w w w . L a w y e r S e r v i c e s . i n



M/s. S.M. Cement Industries Rep. By One of Its Partners Namely, Manoj Sureka, Assam v/s Power Distribution Company Ltd. & Others


Company & Directors' Information:- CEMENT CORPORATION OF INDIA LIMITED [Active] CIN = U74899DL1965GOI004322

Company & Directors' Information:- ASSAM POWER DISTRIBUTION COMPANY LIMITED [Active] CIN = U40109AS2003SGC007242

Company & Directors' Information:- H-ONE INDIA PRIVATE LIMITED [Active] CIN = U73200UP1997PTC023702

Company & Directors' Information:- J. K. CEMENT LIMITED. [Active] CIN = L17229UP1994PLC017199

Company & Directors' Information:- A. K. POWER INDUSTRIES PRIVATE LIMITED [Active] CIN = U40104WB2008PTC130530

Company & Directors' Information:- CEMENT INDIA LTD [Active] CIN = U26942AS1994PLC004154

Company & Directors' Information:- INDIA POWER PARTNERS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC057610

Company & Directors' Information:- SM CORPORATION LIMITED [Active] CIN = U51909AS1981PLC007406

Company & Directors' Information:- ASSAM CEMENT LTD [Strike Off] CIN = U26942AS1994PLC004177

Company & Directors' Information:- A M S CEMENT PVT LTD [Active] CIN = U26942ML1995PTC004606

Company & Directors' Information:- H P CEMENT AND INDUSTRIES PVT LTD [Active] CIN = U26942AS1995PTC004559

Company & Directors' Information:- S. P. CEMENT PRIVATE LIMITED [Active] CIN = U26940MP2006PTC018404

Company & Directors' Information:- S. P. CEMENT PRIVATE LIMITED [Active] CIN = U01531MP2006PTC018404

Company & Directors' Information:- S.M. INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1990PTC038932

Company & Directors' Information:- R. J. CEMENT INDUSTRIES PRIVATE LIMITED [Active] CIN = U51909WB1997PTC083205

Company & Directors' Information:- T R CEMENT AND POWER PRIVATE LIMITED [Active] CIN = U26940OR2009PTC011129

Company & Directors' Information:- Y AND M CEMENT (INDIA) PRIVATE LIMITED [Active] CIN = U26940MH2006PTC161339

Company & Directors' Information:- S D CEMENT PRIVATE LIMITED [Active] CIN = U74899DL1995PTC072298

Company & Directors' Information:- P B CEMENT PRIVATE LIMITED [Active] CIN = U36900WB2009PTC138825

Company & Directors' Information:- ASSAM INDUSTRIES PVT LTD [Strike Off] CIN = U51909WB1948PTC016555

Company & Directors' Information:- POWER CEMENT PRIVATE LIMITED [Active] CIN = U26941GJ2007PTC050673

Company & Directors' Information:- K G N CEMENT PRIVATE LIMITED [Active] CIN = U26942OR1991PTC002930

Company & Directors' Information:- A S K CEMENT PRIVATE LIMITED [Active] CIN = U26940RJ2012PTC040014

Company & Directors' Information:- S.M. CEMENT PVT LTD [Strike Off] CIN = U24211CH1991PTC011771

Company & Directors' Information:- V K CEMENT LTD [Active] CIN = U26942PB1994PLC014122

Company & Directors' Information:- J D CEMENT PVT LTD [Active] CIN = U26941CH1982PTC004960

Company & Directors' Information:- B S CEMENT PVT. LTD. [Active] CIN = U26942OR1986PTC001767

Company & Directors' Information:- P H P CEMENT INDUSTRIES PVT LTD [Strike Off] CIN = U26900MH1981PTC024812

Company & Directors' Information:- M P CEMENT PVT LTD [Strike Off] CIN = U26942CT1984PTC002333

Company & Directors' Information:- J K CEMENT PVT LTD [Strike Off] CIN = U26941GJ1981PTC004569

Company & Directors' Information:- P & M DISTRIBUTION PRIVATE LIMITED [Active] CIN = U51109WB2007PTC115999

Company & Directors' Information:- B S (ASSAM) INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U28121AS1983PTC002027

Company & Directors' Information:- J D CEMENT LIMITED [Strike Off] CIN = U26943DL1980PLC010512

Company & Directors' Information:- J S K CEMENT PRIVATE LIMITED [Active] CIN = U26940RJ2012PTC039836

