Muhammed Haroon P.P v. Kerala State Electricity Board Limited & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944** ## **WP(C) NO. 29471 OF 2022** ## **PETITIONER/S:** MUHAMMED HAROON P.P AGED 34 YEARS S/O LATE ABDUL LATHEEF P P, PATHAYA PARAMBIL, RAHIMAN BAZAR, KOLATHARA,P O CHERUVANNUR, KOZHIKODE, PIN - 673655 BY ADV DHEERAJ KRISHNAN PEROT ## **RESPONDENT/S:** 1 THE SECRETARY KERALA STATE ELECTRICITY BOARD LIMITED, VAIDHYUTHI BHAVAN, THIRUVANANTHAPURAM, PIN - 695004 2 THE CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD LIMITED, NORTHERN CIRCLE, PALLIMUKKU, KOCHI, KERALA , PIN - 682011 3 THE ASSISTANT EXECUTIVE ENGINEER ELECTRICAL SUB-DIVISION, FEROKE, KOZHIKODE DISTRICT, PIN - 673631 4 THE ASSISTANT ENGINEER ELECTRICAL SECTION, KOZHIKODE DISTRICT, PIN - 67363 5 THE STATE ELECTRICITY OMBUDSMAN D.H ROAD & OFFSHORE ROAD, NEAR GANDHI SQUARE, ERNAKULAM, PIN - 682016 BY ADV B.PREMOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 29471 OF 2022** **2** ## **JUDGMENT** Petitioner is claiming to be a owner/proprietor of M/s Prestige Polymers, a small scale Chappal manufacturing situated at Kozhikode. Earlier, the establishment was under the Electrical Section, Feroke with consumer number 1166319009259 and then it was brought under the Areekkad Electrical Section with consumer No.1167899019163 having a connected load of 37KW with LT IV tariff. 2. Petitioner has approached this Court challenging the action of the KSEB and seeking the recovery of the amount on account of the mistake in respect of multiplication factor. On 8.10.2020, Sub Engineer of respondent No.3, Assistant Executive Engineer, Electrical sub-division along with the overseer inspected the industrial premises of the petitioner and prepared a site mahazar and found there was no tampering of the meter which was functioning properly but the multiplication factor (MF) for calculating the energy charges was wrong as the CT used was with CT ratio of 200/5 with resultant MF as 40. Instead of taking multiplication factor as 40, the multiplication factor used for electrical bill was 20 and raised a bill of Rs.7,17,602/-, Ext.P2. **WP(C) NO. 29471 OF 2022** **3** Petitioner approached the Assistant Engineer and protested to the demand raised in Ext.P2 but of no avail. An information under the RTI Act was sought vide application dated 5.2.2021 and 9.2.2021, Ext.P3 and P3(a). The reply Ext.P4 indicated that there was no fault of the petitioner in fact the system required upgradation as the CT should have been in the ratio of 100/5 rather than 200/5. On the basis of the information, petitioner preferred an O.P No.4/2021 before the Consumer Grievance Redressal Forum (CGRF- Northern Region). The CRRF vide order dated 19.1.2022 upheld the demand raised in Ext.P2. Against the aforementioned order, an appeal was preferred before the Electricity Ombudsman, which was dismissed. Learned counsel for the petitioner in support of the averments made in the writ petitions has raised the following submissions: 3. Regulation 113 of the Kerala Electricity Supply Code 2014 casts the responsibility on the licencee ie., KSEB regarding the accuracy of the meter. The meter was inspected and it was not suffering from any inherent mistake or over draw of the power than the sanctioned load or unauthorized load. 4. Regulation 152 of the Kerala Electricity Supply Code 2014 empowers the Electricity Board to cure the anomalies detected at the premises of the consumer but the fact remains that **WP(C) NO. 29471 OF 2022** **4** there was no change in the purpose of use of electricity by the consumer. The inaccuracy in metering cannot be attributed to the petitioner except only to the licencee. 5. Regulation 109 of the Kerala Electricity Supply Code, 2014 provides that it shall be the responsibility of the officials of the licensee to install a proper meter with its accessories such as CT etc. and keep the records properly for the purpose of calculating the energy consumption and then the energy charges. 6. In the light of Section 56 with regard to limitation applicable in the collection of undervaluation amount from the petitioner will be illegal if the respondent to do so, because the alleged arrears became due as early as in April, 2018, much before the 2 year limitation period as provided in the Electricity Act, 2003. 7. On the other hand, counsel representing the Electricity Board submitted that there would not have any difference that in cases of contract demand of 50KVA, as in the case of the petitioner, there is provisions to enhance the contract at any point of time. Even if the old CT is replaced with ratio 100/5A CT, there would not be any change in the consumption. In other words, whether it is 100/5A CT or 200/5A CT, only the actual consumption of the consumer was recorded and billed. The only fault was that the **WP(C) NO. 29471 OF 2022** **5** multiplication factor was mistakenly recorded as 20 instead of 40. It should have been 40 with effect from April 2018 and rightly so, the demand has been raised as Rs.7,17,602/-. By applying the provisions of Regulation 152 and noticing the provisions of Section 56A of the Electricity Act, 2003, Electricity department cannot be prevented from recovering the amount actually due as the limitation would start from the date of the detection in 2020 and relating back to April 2018. In support of the contentions relied upon the judgment of the Supreme Court rendered in Civil Appeal No.7235 of 2009 _**(M/s Prem Cottex v. Uttar Haryana Bijli Vitran Nigam Ltd and Ors.)**_ dated 5[th] October 2021. It was held that the analogy laid down in _**Assistant Engineer, Ajmer Vidyut Vitran Nigam Limited and Anr. v. Rahmathullah Khan alias Rahamjulla**_ would not apply to the case of rectification of mistake by the electricity department nor the provisions of Section 56 of the Electricity Act would apply. 