Kerala High Court
The Assistant Executive Engineer vs The State Electricity Ombudsman on 6 January, 2014
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938
WP(C).No. 13614 of 2016 (B)
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PETITIONER:
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THE ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL SUB DIVISION, KOTTAYAM CENTRAL,
KERALA STATE ELECTRICITY BOARD LIMITED,
KOTTAYAM.
BY SRI.RAJU JOSEPH,SENIOR ADVOCATE
SRI.GEORGEKUTTY MATHEW, SC, KSEB
RESPONDENTS:
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1. THE STATE ELECTRICITY OMBUDSMAN,
CHARANGATTU BHAVAN NO.34/895,
MAMANGALAM-ANJUMANA ROAD,
EDAPPALLY, KOCHI-682 024.
2. THE CONSUMER GRIEVANCE REDDRESSAL FORUM (SOUTH),
KERALA STATE ELECTRICITY BOARD LIMITED, SOUTHERN REGION,
VYDYUTHI BHAVANAM, KOTTARAKKARA-691 506.
3. SRI.SAJAN VARGHESE,
MANAGING DIRECTOR, MANGALAM PUBLICATION (I) PVT. LTD,
S.H.MOUNT.P.O,KOTTAYAM-680 001.
R1 & R2 BY ADV. SRI.N.SASIDHARAN UNNITHAN
R3 BY ADVS. SRI.A.A.ZIYAD RAHMAN
SRI.LAL K.JOSEPH
SRI.V.S.SHIRAZ BAVA
SRI.M.R.XAVIER JESS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15-02-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
WP(C).No. 13614 of 2016 (B)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE LETTER ISSUED BY THE DEPUTY CHIEF ENGINEER,
ELECTRICAL CIRCLE,KOTTAYAM TO THE 3RD RESPONDENT DATED
06.01.2014
P2 TRUE COPY OF THE LETTER ISSUED BY THE DEPUTY CHIEF ENGINEER TO
THE 3RD RESPONDENT DATED 19.02.2014
P3 TRUE COPY OF THE LETTER ISSUED BY THE DEPUTY CHIEF ENGINEER TO
THE 3RD RESPONDENT DATED 12.12.2014
P4 TRUE COPY OF THE LETTER ISSUED BY THE DEPUTY CHIEF ENGINEER
TO THE 3RD RESPONDENT DATED 12.01.2015
P5 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE
DEPUTY CHIEF ENGINEER DATED 16.01.2015
P6 TRUE COPY OF THE LETTER ISSUED BY BY THE SPECIAL OFFICER,
REVENUE TO THE 3RD RESPONDENT DATED 20.01.2015
P7 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 27.06.2015
P8 TRUE COPY OF THE ORDER IN APPEAL PETITION NO.P/137/2015 DATED
13.11.2015.
RESPONDENT(S)' EXHIBITS
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R3(A) TRUE COPY OF THE COMMUNICATION DATED 14/02/2014.
R3(B) TRUE COPY OF THE REPORT DATED 18/03/2014 ISSUED BY THE TMR UNIT,
PALLOM, KOTTAYAM
R3(C) TRUE COPY OF THE COMMUNICATION DATED 20/03/2014
R3(D) TRUE COPY OF THE APPLICATION IN THE PRESCRIBED FORMAT BEFORE
THE ASSISTANT ENGINEER ON 27/03/2014 SUBMITTED BY THE 3RD
RESPONDENT
R3(E) TRUE COPY OF THE COMMUNICATION DATED NIL ISSUED BY THE ASSISTANT
ENGINEER, ELECTRICAL SECTION, KOTTAYAM EAST.
