Andhra HC (Pre-Telangana)
Durga Rice Mill, Rep. By Its Managing ... vs Andhra Pradesh State Electricity Board ... on 9 August, 2006
Equivalent citations: 2006(6)ALD398, AIR 2007 (NOC) 222 (A.P.), 2007 (2) AJHAR (NOC) 494 (A. P.)
JUDGMENT G. Bhavani Prasad, J.
1. This appeal by the unsuccessful plaintiff in O.S. No. 150 of 1987 on the file of I Additional Subordinate Judge, Kakinada is directed against the dismissal of the suit without costs by the judgment and decree, dated 07-12- 1994.
2. The facts leading to the appeal are that the plaintiff filed the suit against Andhra Pradesh State Electricity Board and its officials alleging that the plaintiff registered partnership firm is a trading mill with trading and milling licences maintaining statutory registers. The rice mill, milling paddy, is a consumer of Andhra Praesh State Electricity Board under service connection No. 18129 since 1984. While relea sing the supply of electricity, the Engineers of the Electricity Board supervised the installation work, checked and fixed a three phased meter and seals on the meter and box on 05-05-1984. Qualified employees of the Electricity Board periodically inspected the meter and box and noted the readings regarding the consumption of electrical energy. The plaintiff was paying the electricity consumption charges as per the bills issued by the Assistant Accounts Officer, Electricity Revenue Office, Kakinada and from 05-5-1984 to 18-7-1986, the plaintiff paid a total sum of Rs. 39,181-30 ps. While so, the Assistant Divisional Engineer, Operation, Kakinada issued a notice in proceedings No. ADE/O/KDA/RC/F/DOC/ No. 40/86-87-D- 1718/86, dated 1-8-1986 stating that on 18-7-1986, the Assistant Divisional Engineer, (D.P.E.), Rajahmundry inspected the plaintiff's service connection and noticed that: (1) the meter when tested with 1 K.W. load, the meter disc was rotating forward in second and third phases and rotating in reverse in first phase, (2) after opening the box and T.C. seals, it was observed that the C.T. primary of R phase is connected reverse resulting in reverse rotation in the R phase, (3) the defective connections were rectified by interchanging the secondary connections at the terminal block of R phase and forward rotation of disc was observed in the first phase, and (4) the above factors indicate that the meter is not recording the actual consumption. It was further stated that the plaintiff has to pay within 15 days the estimated value of energy not recorded by the meter at Rs. 77,432-30 ps., failing which the supply would be disconnected. The plaintiff preferred an appeal before the Superintending Engineer, Operation Circle, Rajahmundry and as per the notice it paid Rs. 44,329-50 ps. in three instalments towards 50% of the amount demanded with surcharge. The Superintending Engineer ultimately confirmed the assessment made by the Assistant Divisional Engineer, Operation and dismissed the appeal in his proceedings TEC H.2 640/87, dated 22- 4-1987. The plaintiff was called upon to pay the balance sum within 30 days and the erroneous orders were passed without any opportunity for the plaintiff to make a representation during the final hearing of the appeal. The meter was not technically tested in MRT laboratory and the Assistant Divisional Engineer, D.P.E. has no jurisdiction to inspect the meter. The methods adopted by him to test the meter were not scientific. The irregular rotation of the meter was not shown to the plaintiff before or after the alleged rectification. The total quantity of paddy bags milled and the number of units consumed for such milling ought to have been considered. The plaintiff was not guilty of any malpractice or pilferage with seals on the meter and the box intact. The alleged reverse rotation in R phase is not admitted and the plaintiff, who was not responsible for any such error, did not derive any benefit. The method of estimating the value of energy is not in accordance with law or rules. The dispute or difference whether the meter is or is not correct shall be decided by the Electrical Inspector under Section 26 of the Indian Electricity Act, who shall estimate the amount of energy consumed up to a maximum period of six months. The plaintiff paid Rs. 44,329-50 ps. under compulsion and is entitled to its refund. Hence, the suit for declaring the notice dated 01-8-1986 to be illegal and invalid and for consequential reliefs of permanent injunction against disconnection of electric supply and refund of Rs. 44,329-50 ps. and costs.
