M.P. Musthaffa v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 16TH DAY OF MARCH 2016/26TH PHALGUNA, 1937 ## WP(C).No. 1324 of 2006 (G) --------------------------- PETITIONER(S): ---------------------- M.P. MUSTHAFA, (PROPRIETOR), M/S.MUSTHAFA WOOD INDUSTRIES, PADINJARATHARA, WAYANAD. BY ADV. SRI.VARGHESE PREM RESPONDENT(S): ------------------------- 1. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDHYUTHY BHAVAN, TRIVANDRUM. 2. DEPUTY CHIEF ENGINEER, ANTI POWER THEFT SQUAD, KOZHIKODE. 3. ASSISTANT ENGINEER, ANTI POWER THEFT SQUAD UNIT, KALPETTA. BY SRI.JOSE J.MATHEIKEL, SC, KSEB SMT.P.K.RADHIKA, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.T.O. WP(C).No. 1324 of 2006 (G) ## APPENDIX ## PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF MAHAZAR PREPARED BY 3RD RESPONDENT DATED 29.4.2003. EXT.P2 TRUE COPY OF ORDER APTS/DCE/KDE/BV 2529/03/KKD/549 DATED 30.9.2005 ISSUED BY 2ND RESPONDENT. EXT.P3 TRUE COPY OF NOTICE NO.BB3/05-06 DATED 3.1.2006 ISSUED BY 3RD RESPONDENT TO PETITIONER. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/- ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.1324 of 2006 ----------------------------------------------Dated this the 16[th] day of March, 2016** ## **JUDGMENT** The captioned writ petition is filed by the petitioner seeking to quash Exts.P1 to P3 and all proceedings pursuant to the same, and for other related reliefs. 2. Brief facts required for disposal of the writ petition are as follows: 3. Petitioner is conducting a mill under the name M/s. Musthaffa Wood Industries. He is a consumer of the respondent Board having No.168PT under the Electrical Section, Vythiri. The electricity charges were being regularly and promptly paid by the petitioner as per the reading taken by the officials of the Board. Petitioner was not informed of any defects in the meter or any other complaints by the officials of the Board. During the 1[st] week of March, 2003 and 1[st] week of April, 2003, the Anti Power Theft Squad inspected the premises of the petitioner and no defects were noted. 4. It is further contended by the petitioner that, on 29.04.2003, the Anti Power Theft Squad headed by 3[rd] **W.P.(C) No.1324 of 2006** 2 respondent inspected the premises in the absence of the petitioner and alleged that the consumer's power meter was not recording consumption properly. Thereupon the 3[rd] respondent prepared Ext.P1 mahazar. As per Ext.P1, it is recorded that the Terminal cover seal and the TMR seal of the meter were intact and there was no tampering on the part of the petitioner or others. Thereafter, a new CT operated meter was provided and the alleged defective meter was removed by the 3[rd] respondent, depriving the petitioner an opportunity to establish that the meter was not defective. Consequent to the said course of action, petitioner was re-assessed for past 6 months and supplementary bill amounting to Rs.30,211/- was served. If the previous and subsequent readings of the meter is compared with, the energy consumed by the petitioner during the course of inspection cannot be said to be false and therefore there was no defect to the meter at all, is the contention of the petitioner. It is also contended that even after the meter was replaced by a new one, the consumption of energy is almost similar and petitioner contends that the same is also satisfactory evidence to establish that the meter removed from the premises of the petitioner was not defective. 3 **W.P.(C) No.1324 of 2006** 5. Aggrieved by the constrained circumstances, petitioner has filed appeal before the 2[nd] respondent. The 2[nd] respondent after considering the contentions raised by the petitioner as well as the Board officials has arrived at an illegal finding that the mahazar prepared by the Anti Theft Squad was in accordance with law and the bills issued accordingly was in order. 6. Heard learned counsel for the petitioner and the respondents. 7. The thrust of the contentions advanced by the petitioner is that when a meter is found to be defective by the officials of the Board, as provided under law, a duty is cast on the Board to see that the same is tested with the Electrical Inspectorate or other independent agency in order to convince the consumer that the meter was defective. That apart, it is contended that on the date of the inspection itself, a mahazar was prepared recording that two phases of the meter were not working and therefore the meter was not showing the correct reading of consumption of electricity and thereafter the meter was removed by the Board officials and immediately another meter was installed in the premises of the petitioner. 4 **W.P.(C) No.1324 of 2006** Therefore, it is the contention of the petitioner that, he was not provided with sufficient opportunity in order to get himself convinced that the meter was defective and that the same was not recording the actual consumption of power. Learned counsel also contended that the data provided by the petitioner in the writ petition with respect to prior and subsequent consumption of electricity after the inspection was conducted, and so also after the replacement of the meter with a new one remains almost same, which is an indicative factor to establish that the meter provided in the premises of the petitioner and removed by the Board officials was not defective. 8. Learned counsel has also invited my attention to the Division Bench judgments of this court in _**'M.C. Mammen v. K.S.E.B**_ ' [1995 (1) ILR Kerala 723] and ' _**Nirmala Metal Industries v. K.S.E.B'**_ [2006 (3) KLT 465]. On a perusal of the facts and circumstances involved in the said cases, it is categoric and clear that this Court was considering in those cases the question with respect to dealing with the issue of a defective meter and has held that in order to identify and convince the consumer with respect to the defective meter, the **W.P.(C) No.1324 of 2006** 5 same should be tested by an independent agency like Electrical Inspectorate. It is also held in the said judgments that without adopting such a method, it was not proper on the part of the Board to issue a bill with respect to the energy alleged to be not recorded by the defective meter. I find force in the contention raised by the petitioner especially in view of the binding precedents of this Court cited _supra_ . 9. On the other hand, learned counsel for the respondents has submitted that even though an inspection was conducted twice, prior to the removal of the defective meter, the officials were not competent enough to test the working of the meter and therefore such an inspection is not an authoritative factor to arrive at a conclusion that 15 days prior to the inspection of the defective meter, there was no defect to the meter at all. It is also contended by the learned counsel that the entire aspects of the matter were considered by the 2[nd] respondent in the appeal filed by the petitioner and the same is passed in accordance with law and therefore the petitioner is not entitled to challenge the same by invoking the discretionary jurisdiction of this Court conferred under Article 226 of the Constitution of India. 6 **W.P.(C) No.1324 of 2006** 10. Having considered the rival submissions and taking into account the judgments of this court cited _supra_ , I am of the considered opinion that, when the meter was found defective, the Board officials should have tested the same by taking it to the Electrical Inspectorate and convince the consumer that the meter was defective or power consumed was not recorded properly by the meter. Having not done so, Board officials was not competent enough to say that the meter was defective and therefore the petitioner was liable to pay the electrical charges due to non-recording of the electrical energy by two phases of the meter. The judgments cited _supra_ rendered by this Court also lay down the law that when the meter is found to be defective, the Board was under duty to test the same with an independent agency like Electrical Inspectorate. These aspects are not considered by 2[nd] respondent while passing Ext.P2 order and therefore Ext.P2 order suffers from illegality, arbitrariness and irrationality warranting interference under Article 226 of the Constitution of India. 11. Therefore, I set aside Ext.P2 order and direct the 2[nd] respondent to re-consider the whole issue taking into account **W.P.(C) No.1324 of 2006** 7 the principles laid down by this Court in the judgments cited supra. The whole exercise shall be completed by the 2[nd] respondent within a period of two months from the date of receipt of a copy of this judgment, taking into account the directions contained above. Till such time, the interim order passed by this Court will continue. The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/16.03.2016