Jindal Vs. Bses Rajdhani Power Limited & Ors  Insc 1049 (11 October 2007)
Sinha & Harjit Singh Bedi
out of SLP(C) No. 14308/2006] S.B. SINHA, J
Appellant is a consumer of electrical energy. Respondent is a licensee. A meter
for the purpose of recording consumption of electrical energy was installed at
his premise. It was replaced by an electronic meter.
electronic meter was tested by the officials of the respondent and it was found
that the same was running fast by about +1.79% which is said to be beyond the
BIS standard, as the meter installed in the premises was of Class-I category.
He filed a writ petition before the High Court inter alia contending;
That the meter installed in the premises of the Petitioner was intact and OK
and was recording the consumption as per Section 57 of the Electricity Supply
Rules, 1956 and there was no percentage error in the recording of the
consumption in the meter earlier installed by the agents of the Respondent in
the premises of the Petitioner.
That the Petitioner believing the intention of the Respondent has permitted the
Respondent to install the meter of their own choice believing that the meter
which was installed in the premises of the Petitioner is of approved design and
specification of ISI and also in accordance with the rules and regulations
under the Electricity Act, 2003. In the writ petition, the following
prayers were made by him:
writ, order or direction in the nature of a writ of mandamus, thereby declaring
the acts of the officials of the Respondents as illegal and malafide in
replacing the correct and working meter of the Petitioner by another meter in
respect of electricity connection bearing K.No.2540F320018 installed for 134,
First Floor, Sunder Nagar, Delhi.
writ, order or direction in the nature of a writ of mandamus, thereby quashing
the meter testing report prepared on 03/03/2005 in respect of electricity
connection bearing K.No. 2540F320018 installed for 134, First Floor, Sunder Nagar,
writ, order or direction in the nature of a writ of mandamus thereby directing
the Respondent to get the meter of the Petitioner tested as per rule 57 of the
Electricity Supply Rules 1956 through an independent agency or in any other
manner as this Honble Court deems fit in the facts and circumstances of
writ order or direction thereby directing the Respondent to calibrate, seal and
install at the premises of the Petitioner, the electro mechanical energy meter
of ISI make procured by the Petitioner in respect of electricity connection
bearing K.No. 2540F320018 for 134, First Floor, Sunder Nagar, Delhi after replacing the existing meter.
writ petition was dismissed by a learned Single Judge of the Delhi High Court
by a judgment and Order dated 14.12.2005. A letters patent appeal was preferred
thereagainst and by reason of the impugned judgment, the same has been
dismissed. Appellant is, thus, before us.
Sanjay Parikh, learned counsel appearing on behalf of the appellant in support
of the appeal, inter alia, would submit;
Respondent being a licensee governed by the Indian Electricity Act, 1910
(hereinafter referred as 1910 Act); the provisions of Electricity
(Supply) Act, 1948 (hereinafter referred as 1948 Act) or the
subsequent Acts namely Delhi Electricity Reforms Act, 2000 (hereinafter
referred to as 2000 Act) or Indian Electricity Act, 2003 being not
applicable, the High Court committed a serious error in passing the impugned
Rule 57 of the Indian Electricity Rules, 1956 whereupon reliance was placed by
the respondents in their counter affidavit is clearly inapplicable and thus
reliance placed thereupon by the High Court in this behalf was wholly
The tariff framed by Delhi Vidyut Board also did not confer any jurisdiction
upon the respondents to remove the correct meter and replace the same by
another correct meter.
The only provision which could have been taken recourse to for replacement of a
meter being Section 26 of the 1910 Act and the same being not applicable in
this case, the impugned Judgment cannot be sustained.
Margin of error in the meter being 1.79% in one case and 3.79% in the other
which is in excess of 1 per cent of error provided for in the proviso appended
to Rule 57 of the Indian Electricity Rules, the appellant had a legal right to
obtain a writ of or in the nature of mandamus directing the respondents not to
rely thereupon for the purpose of calculating the amount of consumption of
electrical energy recorded therein.