3. The defendants resisted the suit contending that on 18-7-1986 the Assistant Divisional Engineer, (D.P.E.), Rajahmundry inspected service connection No. 18129 and noticed that when the meter was tested with 1 KW load, the meter disc was rotating forward in second and third phases and rotating in reverse in first phase and after the inspection in the presence of the plaintiff, a report was prepared and signatures of the consumer were obtained. After opening the box and T.C. seals, it was observed that C.T. primary R phase is connected reverse resulting in reverse rotation in the R phase. The defect was immediately rectified by inter-changing the secondary connections at the terminal block R phase. Though it was not a case of malpractice, the meter did not record the electricity consumed due to defective connections, and the consumer did not pay for the electricity consumed due to defective connection. The plaintiff has to pay for the units short billed. There is no need for testing the meter in any laboratory, as it was not defective. Section 26 of the Indian Electricity Act has no application, as the meter was correct and not defective and only the connections were wrongly given. The assessment and amount payable were arrived at as per tariff conditions prevailing on 01-8-1986. The suit is bad for want of statutory notice. The plaintiff, who voluntarily paid the amount, is estopped from contending otherwise and the plaintiff cannot retain the benefit due to defective connection and consequent short billing. The suit is barred by time and the Electricity Board is entitled to collect all the dues and charges for units actually consumed. Hence, the suit be dismissed with costs.
4. The trial Court framed the following issues for trial.
1. Whether the plaintiff is entitled for declaration as prayed for?
2. Whether the plaintiff is entitled for permanent injunction as prayed for ?
3. Whether the plaintiff is entitled for recovery of a sum of Rs. 44,329-50 ps.?
4. To what relief ? P.Ws.1 and 2 and D.W.1 were examined during trial and Exs.A.1 to A.20 and B.1 and B.2 were marked.
5. The trial Court in the impugned judgment found that the inspection of the plaintiff's service connection by the Assistant Divisional Engineer, (D.P.E.), Rajahmundry on 18-7-1986 is admitted. It also found that Ex.B.1 inspection notes recorded the rotation of meter disc forward in the second and third phases and in reverse in the first phase. The trial Court also noted the statement of the consumer in which the inspection, observance of irregular rotation of the meter disc forward in two phases and in reverse in one phase, finding wrong connection of wires for the first phase, rectification of the same and resealing of the meter and the box, were specified. The statement recorded in Telugu scribed by P.W.2, the clerk of the plaintiff, and signed by the Managing Partner-P.W.1 was accepted and it was also noted that the plaintiff did not dispute the total number of units recorded by the meter by that time to be 70,393 units. As the short fall in recording was stated by the Engineer with technical competence to be 2/3rd, the trial Court accepted the correctness of the assessment at 1,40,786 units charged at Rs. 0-55 ps. per unit i.e. Rs. 77,432- 30 ps. It also noted that in Ex.A.3 appeal, the plaintiff admitted that whatever differences recorded in the meter may be due to wrong connections carried out by the departmental people only, at the time of installation. The contention that the departmental people helped P.W.1 in preparing Ex.A.3, was not accepted in the absence of proof. Section 26 of the Indian Electricity Act was held inapplicable as the meter was not alleged to be defective and the difference arose only due to wrong connections. The finding in the final order in appeal Ex.A.4 that the assessment of unrecorded consumption is just an arithmetic calculation, was also accepted. The trial Court concluded that the notice dated 01-8-1986 based on the inspection report dated 18-7-1986 was proved to be correct and valid, thereby disentitling the plaintiff to the suit reliefs.
6. Dissatisfied with the consequential dismissal of the suit without costs, the plaintiff preferred the present appeal reiterating the contentions raised in the suit and denying any admissions by the plaintiff or P.W.1. The plaintiff stated that it was liable to pay only Rs. 57,141-56 ps. out of which, it already paid Rs. 39,181-30 ps., leaving a balance of Rs. 17,960-26 ps. The said balance may be deducted from the amount paid by it and the balance be refunded. P.W.1 signed Ex.B.1 inspection report without knowing or understanding its contents, when asked to do so by D.W.1. The entire proceedings are without jurisdiction in view of Section 26 of the Indian Electricity Act under which the Electrical Inspector alone is authorized to decide any defect in the meter, and having approved the connections of the meter at the time of installation, the defendants are estopped from contending otherwise later. Hence, the plaintiff sought for upsetting the judgment in question.
