Telangana High Court

Polisetty Vijaya vs Vidyut Ombudsman For The State Of ... on 12 March, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

     HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

            WRIT PETITION No. 7123 OF 2023

ORDER:

This Writ Petition is filed calling in question the

order dated 21.02.2023 in Appeal No. 27 of 2022-23 on the file

of Vidyut Ombudsman.

2. Petitioner was provided with service connection No.

2100902270 for the property at Plot No.86 part, 9th Phase at

KPHB Colony, with contacted load of 5KV with 3 phase in

category 2B and was equipped with self-generation, therefore

excess power generated will be exported, by giving credit to the

same, bills are being raised every month, and she has been

paying bill amount promptly and there are no arrears of power

charges. However, off-late reading was taken by showing zero

export and bill is raised on consumption charges which has

been paid by petitioner and for bills for April and May as well as

statement of account would demonstrate that there are no

arrears or dues payable to the respondents. The statement of

consumption, billing, collection and arrears particulars shown

in November 2021 of Sothern Power Distribution, Export

reading as 37721 and even in May Power Bill also shown

reading of export is 37721 and arrears shown as Zero.

Assuming for the sake of argument also, even minimum export

is 2 to 3 Kilo Watts and as per the statement of the details of

export of the power, if it is taken as 2 units for KV, for the last

seven years, it will come to 25500 and if it is 3 units for KV, it

comes to 38325, therefore, the respondents cannot show that

there is no export and intentionally they are showing wrongly

and despite the same, petitioner has been paying the same.

It is stated that on 28.05.2022, power was

disconnected to the subject house without any notice and after

intimation by their staff, petitioner's husband rushed to the

premises where there was a notice as if the staff of the 2nd

respondent were obstructed on 27.05.2022 and as it is

incorrect, the same was reported to the staff of the 2nd

respondent on 28.05.2022 and they had inspected the premises

and restored power supply. It is evident that a false complaint

was lodged against her husband by one Mr.P.Nagaraju, who is

working as computer operator in the office of the 2nd

respondent and my husband has also given complaint to KPHB

police station for the illegal demand and harassment from the

2nd respondent by bringing to the notice that from June 2015,

power is being consumed which is equipped with solar panels

and that they have been paying bills and there are no arrears.

However, in February 2022, the 2nd respondent demanded for

payment of Rs.2,49,362/-. It is stated that because her

husband is not approaching the 2nd respondent as was done by

others in the locality, to exert pressure, power was disconnected

without notice on the false pretext of prevention to take the

meter reading and again after inspection restored the power

supply.

In this regard, petitioner filed Writ petition No.

24569 of 2022 seeking a direction to respondents not to

disconnect the supply without following any procedure and

without giving any opportunity to petitioner, wherein this Court

directed to follow due procedure of law. Thereafter, the 3rd

respondent issued letter dated 07.06.2022 demanding

Rs.2,37,681/- without any basis and proper calculations and

served the same on 11.06.2022. Petitioner enquired the details

and took a copy of Account Statement from June, 2015 to May

2022 in which it is only showing due as Rs.12,145.87/-.

Further, it is pertinent to note that the latest demand Bill issued

by the 3rd respondent shows that Bill amount is Rs.6,694/- +

added ACD due of Rs. 16,728/- which in total is Rs.23,422/-

and arrears is showing Nil or Zero Amount. Reading of Export

Units is chronologically shown in Account statement that was

actually taken by physically verifying the meter every month.

This cannot be conflicted as the meter reading will be taken

physically every month as per the difference in export units and

import units consumed. When reviewing the account statement

it shows every month they collected and demand amount with

only because of units after every month calculations and

clearing regular bills, it is showing that for the month of May a

demand of Rs. 12,145.87 is raised though the latest bill amount

is raised for an amount of Rs.23,422/-. It is further stated that

as per account statement, meter reading of export units was

37,721/- up to November 2021, which was recorded by the

Respondent Corporation only. Surprisingly, now they are

showing the meter reading 8824.63 as on 28.05.2022 without

any calculations and they are not giving any technical reasons

how they assessed that reading. From November onwards they

are issuing the monthly bills showing export as Zero units

without considering the export units. Accordingly the demand

notice issued by the Assistant Accounts Officer, TSSPDCL,

Kukatpally, Hyderabad is completely a false, created only to

harass petitioner.

