IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 7TH DAY OF MARCH 2017/16TH PHALGUNA, 1938
WA.No. 374 of 2017 () IN WP(C).28752/2013
------------------------------------------AGAINST THE JUDGMENT IN WP(C) 28752/2013 of HIGH COURT OF KERALA DATED 13.12.2016
## APPELLANT/PETITIONER :
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CHRISTUDAS AGED 57 YEARS, SON OF NICHOLAS, "ARTHEEPUREDAM', MARIANAD, THIRUVANANTHAPURAM.
BY ADVS.SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH
## RESPONDENTS/RESPONDENTS:
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1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN, PATTOM POST, THIRUVANANTHAPURAM-695 004.
2. THE DEPUTY CHIEF ENGINEER ELECTRICAL CIRCLE (URBAN), POWER HOUSE, THIRUVANANTHAPURAM-695 036.
3. THE ASSISTANT ENGINEER ELECTRICAL SECTION, KANIYAPURAM, THIRUVANANTHAPURAM-695 031.
R BY SRI.P.A.AHAMED, SC, KERALA STATE ELECTRICITY BOARD
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AV
## K. SURENDRA MOHAN & MARY JOSEPH, JJ.
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W.A. No. 374 of 2017 - - - - - - - - - - - - - - - - - Dated this the 7th day of March, 2017
## JUDGMENT
## Surendra Mohan, J.
The writ petitioner in W.P.(C) No. 28752 of 2013 is in appeal challenging the judgment of the learned Single Judge dated 13.12.2016 dismissing the writ petition. The writ petition was filed challenging Ext.P6, an order passed by the 2[nd] respondent, who is the appellate authority under Section 127 of the Electricity Act, 2003 (hereinafter referred to as 'the Act' for short). As per the impugned order, a provisional assessment made by the 3[rd] respondent under Section 126 of the Act has been confirmed.
2. The short facts necessary for our purpose are
the following:
The appellant is conducting an industrial unit at Thiruvananthapuram. He is also the consumer of electric
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connection No. 14033. On 16.8.2010, the Anti Power Theft Squad (APTS), on an inspection, detected tampering with the seals of the electric meter. Ext.P1 is the mahazar prepared at the time of inspection. Since theft of electrical energy was detected, a provisional assessment was made under Section 126 of the Act, evidenced herein by Ext.P2. An amount of Rs.14,81,956/- was the assessment. A criminal case that was registered in connection with the said incident is still pending. The appellant objected to the assessment and the disconnection that was effected. He filed a writ petition before this Court. The same was disposed of directing the finalization of the bill, after hearing the appellant, within a month. Accordingly, the provisional assessment was finalized. The aggrieved appellant challenged the same before the 2[nd] respondent, who is the appellate authority, under Section 127 of the Act. While so, the Electrical Inspector filed Ext.P4
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report, indicating that the meter was recording only 2/3[rd] of the electricity consumed. The appellant therefore contended before the 2[nd] respondent that since the meter was reading 2/3[rd] of the electricity consumed, the energy that had escaped was computable at 1/3[rd] of the consumption. Therefore, the assessment ought to be limited to the said 1/3[rd] portion. In view of the above, it was contended that there were absolutely no grounds to impose such a huge liability on him, as done by Ext.P2. However, without considering any of the contentions, it is contended that Ext.P6 has been issued confirming the assessment.
3. The learned Single Judge considered the contentions of the appellant, took note of the contentions of the respondents and dismissed the writ petition. It was contended on behalf of the respondents that, since the meter had been tampered with on more than one occasion, it was
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not possible to conclude that an assessment, taking into account only 1/3[rd] consumption of the appellant, would be a proper estimation of the energy that had escaped the meter. The said contention has been accepted by the learned Single Judge.
4. According to Adv. P.B. Sahasranaman, who appears for the appellant, a specific contention that was urged in the appeal memorandum before the 2[nd] respondent was that, the assessment under Section 126 be limited to 1/3[rd] of the consumption of the appellant. This was in view of the fact that, admittedly as per Ext.P4 report, the meter was reading 2/3[rd] of the energy consumed. In spite of the specific contention being taken in the appeal memorandum, the same has not been considered in Ext.P6. The appellate authority had a duty to refer to and consider the said contention, which was not done. It was further contended that, consequent to
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the impugned proceedings, the industrial unit has been closed down and the huge liability that has been imposed on the Unit would result in an ultimate closure of the industry itself. The counsel therefore seeks interference with the judgment of the learned Single Judge.
5. Heard. We have been taken through Ext.P1 mahazar to show that, upon inspection, the seals of the appellant's electric meter was found to be tampered with. What is noted in Ext.P1 is that, the meter appeared to have been tampered with, a number of times. The meter was in a condition in which, it was possible to easily detach the lead wire. In such a situation, the contention of the respondents that it is not possible to correctly estimate the quantum of energy that has escaped metering is justified. The fact that, the meter had been recording 2/3[rd] of the energy consumed, cannot help the appellant in sustaining his contention that the
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assessment under Section 126 should be limited to 1/3[rd] of his consumption. This is for the reason that, by disconnecting the lead wire, the entire consumption would escape metering. To what extent and how long the said exercise had been done, is not evident. Therefore, the same can only be estimated. What the appellate authority has concluded in Ext.P6 is that when a meter is partially malfunctioning, what is done is to ignore the partial reading and consider it as fully malfunctioning. The learned Single Judge has also found that the said reasoning of the appellate authority is justified.
6. The counsel for the appellant has placed reliance on the decision in Jaggi v. Mahanagar Telephones Nigam Ltd. (AIR 1996 SC 2476). The said case involved the question as to whether an Arbitrator who decides a dispute under Section 7B of the Telegraph Act, 1885 should give reasons in support of his decision. It has been held by the Apex Court that, reasons
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are required to be recorded when it affects the public interest. It has also been held that if reasons are not given, it would be difficult for the High Court to adjudge how and under what circumstances the Arbitrator had arrived at his conclusions. There cannot be any quarrel on the said proposition. In the present case, the appellate authority has stated in Ext.P6 that when a meter is partially malfunctioning, it would treated as fully malfunctioning. The said statement answers the contention taken by the appellant though not in the precise manner in which judicial orders are couched. This is a case in which the appellant was found to have tampered with the meter not once, but repeatedly. In such cases, only an approximation of the energy that has escaped metering could be made. We are not satisfied that, such approximation should be limited to 1/3[rd] of the energy found to have been consumed by the appellant, as per his meter readings. Since
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the meter readings themselves are found to be incorrect, to peg the assessment on the said basis would not be justified.
7. For the foregoing reasons, we find no grounds to admit this writ appeal or to interfere with the judgment of the learned Single Judge.
The writ appeal is dismissed.
The counsel for the appellant seeks the grant of some time to pay the amount that has been assessed by Ext.P2. The appellant is granted three months time to remit the amount.
K. SURENDRA MOHAN
JUDGE
MARY JOSEPH JUDGE
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