7. Sri M.S. Ramachandra Rao, learned Counsel for the appellant has mainly contended that the entire proceedings in violation of Section 26(6) of the Indian Electricity Act, 1910 are vitiated, and referred to various precedents under the provision. While admitting that the recording of consumption by the meter was defective, for which admittedly the plaintiff was not at fault, the learned Counsel stated that at the worst the plaintiff would be liable to pay only Rs. 17,960-26 ps. calculating the consumption with reference to the paddy milled during the period. The learned Counsel also contended that in any view, back- billing could not have been for a period exceeding six months as limited by Section 26 of the Indian Electricity Act.
8. Sri V. Ajaykumar, learned Counsel for the respondents relied on different set of precedents to argue that Section 26(6) of the Indian Electricity Act has no application, as the meter was correct throughout with the defect being only in the wiring. He justified the manner of assessment and demand. The learned Counsel also contended that the maximum limit of six months for back-billing under Section 26(6) of the Indian Electricity Act also has no application to cases not falling under that provision.
9. The points that arise for consideration in this appeal are: 1. Whether the demand for the value of unbilled but consumed electrical energy by the defendants against the plaintiff is vitiated by violation of Section 26(6) of the Indian Electricity Act, 1910 ? 2. Whether the said demand by the defendants against the plaintiff is otherwise correct, legal and valid ? 3. To what relief ? Point No. 1:
10. The main, if not the sole question canvassed in this appeal is the applicability or otherwise of Section 26(6) of the Indian Electricity Act, 1910 (for short 'the Act') to the facts in issue. The learned Counsel for both parties relied on various precedents hereinafter referred to. Firstly, Section 26(6) of the Act is as under:
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.
11. In M.P.E.B. and Ors. v. Basantibai , the Apex Court was dealing with a supplementary bill issued to the consumer on the basis that the meter was not recording actual energy supplied and consumed, as it was found that one phase out of the three phases was not working and the meter was running two phases only. The Supreme Court held that it is only the dispute as to whether the meter is/is not correct or it is inherently defective or faulty not recording correctly the electricity consumed can be decided by the Electrical Inspector under the provisions of the Act. In that case, it was found that there is, undoubtedly, a dispute as to whether the meter in question is a correct one or a faulty meter, as the report of the Assistant Engineer of the Electricity Board was that one phase of the meter was not working at all and hence, that dispute has to be decided by the Electrical Inspector, whose decision will be final. The Supreme Court referred to Gadag Betgiri, Municipal Borough, Gadag v. Electrical Inspector, Govt. of Mysore AIR 1962 MYSORE 209, wherein the scope of the limited adjudication which an Electrical Inspector functioning under Sub-section (6) may make, was considered and it was held that the only question into which the Inspector or other authority functioning under that sub-section might investigate is, whether the meter is a false meter capable of improper use or whether it registers correctly and accurately the quantity of electrical energy passing through it. It was pointed out in that case that where the meter was admitted to be correct and the supply lines were so manipulated that more energy than what was consumed by the consumer was allowed to pass through the meter, it would not render the meter, which was otherwise correct, an incorrect meter. The Supreme Court also noted the decision in M.P. Electricity Board v. Chhaganlal , wherein it was held that where an electric meter is not registering correct consumption of energy not because there is any defect in the meter but because the wiring is defective, Section 26(6) will not be attracted and the meter not being defective, the question of arbitration by Electrical Inspector will not also arise. The Supreme Court did not accept the contrary view taken in Abdul Razak v. M.P. Electricity Board 1982 MPLJ (Notes) (37) page 22, wherein it was held that about the fittings on the meter and tampering them in such a manner that the reading of the energy would not be correct, such a dispute squarely falls within the jurisdiction of the Electrical Inspector. The Supreme Court approved the decisions in Gadag Betgiri (2 supra) and Chhaganlal (3 supra) holding that the dispute whether a meter is correct or faulty would come under Section 26(6) of the Act and not the dispute regarding tampering of meter. Hence, it is clear that the Supreme Court laid down that it is only the dispute as to whether the meter is/is not correct or it is inherently defective or faulty, can be decided by the Electrical Inspector and not a dispute where the meter was correct and not inherently defective or faulty, but the incorrect recording of consumption of energy was due to manipulation of supply lines or defective wiring or tampering of meter.