Company & Directors' Information:- J G CEMENT PVT LTD [Strike Off] CIN = U14106PB1993PTC013626

Company & Directors' Information:- R. M. CEMENT COMPANY PRIVATE LIMITED [Active] CIN = U26941CT2009PTC021396

Company & Directors' Information:- A R CEMENT CO PVT LTD [Strike Off] CIN = U02694MP1982PTC002042

Company & Directors' Information:- K L CEMENT PRIVATE LIMITED [Strike Off] CIN = U26940WB2008PTC127270

Company & Directors' Information:- M C A CEMENT PRIVATE LIMITED [Active] CIN = U26943RJ1994PTC008065

Company & Directors' Information:- SUREKA INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U15202BR2012PTC018388

Company & Directors' Information:- R S CEMENT PRIVATE LIMITED. [Active] CIN = U74899DL1992PTC047484

Company & Directors' Information:- S & E DISTRIBUTION PRIVATE LIMITED [Strike Off] CIN = U74999TZ2014PTC020161

Company & Directors' Information:- S. K. CEMENT PRIVATE LIMITED [Active] CIN = U26960WB2012PTC187806

Company & Directors' Information:- M V T DISTRIBUTION PRIVATE LIMITED [Active] CIN = U74900KA2015PTC078055

Company & Directors' Information:- V ONE INDUSTRIES INDIA PRIVATE LIMITED [Active] CIN = U28999PN2020PTC194810

Company & Directors' Information:- ASSAM DISTRIBUTION CO PVT LTD [Strike Off] CIN = U51909AS1975PTC001631

Company & Directors' Information:- S.M. CORPORATION PRIVATE LIMITED [Active] CIN = U93090TN2017PTC114103

Company & Directors' Information:- C L M DISTRIBUTION PRIVATE LIMITED [Strike Off] CIN = U51909MH2003PTC142339

Company & Directors' Information:- A-ONE POWER INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74999PN2013PTC149997

Company & Directors' Information:- MANOJ PRIVATE LIMITED [Strike Off] CIN = U74899DL1980PTC010292

Company & Directors' Information:- A-ONE CEMENT PRIVATE LIMITED [Strike Off] CIN = U51432MP2008PTC021354

Company & Directors' Information:- X-ONE INDIA PRIVATE LIMITED [Active] CIN = U74999KA2017PTC104445

Company & Directors' Information:- D & D CEMENT PRIVATE LIMITED [Strike Off] CIN = U26941GJ2009PTC057912

    WP(C) 3364 of 2020

    Decided On, 11 September 2020

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

    For the Petitioner: Dr. A. Saraf, Advocate. For the Respondent: SC, APDCL.



