Orissa High Court
Sri Harishankar Giri And Anr. vs Central Electricity Supply Company Of ... on 13 December, 2002
Equivalent citations: 95(2003)CLT65, 2003(I)OLR265
Author: B. Panigrahi
Bench: B. Panigrahi, M. Papanna
JUDGMENT B. Panigrahi, J.
1. Petitioner No. 2 which is a Company incorporated and registered under the Indian Companies Act, 1956 represented through its Managing Director, petitioner No. 1, has challenged the legality, validity and propriety of the notice dated 24.4.2001, vide Annexure-1 along with a Field Meter Test Report issued by opp. party No. 3, the Divisional Manager, Central Electricity Supply Company (in short 'CESCO') or Orissa, Dhenkanal Electrical Division for showing cause as to why the power supply to the Petitioners' Company shall not be disconnected and also the Penal Bill for the period from 18.8.2000 to 31.3.2001, vide Annexure-2 issued by opp. party No. 2, the Executive Engineer, CESCO, Dhenkanal Electrical Division, the same being arbitrary, whimsical and mala fide.
2. Petitioners' Company is being promoted in the joint sector with IPICOL first set up a Mini Steel Plant at Gundichapada, Dhenkanal in the year 1984 with a manufacturing capacity of 50,000 Metric Tonnes of Mini Steel ingots through its Electric Arc. Furnace of 18/20 Metric Tonnes capacity per heat. Accordingly, a contract demand for 7778 KVA was executed between the petitioner's Company and the erstwhile Orissa State Electricity Board which has been taken over by opp. party No. 1. In course of time the petitioner's Company suffered from severe financial crunch and, therefore, became a sick industry and the matter was referred to BIFR under the Sick Industrial Companies (Special Provisions) Act, 1985. It is further stated by the petitioners that a Rehabilitation Scheme was introduced after taking into consideration the stand of the financial institution, Bank, the State of Orissa, the erstwhile Orissa State Electricity Board and the Grid Corporation of Orissa (hereinafter referred to as 'Gridco').
3. The petitioners were granted concession by the BIFR for the delayed payment, penal charges like delayed payment surcharge and lower power factor penalty etc. during the period of rehabilitation from July 1995 to 30th June, 2002.
4. The opp. parties have challenged the benefits admitted to the petitioners' Company by the BIFR and to stultify the Rehabilitation Scheme made an attempt to thwart the progress of the Company. On 21.4.2001 some officers of the opp. parties had visited the premises of the petitioners' Company at Gundichapada and wanted to have a shut-down of the power supply so that they can test the metering unit (CT/PT set installed on the pole). Since the contract labourers were working and sudden shut-down would result in damage to the machineries and other consequential loss to the tune of few lakhs, they registered strong protest to the shutting down of the electric power supply during the shift. The officers of the opp. parties could not carry on the testing job at CT/PT point on the pole without shutting down the electric current. Finally some of the officers of the opp. parties were able to shut down the electric current from their Sub-Station and carried on their testing operation which continued till 9.20 P.M. This exercise was conducted neither in the presence of petitioner No. 1 nor any of its officers. After some time the opp. parties abruptly issued a notice on 24.4.2001 threatening to disconnect the power supply. They also forwarded xerox copy captioned as Field Meter Test Report, vide Annexure-1 which was communicated to the petitioners on 24.4.2001. Immediately thereafter, i.e. on 25.4.2001 another notice imposing penalty to pay an imaginary inflated and speculative amount of Rs. 13,82,48,463.00 was communicated for the period 18.8.2000 till 31.3.2001 and threatened to disconnect the power supply to the petitioners' premises.
5. Petitioners have alleged that a false accusation has been made by the opp. parties for tampering with the metering unit CT/PT installed on High Tension Pole. The meter cannot be interfered with without shutting down the High Tension line from the substation maintained by the opp. parties. The metering unit is also inaccessible to any person other than the opp. parties. It is beyond the comprehension that anybody can interfere with the metering unit without disconnection of electricity supply from the Sub-station. The consumption of power by the petitioners' Company is recorded through parallel arrangement i.e., at the metering unit on the High Tension pole in the factory of the petitioners and at the opp. parties' Sub-station wherefrom power is being transmitted for exclusive use by the petitioners' Company. In case there is any pilferage by which the metering unit installed in the petitioners' premises records less than the actual consumption, the meter installed by the opp. parties in their Sub-station would show the actual quantity of consumption by the petitioners' Company and the opp. parties could immediately detect the defect, if any, in recording the difference in consumption. From August, 2000 till April, 2001 the petitioners have been paying the current bill month by month basing on the recording shown in the meter. During such long period the opp. parties had never pointed out that there was any tampering of the metering unit. It is, therefore, alleged that the opp. parties with an evil design for putting the petitioners to harassment and to frustrate the benefits given by BIFR used mischievous contrivance at their end.
