Sureka Modern Rice Mill Private ... vs The West Bengal State
2023 Latest Caselaw 1616 Cal

                      In the High Court at Calcutta

                    Constitutional Writ Jurisdiction

                              Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                          W.P.A. No.17828 of 2019

                Sureka Modern Rice Mill Private Limited
                                    Vs.
                          The West Bengal State
                Electricity Distribution Company Limted
                                and others

     For the petitioner                  :    Mr. Amritam Mondal,
                                              Ms. Ananya Chakraborty,
                                              Ms. Shipra Naskar


     For the WBSEDCL                 :        Mr. Srijan Nayak,
                                              Mr. Sujit Sankar Koley

     Hearing concluded on            :        02.03.2023

     Judgment on                     :        13.03.2023



     Sabyasachi Bhattacharyya, J:-



1.

The petitioner, a rice mill, is a consumer under the West Bengal State

Electricity Distribution Company (WBSEDCL). Although the petitioner

has paid all electricity bills on a regular basis, on March 5, 2018, the

WBSEDCL intimated the petitioner that the bills for the month of

November, 2017, December, 2017 and January, 2018 were wrongly

generated due to alleged defective Potential Transformer (PT) circuit

developed on and from November 3, 2017, resulting in partial demand

as per consumption in the meter during the said period.

The WBSEDCL demanded that the dues outstanding for the said

period of three months amounted to ₹ 17, 03, 072/-.

2. The petitioner rebutted such claim by a reply dated March 9, 2018.

However, subsequent disconnection notices were sent to the petitioner

on the ground of non-payment of such alleged outstanding dues. This

prompted the petitioner to prefer the instant challenge against the

alleged rectified outstanding bill.

3. The petitioner disputes the allegation that the meter in question was

defective at any point of time. It is argued that in the event the

circuit/meter was defective, there was no justification for the

WBSEDCL to chargeoutstanding amounts for the period from

November 2017 to January 2017 but omitting the months of February

2018 and March 2018 while raising the revised bill, although the

defective meter was alleged to be replaced only in April, 2010.

4. It is further submitted that the WBSEDCL never inspected the meter

for the purpose of ascertaining whether it was actually defective and

that the alleged replacement of the same by the WBSEDCL was not

done with any notice to the petitioner.

5. Learned counsel appearing for the petitioner submits that intimation

is required to be given to the consumer in case a defective

meter/circuit is changed in terms of clauses 3.8.3 and 3.6.1 of

Regulation 55 of the West Bengal Electricity Regulatory Commission

(for short, "the WBERC"). Such provisions were not complied with in

the present case.

6. From August 2017 onwards, there was a flood in the area, due to

which the paddy used for the purpose of the rice mill rotted. As such,

during the period in question, rice production took a toll, resulting in

less consumption of electricity than the corresponding months of the

previous year and/or the previous months. However, such fact was

not considered by the WBSEDCL in arbitrarily coming to the

conclusion that the meter reading for such periodwas faulty.

7. Learned counsel for the petitioner next cites Clause 11.1 of Regulation

57 of the WBERC, which specifically provides for the procedure in

case of meters being detected to be defective.In such case, the

distribution licensee has to install a testing meter for a particular

period for the purpose of ascertaining the condition of the meter,

which has not been done in the present case.

8. Learned counsel also relies on the Draft (Rights of Consumers) Rules,

2020 framed by the Ministry of Power, Government of Indiaand

published on September 9, 2020. Rule 7 thereof provides for testing of

meters, if found to be defective.

9. Learned counsel for the petitioner next cites certain judgements in

support of his contention that the due procedure in such cases was

not conformed to by the WBSEDCL.

10. First, learned counsel cites AIR 1985 MP 70 (Smt. Basantibai v. MP

Electricity Board, Indore and Ors.) where a Division Bench of the

Madhya Pradesh High Court held that when a difference or dispute

arises regarding whether an electricity meter was defective, the same

has to be referred to the Electrical Inspector.

11. Learned counsel next relies on a Single Judge-Bench decision of the

Delhi High Court, reported at 2008 (103) DRJ 107(Vinod Kumar Jain v.

Bses Rajdhani Power Ltd.) where in case of the dispute the High Court

directed the meter to be tested.

12. Learned counsel for the petitioner then places reliance on Nirmala

Metal Industries v. KSEB [2006 (3) KLT 465]. A Division Bench of the

Kerala High Court held therein that if a consumer entertained any

doubt that the meter is defective, not the Board the consumer can get

the meter tested by the Electrical Inspector.

