1. The petitioner by this petition has challenged the action of the respondent-Board to fix the electric meter to the connection of the petitioner on or about 1.5.2004 on metering basis and it is prayed that respondent be directed to continue with the fixed charge system for billing of the electric connection of the petitioner. The petitioner has also prayed that the recovery of the bill on metering basis as against fixed tariff basis be declared as illegal and not binding to the petitioner.
2. The short facts are that the petitioner was having agriculture connection of 10 HP vide Consumer No.03213/00301/8 on his land at Manjola Village of Amod Taluka of Bharuch District. As per the petitioner on 18.2.2004, since the electric motor of the petitioner got damaged and it was sent for repairing and in the meantime crop of wheat and sugarcane was suffering, the meter of neighbor was used. When inspection took place on 20.2.2004, as per the respondent, it was found that meter of 15 HP was used against sanctioned power load of 10 HP. Therefore, the bill was issued against which the petitioner preferred appeal and the proceedings before the Appellate Committee. The petitioner settled the amount at Rs.14,000/- minus the amount already paid and additional amount of Rs.9,000/- and it is the case of the petitioner that the said amount is already paid. However, it appears that after the incident, the respondent-Board installed the another meter for reading of consumption of the electricity and converted the connection on metering basis as against the fixed tariff which was the old connection and as per the petitioner, thereafter, the respondent- Board has continued to supply of electricity but has charged on metering basis and not on fixed tariff basis which was available to him in capacity of the agriculturist and therefore, under these circumstances, the present petition.
3. I have heard Mr.Kirtidev Dave, learned counsel for the petitioner and Ms.Bhaya, learned counsel for the respondent.
4. On the aspects of incident of using 15 HP as against 10 HP contract load and the additional amount to be paid on account of the supplementary bill and thereafter, the settlement in the proceedings before the Appellate Committee, there is no dispute and therefore, no discussion is required on the said aspects since the petitioner agreed for additional amount and he has paid the same. But further aspect of converting the electricity connection from fixed tariff to metering tariff deserves consideration.
5. Learned counsel for the petitioner submitted that prior to the incident, the petitioner was having 10 HP load on fixed tariff which by unilateral action is converted by the electricity company into metering tariff whereas, learned counsel for the respondent contended that as per the circular issued by the Board, if it is found that the consumer has used capacitor for electricity, such connection is to be converted on metering tariff at the time of reconnection and she submitted that for such purpose, circular is also issued by the Board on 15.11.2003 and therefore, it was submitted that the action for converting the electricity connection into metering basis as against the fixed tariff which was earlier prevailing is lawful and the Board, which is now converted as electricity company. was justified in doing so.
6. Had it been a case where through bilateral action the contract for supplying the electricity on fixed tariff basis was converted into metering tariff, the matter might stand on different footing. Had it been a case where after the incident in question, the consent is given by the consumer for agreeing to metering tariff at the time of reconnection, the matter might also stand on different footing. But in the present case, as per the petitioner, without giving any opportunity and without being heard, the meter is installed by the officers of the respondent-electricity company so as to charge the petitioner on metering basis though as per the contract, the load was granted to be charged on fixed tariff. It is undisputed position that prior to the incident in question dated 20th February, 2004, the petitioner was granted 10 HP load on fixed tariff basis. The only justification shown on behalf of the respondent- electricity company is that the circular has been issued by the Board and copy whereof is produced at Annexure-V at page No.45. As per the said circular, it has been mentioned as under:
“In such cases, the consumer has to apply for reconnection by furnishing consent for his acceptance of Metered Tariff from the date, Board installs meter.” (Emphasis supplied)
7. As per the averment made by the petitioner in the petition vide para 11 and 11-A and in the affidavit in reply at para -13, it has not been stated that the consent was granted by the petitioner for agreeing to the load on meter tariff basis or metering tariff basis. Therefore as such, even if the circular is to be pressed in service, in absence of any consent granted by the consumer, it is not open to respondent-electricity company or its officer to install the meter and to charge on metering basis, if the contract was for fixed tariff basis. It is hardly required to be stated that when there is any agreement or contract on the condition of fixed tariff, by unilateral action, one party to the agreement, namely, respondent-Electricity Company cannot convert the agreement into metering basis and such action is not permissible in law. Apart from the above, the aspects may also arise to be considered of the double penalty by way of consequence, for the alleged action. Whatever the electricity charges or the penalty were recoverable has been recovered from the petitioner. As the penalty and the charges are recovered, connection was to be restored or the consumer would be entitled to restoration of the connection as per the contracted load and the agreement of tariff. Thereafter, if the status of the changeability of tariff is changed from fixed tariff to metering tariff, the consumer would be required to pay on the basis of consumption of electricity as against the fixed tariff. It is the case of the petitioner that on account of the metering tariff, he is required to pay more amount than that of the fixed tariff. If such is only on account of incident in question, the consequence would be that apart from the additional charges for unauthorized electricity and penalty for all time to come in future, additional penalty is imposed by converting the contractual load from fixed tariff to metering tariff. Such may also be considered as double penalty imposed which is not permissible in law unless it is expressly provided by law or at the time of reconnection express consent is given by the consumer for agreeing to the metering tariff.
8. No material is produced on behalf of the respondent- Electricity Company as observed earlier that any consent was given by the petitioner. On the contrary, the grievance of the petitioner is that without giving any opportunity of hearing by unilateral action, the meter is installed and bills thereafter are issued on the basis of metering tariff. Under these circumstances, it appears that action of the respondent-Electricity Company and its officers cannot be sustained in the eye of law.
9. In view of the aforesaid observations and discussions, it is held that action of the respondent-Electricity Company and its officers by converting electricity connection of the petitioner of 10 HP from fixed tariff to metering tariff is illegal and without any authority under the law. Consequently, action of installing the meter to charge on metering basis would also be rendered illegal. If the respondent-Electricity Company has recovered any amount from the petitioner on the basis of metering tariff, (excluding the amount already finalized by way of settlement before the appellate Committee), the same shall be required to be refunded after deducting the amount of fixed tariff for respective period and such refund shall be made within a period of 4 weeks from the date of receipt of the order of this Court.
10. Petition is allowed to the aforesaid extent. Rule made absolute. Considering the facts and circumstances, there shall be no order as to costs.
(JAYANT PATEL, J.) (ashish)