allegedly failed to record the actual amount of consumption on account of a defect in the CT. As per Regulation 2(p) of the Central Electricity Authority (Installation and Operation of Meters) Regulations 2006, 'Meter' includes a Current Transformer (CT), Voltage Transformer (VT) or Capacitor Voltage Transformer (CVT). That apart, the decisions of the Supreme Court in Atma Steels (supra) & Tata Hydro-Electric Power Supply Co. Ltd. (supra) clearly hold that since the CT is part of the metering system, a defect in the CT will also have to be treated as a defect in the meter. Therefore, the decisions in Southern Indian Marine Products (supra) and Anappuram Rubber Products (P) Ltd. (supra) do not aid the case of the Kerala State Electricity Board before this Court. It is clear from the facts of the present case that, after the initial inspection in March 2014, a short assessment bill was issued for the period from July 2013 to February 2014. It is also admitted that the data obtained while decoding the meter was available only from 10.11.2013. The only justification for issuing short assessment bills for the period from July 2013 was that there was a fall in consumption from that month onwards. W.P.(C)No.18364/2014 24 The case of the petitioner that there was a fall in consumption because the business in which the petitioner was engaged, was seasonal, does not appear to have been considered at the time of issuance of the short assessment bill from July 2013. However, I do not intend to interfere with the short assessment bills issued for the period from July 2013 till February 2014 for a total sum of Rs.4,09,115/- (Exts.P4 and P5) as it does not appear that the petitioner had objected to the same. He had only availed instalments for remitting the amount. After paying the first instalment of the above bill, the alleged defect in the CT was rectified as is evident from Ext.P6 Mahazar. The petitioner objected to further bills issued for short assessment when the respondents took the stand, after an inspection in June 2014, that the meter is still not recording consumption in one phase. The short assessment bills issued after the initial demands in Ext.P.4 & P.5 cannot be justified for more than one reason. The reasons which compel me to take such a view are the following:-
a) When a consumer raises an objection that there cannot be any demand on the basis of short assessment, there cannot be a unilateral assessment of the amount of electricity that has escaped recording by the meter by the Kerala State Electricity Board (licencee), especially in the light of the law W.P.(C)No.18364/2014 25 laid down by the Supreme Court in Basantibai (supra) where the Supreme Court has referred to the purpose and intent of Section 26(6) of the erstwhile Indian Electricity Act, 1910.
Though the provisions of the erstwhile Indian Electricity Act, 1910 are no longer applicable and have been repealed by the provisions of the 2003 Act, the law laid down in Basantibai (supra) continues to hold good for the reason that there cannot be a unilateral assessment by the licensee of the amount of electricity that has escaped metering especially in a case like this where the provisions of Section 126 of the 2003 Act are not attracted and there is no allegation of any malpractice;
b) The contention that there was no defect in the meter and the defect was only in the CT cannot be accepted for the reason that the provisions of Regulation 2(p) of the Central Electricity Authority (Installation and Operation of Meters) Regulations 2006 clearly indicate that the meter includes the CT;
c) It is clear that though the provisions of Regulations 19 and 24 of the 2005 Code deals with the issue of meter reading and disputes in the bill, no provision appears to have W.P.(C)No.18364/2014 26 been made for reference to an independent authority when the consumer objects to a short assessment bill which has been issued on the basis that there is a defect in the meter or in the CT. This appears to be a serious lacuna in the law. The provisions of Regulation 42 of the Kerala State Electricity Board Terms and Conditions of Supply, 2005 appear to make a provision similar to that contained in Section 26(6) of the erstwhile Indian Electricity Act, 1910 and makes provision for reference to the Electrical Inspector. However, it stops short of setting out a clear and definitive procedure as contemplated by the provisions of Section 26(6) of the erstwhile Indian Electricity Act, 1910;
d) Regulation 125 of the 2014 Code (which are not applicable to the facts of the present case) dealing with the procedure for billing in the case of defective or damaged meter contemplate that while determining the amount of electricity that has allegedly escaped metering the licensee must have due regard to any evidence given by the consumer about conditions of working and occupancy of the concerned premises during the period in question and which might have a bearing on the energy consumption while computing the W.P.(C)No.18364/2014 27 average consumption which forms the basis of the billing for the disputed period. In the facts of the present case, the petitioner has a definite case that the business in which he was involved in was seasonal. Though there is no provision similar to Regulation 125 of the 2014 Code in the 2005 Code, even without such provision, it was incumbent on the authorities to consider this aspect without mechanically assuming that ⅓ rd of the consumption has not been recorded on account of the defect in the CT. This aspect has not been considered in any of the impugned demands raised on the petitioner.