13. Again, in Bombay Electricity Supply & Transport Undertaking v.

LAFFANS (INDIA) (P) Ltd. and Anr., reported at (2005) 4 SCC 327, the

Supreme Court held that although the meters were said to be

incorrect and had been removed and replaced by the licensee, the

most material evidence being the meter itself had been lost by the

licensee in removing the incorrect meter. The licensee cannot be

permitted to take advantage of its own acts and omission - the acts of

removing the meter and the omission to make a reference to the

Electrical Inspector.

14. Lastly, learned counsel for the petitioner places reliance on Mrityunjay

Pani and Anr. v. Narmada Bala Sasmal and Anr. (AIR 1961 SC 1353)

for his proposition that convenience cannot accrue to a party from his

own wrong.

15. In reply, learned counsel for the WBSEDCL submits that the

established method, as provided by the WBERC Regulations, is that

the average daily of the corresponding months of the previous year or

for three months before or after the detection of the defect in the meter

is the basis of calculation in case of defective meters.

16. It is further argued that the defect was cured by way of replacing the

meter and, as such, the petitioner cannot take the plea that the

WBSEDCL did not take corrective measures.

17. Learned counsel places reliance on Clauses 3.5 and 3.6 of Regulation

46 to submit that the Regional Grievance Redressal Officer (RGRO) is

the competent authority to decide on meter disputes. It is argued that

the RGRO is a technical person, competent to deal with such disputes.

18. Learned counsel for the WBSEDCL argues that no counter was filed

by the petitioner to the Draft Settlement Order passed by the RGRO.

As such, as per the prevailing regulations, the same became final. In

support of such contention, learned counsel refers to Clause 7 of

Regulation 56 of the WBERC.

19. Inasmuch as non-service of prior notice to the petitioner is concerned,

learned counsel submits that Clause 8 of Regulation 55 gives access

to the licensee to the meter and no notice is required to be given to the

consumer in order to replace a meter.

20. Insofar as the petitioner's argument regarding reference of the meter

to an Electrical Inspector goes, it is argued that the said provision

existed in the Electricity Act, 1910, on which the cited judgements

were rendered. However, upon the coming into force of the Electricity

Act, 2003, there is no existence of an Electrical Inspector. The RGRO

himself, it is submitted, is a technical authority and is fully competent

to decide issues regarding defective meters.

21. As such, it is argued that the WBSEDCL acted well within its

jurisdiction and authority to assess and claim the outstanding dues

on the basis of calculation as per law, regarding the period for which

the meter was defective.

22. A scrutiny of the cited judgments would be of benefit in the present

context. The judgments inSmt. Basantibai (supra) and Bombay

Electricity Supply (supra) were rendered by the Madhya Pradesh High

Court (Indore Bench) and the Supreme Court respectively, both on the

basis of Section 26(6) of the Electricity Act, 1910. The provisions

regarding reference to an Electrical Inspector have been done away

with in the present Act of 2003, under which the instant case is

governed. Hence, the said two judgments cannot be binding

precedents for deciding the instant lis.

23. The Division Bench of the Kerala High Court, in Nirmala Metal

Industries (supra), also placed reliance on pre-2003 Act provisions and

is not applicable to the present case.

24. The proposition laid down in Mrityunjay Pani (supra) is trite law. No

one can take advantage of his own wrong. In the said context, we are

to test whether the WBSEDCL did so.

25. In Vinod Kumar Jain (supra) also, the learned Single Judge resorted to

the Delhi Regulations and the Electricity Rules, 1956, which are not

applicable to the present case, which is governed by the Electricity

Act, 2003 and the West Bengal Regulations. However, the relevant

clauses of the West Bengal Regulations are in the same tune as the

said Rules.

26. Notification 57 of the WBERC brings in amendments to Regulation 46

of 2010 and substitutes Clause 11.1 of the principal Regulations

which provides for replacement of faulty meters/metering system

where supply is not affected, precisely as in the case at hand. For

rural areas, as per the said regulation, the meter shall be inspected

within 7 working days from the date of receipt of the complaint. In

case the meter/metering system is found otherwise faulty than being

burnt out, it shall be tested and the same shall be replaced/rectified

within 30 days from the date of inspection.

27. Clause 3.8.1 of Regulation 55 provides for provisional charging at the

prevailing tariff in case of unusual variation in meter reading for a

billing cycle, on the basis of average consumption for the prior six

months or consumption of similar period of the last year.

