K.S. Abdul Sathar v. Kerala State Electricity Board

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 11TH DAY OF JANUARY 2012/21ST POUSHA 1933 **W.A.No.1872 of 2011** AGAINST THE JUDGMENT IN W.P.(C).NO.13010/2006-W, DATED 27-10-2011. ---- ## APPELLANT/PETITIONER:- ------------------------------------- K.S.ABDUL SATHAR, CENTURY PLYWOODS, KEERIYAD, P.O.KATTAMPALLY, KANNUR DISTRICT. BY ADV.SRI.P.M.PAREETH ## RESPONDENTS/RESPONDENTS:- ------------------------------------------------ 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VIDHYTHIBHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. DEPUTY CHIEF ENGINEER, ANTI POWER THEFT SQUAD, K.S.E.B., KOZHIKODE. 3. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.B., VALAPATTANAM, KANNUR DISTRICT. - R1 TO R3 BY STANDING COUNSEL SMT.P.K.RADHIKA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2011, THE COURT ON 11-01-2012 DELIVERED THE FOLLOWING:- ## W.A.NO.1872 OF 2011 ## **APPENDIX** APPELLANT'S ANNEXURES:----------------------------------------ANNEXURE-A1 TRUE PHOTO COPY OF THE METER READING AND CONSUMPTION FOR THE PERIOD FROM OCTOBER 2001 TO SEPTEMBER 2002. ANNEXURE-A2 TRUE PHOTOCOPY OF THE DIVISION BENCH DECISION IN NIRMALA METAL INDUSTRIES Vs. K.S.E.B. (2006 (3) KLT 465). ANNEXURE-A3 TRUE PHOTO COPY OF THE SUPREME COURT DECISION IN MPEB AND OTHERS Vs. SMT.BASANTHI BAI (AIR 1988 (SC) 71). - true copy - ## C.N.Ramachandran Nair & K.Vinod Chandran, JJ. ---------------------------------------W.A.No.1872 of 2011 ----------------------------------------Dated this, the 11[th] day of January, 2012 ## JUDGMENT ## K.Vinod Chandran,J.: The appellant, running a small scale industrial unit, under the name and style of “Century Plywoods”, filed a writ petition aggrieved by Exhibit P4 demand made by the Kerala State Electricity Board for the difference in electricity charges; pursuant to the replacement of the meter installed in the appellant's premises. The appellant's contention is that the meter installed in the premises of the appellant having been found faulty, the 3[rd] respondent had a duty to refer the dispute regarding the correctness of the meter to the Electrical Inspector as provided under Section 26(6) of the Indian Electricity Act, 1910, which was in force at the relevant time. The learned Single Judge negatived the claim of the appellant/petitioner on the ground that the appellant having never raised a dispute at the time of inspection or thereafter at the time of installation of new meter cannot turn back and rely on a statutory provision, which was never pressed into service. W.A.No.1872 of 2011 - 2 - 2. The inspection conducted in the premises of the appellant was on 5.4.2003 by the Anti Power Theft Squad (for short “APTS”) under the 1[st] respondent. Exhibit P1 mahazar was prepared in the presence of the petitioner, which specifically recorded that the meter was not functioning properly and that the capacitors were not functioning. The appellant was also issued with an additional bill, raising a demand of Rs.69,048/- being 20% of the fixed charge and current charge for the period October 2002 to March 2004. The said bill was dated 28.4.2003 and according to the petitioner it was served on him on 30.4.2003. The petitioner also, on his own showing, filed appeal before the 2[nd] respondent against Exhibit P2 bill. It was after this that the faulty meter was replaced and a new meter was installed. After the replacement of the meter, the average monthly consumption of power was calculated and Exhibit P4 bill was issued, demanding the excess amounts on the basis of average monthly consumption recorded in the new meter. The appellant filed appeal before the 2[nd] respondent, which was dismissed by Exhibit P8 order, which is challenged in the present writ petition. 3. The main ground taken by the appellant/petitioner before the learned Single Judge and in this appeal was that under W.A.No.1872 of 2011 - 3 - Section 26(6) of the Indian Electricity Act, 1910 it was mandatory that, on the meter being found faulty or defective, the same is to be referred to the Electrical Inspector, who alone will have the jurisdiction to estimate the amount of energy supplied to the consumer or the electrical energy contained in the supply during the period in which the meter remained faulty. The appellant also relied on the decision of a Division Bench of this Court in _**Nirmala Metal Industries v. K.S.E.B.**_ [2006 (3) KLT 465] and that of the Hon'ble Supreme Court in _**M.P.E.B. v. Basantibai**_ [AIR 1988 SC 71]. 