Karnataka High Court
M/S Karanja Industries Private Ltd. ... vs Executive Engineer Ors on 27 August, 2019
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF AUGUST 2019
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION NO.82652/2012
C/W
WRIT PETITION NO.82231/2012 (GM-KEB)
IN W.P.NO.82652/2012
Between:
M/s Karanja Industries Private Limited,
Akkamahadevi Colony,
Bidar - 585 401,
(Represented by its General Manager
Mr. Basavaraj).
... Petitioner
(By Sri Harshavardhan R. Malipatil, Advocate)
And:
1. Executive Engineer,
Gulbarga Electricity Supply
Company Limited (GESCOM),
O & M Division, Humnabad,
Bidar District.
2. CONSUMER GRIEVANCES REDRESSAL FAROUM
(C.G.R.F),
GESOM CORPORATE OFFICE,
Opp Hotel Parivar, Main Road,
Gulbarga.
2
3. ELECTRICITY OMBUDSMAN
an authority appointed under
Section 42(6) of the Electricity Act, 2003,
C/o Karnataka Electricity Regulatory Commission,
9/2, 6th Floor, Mahalakshmi Chambers,
M.G. Road, Bangalore - 560 001.
4. Gulbarga Electricity Supply,
Company Limited (GESCOM),
Main Road, Gulbarga - 585 102,
(Represented by its Managing Director).
... Respondents
(By Sri Ravindra Reddy, Advocate for R1 & R4;
R2- Served; and
Sri Ravi B. Patil, Advocate for R3)
This writ petition is filed under Articles 226 and 227 of
the Constitution of India, praying to issue a writ of certiorari
or any other appropriate writ, order or direction to quash the
impugned order dated 5.1.2012, passed by the 3rd
respondent in Case No.OMB/G/G-94/2010/49 dated
5.1.2012, at Annexure-A, to the extent of directing the 1st
respondent to issue a revised Bill at the rate of 36.11165%
slow recording of the meter for a period of 6 months
preceding first meter test and also against the liberty granted
to the 4th respondent to refer the meter in the possession of
the 1st respondent to Third Party Agency, in case any
resolution is required for recovery of back billing charges at
45% slow recording of the mater.
IN W.P.NO.82231/2012
Between:
1. The Executive Engineer (E1),
O & M Division, GESCOM,
Humnabad, Dist. Bidar.
3
2. The Assistant Executive Engineer (E1),
O & M Sub-Division, GESCOM,
Humnabad, Dist. Bidar.
... Petitioners
(By Sri Ravindra Reddy, Advocate)
And:
1. M/s. Karanja Industries Pvt. Ltd.,
Sindbandgi Village, Humanbad Taluk,
Dist. Bidar.
2. The Electricity Ombudsman,
9/2, 6th Floor, Mahalakshmi Chambers,
M.G. Road, Bangalore.
... Respondents
(By Sri Harshavardhan R. Malipatil,
Advocate for C/R1;
Sri Ravi B. Patil, Advocate for R2)
This writ petition is filed under Articles 226 and 227 of
the Constitution of India, praying to issue a writ of certiorari
quashing order dated 5.1.2012 passed in Case
No.OMB/G/G-94/2010/49, vide Annexure-A.
These petitions coming on for preliminary hearing in
'B' group this day, the Court made the following:-
ORDER
Since common and akin issues are involved in these petitions, the same are clubbed, heard together and disposed of by this common order.
4
2. In W.P.No.82652/2012, the petitioner - Consumer has challenged the order passed by the third respondent in Case No.OMB/G/G-94/2010/49 dated 05.01.2012 at Annexure-A to the extent of directing the first respondent to issue a revised Bill at the rate of 36.11165% slow recording of the meter for a period of six months preceding first meter test and also against the liberty granted to the fourth respondent to refer the meter in the possession of the first respondent to third party Agency, in case any resolution is required for recovery of back billing charges at 45% slow recording of the meter. Whereas, W.P.No.82231/2012 has been filed by the Gulbarga Electricity Supply Company ('GESCOM' for short) challenging the very same order dated 05.01.2012.
