Sri Rama Poly Bags vs The Superintending Engineer, Thoothukudi Electricity Distribution, The Executive Engineer Distribution and Assistant Engineer/Junior Engineer Grade I

M. Venugopal, J.—The Petitioner has filed the present Writ Petition seeking the relief of Writ of Certiorarified Mandamus in calling for the records relating to the proceedings of the third Respondent in Na. Ka.a.e.mi.po. Vi/mi/va/mu.puram. po. pa.c.t.s./D/104/2005 dated 5.3.2005 and to quash the proceedings of the second Respondent in letter No. 2020/EE/D/U/RB/U/TTN/ASXII/ AII/05 dated 14.10.2005. Also, the Petitioner has sought for a direction being issued to the second and third Respondents to refund a sum of Rs. 1,38,448/- (Rupees one lakh thirty eight thousand four hundred and forty eight only) or to adjust the same towards future consumption charges relating to the service connection number BNR54.

The learned Counsel for the Petitioner/Management submits that the Petitioner''s electricity service connection lies within the jurisdiction of the Third Respondent/Assistant Engineer/Junior Engineer Grade-I, Distribution North, Tamil Nadu Electricity Board, Muthiah Puram, Thoothukudi and has been provided with an electric meter for the electric service of low tension current transformer which will furnish the information as well as the measurement as regards the supply of electricity and current consumption. The third Respondent while assessing the current consumption charges for the month of March 2004, has found that one phase out of three phase has been defective and there has been no voltage display while using the said phase and that the meter has been sent to MRT Branch of Electricity Board at Tuticorin without informing the Petitioner.

The learned Counsel for the Petitioner contends that the Third Respondent/Assistant Engineer/Junior Engineer Grade-I, Distribution North, TamilNadu Electricity Board, Muthiah Puram, Thoothukudi, changed the defective meter with that of new meter only on 20.4.2004 after a lapse of 22 days. The third Respondent has issued the impugned order dated 5.3.2005 to the Petitioner demanding a sum of Rs. 1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only) based on the audit report without providing any working details and also, without furnishing on what basis they have demanded a sum of Rs. 1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only) from the Petitioner.

That apart, it is the contention of the learned Counsel for the Petitioner that the Petitioner has approached the Second Respondent/ the Executive Engineer (Distribution Circle), TamilNadu Electricity Board, Thoothukudi, and explained that the Petitioner is not liable to pay any consumption charges for the relevant period and requested not to demand the alleged arrears by accepting the explanation dated 15.4.2005. However, the Petitioner has granted four installments for the payment of alleged arrears of a sum of Rs. 1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only) as per proceedings dated 15.4.2005. The Petitioner on 3.8.2005 has also given a representation to the first Respondent/Superintending Engineer inter alia stating that they have paid a sum of Rs,1,00,000/- (Rupees one lakh only) because of the reason that the Petitioner has been informed if the amount of demand is not paid then electricity connection will be cut etc.

However, Mr. Suresh Kumar, Learned Standing Counsel for the Electricity Board submits that the Petitioner''s service connection beading No. L.T.S.C No. BNR 54 at Muthiah Puram Distribution on 3.11.1988 and additional load on 3.11.1989 under L.T, Traffic III-B by fixing L.T.C.T. meter. The L.T. service connection has become defective for the period between 28.2.2004 and 28.3.2004. The defective meter has been refixed by the new meter on 20.4.2004. Audit wing of the Electricity Board Office at Tirunelveli conducted an audit dated 17.2.2005 and has found out the short levy in respect of the Petitioner''s defective meter period for 53 days from 28.2.2004 to 20.4.2004 and has worked out a sum of Rs. 1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only) by taking the average of the electricity supplied during the preceding four months in respect of the L.T.C.T. service connection No. BNR 54.

The Learned Standing Counsel for the Electricity Board submits that the Petitioner has been informed through a letter dated 5.3.2005 with a request to pay the short fall amount of Rs. 1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only). The Petitioner has approached the second Respondent in person and also requested orally to grant some installments. Accordingly, the second Respondent has granted four installments to the Petitioner to pay the sum of Rs. 1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only)as per letter dated 15.9.2005.

It is not in dispute that the Petitioner has remitted a sum of Rs. 50,000/- (Rupees fifty thousand only) on 15.4,2005 and Rs. 30,000/- (Rupees thirty thousand only) on 16.5.2005 and Rs. 20,000/- (Rupees twenty thousand only) on 16.5.2005 and in all Rs,1,00,000/- (Rupees one lakh only).

