IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 320 of 2009()
1. A.V.YUGIN, PROPRIETOR,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. ASSISTANT EXECUTIVE ENGINEER,
3. ASSISTANT ENGINEER,
For Petitioner :SRI.ROBSON PAUL
For Respondent :SRI. ASOK M.CHERIYAN, SC, KSEB
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :08/07/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No. 320 of 2009
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Dated this the 8th day of July, 2009
JUDGMENT
The Second Appeal is directed against the judgment and decree in
A.S. No. 13/2007 on the file of the Sub court, Thrissur which arises from
the judgment and decree in O.S. No. 1378/2000 on the file of the
I Additional Munsiff Court, Thrissur. The plaintiff in the suit is the appellant
herein. The challenge in the suit are the bills issued by the Kerala State
Electricity Board (hereinafter referred to as the Board) for additional
electricity charges payable for the period from December 1999 to April
2000. Exts.A1 to A2 series are the disputed bills. The suit was filed for
declaration that the plaintiff is not liable to pay the bills for additional
electricity charges, that the bills are null and void and for consequential
injunction. The trial court decreed the suit as prayed for. In appeal, the
lower appellate court set aside the trial court’s decree and judgment and
dismissed the suit. Hence the Second Appeal. The parties hereinafter
referred to as plaintiff and defendants as arrayed in the suit.
2. The plaintiff is a consumer enjoying three phase electric
connection. According to him, he was paying the bills regularly ; but the
defendants issued a bill of Rs. 83,272/- as additional electricity charges
payable for the month of December 1999. to April 2000. The stand taken
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by the Board is that though the petitioner is having three phase electric
connection, the meter in one phase is defective and hence there was
deficiency in the actual consumption of electricity and therefore they
issued Exts. A1 to A2 series bills. According to the plaintiff Ext.A1 was not
issued on the ground that the meter was faulty and did not record any
reading for the said period.
3. It is the case of the defendant that one among the three
phases connected to the meter was not functioning and therefore only 2/
3of
the actual consumption was recorded in the meter.
4. The trial court considered all the oral and documentary
evidence and declined to place reliance on Ext.B1 site mahazar stating
that Ext.B1site mahazar does not reveal what sort of detailed inspection
was conducted as to ascertain whether all the phases functioned or not
and therefore Ext.B1 does not have the credence and reliability to support
the contention of the defendants that the phases connected to the meter
did not function .
5. The trial court also held that since the plaintiff did not
complain that the meter fixed in his premises is a faulty one and that the
Board had not earlier informed the plaintiff that the meter is running
faulty, it cannot be said that the dispute could have been taken cognizance
of by the statutory body constituted under the electricity supply Act. The
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trial court also found that the suit is maintainable and accepting the
averments set out by the plaintiff in the plaint, the trial court decreed the
suit as prayed for.
6. The lower appellate court considered in detail the
maintainability of the suit. It was contended by the defendants that when
the dispute is regarding the non-working of the meter or the correctness of
the bill, the same shall be resolved only by the Electrical Inspector and
therefore the trial court ought not have entertained the suit. It is also
brought to the notice of the lower appellate court that the Anti Power Theft
Squad conducted an inspection and it was found that one of the phases
out of the 3 phases was not functioning and so only 50% of the
consumption of electricity was recorded by the meter. After referring to
Section 26(4) and (6) of the Indian Electricity Act 1910, the counsel for the
defendants argued that the dispute in that case is regarding the
entitlement of the defendants to realise the amount mentioned in Ext.A1
notice and not regarding the correctness of the meter.
7. The definite case of the Board is that because of the non-
functioning of one of the phases, only 50% of the consumption of electricity
was recorded by the meter. The appellate court followed the decision in
Calcutta Electric Supply Corporation Vs. N.M. Banka 1996 (2) SCC 58.
held that the dispute is not only regarding the correctness of the meter
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but also regarding the correctness of the bill and it is for the Electrical
Inspector to resolve that kind of dispute , that when specific statutory
remedy is provided by the Indian Electricity Act 1910 it cannot be allowed
to be bypassed. In the circumstances the lower appellate court found that
the suit is not maintainable and therefore set aside the trial court’s decree
and judgment
8. I am of the view that the findings entered by the lower
appellate court on the question of maintainability of the suit by referring to
the statutory provisions laid down in Section 26(4) and (6) of the Indian
Electricity Act 1910 and the Apex Court’s decision in the Calcutta Electric
Supply Corporation’s case (Supra) is correct in all respects. I do not find
any reason to disagree with the findings arrived at by the lower appellate
court. I am also of the view that, in such circumstances the remedy open
to the plaintiff/consumer is to approach the Electrical Inspector as opined
by the lower appellate court . No grounds are made out to interfere with
the lower appellate court’s judgment by invoking my jurisdiction under
Section 100 of the C.P.C. No questions of law much less any substantial
question of law arises for consideration in this appeal. This appeal fails
and accordingly dismissed in limine.
9. However finding that the plaintiff prosecuted the suit
bonafidely, I think that in the interests of justice an opportunity shall
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be given to the plaintiff to agitate his contentions on merits. The plaintiff is
at liberty to move the Electrical Inspector /other statutory appellate
authority challenging the disputed bills. The necessary application shall
be filed within a period of one month from today. If such an application is
filed by the plaintiff, the statutory authority concerned shall decide the
dispute after hearing the plaintiff within a period of six months from today
irrespective of the fact that the time limit prescribed under the Limitation
Act expired. It is made clear that the said application shall be entertained
on condition that the plaintiff pay /3 of the disputed amount of bills and the
1
dispute shall be decided untrammelled by the findings of the Civil courts
and observations in this judgment.
(HARUN-UL-RASHID, JUDGE)
es.
HARUN-UL-RASHID, J.
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R.S.A. No. 320 of 2009
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JUDGMENT
8th July, 2009