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2013 DIGILAW 374 (KER)

KERALA STATE ELECTRICITY BOARD v. M. K. FABRICS

2013-04-11

K.T.SANKARAN, M.L.JOSEPH FRANCIS

body2013
JUDGMENT : K.T. Sankaran, J. The Kerala State Electricity Board and their officers challenge the judgment of the learned Single Judge in WP(C) No. 4488 of 2007. The Writ Petition was filed by the respondent. On 29/05/2004, the Anti Power Theft Squad Unit, Thiruvananthapuram, inspected the business premises of the respondent and detected that two phases of the energy meter were not recording consumption of energy and only the third phase was functional. On the basis of the inspection report, the Board issued Ext. P2 demand notice cum disconnection notice directing the respondent to pay a sum of Rs. 3,95,815/- as energy charges. On going through Ext. P2, it is seen (though the facts and figures are not correctly shown making the consumer aware of the real state of affairs) that 21808 x 2 units were taken as basis for short assessment. How this figure was arrived at is not mentioned in Ext. P2. With the help of the learned counsel for the appellants, we understand that six months' electricity consumption for the period prior to 29/05/2004 was taken as the basis for issuing Ext. P2 and taking double the quantity of actual consumption during these six months, short assessment was made. In other words, the actual consumption for these six months was 21808 units and double the quantity of the same was taken as the consumption in respect of the other two phases which were not functional. 2. The respondent challenged Ext. P2 in appeal before appellant No. 2, who passed Ext. P10 order reducing the quantity of energy for short assessment as 24520 units. The Appellate Authority (appellant No. 2) held in Ext. P10 as follows: On reviewing the above averments, site mahazar, inspection report, related documents of the consumer, the rules and regulations in force it is observed as follows: (i) Anti Power Theft Squad in its inspection of appellant electric installations on 29/05/04 noted that his energy meter was not recording consumption on first and second phases but only the third phase recording the consumption. All the seals-MRI and TC-seals were intact. The unrecorded portion of energy was short assessed at normal rates for past six months and served. (ii) The appellant's plea is that his meter was faulty. All the seals-MRI and TC-seals were intact. The unrecorded portion of energy was short assessed at normal rates for past six months and served. (ii) The appellant's plea is that his meter was faulty. But his contention regarding the non-responsibility of meter is not admissible because as per Clause 18(c) of the conditions of supply of electrical energy the consumer is the sole custodian of the meter installed in the premises and he shall be responsible for the safe custody of the meter and other properties of the Board in the premise. (iii) On examining the connected documents regarding the case, meter reading statements, consumption pattern it is seen that the computed consumption taken for reassessing the unrecorded portion of energy is seem to be on higher rate. Since the meter was not recording the two phases due to technical fault and it is a light load meter the short assessment can be made as per 31(C) of conditions of supply of electrical energy. But in this case after replacing the new meter the consumer have purposefully reduced the consumption pattern; might have been by using generator. Therefore, the impugned penal bill is to be revised as the following reasons: Even the consumer availed High Tension he never attained such consumption as computed in the penal bill. The meter was changed on 22/12/2003. The meter should not be fault from the very first day of installation. Therefore, the assessment for 6 months is not in order. On perusal of the reading pattern it is understood that the downfall might have been occurred from 2/04 onwards. Hence the bill may be revised with a consumption of 12260 units (21808-9548, i.e., reading of 2/04) as the unrecorded portion of energy for one phase. For two phases it is 12260 x 2 = 24520 units. Hence, the total unrecorded portion of energy is 24520 units. In view of the above observation it is hereby ordered as follows: (i) The short assessment for the unrecorded portion of energy is to be collected from the consumer. The unrecorded quantity of energy for the previous 3 months period is 24520 units and the bill is to be revised as such. In view of the above observation it is hereby ordered as follows: (i) The short assessment for the unrecorded portion of energy is to be collected from the consumer. The unrecorded quantity of energy for the previous 3 months period is 24520 units and the bill is to be revised as such. (ii) The Assistant Engineer, Electrical Section, Cantonment (K) is directed to revise the short assessment bill as ordered above and issue to the consumer, with the amount due to be remitted, taking into consideration the amount already remitted on this account be adjusted in the future bills of the consumer. No surcharge should be levied during the appeal pending period. 3. The respondent was still aggrieved and he filed WP(C) No. 4488 of 2007, challenging Ext. P2 demand notice and Ext. P10 appellate order. The learned Single Judge held that the respondents in the Writ Petition (appellants herein) did not dispute Ext. P6, the consumption pattern of electricity by the petitioner. In fact Ext. P6 was quoted in the judgment. It was noticed by the learned Single Judge that going by Ext. P6, consumption never exceeded 8660 units in any month. The learned Single Judge held that the calculation in Ext. P10 Order and the consequent bill (Ext. P11) cannot be accepted. The learned Single Judge, held thus: The next question is as to what should be the unrecorded portion of electricity for the purpose of this case. It cannot be disputed that any kind of calculation of the same cannot be exact with any amount of certainty. Some conjectures and surmises will certainly have to go into such calculation. From Ext. P6 I find that in June and July, 2005, when also the meter was found to be defective, the respondents had taken the average consumption for the month as 5673 units. That is roughly one and a half years after the period in question. In the peculiar circumstances of the case, I am inclined to fix the unrecorded portion as 4000 units per month taking the average consumption for a month as 6000 units. Consequently, the total unrecorded portion would be only 12000 for three months. Therefore, I declare that the petitioner is liable to pay electricity charges only for 12000 units. The third respondent is directed to issue a fresh bill for 12000 units to the petitioner. Consequently, the total unrecorded portion would be only 12000 for three months. Therefore, I declare that the petitioner is liable to pay electricity charges only for 12000 units. The third respondent is directed to issue a fresh bill for 12000 units to the petitioner. The excess already paid would be adjusted against the future bills of the petitioner. 4. A perusal of Ext P6 would show that on 10/10/2003, the old meter was changed. On 25/10/2003, the electronic meter was found faulty. On 22/12/2003, the meter was changed. On 08/06/2004, a new meter was installed. Again on 25/10/2004, another new meter was installed and it was again changed on 17/11/2004. On 21/07/2005 also, the meter was changed. The Electricity Board has no case that at any point of time, the respondent had indulged in any theft of electrical energy. Even Ext. P1 mahazar, on the basis of which Ext. P2 demand notice was made, does not show that the respondent herein had made any attempt to commit theft of electrical energy. 5. The consumer cannot be penalised for the failure on the part of the Board to keep the meter functional and without fault. So long as the consumer had not done anything to commit theft of electrical energy or to make a meter dysfunctional, normally, he cannot be penalised demanding a very huge amount from him. In the present case, going by Ext. P6, it is seen that default in the electronic meter was a regular affair in the premises of the respondent. The learned counsel for the respondent submitted that he is prepared to see that the electronic meter is installed in a place where only the officers of the Electricity Department have access and that that premises can be kept under the lock and key of the Electricity Board. The learned counsel for the respondent submitted that because of the proceedings initiated by the Board, he was forced to approach various authorities and huge expenditure was incurred. He had also undergone trauma of facing disconnection. In the facts and circumstances, we do not think that the learned Single Judge has committed any error in the judgment. A reasonable view was taken by the learned Single Judge, causing no loss to the KSEB and no gain to the consumer. No grounds are made out for interference in the well considered judgment passed by the learned Single Judge. A reasonable view was taken by the learned Single Judge, causing no loss to the KSEB and no gain to the consumer. No grounds are made out for interference in the well considered judgment passed by the learned Single Judge. Accordingly, the Writ Appeal is dismissed.