In any view of the matter, replacement of the meter having taken place prior to
coming into force of the 2003 Act and the regulations framed thereunder, the
High Court was wholly incorrect in arriving at its findings.
Arun Jaitley, the learned senior counsel appearing on behalf of the
respondents, on the other hand, would principally rely upon Section 20 of the
1910 Act to submit that by reason thereof a general power has been conferred on
the licensee to remove a correct meter and replace the same by another meter
which records more accurately the actual consumption of electrical energy
having regard to the development of technology and thus such an action, being
de-hors provisions of Section 26 of the Act, would not be controlled thereby.
Appellant being a consumer of electrical energy from Delhi Vidyut Board which
was a State Electricity Board within the meaning of 1948 Act and the respondent
being its successor in terms of 2000 Act and 2003 Act, the impugned judgment is
1910 Act was enacted on 18th
said Act regulated the terms and conditions of supply of electrical energy to
the consumers. Licensees in those days used to be private companies. Actual
terms of the contract for supply of electrical energy by the licensees to its
consumers were governed by the terms and conditions of contract entered into by
and between the parties thereto. The said Act provide for powers and
obligations of the licensee on the one hand as also the rights and obligations
on the part of the consumers on the other. By reason thereof, licensees under
the said Act being public utility concerns were bound thereby. It could
exercise the statutory powers conferred upon it, which was otherwise not
available under the common law or the terms of the contract entered into by and
between the parties.
Section 20 of the Act confers power on the licensee to enter into the premises,
inter alia, for the purpose of inspecting, testing, repairing or altering
meters instituted in the premises of the consumers. The said provision ex-facie
is not controlled by any other provision thereto. Section 21 of the Act
empowers a licensee to prescribe any form of appliance in utilising energy
supplied by him. All kind of utilisation of appliances is governed by the said
provisions. The said provision has nothing to do with installation or testing
or replacing any meter. Section 26 ensures installation of correct meter so
that the consumption of electrical energy may be recorded. A meter can be
installed either by the licensee or by the consumer. An obligation, thus, to
keep the meter correct will be either on the licensee or the consumer, as the
case may be. Sub-section (4) of Section 26 empowers the licensee to have access
for the purpose of inspecting and testing the meters and for the said purpose
the same could be taken off or removed.
case however of any dispute or difference and in the event the meter installed
in the premises of the consumer is found to be not correct, in regard to the
quantum amount of reasonable expenses for the purpose of taking off or removal
of the meter, the Electrical Inspector would be the sole authority to determine
the same. The Electrical Inspector as a statutory authority was also empowered
to enter into and determine the disputes and differences between the parties
not only in regard to the correctness of the meter but also quantify the amount
payable by the consumer to the licensee if he comes to the opinion that the meter
has ceased to be correct subject of course to the condition that the same would
not exceed the period of six months.
The principal question which arises for our consideration is as to whether the
power conferred upon the licensee under Section 20 of the Act is controlled by
Section 26 thereof. We would deal with the said question a little later.
may now have a quick look at the provisions of the other statutes.
provisions of 1948 Act, which is a post-independence Act, cast a duty on the
State to constitute a Board for the purpose of generation, transmission,
distribution and supply of electrical energy. It is a body corporate and can
sue and be sued in its own name. Section 26 of the 1948 Act provides for
conferment of powers and obligations of the licensees in the Board as provided
for under the 1910 Act wherefor a legal fiction has been raised. The proviso
appended to Section 26 of 1948 Act reads as under:- Provided that nothing
in sections 3 to 11, sub-sections (2) and (3) of section 21 and section 22,
sub-section (2) of Section 22A and sections 23 and 27 of that Act or in clauses
1 to V, clause VII and clauses IX to XII of the Schedule to that Act relating
to the duties and obligations of a licensee shall apply to the Board:
20 of the 1910 Act was, therefore, made operative under the 1948 Act so far as
the Board is concerned and thus the said power was exercisable by it. Rules
were made in terms of Section 37 of the 1910 Act only in the year 1957. Rule
57(1) of the Rules reads as under:- 57(1) Any meter or maximum demand
indicator or other apparatus placed upon a consumers 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 limits 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:
Although reliance has been placed by the respondents in their counter affidavit
on the said rule, ex-facie the same is not very relevant for our purpose. We
would, however, deal with the contention of Mr. Parikh with regard to the
construction of the said provision at a later stage.