Judgment Text

1. Heard Mr. Dr. A Saraf, learned senior counsel for the petitioner. Also heard Mr. BD Das, learned senior counsel for the respondent, APDCL.2. Without going into the details of the various factual aspects that has been raised in this writ petition it will be sufficient for us to take note of that the petitioner has an electricity connection bearing Meter No.ASEG4180. On 14.03.2013 the authorities in the respondents were of the view that the said meter was not giving a correct reading as the meter was damaged. Accordingly, it was replaced by a new Meter bearing No.AS897243. Upon installation of the new meter, the electricity consumption from the period 15.03.2013 to 30.06.2013 i.e. for 108 days was found to be 11,56,854 units which was calculated to be 10711.61 units per day. The petitioner was served with a supplementary bill amounting to Rs.79,60,603/-, purportedly in order to compensate the loss that has been caused to the respondents because of the damaged meter.3. The supplementary bill of Rs.79,60,603/- was initially assailed by the writ petitioner in WP(C)No.5656/2013 wherein by the judgment and order dated 22.04.2019, the Court was of the view that the petitioner had an alternative remedy of approaching the Assessing Officer under Section 126(3) of the Electricity Act 2003 (for short, the Act of 2003). Accordingly, the said writ petition was disposed of by requiring the writ petitioner to prefer appropriate representation and by further providing that if the petitioner is not satisfied with the speaking order that would be passed, the petitioner would be at liberty to appeal as per the remedy that may be so advised. On an appeal being carried by the petitioner in WA No.124/2019, the order dated 27.05.2019 was passed by which the petitioner was granted the liberty to approach the Consumer Grievance Redressal Forum under Section 42 of the Act of 2003. In the writ appeal, a contention was raised by the petitioner that the appropriate remedy may not be under Section 126(3) of the Act of 2003, and accordingly, the petitioner was given the opportunity to approach the Consumer Grievance Redressal Forum by providing that no coercive action be taken for a period of 1(one) month. Accordingly, upon the Consumer Grievance Redressal Forum being approached by the petitioner, the order dated 21.08.2019 was passed by the Chairman-cum-General Manager, Consumer Grievance Redressal Forum of the respondent, APDCL. By the said order a conclusion was arrived at that the damaged meter which was sent for a laboratory testing had given a report that there was a tampering in the meter and therefore the meter testing report thereof cannot be relied upon due to the procedural error that had taken place.4. It is to be taken note of that under Clause 4.2.1.4.3 of the Electricity Supply Code, in all cases of testing of a meter in the laboratory, the consumer is required to be informed of the proposed date of testing at least seven (7) days in advance, so that he may be present at the time of testing, personally or through an authorized representative. The signature of the consumer or his authorized representative, if present, is required to be obtained on the Test Result Sheet. Admittedly in the instant case, the requirement of informing the petitioner was not followed and in the circumstance, a conclusion was arrived that there was a procedural error in conducting the laboratory testing process. But, however, the Consumer Grievance Redressal Forum took the view that the supplementary bill was served on the petitioner as per Clause 5 A.4.5(iii)(b) of the Electricity Supply Code read with Clause.4.2.2.4 and, therefore, the supplementary bill of Rs.79,60,603/- was found to be just and proper.5. Being aggrieved by the order dated 21.08.2019 of the Consumer Grievance Redressal Forum, the petitioner approached the Electricity Ombudsman of the Assam Electricity Regulatory Commission. The Electricity Ombudsman by the judgment and order dated 03.03.2020 while appreciating the facts of the disputes raised, took note of that under Clause 4.2.2.4 of the Electricity Supply Code, the respondent authority can assess the quantity of the energy consumed in the event of any meter being found prima-facie incorrect (which includes a stopped, slow, or fast meter), where actual errors of reading cannot be ascertained as per the procedure prescribed. However, the Ombudsman immediately, thereafter, was of the view that the action of the respondent authorities in raising the supplementary bill is based on a departmental laboratory testing report. Again the Ombudsman goes on to examine whether the supplementary bill raised on the basis of the laboratory test report dated 25.04.2013, done in the absence of the petitioner, would be valid as regards the raising of the supplementary bill is concerned. The Ombudsman thereupon discusses the procedure that was adopted to arrive at the laboratory test report dated 25.04.2013. In doing so, the Ombudsman seeks to draw a distinction between a ‘laboratory test of a meter removed permanently from a consumer premises and then sent for rechecking before it was issued to some other consumer to that of a laboratory testing of a meter that was removed for a reason of doubt of its accuracy either due to technical default or malpractice’.6. Be that as it may, thereafter, although several aspects have been discussed in the order of the Ombudsman, we are unable to find any definite conclusion being arrived at by the Electricity Ombudsman as to whether the lab testing report dated 25.04.2013 is a valid and acceptable report under the law or not. Even in respect of the distinction that the Ombudsman seeks to draw between a ‘laboratory test of a meter removed permanently from a consumer premises and then sent for rechecking before it was issued to some other consumer to that of a laboratory testing of a meter that was removed for a reason of doubt of its accuracy either due to technical default or malpractice’, we find that even the said distinction would also be contrary to Clause 4.2.1.4.3 of the Electricity Supply Code. Clause 4.2.1.4.3 clearly provides that in all cases of testing of a meter in the laboratory, the consumer shall be informed of the proposed date of testing at least seven (7) days in advance, so that he may be present at the time of testing. The very provision of Clause 4.2.1.4.3 of the Electricity Supply Code that in all cases a consumer is required to be informed invalidates the distinction that the Electricity Ombudsman is seeking to make between two different circumstances of a laboratory testing of a meter that is required to be done.7. Be that as it may, the Electricity Ombudsman in the judgment and order dated 03.03.2020 thereafter refers to the letter dated 20.05.2013 by which a bill of Rs.1,02,11,146/- was raised against the petitioner and records some future happenings in respect of the petitioner that the new meter which was installed was again found to be tampered on 24.07.2014. 