3. This Court while issuing notice before admission on

14.03.2023, passed detailed order suspending the order of

Ombudsman dated 21.02.2023 for a period of one month, which

reads as under:

" Notice before admission.

Mr. R.Vinod Reddy, learned Standing counsel takes notice on behalf of respondents No.2 to 6 and waives further notice and seeks time to file counter.

Registry is directed not to take out notices to respondents No.2 to 6 in view of this waiver.

Learned counsel for the petitioner submitted that the respondents have issued a show cause notice for short-billing against which the petitioner filed a writ petition and on the directions of this Court, he approached the Consumer Grievances Redressal Forum which has decided the issue against the petitioner and thereafter, the petitioner has filed an appeal before the Vidyut Ombudsman i.e., respondent No.l and the respondent No. l has dismissed the appeal against which the present writ petition is filed.

It is further submitted that as per Clause 10.3 of the Regulations Governing the export and import of electricity, the electricity department is supposed to verify and examine the meters every six months and take action to adjust the bills of the export and import of electricity. It is submitted that from the year 2015 the import and export of the petitioner's electricity was the same and the petitioner has been paying the monthly bills regularly and there was never any deficiency pointed out by the electricity department.

It is submitted that it is only when the petitioner objected to certain illegal demands of the respondents, that the action fe1 3ftsrt-fuilling has been initiated against the petitioner.

It is further submitted that the respondents have not given details of the short billing, but the respondent No. l has upheld the short-billing and required the petitioner to make payment in ten monthly instalments. He therefore, seeks interim suspension of the order of the Ombudsman.

Learned Standing counsel for the respondents No.2 to 6, however, points out that the application of petitioner has been rejected by two fact-finding authorities and therefore, the petitioner should be directed to pay at least 507o of the demanded amount pending disposal of writ petition.

Having regard to the rival contentions and the material on record and also that the respondent No.l has granted monthly installments to the petitioner for making payment, this Court deems it fit and proper to grant interim suspension of order of Ombudsman dated 21.02.2023 for a period of one (l) month."

Thereafter, petitioner had taken out I.A.No. 2 of 2023 seeking

extension of interim order dated 14.03.2023. The said order was

extended till 27.06.2023.

4. I.A.No. 3 of 2023 has been taken out to vacate the

interim order dated 11.04.2023. Along with it, counter-affidavit

was filed by the 3rd respondent, wherein it is stated that service

connection No. 2100902270 was released on 10.02.2013 and

the same is located in Plot No 86, 9th Phase, KPHB Colony,

Hyderabad under non-domestic category. The service was

converted into net-metering on 01.05.2015 duly following

departmental procedure. Consequently monthly CC bills were

being issued by the meter reader duly feeding 'Export' and

'Import' readings of solar net meter in the billing machine every

month. It came to the notice of the Addl. Asst.Engineer/

Operation/ KPHB that, CC bills were issued with wrong

readings for the period from June, 2015 to May, 2022. The

problem in issuance of CC bills persisted from the next month

of fixing the solar net- meter, i.e, from the issuance of first bill

after fixing solar net meter. The CC bills are being issued for

almost zero units from June, 2015. It caused huge revenue loss

to the organization for the period from June 2015 to

28.05.2022. The mistake occurred as the meter reader was not

aware of proper issuance of the net metering bills.

