Belwal
Spinning Mills Ltd. Vs. U.P. State Electricity Board & ANR [1997] INSC 594 (10 July 1997)
G.N.
RAY, G.B. PATTANAIK
ACT:
HEADNOTE:
WITH
(CIVIL
APPEAL NOS. 1571 OF 1987, 2538 OF 1985 AND 1255 OF 1986)
G.N.RAY,J.
The
appeals arising out of Special Leave Petition Nos. 5262-64 of 1992 are directed
against order dated February 19, 1992 passed by the Division Bench of the Allahabad
High Court disposing of Writ Petition Nos. 10379 of 1988 challenging the notice
dated April 26, 1988 and the demand dated May 17, 1988 of the U.P.State
Electricity Board and Writ Petition No. 16723/88 and 16325/90 challenging the
validity of the bills for the month of June and july, 1988 issued by the u.p.
State Electricity Board and also the deamdn dated June 14, 1990 made by the
said Board. By the impugned judgment dated Febraury 19, 1992, the High Court guashed
various demand notices issued to the appellant on the basis of check meters
installed by the respondent U.P.State Electricity Board and directing that
payment for six months would be made on the basis of estimate of Electrical
Inspector dated october 10, 1990 and further directing that the fresh bills for
the period 7.9.87 to 10.10.90 be issued on the basis of new meter. By the order
dated March 10, 1992, the Division Bench of the Allahand
High Court passed an interim order on another Writ Petition filed by the
appellant on March 9,
1992 challenging the
action of the U.P. State Electricikty Board in respect of the bill dated January,
1992 and disconnecting the supply of electricity in the factory of the
appellant. By the order dated March 10, 1992, the High Court directed the
appellant to deposit Rs. 10 lacs and on such deposit, the u.P. State
Electricity Board was to restore the connection within 24 house and also
directing the U.P. State Electricity Board to prepare the bills for the period
subsequent to 10.10.90 within a month with a further direction to the appellant
to pay such bill within a month thereafter.
The
relevant facts leading to the controversy as to the raising demands for the
bills and the consequential direction passed by the High Court on February 19,1992 and March 10, 1992 are stated hereunder.
On Febraury
7, 1986 U.P. State electricity Board installed a meter bearing No. 5850497 in
the factory of the apopellant. The Board carried out periodical inspection and
tests and had raised the bills on the basis of the said installed meter and the
appellant had also paid such bills.
On September 7, 1987, the U.p. State Electricity Board
issued a notice raising doubt about the correctness of the said meter No.
5850497. On October 25,
1987, the appellant controverted
the contents of the said notice of the Electricity Board and asserted that the
meter was correct.
No
reference to the Electrical Inspector was made under Section 26 of the
Electricity Act, 1910 by the Board. The Board installed a check meter on November 30, 1987. The appellan, however, deposited
the testing fee and requested the Electricity Board to check the said test
meter. The Board, however, continued to raise the bills on the basis of the
said check meter for the period December, 1987 to May, 1988. On April 26, 1988 to November, 1987 could be revised
o the basis of check meter and sought information for the purpose of revising
of the bills prior to 1987. On May 17, 1987,
the Electricity Board raised a demand of Rs.10,70,886.82 for the period May,
1987 to November, 1987 on the basis of readings in the check meter and threatene
the appellant that the electricity connection would be discontinued if the payment
was not made. It was at this stage that the appellant moved a Writ Petition No.
10379 of 1988 challenging the said notice dated April 26, 1988 and the demand datd
may 17, 1988. During the pendency of the said Writ Petition, the electricity
Board again raised bills for teh months of June, 1988 on the basis of check
meter and also thereatened the appellant that disconnection would be restorted
to if the payment was not made. The appellant then moved another Writ Petition
No. 1672/88 in the Allahabad High Court challenging the said bills for June and
July, 1988. By an interim order, the High Court restrained the desconnection of
the electric supply subject to thepayment of electricity dues by the appellant
on the basis of original meter reading and furnishing security and bank
guarantee for Rs.1 lakh every month. The Electricity Board raised additional
demand of Rs. 5,54,963.64 ending July 1988 on the basis of check meter. The
appellant moved the third Writ Petition on June 21 1990 being writ petition No. 16325/90
challenging the demand dated June 4, 1990
for the said sum of Rs. 5, 54,963.64. The High Court passed an interim order
staying the operation of the demand and directed the appellant deposit a sum of
Rs. 1,50,000/-. It may be stated that on July 9, 1988 the appellant made an application
for reference to the Electrical Inspector to check the correctness of the
original meter and also the check meter. Between 26th June, 1990 and 28th
June, 1990, the work
of inspection was carried out and on October 10, 1990 the Electrical Inspector submitted
a report containing his decision under Section 26(6) of the Electricity Act,
1910. In the said report, the Electrical Inspector held that the original meter
as well as the check meter incorrect. The Electrical Inspector made an estimae
of the energy supplied to the appellant during the period of six months from
December, 1989 to May, 1990 and authorised the Board to raise a deamnd
accordingly for a period of six months and the Electrical Inspector also
directed that the original meter as well as the check meter should be installed
under SEction 26(1) of the Electricity Act.
As
aforesaid, on Febraury 19, 1992, by common judgment the High Court disposed of
all the said Writ Petitions by quashing various demand notices issued on the
basis of the check meter and directing that the payment be made on the basis of
estmate of Electrical Inspector dated October 10, 1990 in respect of the said
period of six months and also directed that fresh bills for teh period
September 7, 1987 to October 10, 1990 be issued on the basis of new meter.
Thereafter,
the fourth Writ Petition not numbered as yet was moved by the appellant on March 9, 1992 in respect of bill for January,
1992 in which an interim order was passed on March 10, 1992. Such interim order is also impugned in one of these
appeals.
MR.
Sunil Gupta the learned counsel appearing for the appellant in these appeals
has contended that under SEction 20 of the Indian Electricity Act, 1910, the
State Electricity Board being the licensee has power to enter the premises of
the appellant and to remove fittings where a supply f energy is no longer
required. The licensee has also the power of inspecting, testing, repairing or
altering the electric supply-lines, meters, fittings and apparatus for the
supply of energy belonging to the licensee. The Board is also empowered to
ascertain the amount of energy supplied or the electrical quantity contained in
the supply.
Mr.
Gupta has drawn the attention of the Court to Section 26(6) of the India
Electricity Act, 1910 as it stood before the amendment to the following effect.