3. M/s.Karanja Industries Private Limited is an electricity consumer of the 4th respondent under R.R.No.HKHT 05 since 02.01.2002 under H.T.-2(a) Tariff 5 category with a contract demand of 700 K.V.A. The consumer was issued with a demand for Rs.30,53,542/- which included the interest of Rs.2,55,026/- on the premise that the meter was calibrated on 16.01.2004. Being aggrieved, the Consumer had approached the District Consumer Dispute Redressal Forum, Bidar (Forum' for short) and after hearing the parties, the forum has passed an order holding the slow recording of meter at 36.11165% for a period of 616 days prior to 10.02.2004. On the appeal preferred by the Consumer before the Electricity Ombudsman, the same came to be partly allowed whereby the GESCOM has been directed to issue revised bill at the rate of 36.11165% slow recording of the meter for a period of six months preceding first meter test. However, GESCOM has been granted liberty to refer the meter in his possession to third party Agency, in case any resolution has been passed for recovery of back billing charges at 45% slow 6 recording of the meter. Aggrieved by the said order, both Consumer and the Licensee are before this Court.
4. Learned counsel for the licensee - GESCOM would submit that the electricity ombudsman has failed to consider Clause 4(a)(i) of the Karnataka Electricity Regulatory Commission Code of Practice On Payment Of Bills, which is directly applicable to the facts of the present case. The said provision is not considered by the Forum while disposing of the matter restricting the slow recording of the meter by 36.11165% for a period of six months.
5. Learned counsel appearing for the consumer would submit that the Forum erred in not considering the complaint made by the Consumer in a right perspective. The willingness or offer to pay Rs.30,53,542/- for the slow recording of the meter by 36.11165% was a condition offered in order to maintain cordial relation with the licensee so that no insistence 7 shall be made for back billing at 45% slow recording of the meter. The so called willing/acceptance order relied upon by the licensee for passing the impugned order was lapsed since the said offer has not been accepted explicitly and the same was not offered in any subsequent proceedings. But, no reliance can be made on the offer or willingness made by the consumer. The order impugned confirming the back billing charges at 45% slow recording of the meter is not in conformity with provisions of the Electricity Act, 2003. He further submits that no mahazar and other procedures were followed in terms of the said provision of the Act, 1910. It is submitted that the ombudsman having held that the slow recording of the meter at the rate 36.1115% has to be calculated towards the back billing charges, erred in further granting liberty to refer the meter to third party agency in case any resolution is required for recovery of back billing charges at 45% slow recording of the meter.
8
6. Learned counsel Sri Ravi B.Patil appearing for the respondent No.2 supported the order of the learned Ombudsman impugned herein. It was submitted that Clause 4(a)(i) of the Code relating to Payment Of Bills would not be applicable to the facts of the case.
7. Heard the learned counsel for the respective parties and perused the material on record.
8. The Electricity Act, 2003 has come into force with effect from 10.06.2003. Section 185 (1) and (2) of the Act, 2003, contemplates, repealing and saving. Hence, the arguments made by the learned counsel for the Consumer relying upon Section 26 of the Act, 1910 that no procedure prescribed therein has been followed, is not acceptable. Similarly, the arguments of the learned counsel for licensee relying upon Clause 4(a)(i) of the Karnataka Electricity Regulatory Commission Code of Practice On Payment Of Bills ('Code' for short) 9 also deserves to be rejected. Rule 4(a)(i) of the Code On Payment Of Bills, reads thus ;-
"4(a)(i) - At any time during verification of the consumer's account if any erroneous claims are noticed, the consumer is liable to pay the difference, in case the revised claims are more than the claims already made in the regular bills within 30 days from the presentation of a separate supplemental bill for the short claim. However, the licensee shall not claim any payment towards short claim for back period beyond 3 years.
In case the revised claims are less than the claims already made, the excess amount pointed out shall be credited to the consumer's account within one month under intimation to him. If for any reason there is delay in crediting to the consumer's account, interest at 2% per month shall be paid to the consumer for the period beyond one month from the date of pointing out of revised claims.
In case the revised claims are less than the claims already made, the excess amount pointed out shall be credited to the consumer's account within one month under intimation to him. If for 10 any reason there is delay in crediting to the consumer's account, interest at 2% per month shall be paid to the consumer for the period beyond one month from the date of pointing out of revised claims."
