Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 3RD DAY OF MARCH 2023 / 12TH PHALGUNA, 1944 PETITIONER/S: V.SUNIL KUMAR PUTHEN VEEDU, KALLAMKONAM, VARKALA, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.R.KISHORE SRI.ARUN BABU RESPONDENT/S: 1 THE K.S.E.B REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM DISTRICT.0695 004. 2 THE DEPUTY CHIEF ENGINEER APTSHQ VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM DISTRICT.0695 3 THE ASSISTANT EXECUTIVE ENGINEER (APTS) AANTI POWER THEFT SQUAD) KERALA STATE ELECTRICITY BOARD, PALAKKAD. 4 THE ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, VARKALA-695 141. SC KSEB, SRI RIJI RAJENDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Order dated 15.10.2012 of the appellate authority under the
Electricity Act dismissing the appeal of the petitioner is under challenge in the present writ petition.
2. On 11.3.2005, Anti Power Theft Squad, Palakkad (APTS)
inspected the premises of the petitioner bearing consumer No.12928. It was found that the meter was in a tampered condition and all four seals were broken and there were markings on the meter counter due to continuous changing of counter reading. The premises was found to be functioning as the distributing agency of Joy Ice cream. The meter was taken out and sealed in the presence of the consumer and handed over to the Assistant Engineer, Varkala for safe custody. Based upon the inspection, the reassessment bill of Rs.5,40,834/- was issued to the consumer under LT-VII (a) tariff for a period of six months prior to the date of inspection as per clause 43 of Conditions of Supply of Electrical Energy. Petitioner preferred a writ petition and was relegated to avail the remedy of appeal but an amount of Rupees one lakh was deposited to effect the re-connection as it was disconnected during the interregnum. Appellate authority dismissed the appeal by noticing the report of inspection.
3. Learned counsel appearing on behalf of the petitioner
submitted that clause 43 of the then Kerala State Electricity Board Terms and Conditions of Supply, 2005 provides for procedure in respect of tampering, distress or damage to electrical plant, electrical lines or meter. The meter was not put to test in the laboratory in order to ascertain whether it was having inherent defect or the components were intentionally removed, decaliberated or tampered with as the concerned officer of the electricity board had been regularly noting down the reading of the meter and did not find any tampering. As per sub Rule 4 of Regulation 43, if the board discovers that the protective seal of the metering equipment broken, immediately shall be notified to the other party in writing. No such writing was sent, except for preparation of the mahazar. No exercise of reading of the meter was undertaken after replacement of the meter to notice whether there was a less consumption of electricity or reading of the bill commensurated after replacement in order to prima facie conclude a case of theft. Concededly meter was not sent to laboratory. Thus the impugned
order is liable to be set aside.
4. On the other hand, learned counsel appearing on behalf
of the electricity board supported the impugned order and submitted that the provisions of Regulation 43 were complied with. The tampering of the meter was so apparent that it did not require to be sent to the laboratory as per the provisions of sub Rule 5 of Regulation 43 of Kerala State Electricity Board Terms and Conditions of Supply, 2005
5. I have heard the learned counsel for the parties and
appraised the paperbook. It would be appropriate to extract the provisions of Regulation 43 of Kerala State Electricity Board Terms and Conditions of Supply, 2005 .
43. Tampering, Distress or Damage to Electrical Plant, Electrical lines or meter
(1) A consumer shall provide and maintain sufficient protection
to the metering and associated equipment to the satisfaction of the Board.(2) The consumer or occupant of the premises shall not tamper or permit tamper, distress or damage to the electrical plant, lines or metering equipment provided at the consumer’s premises.
(3) The Board shall provide seals or other appropriate devices in respect of metering equipment to detect the interference.
(4) If the consumer or Board or other authorized persons
discover that the protective seal of the metering equipment has been broken, he shall notify the other party (Board or consumer as the case may be) in writing immediately. The Board after receiving such notification shall replace the seal on the first occasion of visit and take meter reading,if theft is not suspected.
