Om Gam Udyog Samiti vs Punjab State Electricity Board and Others

Satish Kumar Mittal, J.—The petitioner society is running a rice sheller. It has taken a seasonal electric connection from the respondent-Electricity Board under the Medium Supply (MS) category having sanctioned load of 66.705 K.W.

The said connection was got released only in November, 2002.

It is the case of the petitioner that on 3.1.2003, Assistant Executive Engineer/Sub Divisional Officer (respondent No. 8 herein) made a surprise checking of the meter and during the checking, all the three phases of the meter were checked by respondent No. 8 and were found in order. The rice sheller of the petitioner remained closed from 1.4.2003 to 21.10.2003 due to off season. Thereafter, the electric connection was got revived on 22.10.2003. On that date, all the three phases of the matter, seals etc. were checked by respondent No. 8 and the same were found in order. Thereafter, on 30.10.2003, Senior XEN Enforcement, Punjab State Electricity Board, Sangrur (respondent No. 6 herein) visited the premises of the petitioner and checked the meter with Electronic Reference Standard Meter, i.e. ERS instrument & Water load and reported that the disc of the meter was not moving forward on red phase. However, other two phases were found okay. On the basis of the said report, respondent No. 8 issued a letter dated 31.10.2003 to the petitioner asking him to deposit an amount of Rs. 1,29,783/- on account of overhauling of the petitioners'' account for the last six working months.

Feeling dissatisfied and aggrieved against the aforesaid letter/notice, the petitioner approached the Chief Engineer (South), Punjab State Electricity Board, Patiala (respondent No. 4 herein) for referring his case for adjudication to the Zonal Level Dispute Settlement Committee (respondent No. 3 herein). On the said request, respondent No. 4 referred the matter to respondent No. 3 and in accordance with the rules, the petitioner deposited Rs. 43,261/- as l/3rd of the total amount of Rs. 1,29,783/- for considering his claim by respondent No. 3. Respondent No. 3 in its meeting dated 20.4.2004 decided to overhaul the petitioner''s account for the last six months from the date of checking by respondent No. 6. It was decided that the consumption prior to April, 2003 was comparable with the previous year and thereafter the account may be overhauled for the last six months from the date of checking by the enforcement. It was also directed that the meter of the petitioner firm be replaced immediately.

On the basis of the above said decision, the account of the petitioner firm was overhauled and only an amount of Rs. 3,050/- was charged from the petitioner which was calculated for the period 22.10.2003 to 30.10.2003 (the period for which the electric connection was being used) because prior to that the meter remained disconnected due to off season for the period 1.4.2003 to 21.10.2003. The rest of the amount i.e. Rs. 40,211/- out of the already deposited amount of Rs. 43,261/- was refunded to the petitioner. The said order became final. Neither the respondent-Electricity Board nor the petitioner challenged the said order by filing an appeal against the same.

It is further the case of the petitioner that after 30.10.2003, respondent No. 8 started sending bills 1.5 times more than the normal/actual consumption. After the aforesaid decision, the petitioner filed an application dated 3.5.2004 before the Chief Electrical Inspector, Punjab State Electricity Board, Patiala (respondent No. 5 herein) alleging that the petitioner is wrongly getting the bills 1.5 times more than the normal/actual consumption. It was stated that against the actual consumption of 52,758.78 units, the petitioner has been charged for 77,602 units. He made a request that his meter be got checked from M.E. Lab so that it could be made clear that the meter was working properly or not. The petitioner also claimed refund of the excess amount on account of charging 1.5 times more.

Ultimately, on 27.7.2004, the meter of the petitioner was got checked from ME Lab. It was found that the meter was running fast 8.05% (average). The report of the M.E. Lab has been annexed with the petition as Annexure P-4. After coming of the aforesaid report, the petitioner approached respondent No. 8 for refund of the excess amount which was being charged 1.5 times more than the normal/actual consumption. According to the petitioner, the said amount comes to Rs. 1.25 lacs approximately. When the petitioner did not get the said amount refunded, he approached respondent No. 4 to refer the matter to Zonal Level Dispute Settlement Committee (respondent No. 3 herein). Again the matter was referred to the said Committee. Respondent No. 3 vide its decision dated 23.3.2005 dismissed the appeal of the petitioner by saying that the matter in dispute does not fall within its purview.

Feeling aggrieved against the said order, the petitioner filed an appeal before the Dispute Settlement Authority, Punjab State Electricity Board, Patiala (respondent No. 2 herein). Respondent No. 2 after considering the reply filed by the respondent-Electricity Board passed an order dated 13.6.2006 (Annexure P-9) which has been impugned by the petitioner in the instant petition. By the said order, respondent No. 2 set aside the decision dated 20.4.2004 taken by respondent No. 3 in its meeting and has ordered: (a) that the account of the petitioner firm be overhauled for the preceding six working months from the date of last checking by Senior XEN/ENF, Sangrur on 30.10.2003, i.e. for the period October, 2002 to March, 2003 by taking average consumption of 22695 units per month; and (b) that regarding refund for the period 30.10.2003 i.e. date of checking by Senior XEN/ENF, Sangrur, to 7.7.2004 (date of replacement of meter) on account of fastness of the meter declared by the M.E. Lab on 27.7.2004, the matter may be referred to the competent authority.