The Parliament enacted Electricity Regulatory Commission Act in the year 1998
wherewith we are not concerned. It may however be noticed that the National
Capital Territory of Delhi enacted the Delhi Electricity Reforms Act, 2000
(hereinafter referred to as 2000 Act).
Section 2(e) thereof defines licence to mean a licence granted under
the Indian Electricity Act, 1910.
Section 14 provides for re-organisation of electricity industries; sub- section
(1) whereof reads as under:- Sec. 14(1) The Government may, as soon as may
be after the commencement of this Act, cause one or more companies to be
incorporated and set up under the provisions of the Companies Act, 1956 (1 of
1956) for the purpose of generation, transmission or distribution of
electricity, including companies engaged in more than one of the said
activities, in the National Capital Territory of Delhi and may transfer the
existing generating stations or the transmission system or distribution system,
or any part of the transmission system or distribution system, to such company
or companies. Sub-sections (3) and (6) of Section 14 of the said Act read
as under :
14(3) The companies incorporated and set up under sub-section (1) shall
undertake the functions specified in this section and such other functions as
may be assigned to them by the Government.
14(6) The Government may convert the companies set up under this Act to joint
venture companies through a process of disinvestment, in accordance with the
transfer scheme prepared under the provisions of this Act.
Section 15 provides for reorganisation of Delhi Vidyut Board and transfer of
properties, functions and duties thereof.
Delhi Vidyut Board was constituted by the National Capital Territory of Delhi
in terms of the provisions of 1948 Act.
reason of sub-section (1) of Section 15 all the powers conferred upon the
Companies as had been existing in the Boards under Section 26 of the 1948 Act
reason of Section 63, the provisions thereof were to prevail over the
provisions of 1910 Act and 1948 Act in regard to the matters which were
inconsistent therewith or contrary thereto. Sub-section (3) of Section 63
provides that upon establishment of the Commission, the provisions of the 1910
Act and 1948 Act were to be read subject to the modifications and reservations
contained therein, the relevant clauses whereof are as under:-
All references to State Electricity Board in the Indian Electricity Act, 1910
(9 of 1910) in so far as the National Capital Territory of Delhi is concerned
shall be read as references to the Delhi Electricity Regulatory Commission or
the companies established under section 14 or other licensees or wherever it
relates to general policy matters, to the Government.
In respect of matters provided in sections 3 to 11, 28, 36(2), 49A, 50 and 51
of the Indian Electricity Act, 1910 (9 of 1910), to the extent this Act has
made specific provisions, the provisions of the Indian Electricity Act, 1910 (9
of 1910) shall not apply in the National Capital Territory of Delhi. So
far as 1948 Act is concerned, it is provided :
All references to State Electricity Board in the Electricity (Supply) Act, 1948
(54 of 1948) in so far as the National Capital Territory of Delhi is concerned
shall be read as references to the Delhi Electricity Regulatory Commission or
the companies established under section 14 or other licensees or where it
relates to general policy matters, to the Government.
In respect of matters provided in sections 5 to 18, 19, 20, 23 to 27, 37, 40 to
45, 46 to 54, 56 to 69, 72 and 75 to 83 of the Electricity (Supply) Act, 1948
(54 of 1948), to the extent this Act has made specific provisions, the
provisions of the Electricity (Supply) Act, 1948 (54 of 1948) shall not apply
in the National Capital Territory of Delhi.