28. However, inClause 3.8.3 of Regulation 55 of the WBERC, it is

stipulated that in case the meter reading shows unusual consumption

in the next billing cycle also, the consumer shall be informed in

writing and shall be advised to clarify the reason for sudden change in

consumption by the licensee. If the explanation given by the consumer

is found to be satisfactory by the licensee, the consumer shall be

charged for actual consumption of both the billing cycles. If, however,

the explanation given by the consumer is not found to be satisfactory

by the licensee or no explanation is given by the consumer or if the

meter is suspected to be defective either by the consumer or by the

licensee, the licensee shall keep a test meter connected in series with

the existing meter for a reasonable period to check the correctness of

the meter to the satisfaction of both the licensee and the consumer.

Only if, on the basis of test results, the existing meter is found to be

defective, the same shall be replaced by a tested correct meter by the

licensee.

29. Such provisions have been given a go-bye on the part of the

WBSEDCL in the present case. Although it is alleged that the

WBSEDCL replaced the defective meter, there was no prior notice to

the consumer/petitioner alleging the defect in the metering system. In

the absence of such notice, any test meter being connected, or any

satisfaction of the licensee as to the correctness of the meter, the

provisions of Clause 3.8.3 of Regulation 55 are contravened, thereby

rendering the entire exercise futile and unlawful.

30. That apart, the provisions of the amended Clause 11.1 of Regulation

46 in respect of testing the meter/metering system has also been

flagrantly contravened in the present case, despite the dispute arising

in a rural area as envisaged in the said clause.

31. Although it is argued by the WBSEDCL that the RGROs are

technically equipped to decide meter disputes, in the present case

there is no reflection at all in the order of the RGRO of having tested

the meter or complied with the provisions as discussed above with

regard to the testing of the allegedly defectivemeter. No test meter as

contemplated in clause 3.8.3 of Regulation 55 was connected, in

series or otherwise, in the present case, nor was any test held or the

petitioner's satisfaction as to correctness or otherwise of the meter

recorded.

32. Neither the RGRO nor the Ombudsman returned any finding as to the

condition of the meter being tested prior to the same being allegedly

replaced.

33. The reliance by learned counsel for the WBSEDCL on Clause 3.6.1 of

Regulation 55 is entirely misplaced. The same provides that if, on

inspection by the distribution licensee on its own or on the basis of a

complaint of the consumer, the meter of the consumer is found

defective or defunct for a reason other than theft of electricity and no

theft of energy can be reasonably suspected, the consumer shall be

provisionally charged for such consumption of electricity for the period

during which the meter has been suspected to have been defective or

defunct, on the basis of average consumption and other parameters

for the preceding and/or succeeding three months or during any

previous and/or subsequent period that may be reasonably

comparable before the meter has been found to be defective or

defunct.

34. In the present case, the petitioner has made out a specific case that

there was a flood in the area in the month of August, 2017. In fact, a

specific report of the concerned Block Development Officer (BDO) has

been annexed to the writ petition which clearly indicates that there

was a flood in the area at the relevant juncture, which caused the

paddy used as raw material in the Rice mill to rot. As such, it is

reasonably argued by the petitioner that the consumption of electricity

would be considerably low in the succeeding few months, since the

rotted and soaked paddy had to be thrown out, bringing down the

production activity in the rice mill and, along with it, the electricity

consumption.

35. Such contention was brushed aside in a cryptic manner by the

authorities on the assumption that flood affected the region only for a

month, overlooking the obvious consequences thereof to a rice mill

such as the petitioner's.

36. The RGRO's order was utterly cryptic, without a single line of

reasoning. Even if he/she was a technical person, the RGRO did not

bother to decide on merits the cardinal question as to whether the

meter was at all defective in the relevant period.

37. Further, the RGRO failed to take into consideration that the written

instruction of the Block Development Officer to the petitioner as well

as two other rice mills was itself dated August 29, 2017 (annexed at

page 169 of the writ petition). In the said communication, the BDO

specifically found that the foodgrains stuffed in the mills were mostly

rotten and were breaking out foul odour, which might cause pollution

any time in the surrounding locality. Hence, the petitioner and the

other mills were instructed to dispose of the rotten foodgrains from the

mills immediately. It is pretty obvious that it could reasonably have

taken the rice mills a few months' time to recover from such loss by

procuring fresh foodgrains/paddy after getting rid of the rotten

foodgrains. Such minimum gestation period ought to have been taken

into consideration for the purpose of assessing the period during

which the petitioner was under-producing, in order to ascertain the

veracity of less consumption of electricity during the relevant period of

three months succeeding the flood.

