Calcutta High Court
C. E. S. C. Ltd. & Anr vs The Appelate Authority on 6 August, 2009
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
WP No. 1591 of 2004
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
C. E. S. C. LTD. & ANR. Petitioner
Versus
THE APPELATE AUTHORITY Respondent BEFORE:
The Hon'ble JUSTICE DEBASISH KAR GUPTA Date : 6th August, 2009.
The Court : Let the affidavit of service be kept on record. None appears on behalf of any of the respondents even after service of notice. The order dated June 23, 2004 passed by the respondent no. 1 is under challenge in this writ application. By the impugned order the adjudication of the respondent no. 2 dated May 14, 2002 was set aside and the claims raised by the petitioner in bills for the months of April 1, 2001 to August 2001 was declared to have no effect.
The facts of this case which are taken into consideration for proper adjudication of the points of law involved in this case are stated below :
In June 1998 a new meter was installed at the 11 & 11A, Mayfair Road, Block-N, Kolkata-700 019. The petitioner raised a bill in the month of May 2001 for that month together with the arrear amounts. The respondent no. 3 2 filed an application under Article 226 of the Constitution of India bearing W.P. No. 2575 of 2001 and the same was disposed of on January 9, 2002 with a direction upon the respondent no. 2 to treat that writ application as an objection against the billing by the petitioner for consumption of electricity by the writ petitioner and the respondent no. 2 was directed to consider and dispose of the same in accordance with law.
Pursuant to the above directions, the Deputy Chief Electrical Inspector , West Bengal, passed an order dated April 1, 2002. Challenging the aforesaid order, the respondent No.3 filed an application under Article 226 of the Constitution of India bearing WP No.713 of 2002 and the same was disposed of on April 12, 2002 with a direction upon the respondent No.2 to consider the grievance of the respondent No.3 afresh in accordance with law. The respondent No.2 passed an order dated May 14, 2002 fixing the liability of the respondent No.3 for payment of electricity charges for the period from June 2, 1998 to August 2, 2001. The respondent No.3 again filed a writ application bearing WP No.1128 of 2002 challenging the aforesaid order of the respondent No.2. The above writ application was disposed of on August 12, 2002 giving liberty to the respondent No.3 to prefer an appeal against 3 the aforesaid order of the respondent No.2. Thereafter, the respondent No.3 preferred an appeal before the respondent No.1 and the same was disposed of on June 23, 2004. The above order is under challenge in this writ application. It is submitted by Mr. Subir Sanyal , learned Advocate for the petitioner, that the respondent No.1 passed the impugned order without jurisdiction. According to Mr. Sanyal, the dispute in between the parties in the instant case related to the assessment of electricity which had been consumed by the respondent No.3. There was no dispute with regard to the condition of the meter. According to Mr. Sanyal, the Chief Electrical Officer was empowered in accordance with the provisions of Sub-section(6) of Section 26 of the Indian Electricity Act, 1910 to take a decision in respect of a dispute regarding the allegation of defect of meter According to Mr. Sanyal , in this case the allegation of defective meter was absent. Therefore, the respondent No.2 at best acted as an Officer of the Court , but not in exercise of power conferred upon him by the provisions of Sub-section(6) of Section 26 of Indian Electricity Act, 1910. According to Mr. Sanyal, the respondent No.1 could act as an appellate authority of an order passed by the respondent No.2 in exercise of the above power. But, in the instant case the order was not passed by the respondent No.2 4 in exercise of the above power. Therefore, the respondent No.1 had no jurisdiction to act.
Mr. Sanyal relies upon the decisions of M.V. Krishnaiah Vs.Government of A.P. reported in AIR 2000, AP
12. Aruna Apartment Flat Owners Association Vs. Calcutta Electric Supply Corporation Limited reported in 1996 (2) CHN 184 and Suresh Jindal VS, BSES Rajdhani Power Limited reported in 1996 (2008) 1 SCC 341.
Having heard the learned Counsel for the petitioner and after taking into consideration the facts and circumstances of this case, I find that admittedly the respondent No.1 acted as an appellate authority of the order passed by the respondent No.2 in exercise of the powers conferred by Sub-Section 2(2) of Section 36 of the Indian Electricity Act, 1910. It is not in dispute that the respondent No.2 passed the order dated May 14, 2002 pursuant to a direction of the Court dated April 12, 2002 given in WP No.713 of 2002. It is also not in dispute that the respondent No.2 decided the objection of the respondent No.3 with regard to the claim of the petitioner for the bills raised towards electricity consumption. There was no dispute with regard to the meter. With regard to the power of the respondent No.2 as conferred by Sub-section (6) of Section 26 the relevant provisions are quoted below: 5
"26. Meters. (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"
After considering the above provisions as also taking into consideration the instant dispute, it appears that the respondent No.2 did not act in the instant case in exercise of the powers conferred by the above provisions of the Indian Electricity Act, 1910. Now the provisions of Sub-section (2) of Section 36 of the Indian Electricity Act are quoted below :
"36. Appointment of Electrical Inspector: (1) The appropriate Government may, by notification in the official Gazette, appoint duly qualified persons to be Electrical Inspectors and every Electrical Inspector so appointed shall exercise the powers and perform the functions of an Electrical Inspector under this Act within such areas or in respect of such class of works and electric installations and subject to such restrictions as the appropriate Government may direct.6
(2) In the absence of express provision to the contrary in this Act, or any rule made thereunder, an appeal shall lie from the decision of an Electrical Inspector to the appropriate Government or if the appropriate Government, by general or special order so directs, to an Advisory Board"
On a plain reading of the above provisions there is no ambiguity. The respondent No.1 could act as an appellate authority in connection with an order passed by the respondent No.2 in exercise of powers conferred under the Indian Electricity Act, 1910. From the facts of this case, it is revealed that the respondent No.2 did not act in his aforesaid capacity, but pursuant to a direction of the Court. Therefore, the respondent No.1 passed the impugned order without jurisdiction in view of the powers conferred upon him by virtue of the provision of Sub-Section (2) of Section 36 of the Indian Electricity Act. Therefore, it was a nullity.
I find substance in the submissions made by Mr. Sanyal that in view of the decision of Aruna Apartment Flat Owners Association (supra) the respondent No.1 could exercise his jurisdiction under Sub-section (6) of Section 26 of the Indian Electricity Act, 1910 in a case of dispute relating to meter. The relevant portions of the above decision are quoted below:
7
"The decision in M.P.E.B. and Ors. vs.Smt. Basanti Bai, AIR 1988 SC 71 is distinguishable on facts. That case related to a dispute as to the correctness of the meter which is to be determined under s. 26(6) of the Indian Electricity Act, 1910 by the Chief Electrical Inspector [vide Clause 16(c) of the Model Conditions of Supply]. The Court held pending the dispute by the Chief Electrical Inspector no claim could be made in respect of the electricity consumed through the defective meter by the licensee."
In view of the above , this writ application succeeds.
The impugned order dated June 23, 2004 passed by the respondent No.1 is quashed and set aside.
There will, however, be no order as to costs. Urgent certified copy of this order be supplied to the parties, if applied for, upon compliance of all requisite formalities.
(DEBASISH KAR GUPTA, J.) M.Sen/CS