Madras High Court
M/S.Saraswathi Match Works Rep. By vs The Tamilnadu Electricity Ombudsman on 20 December, 2016
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.12.2016 Reserved on : 02.12.2016 Pronounced on : 20.12.2016 CORAM THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN Writ Petition(MD)No.12037 of 2012 and M.P.(MD)Nos.2 and 3 of 2012 M/s.Saraswathi Match Works rep. by its Manager G.Sabapathi Silamalai Patty Road, Peraiyur, Madurai District. ? Petitioner -Vs- 1.The Tamilnadu Electricity Ombudsman, 19-A, Rukmini Lakshmipathy Salai (Marshall Road), Egmore, Chennai-8. 2.The Chairman (Superintending Engineer), Consumer Grievance Redressal Forum, K.Pudur, Madurai-7. 3.The Executive Engineer, TANGEDCO (formerly TNEB), Thirumangalam, Madurai District. 4.The Assistant Executive Engineer (Distribution), TANGEDCO (formerly TNEB), T.Kallupatty, Madurai District. 5.The Assistant Engineer, Tamil Nadu Electricity Board, Peraiyur, Madurai District. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari Mandamus, calling for the records relating to the impugned order made in A.P.No.7/12 dated 28.08.2012 on the file of the 1st respondent herein by confirming the order made in Second Appeal No:001/2011-12 in A.No.:1226/11 dated 30.12.2011 on the file of the 2nd respondent herein and confirming the order made in Lr.No.:AEE/D/T.KLPTY/F.DKT/D.No:625/10.11 Dt.27.12.2010 on the file of the 4th respondent and to quash the same. !For Petitioner : Mr. J.Suresh ^For Respondents : M/s.Srimathy for M/s.S.M.S.Johnny Basha (for R2 toR5) :No Appearance (for R1) :ORDER
The petitioner has filed this writ petition for issuance of Writ of Certiorari or any other appropriate Writ, Order or Direction in the nature of writ of certiorari by calling for the records relating to the impugned order made in A.P.No:7/12 dated 28.08.2012 on the file of the 1st respondent by confirming the order made in Second Appeal No.001/2011-12 in A.No.1226/11 dated 30.12.2011 on the file of the 2nd respondent and confirming the order made in Lr.No:AEE/D/T.KLPTY/ F.DKT/D.No:625/10.11 dated 27.12.2010 on the file of the 4th respondent and to quash the same.
2.The case of the petitioner is that the petitioner is the General Manager of one M/s.Saraswathi Match Works at Peraiyur. The said Match Works was established in the year 1992. It is a partnership concern. For the said match work firm, a Low Tension Electricity Service Connection was obtained from the 5th respondent under service number L.T.C.T. SC.No:141-022-305. The petitioner has been manufacturing match sticks and match boxes as a Tiny Sector Unit. The capacity of the electricity service is 25 H.P and right from the date of starting the match works, they have been running the said match factory without any divergence from Electricity Service Rules. Further the petitioner has been paying electricity consumption charges without any default to the respondent board periodically.
3.Further the case of the petitioner is that on 04.12.2010, their match factory?s electricity meter was inspected by the M R T/P S Q wing along with the 4th respondent. In the said inspection the petitioner?s match factory staff Mr.K.V.Kannan was present therein. In the inspection it was found and recorded by the M R T wing that all the seals were intact and there was no tampering of any seal. On further inspection it was found that there was a PT fuse failure in RQ and it was found that the same was occurred during the month of April 2008 and continued till date. The said report was served to the petitioner. Hence the petitioner met the respondents 3 & 4 and stating that when it is precise from inspection report that all the seals were found intact and the petitioner?s match work is not responsible for the PT fuse failure and prayed them that the petitioner?s firm is no way held liable for the fault of the respondent board.