38. Surprisingly, in spite of having substantially recorded the arguments

of the petitioner, the RGRO did not take the trouble of discussing or

deciding the most germane questions involved, as to the dispute

regarding the PT circuit being defective at all. Instead, the

'Observation' part of the RGRO comprised of a single sentence to the

effect that the petitioner did not pay the outstanding bill amount as

per the regenerated bills.

39. Thus, there was no adjudication at all in the first place in the Draft

Settlement Order for the petitioner to have "consented" to or

"admitted" by non traverse. As such, the non-filing of any further

objection to such a non-existent adjudication could not tantamount to

the petitioner's admission of the contents of the same.

40. In view of the petitioner having disputed the bills as well as the very

allegation of the PT circuit being defective, the onus had shifted on the

WBSEDCL to prove its case, which the latter miserably failed to

discharge.

41. There was no basis at all for the regeneration of the bills for November

2017 to January 2018, that too, on the specific allegation that the PT

circuit was defective from a particular date, that is, November 3, 2017.

42. Hence, the only possible outcome of the consideration by both the

forums could be a setting aside of the regenerated bills simpliciter,

without directing further regeneration, as the payment of current

electricity charges for the three months in issue has already been

completed by the petitioner previously.

43. The RGRO's order, being devoid of reason, cannot but be set aside in

any event. Hence, the Ombudsman, who is not a technical person

trained to decide such a dispute, became the first forum of

adjudication for all practical purposes, thereby depriving the petitioner

of a forum.

44. Now let us consider some of the relevant findings of the Ombudsman.

45. The Ombudsman's order clearly records that, despite clear

instructions of the forum in terms of the Order dated May 16, 2019 to

produce the report of the inspection as alleged to have been conducted

by the WBSEDCL on March 17, 2018, in which the malfunctioning of

the meter was detected, the WBSEDCL, without producing the said

inspection report, has submitted copy of the inspection report

regarding re-commissioning of the PT circuit in the service connection

of the complainant on April 6, 2018. No explanation was forthcoming

from the WBSEDCL for withholding such best evidence, if existent.

46. It was also observed by the Ombudsman that the accuracy of the

meter should have been tested by the local office of the WBSEDCL

before reaching the conclusion that the PT circuit of the installed

meter of their service connection became defective on November 3,

2017, as per the Regulatory provisions, prior to replacement of the

allegedly defective PT circuit, which has not been done.

47. In his conclusive observations, the Ombudsman unambiguously held

that the WBSEDCL has failed to established with supporting

documents that they actually conducted the inspection on March 17,

2018 to ascertain the status of functioning of the meter of the service

connection of the complainant which necessitated the regeneration of

the original bills for the three months from November 2017 to January

2018.

48. It was further held that even if such malfunctioning was detected,

then also the accuracy of the meter should have been tested by

placing a check meter in series with the existing meter for a

reasonable period keeping the complainant informed in conformity

with the Regulatory provisions and the meter, if found defective,

should have been replaced subsequently keeping the complainant

duly informed, which has not been done. Hence, it was further

observed, the actions taken by the WBSEDCL for replacement of PT

circuit of the meter without conducting testing of the accuracy of the

meter as per Regulatory provisions are to be considered as unjustified

and in violation of the Regulatory provisions. Since the alleged

defective PT circuit has also been replaced, there is no scope of

ascertaining the accuracy of the meter at the relevant point of time

which necessitated the regeneration of bills for the said three months,

which has been disputed by the complainant/petitioner. Accordingly,

the only logical conclusion which can be drawn, in the opinion of the

Ombudsman, is that the WBSEDCL has failed to establish the

justification and correctness of the regenerated bills for the period

from November 2017 to January 2018 as per Regulatory provisions on

the basis of supporting documents. Those bills, are, therefore to be

cancelled. However, the Ombudsman misdirected himself in directing

further regeneration of the erroneously regenerated bills for the three

months from November 2017.

49. As such, the conclusion arrived at by the Ombudsman was contrary

to his previous observations and findings. Hence, the order of the

Ombudsman directing further regeneration of bills for the relevant

period cannot be sustained.

50. Accordingly, WPA 17828 of 2019 is allowed on contest, thereby setting

aside the order of the Ombudsman to the extent that the same

directed the WBSEDCL to further regenerate bills for the period from

November 2017 to January 2018 and setting aside the order of the

RGRO as a whole. The regenerated bills impugned herein are hereby

cancelled and quashed. Since the petitioner has already paid the

current electricity charges for the said period as per regular bills

raised by the WBSEDCL, no further amount need be paid by the

petitioner for the period-in-question.

51. There will be no order as to costs.

52. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )