A. Younuskunju v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 WP(C).No. 6508 of 2006(Y) ------------------------- PETITIONER: ------------------ A. YOUNUSKUNJU, MANAGING PARTNER HOTEL SHAH INTERNATIONAL CHINNAKKADA, KOLLAM. BY ADV. SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.LEKSHMY RAMANATHAN SMT.VEENA.B.KUMAR SMT.T.B.REMANI RESPONDENTS: --------------------- 1. KERALA STTE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. ANTI POWR THEFT SQUAD, REPRESENTED BY THE VIGILANCE OFFICSER, K.S.E.B., VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KOLLAM. 4. ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB, KADAPPAKKADA, KOLLAM. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC. 6508/2006. ## APPENDIX PETITIONER'S EXTS: EXT. P1 : TRUE COPY OF THE ELECTRICITY BILL OF PETITIONER'S HOTEL DATED 15.4.2005. EXT. P2 : TRUE COPY OF THE ELECTRICITY BILL OF PETITIONER'S HOTEL DATED 15.5.2005. EXT. P3 : TRUE COPY OF THE ELECTRICITY BILL OF PETITIONER'S HOTEL DATED 15.6.2005. EXT. P4 : TRUE COPY OF THE REPRESENTATION DATED 25.9.2004 SUBMITTED BY THE PETITIONER OF THE PETITIONER'S HOTEL TO THE 3RD RESPONDENT. EXT. P5 : TRUE COPY OF THE NOTICE AND MAHAZAR DATED 30.6.2005 PREPARED BY THE 2ND RESPONDENT. EXT. P6 : TRUE COPY OF THE ELECTRICITY BILL DATED 8.7.2005. EXT. P7 : TRUE COPY OF THE JUDGMENT DATED 5.7.2005 IN W.P.(C) 20052/2005 ISSUED BY THIS HON'BLE COURT. EXT. P8 : TRUE COPY OF THE ORDER DATED 27.8.2002 ISSUED BY THE 4TH RESPONDENT. EXT. P9 : TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 26.10.2005 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT. P10 : TRUE COPY OF THE ELECTRICITY BILL OF PETITIONER'S HOTEL DATED 27.8.2005. EXT. P11 : TRUE COPY OF THE ELECTRICITY BILL OF PETITIONER'S HOTEL DATED 12.9.2005. EXT. P12 : TRUE COPY OF THE ELECTRICITY BILL OF PETITIONER'S HOTEL DATED 14.10.2005. EXT. P13 : TRUE COPY OF THE ARGUMENT NOTE DATED 26.10.2005 SUBMITTED ON BEHALF OF THE PETITIONER. EXT. P14 : TRUE COPY OF THE ORDER DATED 29.11.2005 ISSUED BY THE 2ND RESPONDENT. EXT. P15 : TRUE COPY OF THE CHALAN RECEIPT PAYING ESI CONTRIBUTION. EXT. P16 : TRUE COPY OF THE CHALAN RECEIPT PAYING ESI CONTRIBUTION. EXT. P17 : TRUE COPY OF THE STATEMENT SHOWING THE EPF CONTRIBUTION MADE BY THE PETITIONER. EXT. P18 : TRUE COPY OF THE STATEMENT SHOWING EPF CONTRIBUTION MADE BY THE PETITIONER. EXT. P19 : TRUE COPY OF THE BILL DATED 27.3.2006. EXT. P20 : TRUE COPY OF THE APPLICATION DATED 27.1.2008 SUBMITTED BY MR. AUGUSTUS BINU. EXT. P21 : TRUE COPY OF THE LETTER DATED 16.2.2008 ISSUED BY THE SENIOR SUPERINTENDENT IN THE OFFICE OF THE 4TH RESPONDENT. EXT. P22 : TRUE COPY OF THE AFFIDAVIT DATED 14.6.2008 FILED BY SRI. S.MONUDEEN, FOOD MANAGER, HOTEL SHAH INTERNATIONAL, KOLLAM. RESPONDENTS' EXTS: EXT. R1 (a) : TRUE COPY OF NOTICE DATED 30.6.2005. EXT. R1(b) : TRUE COPY OF THE METER READING REGISTER. EXT. R1(c) : TRUE COPY OF THE METER REPLACEMENT REGISTER FOR THE PERIOD FROM 21.9.2004 TO 28.9.2004. EXT. R1(d) : TRUE COPY OF THE METER REPLACEMENT REGISTER FOR THE PERIOD 12.7.2005. EXT. R1(e) : TRUE COPY OF THE METER SEALING CERTIFICATE FOR THE PERIOD 12.7.2005. EXT. R1(f) : TRUE COPY OF THE METER READING REGISTER FOR THE PERIOD FROM 11/2001 TO 6/2003. EXT. R1(g) : TRUE COPY OF THE METER REPLACEMENT REGISTER FOR THE PERIOD 22.7.2005. EXT. R1(h) : TRUE COPY OF THE METER REPLACEMENT REGISTER FOR THE PERIOD FROM 1.9.2004 TO 28.9.2004. ## **K.M.JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.6508 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2008 ## **JUDGMENT** Petitioner challenges Exts.P5, P6, P8 and P14 since they are issued against the provisions of the Electricity Act, 2003 and in violation of the judgment of the Division Bench reported in **K.S.E.B. V. Najeeb** (2005 (1) K.L.T. 406) and also seeks to quash Exts.P5, P6, P8 and P14 as they are issued with malafides and irrelevant considerations. The further prayer is not to compel the petitioner to pay the amount shown in Ext.P6 bill. 2. Briefly put the case of the petitioner is as follows: Petitioner is the Managing Partner of a hotel where there are 74 rooms. It is his further case that only ten rooms are inhabitable and only a Dhaba restaurant is functioning in the hotel. The hotel is having 3 phase connection. It is his case that since the hotel is running at a loss from the very beginning, on his request, the electricity tariff was changed from Deemed HT to LT VII(A) with effect from 22.1.2002. The electric meter of the hotel was not functioning properly. Complaints were made as Exts.P1 to P3. During September 2004, three staffs from the office of the Assistant Engineer came to the hotel to replace the old electric meter. They failed in their attempt since in the trial run the new meter was also not found working WPC.6508/2006. 