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The Kerala State Electricity … vs Sri. S.J. Premkumar on 1 December, 2009

Kerala High Court
The Kerala State Electricity … vs Sri. S.J. Premkumar on 1 December, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 15931 of 2005(V)


1. THE KERALA STATE ELECTRICITY BOARD,
                      ...  Petitioner
2. THE EXECUTIVE ENGINEER,
3. THE ASSISTANT EXECUTIVE ENGINEER,
4. THE SUB ENGINEER IN-CHARGE,

                        Vs



1. SRI. S.J. PREMKUMAR,
                       ...       Respondent

2. THE CHIEF ELECTRICAL INSPECTOR,

3. THE STATE OF KERALA,

                For Petitioner  :SRI.KODOTH SREEDHARAN, SC, KSEB

                For Respondent  :SRI.P.GOPAKUMARAN NAIR

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :01/12/2009

 O R D E R
                             S. Siri Jagan, J.
               =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=
                      W. P (C) No. 15931 of 2005
               =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=
                 Dated this, the 1st December, 2009.

                            J U D G M E N T

The petitioners in this writ petition are the Kerala State

Electricity Board and its officers. They are aggrieved by Ext. P6 order

of the Chief Electrical Inspector to the Government of Kerala,

whereby at the instance of the 1st respondent in respect of an alleged

theft of electricity by the 1st respondent, the Electric Inspector has

assumed jurisdiction under Section 26(6) of the Indian Electricity

Act and directed the 1st respondent to pay for the additional

consumption as quantified by the Electrical Inspector in Ext. P6. This

writ petition is filed contending that the Electrical Inspector has no

jurisdiction under Section 26(6) in view of the specific allegation of

theft of electrical energy. The facts necessary for disposal of this

case are summarised as under.

2. The officers of the Kerala State Electricity Board conducted

an inspection of the premises of the 1st respondent on 24-9-2002 and

prepared Ext. P1 mahazar, in which it is stated that the electrical

connection to the meter was changed, that the cover of the meter

was removed and the meter box was not sealed. Construing this as an

act of theft of electrical energy, Ext. P2 bill was issued to the 1st

respondent, seeking to recover three times the electricity charges

due from the 1st respondent in respect of the energy allegedly stolen

by the 1st respondent, which was not recorded in the meter. The 1st

respondent filed Ext. P4 petition before the Chief Electrical Inspector

invoking his jurisdiction under Section 26(6) of the Indian Electricity

Act. The Board filed Ext. P5 counter statement questioning the

jurisdiction of the Electrical Inspector in view of the fact that this was

a case of theft of electrical energy. However, by Ext. P6 order, the

Electrical Inspector considered whether the meter was running

correctly and whether the 1st respondent is liable to pay any

W.P.C. No. 15931/05 -: 2 :-

additional electricity charges. He decided that the average electricity

consumed by the 1st respondent was 1123 units per month and the 1st

respondent is liable to pay for the quantum of energy contained in the

supply for six months’ period prior to 24-9-2002 at the rate of 1123

units per month. That order is under challenge before me.

3. As I have already stated, the primary challenge against Ext.

P6 is on the ground of want of jurisdiction. According to the

petitioners, Section 26(6) can be invoked only in cases where the

meter ceases to be correct without intervention by the consumer and

where the meter becomes faulty because of fraud or dishonesty on

the part of the consumer, the jurisdiction of the Electrical Inspector

under Section 26(6) is clearly excluded. They rely on the decisions of

the Supreme Court in J.M.D. Alloys Ltd. v. Bihar State Electricity

Board and others, (2003) 5 SCC 226 and Bombay Electric Supply

and Transport Undertaking v. Laffans (I) Pvt. Ltd., and another,

2005(4) SCC 327 in support of their contention.

4. In answer to the same, the 1st respondent would contend that

the Electrical Inspector does have jurisdiction insofar as the

petitioners have not been able to prove that there was in fact theft of

electrical energy. According to 1st respondent, Ext. P1 itself is a

concocted document. He further submits that the very fact that the

electricity connection of the 1st respondent was not disconnected

invoking power under Clause 43 of the Conditions of Supply of

Electrical Energy itself would go to show that Ext. P1 was an after-

thought. It is further pointed out that theft of electrical energy has

been made a criminal offence under Section 39 of the Indian

Electricity Act. According to counsel for the 1st respondent, the fact

that the Kerala State Electricity Board has not chosen to initiate

prosecution proceedings under Section 39 would also go to show

W.P.C. No. 15931/05 -: 3 :-

that the allegation of theft of electrical energy is an after-thought to

unjustly penalise the 1st respondent. Another circumstance pointed

out by the 1st respondent in support of his contention is that Ext. P2

bill is issued under Section 24(1) and not under clause 43 of the

Conditions of Supply of Electrical Energy. He would also point out

that the remedy by way of appeal as provided under Clause 48 of the

Conditions of Supply of Electrical Energy is applicable only to misuse

of energy under Clause 42 thereof, whereas theft of energy is dealt

with under Clause 43 to which Clause 48 does not apply. He also

submits that against Ext. P6 order, the Board has an alternate remedy

by way of appeal to the Government under Section 36(2) of the Indian

Electricity Act. He also submits that in case this Court is inclined to

hold that the Electrical Inspector does not have jurisdiction, the 1st

respondent may be given an opportunity to file an appeal under

Clause 48 of the Regulations Relating to Conditions of Supply of

Electrical Energy.