4.The learned counsel for the petitioner argued that even assuming without admitting the liability that how the petitioner?s firm can be held liable to pay average billing right from April 2008 onwards. But, the respondents have not given proper reply. Hence, on 20.12.2010 the petitioner has sent a detailed representation to the 4th respondent by RPAD and requested them not to take any coercive steps as the petitioner?s match works is no way connected with the alleged PT fuse failure. The 4th respondent, thereafter without holding any enquiry straight away issued the impugned order dated 27.12.2010 with a direction to pay a sum of Rs.2,56,991/- within a period of 15 days.
5.On receipt of the said order, immediately the petitioner sent a reply to the 4th respondent and requested him to reconsider the issue, since they are not responsible for the PT fuse failure. Further it is an admitted fact that there is no tampering of meter seals. Every month the Assistant Engineer, Peraiyur, who is the 5th respondent herein used to take meter reading and the PT fuse failure could be noticed by him at the time of meter reading if really there is any PT fuse failure. But, he has not noted any such PT fuse failure at the relevant point of time as mentioned in the impugned order passed by the 4th respondent. All in a sudden the no liability can be fixed upon the petitioner by concluding as if the petitioner is liable to pay the electricity consumption charges for PT fuse failure from 2008 onwards. Further the M R T wing has not found any electricity theft. Shockingly though no electricity theft is deducted, the service connection of the petitioner?s match unit was disconnected on 13.01.2011 by the 5th respondent.
6.Since the electricity was disconnected, the petitioner is not in a position to run the Match Factory and therefore the petitioner has filed writ petition in W.P.No.639 of 2011 before this Court and sought to quash the impugned demand notice and also sought interim direction in M.P.No.1 of 2011 to restore the electricity connection. This Court by order dated 18.01.2011 directed the 5th respondent to restore the electricity connection immediately on condition to deposit a sum of Rs.1,00,000/-. Accordingly the petitioner had deposited the said amount and electricity connection was restored to his Match Unit. The said writ petition was disposed by directing the petitioner to file appeal as per section 18 of Tamil Nadu Electricity Supply Code before the 2nd respondent by its order dated 09.02.2011.
7.As per the direction of this Court, the petitioner filed appeal before the 2nd respondent. But the 2nd respondent without even giving proper opportunity to the petitioner to explain the fact, he simply dismissed the appeal and sent the order dated 08.12.2011 to the petitioner. As against the order of the 2nd respondent, the petitioner filed appeal before the first respondent under Section 8 of Tamil Nadu Electricity Supply Code Regulations for Consumer Redressal Forum and Electricity Ombudsman. The first respondent though has categorically held that for the defects in metering circuit like fuse blown out etc., the licensee alone is responsible, but ultimately dismissed the appeal filed by the petitioner against his own discussion by order dated 28.08.2012. The said order is challenged in this writ petition.
8.The 5th respondent has filed counter affidavit on his behalf and also on behalf of the respondents 1 to 4. It is contended by the respondents that on scrutiny of Meter Reading Register, it reveals and confirms that R phase is missing right from April 2008. Accordingly average billing has been worked out for two years period in accordance with the Regulation 11(2) r/w Regulation 12 (1) of Tamil Nadu Electricity Supply Code and directed the petitioner to pay the short fall amount to the tune of Rs.2,56,991/-. Further they stated that there is no theft of energy and it is only defective meter which is a technical defect existed from April 2008 and due to oversight it was not detected. However, the petitioner has enjoyed the full load energy, but there was no proportionate recording of consumption in the meter which necessitates revision of billing.
9.The learned counsel for the respondents Electricity board argued that the petitioner has consumed excess energy, but due to defect in meter he has paid only a lesser amount of consumption charge. Therefore, the electricity board is claiming charges for actual consumption by arriving at average as per Regulation of Tamil Nadu Electricity Supply Code. Hence there is no illegality in the claim of the respondents and the petitioner is bound to pay the charges.
10.I heard Mr.J.Suresh, learned counsel appearing for the petitioner and M/s.Srimathy, learned counsel appearing for the respondents 2 to 5 and perused the records.