e) The provisions of Regulation 19 (2) of the 2005 Code indicate that the meter or the CT should have been immediately replaced on coming to know that it was defective. In the facts of the present case, the defects were finally rectified only after the directions issued by this Court on 22.9.2014. Therefore, there is clear negligence on the part of the authorities in replacing the CT after the defect was noticed for the first time in the month of March 2014.
8. Therefore, the demands raised on the petitioner after the initial period of short assessment from July 2013 to February 2014 are W.P.(C)No.18364/2014 28 liable to be quashed. As already indicated, I am not inclined to quash the demands from July 2013 to February 2014 as the petitioner had not objected to the said demands and the objection was raised for the first time only after short assessment bills were raised on the petitioner for other periods as well. This writ petition is allowed in part. The short assessment demand for a sum of Rs.1,26,423/- reflected in Ext.P13 and any other demand on account of short assessment raised on the petitioner for the consumption for any period after February 2014 will stand set aside. It is clarified that, the petitioner will be liable for all other demands including any demand on account of revision of tariff. If any amounts have been paid in excess by the petitioner on account of the relief granted to him under this judgment, the said amount shall be refunded to him or adjusted against any future demands.
9. The Registry shall communicate a copy of this judgment to the Kerala State Electricity Regulatory Commission. The Commission shall take note of the observations in paragraph 6 above and consider whether the provisions of the Kerala Electricity Supply Code, 2014 have to be suitably amended.
The writ petition is ordered accordingly.
Sd/-
GOPINATH P. JUDGE DK W.P.(C)No.18364/2014 29 APPENDIX OF WP(C) 18364/2014 PETITIONER EXHIBITS EXT.P1. TRUE COPY OF THE MONTLY BILLS ISSUED TO THE PETITIONER FOR THE PERIOD FROM 1/4/2013 TO 4/3/2013.
EXT.P2. TRUE COPY OF THE MAHAZER DATED 5/3/2014 BY APTS.
EXT.P3. TRUE COPY OF THE DEMAND NOTICE DATED 13/3/2014.
EXT.P4. TRUE COPY OF THE BILL DATED 13/3/2014.
EXT.P5. TRUE COPY OF THE INSTALLMENT BILL DATED 17/3/2014.
EXT.P6. TRUE COPY OF THE MAHAZER DATED 19/3/2014.
EXT.P7. TRUE COPY OF THE BILL DATED 4/4/2014.
EXT.P8. TRUE COPY OF THE BILL DATED 5/5/2014.
EXT.P9. TRUE COPY OF THE BILL DATED 4/6/2014.
EXT.P10. TRUE COPY OF THE SITE MAHAZER DATED 5/6/2014.
EXT.P11. TRUE COPY OF THE BILL DATED 19/6/2014.
EXT.P12. TRUE COPY OF THE OBJECTION DATED 26/6/2014 EXT.P13. TRUE COPY OF THE BILL DATED 4/7/2014.
EXT.P14. TRUE COPY OF THE BILL DATED 9/7/2014.
RESPONDENTS EXHIBITS
EXT.R-1(a) TRUE COPY OF THE DETAILS DECODED FROM
THE METER INSTALLED IN THE PREMISES
OF THE PETITIONER
EXT.R-1(b) A TRUE COPY OF THE SUPPLY DATA
DECODED FROM THE METER HISTORY OF THE
METER INSTALLED IN THE PETITIONERS
PREMISES
EXT.R-3(a) COPY OF THE CALCULATION DETAILS OF
THE ASSESSMENT ON FIRST INSPECTION OF
THE METER OF THE PETITIONER BY APTS
EXT.R-3(b) COPY OF THE CALCULATION DETAILS OF
THE ASSESSMENT ON SECOND INSPECTION
OF THE METER OF THE PETITIONER BY
APTS