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Nirmala Metal Industries v/s Kerala State Electricity Board, Rep. by its Secretary & Others

    W.A.No.1837 of 2005

    Decided On, 07 July 2006

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K.S. RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE V. RAMKUMAR

    For the Appellant: KKM. Sherif, P.M. Kunjimoideenkutty, P.A. Mohammed Ashrof, Lal K. Joseph, A.A. Ziyad Rahman, Rooprekha D. Kamath, Advocates. For the Respondents: Jose J. Matheikel, SC, KSEB, K.S. Anil, SC, KSEB.



Judgment Text

K.S. Radhakrishnan, J.


Anti power theft squad of the Kerala State Electricity Board had inspected the premises of the consumer No.94/Aroor on 8-5-2000 and noticed that the meter installed in the premises was found not recording the consumption in "R" phase. Consumer was not present at the time of inspection. However, consumer's representative was present and he was made known of the non-recording of energy in "R" phase of the meter installed in the consumer's premises. Since the meter was found defective it was replaced with a sophisticated electronic meter on 23-5-2000. The consumption after replacing the meter was recorded. The consumption recorded in the defective meter for the period from 5-5-2000 to 22-5-2000 was 6430 unit, whereas that for the period from 23-5-2000 to 5-6-2000 recorded in the electronic meter recorded 9900 units. It was therefore noticed that the consumption recorded after replacing the defective meter was increased by more than 50%. Later the consumer was served with a bill on 9-6-2000 for an amount of Rs.1,18,737/- so as to compensate the Board for unrecorded portion of energy, i.e. 50% of recorded consumption for six months, i.e. from November 1999 to April 2000. The consumer aggrieved by the bill dated 9-6-2000 filed an appeal before the Executive Engineer under Regulation 48(a) of the Conditions of Supply of Electrical Energy, 1990. Later he filed OP.17717 of 2000 which was disposed of by this court on 26-6-2000 directing the Executive Engineer to pass appropriate orders on his appeal petition. Recovery proceedings in pursuance of the bill was kept in abeyance on condition that the consumer would pay 25% of the amount demanded. Later Executive Engineer passed an order dated 6-11-2000 upholding the bill. Contention raised by the consumer disputing the correctness of the bill as well as the inaction on the part of the Board in not referring the matter to the electrical inspector for inspection under Section 26(6) of the Indian Electricity Act was also repelled. Aggrieved by the same the consumer has approached this court.


2. Learned single Judge found no infirmity in the order passed by the Executive Engineer. Learned single Judge noticed that the meter was not functioning properly because there was defect in the meter and there was non-recording of energy in the "R" phase. Placing reliance on the decision of this Court in Uthup v. Assistant Engineer, (ILR 1995 (3) Kerala 264) learned single Judge concluded that it was not open to the consumer to ask the Board to refer the matter as the consumer can straightaway get the matter decided by the Electrical Inspector by invoking Section 26 and there is no illegality in applying regulation 31 by the Board for claiming the excess bill.


3. Learned counsel appearing for the appellant Sri. K.K.M. Sherif submitted that the learned single Judge has committed an error in not properly appreciating the scope of Section 26 (6) of the Electricity Act. Counsel submitted once the meter is found defective by the Board, there is a statutory obligation on the part of the Board, to refer the matter to the Electrical Inspector. Counsel also submitted that the learned single Judge has not properly appreciated the decision in Uthup's case (supra). Counsel submitted anti power theft squad has not detected any tampering of the meter by the consumer or that he had committed any fraud or malpractice. Counsel submitted it is the paramount duty of the Board to see that a trouble free meter is installed in the consumer's premises and in case it is found that the meter is faulty and not recording the correct consumption of electrical energy it is the responsibility of the Board to get the meter tested by Electrical Inspector. Counsel submitted the action of the Board in removing the meter unilaterally and getting it tested by themselves at their own testing centre without notice to the consumer is illegal and arbitrary. Counsel appearing for the Board however supported Ext.P4 order passed by the Executive Engineer as well as the judgment of the learned single Judge. Counsel submitted since the meter was defective it was open to the consumer to raise the dispute before the Electrical Inspector. Having not done so, counsel submitted that the consumer is not justified in finding fault with the Board in applying regulation 31 of the Conditions of Supply of Electrical Energy.


4. We are in this case concerned with a defective meter. Board has got a statutory obligation to install a trouble free electric meter in the premises of the consumer. They have also got a statutory obligation to check the meter periodically to ascertain as to whether the meter is functioning properly and recording the energy correctly. This is a case where the matter was found not recording the correct energy. Anti power theft squad on inspection found that the energy meter installed in the premises was not recording the consumption in "R" phase and found the meter defective. Anti power theft squad has no case that the consumer had extracted energy unauthorisedly or had committed any malpractices or had tampered with the meter. Meter was not recording correct consumption of energy and was then replaced by an electronic meter on 23-5-2000. After replacing the meter with electronic meter it was found that the defective meter was not recording the correct energy. Meter was then tested in the meter testing unit of the Board at Pallam. On testing it was found that the percentage error of that meter was (-) 32.24% which according to the Board would indicate that consumption was less.


