K.B. Tulasidoss vs Tamil Nadu Electricity Board

R. Banumathi, J.—The Petitioner seeks certiorarified mandamus to quash the proceedings of the 2nd Respondent in reference No. 46-1/Ka

Officer/Va. vo. p./assistant.3/2003 dated 23.5.2003 and consequently abstain the Respondents from taking any deterrent action of disconnection

based on the said impugned proceedings.

The Petitioner is running the rice mill under the name and style of Sree Devaraj and Lakshmi Rice Mill at 2-A, Kamarajar Road, Tiruvallur.

Service Connection No. 3474/A4/80 was effected on 30.1.1980 under industrial tariff in the name of T.D. Krishnan father of the Petitioner.

Additional load of 70HP was sanctioned on 6.6.1970 for the use of rice mill and bi-monthly bill was being made as per meter reading and

consumption charges were collected. The Petitioner''s service was inspected on 22.3.1994 to verify the correctness of the assessment made by the

assessor. Subsequently, Anti-power theft squad authorised by the Board carried out thorough inspection of service on 11.6.1994 and detected the

nonfunctioning of two phase of the meter out of three phase and it was confirmed by the Assistant Executive Engineer/M.R.T./ Kancheepuram,

who is the competent authority to certify the functioning of the meter. The inspection was conducted in the presence of the Petitioner. It was

noticed that the disc of the meter was not rotating in two phases and consumption was being recorded in one phase only. New meter was fixed

within ten days in the Service Connection. The C.C. bills already rendered in respect of the Service Connection for the period 3/94 and 5/94 was

revised as per Clause 17.11 of the terms and conditions of supply by the proceedings dated 23.7.1994 and a sum of Rs. 1,22,167/- has been

claimed from the Petitioner towards revised C.C. charges in order to make good the incorrect billing during 3/94 and 5/94. Challenging the said

claim, the Petitioner is said to have paid a sum of Rs. 75,000/- i.e., Rs. 25,000/- each 3 times.

When the matter stood thus, A.G. audit party auditing the accounts in whole, under Clause 19.16 of the terms and conditions of the supply of

Electricity Board has raised a point of short assessment of Rs. 64,210/- by revising the 11/93 and 1/94 C.C. bills. By the proceedings in letter No.

JE/Town/Tiruvallur/95, dated 7.4.1995, the Petitioner was asked to pay the shortfall amount of Rs. 64,210/- in respect of the C.C. bills 11/93 and

1/94. Challenging the same, the Petitioner has filed another Writ Petition W.P. No. 12990 of 1995. By the order dated 9.8.2001 both the writ

petitions were disposed of directing the Board to hold fresh enquiry after affording opportunity to the Petitioner. After issuing fresh notice and after

holding enquiry, by the proceedings dated 17.5.2002, the Petitioner was called upon to pay the amount of Rs. 1,61,377/- (Rs. 97,167/- plus Rs.

64,210/). The Petitioner has again filed W.P. No. 19902 of 2002, which was disposed of by order dated 11.6.2002 directing the 4th Respondent

to pass appropriate orders and further observing that on such order being passed, the Petitioner was directed to work out his remedy in the

manner known to law.

As per the direction of the High Court, the 4th Respondent has conducted enquiry by the order dated 16.12.2002 called upon the Petitioner to

pay Rs. 1,61,377/-. The said order came to be challenged by the Petitioner before the 2nd Respondent. By the impugned proceedings dated

23.5.2003, the 2nd Respondent has passed the order reiterating their claim confirming the assessment of Rs. 1,22,167/-for the period 3/94 and

5/94 and audit shortfall arrived at Rs. 64,210/- for the period from 11/93 and 1/94. Challenging the impugned order of the 2nd Respondent, the

Petitioner has filed this writ petition.

Learned Counsel for the Petitioner has contended that the claim of the Respondents by order dated 7.4.1995 for the period from 3/94 and 5/94

amounting to Rs. 1,22,167/- and subsequently making further claim of Rs. 64,210/- for the period from 11/93 and 1/94 on the basis of audit

objection is totally an after thought. It was further contended that the Petitioner acceded for payment of the revised shortfall of Rs. 1,22,167/-

pertaining to the bills 3/94 and 5/94 and while so making further claim of Rs. 64,210/- for the period 11/93 and 1/94 based on audit objection is

totally baseless and cannot be sustained and therefore the claim of penal charges for the period 11/93 and 1/94 for a sum of Rs. 64,210/- are

liable to be set aside.

Mr. P. Srinivas, learned Counsel for the Electricity Board has contended that the claim of Rs. 1,22,167/- for the period from 3/94 and 5/94 was

based under Clause 17.11 of the terms and conditions of supply. It was further contended that the shortfall of Rs. 64,210/- pertaining to 11/93 and

1/94 C.C. bills is in accordance with Clause 19.16 of the terms and conditions of supply of Electricity Board, and that revision of bills for low

tension service connections arising out of any reason attributable to the board like defective meter, defect in the metering arrangement, etc., and

therefore by the proceedings dated 7.4.1995 the Petitioner was called upon to pay the shortfall amount of Rs. 64,210/-. It was further argued that

sufficient opportunity was given to the Petitioner and only based upon the enquiry findings, the Enquiry Officer has ordered the Petitioner to pay

sum of Rs. 1,61,377/-.