8. The Electricity Ombudsman thereafter arrives at its own conclusion that Clause 5.A.4.5(iii)(b) provides that in case it is found that the metering system is not working properly and found to be incorrect which also includes stoppage, slowing down or going fast and the reason is not attributed to the consumer, the bill for such defect should be raised for a period of six months preceding the date of detection at the normal rate of the appropriate category and the procedure for assumption would be governed by Clause 4.2.2.4. Thereupon, the Electricity Ombudsman arrives at the following conclusion:“In view of the above discussion and having considered the materials available the raising of the supplementary bill although on the basis of consumption recorded by the new meter as per instructions of the GM(Rev-Com.) to compensate the loss suffered by the respondent authority, a public utility is held valid because of the nature of the case except that the period of bill should be for 6 (six) months as prescribed under clause 5.A.4.5 (iii)(b) of the Electricity Supply Code & Related Matters Regulations. The respondent authority will take action accordingly. The respondent authority will do well to arrange checking of the metering system of all industrial units and business enterprises falling under HT consumer category at regular interval to prevent loss of revenue by taking appropriate action.”9. Being aggrieved, by the judgment and order dated 03.03.2020 of the Electricity Ombudsman, the present writ petition has been instituted.10. We have already taken note of that the Consumer Grievance Redressal Forum in its order dated 21.08.2019 had arrived at a categorical conclusion that laboratory test report dated 25.04.2013 was an invalid report inasmuch as, the required procedure of law was not followed while arriving at the said report. But however, the Consumer Grievance Redressal Forum without providing any reason had arrived at its conclusion that the supplementary bill amounting to Rs.79,60,603/- was found to be just and to be in order. It is against such conclusion of the Consumer Grievance Redressal Forum that the appeal was carried before the Electricity Ombudsman by the petitioner.11. As we have already taken note of in the foregoing paragraphs that the Electricity Ombudsman had not arrived at its own conclusion as regards the validity of the redressal test report dated 25.04.2013 and on the other hand contents of the laboratory test report was relied upon by the Electricity Ombudsman in arriving at its judgment and order dated 03.03.2020. We take note of that it was not an appeal by the respondent authorities before the Electricity Ombudsman against the conclusion of the Consumer Grievance Redressal Forum. As regards the invalid laboratory test report dated 25.04.2013, in the absence of any appeal by the respondent authority and the same having not been assailed by the petitioner, the aspect as regards the invalidity of the test report dated 25.04.2013 has become final. Once the laboratory test report dated 25.04.2013 is accepted to be invalid, it would be impermissible for the Electricity Ombudsman to rely upon any such conclusion that may have been arrived at in the laboratory test report dated 25.04.2013.12. From the said point of view also, we find certain infirmities in the judgment and order of the Electricity Ombudsman dated 03.03.2020. However, be that as it may, the Electricity Ombudsman accepts that the supplementary bill of Rs.79,60,603/- was made in exercise of the powers under Clause 5.A.4.5.(iii)(b) of the Electricity Supply Code and accordingly, a direction was issued to the respondent authorities that a bill for a period of 6 months be prepared under Clause 5.A.4.5(iii)(b) of the Electricity Supply Code. As both in the order of the Consumer Grievance Redressal Forum dated 21.08.2019 as well as in the judgment and order of the Electricity Ombudsman dated 03.03.2020, the supplementary bill under Clause 5.A.4.5.(iii)(b) of the Electricity Supply Code was required to be prepared, we are required to examine as to whether the provision of Clause 5.A.4.5(iii)(b) would be applicable in the facts and circumstance of the present case.13. Clause 5.A.4.5.(iii)(b) of Electricity Supply Code is extracted below:“In case it is found that metering system is not working properly and found to be incorrect (which includes stop, slow or fast) and the reason is not attributed to the consumer, the bill for the period of such defects should be raised for a period of 6 (six) months preceeding the date of detection at normal rate of the appropriate category. The procedure for assumption will be governed by the clause 4.4.4.4.”14. A reading of Clause of 5.A.4.5.(iii)(b) makes it discernible that the said clause would be applicable in case it is found that the metering system is not working properly and was found to be incorrect which may include a stopped, slow, or fast meter and the reason for it is not attributed to the consumer. The condition precedent for invoking Clause-5.A.4.5.(iii)(b) of the Electricity Supply Code that there has to be conclusive finding being arrived at by the authority that the metering system was not working properly and was found to be incorrect which may includes the meter being stopped, slow or fast.15. In the facts and circumstance, both in the order of the Consumer Grievance Redressal Forum dated 21.08.2019 as well as in the judgment and order dated 03.03.2020 of the Electricity Ombudsman, no conclusion was arrived at that the metering system of the petitioner was not working properly and that it was found to be incorrect which includes being stopped, slow or fast. In the absence of any conclusion having arrived on the existence of the condition precedent of invoking Clause 5.A.4.5(iii)(b) in both the orders of the Consumer Grievance Redressal Forum as well as of the Electricity Ombudsman, we are of the unable to sustain the conclusion arrived at by the two authorities as regards the supplementary bill for the amount of Rs.79,60,603/- and the requirement to make a calculation under Clause 5.A.4.5(iii)(b) of the Electricity Supply Code, would be unsustainable.16. We are further of the view that if the laboratory testing report dated 25.04.2013 is invalid as because the due procedure was not followed, the said report has to be rejected completely and it cannot be that on one hand, the report would be declared to be invalid and on the other hand, the contents of the report be relied upon to arrive at any conclusion.17. We have also taken note of that the Electricity Ombudsman in another matter of similar nature had arrived at a conclusion which is extracted as below:“As far as clause 4.2.2.4 of the Supply Code is concerned, the same can be applied after complying with the requirements as incorporated under clause 4.2.1.4.4 of the Supply Code. Not to speak of complying with the said requirement even testing of meter was not done. As such it is totally absurd to say that there is no illegality, irrationality or procedural impropriety in preparing the bill as per 4.2.2.4. of the Supply Code. The said clause says bill can be revised for the period during which electricity is provided without meter by taking into consideration of previous 3 months or the subsequent 3 months after rectification and reinstallation of the meter or new meter whichever is higher. It is settled principle that merely because consumption varies from month to month or during any particular period of time, the same by itself is not sufficient to hold that the meter is defective or some tampering is done to the meter. In order to book a consumer on the ground of defect in the meter, it is incumbent for the authority (Respondent) to establish that meter was stopped and/or that the meter was running slow and/or that there was errors in reading and that the actual reason of such errors could not be ascertained and such a finding is possible only if the meter is placed on automatic test bench to find out its accuracy. The same having not done, the entire exercise vitiate and for the said reason the impugned bill is not sustainable in laws.”18. From the said 2 paragraphs of the said order of Electricity Ombudsman in the other matter, it is discernable that 2 (two) conclusions were arrived at that clause 4.2.2.4 of Electricity Supply Code can be applied only after complying with the requirements of clause 4.2.1.4.4 of the Electricity Supply Code and further that it is a settled principle that merely because of consumption varies from month to month or during any particular period of time, the same by itself is not sufficient to hold that the meter is defective or some tampering was done due to the meter and further it is incumbent upon the respondent authorities to establish that the meter was stopped and or that the meter was running slow and or there were errors in reading.19. In view of the above, we interfere with the part of the order dated 21.08.2019 of the Consumer Grievance Redressal Forum by which the supplementary bill for Rs.79,60,603/- was held to be a va