R3(F) TRUE COPY OF THE COMMUNICATION DATED 9/07/2014
R3(G) TRUE COPY OF THE COMMUNICATION BEARING NO.DBI/HT-PA/2014/15/1579
DATED 29/09/2014
2/-
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WP(C).NO.13614/2016
R3(H) TRUE COPY OF THE UNDERTAKING SUBMITTED BEFORE THE DEPUTY CHIEF
ENGINEER ON 9/10/2014
R3(I) TRUE COPY OF THE COMMUNICATION BEARING NO.DBI/HT-PA/2014-15/1996
DATED 21/11/2014
R3(J) TRUE COPY OF THE COMMUNICATION DATED 15/12/2014
R3(K) TRUE COPY OF THE OBJECTION DATED 5/01/2015 SUBMITTED TO EXT.3
COMMUNICATION
/TRUE COPY/
P.A.TO JUDGE
sts
K. VINOD CHANDRAN, J.
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W.P.(C) No. 13614 of 2016 (B)
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Dated: 15th February, 2017
J U D G M E N T
The petitioner, the Kerala State Electricity Board, challenges Ext.P8 order of the Ombudsman. The 3rd respondent approached the Ombudsman against a bill issued, levying 50% extra charges over the prevailing rates, on both fixed and energy charges for the period between 5/2014 to 12/2014. The levy of penalty has been made under Clause (4) of Part B - High Tension (HT) and Extra High Tension (EHT) tariff as provided in the Tariff Order for K.S.E.B 2014-2015 ('Tariff Order' for short). There is no dispute that the Tariff Order so brought out by the Electricity Regulatory Commission is statutory in nature.
W.P.(C) No. 13614/2016 -2-
2. The premises of the 3rd respondent who was carrying on a publication, was inspected on 12.11.2012 by the Anti Power Theft Squad (APTS). The 3rd respondent has a contract demand of 206kVA, while the 3rd respondent was found to be using 320 kVA. A bill was issued for the unauthorized use of electricity for Rs.36,39,604/-. The same was challenged in W.P.(C) No.13583/013, wherein an interim order was passed directing deposit of 50%. The same is said to be pending.
3. Having found the unauthorized use, the 3rd respondent was obliged to file an application for regularization. It is seen that the 3rd respondent paid penal charges up to December, 2013, i.e., even for the period after the inspection. The 3rd respondent filed an application for regularization of the excess contract demand in December, 2013, which was responded to by W.P.(C) No. 13614/2016 -3- Ext.P1. The Board, by Ext.P1, informed the 3rd respondent that the Current Transformer (CT) in the premises was of 15/5 A capacity, while the CT required for contract demand of 320 kVA is of capacity 20/5A.
4. The 3rd respondent, hence, requested for providing a meter with Current Transformer/Potential Transformer (CT/PT) unit, by itself, which was permissible as per the regulations applicable to the Board. The same was allowed by Ext.P2 and the 3rd respondent was obliged to supply a CT/PT unit to be installed in the premises within 25 days. Later, the time was extended to two months from the date of Ext.P2 and hence the 3rd respondent had time up to 18.04.2014.
5. The Electricity Board contends that the 3rd respondent did not produce the CT/PT and hence there could be no regularization granted and the 3rd W.P.(C) No. 13614/2016 -4- respondent continued to use the enhanced contract demand without a regularization and also without the meter. It is admitted that on Ext.P2 sanction being granted, the 3rd respondent was allowed to remove the meter so as to install an upgraded CT/PT unit. Hence, the 3rd respondent was continuing the connection as an un-metered supply which is also permissible, on which the charges are paid on the average demand for the earlier months. This could be only for a period of two months, as permitted in Ext.P2 and extended later. The delay occurred for reason of the 3rd respondent not having followed the procedure for installing a CT/PT meter, is the contention of the Board. The Board, hence, levied penal charges at the rate of 50% of the regular tariff for the period, as noticed above, on the 3rd respondent, against which the 3rd respondent approached the Consumer Grievance Redressal Forum W.P.(C) No. 13614/2016 -5- (CGRF), which dismissed the claim by Ext.P7, against which an appeal was filed before the State Electricity Ombudsman, which stood allowed as per Ext.P8. The Board impugn Ext.P8.
6. The learned Counsel for the 3rd respondent, would refer to the various documents produced in the counter affidavit filed to contend that the 3rd respondent had been vigilant insofar as providing the test report, confirming the up-gradation and calibration of the CT/PT unit before the Board. It is contended that it was the obligation of the Board to install the meter in the premises and the same having not being done, there could be no penal charges levied by the Board. Alternatively, it is also contended that Clause (4) of Part B of the Tariff Order could only be invoked in circumstances of a defective meter and there being no defect found in the meter connected to the premises of W.P.(C) No. 13614/2016 -6- the 3rd respondent, the penal charges cannot be levied.