The Petitioner''s service connection was inspected on 22.3.1994 to verify the correctness of assessment made by the assessor. No open test

was conducted on that date and on visual appearance it was found that the meter was recording consumption and C.C. charges were collected

from the Petitioner. According to the Department, the Assistant Engineer, who inspected, did not carry out any technical test. The Anti-power

Theft Squad carried out the inspection of service on 11.6.1994 and detected the non-functioning of two phases of the meter out of three phases

and it was also confirmed by the A.E.E./M.R.T./Kancheepuram, who is the competent authority to certify the functioning of the meters. On

inspection, the C.C. charges for the period 3/94 and 5/94 was revised based upon Clause 17.11 of the terms and conditions, which states that

adjustment in bills would be made for error at an average load and cut power factor of the consumer when the meter found to be incorrect during

the periodical test in the preceding period of four months for H.T., and two assessment periods for low tension services in case of defective

meters."" Accordingly, a sum of Rs. 1,22,167/- has been claimed from the Petitioner towards revised C.C. charges in order to make good the

incorrect billing during 3/94 and 5/94 by proceedings dated 23.7.1994.

Insfoar as the shortfall amount of Rs. 1,22,167/-, during the enquiry by the 2nd Respondent, the Petitioner has expressed his readiness to pay

the amount. The learned Counsel for Petitioner has also submitted that to purchase peace the Petitioner is ready to pay the amount of Rs.

1,22,167/- less the amount paid by the Petitioner.

The Petitioner objected to the claim of charges of Rs. 64,210/-, which is claimed on the basis of audit objection for the period 11/93 and 1/94.

The Respondent/Electricity Board justifies its stand that as per Clause 19.16 of the terms and conditions of supply of Electricity of Tamil Nadu

Electricity Board, the revision of bills for low tension service connections arising out of any reason attributable to the Board like defective meter,

defective metering arrangement, incorrect application of the tariff, wrong billing, etc., will be made, by the letter dated 7.4.1995, the Petitioner was

addressed to make good the shortfall amount of Rs. 64,210/-.

In the proceedings dated 7.4.1995, it was observed that the earlier amendments pertaining to 3/94 and 5/94 were not correct and in the audit

objection it was observed that it must be deemed that the meter was under repair and therefore electrical charges levied under 11/93 and 1/94

should also be amended and therefore the Petitioner was called upon to set right the accounts for the period for 11/93 and 1/94 also. By perusal of

the said proceedings dated 7.4.1995 it is clear that the claim of Rs. 64,210/- is only a deemed assessment levied to set right the accounts. It is

pertinent to note that at the time when the bill for the months of 11/93 and 1/94 was sought to be revised on 7.4.1995 for a sum of Rs. 64,210/-,

the first revised bill for the period 3/94 and 5/94 itself was challenged in W.P. No. 14354 of 1994. The learned Counsel for Petitioner has

contended that when the said writ petition challenging first revised bill was pending, there was no occasion for another revised bill for the same

cause of action. There is much force in the contention of the learned Counsel for Petitioner that the claim of the Respondents for the period from

11/93 and 1/94 for Rs. 64,210/- is an afterthought. By a reading of the said proceedings dated 7.4.1995 calling upon the Petitioner to pay Rs.

64,210/- for 11/93 and 1/94 proceeds only on the presumptive footing.

As pointed out earlier, the Petitioner expressed his readiness to pay shortfall amount of Rs. 1,22,167/- less the amount, which he has already

paid. The said amount is payable from the date of passing of the order i.e., 23.5.2003. Learned Counsel for the Petitioner submitted that the

Petitioner has been bonafidely fighting out the litigation challenging the claim and therefore the Petitioner is not liable to pay any interest for the said

claim of Rs. 1,22,167/-less the amount paid by the Petitioner. As pointed out earlier, in the proceedings before the 2nd Respondent, the Petitioner

has expressed his readiness to pay the amount of Rs. 1,22,167/-, but he has not chosen to pay any amount till ordered by the Court in the interim

application. Of course, insofar as the claim of Rs. 64,210/-, the dispute raised by the Petitioner appears to be genuine. In my considered view,

notwithstanding the pendency of the writ petition, the Petitioner is liable to pay the amount of Rs. 1,22,167/- with reasonable interest at the rate of

6 percent.

In the result, the writ petition is partly allowed setting aside the impugned order dated 23.5.2003 insofar as the claim of Rs. 64,210/-. Insofar

as the amount of Rs. 1,22,167/-, the Petitioner is liable to pay the amount less the amount already paid by the Petitioner with interest at the rate of

6 percent per annum from the date of the impugned order i.e., 23.5.2003 and the Petitioner is directed to pay the said amount within a period of

four weeks from the date of receipt of copy of this order. However, there is no order as to costs.