5. Procedure adopted by the Board in this case is illegal. Once the meter installed by the Board is found to be defective, a duty is cast on the Board to install a correct meter in the premises of the consumer and get the defective meter tested by the Electrical Inspector under Section 26(6) of the Electricity Supply Act. Once the meter is found to be defective Electrical Inspector has to estimate the amount of energy supplied for a period not exceeding 6 months. Consumer has no statutory obligation to check as to whether the meter is recording the correct energy or not nor is he an expert to find out the correctness or otherwise of the meter. But if the consumer entertains any doubt that the meter is defective, not the Board, the consumer can get the meter tested by the Electrical Inspector. For easy reference we may extract the said provision.


"26(6). Where any difference or dispute arises as to whether any meter referred to in subsection (1) is or is not correct, the matter shall be decided, upon the application of either party, by an Electrical Inspector' and where the meter has, in the opinion of such Inspector ceased to be correct, such inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such inspector, have been correct; but save as aforesaid, a register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity:


Provided that before either a licensee or a consumer applies to the Electrical Inspector under this sub-section, he shall give to the other party not less than seven days' notice of his intention so to do."


The scope of the above mentioned section came up for consideration a before the apex court in Bombay Electricity Supply & Transport Undertaking v. Laffans (India) (P) Ltd. And another, (2005) 4 SCC 327. That was a case where in a routine checking it was noticed that the meter was found to be running slow in the consumer's premises. Accordingly the consumer was informed that the meter installed was also found running slow. That meter was also replaced by another meter and that meter also got burnt and was replaced by another meter and a bill was raised. The consumer disputed the bill. Since the amount was not paid the notice of disconnection was sent which was challenged before the Bombay High Court. Learned single Judge found no infirmity in the claim and dismissed the writ petition. Matter was then taken up in appeal. The Division Bench reversed the decision of the learned single Judge and held that if the licensee disputed the correctness of the meter, it should have referred the dispute to the Electrical Inspector as provided in Section 26 (6) of the Act and it was for the Electrical Inspector to estimate the amount of energy supplied to the consumer. The licensee having not referred any such dispute to the Electrical Inspector and consequently no estimate of the energy supplied by it to the consumer having been made, it was not open to the licensee to raise a bill on the basis of average of the past one year's consumption.


6. The licensee took up the market in appeal before the apex court. Court held that according to the proviso appended to sub-section (4) of Section 26, the licensee cannot take off or remove any such meter as to which difference or dispute of the nature described in sub-section (6) has arisen until the matter has been determined by the Electrical Inspector. Apex Court pointed out that such a restriction is imposed so as to preserve the evidence. Court held that the dispute shall be expeditiously disposed of by the Electrical Inspector by applying scientific method of investigation to find out if the meter was incorrect and if so then what was the extent of error. In that case the court noticed that the meters said to be incorrect had been removed and replaced by the licensee and no dispute was raised and referred to the Electrical Inspector. The court noticed that the most material evidence being the meter itself had been lost by the act of the licensee by removing the incorrect meter and the licensee cannot be permitted to take advantage of its own act and omission, that is, the act of removing the meter and the omission to make a reference to the Electrical Inspector.


7. We may indicate that it is the responsibility of the Board to install trouble free meter in the premises of the consumer and see that the meter is recording correctly the energy consumed. Duty is cast on the Board to get the defective meter tested not at the testing centre of the Board but by an independent authority like the Electrical Inspector. Report obtained from the testing centre of the Board is not binding on the consumer in the case of a defective meter. The Board cannot take away the defective meter from the premises of a consumer and then raise a bill after getting it tested in its own testing centre. By removing the meter from the premises the Board is spoiling the best evidence to the advantage of the consumer. Consumer has no dispute that the meter is defective. The question of consumer raising the dispute before the Electrical Inspector under section 26 does not arise though in a given case consumer can get the meter tested by an independent authority like Electrical Inspector. We may however, add that the situation is different in a case where it is noticed that the consumer has tampered with the meter. In such a situation, it is not a case of defective meter but a case of a tampered meter warranting no interference by the Electrical Inspector. This legal position is well settled by the decision of the apex court in Madhya Pradesh Electricity Board v. Basantibai (1988 (1) SCC 23). Learned single Judge placed reliance in Uthup's case (supra). That is not a case of d

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efective meter. 8. Learned single Judge of this court held that it is open to the consumer to move the Electrical Inspector to decide the dispute as to the correctness of the meter. True, if the licensee wants the meter to be tested by the Electrical Inspector he can take recourse to that; so also the consumer. As far as the present case is concerned, it is a case of a defective meter. If the Board wants to raise a bill on the plea that it is a defective meter it is for the Board to take the meter from the premises of the consumer and also raise a bill in accordance with section 26 of the Act. 9. We are of the view that facts the learned single Judge has failed to appreciate the facts and the law correctly. We therefore set aside the judgment of the learned single Judge and allow the writ appeal. We are of the view that since the meter has already been removed by the board to its testing centre and not to the Electrical Inspector under section 26 (6) the Board is not justified in raising the bill against the consumer. The original petition is allowed and Exts.P1, P1(a) and P4 proceedings would stand quashed. The amounts, if any, paid by the consumer pursuant to the order of this court or otherwise shall be adjusted towards future bills.
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