(5) If it appears to the Board that the metering equipment provided for supplying electricity to the consumer is defective, the Board will test themetering equipment and repair and replace the metering equipment,asthecasemaybe.
(6) The cost of replacement of metering equipment as
mentioned under sub-clause (5) above shall be borne by the consumer, if the Board reasonably establishes that damage to the metering equipment was due to action of the consumer. Board may deny reconnection to the consumer,if it is established that there are chances of such repeated occurrence.
6. Perusal of the aforementioned conditions, reveal that on
notice of the breaking of the seals either by the consumer or by the board, the same shall be notified to each other and after receiving such notifications, the seals will be replaced on the first occasion of the visit and the meter reading would be taken, if the theft is not suspected. Procedure for taking action has been prescribed under Regulation 27 of Chapter 8 of the Kerala State Electricity Regulatory Commission. The same reads as under:
27. Action against tampering, distress or damage to electrical
plant, electric lines or meter.- (1) A consumer shall provide and maintain sufficient protection to the metering and associated equipments to the satisfaction of the Licensee.
(2) The Licensee shall ensure that all electricity supply lines
and equipment that are belonging to the Licensee or under its control in the consumers’ premises, are in a safe condition and in all respects are fit for supplying energy and further the Licensee shall take adequate precaution to avoid dangers arising on such premises from such supply lines and equipment.
(3) The consumer or occupant of the premises or
installationforwhichLicenseehad provided electricity service, shall not tamper or permit tamper, distress or damage to the electrical plant, lines or metering equipment provided by the Licensee.
(4) The Licensee shall provide seals or other appropriate devicesinrespectofmetering equipment to detect the interference and shall maintain a register of all relevant security devices and seals.
(5) If the consumer or Licensee or other authorized persons
discoverthattheprotective seal of the metering equipment has been broken, he shall notify the other party (Licensee or consumer as the case may be) in writing immediately. TheLicensee after receiving such notification shall replace the seal on the first occasion of visit and take meter reading.
(6) If it appears to the Licensee that the metering equipment
provided for supplying electricity to the consumer is defective, the Licensee must test the metering equipment and repair and replace the metering equipment, as the case maybe.
(7) The cost of replacement of metering equipment as
mentioned under clause 27(6) above shall be borne by the consumer, if the Licensee reasonably establishes that damage to the metering equipment was due to action of the consumer. Licensee may deny reconnection to the consumer, if it is established that there are chances of such repeated occurrence
7. On perusal of the same, if it appears to the licencee, the meter was defective or tampered, licenceee is required to test the meter equipment, repair and replace the metering.
8. However in the instant case, the order impugned as well
as the assessment order are conspicuously absent with regard to the testing of the meter from the accredited laboratory to form an opinion of tampering. Even if the meter had been sent for laboratory for examination, the report could not have been treated as a sermon in the absence of non joining of the petitioner. The officers of Anti power Theft Squad were not equipped with the equipment meant for determination of the theft or the meter tampering. It can always be done in the accredited laboratory. In the absence of the same, the demand raised by the respondent is wholly preposterous, aberrative and fallacious. Order Ext.P4 is quashed. The amount of Rupees one lakh deposited by the petitioner is ordered to be adjusted in the subsequent bills. Writ petition stands disposed of. SD/- sab AMIT RAWAL, JUDGE PETITIONER'S EXHIBITS: P1: THE TRUE COPY OF THE MAHASAR DTD 11.3.2005 P2: THE TRUE COPY OF THE DEMAND NOTICE DATED 14.3.05 ISSUED BY THE 4TH RESPONDENT P3: THE TRUE COPY OF THE ARGUMENT NOTES PRODUCED BY THE PETITIONER BEFORE THE 2ND RESPONDENT P4: THE TRUE COPY OF THE ORDER APTS/AV/590/05/331 DATED 15.10.2012 ISSUED BY 2ND RESPONDENT