It is stated that in case of solar net-meter, energy

meter measures and displays two components; one component

is import power; it indicates the departmental power utilized by

the consumer and the second component is export power; it

indicates excess power pumped to department network by the

consumer after utilizing his solar generated power for his self-

consumption. Further it is submitted that, departmental staff/

meter reader goes to consumer premises along with billing

machine in the regular course for issuing monthly CC bills to

the consumer. The billing machine is pre-programmed to issue

bills instantly to consumer's premises on account of feeding

present meter readings in the billing machine. Previous month

readings are already recorded in programmed billing machine.

The present month-'Import' and 'Export' units are arrived and

printed on the CC bills by executing automatic subtraction of

present month readings, and previous month reading in the

billing machine. The respective month readings previous month

readings and Export, Import units appear clearly in every month

CC bills. Petitioner being fully aware about billing system and

having realized that consumption from respondent company is

not being shown in the bills has deliberately not brought to the

notice of the officers. Petitioner obtained permission for solar

panel for 3 KW only and was using 12 KW which demonstrates

that she is consuming more units than that are generated

through solar panels and as the excess units consumed are

provided by the respondent company, petitioner is liable to pay

the bills raised. It is stated that Sri. Vidya Sagar, Addl. Asst.

Engineer/ Operation/ KPHB, who is supervisory officer of the

area concerned, noticed the revenue loss on account of issuing

wrong CC bills and he tried to inspect the premises to identify

the loss of energy, but he was prevented from inspecting the

meter and informed that the building belongs to High Court

Advocate by name Mr. Vinod Kumar. The Respondents were

compelled to issue a notice dated 28.05.2022 and power supply

was disconnected. It is stated that the said Vinod Kumar came

to the office of the Addl. Asst. Engineer and the Asst. Divisional

Engineer on 28.05.2022 and abused the computer operator and

tried to assault him. The computer operator approached the

Station House Officer, Kukatpally and lodged a complaint. The

police officer called Mr. Vinod Kumar to come to police station to

sort out the issue, but he did not respond. It is stated that

petitioner filed Writ Petition No. 24569 of 2022 against the

disconnection of power supply and this Court by order dated

10.06.2022 directed the official respondents to inspect the

premises in question and to take action, if they desire to do so,

strictly in accordance with law. It was made clear that petitioner

should cooperate with the official respondents during the course

of inspection and should not create any obstruction or

hindrance to the inspection team. It is stated that petitioner

again filed another Writ Petition No. 26153 of 2022 seeking a

direction against the respondents not to disturb the peaceful

possession and enjoyment of power supply and to declare the

notice dated 07.06.2022 as null and void. This Court by order

dated 22.06.2022 directed the petitioner to approach the

Consumer Grievance Redressal forum, hence, she filed a

complaint No. 94/2022-23/Cybercity Circle, after hearing all

the parties on merits, the complaint was rejected directing

petitioner to pay Rs. 2,37,681/- in ten equal instalments

commencing with the next electricity bill. Aggrieved by the said

order, Appeal No. 27/2022-23 was preferred before Vidyut

Ombudsman but the said Appeal was rejected vide order dated

21.02.2023 directing to pay the amount demanded in 10 equal

installments commencing from 31.03.2023.9. Petitioner without

complying with the orders of the CGRF or the Vidyut

Ombudsman has filed the present writ petition. Petitioner is

liable to pay the amount due towards the consumption charges

from June 2015 to May 2022 and for the subsequent

consumption. It is stated that CGRF and Vidyut ombudsman

are established under the Electricity Act, 2003 and the

petitioner is liable to comply with the orders. The petitioner has

not made out any case regarding violation of any rights granted

to him under Constitution of India and cannot be provided any

relief u n der Arti cle 226 of the Constitution of India.

5. Heard learned counsel for petitioner Sri Ramesh

Babu Viswanathula and Sri R. Vinod Reddy learned Standing

Counsel for respondents. Learned counsel for petitioner relied

on the judgment in Sri Vijay Wadhera v. Chairman

Consumers' Grievances Redressal Forum, Garhwal Zone,

Dehradun 1. In support of their case, learned Standing Counsel

relied on the judgment in Ajmer Vidyut Vitran Nigam Ltd. v.

