R. Kapur vs Delhi Vidyut Board
2002 Latest Caselaw 432 Del

JUDGMENT

Mahmood Ali Khan, J.

1. This civil writ petition is filed under Article 226 of the Constitution of India for a direction to the defendant to grant rebate in the billing of the electricity consumed by the petitioner and for refund of Rs. 508.57, which was paid as cost of the meter.

2. The facts are simple. The petitioner is residing in house No. 70, Paschimi Marg, Vasant Vihar. Two electricity meters were installed for supplying electricity to this house. Electricity meter K.No.RK584507 was supplying electricity to the ground floor and electricity meter K.No.RK584061 was supplying electricity to the first floor of the house. In August, 1989 the first meter was damaged. On a complaint being made the staff of the respondent. DESU now known as DVB, connected the line of the damaged electricity meter to the second meter. As a result, the electricity consumed on the ground floor was being billed as per meter reading of the second meter. As demanded by the DESU, a sum of Rs. 508.57 was paid as cost of the new meter but the meter was not replaced for over 6 years. It was provided on 25.1.1996. In the meantime all the bills of the electricity were duly paid as per the reading of the second meter (which was supplying electricity to the first floor). Yet the respondent continued to bill the petitioner in respect of the second electricity meter also on load basis. It continued to issue such bills inspite of protest and representation made by the petitioner. At last an application was moved before Bijli Adalat for refund of Rs. 508.57 and withdrawal of the demand in respect of the damaged meter. On 5.9.1997 Bijli Adalat directed the withdrawal of entire demand raised in respect of the damaged meter. The grievance of the petitioner is that while the damaged meter was not replaced from September, 1989 to January, 1996, the electricity consumed in the ground floor was charged as per meter reading of only one meter. It was stated that the pattern of consumption of the electricity on the ground floor and the first floor showed that the consumption had always ranged between 500 units and 1000-1500 units in each floor. The billing for the electricity used in the ground floor was chargeable at a lower rate for the first 300 units as per tariff rate but no such lower tariff rate was allowed and the billing was done at the maximum rate of Rs. 3 per unit for the total consumption of the damaged meter as per the reading of the second meter. The petitioner approached Bijli Adalat again in November, 1997 which declined to interfere. It rather observed that as per tariff, the electricity supplied to one premises cannot be used in another premises and if it was done, the mis-use charges were leviable which, in the facts and circumstances of the case, were not levied. Thereafter, the petitioner approached the Chairman of the Respondent. The petitioner was advised that he had option to raise the grievance before the conciliatory court. Accordingly, on 15.7.1998 he filed an application before the conciliatory court, which was replaced by the permanent Lok Adalat. The Lok Adalat on 04.2.2000 rejected the application observing that there was no possibility of an amicable settlement of the dispute between the parties. According to the petitioner, the responsibility of maintaining the meter was on the respondent. Section 26 of the Indian Electricity Act and Rule 57 framed there under enjoined upon the respondent to make regular checks on the electricity meter. There was no justification for the respondent for not changing the damaged meter for over 6 years in spite of the full knowledge and repeated requests. There was no question of any mis-use of the electricity by the petitioner since the electricity lines of the defective meter were connected to the second meter by the staff of the respondent which came to attend the complaint. The petitioner could not be punished for negligence and inaction of its staff in not replacing the damaged electricity meter for a long time causing substantial financial loss to the petitioner as he was deprived of the lower tariff rate for the first 300 units of the electricity consumed on the ground floor. Hence, the petition.

3. On noticing, Mr. S.K. Chaudhary, Executive Engineer of the respondent DVB filed a counter affidavit in which he repudiated the claim of the petitioner. He deposed that the meter in question was got damaged and its load was transferred to the other meter that was alive by the petitioner himself without the knowledge of the respondent. The bills on the damaged meter were wrongly raised, so they were later on withdrawn in September, 1997 in compliance of the decision of the Bijli Adalat. The concessional slab system is applicable only when separate meters exist and alive and record regular consumption of electricity as per tariff provision. The Bijli Adalat or permanent Lok Adalat have rightly turned down the claim of the petitioner for concessional slab of tariff. The mis-use of the live meter where electricity was being used in both the floors has not been levied as per the decision of the Bijli Adalat. The total concessional slab rate on one meter is impermissible. The total consumption of the electricity was properly recorded in the meter and the concessional slab rate was not clearly available to the consumer. Refund of the cost of the meter could also not be allowed as the meter has been installed. It was contended that the writ petition was liable to be dismissed.

