WA No. 531 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 4[TH] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943** ## **WA NO. 531 OF 2017** ## **AGAINST THE JUDGMENT DATED 01.02.2017 IN WP(C) NO.19153/2015 OF HIGH COURT OF KERALA, ERNAKULAM** ## **APPELLANTS/PETITIONERS:** 1 THE DEPUTY CHIEF ENGINEER,ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD LIMITED,HARIPPAD. 2 THE SPECIAL OFFICE (RREVENUE) KERALA STATE ELECTRICITY BOARD LIMITED,VYDHYUTHI BHAVANAM, PATTOM,THIRUVANANTHPAPURAM. BY ADVS.SRI.RAJU JOSEPH (SR.) SRI.GEORGEKUTTY MATHEW, SC, KSEB ## **RESPONDENTS/RESPONDENTS:** 1 THE CONSUMER GRIEVANCE REDRESSAL FORUM FOR KERALA STATE ELECTRICITY BOARD LIMITED,CENTRAL REGION, POWER HOUSE BUILDING,CEMETERY MUKKU JUNCTION, ERNAKULAM, KOCHI. 2 M/S. CENTRAL TRAVANCORE, SPECIALIST HOSPITAL LIMITED,MULAKKUZHA, CHENGANNOOR-689 505. * ADDL.R3 IMPLEADED ADDL.R3 EXECUTIVE ENGINEER, TMR DIVISION, PALLOM IS SUO MOTU IMPLEADED AS ADDL.R3 AS PER JUDGMENT DATED 04.10.2021 IN W.A.531/17 BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR,SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN,SRI.KURYAN THOMAS, SRI.PAULOSE C. ABRAHAM ## **OTHER PRESENT:** ADV JAI MOHAN FOR ADV. M. GOPIKRISHNAN NAMBIAR FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA No.531 of 2017 2 ## **S.V.BHATTI & VIJU ABRAHAM, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No.531 of 2017** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of October 2021** ## **JUDGMENT** ## **Viju Abraham, J.** Appellants are the petitioners in W.P.(C) No.19153 of 2015. The writ petition was filed challenging Ext.P6 order issued by the 1[st] respondent whereby demand for Rs.23,15,304/- raised by the 2[nd] appellant vide Ext.P4 was cancelled. As averred in the writ petition, the 2[nd] respondent is a high tension consumer under the Electrical Section, Mulakkuzha bearing consumer No.LCN-32/3532 with a contract demand of 360KVA. 2[nd] respondent is paying energy charges on monthly basis as per the reading recorded by the Asst. Engineer of the Board. During July 2010, it was found that the consumption suddenly reduced to 54,944 even though the activities of the 2[nd] respondent were going on normally and from July, 2010 onwards the meter recorded only low consumption. On seeing such huge difference, on 01.12.2011 an officer was deputed for testing the meter and on his intimation that the meter required testing, another team of the Kerala State Electricity Board officials was deputed to conduct an inspection on 06.12.2011 and in the said inspection it was found that LT fuse on 'R phase' of the PT was blown off and the R phase voltage is missing at meter terminals causing WA No.531 of 2017 3 under-recording in the meter. The supply to the meter was normalised on the same day itself by replacing the fuse. The Board officials entered a finding that the meter did not show the correct recording due to the defect in the fuse and therefore took steps to recover the amount undercharged from the 2[nd] respondent relying on Regulation 24(5) of the Kerala Electricity Supply Code, 2005. The Executive Engineer, TMR Division, Pallom by Ext.P2 directed the 2nd appellant to issue a revised bill by adding 50% consumption to the recorded consumption. Consequent to the same, Ext.P4 demand notice for an amount of Rs.23,15,304/- was issued to the 2[nd] respondent. Said demand was challenged in W.P.(C) No.10635 of 2012 and this Court as per judgment dated 07.01.2014 disposed of the writ petition directing the 2[nd] respondent to approach the 1[st] respondent Consumer Grievance Redressal Forum challenging the demand and directed the Forum to decide the matter within two months and all further coercive steps for recovery as per the demand notice was kept in abeyance for two months. 1[st] respondent Forum heard the matter and by Ext.P6 order the demand for Rs.23,15,304/- issued by the 2[nd] appellant was set aside. Aggrieved by Ext.P6 order the appellants filed W.P.(C) No.19153 of 2015 and the learned single Judge on a consideration on the matter, declined to interfere with Ext.P6 order passed by the 1[st] respondent Forum holding that this Court sitting in judicial review do not find any WA No.531 of 2017 4 reason to interfere with the impugned order. It is aggrieved by the same the present appeal has been filed. 2. Shri Raju Joseph, learned senior counsel appearing for the appellants/petitioners would contend that the meter was not showing the correct reading as the fuse in the R phase of the PT was blown off and after rectifying the same the data stored in the meter for the period from 08.07.2010 to 06.12.2011 was downloaded. It was further contended that as the 3 phases are equally balanced only arithmetical calculation is needed to find out the undercharging and it is on the said basis that Ext.P4 demand was issued and the same is perfectly legal and valid. 