11.I have gone through the counter affidavit filed by the respondents Electricity board wherein it is clearly and candidly admitted that there is no electricity theft by the petitioner. It can?t be disputed that the electricity reading meter and all the allied apparatus belong to the respondent?s electricity board. Further it is very clear that the reading meter and other apparatus are supplied, erected and maintained by the electricity board. Further it is an admitted fact that the PT fuse failure is only a technical defect. If at all there is any defect in the meter, it is for the Electrical Inspector to verify and ascertain the correctness of the meter and to estimate the amount of average supply. In the present case, the respondents have not at all followed the above said procedure. As per the records and also the counter affidavit of the respondents, it could be easily found that there is no fault on the side of the petitioner. The petitioner cannot be held liable for the fault of the Electricity Board, by fixing the liability upon the petitioner.
12.This court has put its anxious consideration in respect of the issue involved in the present writ petition. Further, as per as the installation of meter is concerned, it has been denied under Rule 7 of Tamil Nadu Electricity Supply Code, 2004 and also section 55 of the Tamil Nadu Electricity Act, 2003 wherein several regulations and stipulations have been given with regard to the creation of meters. At most responsibility is casting upon the corporation in the erection and maintenance of the same. Here admittedly except the erection, no other guidance as contemplated under the above said provided are followed by the corporation. So, the respondents can?t resort Rule 11 and 12 of the Electricity Supply Code by flouting the regulations as contemplated under Rule 7 and Section 55 of the Supply Code and Act respectively.
13.Further the respondents Electricity board has not given any answer for the petitioner?s averment made in para 6 of the affidavit with regard to the order passed by the 1st respondent and the relevant portion of the order extracted in the affidavit is reproduced here under:
?In paragraph No: 12.7 of the order of the 1st respondent it is held that ?In this regard it is to be pointed out that the section officer who has taken the reading on every month has recorded the low voltage in ?R? phase (a phase). But he never suspected that the consumption is low and checked the fuse. He simply mechanically recorded the readings without applying his mind.
He has not at all understood the reasons for taking all these readings. The licensee has to properly educate his officers to avoid such mistakes. The mistake of the officer has resulted in renewal of fuse after 32 months?.
14.The respondents herein have not at all given proper explanation for the said finding of the 1st respondent. The 1st respondent has clearly held that the Electricity Board staff, who had taken meter reading, has mechanically recorded the readings without applying his mind. The 1st respondent further held that the petitioner is not responsible for ?R? Phase fuse failure. Having held so, dismissed the appeal filed by the petitioner without any valid reason is unsustainable in law. The respondents 1 and 2 herein have passed the impugned order without applying their mind.
15.A perusal of entire records shows that before passing the impugned order the 4th respondent has not given an opportunity of hearing to the petitioner. But the respondents 1 and 2 herein while deciding the statutory appeals have not considered the contention put forth by the petitioner with regard to the violation of principles of natural justice as enshrined under Article 19 of the Constitution of India. Hence the impugned order of the 1st respondent is liable to be quashed. In view of the discussions made above, I hereby set aside the order of the respondents 1, 2 and 4.
16.Since this court has set aside the impugned orders of the respondents 1, 2 and 4 herein, this court direct the 5th respondent to refund the amount of Rs.1,00,000/- deposited by the petitioner herein based on the conditional order passed in M.P.No.1 of 2011 in W.P.No.639 of 2011 dated 18.01.2011 within a period of 4 weeks from the date of receipt of the copy of this order.
17.In the result, writ petition is allowed. There is no order as to cost. Consequently connected miscellaneous petitions are closed.
To
1.The Tamilnadu Electricity Ombudsman, 19-A, Rukmini Lakshmipathy Salai (Marshall Road), Egmore, Chennai-8.
2.The Chairman (Superintending Engineer), Consumer Grievance Redressal Forum, K.Pudur, Madurai-7.
3.The Executive Engineer, TANGEDCO (formerly TNEB), Thirumangalam, Madurai District.
4.The Assistant Executive Engineer (Distribution), TANGEDCO (formerly TNEB), T.Kallupatty, Madurai District.
5.The Assistant Engineer, Tamil Nadu Electricity Board, Peraiyur, Madurai District..