Section
26(60 : Where any difference or dispute arises as to whether any meter rferred
to in sub-section (1) is or is not correct, the matter shall be decided, upon
the application of either party, by an Electrical Inspector, or a competent
person specially appointed by the State Government in this behalf, and where
the meter has, in the opinion of such Inspector or person, ceased to be
correct, such Inspector or person shall estimate the amount of the energy
supplied to the consumer or the electrical quantity contained in the supply,
during such time as the meter shall not in the opinion of such Inspector or person
have been correct, and where the matter has been decided by any person other
than the Electrical Inspector, an appeal shall liew to the Inspector, whose
decision shall in every case be final; but save as aforesaid, the register of
the meter shall, in the absence of frand, be coclusive peroof of such amount of
quantity:
Provided
that before either a licensee or a consumer applies to the Electrical Inspector
under this sub-section, he shall give to the other party noless than seven
days' notice of his intention so to do.
Mr.
Gupta has also drawn the attention of the Court to the provisions of Section 26
of the Indian Electricity Act as it stands amended by Act No.32 of 1959 :- 26
Meters : (1) In the absence of an agreement to the contray, the amount of
energy supplied to a consumer or the electrical quantity contained in the
supply shall be ascertained by means of a correct meter, and the licensee
shall, if required by the consumer, cause the consumer to be supplied with such
a meter :
Proided
that the licensee may require the consumer to give him security for the price
of a meter and enter into an agreement for the hire thereof, unless the
consumer elects to purchase a meter.
(2)
Where the consumer so enters into an agreement for the hireof a meter, the
license shall keep the meter correct, and, in default of his doing so, the
consumer shall, for so long as the default continues, cease to be liable to pay
for the hire of the meter.
(3) Where
the meter is the property of the consumer, he shall keep the meter correct, and
in default of his doing so, the licensee may, after giving him seven days
notice, for so long as the default continues, cease to supply energy through
the meter.
(4)
The licensee or any person duly authorised by the licensee shall, at any
reasonable time and on informing the consumer of his intention, have access to,
and be at liberty to inspect and test, and for that purpose, if he thinks fit,
take off and remove any meter referred to in sub-section (1) :
and
except where the meter is hired as aforesaid, all reasonable expenses of, and
incidental to, such inspecting testing, taking of and removing shall, if the
meter is found to be otherwise than correct, be recovered from the consumer,
and, where any difference or dispute arises as to the amount of such reasonable
expenses, the matter shall be referred to an Electrical Inspector, and the
decision of such Inspector shall be final:
(5)
........... .........
..........
(6)
Where any difference or dispute arises as to whether any meter referred to in
sub-section (1) is or is not correct, the matter shall be decided, upon the
application of either party, by an Electrical Inspector, and where the meter
has, in the opinion of such Inspector ceased to be correct, such Inspector
shall estimate the amount of the energy supplied to the consumer or the
electrical quantity contained in the supply, during such time, not exceeding
six months, as the meter shall not, in the opinion of such Inspector have been
correct; but save as aforesaid, the register of the meter shall, in the absence
of fraud, be conclusive proof of such amount or quantity:
Provided
that before either a licensee or a consumer applis to the electrical Inspector
under this sub-section, he shall give to the other party not less than seven
days' notice of his intention so to do.
(7) In
addition to any meter which maybe placed upon the premises of a consumer in
pursuance of the provisions of sub-section 91), the licensee may place upon
such premises such meter, maximum demand indicator or other apparatus as he
thinks fit for the prupose of ascertaining or regulating either the amount of
energy supplied to the consumer, or the number of hours during which the supplyis
given, or the rate per unit of time at which energy is supplied to the
consumer, or any other quanity or time connected with the supply:
Provided
that the meter, indicator or apparatus shall not, in the absence of an
agreement to he contrary be placed otherwise than between the distributing
mains of the licensee and any meter referred to in sub-section (1) :
Provided
also, that, where the charges for the supply of energy depend wholly or partly
upon the reading indicaing of any such meter, indicator or apparatus as aforesaid
the licensee shall, in the absence of an agreement to the contrary, keep the
meter, indicator or apparantus correct, and the provisions of sub sections (4)
(5) and (6) shall in that case apply as though the meter, indicator or
apparatus were a meter referred to in sub-section (1).
Explanation
- A meter shall be deemed to be "correct" if it registers the amount
of energy supplied, or the electrical quantity contained in the supply, within
the prescribed limits of error and a maximum demand indicator or other
apparatus referred to in sub-section (7) shall be deemed to be
"correct" if it complies with such conditions as may be prescribed in
the case of any such indicator or other apparatus." Mr. Gupta has also
drawn the attention of the Court to Rule 57 of the Indian Electricity Rules,
1956. Rule 57 runs to the following effect:
Rule
57 -Meter, maximum demand indicators and other apparatus on consumers' 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 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
upto full load.
(2) No
meter shall register at no load.
(3)
Every supplier shall provide an maintain in proper condition such suitable
apparatus as may be prescribed or approved by teh 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 supplir 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 first installation at the consumer's premises and at such other
intervals as may be directed by the State Government in the 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, limit of accuracy after
adjustment and final test, the date of installation, withdrawal, reinstallation
etc., for the examination of the Inspector or his authorised representative.
960
Where the supplier has failed to examine, test and regulate the meters keep
records thereof as aforesaid, the Inspector may cause such meters to be tested
and sealed at the cost of the owners of the meters in case it is found
defective." Mr. Gupta has contended that on a correct reading of SEction 26
as a whole along with all important deeming clauses in the Explanation
containing the definition of correct meter as also along with reading of
section 26(1) of the Indian Electricity Act, it would be evident that there can
be in the eye of law only one 'correct meter' in the case of any consumer. The
deeming clause in the explanation statutorily determines and declares the
correctness of the meter if only it registers the amount of energy supplied
within the prescribed limits of error and leaves the same to nobody's liking or
imagination. If the meter so installed registers the amount of energy, the
Board has no choice but to accept it as correct and once a correct meter it
must be deemed to be correct all along unless it is doubted and dispute is
raised and thereafter such meter is despensed with on being decided that it is
incorrect by the Electrical Inspector in accordance with the procedure
prescribed by Section 26(6) of the Indian Electricity Act. Mr. Gupta has
submitted that so long meter on being adjudicate as defective is not discarded
by replacing a correct meter, the consumer treats the said meter as the correct
and can resist raising the bill on the basis of any other meter.
Mr.
Gupta has submitted that in the instant case, the Board has not taken any step
to refer the dispute to Electrical Inspector to correct the meter even when it
had doubted about the correctness of the installed meter. The appellant also
did not raise any dbout about the correctness of the said meter. But during the
pendency of the Writ Petition, the appellant even though not required to raise
dispute took steps to get the dispute as to the correctness of the meter
referred to the Electrical Inspector. Mr. Gupta has submitted that the check
meter installed by the Board cannot be treated as a correct meter or
replacement of original meter. The check meter was installed by teh Board for
the purpose of checking the correctness of the original meter installed
earlier. Therefore, the very purpose of the check meter was to take the reading
of the check meter fot the purpose of verifying the reading in the original
meter installed by the Board. Mr. Gupta has submitted that until and unless any
dout raised about the correctness of the meter is finally scrutinised and
decided by the Electrical Inspector on a reference made to such authority, the
Board should not be permitted to install another meter simply by doubting the
correctness of the earlier meter installed by it. Any such libery to be given
to the Board will amount to permitting the Board to short circuit and avoid the
fair and impartial mechanism provided under Section 26 of the Indian Electricity
Act. Mr. Gupta has contended thay any proposal of correctness of one meter by
another meter should not be permitted until the corrrectness of the earlier
meter installed is finally decidedby Electrical Inspector as incorrect. Mr.
