GRAM PANCHAYAT OF DAHINA vs H.S.E.B.

WHETHER the Haryana State Electricity Board can levy electricity charges at an arbitrary average contrary to Clause 14(h) of the Terms and Conditions of Supply and Instruction No. 115 of its Sales Manual during the period in which the consumer''s meter has ceased to function? This has come to be the crucial question in this complaint. It suffices to notice the facts and the merits relevant to this question with relative brevity.

THE complainant Gram Panchayat, Dahina had established a tubewell energised by the Haryana State Electricity Board (hereinafter called the Board) in the year 1988. It is common ground that the meter of the said tubewell stopped functioning in September 1990 and a sum of Rs. 510/- was paid to the Board vide receipt No. Ill, dated 13th of September, 1990 (Annexure C-1). However, the said burnt meter was not replaced at all even till the filing of the complaint. It is the complainant''s case that prior to the stoppage of the functioning of the meter the electricity bills were for a modest amount and one such bill for Rs. 1606.60P was duly paid vide receipt No. 124, dated the 25th of January, 1990 Annexure C-2. THE primal grievance was that after September 1990 highly inflated bills on the basis of an arbitrary, haphazard and unilateral fixation of power consumption at an average of 5,000 units per month were raised against the complainant. THE total amount of these bills by the end of 1991 was the astronomical figure of Rs. 3,26,483/- which, however, on a representation was reduced to Rs. 1,81,701/-. THE gravamen of the case was that the Board could not levy charges on an arbitrary average of 5,000 units per month for the tubewell or take advantage of its own wrong in refusing or failing to replace the burnt meter, the cost for which has duly tendered and received. THE solitary relief claimed was that the demand of Rs. 1,81,701/- issued vide Annexure C-5 may be set aside. In the written statement filed on behalf of the opposite party some preliminary objections were raised to which reference is unnecessary because these were never pressed. The factual position of the electricity connection was admitted, but the plea taken was that the complainant had installed a 30 H.P. motor at the tubewell wherefrom, they apart from catering to their own needs sold the surplus water to other cultivators as well. On the crucial part of the pleadings, it was admitted that the complainant had informed the Board regarding the burning of the electricity meter and consequently they had directed them to deposit Rs. 510/- being the cost of a meter which was duly done. He was further asked to supply a meter for installation in their premises and he supplied the same which allegedly was found to be defective at the time of the testing and thereafter he was asked to supply another new meter. It was conceded that the burnt meter was not removed from the premises of the complainant and the somewhat specious plea was that this was so because the tubewell room was found locked by the Board''s employees. Insinuations of the bill for Rs. 1606/- being false and fabricated were raised and the plea taken was that at present a sum of Rs. 1,81,701/- was due from the complainant. Admitted basis for this levy was that the complainant had installed a motor of 30 B.H.P which consumes 25 units per hour and taking the average working of the tubewell to be 8 hours and purportedly giving some concession the levy was fixed at 5,000 units per month which according to the Board was not excessive. It was conceded that earlier mistakenly a bill of Rs. 3,26,000/- and odd was raised against the complainant which was later corrected by a fresh bill for the amount of Rs. 1,71,469.40P. the specious plea was that the average amount of 5,000 units per month and the amount of the aforesaid bill was not excessive. The case set up was that Rs. 510/- deposited by the complainant was the cost of the burnt meter of the Board and was not for the replacement thereof. It was alleged that the meter was not available with the Board and, therefore, the complainant was asked to purchase one meter from the market and lastly the claim of Rs. 1,81,701/- was reiterated. Documentary evidence of Annexures R-l to R-4 was produced alongwith the written statement on the record.

In support of the complainant''s case, Kanwar S.P. Singh, the Sarpanch of the Gram Panchayat put in his detailed affidavit to buttress all the relevant averments in the complaint. He was cross-examined at considerable length on behalf of the Board, but without making any dent in his forth-right testimony. In rebuttal the affidavit of Shri R.S. Gupta, Sub Divisional Officer was placed on the record to support the plea taken in the written statement and Annexures R-1 to R-13 were added to the record. The sale circular of the terms and conditions of the supply applicable to consumers in the State other than distributor licencees and Instruction No. 115 of the Sales Manual of the Board were jointly placed on the record by the parties Shri R.S. Gupta was cross-examined at considerable length on behalf of the complainant and had to make meaningful concessions which buttress the complainant''s case.