2 properly. In that attempt, they had to open the meter box several times and at last they left the hotel by re-fixing the old one again. The Electrician of the hotel noted that the cover of the meter was badly damaged and the seal was also broken. This was brought to the notice of the office of the Assistant Engineer over phone. Finding no response, a written representation, Ext.P4, dated 25.9.2004 was given. For nine months there were no steps taken. On 30.6.2005 the officials from the second respondent inspected the hotel at 1 p.m. Petitioner was away. The Manager was also not present and the officials prepared a mahazar, which along with the notice is produced as Ext.P5. Supply was disconnected alleging tampering of meter. Ext.P6 bill was issued . This court was approached and this court directed to file objections. By Ext.P8, objections came to be overruled. Petitioner preferred appeal, which in turn proved unsuccessful. Ext.P13 is the argument note and Ext.P14 is the order on the appeal. It is pointed out that after the new meter was installed, the bill issued to the hotel was almost the same or less than the electricity bill issued before the second respondent conducted the inspection. In this context Exts.P10 to P12 bills are seen produced. In Ext.P14, which is an order of the Deputy Chief Engineer, Electrical Circle, after referring to the contentions, it is stated as follows: WPC.6508/2006. 3 “In the above circumstances, the undersigned came to the conclusion as follows: The contention of the petitioner is that the staff deputed from the office of Assistant Engineer, Electrical Section, Kadappakada caused damage is immaterial, they have not any alleged motive. The consumers version of the employees of Electrical Section, Kadappakkada wee tried to damage the meter installed in the premises does not stand. Back assessment was made only for the unrecorded portion of the energy actually consumed by the consumer and the calculation of above consumption was made scientifically. Since the APTS is an expert team in assessing the connected load, the undersigned feel that there is no need to revise the demand assessed by the Assistant Engineer, Electrical Section, Kadappakkada. Hence the undersigned, hereby ordered that the assessment made by the Assistant Engineer, Electrical Section, Kadappakkada as per the instruction of APTS is according to rules and is to be remitted by consumer.” 3. Counter affidavit is filed inter alia stating as follows: “The monthly consumption shown in the meter does not match with the total connected load installed in the hotel. The consolidated connected load had been found to be 88 KW on physical verification conducted by the APTS on 30.6.2005. the monthly consumption shown in the meter often was below 50 units and never above 95 units/day. Even if the hotel functions for 1 hour a day with the connected load of 88 KW, the consumption would have been 88 units/ day. Hotel Shah WPC.6508/2006. 4 International in functioning normally and it cannot be assumed that the load is being used for only 1 hour. It is reasonable to assume that the actual units shown in the meter is not the actual unit of the consumption utilized in the hotel with this present connected load of 88 KW. Hence the objection raised in this regard is not sustainable on facts.” It is further stated that no staff was deputed from the office for changing the meter installed in the premises of the petitioner. The case of meter being damaged by the duty staff is disputed. It is also stated that site mahazar was prepared in the presence of the Food Manager and it was read, understood and signed by him without any dissenting opinion. It is also stated that from the records it is seen that after the installation of the electronic meter the consumption is higher than the consumption ever recorded during the period in question. 