Dr. Thomas M. George v. Kerala State Electricity Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931** **OP.No. 20791 of 1997(A)** **----------------------------------** **PETITIONER:** - **-------------------** **DR. THOMAS M. GEORGE, DIRECTOR, ANUGRAHA HOSPITAL, KOTTAYAM.** **BY ADV MR.J.JULIAN XAVIER.** **RESPONDENTS:** **------------------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.** **2. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KOTTAYAM CENTRAL, KOTTAYAM.** **3. CHIEF ELECTRICAL INSPECTOR, GOVT. OF KERALA, ELECTRICAL INSPECTORATE, THIRUVANANTHAPURAM.** **R1 & R2 BY MR.C.K.KARUNAKARAN, SC, KSEB, R3 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P. NO.20791/1997-P:** ## **ORDER ON C.M.P. NO. 37352/1997 IN O.P. NO. 20791/1997-A** **CLOSED** **07/01/2010.** **SD/- S.SIRI JAGAN, JUDGE.** **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE ADDITIONAL BILL DTD 19/06/97 ISSUED TO THE PETITIONER.** **EXT.P.2: COPY OF THE DETAILED CALCULATION ISSUED TO THE PETITIONER.** **EXT.P.3: COPY OF THE PROCEEDINGS DTD. 24/08/93 OF THE R.3. IN SIMILAR CASE OF ANOTHER CONSUMER.** **EXT.P.4: COPY OF THE ORDER DT. 31/01/97 IN CMP.3420/97 IN O.P. 1920/97.** **EXT.P.5: COPY OF THE PETITION DTD. 02/07/97 FILED BY THE PETITIONER BEFORE THE R.3.** **EXT.P.6: COPY OF THE JUDGMENT DTD. 04/07/97 IN O.P. 11545/97.** **EXT.P.7: COPY OF THE PROCEEDINGS DTD. 15/10/97.** **EXT.P.8: COPY OF THE INVOICE DTD. 15/11/97.** **EXT.P.9: COPY OF THE DETAILED CALCULATION DTD. 17/11/97.** **EXT.P.10: BOARD ORDER DTD. 23/05/2001 OF THE CHIEF ELECTRICAL INSPECTOR.** ## **RESPONDENTS' EXHIBITS:** **EXT.R2.A: COPY OF THE SITE MAHAZAR PREPARED BY THE ASST. ENGINEER, ELECTRICAL MAJOR SECTION, KOTTAYAM CENTRAL DTD. 19/05/1997.** **EXT.R2.B: COPY OF THE COUNTER AFFIDAVIT FILED BY THE K.S.E. BOARD BEFORE THE CHIEF ELECTRICAL INSPECTOR, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM DTD. 01/09/1997.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** S.SIRI JAGAN, J. ================== ## O.P.No.20791 of 1997 ================== Dated this the 7[th] day of January, 2010 ## J U D G M E N T The petitioner is a consumer of electricity. He is running a hospital. He had two connections to the hospital. On the ground that, on an inspection on 19.5.1997, the Anti Power Theft Squad of the Kerala State Electricity Board detected unauthorised additional load of 41 KW and defect in the meters, the petitioner was given two bills, one, Ext.P1, for Rs.1,97,240/- and another bill, which the petitioner has not produced, for Rs.7,524/-. In this original petition, the petitioner is confining his grievance only regarding Ext.P1 alone and he had already paid the amount covered by the other bill. Ext.P1 covers three demands. The first is penalty on fixed charges for the unauthorised additional load. The second is penalty on current charges for unauthorised additional load. The third is additional charges payable by the petitioner for short consumption of electricity on account of the fault in the meter from the alleged date when the meter became faulty, till the date of inspection. According to the petitioner, the petitioner was never informed that the meter was defective and, therefore, he never had any occasion to raise a dispute, for which he had a right under Section 26(6) of the Indian Electricity Act, which was in force at the relevant time. The petitioner would submit that, 2 o.p.20791/97 without giving the petitioner an opportunity to question the opinion of the Board that meter is defective and an opportunity to the petitioner to approach the Electrical Inspector under Section 26(6) of the Indian Electricity Act, the respondents could not have, in law, recoverd any amounts by way of electricity charges from the petitioner other than what was actually recorded in the meter. However, the petitioner filed Ext.P5 petition before the Chief Electrical Inspector in respect of the said bill. He then approached this Court filing an O.P.No.11545/1997, in which, by Ext.P6 judgment, this Court directed the Chief Electrical Inspector to consider the petition filed by the petitioner in that regard. Pursuant to the same, the Electrical Inspector passed Ext.P6 order, whereby he accepted the contention of the Electricity Board that the meter was defective, even without inspecting the meter and directed re-computation of the electricity charges payable by the petitioner on the assumption that the average monthly consumption of electricity by the petitioner is 2500 units. He also directed the petitioner to pay penalty on the unauthorised additional load both on fixed charges and current charges as per the directions given by him regarding calculation of the same. Ext.P7 is the order of the Chief Electrical Inspector. The petitioner is challenging the same in this original petition. 