12. In The Superintending Engineer, Tamil Nadu Electricity Board v. Uchappa Gounder 1993 (2) MLJ 287, the meter, even at the time of installation was defective, the consequence of which was that the meter ran in reverse direction, thereby not recording 2/3rd of the electrical energy consumed, though there was no fraud or tampering by the consumer. The Electricity Board itself seizing power from guidelines and administrative instructions issued, found the defect in the meter and made the questioned demand without any opportunity to the consumer. After referring to Basantibai's case (1 supra), it was held that an administrative instruction or guideline cannot override the statutory provisions and even the quantification of the amount for actual consumption of energy not in excess of six months even by the Electrical Inspector, has to be after an opportunity is provided to the consumer. The finding of the Courts below about the applicability of Section 26(6) to the dispute about the meter which was defective even at the time of installation, was hence upheld.
13. In Klayman Procelains Ltd., v. Superintending Engineer , the Full Bench of this Court held that the provisions of 1910 Act must be read reasonably having regard to the fact that it safeguards the interests of both the consumer and the licensee. The licensee exercises monopoly, and statutory provisions safeguarding the interests of the consumer where the licensee can act arbitrarily, by providing for an independent forum, must be liberally construed. The Full Bench pointed out that normally an inspection of meter should be a joint inspection and Basantibai's case (1 supra), etc., were referred to. After exhaustive consideration, the Full Bench concluded that Section 26(6) of the Act will have no application, where the issue is as to whether the consumer has committed fraud and/or indulged in pilferage of electrical energy, and in a case where fraud is not alleged and the issue merely centres round as to whether the meter is correct or not, Section 26(6) of the Act shall apply. It was also pointed out that the words 'in the absence of an agreement to the contrary' in Section 26(1) cannot control the right of the parties in getting the disputes referred to an Electrical Inspector under Section 26(6) and it is a different question whether a party has waived his right which will depend upon the facts and circumstances of each case.
14. In Bombay Electricity Supply & Transport Undertaking v. Laffans (India) (P) Ltd. , the Supreme Court referred to Section 26 of the Act and Rule 57 of the Electricity Rules, 1956 and the earlier decisions in Basantibai (1 supra), etc., and stated even at the out set that the applicability of Section 26(6) 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. It was noted that in Basantibai's case (1 supra) 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, but not to cases of tampering with the meter or manipulating the supply line or breaking the body seal of the meter resulting in non-registering the amount of energy supplied to the consumer or the electrical quantity contained in the supply. It was noted that in J.M.D. Alloys Ltd. v. Bihar State Electricity Board , a similar view was taken. The dictionary meaning of the word "correct" was referred to as "adhering or conforming to an approved or conventional standard; conforming to or agreeing with fact; accurate" and it was explained that 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. The Supreme Court also referred to Belwal Spg. Mills Ltd. v. U.P. State Electricity Board , in which it was held that any difference or dispute arising between the licensee and the consumer, as to whether any meter has recorded or is recording correct reading or not, can be raised and referred for decision by an Electrical Inspector and that the estimate of the Electrical Inspector may go only up to six months prior to the date of raising the dispute. The Supreme Court also pointed out that the purpose of the Proviso to Sub-section (4) of Section 26 prohibiting removal of a meter as to which difference or dispute of the nature described in Sub-section (6) had arisen until the matter has been determined by the Electrical Inspector is to preserve the evidence for the period for which the meter is said to be incorrect. The Supreme Court held the right to raise additional bills to have been lost by the licensee for its failure to proceed in accordance with Section 26(6) of the Act.
15. In Khurshed Sorabji Cooper v. Bombay Electric Supply and Transport Undertaking , the functioning of the meter was found to be defective, due to which it could not register the proper quantum of electrical energy passing through it and a supplementary bill was raised against the consumer. Basantibai's case (1 supra) was referred to as on identical facts and it was held that the licensee itself deciding that the meter had ceased to be correct and estimating the quantity supplied for a period of 31/2 years and raising a supplementary demand without any fraud by the consumer, is not contemplated by Section 26, as the power of deciding whether any meter referred to in Sub-section (1) is correct or not, has been vested exclusively in the Electrical Inspector.