Gupta has contended that any libery granted to the Board to continue to
dislodge and dislocate one meter after anotehr meter arbitrarily, whimsically
and without any reason and without the concurrence of the consumer will be
loaded with the potentiality of grave mischief and high handedness at the hands
of the Electricity Board and such action is bound to seriously impair the rule
of law between the parties which is so delicaely maintained by the different
parts of Section 26 of the Indian Electricity Act.
According
to Mr. Gupta, the different parts of Section 26 of the Act only manifest that
the original correct meter once duly installed with the concurrence of
concerned parties, acquires a sacrosanct status. After the installation,
neither party has the right to take off or remove or replace the meter.
Sub-section (4) of Section 26 permits the originally installed correct meter to
be taken off and removed by the Electricity Board, if at all for the purpose of
inspecting and testing, such removal is necessary. There is no unlimited
liberty granted to the Electricity Board or the licensee to take off and remove
the originally installed meter and replace the same by another meter by
treating such other meter as correct. Sub-section (6) of Section 26 of the
Electricity Act requires that save as estimated by the Electrical Inspector for
a period not exceeding six months, the register of the meter shall be
conclusive proof of the amount of energy supplied to the consumer. This limit
of six months, according to Mr. Gupta, is to be corelated with the primary rule
contained in sub- section (1) of Section 26 of the Act, which requires that the
amount of energy supplied shall be ascertained by means of a correct meter.
Mr.
Gupta has ubmitted that Section 21 of the Indian Electricity Act bars and
disentitles the Board from prescribing any special form of appliance and it
also indicates that the original correct meter cannot be tinkered with.
Regulation 21 (ii) of the Electricity (Supply) Regulations 1984 also provides
for a check meter only for checking the accuracy of the original meter.
Sub-Section (7) of Section 26 permits any other meter to be placed upon the
consumer's premises only in addition to and not in lieu of or in replacement of
the meter already placed upon the said premises in pursuance of the provisions
of sub-section (1) of Section 26 of the Act. If the Board places in the
consumer's premises a check meter and thereafter finalises or regularises it so
as to bid farewell to the original meter installed under sub-section (1) for
purposes of ascertaining the amount of energy supplied to the concumer, it must
be held to be a breach of sub-section (7) inasmuch as such placement is in lieu
of and not in place of the original meter. Mr. Gupta has submitted that the
check meter has only been placed to check the original meter and suchmeter
cannot directly dislodge and replace the said original meter and not indirectly
allow to do so by means of any process of formality of finalisation or regularisation
or some other such paper ritual.
Mr.
Gupta has further contended that the law courts in India have decided that a check meter can
only be used for checking and not for the purposes of regular reading, billing
etc. Even the impugned judgment had disapproved of such action and quashed the
check meter bills inter alia on the finding that as the power to decide the
dispute about the correctness of the meter installed at the consumer's remises
vests in Electrical Inspector under sub-section (6) of Section 26, it s not
open to the Board to assign that power to itself. it may be open to the Board
to install the check meter to find out the correctness of the meter originally
installed at the consumer's premises but it is not open to it to send bills on
that basis for the period of dispute. The Board's decision about the
correctness of meter is not binding on the consumer and what is binding on him
is the decision of the Electrical Inspector under Sub- section (6) of Section
26. Under these circumstances, if the Board issues any additional bills for the
disputed period, it is not liable to be paid by the consumer. The consumer is
required to make payment provisionally, during the period of dispute, on the
same basis on which payment was being made before the dispute has arisen.
Mr.
Gupta has contended that not only a new correct meter cannot be brought in but
truly speaking the old correct meter cannot be taken off or removed or
abandoned except under the provisions of Section 26(6) of the Electricity Act.
Mr. Gupta has also contended that although sub-section (7) of Section 26
permits the Board to use, in addition to the meter installed under sub-section
(1), such other apparatus as it thinks fit for the purpose of scertaining the
amount of energy supplied, under the second proviso of the said sub-section,
the Board has an obligation to keep also such apparatus correct. mr. Gupta has
further contended that second proviso to sub-section (7) of Section 26 also
requires that the provisions of sub-sections (4), (5) and (6) shall mutatis
mutandis also apply to the said additional apparatus as though it was the meter
referred to under sub-section (1). in other words, if the Board has any doubt
about the correctness of such other apparatus then it becomes the duty of the
Board to make a formal reference of the dispute to the Electrical Inspector
after giving the consumer not less than seven days' notice of its intention to
do so. Any correctness undertaken otherwide would not be a reference under
Sub-section (6) of Section 26 of the Act and in that event, as declared by the
saving clause in sub- section (6) of Section 26 of the Electricity Act, the
register of the meter shall alone be conclusive proof of the amount of energy
supplied to the consumer.
Mr.
Gupta has also contended that the Electricity Board cannot also unilaterally
and without notive add any further compliant wih regard to any other apparatus
by merely making some mention of it in a letter forming part of the correspondence
taking pace in connection with a validly referred dispute relatin, to teh
meter. Much less can it do so by resorting to such methods in the course of a
correspondence taking place under a reference made by the consumer.
It has
also been contended by Mr. Gupta that any attempt at inviting the Electrical
inspector who is in seisin of the original dispute relaing to the meter, to
also decide the question of correctness of an additional apparatus midstream
and that too without any notice and the copy of the complaint being given to
the consumer would be ab initio illegal and void and the Electrical Inspector's
decision upon the matter, once again without ensuring that notice and copy of
the complaint has been furnished to the consumer, would only further compoiund
the breach of principles of natural justice and fair play.
According
to Mr. Gupta, any controversy, correspondence, opinion, adjudication etc. apearing
on the record of the Board or of the Electrical Inspector at any point of time
with regard to the correctness either of the meter or of any other apparatus
shall deserve to be disregarded and ignored by a court of law if the same has
not taken place and trasnpired in accordance with theprocedural requirements of
sub-section (6) of Section 26 of the Electricity Act.
Mr.