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lid bill under Clause 5.A.4.5(iii)(b) and that of the judgment and order dated 03.03.2020 of the Electricity Ombudsman, by which there was a requirement that the supplementary bill be prepared under Clause 5.A.4.5.(iii)(b), of the Electricity Supply Code. At the same time, as no appeal had been preferred by the respondent authorities we retain part of the conclusion arrived at by the Consumer Grievance Redressal Forum dated 21.08.2019 in respect of the conclusion that laboratory testing report dated 25.04.2013 was invalid.20. Accordingly, the matter stands remanded back to the Consumer Grievance Redressal Forum for a fresh adjudication on the legality and validity of the supplementary bill that was prepared under Clause 5.A.4.5(iii)(b) of the Electricity Supply Code and arrive at its own finding as to whether the condition precedent of invoking the Clause 5.A.4.5(iii)(b) has been satisfied in the present case i.e. whether a finding can be arrived at with the meter system, which was not working properly and it was found to be incorrect. But to arrive at such conclusion, the invalid test report dated 25.04.2013 shall be relied upon. The authorities may rely upon any other acceptable material to substantiate such contention. The conclusion of the Electricity Ombudsman in the other matter as extracted in paragraph-17 hereinabove be also kept in mind.21. Till such reasoned order is passed by the Consumer Grievance Redressal Forum, no coercive action be taken against the petitioner upto a period of 15 days from the passing of the said order.22. Upon receipt of the certified copy of the order of Consumer Grievance Redressal Forum of APDCL shall issue notices to the petitioners as well as the respondent authorities indicating the date, time and place for their appearance.
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