4. Petitioner filed a reply affidavit producing Exts. P15 to P19. It is stated that only very few rooms are in a habitable condition. Exts.P15 and P16 produced are receipts for payment of ESI and Employees Provident Fund contributions. Exts.P17 and P18 are shown as documents relating to the remittance of EPF and ESI contributions. It is stated that the hotel was being run with a handful of employees. There is no variation in the consumption of electricity before and after the installation of new meter, WPC.6508/2006. 5 it is contended. There is no room service nor catering in the petitioner's hotel and there is only a small restaurant and it is not even air conditioned. The petitioner has denied the contention that there was no staff deputed for changing the meter. It is stated that Mr.Moideen has already disputed the contents of the mahazar and he was not responsible member of the staff. It is stated that it is done with a malafide intention to defame the petitioner, who is a well known personality. Still later, petitioner filed a petition, I.A. 6119 of 2008, to accept Exts.P20 and P21. Ext.P20 is an application submitted under the Right to Information Act to know whether any staff has been deputed for changing the old meter in the petitioner's hotel. Ext.P20 is seen given by one Sri. Augustus Binu, and Ext.P21 is the order passed by the Senior Superintendent. 5. The respondents filed additional counter affidavit on 3.6.2008. They have produced Exts.R1(a) to R1(g). In the additional counter affidavit it is inter alia stated that there are no records showing deputation of staff for replacing the meter. It is pointed out that if staff has been deputed, in the event of the replaced meter found to be non-functional, the staff would have immediately replaced the same with a new meter and the details such as defect in the old meter, old meter number, replaced meter number and initial reading would have been noted in the Meter WPC.6508/2006. 6 Replacement Register. Ext.R1(c) is produced as a copy of the Meter Replacement Register for the period from 21.9.2004 to 28.9.2004. It is produced to show that there is no replacement of meter or defect. It is after detection, it is stated, by the APTS on 30.6.2005 that the staff were deputed on 12.7.2005 to replace the meter, wherein one phase was found not recording the consumption. Ext.R1(d) is produced as true copy of the relevant pages of Meter Replacement Register. Ext.R1(e) is produced as Meter Sealing Certificate to indicate that the Manager of the Hotel has witnessed the same. Thereafter, it is stated, as the replaced meter encountered problems, it was again replaced on 22.7.2005 and to evidence the same Ext.R1(g), relevant page from the Meter Replacement Register is produced. It is further stated that no communication dated 25.9.2004 was received in the office of the Electrical Section as is the case of the petitioner. It is stated that the normal course of registering a complaint is either by registered post or by sending a person directly to the section office and getting acknowledgment from the office. An acknowledgment would have been given if the petitioner had registered a complaint in the section office, and it is a matter which is detailed in Terms and Conditions of Supply of Electrical Energy. Reliance is placed on Regulation 45(c) thereof. It is also stated that there is no follow up action subsequent to WPC.6508/2006. 7 September, 2004 till the APTS inspection on 30.6.2005. 