Counsel for the petitioner argued that the petitioner is aggrieved against part (a) of the aforesaid order whereby the decision taken by respondent No. 3 in its meeting dated 20,4.2004 has been set aside and the account of the petitioner firm has been ordered to be overhauled in terms of part (a) of the said order. As far as part (b) of the order is concerned, the petitioner does not challenge the same as the competent authority has already taken the decision regarding refund on account of fastness of the meter declared by the report of the M.E. Lab. Counsel for the petitioner contends that against the order of overhauling of the petitioner''s account on account of the earlier report dated 30.10.2003 made by the Senior XEN Enforcement (respondent No. 6 herein), respondent No. 3 had already taken a decision which has become final between the parties. The Electricity Department did not challenge the said order by filing an appeal, through the same could have been challenged by filing an appeal. Since no appeal was filed by any one against the decision dated 20.4.2004, respondent No. 2 was having no jurisdiction to set aside the said order while hearing the appeal filed by the petitioner. Learned Counsel for the petitioner while referring to Section 126(5) of the Electricity Act, 2003 and Regulation 70.8 of the Sales Regulations, submitted that overhauling of the accounts shall be carried out for a maximum period of six months preceding the date of detection of defective metering equipment. But where the month date of the meter getting defective can be established with certainty, being within six preceding months, overhauling of consumption/power factor figures would be restricted upto that month. Learned Counsel submits that since the electric connection of the petitioner firm was restored on 22.10.2003 and the meter was checked by respondent No. 8 on the said date, therefore, the overhauling period was taken from 22.10.2003 to 30.10.2003 and on the basis of the said decision, an amount of Rs. 3,050/- was charged and the remaining excess amount of Rs. 40,211/-, which was deposited by the petitioner, was refunded to him. Therefore, respondent No. 2 otherwise acted illegally while ordering that the overhauling of the account of the petitioner firm be made from October, 2002 to March, 2003, by taking average consumption of 22695 units per month. Therefore, part (a) of the impugned order is not sustainable and the same is liable to be set aside.

During the course of arguments, counsel for the respondent-Board admitted that against the decision dated 20.4.2004 taken by respondent No. 3, the Electricity Board could have filed an appeal before the Dispute Settlement Authority, Punjab State Electricity Board, Patiala (respondent No. 2 herein). However, no appeal was filed against the said order. It has further been admitted that in pursuance of the decision dated 20.4.2004, the account of the petitioner''s firm was overhauled and an amount of Rs. 3,050/- was charged from the petitioner for the period 22.10.2003 (date of revival of the electric connection) to 30.10.2003 (date of checking of the meter) and an amount of Rs. 40,211/- out of an amount of Rs. 43,261/-, which was already deposited by the petitioner as a condition for filing an appeal for reference to Zonal Level Dispute Settlement Committee (respondent No. 3 herein), was refunded. It has not been disputed that the said decision not only became final but it was also acted upon.

In view of the aforesaid factual position, we are of the opinion that para (a) of the impugned order passed by respondent No. 2 is wholly without jurisdiction as no appeal against the order dated 20.4.2004 was filed by any person, as such respondent No. 2 was not competent to set aside that order while hearing the appeal of the petitioner against an order which arose from a different cause of action. The petitioner filed an appeal against the order dated 23.3.2005 passed by respondent No. 3, whereby his claim with regard to refund of the excess amount charged from the petitioner 1.5 times more due to the defectiveness in the meter, was rejected by saying that the matter of refund does not fall within its purview. The grouse of the petitioner in the said appeal was that once on checking the meter of the petitioner was found running fast by 8.05% (average), then there was no justification with the respondent-Electricity Board to charge 1.5 times more consumption of the electricity on account of the report that the meter was defective. The appeal of the petitioner was with the prayer for refund of the excess amount which was illegally got deposited from the petitioner. Therefore, in our opinion, the Appellate Authority should have confined itself to the said issue which was before it. The Appellate Authority while exceeding its jurisdiction has wrongly taken a decision to overhaul the petitioner''s account from October, 2002 to March, 2003. Even if the petitioner''s account was to be overhauled, it should have been for a period from 22.10.2003 (date of revival of the electric connection) to 30.10.2003 (date of checking of the meter) because Regulation 70.8 of the Sales Regulations provides that overhauling of the accounts shall be carried out for a maximum period of six months from the date of detection of defective metering equipment. But where the month/date of the meter getting defective can be established with certainty, being within six preceding months, overhauling of consumption/power factor figures would be restricted up to that month. Since in this case it is definitely established that prior to inspection the meter was got revived on 22.10.2003, therefore, the overhauling period should be from 22.10.2003 to 30.10.2003. In view of these provisions, the Zonal Level Dispute Settlement Committee (respondent No. 3 herein) had taken a decision dated 20.4.2004 for overhauling the accounts of the petitioner''s firm for the said period and charged an amount of Rs. 3,050/-.

Regarding refund for the period 30.10.2003 i.e. date of checking by Senior XEN/ENF, Sangrur, to 7.7.2004 (date of replacement of meter) on account of fastness of the meter declared by the M.E. Lab on 27.7.2004, the Appellate Authority has rightly taken the decision that the matter may be referred to the competent authority. It has been pointed out that in this regard the competent authority has taken the decision and counsel for the petitioner states that according to the said decision. the petitioner will get refund of the excess amount, therefore, he is not aggrieved against part (b) of the impugned order passed by respondent No. 2. Thus, in view of the above discussion, we are of the opinion that part (a) of the impugned order dated 13.6.2006 passed by respondent No. 2 is without any jurisdiction and the same is hereby set aside.

The petition is partly allowed in the aforesaid terms.