7. The 3rd respondent's unauthorized use of electricity, was detected on inspection by the APTS on 12.11.2012. The proceedings with respect to the unauthorized use is pending. Admittedly, the 3rd respondent required an enhanced additional contract demand, for which the 3rd respondent had applied in December, 2013 itself; which was responded to by Ext.P1 dated 06.01.2014. The 3rd respondent's contention is that, within time, i.e, before 18.04.2014 the time permitted by the Deputy Chief Engineer, the 3rd respondent had produced the test report of CT/PT unit from the Transformers, Meters and Relays (TMR) Division of the Board, as evidenced at Ext.R3(b) along with a covering letter dated 20.03.2014, produced as Annexure R3(c). The Board officials failed to install the CT/PT unit, is the contention raised by the 3rd W.P.(C) No. 13614/2016 -7- respondent, which was accepted by the Ombudsman, on the strength of which the penal charges were entirely set aside. The respondent also relied on Exts.R3(e) and R3(g) communications issued by the Board, wherein, there was no reference to the non production of the CT/PT unit. The 3rd respondent was informed of the need for production of the CT/PT unit only by Ext.R3(i) dated 21.11.2014, based on which the same was produced and the CT/PT unit installed with the meter in December, 2014.
8. Going by the specific pleadings of the 3rd respondent, it is an admitted position that the 3rd respondent did not produce the CT/PT meter, which was tested and calibrated; before the Assistant Engineer. The contention is that the reports were filed before the Assistant Engineer, who was under
obligation to visit the premises of the 3rd respondent W.P.(C) No. 13614/2016 -8- and install the unit. This Court is unable to countenance such a contention, especially since it was incumbent on the part of the 3rd respondent to have produced the CT/PT meter, tested and calibrated along with the reports before the Assistant Engineer. True, the Assistant Engineer, on receipt of Ext.R3(c), has not sought for the CT/PT meter from the 3rd respondent, in which circumstance, there was no meter affixed to the connection and the 3rd respondent continued without regularization, which was also applied for. The Board also had power to disconnect the connection which, however, was not done. In the totality of the circumstances, as seen from above, it is seen that there was lethargy on the part of the Board's officials and the 3rd respondent also was negligent insofar as not producing the CT/PT unit before the Board officials. W.P.(C) No. 13614/2016 -9-
9. The further contention raised on the basis of Clause (4) of Part B of the Tariff Order is that there could be no penal charges levied if there was no defect in meter. The defective meter is referred to, in the context of an option exercised by the consumer to purchase and supply the meter for replacement and the consumer failing to do so within two months, on which the consumer would be charged with 50% extra, over the prevailing rates applicable , both for fixed demand and energy charges from the date of expiry of the two month period. It cannot be said that such levy can be made only in the context of there being a defective meter. Any application for replacement and the consumer electing to purchase and supply the meter would require the replacement to be made within the time provided in Clause (4) of the Tariff Order, which is two months. Specifically noticing the two month W.P.(C) No. 13614/2016 -10- period, provided in the Tariff Order this Court cannot countenance the finding of the Ombudsman that the two months granted by the Deputy Chief Engineer is a special sanction for the purposes of installation of the meter in the 3rd respondent's premises.
10. Looking at the totality of the circumstances, it has to be found that the levy of penal charges would be permissible even in the circumstance of the 3rd respondent's case; wherein the 3rd respondent had necessarily to replace the meter for the purposes of regularisation of the enhanced contract demand and the 3rd respondent having elected to purchase and supply the meter for replacement. The further question to be looked at is as to the penal charges imposed of 50% extra over the prevailing rates applicable to the consumer. It is to be noticed that the Tariff Order does not provide for any discretion in applying the penal W.P.(C) No. 13614/2016 -11- charges and on failure to replace the meter within two months, it is incumbent upon the licensee to impose 50% extra over the prevailing rates applicable to the consumer. However, in the context of this Court having found that the officials of the Board were also responsible for the 3rd respondent having continued the un-metered supply, it is only proper that the penalty be reduced to 25% extra over the prevailing rates. The order of the Ombudsman is interfered with to the extent of the entire demand being set aside and the 3rd respondent would be liable to pay half of the penal charges, payable under Clause (4); as billed by the Board.
The writ petition is partly allowed. No Costs.
Sd/-
K.VINOD CHANDRAN, JUDGE jjj 16/2/17