5. I have considered the rival contentions in detail.

6. Before considering the contentions, I note that the fact that

an inspection was conducted in the premises of the 1st respondent on

24-9-2002 is admitted by the 1st respondent in Ext. P4 petition filed by

him before the Chief Electrical Inspector. He also does not dispute

the receipt of Ext. P2 bill, wherein electricity charges at the rate of 3

times the normal charges was demanded from the 1st respondent for

the electricity allegedly misused by the 1st respondent. In Ext. P4

petition before the Electrical Inspector, no grounds of mala fides

have been raised on the part of the officers who conducted the

inspection at the premises of the 1st respondent on 24-9-2002 and

prepared Ext. P1 mahazar. In Ext. P1 mahazar, it is specifically stated

that the connection to the meter was wrongly given and also that the

W.P.C. No. 15931/05 -: 4 :-

cover of the meter was removed off and the meter box was not

sealed. In Ext. P5 counter statement filed by the Board, they have

raised a specific contention to the effect that since this is a case

where the meter is tampered with and theft of electricity has been

committed, the Electrical Inspector has no jurisdiction to interfere

with the dispute and the remedy available to the 1st respondent is to

file a statutory appeal before the next higher authority under Clause

48(c) of the Conditions of Supply of Electrical Energy .

7. Since the Electrical Inspector has exercised jurisdiction

under Section 26(6), I shall extract Section 26(6) here, which reads as

follows:

“26. Meters:-

xx xx xx

(6) Where any difference or dispute arises as to whether
any meter referred to in sub-section (1) is or 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.”

From the very wording used in the said Section, I am of opinion that

that Section relates to dispute regarding correctness of a meter when

the meter has ceased to be correct, which can only mean ceased to

be correct without intervention of the consumer. Further, it is

specifically stated therein that the register of the meter shall, in the

absence of fraud, be conclusive proof of such amount or quantity.

Therefore, the wording used in the Section lend support to the

W.P.C. No. 15931/05 -: 5 :-

conclusion that Section 26(6) will not have any application in cases

where there is allegation of theft of electrical energy. In fact, this

position of law has been settled by the decision of the Supreme Court

in the two decisions referred to by the counsel for the Board. In

J.M.D. Alloys’s case (supra), in paragraph 10, the Supreme Court

has held thus:

“10. The contention that the dispute regarding tampering of
the seal of CT/PT terminal unit should have been referred to the
Electrical Inspector, has hardly any merit. In M.P. Electricity
Board v. Basantibai,
(1988) 1 SCC 23, it has been held that a
dispute regarding the commission of fraud in tampering with the
meter and breaking the body seal is one outside the ambit of
Section 26(6) of the Indian Electricity Act and the Electrical
Inspector has no jurisdiction to decide such cases of fraud. It was
further held that under Section 26(6), the only dispute which can
be decided by the Electrical Inspector is as to whether the meter is
correct and is accurately recording the reading or there is some
fault in the same. Since in the present case it has been found that
the seal on the CT/PT terminal box had been tampered with and
the natural working of the meter had been affected by taking
recourse to external devices, a dispute of this kind cannot be
referred to an Electrical Inspector.”

Again in Bombay Electric Supply and Transport Undertaking’s

case (supra), the Supreme Court has held thus in paragraph 6:

“6. The abovesaid provisions have been the subject matter
of consideration by this Court in three cases which have been
brought to our notice. They are M.P. Electricity Board v.
Basantibai,
(1988) 1 SCC 23, Belwal Spinning Mills Ltd. & Ors. v.
U.P. State Electricity Board & Anr, (1997) 6 SCC 740 and J.M.D.
Alloys Ltd., v. Bihar State Electricity Board,
(2003) 5 SCC 226.
The first and the last of the cases are decisions by three learned
Judges and the second one is a decision by two learned Judges.
We have carefully perused the three decisions and we find
ourselves in entire agreement with the view of the law taken in
these cases. In particular, in Belwal Spinning Mills’s case, this
Court has examined the provisions of Section 26, specially sub-
section (6) thereof, in very many details, also taking into
consideration the legislative intention and the object sought to be
achieved by substituting sub-section (6) by Act 32 of 1959 in its
present form over the predecessor provision. We would be