The main contention of the learned Counsel for the Petitioner is that the impugned order of third Respondent dated 5.3.2005 addressed to the Petitioner requiring him to pay a sum of Rs,1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only)towards the short levy adjustment period from 28.2.004 to 20.4.2004 does not spell out in quantitative and in qualitative fashion as to how the authorities have come to a conclusion of Rs,1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only) being the demand amount as claimed by them. Therefore, the said order is not a correct one in the eye of law. Further, it is the submission of the learned Counsel for the Petitioner that a sum of Rs. 1,00,000/- (Rupees one lakh only) has been remitted by the Petitioner to avoid electricity disconnection and that has been paid without prejudice to the rights of the Petitioner.

Countering the submissions of the learned Counsel for the Petitioner, it is the contention of the learned Counsel for the Respondents that as per terms and conditions of supply of Tamil Nadu Electricity Board Rules the audit party of the Board has worked out the short levy for the meter defective period and as such, the same is in order.

At this juncture, it is useful for this Court to refer to paragraph No. 9 of the counter filed by the third Respondent/Assistant Engineer/Junior Engineer Grade I, TamilNadu Electricity Board, Muthiah Puram, Thoothukudi, wherein it is mentioned as follows:

I further submit that the Petitioner has not paid any amount of Rs,38,448/- (Rupees thirty eight thousand and four hundred and forty eight only). Thus short levy for the meter defective periods is reworked out to the tune of the amount as noted below. Amount worked out to the tune of Rs. 1,94,915.00 Amount already included in 07/04 for 8221 units and collected in Pr. No. 373021 dated 16.8.2004 Rs. 40,571.00 Rs. 1,53,344.00 Less: Already paid by the Petitioner Rs. 1,00,000.00 as mentioned in para No. 9 Net amount yet to be paid by the Petitioner Rs. 53,344.00 (Rupees fifty three thousand three hundred and forty four only) Working for 8221 Units 8221 X 4.70 Rs. 38,638.00 E. Tax 5% Rs. 1,931.00 Total Rs. 40,570.00 Rs. 40,571.00/

The gist of the contention of the Learned Standing Counsel for the Respondent/Electricity Board is that the Petitioner has to pay a balance amount of Rs,53,534/- (Rupees fifty three thousand fine hundred and thirty four only) and therefore, the question of refund of Rs,1,38,448/- (Rupees one Lakh thirty eight thousand four hundred and forty eight only) does not arise on any count/score.

The Learned Standing Counsel for the Respondent/Electricity Board brings it notice of this Court Clause 17.10 of the terms and conditions of Tamil Nadu Electricity Board of the assessment for the short levy is made mention of and the same enjoins thus:

Where supply to the consumer is given without a meter or where the meter fixed is found defective or to have ceased to function and no theft of energy or violation is suspected, the quantity of electricity supplied during the period when the meter was not installed or the meter installed was defective, will be assessed as mentioned hereunder:

The quantity of electricity, supplied during the period in question will be determined by taking the average of the electricity supplied during the preceding four months in respect of High Tension service connections and two assessment periods (four months) in respect of Low Tension service connections, provided that the conditions in regard to use of electricity during the said four months/two assessment periods were not different from those which prevailed during the period in question. In respect of High Tension service connection, where the meter fixed for measuring the Maximum Demand becomes defective, the Maximum Demand will be assessed by computation on the basis of the average of the recorded demand during the previous four months.

Where the meter becomes defective immediately after the service connection is effected, the quantum of electricity supplied during the period in question is to be determined by taking the average of the electricity supplied during the succeeding two assessment periods, provided the conditions in regard to the use of electricity in respect of such Low Tension service connections are not different.

The Learned Standing Counsel for the Respondent/Electricity Board submits that as per Tamil Nadu Electricity Supply Code 2004, Rule 11, the Assessment of Billing in case where there is no meter or meter is defective is envisaged and the same is as follows:

Assessment of billing in cases where there is no meter or meter is defective.-

(1) Where supply to the consumer is given without a meter or where the meter fixed is found defective or to have ceased to function and no theft of energy or violation is suspected, the quantity of electricity supplied during the period when the meter was not installed or the meter installed was defective, shall be assessed as mentioned hereunder.

(2) The quantity of electricity supplied during the period in question shall be determined by taking the average of the electricity supplied during the preceding four months in respect of both high tension service connections and low tension service connections, provided that the conditions in regard to use of electricity during the said four months were not different from those which prevailed during the period in question.

(3) In respect of high tension service connections, where the meter fixed for measuring the maximum demand becomes defective, the maximum demand shall be assessed by computation on the basis of the average of the recorded demand during the previous four months.

