Sub
Divisional Officer (P), Uhbvnl Vs. Dharam Pal [2006] Insc 803 (15 November 2006)
Arijit
Pasayat & Lokeshwar Singh Panta
(Arising
Out of S.L.P.(C) No. 20653 of 2004) ARIJIT PASAYAT, J.
Leave
granted.
Challenge
in this appeal is to the order passed by the National Consumer Disputes Redressal
Commission, New Delhi (in short the 'Commission'). By the
impugned order, the Commission dismissed the revision petition filed in terms
of Section 2l of the Consumer Protection Act, 1986 (in short the 'Act').
Background
facts in a nutshell are as follows:
The
respondent is a consumer of electricity and a meter was installed by the
appellant at his factory premises. An inspection was done on 04.07.2000. The
Inspecting staff found that there was tampering with the meter and, therefore,
a demand of Rs.1,07,326/- was made purporting to be charges payable for actual
consumption of energy.
Questioning
the demand, a complaint was filed before the District Consumer Disputes Redressal
Forum, Yamuna Nagar, Jagadhiri, Haryana (in short 'District Forum').
The
basic stand of the respondent as complainant was that prior to the inspection,
on 02.07.2000 there was a sparking in the C.T. Box installed at his factory
premises and the complainant immediately informed the appellant and requested
for rectification of the defect. The complainant had also given a letter dated
2.7.2000 to the department in this behalf and since the meter was defective the
appellant should have rectified the meter. Instead of doing that, the demand
was raised for alleged tampering with the meter. With reference to the
inspection report it was averred that the seals were found intact and,
therefore, there was no question of any tampering. It was, therefore, prayed
that reference should be made to the Electrical Inspector for action in terms
of Section 26(6) of the Indian Electricity Act, 1910 (in short 'the Act'). It
was further submitted that notice was to be given before raising of demand.
This was stated to be in line with principles of natural justice and statutory
prescriptions. The said prayer was rejected by the present appellant taking the
stand that in case of tampering there was no question of any reference to the
Electrical Inspector. The District Forum found substance in the complaint filed
by the respondent and held that the demand was illegal and instead reference
ought to have been made in terms of Section 26(6) of the Act.
An
apneal was filed by the appellant herein before the State Consumer Disputes Redressal
Commission, Chandigarh (in short the 'State Commission').
The appeal under Section 15 of the Act was dismissed by the State Commission
holding that the direction given by the District Forum was in order and action
in terms of Section 26(6) of the Act was required to be taken. A revision was
filed before the Commission which, as noted above, has been dismissed holding
that proper direction has been given by the District Forum which was upheld by
the State Commission.
In
support of the appeal, learned counsel for the appellant submitted that in case
of tampering there was no scope for reference to the Electrical Inspector in
terms of Section 26(6). Notice is to be given only when there is a default in
payment of the demand raised and in cases of this nature, no notice is
required.
Learned
counsel for the respondent on the other hand submitted that this is not a case
of tampering. The respondent had, two days prior to the inspection, requested
the authorities to verify the meter as the same was defective.
Instead
of rectifying the meter, and a reference under Section 26(6) to the Electrical
Inspector, arbitrarily the demand has been raised. Before raising the demand,
no notice was issued to the respondent which is in clear violation of the
principles of natural justice. As the respondent was denied opportunity of
placing his stand before the demand was raised, the same cannot be maintained
being in violation of the principles of natural justice.
Question
as to when action in terms of Section 26(6) of the Act is to be taken has been
considered by this Court in many cases. (See Bombay Electricity Supply and Transport Undertaking v. Laffans (India) (P) Ltd. & Anr. (2005 (4) 5CC
327). Section 26(6) of the Act and Rule 57 of Indian Electricity Rules, 1956
(in short 'Electricity Rules') read as follows:
"5.
The relevant parts of Section 26 of the Indian Electricity Act, 1910 and Rule
57 of the Indian Electricity Rules, relevant for the purpose of this judgment,
are reproduced hereunder:- The Indian Electricity Act, 1910 "26. Meters.-
(1) In
the absence of an agreement to the contrary, 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:
Provided
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) xxx
xxx xxx
(3) xxx
xxx xxx
(4)
The licensee or any person duly authorized 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 so hired as aforesaid, all reasonable expenses of, and
incidental to, such inspecting, testing, taking off 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:
Provided
that the licensee shall not be at liberty to take off or remove any such meter
if any difference or dispute of the nature described in sub- section (6) has
arisen until the matter has been determined as therein provided.
(5) xxx
xxx xxx
(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 applies 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)
xxx xxx xxx 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."
Indian
Electricity Rules, 1956 "57. Meters, maximum demand indicators and other
apparatus on consumer's premises.
- (1)
Any meter or maximum demand indicator or other apparatus, placed upon a
consumer's premises in accordance with Section 26 shall be of appropriate
capacity and shall be deemed to be correct if its limits of error are within
the limits specified in the relevant Indian Standard Specifications and where
no such specification exits, 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 loads
and up to full load:
Provided
that for extra high voltage consumers the limit or error shall be 1 1 per cent.
(2) No
meter shall register at no load.
(3)
Every supplier shall provide and maintain in proper condition such suitable
apparatus as may be prescribed or approved by the Inspector for the
examination, testing and regulation of meters used or intended to be used in
connection with the supply of energy:
Provided
that the supplier may with the approval of the Inspector and shall, if required
by the Inspector, enter into a joint arrangement with any other supplier for
the purpose aforesaid.
(4)
Every supplier shall examine, test and regulate all meters, maximum demand indicators
and other apparatus for ascertaining the amount of energy supplied before their
first installation at the consumer's premises and at such other intervals as
may be directed by the State Government in this behalf.