6. The opp. parties have filed their counter affidavit, inter alia, denying some of the material allegations made by the petitioners. They have admitted that the petitioners' Company is a large industry and availing power supply from Dhenkanal Grid through 33 KV feeder. In the petitioners' premises an Electronics (SEMS) meter is installed. That meter is fixed on the High Tension pole. There is another SEMS meter connected at the Grid and installed outside the Grid Sub-station to function as a check meter. The check meter was installed on 10th August, 2000 and the necessity felt for installing such meter was to ascertain the exact quantity of energy consumed by the petitioners' Company and it was a part of the energy reconciliation process. The opp. parties have further stated to have conducted a routine check up of the meter on 21st April, 2001 around 1.00 P.M. by the S.D.O. (MT), Dhenkanal and it was noticed that the said meter was tampered with. At this stage they felt the necessity of snapping the power supply. The management of the Company was informed around 4.00 P.M. about the proposed shut-down. But at 6.00 P.M. about more than 100 people from the factory gheraoed the S.D.O., Electrical, Dhenkanal and did not permit him to resort to the shutting down the supply of energy. But, however, after considerable persuation to those workers they agreed for shut-down at 7.00 P.M. and it was detected that the metering unit (CT/PT set installed on the pole) is being used for metering in the High Tension side. The metering cable is connected to the secondary of this instrument and the plastic seal (red colour bearing Serial No. 005905) was tampered with. On further examination it was found that the B-ph CT terminal was shorted through a thin copper wire resulting in very less or almost no current flowing through the 'B-ph' of the meter. It has been, inter alia, alleged by the opp. parties that at the time of testing of the meter one Mr. Gupta, Electrical Deputy Manager was present, but he deliberately refused to sign on the test report. Therefore, in the above background the opp. parties have claimed dismissal of the writ petition.
7. Mr. Tripathy, learned counsel appearing for the petitioners, has strongly contended that the allegation of abstraction of energy is neither based on facts nor true inasmuch as the metering unit CT/PT set is installed about 15 feet height and always remain charged with 33 KV line. It is not possible to have access to that area without resorting to shut down from the main Gridco Substation. Any attempt to reach to the metering unit without shutting down the power supply might result in danger to life. Sealing stand fixing of the metering unit is maintained by the employees of the CESCO from time to time, therefore, tampering of the metering unit installed by the opp. parties without shutting down from the Sub-station is almost next to impossibility. Similarly, tampering with the metering unit on the H.T. line at Gridco Sub-station is not at all possible. In case the CT/PT metering unit at the ground level is interfered with, the consumption of energy at the Gridco Sub-station can easily be detected. Mr. Tripathy has further pointed out that no notice was sent to the Director or any of its officers at the time of such routine meter checking.
8. Mr. Nayak, learned Advocate appearing for the opp. parties, submitted that during routine check up officers of the opp. parties went to the petitioners' premises and at that juncture they had been gheraoed by more than 100 people. They raised stiff resistance while they attempted to shut down the power supply. Mr. Gupta, Electrical Deputy Manager of the petitioners' Company although was present, but deliberately and intentionally refused to sign on the test report. It has been contended that in case the petitioners were aggrieved by the notice as well as the penal bill, vide Annexures 1 and 2, it was open to them to approach the Regulatory Commission which is a statutory authority empowered to look into the grievance of this nature. Even otherwise the petitioners could have approached the authorities dealing with complaints under the provisions of the Complaint Handling Procedure. Without exhausting the aforesaid remedies available to the petitioners they should not have rushed to this Court by invoking the extra-ordinary powers enshrined under Article 226 of the Constitution.
Mr. Nayak in furtherance of his submission placed reliance on the provisions of Rules 104 and 105 of the Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 1998 (hereinafter referred to as the 'Code') which read as follows :
"104. No consumer shall make use of power in excess of the approved contract demand or use power for a purpose other than the one for which agreement has been executed or shall dishonestly abstract power from the licensee's system.