(4) Where the meter becomes defective immediately after the service connection is effected, the quantum of electricity supplied during the period in question is to be determined by taking the average of the electricity supplied during the succeeding four months period after installation of a correct meter, provided the conditions in regard to the use of electricity in respect of such low tension service connections are not different. The consumer shall be charged monthly minimum provisionally for defective period and after assessment the actual charges will be recovered after adjusting the amount collected provisionally.

(5) If the conditions in regard to the use of electricity during the periods as mentioned above were different, assessment shall be made on the basis of any consecutive four months period during the preceding twelve months when the conditions of working were similar to those in the period covered by the billing.

(6) Where it is not possible to select a set of four months, the quantity of electricity supplied will be assessed in the case of low tension service connections by the engineer in charge of the distribution and in the case of high tension service connections by the next higher level officer on the basis of the connected load and the hours of usage of electricity by the consumer.

(7) In case the consumer does not agree with the assessment made by the engineer or the higher level officer, as the case may be, the matter may be referred to the next higher level officer of the licensee. In case the consumer is still not satisfied, the consumer is at liberty to approach the respective Consumer Redressal Forum of the licensee.

The Electricity Board Authorities has only kept in mind the ingredients of the terms and conditions of Electricity Board in regard to supply of Electricity. As such, there is no infirmity in the impugned order of the third Respondent in Na. Ka. a.e. mi.po. Vi/mi/va/mu.puram. po. pa.c.t.s./D/104/2005 dated 5.3.2005.

A perusal of the impugned order of the third Respondent dated 5.3.2005 addresses to the Petitioner demand a sum of Rs. 1,93,915(Rupees one lakh ninety three thousand nine hundred and fifteen only) in regard to the Petitioner''s electricity connection No. BNR 54. It is quite evident that the electricity authorities have made a claim for a sum of Rs, 1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only) for the electricity meter defective period and the consumption charges have been calculated as an average one and further the Petitioner has been directed to pay the average sum of Rs. 1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only)within a period of seven days from the date of receipt of the said demand. The impugned order of demand dated 5.3.2005 of the third Respondent does not spell out or dwell in detail as to how the Audit party has arrived at sum of Rs,1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only). An outline of process of reasoning in this regard is conspicuously absent in the demand notice made by the third Respondent dated 5.3.2005, of course, in the third Respondent in counter at paragraph No. 9 the short levy details have been furnished.

In as much as the Respondent in the impugned order dated 5.3.2005 claiming a sum of Rs, 1,93,915/- from the Petitioner has not mentioned in a qualitative or quantitative way as to how the said amount have been arrived at by the Electricity Authorities, this Court is of the considered view that merely mentioning the reworking details in counter of the third Respondent in paragraph No. 9 will not be a sufficient one as opined by this Court. Also, the Petitioner has given his objections in writing to the Respondent''s demand letter dated 5.3.2005. Moreover, the Petitioner has furnished a representation dated 5.5.2005 to the third Respondent. The Petitioner has also addressed a letter to the third Respondent on 3.6.2005. The second Respondent has also addressed a communication dated 14.10.2005 to the Petitioner, wherein he has requested the Petitioner to pay balance audit amount of Rs, 1,93,915(Rupees one lakh ninety three thousand nine hundred and fifteen only).

On a careful consideration of respective contentions and in view of the fact that the letter of demand of the third Respondent dated 5.3.2005 claiming a sum of Rs. 1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only) to the Petitioner does not refer to the necessary details as to the manner in which the Authorities have arrived at a sum of Rs, 1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only) (though the third Respondent in paragraph No. 9 has spelt out details), this Court, without going into the merits and demerits of the matter, directs the third Respondent to issue a fresh demand for claiming a sum of Rs. 1,93,915/- (Rupees one lakh ninety three thousand nine hundred and fifteen only) from the Petitioner by specifying the necessary working details in qualitative and quantitative manner as to how the Audit party has arrived at the said sum. By so doing, the Electricity authorities is to take into account of the amount paid by the Petitioner already like Rs,45,574/- (Rupees forty five thousand five hundred and seventy four only) and Rs,1,00,000/- (Rupees one lakh) etc. and only for the balance amount to be paid the third Respondent is to make a claim on the Petitioner and it is open to the third Respondent or the concerned authority of the Electricity Board to point out the relevant provision of Tamil Nadu Electricity Supply code 2004 or the clause relating to the terms and conditions of the Electricity Board as the case may be and to proceed further in the manner known to law and in accordance with law.

It is open to the third Respondent to receive the fresh objections, if any, to be filed by the Petitioner or the Electricity Board is also to look into the earlier representations or objections filed by the Petitioner in an dispassionate manner and to pass such orders as it deems fit and proper based on the facts and the circumstances which float on the surface.

With these directions, this Writ Petition is disposed of. No costs. Consequently, connected M.P. is also closed.