16. In Ashok Textiles v. Gujarat Electricity Board , the meter was found on inspection and testing to be defective and running slow by 50% to 75% on which a supplementary bill was issued to the consumer. It was held that whenever dispute is pending regarding slow running of the meter or for improper functioning of the meter, the authority competent to decide such dispute is the Electrical Inspector. The absence of any objection at the time of inspection cannot be a valid ground for depriving the consumer of legitimately raising a dispute for making reference to the Electrical Inspector.
17. In Harish Minerals Supply Company v. M.P. Electricity Board 2002 (4) MPHT 530, the meter was running slow because of dust and a supplementary bill was raised without referring the matter to the Electrical Inspector. The dispute was held to be within the jurisdiction of the Electrical Inspector and the bill raised was held to be incompetent.
18. In Bharat Rubber Regenerating Co. Ltd., v. Bihar State Electricity Board , after inspection and test report, the meter was removed because of some defect in it and a supplementary bill was raised against the consumer on the ground that the meter was defective and was running slowly. It was held that merely because the meter alleged to be defective was sent to National Physical Laboratory, New Delhi with the consent of the consumer, that cannot be ground to raise the supplementary bill without determining the amount and without giving opportunity of hearing to the consumer and without complying with Section 26(6) of the Act.
19. In K.R. Industrial Projects Pvt. Ltd., v. Bihar State Electricity Board , the meter was stated to be giving absurd reading and to be defective culminating in a bill against the consumer and referring to Basantibai's case (1 supra), etc., it was held that once a dispute came into existence, the Board itself cannot say that the meter may be declared defective and the matter should have been referred to the Electrical Inspector by the Board itself.
20. In Southern India Marine Products Co. v. K.S.E.B. 1995 (2) KLT 167, three cases were under consideration. In the first case, 'B' phase of the power meter was seen reversely rotating due to wrong connection of the C.T. and tamper proof box was not provided, which defects were not disputed by the consumer. In the second case, the meter was not indicating the consumption correctly due to wrong connection in the metering set. The fact of defective wiring in the metering set was pointed out in the Mahazar prepared by the Assistant Engineer, which was witnessed by one of the representatives of the firm. In the third case, the current circuit of one of the C.Ts. was connected wrongly due to which the meter was recording only 1/3rd of the actual consumption. The Regional Electrical Inspector, to whom the consumer preferred a petition under Section 26(6), concluded that there was every possibility of a wrong connection of C.Ts. to the meter and the meter was incorrect at the time of inspection and he restricted the claim for the fault to six months. The Government set aside the order in appeal holding that the Regional Electrical Inspector has no jurisdiction in the matter since admittedly the meter registering electrical energy was in perfect condition and it was only due to the fault in the wiring the total energy that was consumed did not pass through the meter. The Division Bench of Kerala High Court noted that in all the three matters, on inspection, it was noticed that the meters installed in the respective premises were not functioning due to wrong connection or wiring and therefore, the energy that was consumed was not correctly recorded, and considered the question whether a defect in the wiring or wrong connection can be treated as a defect of the meter. It was noted that the meters were capable of registering the amount of energy supplied, but could not register the amount of energy supplied due to the fact that the wiring given to the meter was not properly made. It was observed that "therefore, there is no question of dispute as to the correctness of the meter. But it is only due to the wrong connection to the meter which has resulted in the meter not registering the quantity supplied to the consumer. It is a human error or omission either knowingly or not in properly connecting the meter. It is not disputed in all these cases that there was wrong connection of the wire to the meter which resulted in the meter rotating in reverse direction, showing only a lesser percentage of the actual consumption." It was further observed that "it cannot be the intention of the legislature to refer 'disputes' the moment the meter was not recording properly. It should be seen, verified and decided that there is no manipulation, tampering or fraud with the wiring or connection to the meter. It is quite possible that meter could be made to go wrong or go wrong on its own due to accidental or mistaken connection to the meter. So long as there is no defect in the meter itself no question arises whether the meter is correct or not. Therefore, there is no scope for invoking Sub-section (6) of Section 26 of the Indian Electricity Act so as to decide as to whether the meter is correct or not." The earlier Division Bench decision in M.C. Mammen v. K.S.E.B. 1995 (1) KLJ 48, in which it was held that in a case where an electrical meter is not registering correct consumption of energy on account of the defectiveness in the wiring, Section 26(6) cannot be attracted and it can be attracted only in a case where the meter is defective, was referred to with approval. Basantibai's