4. The learned Single Judge found that Section 26(6) is invoked only when there is a dispute regarding the defect in a meter and that the appellant/petitioner not having raised any such dispute, cannot later turn around and seek reference under Section 26(6) to the Electrical Inspector. The decisions relied on by the appellant were also considered by the learned Single Judge and distinguished. 5. We have given anxious consideration to the grounds raised in appeal. It is admitted that the appellant was present at the time of inspection by the APTS and he had not raised a dispute or sought for reference of the dispute to the Electrical Inspector. It is apparently clear from a reading of Section 26(6) that reference of the W.A.No.1872 of 2011 - 4 - dispute can be by application of either party. The appellant without invoking the right conferred on the appellant under Section 26(6) thought it fit to raise the contention in the appeal filed before the Deputy Chief Commissioner, APTS. The appellant also approached this Court by W.P.(C).No.16298 of 2003, which was disposed of by Exhibit P6 judgment. In the said judgment, it was also directed that if the petitioner ( _sic._ ) has a case that the matter has to be referred to the Electrical Inspector, the same will be considered in the appeal. The appeal filed by the appellant was rejected by Exhibit P8 order dated 28.04.2006. On a reading of the said order, it is evident that the appellate authority has considered the claim of the appellant and rejected the same and found as follows:- _“When working of power meter was tested phase wise, it was found not properly working on R phase, which leads to one-third recording omission under principle of balanced load under Clause 42(b) of the conditions of supply. It is true that wiring of power meter was done correctly, still failure of pressure/CT current supply to meter could be disputed spontaneously due to various reasons such as corrosion at joints, etc. Such partial working of meter resulting out of failure of pressure/CT current supplies are not accuracy related. Since no accuracy issues are involved, testing by Electrical Inspector is not warranted. When the meter with recording omission on one phase was_ W.A.No.1872 of 2011 - 5 - _replaced, soon after inspection on 18.05.2003, drastic increase in consumption was noticed. In seventeen days 12760 units of energy was recorded when the average monthly consumption on previous meter was 15431 units only. This is a clinching proof of the non-working of one of the phases meter existed at inspection time. In the matter of some of the capacitors noticed not in order, the consumer needs a lenient view in light of Board order read as paper”._ The above findings would show that the defect noticed in the premises of the appellant was not of the meter, but of the under-recording of consumption due to the non-working of one of the Phases of the meter. Apart from the fact that the appellant had not sought for reference to the Electrical Inspector, on the facts of the case there was no requirement for invoking Section 26(6) for reference to the Electrical Inspector. The only method by which the under-recording of consumption could be estimated was that adopted by the Board. The Board, after curing the defect which led to the under-recording of consumption, recorded the consumption for the next 17 days and thus estimated the average monthly consumption. It is pertinent that the Deputy Chief Engineer, APTS in Exhibit P8 order has noticed that the defect of non-recording in ' **R** ' Phase would lead to omission in recording of one-third consumption. The estimate W.A.No.1872 of 2011 - 6 - made by the Board on the basis of consumption recorded for the 17 days after curing the defect is exactly one-third in excess of the power consumed monthly; prior to the curing of defect. In such circumstances, we are of the view that the decisions relied on by the appellant are not applicable to the facts of the case and the order of the appellate authority waiving the amounts charged towards defect noticed in the capacitors and confirming the estimate made for the last six months does not warrant any interference. The judgment of the learned Single Judge confirming the order of the first appellate authority is perfectly in order and requires no modification. The Writ Appeal is dismissed, however with no costs. Sd/C.N.Ramachandran Nair, Judge Sd/K.Vinod Chandran, Judge. vku/- - true copy -