105. (1) On detection of unauthorised use in any manner by a consumer, the load connected in excess of the authorised load shall be treated as unauthorised load. The quantum of unauthorised consumption shall be determined in the same ratio as the unauthorised load stands to the authorised load.
(2) The period of unauthorised use shall be determined by the engineer as one year prior to the date of detection or from the date of initial supply if the initial date of supply is less than one year from the date of detection. If the consumer provides evidence to the contrary, the period may be varied according to such evidence. The engineer may levy penal charges in addition to the normal charges for aforesaid period of unauthorised use. Where addition of the unauthorised installation or sale or diversion would result in a reclassification according to this code, the whole of the power drawn shall be deemed to have been drawn in the reciassified category. The consumer shall also be required to execute a fresh agreement under the reciassified category.
(3) The penal energy charges for unauthorised use of power shall be two times the charges applicable to the particular category of consumer.
(4) The penal demand charges for unauthorised use of power in cases covered under two part tariff shall be calculated on unauthorised connected load expressed in KVA multiplied by two times the rate of demand charges applicable,"
On reading the provisions of Rule 104 it appears that a consumer shall not use power in excess of the approved contract demand nor use power for a purpose other than the one for which agreement has been executed nor shall he/it dishonestly abstract power from the licensee's system. But Rule 105 speaks about the penal charges to be imposed if it is established that a consumer has unauthorisedly used power in excess of the authorised load. Under Sub-rule (2) of Rule 105 of the Code the period of un-authorised use shall be determined by the Engineer as one year preceding the date of detection or from the date of initial supply if the initial date of supply is less than one year from the date of detection. In such event the consumer has to establish the period of such unauthorised use and then the penalty shall be realised for the period for which he actually abstracted the power. It is to be further noticed that if the provisions of the Code shall have overriding effect against the provisions of the Indian Electricity Act, 1910. Normally, it shall not have any effect if the provisions of the Code is inconsistent with the provisions of the Indian Electricity Act or the Rules framed thereunder. It is nevertheless true that the provisions of the Code were framed under subordinate legislation. We are to consider here whether any of the provisions made in the Code has been in confirmity with the provisions of Indian Electricity Act, 1910. In case any contrary position occurs the provisions of the Code shall be struck down as it does not have any overriding effect upon the provisions of the Indian Electricity Act.
9. It is too well settled that the provisions contained in the Code shall have to be read harmoniously with the provisions of the Indian Electricity Act. It is again to be noticed that in case of defective meter the Electrical Inspector shall have over-all jurisdiction to determine if such defect has occurred due to negligence/interference by the consumer or the licensee. In the event there is a dispute between the licensee and/or the consumer with regard to the unauthorised drawal/abstraction of energy, the Electrical Inspector would siege jurisdiction. From the averments pleaded hereinabove, it is found that a dispute between the consumer and the licensee has emerged relating to functioning of meter and also allegation of tampering with metering unit.
10. A lucid position has emerged from the fact-situation that neither party has resorted to the provisions of Section 26(6) of the Indian Electricity Act, 1910 from the beginning, i.e., from 21.4.2000 till date. The petitioners have not disputed about the functioning of the meter whereas the opp. parties have alleged about improper functioning of the metering unit. In such eventuality it could have been apposite for opposite parties to resort to the provisions of Section 26(6) of the Indian Electricity Act, 1910.
11. Section 26(6) of the Indian Electricity Act, 1910 provides :
"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 of 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."
Thus as per the aforesaid provision, the Electrical Inspector who has been authorised by the Act shall not impose penalty for a period beyond six months. But in Rule 105 of the Code such power has been vested on an Engineer to impose penalty for a period of one year from the date of detection which is repugnant to the provisions of the Act. Therefore, the provisions of Sub-rule (2) of Rule 105 appears to be inconsistent with the provisions of the Indian Electricity Act and thus shall be inoperative.