3. Shri Jai Mohan, learned counsel appearing for the 2[nd] respondent made his submissions based on the counter affidavit filed in the writ petition and contended that the calculation arrived at for issuing Ext.P4 demand notice is without any basis and the 1st respondent Forum in Ext. P 6 order has found that there was even less consumption for some months previous to the disputed period than the consumption pattern submitted by the respondents for the said period. It was specifically contended that the fall in the consumption pattern was noticed by the Board from July 2010, but there was an undue delay on the part of the Board as the inspection was conducted only in December 2011 to find out the reason for the fall in consumption. The WA No.531 of 2017 5 inspection for meter testing and reading by a specially trained Assistant Engineer of the Board can only be treated as an investigation assessment as mandated under Section 126 of the Electricity Act, 2003, and that none of the procedures contemplated as per the said Section has been followed and therefore, the proceedings initiated are vitiated. No scientific study had been conducted to ascertain the short assessment. It was also contended that before Ext.P4 demand notice was issued the Board was obliged to give notice to the 2[nd] respondentconsumer and heard them before a final decision was taken. It is further contended that they were not served with any documents relied on by the Board to conclude that there is undercharging of consumption. The counsel for the 2nd respondent relies on the decisions in **State of Orissa v. Dr (Miss) Binapani Dei and others [AIR 1967 SC 1269], D.K.Yadav v. J.M.A.Industries Ltd [(1993) 2 SCC 259]** and **Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central-I and another [(2008) 14 SCC 151]** to contend that issuance of Ext.P2 communication and consequential demand as per Ext.P4 are bad in as much as the same being issued without notice to them. On the contrary, the appellants contend that the demand now raised is based on strict arithmetical calculation for finding out the undercharging, and therefore Ext.P4 demand notice is perfectly legal and valid. WA No.531 of 2017 6 4. Ext.P4 demand notice was issued based on Ext.P2 communication issued by the Executive Engineer, TMR Division, Pallom.The 1[st] respondent Forum held in Ext P6 order that the appellants raised the demand for the disputed period, i.e. from 6.2010 to 11.2011, only on a presumption based on low consumption pattern and that such presumption need not be correct without supporting documents. 1[st] respondent Forum also noticed that there was even less consumption for some months previous to the disputed period than the consumption pattern submitted by the appellants for the same period and that the appellants failed to establish the short assessment with proof of mahazar or by any scientific approach. The learned single Judge also entered a finding that even in proceedings claiming undercharging of the consumption, fresh proceedings can only be initiated with notice to the parties. 5. Ext.P2 quantification of the consumption and consequential demand as per Ext.P4 for an amount of Rs.23,15,304/- are issued without notice to the 2[nd] respondent-consumer. The said fact was taken note of by the learned single Judge also. The 2nd respondent relying on the decisions referred above contended that every administrative decision which involves civil consequences must be just, fair, reasonable, non-arbitrary, and in consonance with the principles of natural justice. A finding in the nature of Ext.P2 and consequential WA No.531 of 2017 7 demand vide Ext.P4 without affording an opportunity of hearing and without supplying necessary materials relied on by the Board to find undercharging of consumption, is not in accordance with law. On the contrary, the Consumer Grievance Redressal Forum and the learned single Judge after finding that the demand was made without following the principles of natural justice are therefore bad, did not give a chance to the Board to take a fresh decision in the matter after complying with the procedures envisaged as per law. Therefore, we are of the view that the whole issue needs to be reconsidered by the appellants after supplying the details of materials relied on by the Board to find undercharging of consumption and after affording an opportunity of hearing to the 2[nd] respondent-consumer. The said exercise is to be undertaken by the Executive Engineer, TMR Division, Pallom who is authorised to quantify the consumption as is evident from Ext.P2. Since Executive Engineer, TMR Division, Pallom is not made a party in this appeal or the writ petition, we implead the said auhtority as additional 3[rd] respondent in the appeal. To facilitate a proper reconsideration of the matter, we set aside Exts.P2, P4, P6 and also the judgment of the learned single Judge dated 01.02.2017 in W.P.(C) No.19153 of 2015. In view of the above, writ appeal is disposed of with a direction to the additional 3[rd] respondent to reconsider the matter afresh after affording an opportunity of hearing to the 2[nd] respondent- WA No.531 of 2017 8 consumer, after supplying all the relevant materials relied on by the Board to find that there was undercharging of consumption. The additional 3[rd] respondent should take a final decision in the matter as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. Sd/- **S.V.BHATTI JUDGE** Sd/- **VIJU ABRAHAM JUDGE** cks