Gupta has very seriously contended that after the amendment of Section 26, the
legal position is that when a dispute is raised either by consumer or by
licensee about the correctness of the meter installed at the premises of the
consumer, such dspute is got to be rexolved by making a reference to the
Electrical Inspector. The Electrical Inspector after amendment of Section 26 of
the Electricity Act, has been authorised to make estimate of the electricity
consumed by the consumer upon a finding that the installed meter was defective
only for a period of six months prior to the date of reference of the dispute
to the Electrical Inspector. For any other period beyond that period of six
months, the reading on the basis of the installed meter must form the basis of
raising the bills. It is neither permissible under the scheme of Section 26 of
the Electricity Act nor it can be presumed that from any particular point of
time, the original installed correct meter had gone wrong so that revised bills
can be drawn from such point of time. Since it was the duty of the licensee
namely the Electricity Board to keep the meter installed at the consumer's
premises in a correct position for which the licensee had the right of access
in the premises of the consumer, on the failure of the licensee to check the
meter installed at the premises of the consumer and to make reference to the
Electrical Inspector whenever any dbout arises about the correctness of the
meter installed and getting appropriate adjudication by the Electrical
Inspector, the licensee cannot be permitted to raise any revsed bills beyond a
period of six months from the date of reference of the dispute to the
Electrical Inspector on the basis of any meter subsequently installed at the
premises of the consumer after the finding of the Electrical Inspector that the
earlier meter installed was defective.
Mr.
Gupta has subitted that in the instant case, attempt has been made by the
Electricity Board to raise revised bills on the basis of the check meter
exceeding the period of six months from the date of reference of the dispute.
MR. Gupta has contended that once on a reference, the Electrical Inspector
comes to the finding that the meter installed at the premises of the consumer
is defective, the legislature, in its wisdom, has given the Inspector to make
an estimate of the amount of electricity consumed for a period of only six
months prior to the date of reference.
The
estimate made by the Electrical Inspector would be held to be correct index of
consumption of the electricity for the said statutory period of six months
because of the statutory presumption of incorrectness of the meter upto that
period. But beyond the said period of six months, the licensee is not permitted
to raise any dispute about the incorrectness of the bills raised and the
licensee can only raise bills on the basis of the installed meter for all
earlier period beyond the said statutory period of six months.
Mr.
Gupta has submitted that unfotunately, the High Court has failed to appreciate
the provisions of Section 26 of the Electricity Act and by the impugned order
the High Court has allowed the respondent Electricity Board to raise bills for
the period exceeding the said six months for which estimated amount of electricity
consumed was determined by the Electrical Inspector on the basis of the reading
of the meters installed at the premises of the appellant. Such order of the
High Cort is clearly illegal and against the provisions of Section 26 f the
Electricity Act and thus it cannot be sustained.
So far
as the interim order passed on March 10, 1992 since assailed in one of the
appeals is concerned, the High Court according to Mr. Gupta, has passed the
said order without appreciating that such order was without jurisdiction and
outside the scope and ambit of the last Writ Petition filed by the appellant
challenging the validity of the bill for the month of January 1992 only.
Mr.
Gupta has submitted that the impugned interim order of March 10, 1992 passed on the last Writ Peition of
the appellant is manifesly unjust, improper and illegal.
Mr. B.
Sen, learned senior counsel appearing for the U.P. State Electricity Board has, however,
submitted that the Board has the power to install a check meter for the purpose
of checking the functioning of the installed meter and to regularise the bills
on the basis of check meter. He has also submitted that since the licensee has
the power to alter the meter if the installed meter is found defective, there
is no difficulty in treating the check meter as the regular meter installed in
lieu of the original meter.
Therefore,
the bills drawn on the basis of the check meter cannot be held to be illegal.
On the question of true construction of Section 26 (6) of the Electricity Act,
Mr. Sen has submitted that sub-section (6) of Section 26 should be read in the
light of amended sub-section and when so read, it would be seen that the words
'not exceeding six months' have been added by amending Act 32 of 1959. The
result of the amendement is not that any claim of the licensee in respect of
correct meter is restricted only to the amount of energy supplied to the
consumer during a period not exceeding six months. Mr. Sen has submitted that
the words save as aforesaid the register of the meter shall in the absence of
fraud be conclusive proof of such amount or quantity means that except in cases
where there is a determination by the Electrical Insepctor that the meter is
not correct, the register of the meter is conclusive proof of the amount or
quantity. After the amendment, the Electrical Inspector's jurisdiction to
estimate the amount of energy supplied to the consumer from the incorrect meter
is restricted to a period not exceeding six months. In other words, the
Electrical Inspector's jurisdiction to estimate the amount of energy is
restricted upto a time period. This does not mean that the meter is approved as
correct for any period anterior to six months.
Mr. Sen
has also submitted that the distinction must be drawn between the estimating or
quantifying the amount of energy and the duration of the incorrectness of the
meter.
The
former does not affect the latter. Section 26(6) is not a section which bars
the latter claim either by limitation or otherwise. Consequently, it is open to
th elicensee to make a claim on the basis of the value of incorrectness found
by the Electrical Inspector in respect of a period anterior to the maximum six
months period for which the Electrical Inspector can estimate the amount of
supply.
MR. Sen
has, however, submitted that the claim of the licensee about the quantum of
electricity consumed is not statutorily conclusive and therefore, such claim
may be subject to contest if any to be made by the consumer.
Mr. Sen
has submitted that the above interpretation is only fair and just and the said
interpretation harmonises the lessening of the burden on the Electrical
Inspector for which the amendment was effect in sub-section (6) of Section 26
and also preserves the claim of the licensee which is a public undertaking and
just claim should not be allowed to be abandoned or defeated. Mr. Sen has
submitted that it was open to the licensee to make revised bills for teh
quantum of electricity consumed by the consumer by correcting the bills to the
extent of error in recording as indicated by the Electrical Inspector.
Therefore, the impugned decision of the High Court must be sustained.
Mr. Sen
has also submitted that although the last Writ Petition was moved for assailing
the bill raised for a particular month but the contention raised in the Writ
Petition is the same, namely, excepting the 'six months period' for which the
estimate was prepared by the Electrical Inspector, for all other periods prior
to such estimation, must be covered by the readings in the installed meter even
if the installed meter has been found to be defective and no revised bill can
be drawn and payment can be claimed on the basis of revised bills for any
period exceeding six months. Since much contention cannot be accepted and the
High Court has already answered against the appellant in disposing of the
earlier three writ petitions, the impugned interim direction give by the High
Court appears to be just and proper and no interference is called for against
the judgment of the High Court under Article 136 of the Constitution. Mr. Sen
has, therefore, submitted that these appeals should be dismissed.
Mr.
T.R. Andherujina, learned Solicitor General, has appeared for the Municipal
Corporation fo Greater Bombay, the appellant in Civil Appeal Nos. 2538 of 195
and Civil Appeal No. 1571 of 1987. Civil Appeal No. 2538 of 1985 is directed
against the judgment dated April 4, 1985 passed by the Division Bench of the
Bombay High Court allowing Appeal No. 173 of 1979 preferred by the respondent Bharat
Barrel Drum Manufacturing Company Limited assailing the order of dismissal of
the Writ Petition of the said respondent by a Single Judge of the High Court,
Civil Appeal No. 1571 of directed against Order dated July 1, 1987 passed by
the Division Bench of the Bombay High Court in O.S. Appeal No. 890 of 1983
arising from Misc. Petition No. 1662 of 1979.