12. The Hon'ble Supreme Court while interpreting the provisions of Sub-section (6) of Section 26 of the Indian Electricity Act in the case of Belwal Spinning Mills Ltd. v. U. P. State Electricity Board and another reported in AIR 1997 SC 2793 where Hon'ble Mr. Justice G.S. Patnaik was one of the Judges held in the following manner:
"In our view by limiting the period for estimation to be made by the Electrical Inspector by the amendment of Sub-section (6) and further providing that for the anterior period, in the absence of fraud, the register of the meter shall be conclusive proof of the supply of the electricity it is quite evident that even if it transpires that the installed meter ceased to be correct, then for the period anterior to the statutory period for which the estimation is not to be made by the Electrical Inspector, the register of the meter about the consumption of the electricity supplied to the consumer shall be binding between the parties by treating such recording as conclusive proof of the consumption in the absence of any fraud practised by the consumer. By the amendment of Sub-section (6) the Electrical Inspector has been purposely absolved from the duty to determine as to from which point of time beyond the said statutory period, the meter had ceased to function so that for such entire period, the estimation of the supply of electricity need not be made. Such amendment of Sub-section (6), in our view, only means that beyond the statutory period, in the event of dispute between the parties as to the proper functioning of the meter and other electrical apparatus, the consumer has liability to pay the estimated amount indicated by the Electrical Inspector limiting the estimate upto the statutory period and not beyond that but for the other anterior period the consumer is required to pay according to the consumption of electricity registered in the disputed meter provided there is no fraud practised by the consumer because dispute of such anterior period remains unresolved by the change introduced by the amendment.
Such legislative change by the amendment of Sub-section 6 of Section 26, in our view, has been introduced to set at rest any dispute between the licensee and the consumer about the actual consumption of the quantity of electricity by the consumer where no fraud has been practised by the consumer for all other period anterior to statutory period for estimation. There is good reason for such legislative change because it may not be possible to precisely determine exactly from which point of time the meter ceased to be correct. The scheme under the Electricity, Act clearly reveals that a correct meter is to be installed and such correct meter is to be maintained by the licensee in the premises of the consumer so that consumption of electricity is computed on the basis of reading in the meter. The scheme also reveals that unilateral decision of either of the parties about the correct status of the meter is not to be accepted by the other party if the other party raises objection as to the status of the meter. Whenever both parties do not accept a meter to be correct and the dispute is raised, such dispute is got to be resolved by referring to a statutory authority under Section 26(6), namely, the Electrical Inspector. Within the integrated scheme under Section 26 of the Electricity Act, it is not possible that even though dispute is raised about the mal functioning of the meter such dispute will be treated as statutorily resolved for a limited period in accordance with the amended Sub-section (6) of Section 26 but for other period anterior to the same, the dispute will remain unresolved and claim of the licensee be open to be challenged. Therefore, simply on the finding that meter had ceased to be correct by the Electrical Inspector on entering the reference a licensee may not be justified in contending that a particular meter had ceased to be correct from a particular point of time even though the licensee, dispute its statutory duty to maintain the correct meter by repairing or rectifying the defective meter and by replacing it if necessary has failed to take appropriate step. Both Mr. Sen and the learned Solicitor General in their fairness, have submitted that beyond the statutory period for which no estimation for the consumption of electricity is to be made by the Electrical Inspector attaching statutory finality to such estimation, although the licensee is not precluded from raising revised claim for other period anterior to the statutory period of estimation but such claim will be open to be challenged by the consumer. In our view by the amendment of Sub-section (6) of Section 26, the Legislature has intended to put an end of such contest between the licensee and the consumer and has set at rest of any dispute relating to any period anterior to the statutory period of estimation by providing that in a case of dispute as to functioning of meter, the reading in the meter for the period beyond the period of statutory estimation, will be final."
Therefore, we are of the firm opinion on a harmonious construction of Rule 105 of the Code and the provisions of Section 26(6) of the Indian Electricity Act that the licensee is not empowered to impose penalty beyond six months inasmuch as legislature did not permit them to realise any amount for unauthorised abstraction beyond six months, unless proof of fraud is established preceding statutory period of six months.
13. Even on a plain reading of Rule 105(2) of the Code the Engineer shall levy penal charges in addition to the normal charges for a period of one year preceding to unauthorised use. It has been already discussed that since that clause is contrary to the provisions of Section 26(6) of the Indian Electricity Act, therefore, such clause is unenforceable. But even assuming such clause is attracted, if from evidence it is established that unauthorised use was only for a limited period, i.e., for 3 days, the opp. parties could not have levied penal charges from the consumer for one year.