W.P.C. No. 15931/05 -: 6 :-

referring to the relevant findings of law recorded in these cases.
However, at the outset and here itself, we would like to mention
that the applicability of sub-section (6) of Section 26 is attracted
only when the meter is not correct. Section 26(6) will have no
applicability (i) if the consumer is found to have committed a
fraud with the licensee and thereby illegally extracted the supply
of energy preventing or avoiding its recording, or (ii) has resorted
to a trick or device whereby also the electricity is consumed by the
consumer without being recovered by the meter. In effect the
latter class of cases would also be one of fraud. Tampering with
the meter or manipulating the supply line or breaking the body
seal of the meter resulting in non-registering of the amount of
energy supplied to the consumer or the electrical quantity
contained in the supply – are the cases which were held to be not
covered by Section 26(6) in the case of Basantibai (supra), while
the provision was held applicable to any case of meter being faulty
due to some defect and not registering the actual consumption of
electrical energy. Similar is the view taken in the case of J.M.D.
Alloys Ltd. (supra).”

The Supreme Court has reiterated this view in State of W.B. & Ors.

v. Rupa Ice Factory (P) Ltd. & Ors, (2004) 10 SCC 635 and Sub

Divisional Officer (P) UHBVNL v. Dharam Pal, AIR 2007 S.C.

1214. Therefore, the law is well settled to the effect that Section 26

(6) has no application where theft of electrical energy is involved.

8. In the present case, there is certainly an allegation of theft as

is clear from Ext. P1 mahazar itself and the 1st respondent has been

served with Ext. P2 bill demanding electricity charges at 3 times the

normal rate in accordance with Clause 43 of the Conditions of Supply

of Electrical Energy dealing with theft of electricity. Therefore, it is

more than evident that according to the Electricity Board, this is a

clear case of theft of electrical energy. They have stated so in their

counter statement before the Chief Electrical Inspector, Ext. P5.

9. The facts that the petitioners have not chosen to disconnect

the electricity supply to the 1st respondent as required under Clause

43 of Conditions of Supply of Electrical Energy, that the petitioners

have not chosen to initiate prosecution proceedings against the 1st

W.P.C. No. 15931/05 -: 7 :-

respondent under Section 39 and that Ext. P2 bill has been issued

under Section 24(1) of the Indian Electricity Act, do not alter the

situation in any manner, insofar as the 1st respondent has not chosen

to challenge the action of the petitioners on the ground of mala fides.

Strangely, the Chief Electrical Inspector has not even referred to the

contention regarding theft in Ext. P6 order. He has merely assumed

that this is a dispute regarding the correctness of meter. Counsel for

the Kerala State Electricity Board would submit that the Electrical

Inspector has not even examined the meter. Whatever that be, the

question of jurisdiction has to be decided on the basis of pleadings.

Of course, the pleadings cannot be merely to deny jurisdiction, but

should be bona fide. In this case, in Ext. P1, which is the first

document in respect of the subject matter, there is a very clear

allegation of theft of electrical energy. The issue of Ext. P2 bill

demanding electricity charges at three times the normal rate as

provided under Clause 43 of the Conditions of Supply of Electrical

Energy further shows that the Electricity Board has proceeded with

the matter bona fide believing the same to be a case of theft of

electrical energy. Once it is held that the contention of the Electricity

Board is bona fide, the Electrical Inspector has not even the

jurisdiction to decide whether there is actually theft of electrical

energy. It is very relevant to note here that the petitioner has not

chosen to challenge the validity of Ext. P1 mahazar before any

authority. Once it is shown that there is bona fide contention

regarding theft of electrical energy, going by the Supreme Court

decision, the Electrical Inspector ceases to have jurisdiction under

Section 26(6) of the Indian Electricity Act. That being so, Ext. P6 is

clearly without jurisdiction . Accordingly, the same is quashed.

10. That does not mean that the 1st respondent is without any

W.P.C. No. 15931/05 -: 8 :-

remedy whatsoever to disprove Ext. P1 and challenge Ext. P2 bill

appropriately. As rightly pointed out by the learned counsel for the

Kerala State Electricity Board, Clause 48 of the Conditions of Supply

of Electrical Energy provides for an appeal on the decisions of the

Board’s officer taken under the provisions of the Conditions of Supply

of Electrical Energy to the next higher authority. The 1st respondent

can certainly take recourse to that remedy insofar as the action

against him is clearly under Clause 43 of the Conditions of Supply of

Electrical Energy. In order to enable the 1st respondent to resort to

that remedy, I direct that further coercive proceedings pursuant to

Exts.P1 and P2 shall be kept in abeyance for a period of one month

from today.

The original petition is disposed of as above.

S. Siri Jagan, Judge.

Tds/

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