Madhya Pradesh High Court
Harish Minerals Supply Company vs M.P. Electricity Board on 23 August, 2002
Equivalent citations: 2002(4)MPHT530, AIR 2003 MADHYA PRADESH 79, (2002) 4 MPLJ 565, (2003) 1 RECCIVR 497, (2002) 4 MPHT 530, (2003) 4 ALLINDCAS 530 (MP)
ORDER K.K. Lahoti, J.
1. This appeal is directed against the judgment and decree passed by Third Additional Judge to the Court of District Judge, Satna, in Civil Appeal No. 3-B of 1988 decided on 18th December, 1990 by which the suit filed by the appellant was dismissed as not maintainable under Section 26 of Indian Electricity Act, 1910.
2. Short facts of the case are that the plaintiff is a consumer of respondent-Electricity Board, having electricity connection. By the suit plaintiff challenged the recovery of an amount of Rs. 4090.83 which defendant had raised on the plaintiff on 8-5-1980. The above said suit was filed under Section 5(2) of M.P. Government Electrical Undertakings (Dues Recovery) Act, 1961 after depositing the amount of bill, the above said section reads as under :--
"5 (2). "A suit referred to in Sub-section (1) may be instituted in a Civil Court of competent jurisdiction at any time within six months from the date of deposit with the prescribed authority and subject to the result of such suit, the notice of demand shall be conclusive proof of the various dues, penalty and costs mentioned therein."
3. The above suit was contested by the respondent on various grounds including maintainability of the suit. The Trial Court after framing of issues and recording the evidence decreed the suit holding that the suit is maintainable in Civil Court, against which M.P. Electricity Board filed an appeal. The learned Appellate Court holding that the suit is not maintainable under Section 26(6) of the Electricity Act allowed the appeal and the suit was dismissed.
4. This appeal was admitted on following substantial questions of law on 13-94991 :--
(1) "Whether the Civil Court has jurisdiction to try the claim ?"
(2) "Whether the plaintiff's remedy was to make a reference for decision under Section 26(6) of Electricity Act, 1910 ?"
5. The learned Counsel for the appellant submits that after payment of the amount of bill under Section 5 (2) of the M.P. Electrical Undertakings (Dues Recovery) Act, 1961 (hereinafter referred to 'the Recovery Act'), plaintiff has filed the suit challenging the above said recovery. He submits that the suit was maintainable under Section 5 of the Recovery Act, which specifically provides that notice of payment can be challenged after depositing the amount as envisaged under Section 5 (2) of the Recovery Act. The learned Counsel for the appellant also placed reliance on judgment of the Apex Court in the case of M.P.E.B. v. Basant Bai, reported in AIR 1988 SC 71, whereas the Apex Court in para 13 held :--
"If the Electrical Inspector comes to the finding that the meter is faulty and due to some defect it has not registered the actual consumption of electrical energy, then the Inspector will estimate the amount of energy consumed and will fix the amount to be paid in respect of such energy consumed within a period not exceeding six months. The appellant No. 1 is not competent pending the determination of this dispute by the Electrical Inspector to issue the impugned notice threatening disconnection of supply of electricity for non-payment of supplementary bill prepared and sent by it. The Board is also not competent to prepare and send a supplementary bill in respect of energy consumed by the respondent from the one phase which stopped functioning and did not record any consumption of energy. For the reasons, aforesaid we affirm the order of High Court and dismiss the appeal without costs."
6. In this case it is not in dispute that the matter was not referred to the Electrical Inspector. From the perusal of the documents, it appears that because of the dust, meter was running slow and on the basis of this, the bill was raised. Entire amount was deposited, though under protest. The contention of the learned Counsel for the appellant is, that where the meter was running slow it was within the jurisdiction of the Electrical Inspector to decide and the officers of Electricity Board cannot decide this question. Section 26(6) of Indian Electricity Act, 1910 reads 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 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. From the perusal of Section 26(6) of the Act, it is apparent that all the disputes arising out of, where any meter is not correct, the meter shall be tested, upon the application of either party by Electrical Inspector.
In this case also, the dispute was whether the meter was running slow or not, or because of the dust, it was running slow, to be decided and was within the jurisdiction of the Electrical Inspector and without any decision of the Electrical Inspector, respondent was not competent to raise the bill. The Apex Court in the case of Basanti Bai (supra) has specifically held that if the Electrical Inspector comes to the finding that the meter is faulty and due to some defect it has not registered the actual consumption of electrical energy, then the Inspector will estimate the amount of energy consumed and will fix the amount to be paid in respect of such energy consumed within a period not exceeding six months. The Apex Court has further held that the Board is also not competent to prepare and send a supplementary bill in respect of energy consumed by the consumer from the one phase which stopped functioning and did not record any consumption energy.
The learned Counsel for the respondent has submitted that Civil Court has no jurisdiction to decide such a dispute and dispute can be decided only by the Electrical Inspector. The appellant has not moved any application for deciding the dispute by the Electrical Inspector. In the circumstances, it was not necessary for the Board to send the matter for decision by Electrical Inspector. H relied on a decision of the Apex Court in the case of Punjab Electricity Board and Anr. v. Ashwani Kumar, reported in (1997) 5 SCC 120. The facts of this case are entirely different There was a dispute in respect of tampering of meter and in that regard, the Apex Court held as under :--
"Shri Goyal has contended that the authorities do not hear the parties, nor give a reasoned order. Therefore, the parties cannot be precluded to avail of the remedy of a suit. We cannot accept such a broad and generalized proposition. When the provision for appeal by way of review has been provided by the statutory instructions, and the parties are directed to avail of the remedy, the authorities are enjoined to consider all the objections raised by the consumer and to pass, after consideration, the reasoned order in that behalf, so that the aggrieved consumer, if not satisfied with the order passed by the Board/appellate authority, can avail of the remedy available under Article 226 of the Constitution. Therefore, by necessary implication, the appropriate competent authority should hear the parties, consider their objections and pass the reasoned order, either accepting or negativing the claim. Of course it is not like a judgment of a Civil Court. It is then contended that the respondent has been subjected to pay huge amount of bill in a short period; hence, it is a case for interference. We find no force in the contention. May be that due to the advice given by the Counsel, the respondent obviously has availed of the remedy of the suit, instead of departmental appeal. In our view, by necessary implication the suit is not maintainable. Therefore, the respondent is at liberty to avail the remedy of appeal within six weeks from today and raise the factual objections before the Board and the Board/appellate authority would consider and dispose of them, as indicated earlier, on merits."
8. The appellant has challenged the validity of the bill, which cannot be raised by the respondent-Board because of defect in meter and until and unless the amount is ascertained by the Electrical Inspector as has been held by the Apex court in the case of Basanti Bai (supra). The appellant who has challenged the validity of the bill issued by the respondent, in the suit, which was maintainable in view of Section 5 (2) of the Recovery Act. The Lower Appellate court erred in holding that the civil suit is not maintainable. In view of this, this appeal is allowed. Matter is remitted back to the Lower Appellate Court to decide the matter afresh after considering the contentions of the parties on merits.
9. Both the parties will appear before the Lower Appellate Court on 24-9-2002. No fresh notice will be necessary for this. Costs of this appeal is allowed, this shall be borne by the respondent.