Section 26 of the 1948 Act therefore, would not apply only when there exist any
corresponding provision in the 2000 Act. It is not disputed that no such
provision is in existence. If there does not exist any provision contrary to or
inconsistent with Section 26 of the Act, the same would, indisputably, continue
Section 64 of the said Act provides for the saving clause.
may now notice constitution of various entities in terms of the 2000 Act and
the Rules framed thereunder. The National Capital Territory of Delhi in
exercise of its power conferred by Section 60 read with Sections 15 and 16 of
2000 Act made Rules known as Delhi Electricity Reform (Transfer Scheme) Rules,
2001. The said Rules are statutory in nature.
provide for transfer and vesting of assets, liabilities, proceedings and
personnel of Delhi Vidyut Board in the successor entities and for determining
the terms and conditions on which such transfer or vesting shall take effect.
the said Rules, Board has been defined to mean Delhi Vidyut Board
constituted under Section 5 of the Electricity (Supply) Act, 1948.
2(f) defines DISCOM 2 to mean South-West Delhi Electricity
Distribution Company Limited, a company incorporated under the Companies
Act, 1956 (1 of 1956) with the principal object of engaging in the business of
distribution and supply of electricity in the area as specified in Part II of
The term transferee has been defined in Rule 2(r) to mean
GENCO, TRANSCO, DISCOMS and PPCL, as
the case may be, in whom the undertaking or undertakings or the assets,
liabilities, proceedings and personnel of the Board, as the case may be, are
vested in terms of these rules and shall include the holding company;
Rule 4(1) provides that assets, liabilities and proceedings transferred to the
government under sub-rule (1) of rule 3 shall stand classified as under:
Rights and interests in Pragati Power Project as set out in Schedule
Generation Undertaking as set out in Schedule B.
Transmission Undertaking as set out in Schedule C
Distribution Undertaking as set out in Schedule D
Distribution Undertaking as set out in Schedule E.
Distribution Undertaking as set out in Schedule F.
Holding Company with assets and liabilities as set out in Schedule G.
Rule 5(1)(d) of the Rules provides that the undertaking forming part of the
Distribution Undertaking as set out in Schedule D, shall stand
transferred to and vest in the DISCOM 1, on and from the date of the transfer
appointed for the said purpose.
Sub-Rule (2) of Rule 5 provides for the consequences of such transfers in the
following terms :
5(2) On such transfer and vesting of the undertakings in terms of sub-rule (1),
the respective transferee shall be responsible for all contracts, rights,
deeds, schemes, bonds, agreements and other instruments of whatever nature,
relating to the respective undertaking and assets and liabilities transferred
to it, to which the Board was a party, subsisting or having effect on the date
of the transfer, in the same manner as the Board was liable immediately before
the date of the transfer, and the same shall be in force and effect against or
in favour of the respective transferee and may be enforced effectively as if
the respective transferee had been a party thereto instead of the Board.
Rule 10 provides for the rights and powers of the transferees, sub- Rule (2)
whereof reads as under :
10(2) Within sixty days of the effective date of transfer, the DISCOMS shall
apply to the Commission for the grant of licence under the Act to undertake the
business of distribution and retail supply of electricity in the respective
areas of supply as specified in Schedule H :
Indisputably, pursuant thereto and/or in furtherance thereof, applications were
made for grant of license by the first respondent herein and such license have
since been granted in its favour by the Commissioner.
may also notice that regulations have been framed in terms of Section 61 of the
2000 Act known as The Delhi Electricity Regulatory Commission (Performance
Standards Metering and Billing) Regulations, 2002.
Chapter 5 of the said Regulations provide for metering, laying down that all
installations subject to exemption shall be serviced with a meter and all the
requirements as laid down in Section 26 of the 2000 Act shall be complied with.
complete the narration of the statutory Scheme, we may also notice that Delhi
Electricity Supply Company undertaking framed conditions of supply whereupon
strong reliance has been placed by the High Court in arriving at its finding.
But, we may ignore the same inasmuch as the same are not statutory in nature.
Before embarking on other questions raised at the Bar, we would like to place
on record that the High Court had placed strong reliance on the rationale of
replacing the existing meters with electronic meters, but, we are of the
opinion that the same is not at all relevant as in the event it is held that
the respondent had no authority to replace the existing meters with electronic
meters, rationale or other justifications in support thereof would not legalise
an illegal act. SCC 591) Para 30].
have referred to at some details the statutory scheme only for the purpose of
showing that there had all along been a continuity in the matter of supply of
electrical energy in the National Capital Territory of Delhi either by a
private company or by a State Electricity Board, as the case may be.
this stage, make it clear that we do not intend to go into the question of
applicability of the provisions of the 2003 Act and the regulations made thereunder,
for the reason that regulations made under Section 50 of the 2003 Act came into
force on and from 8.4.2007 and Section 55 thereof came into force on 10.3.2006
and, thus, the said Act was not in force at the relevant time.