9. A reading of the aforesaid deduces that the said provision relates to erroneous bill and its adjustment. The dispute in the present case is regarding the slow meter reading and not with reference to erroneous bill and its adjustment. Hence, the said provision is of no aid to the GESCOM to claim back billing charges beyond six months. No short claims are noticed during the verification of the consumer's account, the same relates to the slow reading of the meter-defective meter. Clause 27.03 of the Karnataka Electricity Regulation Commission (Electricity Supply and Distribution) Code 2000-01 which has come into effect from 29.03.2001 in the State of Karnataka reads thus ;-
"27.03 In the event of test being undertaken by the Licensee periodically under Rule 57(4) of the 11 I.E.Rules 1956 using an electronic type testing equipment preferably with a facility of a printer attached to it the following procedure shall be adopted.
(i) When the meter is found to be slow beyond permissible limits, the Consumer is liable to pay the difference at normal rates based on the percentage error, for a period of not more than 6 months prior to the test, due regard being paid to the conditions of working, occupancy etc., during this period and upto the date of replacement or rectification of the meter.
(ii) When the meter is found to be fast beyond permissible limits, the Licensee shall adjust the excess amount collected based on the percentage error for a period not more that 6 months prior to the date of test with in one month of the date of test by giving credit to the account of the consumer.
(iii) The testing staff of the Licensee shall draw a mahazar and obtain the signature of the Consumer or his representative for witnessing the test and also agreeing to pay the back billing charges in case of slow recordings of the mater.
(iv) If the Consumer or his representative refuses to sign the mahazar, the error in the meter need not be adjusted or meter removed and Electrical Inspector is to be approached for testing the meter who shall test the meter within a period of one month. 12
Note
1) A check meter can be installed for billing purposes till the error in the original meter is rectified.
2) The Consumer is not liable to pay any penal charges if the revised consumption/demand exceeds the entitlement fixed for the installation."
10. This provision is squarely applicable to the facts of the case. Applying the same, learned Ombudsman has directed to issue a revised bill at the rate 36.11165% slow recording of the meter for a period of 6 months preceding first meter test which cannot be faulted with.
11. As regards the challenge made by the consumer to issue a revised bill at the rate of 36.1165% slow recording does not hold any water for the reason that the consumer in the complaint before the Forum has clearly admitted that the complainant is ready to pay at the rate of 36.11% slow recording of the meter. From the admission made in the complaint it is not in 13 dispute that the consumer was ready and willing to pay Rs.30,53,542/- at the rate of 36.11% slow recording of the meter and the challenge was only with respect to the back billing charges at 45% slow recording of the meter.
12. The learned Ombudsman having accepted the admission of the consumer based on the analysis and on the downloaded data of the meter ought not to have issued liberty to revise the percentage of slow recording to 45% as no signature of the consumer is taken on the second test report said to have been done on 10.02.2004. The shortcomings found in the procedure adopted by the GESCOM certainly would not entitle the GESCOM to demand back billing charges at 45%. No reasons are recorded by the learned Ombudsman to arrive at such a decision. In such circumstances, the order passed by the Forum to issue the revised back billing charges by 36.111% for a period of 616 days cannot be enhanced to 45% on the appeal filed by the consumer.
14
13. Accordingly, confirming the order of the Ombudsman inasmuch as the direction to the GESCOM to issue a revised bill at 36.11165% slow recording of the meter for a period of six months preceding first meter test, the subsequent liberty granted to the GESCOM to refer the meter to third party agency in case any resolution is required for recovery of back billing charges at 45% slow recording of the meter requires to be set-aside. Hence, the following ;
ORDER Writ petition No.82652/2012 is partly allowed. Writ Petition No.82231/2012 filed by the GESCOM is dismissed.
(i) The order of the Electricity Ombudsman
dated 05.01.2012 insofar as granting
liberty to the first respondent in
W.P.No.82652/2012 to refer the meter in his possession to Third Party Agency, in case any resolution is required for recovery 15 of back billing charges at 45% slow recording of the meter is set aside;
(ii) The direction issued to the first respondent in w.P.Nos.82652/2012 to issue a Revised Bill at the rate of 36.11165% slow recording of the meter for a period of 6 months preceding 1st meter test is upheld.
Sd/-
JUDGE Srt/sn