Union Polymers v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 20TH DAY OF JANUARY 2012/30TH POUSHA 1933 ## **WP(C).No. 23220 of 2006 (L)** **---------------------------** PETITIONER): ------------- M/S.UNION POLYMERS, IRINGOLE, PERUMBAVOOR, REP. BY ITS MANAGING PARTNER. BY ADVS.SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENTS: -------------- 1. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM THIRUVANANTHAPURAM. 2. THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE PERUMBAVOOR. 3. ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE PERUMBAVOOR. BY SMT.P.K.RADHIKA, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **WP(C).No. 23220 OF 2006** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |EXT.P1|:|TRUE COPY OF THE ADDITIONAL BILL DATED| |---|---|---| |||4.5.2000 FOR RS.38,069/- ISSUED BY THE| |`||3RD RESPONDENTS TO THE PETITIONER.| |EXT.P2|:|TRUE COPY OF THE MONTHLY BILLS FOR THE PERIOD| |||FROM 3/98 TO 10/98 ISSUED BY THE 3RD RESPONDENT| |||TO THE PEPTITIONER.| |EXT.P3|:|TRUE COPY OF THE JUDGMENT DATED 2.8.2000 IN| |||W.A.NO. 928/2000| |EXT.P4|:|TRUE COPY OF THE JUDGMENT DATED 25.5.2006 IN| |||O.P. NO. 13823/2000| |EXT.P5|:|TRUE COPY OF THE APPEAL DATED 15.6.2006 FILED BY| |||THE PETITIONER BEFORE THE 2ND RESPONDENT.| |EXT.P6|:|TRUE COPY OF THE ORDER DATED 16.8.2006 PASSED| |||BY THE 2ND REPONDENT.| |EXT.P7|:|TRUE COPY OF THE ADDITIONAL BILL DATED 24.8.2006| |||ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.| /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C) No. 23220 OF 2006** ......................................................................... **Dated this the 20[th] January, 2012** ## **J U D G M E N T** Correctness and sustainability of the additional bill raised by the respondent Board in respect of the energy charges for the period from March 1998 to October 1998, when the 'meter' was allegedly faulty, is under challenge. 2. The petitioner is running an industrial unit with the consumer No.5960/PDR and was paying the monthly bills as and when the same were being raised in respect of LT IV connection given to the petitioner. However, on a fine morning, the petitioner was served with Ext. P1 additional bill and was given to understand that the same was issued in view of the objection raised by the Accountant General. This was challenged by the petitioner by filing O.P. 13823 OF 2000, which was disposed of, relegating the petitioner to avail the statutory remedy as borne by Ext. P4. In tune with Ext. P4 judgment, the petitioner preferred statutory appeal before the second respondent vide Ext. P5. After considering the same, Ext. P6 order was passed, sustaining the disputed bill, which was followed by Ext. P7 **2** ## **W.P.(C) No. 23220 OF 2006** demand, threatening of disconnection, if not paid within the stipulated time therein. The petitioner challenges the correctness and sustainability of the above proceedings in this writ petition. 3. The specific case of the petitioner is that, the course pursued by the respondent Board is not correct or sustainable, as the respondents have not pursued the proper course as contemplated under Section 26(6) of the Electricity Supply Act, 1910 which makes it mandatory to have the meter tested by the Electrical Inspectorate, who alone was competent to have certified the defect. 4. Interpreting the scope of the said provision, the Apex Court has held, as per the decision rendered in _**Bombay Electricity Supply & Transport Undertaking v. Laffans (India)(P) Ltd & Another**_ [(2005)4 SCC 327] that, unless and until the defective meter was got inspected by the Electrical Inspectorate and due amount, if any, was worked out by the concerned inspector, no amount was liable to be claimed by the licensee, on the basis of the test, if any, conducted in the lab of **3** ## **W.P.(C) No. 23220 OF 2006** the licensee. The said decision was followed by a Division Bench of this Court and the law was laid in crystal-clear terms in _**Nirmala Metal Industries vs. K.S.E.B.**_ ( **2006 (3) KLT 465)** . Admittedly, such a course has not been followed in the instant case and as such, it is squarely covered by the above decision and hence interference is sought for. 5. Despite the pendency of the matter for more than five years, no counter affidavit has been filed from the part of the respondent Board. The learned Standing Counsel for the Board, however, submits that the decision rendered by the Division Bench of this Court in **2006(3) KLT 465 (cited supra)** has been considered and interpreted by another learned Judge of this Court as per the judgment dated 27.10.2011 in W.P.(C) 13010 of 2006, whereby it has been held that, unless a dispute is raised that the meter is faulty, Section 26(6) of the Act cannot be invoked. Since no such dispute was raised in the instant case, the petitioner cannot successfully challenge the additional bill, submits the learned Standing Counsel. 6. Going by the materials on record, it is seen that the **4** ## **W.P.(C) No. 23220 OF 2006** additional bill happened to be raised by the respondent Board, merely based on the 'audit objection' from the part of the Accountant General, pointing out that the consumer had to pay additional amount for the period from 3/98 to 10/98, i.e., during the faulty period, when the petitioner was charged relatively less. It is also stated that the said defective meter was replaced by a new one on 24.11.1998; which got burnt out during April, 1999 and hence was replaced by another good meter. The additional bill is sought to be sustained referring to the fact that the average consumption was higher, after the replacement of the meter, than that of the disputed period from 3/98 to 10/98. 7. The question to be considered here is, whether the respondent Board can place reliance on the judgment rendered by the learned Judge in W.P.(C)No.13010 of 2006. In the said case, the inspection was conducted on 05.04.2003 when the meter was found as defective and it was replaced by installing a new meter on 15.05.2003. The petitioner therein was informed as per Ext. P1 Mahazar dated 05.04.2003, that the meter was **5** ## **W.P.(C) No. 23220 OF 2006** not functioning properly. The petitioner filed an appeal only on 22.05.2003 and no dispute was ever raised after he was informed vide Ext. P1 Mahazar on 05.04.2003 or at least when the meter was sought to be replaced on 15.05.2003. It was much before the replacement of the meter, that the disputed bill was raised on the petitioner on 28.04.2003. Still, there was no dispute and it was in the said circumstance, that the learned Judge observed that Section 26(6) of the Act could not have any application to the said case, thus declining interference with regard to the challenge raised. In so far as the present case is concerned, it stands entirely on a different footing. The additional bill has been raised on the petitioner in respect of the period from 3/98 to 10/98 merely based on the audit objection raised by the Accountant General in the year 2000. By the time, the meter had already been replaced. No opportunity was given to the petitioner to raise any 'dispute' and the petitioner was never aggrieved at any point of time before the year 2000, as no liability was proposed to be mulcted upon the shoulders of the **6** ## **W.P.(C) No. 23220 OF 2006** petitioner. This being the position, it cannot be said that no dispute has been raised by the petitioner and on the other hand, there was no need, necessity or occasion for the petitioner to have raised any such dispute . 8. The law has been laid down by the Apex Court and also by a Division Bench of this Court in crystal-clear terms, that, if the meter is defective, it has necessarily to be got inspected by the Electrical Inspectorate and it is for the Electrical Inspector to quantify the amount payable by the consumer in respect of the period during which the meter was defective. This is the mandate under Section 26(6) of the Act, as interpreted by the Apex Court and by this Court. This Court finds that the issue involved in the present case is squarely covered by the above binding judicial precedents and the petitioner is entitled to succeed . In the above circumstance, the impugned order is set aside. The writ petition is allowed . No cost. **P.R. RAMACHANDRA MENON, JUDGE.** lk