8. I have heard the learned counsel for the parties and appraised the paper book. It is a matter of record that on 8.10.2020, inspection was conducted in the establishment of the petitioner and it was found that the electric connection was of 111 kW in LT-IV Tariff with a load of 37 KW. There was no temporary LT chamber and found to be in perfectly sealed condition. Meter was found to be working properly but it was noticed **WP(C) NO. 29471 OF 2022** **6** that the multiplication factor was incorrectly recorded as 20 instead of 40 and the consumer was being issued the bills at that rate. Regulation 152 as noticed by the Ombudsman in the order reads thus: _As per Regulation 152 Anomalies attributable to the licensee which are detected at the premises of the consumer._ _(1) Anomalies attributable to the licensee which are detected on inspection at the premises of the consumer, such as wrong application of multiplication factor, incorrect application of tariff by the licensee even while there is no change in the purpose of use of electricity by the consumer and inaccuracies in metering shall not attract provisions of Section 126 of the Act or of Section 135 of the Act._ _(2) in such cases, the amount of electricity charges short collected by the licensee, if any, shall only be realized from the consumer under normal tariff applicable to the period during which such anomalies persisted._ _(3) The amount of electricity charges short collected for the entire period during which such anomalies persisted, may be realized by the licensee without any interest:_ _Provided that, if the period of such short collection due to the anomalies is not known or cannot be reliably assessed, the period of assessment of such short collection of electricity charges shall be limited to twelve. months:_ _Provided further that while assessing the period of such short collection the factors as specified in sub-regulation (8) of regulation 155 shall be considered:_ _Provided also that realization of electricity charges short collected shall be limited for a maximum period of twenty four months, even if the period during which such anomaly persisted is found to be more than twenty four months._ 9. From the perusal of the same, it empowers the licensee to cure the anomalies attributed to them when detected on **WP(C) NO. 29471 OF 2022** **7** inspection as there is no change in the purpose of use of electricity by the consumer and the electricity charges short collected for the entire period can be realized from the consumer under normal tariff without any interest or penalty but in the proviso, when the anomalies are not known, it is restricted to 12 months. In this case, according to the contention of the respondent, the anomaly was detected with effect from April 2018 and the demand had correctly been read, in my view is not acceptable for the reason that for the entire period, the officials of the licensee had been visiting the premises for recording the meter and raising the bills, but did not detect such anomalies, therefore, the liability from April 2018 cannot be fastened. In my view, it should have been as per the proviso by confining it to twelve months. The sole basis of the argument of the petitioner had been on the information received under the RTI that when there is a contract amount of 50 KVA, the CT rating should have been in the ratio of 100/5 whereas in the premises of the petitioner it was 200/5. Said contention would pale into insignificance as rightly noticed by the Ombudsman that there would not be any change of consumption as it was only the multiplication factor; instead of 40, it had been incorrectly recorded as 20. All the provisions of the Electricity Supply Code has been **WP(C) NO. 29471 OF 2022** **8** referred to extensively, in the order of the Ombudsman. The bill issued to the appellant was for the amount short assessed due to wrong application of the multiplication factor from April 2018 to September 2020. It is a matter of record that the meter and CT were tested by the accredited agency and found to be working in a good condition and within an admissible limits of error. KSEBL could not be faulted with in applying the multiplication factor 40 instead of 20. There is no quarrel to the ratio of decidendi culled out in the judgment cited by the respondent wherein it has been clarified that in case of the short assessment notice, the provisions of Section 56 restricting the recovery for a period would not be applicable but the said ratio would not be applicable in the facts of the case as the anomalies were in the knowledge of the licencees as despite previous inspections of the premises but did not take action. It is for that reason, I modified the order by restricting the demand for 12 months as per the proviso to Regulation 152. With the modification aforementioned that the demand has to be confined as per the proviso to Regulation 152 for 12 months, rest of the order of the Ombudsman is upheld. The respondents are directed to issue the revised bill in terms of the observations recorded herein above **WP(C) NO. 29471 OF 2022** **9** within a period of 15 days from the date of receipt of a copy to the petitioner who shall deposit the amount within 15 days thereafter. Sd/- sab **AMIT RAWAL JUDGE** **WP(C) NO. 29471 OF 2022** **10** ## **APPENDIX OF WP(C) 29471/2022** PETITIONER EXHIBITS - Exhibit P1 THE TRUE COPY OF THE SITE MAHAZAR DATED 8.10.2020 ALONG WITH TRANSLATION OF EXHIBIT - Exhibit P2 THE TRUE COPY OF THE COMMUNICATION WITH COMMUNICATION NO. ESF/SHORTASSESMENT/202021 DATED NIL ,ALONG WITH TRANSLATION OF EXHIBIT - Exhibit P3 TRUE COPY OF APPLICATION DATED 5.2.21 ,ALONG WITH TRANSLATION OF EXHIBIT - Exhibit 3(a) TRUE COPY OF APPLICATION DATED 9.2.21 ,ALONG WITH TRANSLATION OF EXHIBIT - Exhibit P4 THE TRUE COPY OF THE REPLY OBTAINED FROM THE AUTHORITY CONCERNED UNDER EXT P3, ALONG WITH TRANSLATION - Exhibit P4(a) THE TRUE COPY OF THE REPLY OBTAINED FROM THE AUTHORITY CONCERNED UNDER EXT P3(A), ALONG WITH TRANSLATION Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED 30/08/2021, ALONG WITH TRANSLATION Exhibit P6 TRUE COPY OF THE ORDER OF THE HON'BLE STATE ELECTRICITY OMBUDSMAN AT ERNAKULAM