Kerala High Court
The Assistant Executive Engineer vs State Electricity Ombudsman on 28 May, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 34675 OF 2017
PETITIONER/S:
THE ASSISTANT EXECUTIVE ENGINEER
ELECTRICAL SUBDIVISION, KSEB LTD, PAPPINISSERY, KANNUR.
BY ADVS. MS POOJA JOSE, SRI.N. RAPHY RAJ, SC, SRI.N.SATHEESH,
NIRMAL.S
RESPONDENT/S:
1 STATE ELECTRICITY OMBUDSMAN
CHARANGATTU BHAVAN, BUILDING NO.34/895, MAMANGALAM -
ANCHUMANA ROAD, EDAPPALLY, KOCHI - 682024.
2 SMT.E. SHOBANA
"RIVIRESA", KOKKANPARA ROAD, PALLIKKUNNU, KANNUR - 670004.
BY ADV RAJESH NAMBIAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.34675/2017
-2-
JUDGMENT
The present writ petition has been filed on behalf of the
Kerala State Electricity Board impugning the order passed by
the State Electricity Ombudsman, Edappally, Kochi, in Appeal
Petition No.P/057/2016 dated 14.12.2016 in Ext.P4.
2. The 2nd respondent had obtained a three-phase
service connection under LT-IVA tariff (Industrial) with a
connected load of 134625 Watts with effect from 06.01.1996 for
an industrial unit in the name and style of M/s. Design and
Interiors, Mundappuram. A surprise inspection was
conducted on the premises of the 2nd respondent on
16.06.2015, and it was detected that one phase of the Current
Transformer (CT) to the meter was not working. It was
concluded that less consumption was recorded in the meter
than the actual energy consumed. A spot mahazer was
prepared, and thereafter, a short assessment bill for
Rs.1,64,125/- was issued to the 2nd respondent assessing the
unrecorded portion of the energy consumed by the 2nd
respondent for the past one year at the prevailing tariff rate.
2.1 Aggrieved by the bill, the 2nd respondent filed a
petition before the CGRF Kozhikode, which, however, came to
be dismissed vide judgment dated 16.06.2016 in O.P.
No.20/2016-17. Thereafter, the 2nd respondent approached the
State Electricity Ombudsman by filing Appeal Petition
No.P/057/2016, as mentioned above.
2.2 The Ombudsman has recorded a finding that
though the surprise inspection was conducted by KSEB
authorities on 16.06.2015, the provisional short assessment bill
amounting to Rs.1,64,125/--was served on the 2nd respondent
after three months, i.e., on 16.09.2015. The bill does not bear
any date and lacks basic details. The final bill was served only
on 22.02.2016, i.e., after five months from the date of issuance
of the provisional bill.
2.3 The Ombudsman, in the impugned order, has, after
considering the provisions of Regulation 152 and Regulation
115(9) of the Electricity Supply Code 2014, held that there are
marked differences in the contents of Regulation 115 and 152
of the Supply Code, 2014. These Regulations are distinct and
different, and their provisions operate in different fields and
have no common premise in law. Regulation 152 gives liberty
to the licensee to realise the amount of electricity charges
short collected by the licensee from the consumer under the
standard tariff applicable to the period during which such
anomalies persisted. Even if it is presumed that one phase of
the energy meter was missing as on the inspection date, the
Board failed to establish the actual date of missing energy in
one phase. The only reason stated is that the current
transformer installed in the 2nd respondent's premises was
tested at the TMR Division and declared faulty on 16.09.2015.
2.4 After perusing the records, the Ombudsman
concluded that the Board had not issued any notice as
stipulated in Regulation 115(5) of the Supply Code 2014 while
testing the transformer/meter. Further, the Board took three
months to test the alleged CT at the TMR Division, and there
was undue delay in issuing the provisional assessment and the
final bill to the 2nd respondent. The Ombudsman held that the
final bill was issued without observing the mandatory
provisions and, therefore, could not be sustainable.