4. In the rejoinder to the counter affidavit, the petitioner reiterated his own allegations and denied those of the respondent.

5. I have heard the petitioner in person and counsel for respondent DVB at length.

6. The grievance of the petitioner is that the electricity meter installed in the ground floor was damaged in August, 1989. The staff of the respondent, who attended to the complaint, without his consent had connected the wires of the damaged meter to the second live meter on the assurance that the damaged meter would be replaced soon. Despite his writing several letters and complaints, the damaged meter was not replaced, which was the duty of the respondent to do so within seven days. The damaged meter was ultimately replaced only in January, 1996. Consequently, he submitted, the electricity consumed at the ground floor continued to be billed as per the meter reading of the second live meter which used to supply electricity to the first floor. He argued that as per tariff, he was entitled to concessional rate for the first 300 units consumed on the ground floor which he was deprived of when he was forced to make the payment of the electricity consumed on the ground floor at the higher tariff rate of Rs. 3 per unit. It was submitted that the pattern of consumption of the electricity on the ground floor and the first floor had shown that the electricity consumption on each floor ranged between 500 units to 1000-1500 units. As such, the respondent should have billed the petitioner for the electricity consumed at the ground floor at concessional rate tariff for the first 300 units in addition to a similar rate charged for electricity used in the first floor. In other words, he submitted that the respondent has over-charged the petitioner by billing the entire consumption of the two meters at the maximum rate of Rs. 3 per unit. He urged that the respondent should refund the amount which had been charged in excess before the first meter was replaced. He further submitted that the electricity meter was to be provided by the DVB for which it was also to charge hire rent but he was made to pay Rs. 508.57 for replacement of damaged meter, therefore, this amount was also illegally recovered from him and should be refunded.

7. It was also argued by the petitioner that the Bijli Adalat has wrongly observed that the petitioner was misusing the electricity or was liable to be billed for it. According to him, the word 'mis-use' was not defined in Indian Electricity Act or the rules framed there under and this word was defined in the Electric Tariff which came into effect from 01.3.1991. In accordance with this definition, feeding from any live connection to any connection lying disconnected due to any reason in a building where there is more than one connection was mis-use. But in the instant case, he argued, there was no disconnection of electricity connection in this building. It was only a damaged meter which was to be replaced and the live connection was connected to the second live meter of the building by the irresponsible staff of the respondent of their own in order to ensure continued supply of electricity to the ground floor till they were able to replace the electricity meter.

8. Controverting the argument of the petitioner, counsel for respondent DVB argued that the tariff rules do not allow bifurcation of the electricity unit consumed by the petitioner through a meter which was in working order and billing the petitioner at concessional rate of tariff in respect of some units on the assumption that those were used on the ground floor. It is submitted that the Bijli Adalat has already granted relief to the petitioner when he approached it for withdrawal of the wrong billing in respect of the damaged meter. He submitted that the connecting wires of the damaged meter to the second live meter was in contravention of the Electricity Act and the rules framed there under for which mis-use charges could be levied but the DVB has not levied them in the peculiar facts and circumstances of the case. He further submitted that the claim of the petitioner whether it is in respect of the alleged excess payment on account of billing of the electricity consumed at the maximum tariff rate of Rs. 3 per unit or on account of the payment of the cost of the electricity meter are not refundable to the petitioner.

9. I have given careful consideration to the arguments advanced by the parties at the bar. For appreciating the arguments, the facts of the case may be recapitulated briefly as follows. The petitioner had two electricity meters installed in his house. One meter supplied electricity to the ground floor and the second feeded it to the first floor. In August, 1989 the electricity meter which supplied electricity to the ground floor got damaged. The staff of the respondent DVB which came to attend the complaint was of the view that there was some internal defect in the meter and it required replacement. Allegedly in order to ensure continued electricity supply to the ground floor portion of the house, the live electricity wire of the damaged meter was connected to the live electricity meter installed for the first floor. Consequently, the second meter recorded the reading for the consumption of the electricity not only for the first floor but also used in the ground floor. Till then between September, 1989 and December, 1995 the petitioner paid for the electricity consumed on the ground floor as per the electricity bills pertaining to the second meter. During this period the DESU wrongly billed the petitioner in respect of the damaged meter at load basis. On the petitioner's protest and representation against it, this mistake was corrected and the demand was withdrawn before Bijli Adalat. Up-to-date electricity charges as per bills raised for the two electricity connections have now been paid by the petitioner.