2. According to the petitioner, the whole exercise undertaken 3 o.p.20791/97 by the Chief Electrical Inspector is totally faulty. He would contend that for deciding whether the meter was defective or not, there was a duty on the Electricity Board to produce the defective meter before the Electrical Inspector. The Board did not produce it before the Electrical Inspector. The Electrical Inspector did not direct the Board to produce the same for inspection also. What the Electrical Inspector has done is to simply accept the opinion of the Board that the meter was defective. According to the petitioner, when the petitioner has denied that the meter was defective, it was the duty of the Electricity Board to prove before the Electrical Inspector that the meter was faulty. Without considering independently after testing the meter whether the same is defective, the Electrical Inspector could not have directed payment of electricity charges for any period. In support of this contention, the petitioner relies on the Division Bench decision of this Court in _Nirmala Metal Industries v. K.S.E.B._ [2006 (3) KLT 465]. As far as the unauthorised additional load is concerned, he disputes that he used unauthorised additional load at all. He would submit that for the purpose of deciding whether there was authorized additional load the respondents should have taken into account only the points actually in use by the petitioner and not all the plug points available in the hospital. According to the petitioner, going by the same, the petitioner never used more than the authorized load. The petitioner would submit 4 o.p.20791/97 that even assuming that the petitioner has used unauthorised additional load, penalty is payable only on fixed charges and not on current charges. The petitioner relies on the decision of this Court in _George Joseph v. K.S.E.B_ . [2008 (4) KLT 610] in support of this contention. 3. A counter affidavit has been filed by the 2[nd] respondent, in which, it is contended that after the inspection, the Anti Power Theft Squad had prepared a site mahazar, in which, it has been specifically mentioned that the meter was defective. That mahazar was signed by the manager of the petitioner and, therefore, the petitioner cannot now contend that he was not aware of the fact that the meter was defective. Therefore, according to the respondents, the petitioner is liable to pay additional electricity charges for the electricity short recorded on account of the defect in the meter for six months prior to the date of inspection as computed by the Electrical Inspector. Regarding the unauthorised additional load, they would submit that for the purpose of deciding whether there was unauthorised additional load, what is relevant is not plug points, which were actually in use by the petitioner, but the actual plug points installed by the petitioner for use in addition to the authorised ones as per the original power allocation by the Electricity Board. According to them, going by the same, the petitioner was actually using 41KW power in excess of the 5 o.p.20791/97 authorised load. They would submit that under Regulation 42(d) of the Conditions of the Supply of Electrical Energy, penalty is payable both on fixed as well as current charges. 4. I have considered the rival contentions in detail. 5. I shall first consider the question as to whether the petitioner is liable to pay any additional electrical charges on account of the alleged defect in the meter as contended by the Electricity Board. It is true that a mahazar was prepared. But, according to the petitioner, after preparing the mahazar, the squad themselves removed the meter replacing the same with another one. As such, the petitioner was deprived of an opportunity to raise a dispute under Section 26(6) appropriately. Further, according to the petitioner, if the meter was defective, there was a duty cast upon the Electricity Board to get it inspected by an independent authority like the Electrical Inspector, for deciding whether the meter was faulty, without which they could not have mulcted the petitioner with any additional electrical charges. I find considerable merit in the contention of the petitioner. This Court had in _Nirmala Metal Industries's case_ (supra), held thus in paragraphs 7 to 9: “7. We may indicate that it is the responsibility of the Board to install trouble free meter in the premises of the consumer and see that the meter is recording correctly the energy consumed. Duty is cast on the Board to get the defective meter tested not at the testing centre of the Board but by an independent authority like the Electrical Inspector. 