AS noticed at the out-set, the matter has come to be in a narrow compass. The factual basis, therefore, which does not seem to be in serious dispute may, therefore, be noticed somewhat pointedly. It is now common ground that the meter of the complainant''s tubewell had become non-functional in September 90 and the Board was duly informed of the same forthwith and accepted Rs. 510/- for the replacement thereof, but the same was infact never so replaced. Inevitably, during this period the electricity supply was made when the consumer''s meter had ceased to function and had, therefore, to be calculated on the basis of the statutory or contractual provisions. However, the Board''s own firm plea in their pleadings and evidence is that they had levied these charges on the basis of 5,000 units per month. This arbitrary figure was arrived at on the ground that the motor installed at the tubewell was 30 H.P which allegedly consumed 25 units per hour and the further assumption made was that the tubewell worked at an average of 8 hours per day throughout the year. Mr. Rao Ranjit, the learned Counsel for the complainant has forcefully and frontaly assailed the methodology admittedly resorted to by the Board for assessing the electricity charges when the complainant''s meter was admittedly non-functional. It was argued with vehemence that this methodology was wholly unwarranted and arbitrary on facts and totally contrary to both the statutory and the contractual provisions on the point.

THERE is patent merit in the aforesaid submission. What first meets the eye in this context is the admitted position that during the relevant period the meter of the complainant was non-functional and admittedly was not replaced, despite the payment of the requisite charges and even the tendering of another meter to the Board. Mr. R.S. Gupta, the Sub Divisional Officer (Operation) in his cross-examination has fairly admitted as under: "The meter had been found burnt and Rs. 510/- as costs thereof was received by the Department. Because of non-availability of meter in our stock we could not replace the burnt meter and, therefore, we have accepted the replacement costs. As per the record the payment was made in the September 1990." It would be manifest from the above that in the fact situation of the burnt meter and the Board''s own failure or refusal to instal a fresh one as they were required to make the assessment of electricity charges which had to be done in accordance with the settled terms and conditions between the parties or statutory rules or instructions governing the same. However, before adverting to them, it may be noticed that there was otherwise no factual foundation for the purported formula resorted to by the Board for levying an arbitrary charges of 5,000 units per month on the complainant. Kanwar S.P. Singh, the Sarpanch of the complainant Panchayat in his affidavit was categoric that the tubewell was used for one crop or agricultural season namely from October to April only. For the rest of the year the said tubewell remained closed from the month of May to September. It was further the case that whenever there is good rain fall during the monsoon season the tubewell is obviously not used. Even the hourly consumption of the tubewell was shown to be much less than that calculated by the Board. No effective challenge to this stand could be laid on behalf of the Board nor was any evidence led to establish the purported basis of the conclusion by them. From the above, it would be evident that there is no foundational base for the alleged consumption of electricity per month. However, what is more, the assumption "that the tubewell was run continuously at an average of 8 hours throughout the year is unsupported by a title of evidence and is probably rested on the more conjectures and the whims of the Board''s officials. This, as noticed is patently contrary to the evidence on the record and also all the probabilities of the case. There is, therefore, no option, but to conclude that even the fragmentary factual base for the arbitrary conclusion of a consumption of 5,000 units per month is rested on the shifting sands of conjectures rather than on facts.

APART from the above, the cast-iron case of the complainant rightly is that the methodology resorted to by the Board was totally contrary to what is provided in Instruction No. 115 of the Sales Manual and Clause 14 of terms and conditions of supply. Indeed when faced with this situation, Mr. O.R Shamna, the learned Counsel for the Board could cite no chapter or verse to support the somewhat curious formula adopted by the Board. It was tenuously suggested that the Board''s pleadings on this point were erroneous and a belated suggestion was made that the reading of the burnt meter indicated some heavy consumption. This specious plea has obviously to be noticed and rejected. Neither the pleadings out of which the Board cannot be allowed to now wriggle out, nor any other material worth the name could be shown in this regard. Consequently the somewhat belated and specious plea of Mr. Sharma must be rejected.