The
impugned judgment of the Bombay High Court in O.S. Appeal No.890 of 1983 has
been passed following the decision of the Division Bench of the Bombay High
Court dated April 4,
1985 in Bharat Barrel
Drum Manufacturing Company's case.
Mr.
Solicitor General has submitted that in Bharat Barrel's case, the appellant
checked the correctness of all meters of multiplying the constant and of actual
connections of CT operated meters and an additional check meter was installed
and on comparison of the two meters, it was revealed that due to defective
connections, the original meter was registering 76.6% less than of its actual
use.
Therefore,
the revised bills of 76.6% of energy consumed from June 1, 1963 amounting to Rs. 2,28,750.70 was served on the respondent
company. The respondent disputed the revised bills and referred the dispute to
the Electrical Inspector under Section 26(6) of the Electricity Act. The
respondent company moved a Misc Petition No. 376 of 1973 in the Bombay High
Court, on June 20, 1973, and a consent order was passed in the said petition
where the appellant agrred not to disconnect the electric supply for
non-payment of the amoun demanded during the pendency of the reference. On July 10, 1973, the Electrical Inspector found
that the meter in question was recording 71.9% slow reading and such error was
beyond the prescribed limit. The appellant thereafter revised its bills in the
light of th decision of the Electical Inspector and reduced the claim and sent
the corrected revised Bills for a sum of Rs. 1,68,402.90 to the
respondent-Company. Such revised bill was also assailed by the
respondent-Company before the Bombay High Court in Misc.
Petition
No.1148 of 1973. The learned Single Judge dismissed the said petition by
upholding the claim of the respondent-appellant. Thereafter, the respondent
preferred the said Appeal No. 173 of 1979 and such appeal has been allowed by
the impugned judgment dated April 4, 1985.
By the
impugned judgment, the High Court has held that once the dispute is referred
under Section 26(6) of the Electricity Act, the licensee is entitled to pay
only the charges payable as per recording by the meter installed and such
further amount as may be held due for a period of six months by the Electrical
Inspector. The High Court has also held that any amount demanded by the
licensee on the ground that the meter ceased to be correct for a period for
more than six months cannot be said to be 'due' for the purpose of Section
24(1) of the Act and that the power to discnnect vested in the licensee under
Section 24 cannot be exercised for non-payment of such amount. The High Court
has also held that the licensee cannot revise its bills for more than six
months immediately proceeding the demand. similar claim by presenting revised
bills on account of error due to incorrect meter reading has also been rejected
in the case of M/s Eagle Theatre by relying on the judgment passed in Bharat
Barrel Drum Manufacturing Company's case.
The
learned Solicitor General has submitted that Section 24(1) of the Electricity
Act empowers the licensee to cut the supply where a consumer neglects to pay
charge of Electricity due from him after giving seven days' notice to the
consumer in writing. Where ther is a dispute as to the correctness of the
meter, sub-section (2) of Section 24 requires that licensee shall not exercise
powers of disconnection until the Inspector has given his decision.
Where
the Inspector has given his decision estimating the amount of energy supplied
to the consumer under Section 26(6) during such time not exceeding six months
and if consumer does not pay after such a determination, it will be open for
the licensee to issue a notice of disconnection under Section 24(1) of the Act.
Mr. Solicitor General has also submitted that in respect of the period
exceeding six months, the licensee may make a demand from the consumer on the
basis of value of incorrectness of the meter determined by the Electrical
Inspector. The licensee may issue such a notice without prejudive to his right
to recover such charge by suit. Mr. Solicitor General has submitted that it is,
therefore not correct that a licensee can under no circumstances avail of the
powers of disconnection under Section 24(1) on the score of non-payment of the
revised bills relating to a period exceeding six months as referred to in
Section 26(6). Since the appellant can raise the revised bills on account of
incorrect reading in the installed meter for some defects either in the meter
or in connection to the meter, the impugned decision of the Bombay High Court
can not be sustained and the same should be set aside by allowing the appeals.
Mr.
Gupta in reply has, however, dispute the submissions made by Mr.Sen and by the
learned Solicitor General. Mr. Gupta has contended that there is no scope for
any assumption that there is in the licensee a right to make claims for the
amount of energy supplied to a consumer even outside the provisions of SEction
26(1) and Section 26(6) of the Act. Mr. Gupta has submitted that the assumption
of claims outside Section 26(1) and (6) is patently wrong and incorrect.
According to Mr. Gupta, such assumption and consequential claim do not reflect
true and correct intention of the legislature but tends to destroy and defeat
the same because the real purpose and scheme of the legislature hae been to put
an end of such claims. Mr. Gupta has submitted that the interpretation of
Section 26(6) as suggested by Mr. Sen and the learned Solicitor General will
lead to serious conflicts and difficulties and anomalies of interpretation and
it also leads to protected litigations and vexatious proceedings resulting in
grave hardship and misery to all concerned. Mr. Gupta has submitted that the
Court will keep in mind that the Parliament could not have intended such harsh
and unsettling consequences. For such contention, Mr. Gupta has referred to a
decision of this Court in Sanjeev Coke Manufacturing Mr. Gupta has also
submitted that it is well settled in law that express language is necessary
whenever any charges or dues are required to be paid or any new rights or
obligations are create between parties. For such contention, reference has been
made to Craies on Status Law, (7th Edition, pp. 112 to 117). Mr. Gupta has also
contended that 'conclusive proof clause in Section 26(6) is designed to govern
only such period during which the meter has been 'de jure' to be presumed to be
correct. Mr. Gupta has submitted that such provision has been made to govern a
case where the inspector holds the meter to be incorrect but is not able to
identify the entire period of incorrectness or not able for some other reason
to estimate the energy supplied for the entire period of incorrectness. The
conclusive proof clause was meant to legislatively resolve and settle the
claims of the licensee during such an uncovered or unestimated periof of adjudiated
incorrectness.
Mr.
Gupta has submitted that the said conclusive proof clause was provided by the
legislature purposely as a matter of legislative policy to facilitate
administrative expediency and public convenience. Mr. Gupta has also contended
that the Court will accept that interpretation which assigns a special role and
significance to the 'conclusive proog clause in the scheme of Section 26 (6)
and reject any interpretation which would render it otiose, superfluous and
redundant. In support of this contention, Mr. Gupta has relied on the decision
of this Court in J.K. Cotton (1961 (3) SCR 193) and Radhey Shyam (1989 (1) SCC
591). The Electrical Inspecto on a reference raising disputeabout the
correctness of the meter, is the chosen Judge and the best Judge appointed by
the Legislature to resolve the dispute. Mr. Gupta has submitted that the true
object of amendment of Sub-section (6) of Section 26 of the Electricity Act was
to eliminate retrospective demand. Mr. Gupta has submitted that six months'
ceiling was imposed by the Parliament on the power of the Inspector to form an estimae
of the amount of energy supplied for various reasons and not merely because of
the fact that he may not be able to decide the period of incorrectness.