Rahamatullahkhan 2 , wherein it has been held as under:

" 6.2. In the case of electricity, the charges are ascertained and recovered as per the tariff notified by the State Electricity Board, or under an electricity supply agreement between the parties read with the tariff under Section 62(1)(d), and the Electricity Supply Code framed under Section 50.

6.4. Section 56 provides for disconnection of supply in the case of default in payment of electricity charges. Sub-section (1) of Section 56 provides that where any person "neglects" to pay "any charge" for electricity, or "any sum" other than a charge for electricity due from him to a licensee or generating company, the licensee after giving 15 days' written notice, may disconnect the supply of electricity, until such charges or other sums due, including the expenses incurred, are paid. However, the disconnection cannot continue after the amounts are paid.

6.9. The liability to pay arises on the consumption of electricity. The obligation to pay would arise when the bill is issued by the licensee company, quantifying the charges to be paid. Electricity charges would become "first due" only after the bill is issued to the

2005(3) UC 1425

(2020) 4 SCC 650

consumer, even though the liability to pay may arise on the consumption of electricity.

9.2. As per Section 17(1)(c) of the Limitation Act, 1963, in case of a mistake, the limitation period begins to run from the date when the mistake is discovered for the first time. In Mahabir Kishore v. State of M.P. [Mahabir Kishore v. State of M.P., (1989) 4 SCC 1] , this Court held that : (SCC p. 11, para 22) "22. Section 17(1)(c) of the Limitation Act, 1963, provides that in the case of a suit for relief on the ground of mistake, the period of limitation does not begin to run until the plaintiff had discovered the mistake or could with reasonable diligence, have discovered it. In a case where payment has been made under a mistake of law as contrasted with a mistake of fact, generally the mistake becomes known to the party only when a court makes a declaration as to the invalidity of the law. Though a party could, with reasonable diligence, discover a mistake of fact even before a court makes a pronouncement, it is seldom that a person can, even with reasonable diligence, discover a mistake of law before a judgment adjudging the validity of the law."

6. Admittedly, respondents have issued provisional /

wrong bills against the service connection since the date of

installation of solar net meter till May, 2022 i.e. import reading

is equal to export reading, resulting the consumer got minimum

bills for the above said period. After taking charge, the present

AE inspected the premises on 28.05.2022 and noted down the

meter particulars along with check readings, consequently, the

1st respondent addressed a letter to the 3rd respondent for

revision of bill. Accordingly, the 3rd respondent revised the bill

for 67 months, arrived difference of units 28293 and raised total

bill for Rs.2,37,681/- and the same was informed to the

consumer. No doubt, respondents themselves admitted in their

submissions that meter reader concerned had issued wrong

bills instead of actual readings. However, petitioner is liable to

pay the current consumption charges as per the actual

consumption in terms of tariff order and regulations of the

TSERC.

7. In view of the rival contentions, it is necessary to

reproduce the relevant Regulations concerning the subject. The

Regulation towards sale of electricity from the rooftop solar

photovoltaic system is Regulation 6 of 2016 which is re-

produced hereunder:

"What is 'Net Metering':

Clause 17 "Net Metering" means an arrangement under which a Rooftop Solar PV System installed at an Eligible Consumer's premises and delivers surplus electricity, if any, to a Distribution Licensee after off-setting the quantum of electricity supplied by the distribution licensee to such Eligible Consumer during the applicable billing period.

Clause (18) "Net meter" means an appropriate energy meter which is capable of recording both import and export of electricity or a pair of energy meters one each for recording the import and export of electricity, as the case may be."

8. There are basically two parameters which are to be

recorded while taking the meter readings apart from other

parameters of the net meter i.e. export and import in KWH

units. The export reading determines the energy consumption

exported to the distribution network of the licensee ie. energy

produced through solar power and import reading determines

the actual energy consumption availed through the distribution

network of the licensee. Clause 10 of the said Regulation reads

Energy Accounting and Settlement as under:

" Clause 10.2: Provided that if the quantum of electricity exported exceeds the quantum imported during the Billing period, the excess quantum shall be carried forward to the next billing period as credited units of electricity and the eligible consumer shall get a mothly minimum bill." ......