case (1 supra) in which Gadag Betgiri's case (2 supra) and Chhaganlal's case (3 supra) were approved and the contrary view was reversed, was referred to. The Division Bench disagreed with the decision in Sri Krishna Rajendra Mills Ltd. v. Chairman, K.E.B., Bangalore and distinguished some other decisions cited. Punjab State Electricity Board v. Bassi Cold Storage, Khara was also referred to and it was pointed out that there is no scope for referring to the Electrical Inspector when there is defect in the wiring and the reference can only be in case where the meter itself was defective. Incidentally it was also held that the relationship between the consumer and the Board is governed by the terms and conditions of the supply of electrical energy and therefore, there is no question of limitation with reference to the arrears due and the Board has not put up a claim in a civil Court so as to plead the bar of limitation. In the Civil Court Manual, (Central Acts), Volume XVII, Twelfth Edition (1994) (MLJ Office) at page 706 the decision reported in ILR (1990 Karnataka 615) ILR was referred to, wherein it was held that it is only the slow recording by a meter due to mechanical defect therein, which attracts Section 26(6); slow recording due to other reasons not relating to such defect is not covered thereunder. At page 707 of the same book, the decision reported in AIR 1988 ALLAHABAD 820 was referred to, wherein it was held that the consumer could have no complaint where he voluntarily approached the Board for payment of dues in instalments without disputing either his liability or correctness of the amount demanded. At page 709 of the same book, the decision was referred to, wherein it was held that the restriction of six months did not apply to the licensee's claim where additional amounts for an eleven-year period were claimed not due to a faulty meter but because the meter reading was not multiplied by 2.
21. Thus, right from Basantibai's case (1 supra), the leading decision, accepted and adopted up to date in interpretation of Section 26(6) of the Act, it was uniformly held that faulty or defective or improper functioning of the meter leading to incorrect recording of consumption of energy falls within the limited adjudication by the Electrical Inspector under Section 26(6) of the Act determining the dispute as to whether the meter is or is not correct and estimating the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months. If there is an allegation of fraud in tampering with the meter or manipulating the supply line or breaking the body seal of the meter, such a dispute will not fall within the purview of Section 26(6) of the Act. Similarly, where an electric meter is not registering correct consumption of energy not due to any defect in the meter but due to the defect in wiring due to wrong connection or wrong wiring, Section 26(6) will not apply. As held by Full Bench in Klayman Procelains Ltd.'s case (6 supra), Section 26(6) shall apply only when the issue merely centers round as to whether the meter is correct or not, but not when the meter was correct and the incorrect reading was due to defective wiring or other situations stated above. This is the purport and effect of Basantibai's case (1 supra) and all other judicial pronouncements referred to above. The contention of the learned Counsel for the appellant that Southern India Marine Products Company's case (15 supra) conflicts with Bombay Electricity Supply and Transport Undertaking's case (7 supra) will be a search for a conflict where there is none. The Supreme Court adopted Basantibai's case (1 supra) and J.M.D. Alloys Ltd.'s case (8 supra) and Basantibai's case (1 supra) specifically segregated situations in which incorrect recording of consumption by the meter can be due to either intrinsic incorrectness of the meter itself or extrinsic intervention in a correct meter. The dictionary meaning of the word "correct" referred by the Supreme Court and its interpretation of the scope of Section 26(6) as being applicable to a running meter, running slow or fast on account of some technical defect, make it obvious that a technical defect leading to variation in recording beyond the prescribed limits of error, makes the meter not adhere or conform to or agree with the standard or fact and hence, inaccurate, which contingency alone attracts Section 26(6). If Section 26(6) were intended to provide an omnibus remedy for every incorrect recording of consumption by the meter, it would not have been so carefully qualified in its language and meticulously restricted in its operation. Basantibai's case (1 supra) followed in Bombay Electricity Supply and Transport Undertaking (7 supra), thus, makes it clear that the view taken in Southern India Marine Products Company's case (15 supra) represents the correct state of law. Any difference or dispute arising in this regard is a precondition for the applicability of Section 26(6) and the restriction of back-billing to six months applies only for the determination under Section 26(6) but not otherwise, except as may be provided by any provision or principle of law. As such, the facts of the present case need to be analysed understanding the expression "meter is correct" as meaning "no fault or defect in the meter". Notwithstanding the coming into force of the Electricity Act, 2003, in the light of Section 185 of the Electricity Act, 2003 read with Section 6 of General Clauses Act, 1897, the rights and obligations of the parties to the present dispute are governed by law as it stood prior to the Electricity Act, 2003 coming into force.
