IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY
WRIT PETITION No.644 of 2006
Between:
M/s. S.I. Steel Maker (P) Ltd., Nacharam, Hyderabad.
… Petitioner And Transmission Corporation of A.P., Ltd., (A.P. Transco) Rep., by its Chief Managing Director, Hyderabad & others.
… Respondents Counsel for the Petitioner: Sri D.V. Nagarjuna Babu Counsel for the respondents: Sri O. Manohar Reddy The Court made the following:
THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY
WRIT PETITION No.644 of 2006
ORDER:
This writ petition is filed for a Mandamus to declare that the respondents have no power to decide meter disputes and to set aside orders dated 28.07.2004, 04.04.2005 and 22.12.2005 of respondent Nos.4, 3 and 2 respectively.
The petitioner is a L.T. Industrial Consumer. Its premises was inspected on 21.04.2004 by the officials of respondent No.1 company. Noticing that the meter was defective, respondent No.4 issued notice dated 29.06.2004 to the petitioner, wherein back billing for a sum of Rs.9,76,335/- for the period from 25.02.2002 to 21.04.2004 was proposed. The petitioner submitted its objections, which were rejected by respondent No.4 by his order dated 28.07.2004 confirming the proposed assessment towards back billing. The petitioner filed an appeal before respondent No.3, who, by order dated 22.12.2005, confirmed the order of respondent No.4. On a representation made by the petitioner, respondent No.2 confirmed the orders of respondent Nos.3 and 4. Therefore, the petitioner filed the present writ petition assailing these orders.
At the hearing, Sri D.V. Nagarjuna Babu, learned counsel for the petitioner, submitted that during the period when the meter was allegedly defective, the provisions of the Indian Electricity Act, 1910 (for short, “the 1910 Act”) were in force and that under Section 49(I) of the said Act, the respondents had no power or jurisdiction to decide the disputes pertaining to the meter defects. The learned counsel, however, submitted that though this is a larger issue, which was raised before all the hierarchical authorities, he is confining his submissions only to the limited extent of the period for which the assessment should be made. The learned counsel submitted that the starting point of the meter defect was taken as 25.02.2002 during when the provisions of the 1910 Act were in force. The learned counsel further submitted that but for the failure of the respondents to detect the meter defect within a reasonable time, the petitioner would not have been saddled with the liability of payment for a period of more than two years though at the relevant time a maximum period of 6 months was stipulated under the provisions of Section 26(6) of the 1910 Act. The learned counsel placed reliance on Rule 57 of the Indian Electricity Rules, 1956 (for short, “the Rules”) and Condition No.22.2.2 of the Terms and Conditions of Supply framed by the erstwhile electricity board to which the respondents have succeeded, in support of his submissions.
Sri O. Manohar Reddy, learned Standing counsel, while opposing the above contentions, submitted that by the time inspection has taken place on 21.04.2004, the Electricity Act, 2003 (for short, “the 2003 Act”) has come into force and the said Act has repealed the 1910 Act. He therefore submitted that at the time when the assessment was made, the provisions of 2003 Act were governing the field under which the respondents have power and authority to determine the meter defects and assess the loss of energy without limiting the period to 6 months, as envisaged in the 1910 Act.
I have carefully considered the respective submissions of the learned counsel for the parties.
It is not in dispute that when the defect in the meter was commenced on 25.02.2002, Section 49(I) of the 1910 Act was in force. Under the said provision, all the disputes pertaining to the defective meters were required to be decided by the Special Tribunal. The A.P. Electricity Board issued Memo No.DS(L)/DM/PO.I/A1/716/97-1, dated 08.07.1997 framing certain guidelines in case of back billing. Guideline No.8 reads as under:
“The period of back billing shall be reasonable and it would be appropriate, if the same is continued to a period of 6 months as contemplated under Section 26(6) of the Indian Electricity Act, 1910 for the defective meter. If the meter connections are defective and the meter is not defective, the period of assessment need not be limited to 6 months. Likewise, if back billing, is necessitated due to adoption of wrong multiplying factor or due to wrong readings, the assessment need not be limited to six months.”
Rule 57 of the Indian Electricity Rules, 1956 is as under:
“ 5 7 . Meters, maximum demand indicators and other apparatus on consumer's premises:
( 1 ) Any meter or maximum demand indicator or other apparatus, placed upon a consumer's premises in accordance with Section 26 shall be of appropriate capacity and shall be deemed to be correct if its limits of error [are within the limit specified in the relevant Indian Standard Specification and where no such specification exists, the limits of error] do not exceed 3 per cent above or below absolute accuracy at all loads in excess of one-tenth of full load and up to full load.