14. Since a technical question involved in this case, two Special Officers in the rank of retired Chief Engineer were appointed to detect if any such unauthorised abstraction made on 21.4.2000 or before. In the report submitted by Mr. B.N. Das, Special Officer appointed by the Court, it has been reflected as follows :
"As per the direction of the Hon'ble High Court consumption of energy during this period is to be determined by the taking the ratio of 6 months average preceding the alleged theft and 6 months succeeding the alleged theft. The alleged theft was reported on 21.1.2001 but penal bill was given by CESCO by 18.8.2001 to 31.3.2001 excluding the period 1.4.2001 to 21.4.2001. The succeeding 6 months are 5/01 to 10/01 and the preceding 6 months are 10/00 to 3/01.
(A) Consumption of succeeding 6 months (KWH) (B) Consumption of preceding 6 months.5/01
2315400 10/00 1534200 6/01 2322091 11/00 1597920 7/01 1456800 12/00 1728480 8/01 1514760 1/01 1776120 9/01 1775040 2/01 1555560 10/01 1896720 3/01 2026560 11280811 10218840 Increase in consumption of period A over period B as 10.392%.
Determining consumption from 18.8.2000 to 21.4.2001 form the ratio is not sound from technical point of view for the following reasons.
(a) Number of hours in periods A and B are not equal.
(b) In an industry the consumption of energy during equal periods varies very much with increase/decrease in production. The consumption of electricity to produce 100 tonnes of ingots will be very much less different to produce 1000 tonnes of ingots.
(c) The colony consumption shall be segregated from factory consumption as colony consumption does not depend on quantum or production in factory.
Therefore, consumption electricity for the production of ingots and rods in Ipisteel is dependant on the quantum of production. The statement given below gives period, No. of days ingots produced, rods produced and consumption of electricity for production only excluding colony consumption.
Period No. of days Gross Ingots (tonnes) Gross rods (tonnes) Consumption on production only (KWH) 5/01 31 2391.780 2862.820 2286321 6/01 30 2535.760 2897.565 2301821 7/01 31 1517.035 2008.645 1430144 8/01 31 1694.750 2104.655 1493462 9/01 30 2221.730 1909.405 1740360 10/01 31 1883.455 2138.725 1859951 Total 184 12244.510 13921.815 11112059 1 day 66.546 75.662 60391.6 10/00 31 1399.100 2034.155 1514175 11/00 30 1379.600 3121.395 1576491 12/00 30 1697.575 3051.635 1703363 1/01 31 1768.250 2794.900 1751763 2/01 28 1515.150 2328.140 1535508 3/01 3.1 2088.825 2777.550 2006497 Total 182 days 9848.500 16107.775 10087797 1 day 54.113 88.504 55427.4 The above statement shows that during preceding 6 months prior to month of detection of alleged theft from 10/00 to 3/01 - 9848.5 tonnes of ingots (gross) and 16107.775 tonnes of rods (gross) have been produced for which 10087797 KWH of electric energy have been consumed for production.
During 6 months after the month of detection of alleged theft from 5/01 to 10/01 : 12244.51 tonnes of ingots (gross) and 13921.815 tonnes of rods (gross) have been produced 11112059 KWH of electric energy have been consumed for this production.
The consumption of energy per tonne of production of ingots is different from consumption of energy per tonne of production of rods. The suppliers of induction furnaces have indicated that the consumption of electricity per tonne of ingots as 600 units + 5% but the figure will vary depending on types of scrap used, operation of furnace, quantum of charge fed to furnace interruption of power supply and quantum of wastage. Therefore the figure given by supplier is not possible to achieve.
*** *** *** Since the propose of determination of above mentioned figures are only for comparison propose we may assume energy consumption per the tonne of ingots (gross) including auxiliaries as 750 units that per tonne of rods (gross) including auxiliaries to be 160 units.
Based on above assumptions energy consumption per day for production propose for the period from 5/01 to 10/01 should be 62015.4 units whereas reported figure by Ipisteel in the above table is 60391.6 units a deviation of + 2.688%.
Taking the same assumed norms of consumption per day for production propose average energy consumption for the period 10/00 to 3/01 comes to 54754.3 units in the above table whereas reported figures by Ipisteel is 55427.4 units, a deviation of - 1.23%.
The total variation between the succeeding period and the preceding period taking the average for 1 day is 3.918%. This is a minor variation in view of several variants of consumption of energy in production as stated above. Hence, it is felt no correction is necessary on consumption figures for production during the alleged theft period.