22. Ex.B.1 inspection report of D.W.1 dated 18-7-1986 contained the statement in Telugu, which was scribed by P.W.2 and signed by P.W.1. While the managing partner of the plaintiff as P.W.1 admitted his signature on the statement, P.W.2 the clerk of the plaintiff did not dispute his being the scribe of Ex.B.1. Ex.B.1 was explicit and clear that the engineers inspected the mill and tested the meter with 1 K.W. bulb and found that the first phase was rotating in reverse, while the second and third phases were rotating forward. The statement further mentioned about the meter and the box having seals and the connections of the meter being verified. It was further specifically stated that the wires were wrongly connected for the first phase and that after rectification of the connections they were shown the forward rotation of the meter in all the three phases. It was also stated that after inspection, seals were put to the meter, C.T. box and outer cover. The inspection report prepared by D.W.1 also stated the same facts. The inspection by D.W.1 was admitted by P.W.1 and admittedly he did not protest against obtaining the signature on Telugu statement though the purpose and contents of the said statement were allegedly not made known to him. While the preparation of the notes of inspection was not denied, the claim that D.W.1 did not show the incorrect movement of the meter or wrong connections or their rectification or the correct running of meter thereafter to P.W.1, does not inspire confidence. When admittedly, the inspection took place in the presence of P.Ws.1 and 2, and D.W.1 was cautious and careful enough to record the notes of inspection on his part and also obtain a statement in Telugu scribed by P.W.2 and signed by P.W.1, there could have been no reason to commit the lapse of not informing or showing the defect and its correction to P.Ws.1 and 2. The evidence on record is oath against oath by P.W.1 and D.W.1. The contents of the admitted documents run counter to the interested assertions of P.W.1. On Ex.B.2 letter dated 21-7-1986 addressed by D.W.1 to the Assistant Divisional Engineer, Operation, Kakinada, Ex.A.2 notice was sent by him to the plaintiff making the demand in question, and in Ex.A.3 appeal by the plaintiff, the plaintiff specifically stated that whatever differences were recorded by the meter may be due to wrong connections carried out by the departmental people only, at the time of installation and admittedly there was no malpractice by them. The claim of P.W.1 that the departmental people helped him in preparing Ex.A.3 is uncorroborated by any other independent evidence or circumstances. When it is not proved that the admissions made in Ex.A.3 were obtained by the departmental people from him, the contents of Ex.A.3 may be taken as corroborating the claim in Ex.A.1 that the incorrect recording by meter was due to wrong connections and that P.W.1 was made aware of the same but for which, he would not have made such a mention in Ex.A.3. D.W.1 in his evidence was consistent with the contents of Exs.B.1 and B.2 and other documents and is interested in the case of the defendants only in his official capacity and was not alleged to be having any personal interest in contrast with P.W.1's personal interest in the matter. Therefore, it has to be firstly concluded that during the inspection by D.W.1 on 18-7-1986, the meter was found to be rotating forward in phases 2 and 3 and rotating in reverse in phase 1 due to wrong connections to the first phase which were rectified in the presence and to the knowledge of P.W.1.