Our attention has also been drawn to Section 49 of the 1948 Act and the
regulations and the tariff framed by the Delhi Vidyut Board.
the outset we have noticed that the appellant did not object to the change of
the meter. It proceeded on the basis that the change of the meter is permissible
in law. He being allegedly unaware of his rights allowed the respondent to
enter into his premises and change a correct meter by another one which
according to him is also correct. It, therefore, in our opinion does not lie in
the mouth of the appellant now to turn round and contend that electronic meters
do not record correct consumption of electrical energy. It is one thing to say
that electronic meters when tested do not register the actual consumption, as a
result whereof, the consumer would have to pay the energy charges more than he
is otherwise liable but it is another thing to say that it was legally
impermissible. It is not, however denied or disputed that whether meter is
installed by the licensee or by the consumer himself, the same must have the
requisite certificate granted in terms of the regulations, the provisions wherefor
have been made in the regulations made under the 2000 Act.
Section 20 of the 1910 Act conferred a power which is not otherwise controlled
by Section 26 thereof, the question of the respondent acting wholly without
jurisdiction or arbitrarily would not arise.
after the Electricity Regulatory Commission came into being, it issued certain
directions. It had to make tariff. For the purpose of making tariff, certain
checks and balances were required to be made. The loopholes then existing in
the matter of transmission of electrical energy which resulted in a huge
transmission loss was to be taken care of. Therefore, a direction was issued by
the Commission that all the existing meters should be replaced by electronic
meters. We do not see any illegality therein.
Various steps had been taken by the respondent No. 2 to resolve the grievances
of the consumers. Grievance Redressal Forum was established in terms of Section
42(5) of the 2003 Act. Regulations made in the year 2002 provided for detailed
guidelines in regard to the procedures required to be followed by the utilities
for providing new connections, replacement of defective meters etc. The said
regulations admittedly were amended in 2003 providing for payment of
compensation to consumers in case of repeated levy of arrears for bills already
paid. If there had been any violation of the meter and billing regulation, the
utilities could be imposed with penalties. It is at that stage, a policy
decision was taken for replacement of old electromechanical meters with new
electronic meters as a part of the Scheme. The Commission in its Order on
Annual Revenue Requirement issued directions with regard to replacement of
meters which were carried out pursuant thereto or in furtherance thereof, which
reads as under :
of meters is the responsibility of the DISCOMs and the DISCOMs have submitted
details of the meter replacement programme to the Commission, the Commission
would like to inform the objector that the old electromechanical meters are
subject to mechanical wear and tear and tend to record lower consumption over a
period of time. Moreover, these meters are also more susceptible to tamper. The
replacement of such meters with electronic meters will enable the utility to
record the consumption more accurately as well as reduce the chances of
have submitted that the existing meters are being replaced by the electronic meters
which is a good step.
Under the 1948 Act, the State had a role to play. Its directions in relation to
the policy matters were binding on the State Electricity Boards.
power continued to be operative. If, therefore, the Electricity Regulatory
Commission which was an independent body could make tariff and for that purpose
had the statutory authority to issue certain directions, no exception thereto
can be taken.
We, therefore, are required to consider as to whether the authority to make
such replacement of meter by the licensee is contained in Section 20 of the
1910 Act or not. Even if a harmonious construction is given to the Scheme of
the Indian Electricity Act as was submitted by Mr. Parikh, we do not see as to
how Section 26 would govern Section 20 of the 1910 Act.
