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
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
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.
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
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
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.
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
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.
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
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
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
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
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
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,
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;
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,
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
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....
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
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,
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
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.
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
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
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
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
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
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