According to Mr. Gupta, the true object and purpose of the six months'ceiling
was to ensure that the consumer was not vexed with retrospective demands for
past periods and that too on a rough and ready esimae basis.
Mr.
Gupta has also submitted that under Section 26 (6), the Parliament has
deliberately chosen to deny and disallow the alleged lcaims of the licensee
beyond a period six months and it is not a case of gap or 'casus omissus'. Mr. Gupta
has submitted that if the Court in the present case decides to acknowledge the
existence of the alleged claims of licensee outside the six months' limit, it
would amount not only to legislating but legislating in the teeth of the
provision made by the Parliament in Section 26. Mr. Gupta has submitted that
the licensee does not have any extra claim over and above the maximum period of
six months provided under Section 26 (6). Such position has been accepted in
various judgments by several High Courts.
Therefore,
it must be held that the consistent and widely accepted judicial interpretation
of Section 26(6) does not permit any claim beyond the said period of six
months. The Parliament has never made any attempt of amending Section 26(6) so
as to resolve it of the judicial interpretation.
The
silence on the part of the Parliament, therefore, indicates that the
interpretation of Section 26(6) by High Courts over long stretch of period has
rightly the true intention of the Parliament which, therefore, deserves to be
accepted by this Court.
Mr.
Gupta has lastly submitted that sub-section (6) of Section 26 is capable of
being interpreted differently and should be interpreted differently for the
licensee and consumer who are not similarly circumstanced. The Consumer is, at
all times, at the mercy of the licensee on the point that consumer has no
option in the matter of inspection of meters and checking and repairing the
same. Mr. Gupta has further submitted that sub section (6) of Section 26 has to
be interpreted in the light of all other connected limbs of the statute and
with reference to specific context in question. It is appears to the Court that
on account of short sightedness of the legislative draftsman who drafted the
six months' rule in the 1959 amendment, unmerited prejudice and hardship have
been caused to the consumers, the judicial wing may have to depend on its own
creativity so that hardship is not meted out to the consumers. In this
connection, Mr. Gupta has relied on the decision of this Cout in Punjab Land
Development and Reconstruction Mr. Gupta has, therefore, submitted that the
impugned decision of the Allahabad High Court should be set aside and the said
three writ peritions should be allowed and the impugned interim direction
passed in the last Writ Petition pending before the Allahabad High Court should
be set aside.
Similarly
the decisions of the Bombay High Court impugned in the other appeals should be
upheld by dismissing the appeals.
After
giving our careful considearation to the facts and circumstances of the cases
in these appeals and the submissions made by Mr. Gupta, Mr. Sen and MR. Andherujina,
and 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 otehr apparatus installed by the licensee. Clause (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 supplylines,
meters, fittings and apparatus for the supply of energy belonging to the
licensee. The licenses, therefore, can not only enter the premises of the
consumer for insepcting, testing etc. but the licensee also can alter the meter
whenever such alteraction is needed. Such 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 function 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 functng of the meter has been referred to teh
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 consumer as referred to in Sub-Section (1) of
Section 26, other meter or apparatus as the licensee deem 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.
Check
meter is usually installed for the purpose of checking and ascertaining the proper
functioning of the installed meter but there is no legal bar for treating the
check meter as an altered meter in place of the meter installed earlier when on
checking the meter the licensee has found it to be defective. Such power of
installing the meter, replacing it by another mete ris also independent of
existence of any dispute between the consumer and the licensee.
The
expression 'check meter' has no special significance or legal incidence for
which there is a bar that check meter cannot be treated as an altered meter if
the licensee intends to replace the defective meter by the check meter. It will
be open to the Electrical Inspector to ascertain the correctness of the check
meter along with the disputed meter when dispute is referred for adjudication
by the Electrical Inspector and the licensee found its case with reference to
check meter. Prior to the amendment of Section 26(6) of Electricity Act, the
Electrical Inspector or the competent person specially appointed by the State
Government in this behalf, had a statutory duty to first determine whetehr the
meter in question was defective and thereafter to estimate the quantity of the
electricity consumed during such time as the meter in the opinion of the
Electrical Inspector or the competent person 'shall not have been correct'.
After the amendment of sub-section (6) of Sectio 26, the Electical Inspector is
the only statutory authority to decide the dispute about the correctness of the
meter, if such dispute is raised by either of the parties.
If the
Electrical Inspector on a reference comes to the finding that the meer has
ceased to be correct, the said Inspector has a statutory duty to estimate the
amount of energy supplied to the consumer or electrical energy contained in the
supply during such time not exceeding six months as the meter shall not, in the
opinion of such Inspector, have been correct.' (emphasis added) From the
legislative change effected in sub-section (6) of Section 26, it is evident that
prior to the amendment of sub-section (6), upon a determination that the meterin
question was defective, the Electrical Inspector or the competent person had a
statutory duty to also estimte the amount of energy supplied for the entire
period during which in the opinion of the said Inspector or the competent
person, the installed meter 'shall not have been correct'.
But
after the amendment, on a finding that the meter in question has ceased to be
correct, the Electrical Inspector has been relieved of the statutory duty to
estimate the total quantity of energy supplied to the consumer for the entire
period during which the meter in the opinion of the Inspector shall not have
been correct. But the Inspector has the statutory duty to estimate the supply of
energy for a limited period referred to under Sub-section (6), namely, 'during
such time not exceeding six months'.
The
pint of time with reference to which the electricity consumed by the consumer
is to be estimated by the Electical Inspector for such period not exceeding six
months' has not been specifically indicated insub-section (6) of Section 26.
The expression 'during such time' appearing in sub-section (6) of Section 26 is
capable of different construction, namely, period between i) date of dispute and
date of reference ii) date of dispute and date of inspection iii) date of
reference and date of adjudication iv) date of dispute and date of adjudication
It does not require any imagination to hold that the dispute when raised either
by the consumer or by the licensee and reference to Electrical Inspector is
made, the Inspector is expected to consume some time for entering the reference
of dispute, making inspection of the meter in question and after taking such technial
test as may be necessary to finally adjudicate the dispute as to the
correctness of the meter. Unless the adjudication as to the proper functioning
of the meter is made, the question of estimating the supply of electricity for
the statutory period during which such meter shall not have been correct, will
not arise. In our view, taking into consideration the time lag inherent between
raising of dispute and adjudication of such dispute, the expression 'during
such time' in sub section (6) of Section 26 only means the time during which
the dispute is raised for reference and the dispute is finally adjudicated.