6. An additional reply affidavit dated 14.6.2008 is filed by the petitioner, wherein it is inter alia stated as follows: Ext.R1(c) is a fabricated document. It is stated that the very statement that the meter was not replaced would establish the correctness of the petitioner's contention in paragraph 3 and grounds A and D and that the entry was not made because of the fact that the new meter replacement did not happen on that day as the new meter which was brought by the staff was not working properly. It is further stated that neither the Hotel Manager nor the petitioner were present when the squad came and after displacing the old meter and keeping the same on the floor the squad along with the police officials threatened and compelled the Food Manager, who was present in the hotel to sign the mahazar. The Food Manager has permanent disability for his eyes and his left eye is totally blind and he is doing continuous treatment for his right eye from his childhood onwards and he could not fully understand what exactly was written in the mahazar. Ext.P23 is the affidavit of the Food Manager on the said lines. It is stated that as a layman he has telephonically informed them about the breakage in the meter and written intimation was also given. WPC.6508/2006. 8 7. A further additional counter affidavit dated 23.6.2008 is filed producing Ext.R1(h), which is a copy of the Meter Replacement Register for the entire period of September, 2004 and it is also stated that if the meter was replaced, the same ought to have been recorded in the register. It is stated that if at all they notice any irregularity, it is their responsibility to intimate the Board. To the same again, another additional reply affidavit dated 2.7.2008 is filed denying the allegations in paragraphs 2 to 4. It is stated that the specific case pleaded by the petitioner is that the respondents did not replace the old meter and since the new meter was found faulty on its trial run two or three times on that day, the staff again re-fixed the old damaged meter. It is stated that the officers are responsible for the damage. It is also stated that in the event of meter encountering problems, the same would also be recorded in the Meter Replacement Register is incorrect as can be seen from a perusal of the register produced by the respondents. 8. I heard learned counsel for the petitioner and the learned counsel appearing on behalf of the respondents. 9. Learned counsel for the petitioner reiterates the contentions. It is contended that there has been no tampering in the mater and the contents of the mahazar is compatible with the case of the petitioner, namely WPC.6508/2006. 9 that when the staff came to replace the defective meter in September, 2004, they could not replace the old meter with a new one and it was in the process whatever damage which has subsequently noted in the mahazar took place. It is further pointed out that the respondents were withholding information as the information produced would show that it is against their interests. It is further pointed out that the entries which are referred to in the Meter Replacement Register and other registers, copies of which were produced are not reliable. In this context the learned Standing was directed to produce the originals. The originals were also made available. It is petitioner's case that the document is not in printed form and that it is written up and no credence can be given to the contents and it is submitted that the Food Manager was indeed physically disabled, petitioner was not present, no responsible officer was present, the mahazar was thus drawn in the absence of any person who could probably represent the interest of the petitioner. It is further stated that the hotel was running at a loss and the meter reading before and after the replacement of the meter would also falsify the argument of the respondents that there is tampering with the meter. They have given oral intimation followed by written complaint and it may not be open to the Board now to say that the petitioner has not taken follow up action. The petitioner had hoped that the Board will set right the WPC.6508/2006. 10 wrong instead what followed was the inspection putting the blame on the petitioner. It is unjustified is the case of the petitioner. 