Dismissed

The Assistant Executive Engineer v. Narayanan K

Kerala HC26 Oct 2016WP(C)/13339/2016

Case brief

AI extract

What is this about?

This writ petition by KSEB officers challenged the CGRF order quashing an energy bill. The High Court held that the CGRF acted on multiple grounds including procedural irregularities and surprise demand. Finding no substantial miscarriage of justice solely on Section 56(2), the Court dismissed the petition and refused to interfere.

What did the court decide?

The short assessment bill set aside by the CGRF was maintained by refusing interference.

The Assistant Executive Engineer Vs Narayanan K — Writ and Judicial Review | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938

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WP(C).No. 13339 of 2016 (N)

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PETITIONER(S):

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1. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION,

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THE KERALA STATE ELECTRICITY BOARD LTD., RANNY SOUTH.

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2. THE ASSISTANT ENGINEER,

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ELECTRICAL SECTION, THE KSEB LTD., RANNY SOUTH.

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BY ADV. SRI.T.R.RAJAN,SC,K.S.E.B.

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RESPONDENT(S):

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1. NARAYANAN K., INDUS TOWERS LIMITED, 8TH FLOOR, VANKARATH TOWERS, PALARIVATTOM, COCHIN, PIN - 682 024.

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2. THE CONSUMER GRIEVANCE REDRESSAL FORUM (SOUTH), KOTTARAKKARA, REPRESENTED BY ITS CHAIRPRSON, PIN - 691 506.

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R1 BY ADV. SRI.P.SATHISAN R2 BY ADV. SRI.N.SASIDHARAN UNNITHAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rvs.

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WP(C).No. 13339 of 2016 (N)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXT. P1 TRUE COPY OF THE COMPLAINT IN OP NO.1439/2015 FILED BY THE 1ST RESPONDENT BEFORE THE SECOND RESPONDENT

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EXT. P2 TRUE COPY OF THE STATEMENT OF FACTS FILED BY THE 2ND PETITIONER IN OP NO.1439/2015 ON THE FILES OF THE 2ND RESPONDENT

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EXT. P3 TRUE COPY OF THE ORDER DATED 4.7.2015 PASSED BY THE 2ND RESPONDENT IN OP NO.1439/2015

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EXT. P4 TRUE COPY OF THE REVIEW PETITION IN RP NO.1606/2015 IN OP NO.1439/2015 FILED BY THE 2ND PETITIONER BEFORE THE SECOND RESPONDENT.

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EXT. P5 TRUE COPY OF THE ORDER DATED 26.12.2015 PASSED BY THE 2ND RESPONDENT IN RP NO.1606/2015 IN OP NO.1439/2015.

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RESPONDENT(S)' EXHIBITS :

NIL.

/TRUE COPY/

P.A.TO JUDGE

rvs.

**A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.13339 of 2016

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Dated this the 26^th day of October 2016

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J U D G M E N T

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This writ petition is filed by the Officers of the Kerala State Electricity Board (hereinafter referred to as the 'Board') challenging an order passed by the Consumer Grievance Redressal Forum (for short 'CGRF') by which the complaint filed by the 1^st respondent was allowed and the short assessment bill issued has been set aside. Though a review petition was filed, the same had been rejected in terms of Ext.P5.

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The facts as disclosed would show that a new meter of the consumer/1^st respondent was installed on 28/01/2011. Thereafter, the readings could not be taken as the door was closed. The next reading could be taken only on 05/07/2011. When, again it was noticed that the meter was defective, another meter was installed on 08/07/2011. A short assessment bill was issued from 11/12/2014 in respect of the period from January 2011 to July 2011.

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W.P.C.No.13339/2016

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The 1^st respondent preferred a complaint before the CGRF. The CGRF found that the demand made beyond the time stipulated under Section 56(2) of the Electricity Act, 2003 (hereinafter referred to as 'the Act') and accordingly the assessment bill was set aside. The Board filed a review petition which also came to be dismissed, against which this writ petition is filed.

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The main contention urged by the learned counsel for the petitioners is that Section 56(2) of the Act has no application to the facts of the case since the amount became first due only on 11/12/2014 when the bill had been issued. Therefore, the CGRF was not justified in allowing the complaint based on Section 56(2) of the Act. Learned counsel also placed reliance upon the judgment in Brihanmumbai Municipal Corporation v. Yatish Sharma [ 2007(3) KLT S.N.9] and Sunderdas v. Kerala State Electricity Board [2009(2) KLT S.N.5 Case No.7]. There is no dispute about the judgments aforesaid. In so far as the judgment only stated that the amount becomes due when the monthly/bimonthly bills are issued. It is the normal practice that the bills are issued by the Board either on monthly basis or on bi-monthly

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basis and if the amounts are not paid, power will be disconnected.

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In the case on hand, the factual issues involved would show that the demand had been made not during the respective months when the amount is payable, but based on an audit report. The learned Single Judge of this Court in Mathew George v. Assistant Executive Engineer W.P.C.No.2147 of 2009 held that if the demand is based on an audit report, it will not save the period of limitation as provided under Section 26(6) of the Indian Electricity Act, 1910 and Regulation 31(c) of the Conditions of Supply of Electrical Energy, 1999. It was held that if the meter is faulty, the Electrical Inspector has to estimate the amount of energy supplied to the customer during the period of dispute, not exceeding six months. Reference is also made to Regulation 31(c) enabling the Board to declare a meter as faulty and to quantify the energy consumed by taking average consumption of previous three months. It was held that back assessment is possible only if the authority finds that the meter was remaining faulty. It was further held that respondents could have finalised the back assessment immediately on completion of three months after the replacement of the meters, which is

W.P.C.No.13339/2016

against law.

In yet another judgment, in Alex v. Assistant Engineer [W.P.C.No.19094 of 2012] also, the learned Single Judge of this Court had occasion to hold that going by Section 56 (2) of the Electricity Act, 2003 and Regulation 18(8) of the Kerala Electricity Supply Code, 2005, arrear due for two years preceding the demand alone can be recovered. Section 56(2) reads as under:

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“56. Disconnection of supply in fault of payment.-

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(1) xxxxxx

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(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.”

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I do not want to go into the controversy arising in the present case with reference to the legal position in regard to the applicability of Section 56(2) of the Act. This is a case in which the CGRF had considered the matter raised by the petitioner and Ext.P3 is the said order. Perusal of the order would show that the CGRF had interfered in the matter on various other grounds. The applicability of Section 56(2) of the Act was only one of the grounds in which the bill had been quashed. It is held that the consumer had remitted all monthly bills without fail and that the consumer is not liable for the fault of licensee's people or equipments owned by the Board. Further, it was found that no notice of access or disconnection steps were seen taken as per Rules, if at all it was an instance where the readings could not be taken. Further, it was found that no meter test was conducted and the test report was not produced despite the request made by the complainant. The factual aspects involved in the present case also will disclose that the consumer was put to a surprise when, after a considerably long period, demand was made alleging that there was an audit report. In so far as the CGRF is concerned, the matter was considered in great detail and on all

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W.P.C.No.13339/2016

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counts decided that the short assessment bill has to be quashed, I do not think that, in exercise of power under Article 226 of the

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Constitution of India, this Court should interfere with the same.

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This writ petition is hence dismissed.

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(sd/-)

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