IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 32159 of 2001(C)
1. SIBU JACOB
... Petitioner
Vs
1. K.S.E.B
... Respondent
For Petitioner :SRI.R.SUDHIR
For Respondent :SRI.KODOTH SREEDHARAN, SC, KSEB
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :03/12/2009
O R D E R
S. SIRI JAGAN, J
................................................
O.P. No. 32159 of 2001
.................................................
Dated this the 3rd day of December, 2009
J U D G M E N T
The petitioner is a consumer of electricity. On 7.8.2001, the
2nd respondent inspected the electrical installation at the
petitioner’s premises and prepared Ext.P1 Mahazar, wherein it was
stated that on examination of the meter in detail, which is a three
phase meter, the 1st and 3rd phases were working properly and the
2nd phase was found running in the reverse direction. Thereafter,
the petitioner was served with Ext.P2 notice claiming an amount of
Rs. 83,393/- which is described as a penalty charged as per the
inspection report of the 2nd respondent. The petitioner challenged
Ext.P2 bill before this court by filing O.P. No. 24313 of 2001. By
Ext.P3 judgment, this court relegated the petitioner to the remedy
by way of appeal before the Executive Engineer. Pursuant thereto,
the petitioner filed an appeal before the Executive Engineer, who
by Ext.P4 order rejected the contentions of the petitioner and
confirmed Ext.P2 bill. Thereafter, the petitioner was again served
with Exts.P6 and P7 bills demanding charges for the probable
energy consumed by the petitioner through the faulty meter, on the
O.P. No. 32159 of 2001 -2-
assumption that the meter was recording only /3 1 rdof the actual
consumption. The petitioner is challenging Exts.P2, P4, P5, P6 and
P7.
2. The primary contention of the petitioner is that the
respondents had no jurisdiction to decide the question as to
whether the meter was faulty and if the meter was faulty, the
energy charges payable by the consumer for the period in question.
According to the petitioner, that jurisdiction rests exclusively with
the Electrical Inspector under Section 26(6) of the Indian
Electricity Act, which was applicable at the relevant time and
without reference to the electrical inspector, respondents could not
have demanded and recovered energy charges on the assumption
that the meter was recording only 1/3 of the actual consumption.
rd
According to the petitioner, since the respondents have not chosen
to refer the dispute to the electrical inspector under Section 26(6),
going by the Division Bench decision of this court in Nirmala
Metal Industries v. K.S.E.B. [2006(3) KLT 465], the Board
cannot demand electricity charges for the alleged short recording
of electricity consumed by the alleged faulty meter. He also relies
on my decision in O.P. Nos. 26123, 27988 and 29518 of 1999, by
judgment dated 14.10.2008.
O.P. No. 32159 of 2001 -3-
3. The standing counsel for the electricity board contends
that in so far as the petitioner has not challenged Ext.P1 Mahazar,
it must be presumed that he has accepted the fact that the meter
was faulty and therefore there was nothing wrong in the
respondents demanding the electricity charges from the petitioner
on the ground that the meter was recording only /3 1 rd of the actual
consumption. The contention is that if the petitioner had a dispute
that the meter is actually correct, it was for him to raise that
dispute and seek reference under Section 26(6). The petitioner
having not done so, he cannot now dispute the correctness of the
demand made is the contention raised by the respondents.
Regarding Exts.P5 to P7 bills, the contention is that in order for the
petitioner to decide whether to seek reference under Section 26(6)
or not the respondents did not replace the meter for three months
and for that period also the electricity charges were demanded on
the basis that the meter was recording only /3 1 rd of the actual
consumption.
4. I have considered the rival contentions in detail.
5. In view of the pleadings before me, the question to be
decided is as to whether the bills issued by the respondents for
recovery of electricity charges without first resorting to reference
O.P. No. 32159 of 2001 -4-
under Section 26(6) of the Indian Electricity Act is valid or not.