After decisions regarding availability of concession to Ipisteel under clause 8 and 9 of package of concession granted by B. I. F. R. by Hon'ble High Court billing for the full rehabilitation period shall be prepared by CESCO."
In the report submitted by Mr. R. C. Padhy, Special Officer appointed by this Court it has been reflected as follows :
"CESCO issued notice to IPISTEEL on 24.4.01 as to why supply should not be disconnected as per OERC Code and served a penal bill for Rs. 1382,45,463/-on 25.4.01 for the period from last meter test on 18.8.2000 till 21.4.01 upon which IPI STEEL approached Orissa High Court against possible disconnection with the submission that the meter tampering allegation is false, fictitious, and impossible to be caused and that it is an imaginary proposition that there could be any meddling with the said metering unit installed on High Voltage pole.
The Special Officers had visited the Dhenkanal Grid S/S on 7.5.02. The review of the Sub-station log book did not reveal any long shut-down taken by IPI STEEL. But a computerised print of a dump record of the check meter for the 28 days period from 25.3.01 to 21.4.01 (copy enclosed) showed that there was no supply drawn from 2.30 A.M. to 3 A.M. of 19.4.01 (18.4.01 night shift) after which the character of the graph has drastically changed that active current (load) drawn (in red) on the 19th, 20th and 21st April was very much lower than the reactive current (load) recorded blue. Such record facility was however not available in the main meter in IPI STEEL premises.
There was no shift engineer in the Dhenkanal Grid Sub-station on 18.4.01 night shift from 10 P.M. to 6 A.M. of 19.4.01 and the shift was being managed by an operator who has recorded that there was a tripping in the IPI STEEL feeder at 2.05 A.M. on over current.
The feeder was charged at 2.10 A.M. and stood O.K. *** *** *** It is thus difficult to come to an opinion of the energy consumption Vrs. Production of IPI STEEL for the periods prior to April 01 or thereafter, to conclusively determine whether there was actually any abstraction or not. Further, the alleged abstraction, if any, was only for a short period of 3 days covering about 64 hours (i.e. from 3 A.M. of 19.4.01 to 7 P.M. of 21.4.01) which cannot be verified from monthly consumption figures of pre or post periods as the energy consumption/Ton varied widely from 660 units/Ton to 800 units/Ton in ingot production and from 130 units/Ton to 177 units/Ton on rod production. Also ingot production in 6 months after April 01 is 20% more than the production during 6 months before."
From the graph enclosed with the report prepared by Mr. R.C. Padhy, Special Officer, it only says that for 3 days the graph does not disclose that there was any abstraction of energy. He has also stated that several factors may contribute to non-withdrawal of power. Therefore, on a careful reading of both the reports of the Special Officers it is gathered that there has been no evidence of unauthorised use of power beyond three days, and we are at a toss to understand as to how the opp. parties had made out a case of unauthorised abstraction of energy.
15. Now it has to be considered whether Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 1998 could override the provisions of the Indian Electricity Act, 1910. The code is undisputedly is a subordinate legislation framed under the Orissa State Electricity Reforms Act, 1995 (Act 2 of 1996). Rule 115(2) of the Code prescribes the overriding effect which has been enumerated as follows :
"115.(1) *** *** *** (2) Nothing contained in this code shall have effect, in so far as it is inconsistent with the provisions of Indian' Electricity Act, 1910, Electricity (Supply) Act, 1948 and Rules framed thereunder as amended by the Act."
Therefore, the Regulatory Commission has no unbridled power nor unfettered right to make Regulation/Rules which shall be inconsistent with the provisions of the Indian Electricity Act. In the Code itself it has been clearly stipulated that the provisions of the Indian Electricity Act, 1910 as well as the Rules framed thereunder shall prevail over the provisions of the Code.
