Madras High Court
The Superintending Engineer, Tamil ... vs Uchappa Gounder on 20 January, 1993
Equivalent citations: (1993)2MLJ287
JUDGMENT Janarthanam, J.
1. The appellants were the defendants while the respondent was the plaintiff in the suit.
2. The plaintiff filed the suit O.S. No. 163 of 1987 on the file of the District Munsifs Court, Sathyamangalam which is one for the reliefs of decision and injunction.
3. Service connection No. 44 of Pudhuppeerkadavu village originally stood in the name of one Kariyakkal, who is none else than the mother of the plaintiff. The said service connection was intended for consumption of electrical energy for the purpose of irrigating the lands by means of an electrical motor installed in the pumpset situate at S.No. 327. In the partition that took place, in the family, the said service connection and certain lands were allotted to the share of the plaintiff and since such allotment, he had been consuming electrical energy through that service connection for irrigating the lands. The motor installed to the service connection was a three phase motor and it had been installed on 17.11.1977.
4. The Officials of the Electricity Board inspected the meter on 18.8.1982 and during the course of inspection, it was found out that there was defect in the motor so installed and consequently, the meter had been removed for test check by the Officials of the Board on 2.9.1982 and on such test it was found out that because of the defect, 2/3rd of the electrical energy consumed from the date of installation namely, 17.11.1977 till the date of its removal, namely, 2.9.1982 was not at all recorded. Consequently, the Electricity Board revised the bill and raised an additional demand quantified in an additional sum of Rs. 12,545.70 by the issuance of a notice dated 22.12.1982 threatening disconnection of the service connection, in default of payment on or before 30.12.1982, Consequently, the plaintiff filed the suit for the aforesaid reliefs contending that the demand so made and the threat of disconnection, in case of failure to comply with the demand is illegal.
5. The defendants, in turn, resisted the suit by contending that the suit filed as such is not maintainable, as the service connection stands only in the name of the mother of the plaintiff by name Kariyakkal that even otherwise, the demand so made is just and proper, inasmuch as the demand representing the non recording of the actual consumption of electrical energy is in accordance with law, guidelines and administrative instructions.
6. Learned District Munsif, on consideration of the materials placed by the respective parties on the necessary and requisite issues framed, however decreed the suit as prayed for with costs.
7. The aggrieved defendants filed appeal in AS. No. 33 of 1990 on the file of the Subordinate Judge, Gobichettipalayam, who in turn, on perusal of the materials available on record and after hearing the arguments of the respective learned Counsel for the parties, concurring with the findings recorded by the trial court, dismissed the appeal with costs, giving rise to the present action.
8. The trial court, on the two vexed questions raised as respects the maintainability of the suit as well as the legality or otherwise of the demand made by the Board, recorded findings that the suit as filed is maintainable and that the demand made by the Board is not in accordance with the provisions of law. It is only on those findings, the suit had been decreed.
9. The trial court on the first question, on consideration of evidence placed as to partition that took place in the family of the plaintiff, found that the plaintiff had been allotted lands and the service connection in question and he had been actually consuming electrical energy on the date when the inspection took place. Such a finding further gets reinforced when especially the defendants did not at all dispute the question of partition and allotment of certain lands and the service connection in question to the plaintiff. In such a circumstance, the plaintiff alone must be deemed to be the consumer of the electrical energy, irrespective of the fact whether the service connection stood transferred in his name or not and consequently, if a questionable demand had been made, he must be having every right to resist the demand so made and in this view of the matter, the suit filed by him on the basis of the questionable demand cannot be stated to be not maintainable. This aspect of the matter, purely revolving on the question of fact had been duly taken into consideration not only by the trial court but also by the lower appellate court and such a concurrent finding therefor calls for no interference.
10. As respects the legality or otherwise of the demand, both the trial as well as the lower appellate courts took into consideration the effect and consequence to be flowing from the non observance of the statutory provision adumbrated under Sub-section (6) of Section 26 of the Indian Electricity Act, 1910, which is in the following terms:
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 licence 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 the instant case, there is no pale of controversy that 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. It is thus plain that there was no fraud on the part of the consumer, the plaintiff in tampering with the meter, thereby taking away the jurisdiction of the determination of the dispute by a reference to the Electrical Inspector, as contemplated by Sub-section (6) of Section 26, as extracted supra. Admittedly, the dispute had not been referred to by the Board for determination. The Board itself seizing power from guidelines and administrative instructions issued, found the defect in the meter and made the questionable demand for the 2/3rd of the actual consumption of the electrical energy not recorded right from the installation of the meter namely, from 17.11.1977 till the date of removal of the meter, which event happened oil 2.9.1982, that is to say, for about 4 years and 10 months. No opportunity admittedly had been given before the quantification of the demand for consumption of the 2/ 3rd of the electrical energy not recorded by the meter.
12. Even in the case of the quantification of the amount by the Electrical Inspector in case of reference to him, he cannot quantify the amount for actual consumption of electrical energy not recorded for a period in excess of six months and even in such a case, an opportunity has to be provided to the consumer before ever such a demand is made. In the case on hand, no such thing happened and the reasons given by the Board for not adhering to the statutory provisions, as adumbrated under Sub-section (6) of Section 26 of the Indian Electricity Act, was that they followed the administrative instructions and guidelines in quantifying the amount for the consumption of electrical energy not recorded. Such an administrative instruction or guideline can, by no stretch of imagination, be stated to override the statutory provisions.
13. On this aspect of the matter, the trial court relied upon the decision of the Supreme Court in the case of Madhya Pradesh Electricity Board v. Basantibai and the Supreme Court on consideration of Sub-section (6) of Section 26 of the Indian Electricity Act expressed thus:
It is evident from the provisions of this section that a dispute as to whether any meter referred to in Sub-section (1) is or is not correct has to be decided by the Electrical Inspector upon application made by either of the parties. It is for the Inspector to determine whether the meter is correct or not and in the case the Inspector is of the opinion that the meter is not correct, he shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply during a period not exceeding six months and direct the consumer to pay the same. If there is an allegation of fraud committed by the consumer in tampering with the meter or manipulating the supply line or breaking the body seal of the meter resulting in not registering the amount of energy supplied to the consumer of the electrical quantity contained in the supply, such a dispute does not fall within the purview of Sub-section (6) of Section 26. Such a dispute regarding the commission of fraud in tampering with the meter and breaking the body seal is outside the ambit of Section 26(6) of the said Act. An Electrical Inspector has, therefore, no jurisdiction to decide such cases of fraud. It is only the dispute as to whether the meter 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 said Act.
14. It is thus clear that both the trial as well as the lower appellate courts did not at all make any error or law, when they expressed that the demand made by the Board is not in accordance with the provisions of law. Further, there is no question of law much less substantial question of law involved for consideration in the second appeal.
15. As such, the second appeal deserves to be dismissed even at the admission stage and is accordingly dismissed.