3. Learned Standing Counsel for the Board submits
that the 2nd respondent has not denied that the correct
consumption from one phase was not recorded in the meter.
Regulation 152 of the Supply Code 2014 provides that if, on
inspection, the anomalies are attributable to the licensee, such
as wrong application of multiplication factor or incorrect
application of tariff by the licensee, it shall not attract the
provisions of Section 126 or Section 135 of the Act. In such
cases, the amount of short electricity charges collected by the
licensee, if any, shall only be realised from the consumer
under the standard tariff applicable to the period during
which such anomalies persisted. He further submits that
Regulation 115 is not applicable in the facts and circumstances
of the case, and the impugned order is not unsustainable.
4. Learned Counsel for the 2nd respondent, however,
submits that the 2nd respondent approached the CGRF, and the
CGRF rejected the petition against which she filed an appeal
before the Ombudsman. It is further submitted that the
Ombudsman's decision was in favour of the 2nd respondent, so
the Board would not have the right to appeal against the said
order, in the sense that the Board is impugning the decision of
the Ombudsman, a statutory authority under the provisions of
the Electricity Act and the Regulations made thereunder. The
impugned judgment does not suffer from any perversity, and
it cannot be said that it is without jurisdiction; therefore, this
Court, in the exercise of its jurisdiction under Article 227 of
the Constitution of India, may not interfere with the decision
of the Ombudsman.
5. The short assessment bill has been issued for the
past one year. However, Regulation 152 specifically provides
that in such a situation where the licensee had failed to
maintain proper instruments or anomalies are attributable to
the licensee, the provisions of Section 126 or Section 135 of the
Act would not be applicable. The short assessment charges can
only be realised from the consumer under the standard tariff
applicable to the period during which such anomalies
persisted. Regulation 115(9) of the Electricity Supply Code
provides that in case the meter is found to be faulty, revision
of the bill on the basis of the test report is to be done for a
maximum period of six months or from the date of last testing
whichever is shorter and the excess or deficit charges on
account of such revision shall be adjusted in the two
subsequent bills.
5.1 The procedure for testing the meter is also
prescribed in Regulation 115(5), which provides that the
licensee shall be given advance notice of three days,
intimating the date, time and place of testing so that the
consumer or his authorised representative can at his option,
be present at the testing. Admittedly, when the meter or
transformer was tested, the 2nd respondent was not issued
notice, so there was a violation of Regulation 115(5). Further,
there is no finding recorded in the short assessment bill from
which date the meter could not record the correct reading of
one phase because of the faulty transformer. Even Regulation
115(9) provides that on the basis of the test report, revision
could be possible for a maximum period of six months or from
the date of last testing, whichever is shorter.
5.2 In the present case, the revision has been done for
a period of 12 months, which is also against Regulation 115(9)
of the Code. When the meter/transformer was not tested as
per the provisions of Regulation 115(5), and it was the duty of
the Board to maintain the transformer, the 2nd respondent
cannot be saddled with the liability of the short assessment
bill.
5.3 Considering this Court's limited jurisdiction under
Article 227 of the Constitution of India, the impugned order
passed by the Ombudsman in Ext.P4 requires no interference
as it is not without jurisdiction or against law.
The writ petition fails, which is hereby dismissed.
Interim order, if any, stands vacated.
Sd/-
DINESH KUMAR SINGH
JUDGE
jjj
APPENDIX OF WP(C) 34675/2017
PETITIONER EXHIBITS
EXHIBIT-P1: TRUE COPY OF THE MAHAZER DATED 16.07.2015.
EXHIBIT-P2: TRUE COPY OF FINAL BILL DATED 22.03.2016.
EXHIBIT-P3: TRUE COPY OF METER READING REGISTER DATED
06.01.1996.
EXHIBIT-P4: TRUE COPY OF ORDER DATED 14.12.2016 OF
OMBUDSMAN.