10. The short controversy is whether the DESU ought to have billed the electricity supplied through the second meter to the ground floor at the concessional lower rate of tariff for first 300 units consumed there. The petitioner has not been able to point out any provisions under the Electricity Act or rules framed there under or the tariff rules under which a consumer will be entitled to be charged at the concessional rate for first 300 units in case the electricity is supplied through one meter to two different premises in the same building, one of which was previously receiving the electricity through a properly installed meter. In fact, the connection of the electricity wires of the ground floor portion to the electricity meter installed for the first floor is in violation of the agreement between the DESU/DVB and the consumer and contravention of the Electricity Act and the rules framed there under. It could not have been done legally. If some unscrupulous and irresponsible official of the respondent in order to save the petitioner from any inconvenience and hardship, connected the wires of the ground floor with the electricity meter of the first floor, the respondent could not have been blamed for it. Indeed there is considerable delay in the replacement of the damaged electricity meter by the respondent but the petitioner knew from the beginning in 1989 that the electricity which he was using on the ground floor was being received through the electricity meter of the first floor. He was bound to pay for the electricity as per the meter reading and cannot be heard complaining that it was done by the DVB staff for a short period which prolonged to over six years. The contention of the petitioner that during this period he had been contacting the respondent for replacement of the meter will not entitle him to the benefit of a lower tariff for the first 300 units on the assumption that almost half of the electricity was being used in the ground floor. The tariff rules allowed billing of units up to first 300 units at a lower concessional rate but it could not have divided the meter reading of the second meter in order to give benefit of concessional lower rate to the petitioner in two portions.

11. Moreover, how much units of electricity was being actually consumed on the ground floor cannot be determined on an assumption or the consumption pattern for the subsequent period or for the periods prior to 1989 or subsequent to January, 1996. It is a contentious issue which cannot be determined in the writ jurisdiction by this court. The dispute about excess billing or refund of cost of meter replaced may be agitated in a civil suit or any other civil proceedings. But the petitioner is invoking the extraordinary, discretionary jurisdiction of this court for recovery of a certain amount which he is alleged to have paid to the respondent in excess of what he would have paid had the damaged electricity meter been replaced in August, 1989 i.e. within the period of seven days as per electricity rules. But he admitted that the electricity was consumed through the electricity meter which was meant for the first floor.

12. It cannot be denied that the normal remedy for obtaining refund of excess payment made to State or the instrumentality of the State is by filing a suit in a civil court. A Full Bench of Kerala High Court in Geetha Timbers v. State of Kerala, 1990(1) KLT 402 made the following observation which aptly apply to this case as well:

"This Court has held time and again that in contractual matters writ petition will not normally be entertained. For enforcement of contractual rights parties should avail remedies by way of civil suit and should not invoke the extraordinary jurisdiction available under Article 226 of the Constitution of India."

13. In Visakhapatnam Port Trust and Another v. Ram Bahadur Thakur Pvt. Ltd., it was observed:

"Senior counsel for the appellants was right when he contended that if it was felt by the Court that highly disputed question of facts arose for its decision the writ petitioners could have been relegated to the remedy by way of a civil suit where matter could have been thrashed out on proper evidence."

14. Similar view was taken in Mrs. Sheela Thomas and Others v. The State of Kerala and Another and State of U.P. and Others v. Bridge & Roof Company (India) Ltd., and Kerala State Electricity Board v. Kurien E. Kalathi, .

15. In this case the petitioner claims refund of excess amount which needs evidence for its determination. The writ jurisdiction is not the appropriate remedy for all the dispute raised in this writ. The extraordinary discretionary jurisdiction of the court vested by Article 226 of the Constitution of India cannot be exercised by the court in order to grant relief to the petitioner in this case.

16. The grievance of the petitioner that the allegation of the DVB before the conciliatory court or Bijli Adalat that it was a case of the mis-use of the electricity, to my view is not relevant since it is not disputed that no mis-use charges as leviable under the tariff rules were ever imposed upon the petitioner.

17. Having regard to the above discussion, I do not find any merit in the petition. It is dismissed. But in the peculiar facts and circumstances of the case, the parties are left to bear their own costs.