Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY,THE11H DAY OF FEBRUARY201422ND MAGHA, 1935 WA.No. 1805 of 2009 ( ) ------------------------ AGAINST THE ORDER
/JUDGMENT
IN OP153742001 of HIGH COURT OF KERALA DATED1410-2008 APPELLANT(S)/RESPONDENTS2TO4: ---------------------------------------------------------------- 1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN, PATTOM TRIVANDRUM.
2. THE DEPUTY CHIEF ENGINEER, APTS, VYDHUTHI BHAVAN, PATTOM TRIVANDRUM.
3. THE ASSISTANT EXECUTIVE ENGINEER, KSEB, ELECTRICAL MAJOR SECTION, THODUPUZHA. BY ADVS.SRI.C.K.KARUNAKARAN, SC FOR KSEB SRI.P.SANTHALINGAM (SR.) SRI.S.SHARAN,SC,K.S.E.BOARD RESPONDENT(S): ---------------------------- 1. CHACKO JOSE, PULIMOOTTIL SILK HOUSE, MAIN ROAD, THODUPUZHA.
2. CHIEF ELECTRICAL INSPECTOR, SECRETARIAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. R1 BY ADV. SRI.P.R.VENKETESH R2 BY ADV. SR GOVERNMENT PLEADER SRI.M.MOHAMMED SHAFI R1 BY ADV. SRI.P.R.RAJA BY SRI.P.R.VENKITESH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON1102-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & ANIL K. NARENDRAN, JJ.
============================== Writ Appeal No. 1805 of 2009 ==================== Dated this the 11th day of February, 2014
JUDGMENT
Antony Dominic, J.
This appeal is filed by respondents 2, 3 and 4 in OP No.15374/01. The OP was filed by the 1st respondent herein, seeking to challenge Exts.P2, P8 and P9 which were issued by the appellants following an APTS inspection of the meter installed in the premises of the 1st respondent on 13th of June, 2000. On such inspection, it was found that, out of the three phases, one phase was running in the reverse order and that led to issuance of Exts.P1 and P2 demanding energy charges towards the estimated quantity consumed. That was challenged in an appeal and the appeal was also rejected by Ext.P8 order. In the OP, the contention raised was that such estimation was not possible in the absence of a reference made to the Electrical Inspector as provided in Section 26(6) of the Indian Electricity Act. Accepting the said contention, learned Single Judge allowed the OP and it is aggrieved by this judgment, the appeal is filed. W.A.NO.1805/09 :
2. :
2. We heard the learned senior counsel for the appellants, learned counsel appearing for the 1st respondent and the learned Government Pleader appearing for the 2nd respondent.
3. The only issue that arises for consideration is whether in the circumstances as pointed out, the appellants could have estimated the energy consumed by the 1st respondent for the six months as provided in Section 26(6) of the Electricity Act and demanded the amount payable from the 1st respondent without making a reference of the dispute regarding the accuracy or otherwise of the meter installed in the premises of the 1st respondent.
4. First of all, in so far as the meter in question is concerned, two phases were accurately recording the consumption and only the third phase was running in the reverse order, which could not have been due to the defect of the meter but could have been only on account of the defect in the connection. If the meter is not recording actual consumption not on account of its defect but on account of the defect of the connection given to it, the short recording of the consumption is not on account of the defect of the meter and such an issue is not W.A.NO.1805/09 :
3. : comprehended by the provisions of Section 26(6) of the Indian Electricity Act, 1910. This decision has been accepted by a Division Bench of this Court in Southern India Marine Products Co. v. K.S.E.B (1995(2) KLT167. Even apart from this, the competence of the Board to estimate the consumption of the third phase has been upheld by another Division Bench of this Court in Kerala State Electricity Board v. Anappuram Rubber Products (P) Ltd. (2012(2) KLT SN147.No.138), where it has been held thus; "Section 26(6) deals with cases of defect in the meter and in this case the meter on inspection was found to be remaining intact in the premises of the respondent and the seals were also not tampered with. When the meter was tested on the date of inspection at site in the presence of the respondent's representative by applying load to each of the three phases, the meter was found to be working in order. So much so, during testing of the meter in the presence of the respondent's representative, it was working properly. The irregularity or manipulation was only in respect of the reverse connection to one phase of the meter which led to the disk in that phase of the meter rotating in the reverse direction. It is immaterial whether this is a genuine mistake committed by the K.S.E.B. while giving connection or whether it is a manipulation done by the W.A.NO.1805/09 :
4. : respondent because in either case the actual consumption was not recorded in the meter which justifies estimation of consumption. Even though the very finding that one phase was recording consumption in the reverse direction itself will justify estimation, still the Deputy Chief Engineer followed a rational basis by estimating power consumption required for 8 hour operation for 25 days in a month and when this was applied, he noticed that if regular production was there for 8 hours a day as stated by the employees, the meter has not recorded consumption at actual or anywhere near to it. In fact, the finding of the Deputy Chief Engineer is that on an average 16000 units are required for production in the factory in a month, whereas on account of reverse connection in one phase of the meter the consumption recorded was ranging from 521 units to 4099 units. We are of the view that the appellate order is a well reasoned order and, therefore, there was no justification for the learned Single Judge to have reversed the findings on a technical ground i.e. failure to refer the matter to the Electrical Inspectorate. As already stated by us, the Electrical Inspectorate has a role under S.26(6) only when the meter is found defective and not when the meter is perfectly in order and the recording happened to be in reverse direction only because of connection given in the wrong direction." 5. For both the aforesaid reasons, we are unable to W.A.NO.1805/09 :
5. : sustain the judgment of the learned Single Judge. The judgment will stand set aside and the OP also is dismissed.
6. Be that as it may, since substantial amount is payable by the 1st respondent, if the 1st respondent is desirous of availing of an instalment facility, we leave it open to him to move the 3rd appellant for such facility. We direct that, in case such a motion is made, the same will be duly considered and appropriate orders will be passed. Writ appeal is disposed of as above. Sd/- ANTONY DOMINIC JUDGE Sd/- ANIL K. NARENDRAN JUDGE Rp //True Copy// PA TO JUDGE