(5)
Every supplier shall maintain a register of meters showing the date of the last
test, the error recorded at the time of the test, the limit of accuracy after
adjustment and final test, the date of installation, withdrawal, re-
installation, etc. for the examination of the Inspector or his authorized
representative.
(6)
Where the supplier has failed to examine, test and regulate the meters and keep
records thereof as aforesaid, the Inspector may cause such meters to be tested
and sealed at the cost of the owner of the meters in case these are found
defective."
6. The
above-said provisions have been the subject-matter of consideration by this
Court in three cases which have been brought to our notice. They are M.P.
Electricity Board v. Basantibai (1988 (1) SCC 23), Belwal Spinning Mills Ltd.
and Ors. v. U.P. State Electricity Board and Anr. (1997 (6) SCC 740) and J.M.D.
Alloys Ltd. v. Bihar State Electricity Board (2003 (5) SCC 226). The first and the
last of the cases are decisions by three learned Judges and the second one is a
decision by two learned Judges. We have carefully perused the three decisions
and we find ourselves in entire agreement with the view of the law taken in
these cases. In particular, in Belwal Spinning Mills's case, this Court has
examined the provisions of Section 26, specially sub-section (6) thereof, in
very many details, also taking into consideration the legislative intention and
the object sought to be achieved by substituting sub-section (6) by Act 32 of
1959 in its present form over the predecessor provision.
We
would be referring to the relevant findings of law recorded in these cases.
However, at the outset and here itself, we would like to mention that the
applicability of sub-section (6) of Section 26 is attracted only when the meter
is not correct. Section 26(6) will have no applicability
(i) if
the consumer is found to have committed a fraud with the licensee and thereby
illegally extracted the supply of energy preventing or avoiding its recording,
or
(ii)
has resorted to a trick or device whereby also the electricity is consumed by
the consumer without being recorded by the meter. In effect the latter class of
cases would also be one of fraud. Tampering with the meter or manipulating the
supply line or breaking the body seal of the meter resulting in non-registering
of the amount of energy supplied to the consumer or the electrical quantity
contained in the supply - are the cases which were held to be not covered by
Section 26(6) in the case of Basantibai (supra), while the provision was held
applicable to any case of meter being faulty due to some defect and not
registering the actual consumption of electrical energy. Similar is the view
taken in the case of J.M.D. Alloys Ltd. (supra).
7.
What is a correct meter? The language of sub-section (6) of Section 26 starts
with - "where any difference or dispute arises as to whether any meter
referred to in sub-section (1) is or is not correct...". The dictionary
meaning of the word "correct" is: Adhering or conforming to an
approved or conventional standard; Conforming to or agreeing with fact;
Accurate.
8. As
to what would be a "correct" meter, there is sufficient indication in
the Act and the Indian Electricity Rules, 1956 in the explanation given at the
end of sub-section (7) of Section 26 of the Act and sub-rules (1) and (2) of
Rule 57, quoted hereinabove. Where the meter is completely non-functional on
account of any fault or having been burnt, it will not register the supply of
energy at all.
Since
a burnt meter does not record any supply of energy, it virtually means "no
meter".
9.
What is contemplated by Section 26(6) is a running meter, but which on account
of some technical defect registers the amount of energy supplied or the
electrical quantity contained in the supply beyond the prescribed limits of
error. It contemplates a meter which is either running slow or fast with the
result that it does not register the correct amount of energy supplied. There
is an additional reason for coming to such a conclusion. Section 26(6) confers
power upon the Electrical Inspector to estimate the amount of 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. Where the meter is running slow or fast, it will
be possible for the Electrical Inspector to estimate the amount of energy
supplied to the consumer by determining the extent or percentage of error in
recording the supply, whether plus or minus. However, where the meter is burnt
or is completely non- functional, such an exercise is not at all possible.
Therefore, Section 26(6) can have no application in a case where a meter has
become completely non-functional on account of any reason whatsoever." In
State of W.B. and Ors. v. Rupa Ice Factory (P)
Ltd. and Ors. (2004 (10) 5CC 635) it was observed as follows:
"5.
As regards the second claim, namely, the claim for the period from December
1993 to December 1995, the finding of the High Court is that the a Vigilance Squad
had found that Respondent 1 had tapped the electric energy directly from the
transformer to the LT distribution board bypassing the meter circuit. If that
is so, we do not know as to why the High Court would go on to advert to Section
26 of the Electricity Act and direct reference to the Electrical Inspector for
decision under Section 26(6). In two decisions of this Court in M.P Electricity
Board v. Basaniibai and J.M.D. Alloys Ltd. v. Bihar SEB it has been held that
in cases of tampering or theft or pilferage of electricity, the demand raised
falls outside the scope of Section 26 of the Electricity Act. If that is so,
neither the limitation period mentioned in Section 26 of the Electricity Act
nor the procedure for raising demand for electricity consumed would arise at
all, In this view of the matter, that part of the order of the Division Bench
of the High Court, directing that there should be a reference to the Electrical
Inspector, shall stand set aside. In other respects the order of the High Court
shall remain undisturbed. The appeal is allowed accordingly."
Though
strong reliance was placed by learned counsel for the respondent on a decision
in M.P.E.B. & Ors. v. Smt. Basantibai (AIR 1988 SC 71) more particularly,
paragraph 13 thereof, a bare reading of the decision shows that the same did
not relate to a case of tampering and, therefore, has no application to the
present case.
Above
being the position, the District Forum, State Commission and the Commission
were not justified in holding that a reference in terms of Section 26(6) of the
Act was called for. The orders passed by these authorities are quashed.
The
appeal is allowed but without any order as to costs.
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