Hence, the estimate of supply of energy by the Inspector is to be made for a priod
not exceeding six months prior to the date of raising the dispute for reference
to the Electrical Inspector. The expression 'not exceeding six months'
indicates that the Electrical Inspector even when comes to the finding that the
meter in question has ceased to be correct, is ot required in all cases to make
estimate of consumption of electricity for a period upto six months prior to
the raising of the dispute for reference to the Electrical Inspector. In a
given case, it may so happen that the Electrical Inspector may come to the
finding that the meter ceased to be correct from a particular date which is not
upto six months earlier to the date of raising the dispute for reference. In
such case, the estimate to be prepared by the Electrical Inspector may not go upt
six months prior to the date of raising the dispute for reference but such
estimate will only cover the period prior to raising the dispute during which, accroding
to the Electrical Inspector, the meter had ceased to be correct.
The
question which, however, arises for decision in these appeals is that although
estimation by the Inspector may be limited to the statutoy period under
Sub-section (6) of Section 26, but if on the basis of the finding of the
Electrical Inspector it is possible to hold that the meter in question had
ceased to be correct from the date even prior to six months from the date of
raising the dispute, whether the licensee is competent to raise revised bills
for consumption of Electricity by the consumer for such earlier period and
consequentially cut the supply of electricity for non payment of revised bills.
Mr. Gupta has contended that within the integrated scheme of the Electricity
Act, the licensee being burdened with the duty to maintain the correct meer
installed by it and coupled with the power to inspect and check the functioning
of such meter from time to time cannot be permitted to raise any revised bill
contrary to the reading by the installed meter beyond the period of 'six
months' as referred to in sub-section (6) of Section 26 i.e. maximum period of
six months prior to the date of raising the dispute. If the licensee has failed
to properly check the functioning of the installed meter and has not changed
the alleged faulty meter or has not raised dispute for reference to the
Electrical Inspector, the licensee cannot but suffer for its inaction under the
scheme of the Indian Electricity Act.
Both
Mr. Sen and Mr. Andherujina, the learned Solicitor General, have disputed such contentionof
Mr. Gupta.
According
to Mr. Sen and Mr. Ahdherujina sub-section (6) of section 26 does not deny the
licensee to claim payment on account of consumption of electricity beyond the
statutory period for which no estimation by the Electrical Inspector has to be
made, if it is established that the meter ceased to be correct even prior to
the said statutory period of six months.
Sub-section
(1) of Section 26 provides that in the absence of any agreement to the countrary,
the mount of energy supplied to a consumer or the electric quantity contained
in the supply, shall be ascertained by means of a correct meter. Sub-sections
(2), (3) and (4) of Section 26 provide for the inter se rights and futies of
the consumer and the licesee to keep the meter and other apparatus necessary
for recording the consumption of electricity by the consumer in good condition
and for such purpose the licensee has been clothed with the power to enter the
premises of the consumer for testing, checking, maintaining ect the meter and
other apparatus and for repairing and altering the same if needed. Explanation
to sub-section (7) of Section 26 provides that 'a meter shall be deemed to be
'correct' if it registers the amount of energy supplied or the electrical
quantity contained in the supply within the prescribed limits of error and a
maximum demand indicator or other appartatus referred to in sub-section (7)
shall be deemed to be correct if it complies with such conditions as may be
prescribed in the case of any indicator of other apparatus." Sub-section
(6) of Section 26 provides that in case of any difference or dispute as to whetehr
any meter referred to in sub-section (1) is or is not correct, the matter shall
be decided upon the application of either party, by Electrical Inspector. It
also provides that on finding that meter ceased to be correct, the Electrical
Inspector has to make an estimate of consumption of electricity during the
statutory period as referred to in sub-section (6) of Section 26. What is the
statutory period for which estimation is to be made by the Electrical Inspector
has already been indicated. Sub-section (6) of Section 26 also provides that
save as aforesaid, namely, estimation of consumption of electricity by the
Electrical Inspector for the statory period, "the register of the meter
shall, in the absence of fraud, be conclusive proof of such amount or
quantity." (emphasis added) On a conjoint reading of various sub-section
of Section 26 of the Electricity Act, it is evident that consumption of
electricity or electrical quantity in the supply, shall be ascertained by means
of a correct meter and the meter and other apparatus for recording the
consumption of electricity by a consumer will be deemed to be correct if the
recording is within the permissible limit of error as prescribed. If a dispute
as to the correctness of the meter is raised by any party for reference, such
dispute can be decided only by the Electrical Inspector and both the licensee
and the consumer has to accept the stimate of supply of electricity to the
consumer as may be determined by the Electrical Inspector for the statutory
period referred to in sub- section (6) of Section 26.
Although
the licensee is clothed with the power to maintain a correct meter installedt
the premises of the consumer and for such purpose can enter the premises of the
consumer and the licensee can also repair or alter the meter and other
electrical apparantus if found defective on checking or testing by the
licensee, but if the dispute as to the correct status of the meter or otehr
electrical apparatus is raised by the licensee or by the consumer by making
reference to the Electrical Inspector under-section (6) of Section 26, then
such dispute can be determined only by the Electrical Inspector and the meter
or apparatus cannot also be changed by the licensee unless the dispute is
resolved by the Electrical Inspector. If there is a dispute as to the proper
functioning of the merer or check meter or other electrical apparatus unders
sub-section (6) of Section 26, the Electrical Inspector upon entering the
reference would determine the dispute as to the proper functioning of the meter
and other electrical apparatus and in the event the Electrical Inspector comes
to the finding that the meter ceased to be correct, he is to determine the
quantum of the electricity consumed during the statutory period referred to in
sub-section (6) but for any other period anterior to the statutory period, the
legislature, in no uncertain term, has indicated in the latter part of
sub-section (6) of Section 26 that reading registered in the disputed meter
will not only be presumed to be correct but such reading shall be conclusive
proof of the quantity of electricity consumed or the amount of electricity
supplied to the consumer provided no fraud has been practised by the consumer.