Section 20 operate in one field namely conferring a power of entry on the
licensee. The said provision empowers the licensee inter alia to alter a meter
which would include replacement of a meter. It is an independent general
provision. In absence of any statutory provision, we do not see any reason to
put a restrictive meaning thereto. Even under the General Clauses Act, a
statutory authority while exercising statutory power may do all things which
are necessary for giving effect thereto. There does not exist any provision in
any of the statutes referred to hereinbefore which precludes or prohibits the
licensee to replace one set of meter by another. If such a provision is read
into the statute, the same would come in the way of giving effect to the
benefits of new technological development. Creative interpretation of the
provisions of the statute demands that with the advance in science and
technology, the Court should read the provisions of a statute in such a manner
so as to give effect thereto.
[See State of Maharashtra
& Anr. v. Dr. Praful B. Desai & Anr. (2003) 4 SCC 601]
Section 26 of the Act operates in different fields. It comes into being only
when there exists a dispute. The dispute may be in regard to the quantum of the
amount required to be expended for removing the meter or the correctness of the
meter. The dispute may also be, in the event, the meter is held to be not
recording the consumption of electrical energy correctly, the amount to which
the consumer would be liable to pay, in relation thereo.
Electrical Inspector acts as a statutory authority. He has been conferred with
a quasi-judicial power to determine the disputes of particular kinds. His
decision thereupon is final and conclusive. The correctness of such decision
can be questioned only before a superior court of law. Subject of course to a
decision of a superior court, the decision of the Electrical Inspector is final
and binding on the parties.
is correct that the matter at the relevant point of time was not covered by any
statutory regulations, but even otherwise, the respondent had the said
authority under Section 20 of the 1910 Act.
Construction of Section 20 vis-`-vis Section 26 of the 1910 Act came up for
consideration before this Court in Belwal Spinning Mills Ltd. And wherein a
Division Bench of this Court clearly opined;
After giving our careful consideration to the facts and circumstances of the
cases in these appeals and the submissions made by Mr. Gupta, Mr. Sen and Mr. Andhyarujina,
the learned Solicitor General, it appears to us that Section 20 of the
Electricity Act authorises the licensee to enter the premises of the consumer
to remove fittings and other apparatus installed by the licensee.
(a) of sub-section (1) of Section 20 authorises the licensee to enter the
premises of the consumer for inspecting, testing, repairing or altering
the electric supply lines, meters, fittings, works and apparatus for the supply
of energy belonging to the licensee. The licensee, therefore, cannot only
enter the premises of the consumer for inspecting, testing etc. but the
licensee can also alter the meter whenever such alteration is needed.
power under Section 20 does not depend on the adjudication of correctness of
the meter and other apparatus by the Electrical Inspector on a reference under
Section 26(6) of the Electricity Act. But such power flows from the statutory
duties and functions of the licensee to maintain the correct meter for
recording the quantum of electricity supplied to the consumer. Such duty to
ensure maintenance of correct meter in the premises of the consumer has been
indicated in sub- section (1) and sub-section (2) of Section 26. The power of
removing the meter under Section 20, however, is circumscribed by the proviso
to sub-section (4) of Section 26 only when the dispute as to the functioning of
the meter has been referred to the Electrical Inspector under sub-section (6)
of Section 26. A licensee is authorised under sub-section (7) of Section 26 to
place, in addition to the meter installed in the premises of the consumer as
referred to in sub-section (1) of Section 26, other meter or apparatus as the
licensee deems fit for the purpose of recording or regulating the amount of
energy supplied to the consumer. Such power also does not depend on the
existence of any dispute as to the correctness of the meter installed. 48.
Reliance on the said decision has also been placed by the High Court.
Parikh, however, would submit that the High Court failed to notice paragraph 48
of the said decision wherein it was laid down that Section 26(6) would apply
where the meter is not correct and the power to remove the meter could be
exercised only in such a situation and not otherwise.
may, however, notice that the observations made in paragraph 48 were made while
considering the question as to whether the decision in terms of sub-section (6)
of Section 26 should be limited to a statutory period or not. Observations in
paragraph 48 of the said decision having been made in the aforementioned
context, the same cannot be said to have any application whatsoever in the
For the reasons stated hereinbefore, we are of the opinion that there is no
merit in this appeal. It is dismissed accordingly. There shall be no order as