K.S. Radhakrishnan, J.

Anti power theft squad of the Kerala State Electricity Board had inspected the premises of the consumer No.94/Aroor on 8-5-2000 and noticed that the meter installed in the premises was found not recording the consumption in ‘R’ phase. Consumer was not present at the time of inspection. However, consumer’s representative was present and he was made known of the non-recording of energy in ‘R’ phase of the meter installed in the consumer’s premises. Since the meter was found defective it was replaced with a sophisticated electronic meter on 23-5-2000. The consumption after replacing the meter was recorded. The consumption recorded in the defective meter for the period from 5-5-2000 to 22-5-2000 was 6430 unit, whereas that for the period from 23-5-2000 to 5-6-2000 recorded in the electronic meter recorded 9900 units. It was therefore noticed that the consumption recorded after replacing the defective meter was increased by more than 50%. Later the consumer was served with a bill on 9-6-2000 for an amount of Rs.1,18,737/- so as to compensate the Board for unrecorded portion of energy, i.e. 50% of recorded consumption for six months, i.e. from November 1999 to April 2000. The consumer aggrieved by the bill dated 9-6-2000 filed an appeal before the Executive Engineer under Regulation 48(a) of the Conditions of Supply of Electrical Energy, 1990. Later he filed OP.17717 of 2000 which was disposed of by this court on 26-6-2000 directing the Executive Engineer to pass appropriate orders on his appeal petition. Recovery proceedings in pursuance of the bill was kept in abeyance on condition that the consumer would pay 25% of the amount demanded. Later Executive Engineer passed an order dated 6-11-2000 upholding the bill. Contention raised by the consumer disputing the correctness of the bill as well as the inaction on the part of the Board in not referring the matter to the electrical inspector for inspection under Section 26(6) of the Indian Electricity Act was also repelled. Aggrieved by the same the consumer has approached this court.

2. Learned single Judge found no infirmity in the order passed by the Executive Engineer. Learned single Judge noticed that the meter was not functioning properly because there was defect in the meter and there was non-recording of energy in the ‘R’ phase. Placing reliance on the decision of this Court in Uthup v. Assistant Engineer, (ILR 1995 (3) Kerala 264) learned single Judge concluded that it was not open to the consumer to ask the Board to refer the matter as the consumer can straightaway get the matter decided by the Electrical Inspector by invoking Section 26 and there is no illegality in applying regulation 31 by the Board for claiming the excess bill.

3. Learned counsel appearing for the appellant Sri. K.K.M. Sherif submitted that the learned single Judge has committed an error in not properly appreciating the scope of Section 26 (6) of the Electricity Act. Counsel submitted once the meter is found defective by the Board, there is a statutory obligation on the part of the Board, to refer the matter to the Electrical Inspector. Counsel also submitted that the learned single Judge has not properly appreciated the decision in Uthup’s case (supra). Counsel submitted anti power theft squad has not detected any tampering of the meter by the consumer or that he had committed any fraud or malpractice. Counsel submitted it is the paramount duty of the Board to see that a trouble free meter is installed in the consumer’s premises and in case it is found that the meter is faulty and not recording the correct consumption of electrical energy it is the responsibility of the Board to get the meter tested by Electrical Inspector. Counsel submitted the action of the Board in removing the meter unilaterally and getting it tested by themselves at their own testing centre without notice to the consumer is illegal and arbitrary. Counsel appearing for the Board however supported Ext.P4