6 o.p.20791/97 Report obtained from the testing centre of the Board is not binding on the consumer in the case of a defective meter. The Board cannot take away the defective meter from the premises of a consumer and then raise a bill after getting it tested in its own testing centre. By removing the meter from the premises the Board is spoiling the best evidence to the advantage of the consumer. Consumer has no dispute that the meter is defective. The question of consumer raising the dispute before the Electrical Inspector under S.26 does not arise though in a given case consumer can get the meter tested by an independent authority like Electrical Inspector. We may however, add that the situation is different in a case where it is noticed that the consumer has tampered with the meter. In such a situation, it is not a case of defective meter but a case of a tampered meter warranting no interference by the Electrical Inspector. This legal position is well settled by the decision of the apex court in _Madhya Pradesh Electricity Board v. Basantibai_ (1988) 1 SCC 23). Learned single Judge placed reliance in _Uthup's_ case (supra). That is not a case of defective meter. 8. Learned single Judge of this court held that it is open to the consumer to move the Electrical Inspector to decide the dispute as to the correctness of the meter. True, if the licensee wants the meter to be tested by the Electrical Inspector he can take recourse to that; so also the consumer. As far as the present case is concerned, it is a case of a defective meter. If the Board wants to raise a bill on the plea that it is a defective meter it is for the Board to take the meter from the premises of the consumer and also raise a bill in accordance with S.26 of the Act. 9. We are of the view that the learned single Judge has failed to appreciate the facts and the law correctly. We therefore set aside the judgment of the learned single Judge and allow the Writ Appeal. We are of the view that since the meter has already been removed by the Board to its testing centre and not to the Electrical Inspector under S.26(6), the Board is not justified in raising the bill against the consumer. The Original Petition is allowed and Exts.P1, P1(a) and P4 proceedings would stand quashed. The amounts, if any, paid by the consumer pursuant to the orders of this court or otherwise shall be adjusted towards future bills.” (underlining supplied) In this case, the Board has failed a perform their duties under the Indian Electricity Act as explained in the abovesaid judgment. That being so, as decided in that judgment, the Board cannot demand any additional electricity charges from the petitioner. The first point, therefore, is decided in favour of the petitioner. 7 o.p.20791/97 6. Regarding the question as to whether the petitioner is liable to pay penalty on both electricity charges and current charges, the issue is covered by my decision in _George Joseph's case_ (supra). In that decision, I held that under Regulation 42(d), a consumer is liable to pay penalty only on the fixed charges and not on the current charges. Of course, the learned standing counsel appearing for the Electricity Board points out that the said judgment has been taken in appeal and is pending appeal before the Division Bench. However, I do not think that simply because an appeal has been filed against that judgment, the ratio of the decision in that judgment ceases to be operative. Unless and until the Division Bench reverses that decision, the decision applies to all pending cases. Therefore, following that decision, I hold that the petitioner is liable to pay penalty under Regulation 42(d) only on the fixed charges and not on the current charges. The counsel for the petitioner submits that if the petitioner is liable to pay penalty for the unauthorised additional load, his contention that there was no unauthorised additional load may be left open to be agitated again, if necessity arises, in future. The result of the above discussion is that the petitioner is liable to pay only that part of the charges as per Exts.P7 to P9 only in respect of the penalty for unauthorised additional load on the fixed charges alone. Therefore, Exts.P7 to P9 are quashed to that extent. 8 o.p.20791/97 The 2[nd] respondent is directed to issue revised bill in accordance with the above directions. If the petitioner has already paid any amount in excess of what is actually due, the same shall be adjusted against the future bills of the petitioner. I make it clear that the contention of the petitioner that there was no unauthorised additional load is left open to be agitated by the petitioner again, if necessity arises, in future. The original petition is disposed of as above. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 9 o.p.20791/97 S.SIRI JAGAN, J. ================== O.P.No.20791 of 1997-A ================== J U D G M E N T 7[th] January, 2010