If the quantum of electricity units imported by the eligible

consumer during any billing period exceeds the quantum

exported, the Distribution Licensee shall raise its invoice for the

net electricity consumption after adjusting the credited units of

electricity. Clause 10.3 of Regulation 6 of 2016 gives the

statement of units procedure which is reproduced hereunder:

" Clause 10.3: The unadjusted net credited Units of electricity shall be settled by the Licensee twice in a year viz. in June and December. The net export units credited for the six months period shall be settled as its average cost of power purchase as approved by the Commission for that year. The sum so arrived shall be either adjusted in the next month's electricity bill or deposited in the bank account of the eligible consumer furnished to the Licensee at the time of filing of the Application."

9. The record shows that right from 2015, import and

export KWH readings were the same. Since consumption and

generation of electricity cannot be the same for every month, it

is the irregularity. No doubt, serious negligence occurred while

recording the meter readings. However, it is to be noted that

sub-section (1) of Section 56 confers a statutory right to the

licensee company to disconnect the supply of electricity, if the

consumer neglects to pay the electricity dues. This statutory

right is subject to the period of limitation of two years provided

by sub-section (2). The period of limitation of two years would

commence from the date on which the electricity charges

became "first due" under sub-section (2). This provision restricts

the right of the licensee company to disconnect electricity

supply due to non-payment of dues by the consumer, unless

such sum has been shown continuously to be recoverable as

arrears of electricity supplied in the bills raised for the past

period. If the licensee company were to be allowed to disconnect

electricity supply after expiry of the limitation period of two

years after the sum became "first due", it would defeat the

object of Section 56(2). Section 56(2), however, does not

preclude the licensee company from raising a supplementary

demand after expiry of limitation period of two years. It only

restricts the right of the licensee to disconnect electricity supply

due to non-payment of dues after the period of limitation of two

years expired, nor does it restrict other modes of recovery which

may be initiated by the licensee company for recovery of a

supplementary demand. Section 56(2) did not preclude the

licensee company from raising an additional or supplementary

demand after expiry of limitation period under Section 56(2) in

the case of a mistake or bona fide error. It did not, however,

empower the licensee company to take recourse to the coercive

measure of disconnection of electricity supply, for recovery of

the additional demand (see Ajmer Vidyut Vitran Nigam Ltd.

Case).

10. As per Section 17(1)(c) of the Limitation Act, 1963,

in case of a mistake, limitation period begins to run from the

date when the mistake is discovered for the first time.

In Mahabir Kishore v. State of M.P. 3, this Court held that

" 22. Section 17(1)(c) of the Limitation Act, 1963, provides that in the case of a suit for relief on the ground of mistake, the period of limitation does not begin to run until the plaintiff had discovered the mistake or could with reasonable diligence, have discovered it. In a case where payment has been made under a mistake of law as contrasted with a mistake of fact, generally the mistake becomes known to the party only when a court makes a declaration as to the invalidity of the law. Though a party could, with reasonable diligence, discover a mistake of fact even before a court makes a pronouncement, it is seldom that a person can, even with reasonable diligence, discover a mistake of law before a judgment adjudging the validity of the law."

11. As per the ratio laid down by the Hon'ble Supreme

Court in Ajmer Vidyut Vitran Nigm Limited's case (supra),

this Court is of the opinion that Section 56(2) of the Act does

(1989) 4 SCC 1

not preclude the respondent company from raising an additional

or supplementary demand after expiry of limitation period under

Section 56(2) in case of a mistake or bona fide error, however, it

does not empower the licensee company to take recourse to

coercive measure of disconnection of electricity supply for

recovery of additional demand. Hence, the order impugned

which granted ten monthly equal instalments to pay the due

amount, does not warrant any interference. The Writ Petition is