23. The plaintiff tried to further claim with reference to paddy milled in the mill during the relevant period that at the rate of 0-98 unit per bag of paddy milled, the total consumption could have been only 1,06,000 and odd units of the value of Rs. 57,141-56 ps. The plaintiff's payment of Rs. 39,181-30 ps. for the relevant period is not disputed and hence, the plaintiff claimed the balance due to be only Rs. 17,960-26 ps. Obviously, the plaintiff calculated the probable consumption on the basis of each bag of paddy being milled only once, but P.W.2 admitted that to get good polish for the rice which was supplied to private parties, they used to mill the paddy twice, while the rice supplied to Food Corporation of India was after milling the paddy only once. He gave some details of the quantum of paddy milled for private parties, but there is no conclusive calculation of the total amount of paddy milled for private parties during the entire period to know the probable consumption of electrical energy for the second milling of such paddy even at the rate claimed by the plaintiff. This admission of P.W.2 itself may probablise that the actual consumption of electrical energy by the plaintiff during the relevant period would have been significantly higher than that attempted to be admitted by him. The plaintiff did not question the fact that the total number of units recorded by the meter since inception up to date of inspection was 70,393 or charging the value of energy at Rs. 0-55 paise per unit. The claim of the defendants in the evidence of D.W.1 and the documents is that technically when one phase is rotating in reverse direction due to reverse connection, the net recording of consumption is only 1/3rd of the actual consumption and the short fall is 2/3rds. The calculation of the value of electrical energy utilized but unrecorded and unbilled was accordingly arrived at Rs. 77,432-30 ps. The technical knowledge and expertise of D.W.1 and his assertion about the short fall in recording at 2/3rds in the event of reverse rotation of one phase due to wrong connections were not specifically denied and no evidence of any other technical person was adduced by the plaintiff to contradict the claim of D.W.1. If so, the estimate of the value of the unbilled but utilized electrical energy by the plaintiff cannot be considered incorrect or improbable.
24. It is true that if it were a determination under Section 26(6) of the Act, the maximum period of back-billing could have been six months. But no such restriction is shown to have been imposed by any provision or principle of law in relation to back-billing for causes beyond the scope of Section 26(6). The period in question is from 05-5-1984 to 18-7-1986 for which a demand was made by 01-8-1986 and the appeal against the same was dismissed on 22-4-1987. While a suit for recovery of such sum of money would not have been barred even by the date of the final orders dismissing the appeal, the defendants did not file any suit to compute any such period of limitation. The payment of Rs. 44,329-50 ps. in total from time to time as against the demand for Rs. 77,432-30 ps. is admitted and evidenced by documents. This Court in its orders in C.M.P. No. 5757 of 1995, dated 17-4-1995 granted interim stay of disconnection of electric supply to the plaintiff by the defendants pending this appeal subject to the condition of deposit of Rs. 25,000/- by the plaintiff within six weeks, and if such deposit was made, the defendants will be entitled to withdraw the same, if they have not already withdrawn such sum. The plaintiff will be liable to pay the balance of the amount demanded. The absence of jurisdiction for D.W.1 to inspect the meter or the unscientific test or method adopted by the defendants or the necessity to have the meter technically tested in MRT Lab or the violation of any principles of natural justice in the disposal of the appeal by the second defendant or any incorrectness in the calculation of the amount due, were not shown to vitiate the claim of the defendants under any principle or provision and it is also a moot question whether the plaintiff can stall the defendants from enforcing their demand by challenging only the notice of third defendant dated 01-8-1986 without challenging the decision of second defendant in the appeal against such notice. The contention of the defendants that the Civil Court has no jurisdiction and the suit is bad for want of statutory notice and is barred by time, was also not shown to be sustainable. Therefore, the conclusions of fact arrived at by the trial Court are based on cogent reasons deducible from the evidence on record.
25. The meter in question had no fault or defect and was capable of recording the consumption of electrical energy correctly. It was only the wrong wiring or wrong connections for the first phase that resulted in the meter rotating in reverse for the first phase and rotating forward for phases 2 and 3. Such incorrect recording of consumption due to wrong wiring or wrong connections is outside the scope of Section 26(6) of the Act. There was nothing irregular or illegal in the manner of making the impugned demand by the defendants. The assessment of the quantum was also on a reasonable and explicable basis. The plaintiff is, therefore, not entitled to any relief and the judgment and decree of the trial Court cannot be interfered with. However, as this was not a case of malpractice or fraud by the plaintiff, the parties can be directed to bear their own costs in this appeal like in the suit.
26. In the result, the appeal is dismissed without costs.