(2) No meter shall register at no load.
( 3 ) Every supplier shall provide and maintain in proper condition such suitable apparatus as may he prescribed or approved by the Inspector for the examination, testing and regulation of meters used or intended to be used in connection with the supply of energy.
Provided that the supplier may with the approval of the Inspector and shall, if required by the Inspector, enter into a Joint arrangement with any other supplier for the purpose aforesaid.
(4) Every supplier shall examine, test and regulate all meters, maximum demand indicators and other apparatus for ascertaining the amount of energy supplied before their first installation at the consumer's premises and at such other intervals as may be directed by the State Government in this behalf.
(5) Every supplier shall maintain a register of meters showing the date of the last test, the error recorded at the time of the test, the limit of accuracy after adjustment and final test, the date of installation, withdrawal re-installation, etc. for the examination of the Inspector or his authorized representative.
(6) Where the supplier has failed to examine, test and regulate the meters and keep records thereof as aforesaid, the Inspector may cause such meters to be tested and sealed at the cost of the owner of the meters in case it is found defective.] (Emphasis added)”
Condition Nos.22.2.1 and 22.2.2 of the Terms and Conditions of Supply are as under:
“22.2.1 The electricity supplied to a consumer shall be ascertained by means of correct meter which shall be hired by the Board and the Board shall keep the meter correct.
22.2.2 Once in every year the H.T. meter shall be recalibrated and standardized if so desired by either the consumer or the Board by means of standard instrument by the Board in the presence of the consumer or his representative provided however that the Board may conduct test check of meters (H.T. as well as L.T.) at intervals of six months or such other period as the Board may considers it necessary.”
The 2003 Act came into force with effect from 10.06.2003. Under Section 185 of the said Act, the provisions of the 1910 Act apart from other Acts mentioned therein were repealed. Therefore, the restriction on the period of assessment in case of back billing, as provided under Section 26(6) of the 1910 Act, ceased to exist. Admittedly, the A.P. Electricity Regulatory Commission in exercise of its power under the 2003 Act has approved the regulations framed by the distribution agency. Under Condition No. 7.5.1.4.4 the maximum assessment period towards back billing in case of industrial consumers is stipulated as 6 months. This condition has come into force on 06.01.2006. Thus, between 10.06.2003 and 06.01.2006, there was no ceiling on the period of assessment. To the misfortune of the petitioner, the meter defect was detected during this period though, as noted earlier, the defective period has commenced as far back as 25.02.2002. On these facts, whether the respondents are justified in levying back billing without limiting the period to 6 months, is required to be considered.
From the provisions of Rule 57 of the Rules and Condition No.22.2.2 of the Terms and Conditions, which were in force at the relevant time, a duty was cast on the supplier to recalibrate the meters at intervals of 6 months or such other period as the Board considers it necessary. Such recalibration was required to ensure that the defects in the meters were detected at the earliest possible time so that the consumers will not be burdened with huge arrears towards back billing. Had the respondents discharged their obligation in terms of the above provisions, they would have certainly detected the defect before expiry of 6 months from 25.02.2002. There is nothing on record to show as to when the respondents have undertaken recalibration of the petitioner’s meter.
For the lethargy or failure on the part of the respondents to undertake the recalibration and detect the defect at the right earnest, the petitioner cannot be saddled with the liability without limit of time. Had the defect in the meter been detected within a reasonable time, the petitioner’s liability would have been limited to 6 months as envisaged under Board’s circular dated 08.07.1997, reproduced above, which was in force at the relevant time.
Taking all these aspects into consideration, I am of the opinion that though the inspection has taken place and the assessment was made after the advent of the 2003 Act and before the regulatory commission has approved the terms and conditions under which a maximum time period of 6 months has been stipulated, the respondents cannot be allowed to take undue advantage of their own default in strictly following the provisions of Rule 57 and Condition No.
22.2.2 of the Terms and Conditions. I am therefore of the opinion that to balance the equities among the parties and in the interest of justice, the period of assessment is confined to 6 months.
Accordingly, the writ petition is partly allowed and the orders of respondent Nos.2 to 4 are modified to the above extent. Respondent No.4 is directed to re-calculate the liability of the petitioner by confining assessment period to 6 months from 25.02.2002 and issue a revised bill within a period of two months from today. The excess amount, if any paid by the petitioner, shall be refunded by way of adjustment towards the future consumption charges.
As a sequel to disposal of the writ petition, as indicated above, WPMP.Nos.773 and 5192 of 2006 are disposed of as infructuous.
C.V.NAGARJUNA REDDY, J Date: 01.07.2010. ES