In appreciating the intention of the legislature, the provision for treating
the recording of the disputed meter to be the conclusive proof of the amount of
quantity supplied to the consumer in the absence of fraud where a dispute is
raised by either of the party about the functioning of the meter, cannot be
overlooked. Sub section (6) has been amended and the legislature has introduced
a conscious departure by deleting the requirement of assessing the quantity of
electricity consumed for the entire period during which the Electrical Inspector
or the competent authority was of the opinion that the meter had ceased to be
correct. In our view, by limiting the period for estimation to be made by the
Electrical Inspector by the amendment of sub-section (6) and further providing
that for the anterior period, in the absence of fraud, the register of the
meter shall be conclusive proof of the supply of the electricity it is quite
evident that even if it transpires that the installed meter ceased to be
correct, then for the period anterior to the statutory period for which the
estimation is not to be mae by the Electrical Inspector, the register of teh
meter about the consumption of the electricity supplied to the consumer shall
be binding between the parties by treating such recording as conclusive proof
of the consumption in the absence of any fraud practised by the consumer. By
the amendment of sub-section (6) the Electrical Inspector has been purposely obsolved
from the duty to determine as to from which point of time beyond the said
statutory period, the meter had cease to function so taht for such entire entire
period, the estimation of the supply of electricity need not be made. Such
amendment of sub-section (60, n our view, only means that beyond the statutory
period, in the event of dispute between the parties as to the proper
functioning of the meter and otehr electrical apparatus, the consumer has
liability to pay the estimated amount indicated by the Electrical Inspector
limiting the estimate upto the statutory period and not beyond that but for the
other anterior period the consumer is required to pay according to the
consumption of electricity registered in the disputed meter provided there is
no fraud practised by the consumer because dispute of such anterior period
remains unresolved by the change introduced by the amendment.
Such
legislative change by the amendment of sub-section 6 of Section 26, in our
view, has been introduced to set at rest any dispute between the licensee and
the consumer about the actual consumption of the quantity of electricity by the
consumer where no fraud has been practised by the consumer for all other period
anterior to statory period for estimation. There is good reason for such
legislative change because is may not be possible to precisely determine
exactly from which point of time the meter ceased to be correct. The scheme
under Electricity Act clearly reveals that a correct meter is to be installed
and such correct meter is to be maintained by the licensee in the premises of
the consumer so that consumptionof electricity is computed on the basis of
reading in the meter. The scheme also reveals that unilateral decision of
either of the parties about the correct status of the meter is not be accepted
by the other party if the other party raises objection as to the status of the
meter. Whenever both parties do not accept a meter to be correct and the
dispute is raised, such dispute is got to be resolved by referring to a
statutory authority under Section 26(6), namely, the Electrical Inspectr.
Within the integrated scheme under Section 26 of the Electricity Act, it is not
possible that even though dispute is raised about the mal functioning of the
meter such dispute will be treated as statutorily resolved for a limited period
in accordance with the amended sub-section (6)of Section 26 but for other
period anterior to the same, the dispute will remain unresolved and claim of
the licensee be open to be challenged. Therefore, simply on the finding that
mere had ceased to be correct by the Electrical Inspector on entering the
reference a licensee may not be justified in contending that a particular meter
had ceased to be correct from a particular point of time even though the
licensee, despite its statutory duty to maintain the correct meter by repairing
or rectifying the defective meter and by replacing it if necessary has failed
to take appropriate step. Both Mr Sen and the learned Solicitor General in
their fairness, have submitted that beyond the statutory period for which no
estimation for the consumption of electricity is to be made by the Electrical
Inspector attaching statutory finality to such estimation, although the
licensee is not precluded from raising revised claim for other period anterior
to the statutory period of estimation but such claim will be open to be challenged
by the consumer. In our view, by the amendment of sub-section (6) of Section
26, the Legistature has intended to put an end of such contest between the
licensee and the consumer and has set at rest of any dispute relating to any
period anterior to the statutory period of estimation by providing that in a casee
of dispute as to functioning of meter, the reading in the meter for the period
beyond the period of statutory estimation, will be final.
As in
none of these appeals, there is any alloegation that the concerned consumer had
paractised fraud or had tampered with the emter or other electrical appartus
provided for recording the supply of electricity to the consumer, the consumer
will be entitled to the statutory protection of correctness of the recording of
the consumption or supply of electricity consumed in the meter/check meter as
conclusive proof of such amount of quantity of electricity consumed for all the
period anterior to statutory period of estiation under SEction 26(6) of the Act
because admittedly there is dispute as to the proper functioning of the meter
and check meter installed at the premises of the consumer.
In the
result, Civil Appeal Nos. 2538 of 1985 and 1571 of 1987 preferred by the
Municipal Corporation of Greater Bombay and Civil Appeal No. 1255 of 1986 are
dismissed without any order as to cost. Civil Appeal Nos. arising out of S.l.P.Nos.
5262-64 of 1992 are allowed by setting aside the common judgment dated February
19, 1992 passed by the Allahabad High Court in three Writ Petitions, namely,
Writ Petition Nos. 10379 of 1988, 16723 of 1988 and 126325 of 1990 and also the
interim order dated March 10, 1992 passed in the Writ Petition No. nil field by
the appellant M/s Belwal Spinning Mills Ltd. in the Allahabad High Court on March
9, 1992. As both the original meter and the check meter installed by the u.P. State
Electricity Board in the premises of the appellant M/s Belwal Spinning Mills LTd.
were
found to be defective by the Electrical Inspector the appellant has the liability
to pay for the estimated amount as determined by the Electrical Inspector under
Section 26(6) of the Electricity Act for the statutory period under Section
26(6) but for the earlier period, the appellant has the liability only to pay
on the basis of reading in the installed meter/check meter in view of the
statutory protection of conclusive proof of consumption of electricity for such
period on the basis of reading in the meter. The respondent U.P. State
Electricity Board will be precluded from raising any demand contrary to the
aforesaid liability of the appellant and consequently will not be entitled to
disconnect the electricity in the premises of the appellant for non-payment for
the consumption of electricity for any period earlier than the statutory period
beyond the quantity registered by the installed meter. It is, however, made
clear that it will be open for the U.P. State Electricity Board to raise bills
and demand payments for the period subsequent to the statutory period and to
take consequential action for non pay ment of bills for such period on the
basis of correct reading in the meter or meters in the light of the finding of
the Electrical Inspector until any new meter is installed. Civil Appeal arising
from SLP Nos 5262- 64 of 1992 are accordingly disposed of without any order as
to costs.
Before
we part, we may indicate that although the licensee has the obligation to keep
the installed meter and other electrical apparatus in proper condition by
resorting to regular checking and testing, repairing etc. but the feasibility
of constant checking, repairing etc. of large number of consumers in the
present day set up may not be a practical proposition. In the teeth of
sub-section (6) of Section 26 as amended, it is quite likely that in many cases,
the licensee may suffer serious prejudice in not being able to realise from the
consumers the revenue for the electricity consumed where even though no fraud
was practised by the consumer, the defect in the meter escaped attention of the
employees of the licensee either for genuine reasons or in a designed manner
thereby bringing an unfortunate situation when the licensee can recover the
estimated amount determined by the Electrical Inspector in a disputed case
limited only to the statutory period but confining the revenue for the entire
anterior period, which may go for years, only on the basis of reading in the
defective meter. Since after amendment of Section 26(6) of the Electricity Act,
the position in law is such, we feel that the proper ligislative amendmnt is
desirable so as to protect the large number of licensees including the
Electricity Boards from suffering huge loss of revenus.
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