NOW to appreciate the primal argument of the complainant on the basis of the statutory and contractual provisions first reference at the out-set may be made to Instruction No. 115 of the Sales Manual of the Board and Clause 14 of the Terms & Conditions, the relevant part of which may be noticed in extenso :- "Instruction No. 115 : Adjustment of Consumer''s Account if Meter is found defective by a Board Employee Following procedure should be adopted whenever an energy meter on the premises of a consumer is found to be defective by Board''s employee: (a) Dead Stop of Burnt Meter - On receipt of a report regarding a meter becoming dead stop or burnt, it should be immediately replaced and necessary enquiry conducted. The meter along with the report should be forwarded to XEN, M&T for further action. So far as charging the consumer for the period the meter remained inoperative is concerned, some adhoc charges based on the average consumption of the last 3 to 6 months or the average of the same months of the preceding year, whichever seems to be reasonable should be levied. It may be worthwhile if the field staff ensures through personal enquiries from the neighbours etc., that there was no special occasion like marriage, etc. for the consumer to exceed the normal consumption during the period. In such an eventuality the consumer should also be billed for such probable consumption as determined by the field staff, xx xx"

Clause 14 Meters:- (a) A correct meter shall be installed sealed, maintained by the Board at each point of supply on the premises of the consumer and shall remain the property of the Board. The Board reserves its right to fix the position of the said meter. xx xx xx xx xx (h) Should the Board at any time detect the meter at the consumer''s premises to be out of order (or the consumer so informs the Board) it shall be replaced with a correct meter. The electricity supplied to the consumer during the period in which the said meter has ceased to function shall be determined by taking average consumption of the 3 or six months preceding the period in which the meter has ceased to function, or the average of the corresponding months of the preceding year whichever seems to be comparable. Provided that if the said meter ceased to function within the first three months of the commencement or resumption of supply, the average of the electricity supplied during the three months subsequent to the replacement of the said meter shall be taken."

Now a plain reading of the aforesaid provisions would show that a duty is cast on the Board to install a correct meter at the consumer''s premises on each point of supply. Whenever the said meter may go out of order, the requirement is that the same shall be replaced with a correct meter. However, a clear-cut direction for the calculation of the supply of the electric energy is laid out for the duration in which the consumer''s meter has ceased to function. This has been spelt out equally in Instruction No. 115 of the Sales Manual as also in Clause 14 of the Terms & Conditions of Supply. It is rested on the reasonably sound basis of the average consumption of the last three to six months either of the same year or of the preceding year and a similar provision where the meter has ceased to function soon after its installation. There is no manner of doubt nor could it be even remotely contended on behalf of the opposite party that these instructions and conditions are not binding on the Board. Once that is so, it is obvious that the Board officials cannot travel out of the mandate of their own provisions and resort to any other formula which may be whimsically devised. Despite being pointedly asked, Mr. O.P. Sharma, could refer us to no source or authority which could form the basis of the methodology adopted by the, Board in calculating the charges in the present case.

In the light of the foregoing discussion, the answer to the question posed at the outset is rendered in the negative. It is held that the Board cannot levy electricity charges at an arbitrary average contrary to Clause 14(h) of the Terms & Conditions of supply and Instruction No. 115 of the Sales Manual for the period in which the consumer''s meter has ceased to function.

ONCE it is held as above, it is plain that the Board''s case has not legs to stand on whatsoever. Herein, the formula adopted by the Board for levying charges for 5,000 units per month on the complainant has not the least relevance to what is mandated by either the Sales Manual or the contracted Terms & Conditions of supply. Such an assessment has, therefore, to be necessarily struck down as a patent deficiency in the services undertaken to be rendered by the Board. It bears repetition that as discussed earlier, there was otherwise no factual basis for resorting to and arriving at the arbitrary figure of the levied units of consumption. For the foregoing reasons, this complaint must succeed and is hereby allowed. The impugned electricity charges of Rs. 1,81,000/- demanded vide Annexure C.5 are therefore, set-aside. Inevitably the Board must calculate the same in strict conformity with Clause 14(h) of the Terms & Conditions of Supply and Instruction No. 115 of their own Sales Manual and other relevant statutory provisions. The complainant must necessarily have his costs too as well which are assessed at a sum of Rs. 1,000/- which shall be paid within one month from today failing which compliance will have to be enforced under Section 27 of the Act. Complaint allowed with costs.