Section 26(6) reads thus:
“Where any difference or dispute arises as to
whether any meter referred to in sub-section (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, the register of the meter shall, in the absence
of fraud, be conclusive proof of such amount or quantity:”(underlining supplied)
6. As is clear from the first sentence of Section 26(6), in
order to attract jurisdiction of the Electrical Inspector under that
Section a difference or dispute as to whether any meter is or is not
correct should arise. The counsel for the petitioner would argue
that the word ‘arise’ means “come into being” or “come to notice or
action as a result of” as given in Oxford Dictionary. According to
him, word ‘arise’ should be considered in contradistinction with
‘raised’. Therefore, according to him as soon as a meter is found
faulty a dispute arises and therefore electricity board is bound to
refer that dispute under Section 26(6) to the Electrical Inspector. I
am unable to agree. If that be so, in every case, where the meter is
found faulty, automatically the electricity board would be bound to
O.P. No. 32159 of 2001 -5-
refer the matter to the Electrical Inspector. That is not what is
contemplated under Section 26(6). A dispute or difference would
arise only when one party asserts the existence or non-existence of
a fact and the other party disputes the existence or non-existence
of that fact. When one person asserts the existence or non
existence of a fact and the other party does not dispute the same
there arises no difference or dispute. Therefore, going by the
reasoning given by the counsel for the petitioner himself only if a
difference or dispute arises the jurisdiction of the electrical
inspector attracted. That is the law declared by the Supreme Court
in Tata Hydro-Electric Power Supply Co. Ltd. v. Union of
India [AIR 2003 SC 1581], wherein in paragraph 15 it is held thus:
“It was urged before the High Court as also before
us that having regard to the judgment of this Court in
U.P.S.E.B. v. Atma Steel (supra) it is no longer open to
the appellant to contend that CT was not an apparatus
within the meaning of Section 26(7) of the Act. Having
perused the judgment of this Court in Atma Steel’s case
(supra), we also entertain no doubt that CT is an
apparatus within the meaning of Section 26(7) of the
Act.”
7. Here, in Ext.P1 Mahazar it is specifically stated that on
detailed inspection it was found that one phase of the three phase
meter was running in reverse direction. It does not need any
expertise to understand from the same that what it means is that
O.P. No. 32159 of 2001 -6-
the meter is faulty. Therefore as soon as Ext.P1 is received the
petitioner must have known that according to the respondents the
meter is faulty. If the petitioner had a case that the meter is not
faulty he should have contested Ext.P1 immediately on receipt of
the same. Only if he had done so, a difference or dispute would
arise as to whether the meter is or is not correct. It is also
pertinent to note that in Ext.P8 memorandum of writ petition in
W.P(C) No. 24313/2001, which the petitioner has produced along
with I.A. No. 15257 of 2009, the petitioner did not choose to
challenge Ext.P1 although he had produced Ext.P1 in that writ
petition also. In fact in Ext.P9 appeal filed by the petitioner as
directed in Ext.P3 judgment, there is no assertion that the meter is
not faulty nor is there a demand for reference of the any dispute
under Section 26(6). The explanation of the petitioner for this is
that at that time the petitioner was not aware that Ext.P2 demand
was for deficit current charges for the past six months on account
of the fault in the meter, since Ext.P2 specifically stated that
demand is for penalty. It is prepared that in Ext.P2 the
respondents have chosen to describe the demand as penalty
charged as per the inspection report. Even then the petitioner
cannot dispute the fact that going by Ext.P1 it is abundantly clear
O.P. No. 32159 of 2001 -7-
that according to the respondents the meter was faulty. Therefore
if the petitioner had a contention that the meter was not faulty the
petitioner was bound to raise that dispute, when only the dispute
would arise as contemplated under Section 26(6) of the Indian
Electricity Act. Therefore in my opinion since the petitioner
condescended to the fact that the meter was faulty, the
respondents were not bound to refer any dispute for decision of the
electrical inspector as required under Section 26(6).
8. Then the only the question is whether the petitioner is
liable to pay the amount demanded by the respondents on account
of the defect in the meter. Nowhere has the petitioner disputed
the specific statement in Ext.P1 that one of the phases of the power
meter was running in the reverse direction. That being so, it is
clear that the meter was recording only /3 of the consumption. In
1 rd
such circumstances, the respondents are justified and demanding
the electricity charges for the balance /32 rd consumption for six
months prior to the date of detection of the defect in the meter.
Therefore I do not find any merit in the challenge against Exts.P2
and P4.
9. But after having found the meter to be faulty it is not
proper on the part of the respondents to continue billing the
O.P. No. 32159 of 2001 -8-
petitioner by a calculator on the basis of the reading in the faulty
meter. The maximum they could have done is to charge the
petitioner for the average consumption per month as per the
reading in the replaced meter. Accordingly Exts.P5 to P7 bills are
quashed. The respondents are directed to issue fresh bills in the
place of Ext.P6 to P7 on the basis of the average consumption of
the petitioner for three months subsequent to the replacement of
the meter.
The writ petition is disposed of as above.
sd/-
S. SIRI JAGAN, JUDGE
rhs
// True copy //
PA to Judge