16. It is not in dispute that the petitioners' Company is a high-tension power consumer. Therefore, potential Transformer meter had been fixed at the Sub-station maintained by the Gridco. The connection has been given from Gridco Sub-station from 33 KVA line. The Hon'ble Supreme Court in the case of U.P.S.E.B. v. 'Atma Steels and others reported in AIR 1998 SC 846 held as follows :
"We have heard the counsel for the parties and seen the material on record and we see no reason to disagree with the conclusion of the High Court regarding the Inspector entertaining the application under Section 26(7) specially in view of the fact that in the Manual on H.T. Consumers Metering published by the Central Board of Irrigation and Power regarding the potential transformer with relation to salient feature of metering equipments it is stated as under:
"(i) The metering equipments consist of CT and PT units. For LT meters (i.e., for 3 phase 4 wire) only three single phase VTs are required. For HT metering 3 phase PT and two CTs in R & B phases are required. CTs and PTs or only CTs for LT metering are to be tested for their correct polarity and ratio as per their terminal markings and name plate details respectively, beside their insulation resistence etc. since the CT and PT ratios have a direct relation with the consumption recorded by a meter."
In the aforementioned judgment the Supreme Court has held that the installation of P.T. meter is used as a measure of check for noting down the actual energy consumed by the consumer. In case PT. meter is installed, there cannot be any interference/unauthorised abstraction of power by the consumer without any shut down of the supply line. In such event the opp. parties must have been informed while disconnecting the line.
17. In the instant case a check meter has been installed near the Gridco Sub-station for the purpose of checking and ascertaining the proper functioning of the installed meter. There is no legal bar for treating the check meter as an altered meter in place of meter installed in the petitioners' premises. The opp. parties have never stated in their counter that the meter installed near the Gridco Sub-station was not properly functioning at the time of periodical inspection. In the above background we are not in a position to ascertain as to why they intentionally and deliberately withheld the meter reading taken down from Gridco Sub-station. The meter fixed at Gridco Sub-station has no special significance nor legal incidence for which there would be a bar that meter cannot be treated as an altered meter. From the conduct of the opp. parties we hereby hold that they too did not come to the Court with clean hands and they have purposely suppressed the facts as to what happened to that altered meter fixed at Gridco Sub-station. It is seen that from time to time the opp. parties have been recording the units consumed by the petitioner's Company. They have never raised any objection with regard to illegal abstraction of energy till 21.4.2001.
18. It is submitted by the opp. parties that in accordance with the directive of the BIFR they are giving concession to the petitioners' Company.
Had there been no report placed by the Special Officers to assist the Court to render findings about abstraction of energy, we would have directed the parties to refer the matter under Section 26(6) of the Indian Electricity Act to the Electrical Inspector, but since two Special Officers of the rank of retired Chief Engineers have submitted their report, we feel, it would not serve any purpose except it will further protract the matter and cause undue delay.
19. Mr. Nayak has placed before us two judgments passed by the learned Single Judge of this Court in O.J.C. No. 7791/2000 and O.J.C. No. 5426/2001. But on a careful reading of the judgments we find, the provisions of the Indian Electricity Act, 1910 were not taken into consideration, therefore, we are not in a position to agree with the observation of the learned Single Judges. Moreover, in the instant case there has been no proof of unauthorised drawal of power by the petitioners' Company nor any case has been made out by the opp. parties that the petitioners have used power in excess of the approved contract demand.
20. The Complaint Handling Procedure which is said to have been effective from 10th January, 2001 cannot take away the statutory right available to either party under Section 26(6) of the Indian Electricity Act. The provisions of the said Act enshrines the Electrical Inspector to handle such complaint. In such event the petitioners are not bound to resort to the provisions of Complaint Handling Procedure. More so, it is already discussed above that there was no such unauthorised drawal of electricity nor any defect in the metering unit is noticed by the opp. parties. Periodical inspection was purported to have been conducted on 21.4.2001 and it was communicated to the petitioner on 24.4.2001. It was indicated in the notice to submit a written explanation on 5.5.2001 by 11.00 A.M., but we are aghast to note that before expiry of that date, the opp. parties with undue haste served a notice on 25.4.2001 asking the petitioners to pay penal charges. It is, therefore, patent that the opp. parties with a close mind raised an astronomical and staggering demand without any basis and issued a notice, vide Annexure-2 without giving any opportunity to the petitioners to submit their show cause. The licensee who is exercising the statutory power should follow the principle of natural justice. But their action appears to be mala fide, arbitrary, whimsical and unreasonable, such action should be disapproved by the judicial authority. Since they have raised a bill for the period of April which includes the energy charges of 3 days, therefore, it is not obligatory for the petitioners to pay any more charges.
21. In the above conspectus of the case, we allow the writ application by quashing Annexures 1 and 2 of the writ application. No costs.
M. Papanna, J.
22. I agree.