10. On the contrary learned Standing Counsel justified the order. Learned counsel for the respondents relied on the decision of the Gujarat High Court reported in **Ramjibhai Harjibhai v. Gujarat Electricity Board** (AIR 2000 Gujarat 225) and referred to paragraph 13, which reads as follows: “Having heard the learned counsel for the parties, in my opinion, the petition deserves to be partly allowed. On merits, I do no find any infirmity in the orders impugned. At the time of inspection, certain irregularities were found. It was alleged that there was tampering with the meter by the consumer. It is true that the petitioner was not present but his brother was very much present. He admitted that there was tampering with the meter so that it may run slow and that is how theft of electricity was committed by them. His statement was reduced in writing and in token thereof, signature of his brother was also obtained. After receipt of supplementary bill, no doubt, it was contended that the statement was taken under duress, but it is pertinent to note that no immediate action was taken either by the petitioner or by his brother. Ordinarily, if a statement of a person is taken under duress or threat or compulsion, such person would take an appropriate action WPC.6508/2006. 11 immediately by informing higher authorities that the officer subordinate to the said authority had obtained his statement which was not voluntary. In the instant case, nothing of that sort was done. Again, whether a statement was obtained or not under duress or coercion is a pure question of fact and in exercise of extraordinary power under Article 226/227 of the Constitution of India, this Court cannot enter into such question. It is also relevant and material to note that the Appellate Committee on which the power is conferred and which consists of experts and one of the officers is a retired judicial officer appreciated the facts and circumstances of the case, and did not agree with the contention raised by the petitioner. The finding recorded by the Appellate Committee cannot be substituted by the Court in exercise of power of judicial review.” Learned Standing Counsel also relied on the decision reported in **Asst. Engineer, Electrical, Irinjalakuda v. Ramankutty** (1966 K.L.J. 1). Learned counsel for the respondents also relied on Section 35 of the Terms and Conditions of Supply of Electrical Energy in support of her case. 11. In order to appreciate the contentions of the parties, it is necessary to advert to the mahazar. In the mahazar, which is produced as Ext.P5, it is inter alia stated as follows: WPC.6508/2006. 12 WPC.6508/2006. 13 11. It is to be noted that apart from making rather general allegations regarding malafides, I do not think that the petitioner has established malafides as such. There is a presumption that official acts are performed properly. As referred to by the appellate authority the motive of the APTS to fasten the liability on the petitioner alleging tampering is not seen established. The most crucial argument as I see in this case is that the complaint is alleged to have lodged in September, 2004. The inspection took place on 30.6.2005 by the APTS. If the things had happened as the petitioner alleges, the silence or inaction on the part of the petitioner for a very long period of time from September, 2004 till 30.6.2005 would appear to have a rather fatal effect on the case of the petitioner. One would have expected that the petitioner would follow it up particularly when it is his case that the electrician had noted the defect. Having regard to the ramification, one would expect the petitioner to follow it up. That apart, it is to be noted that going by the contents of the mahazar, it is little difficult to sit in Article 226 of the Constitution in particular to call the findings of the authority as palpably erroneous. At best the case of the petitioner is also a possible view even assuming that such a case as that of the petitioner can be countenanced. But going by the contents of the mahazar, I would think that the case of the respondents cannot be brushed aside as perverse. WPC.6508/2006. 14 The fact that the petitioner did not proceed to ventilate his grievances after September, 2004 and the failure to establish a clear case of malafides in my view would in the face of the contents of the mahazar and on an appreciation of the same by the statutory authorities including the appellate authority clinch the case of the respondents that the meter has been tampered with. In such circumstances I feel that the petitioner has failed to establish a case for interference in a writ jurisdiction. The writ petition fails and it is dismissed. (K.M. JOSEPH, JUDGE) sb