Calcutta High Court (Appellete Side)
Nobile Ice Cream Co. & Anr vs Special Secretary And Appellate ... on 16 April, 2012
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas.
W.P. No. 7866 (W) of 2004
Nobile Ice Cream Co. & Anr.
v.
Special Secretary and Appellate Authority,
Department of Power, Government of West Bengal & Ors.
Mr Amal Baran Chatterjee and Mr Debabrata Roy, advocates, for the petitioners. Mr
Pramit Roy and Mr Sumit Roy, advocates, for the respondents.
Heard on: April 16, 2012.
Judgment on: April 16, 2012.
The Court:- The petitioners in this WP under art.226 dated May 5, 2004 are questioning an order dated March 15, 2004 (WP p.78) passed under s.36(2) of the Indian Electricity Act, 1910.
By the order the Special Secretary of the Department of Power of the Government of West Bengal dismissed the petitioners' appeal against an order of the Deputy Chief Electrical Inspector, West Bengal under s.26(6) of the Indian Electricity Act, 1910. The Deputy Chief Electrical Inspector (in short Dep.CEI) sent a copy of his order to the first petitioner under a memo dated August 22, 2002 (WP p.65).
West Bengal State Electricity Board (in short WBSEB) was supplying the first petitioner electricity. After detecting that the meter was defective WBSEB installed a new meter on May 12, 1994. WBSEB raised a Rs.11,785.25 supplementary bill dated June 1, 1995 for the period from July 1993 to April 1994. The petitioners accepted the bill and paid the amount. WBSEB again raised a Rs.2,11,726 supplementary bill dated July 20, 1999 for the period from April 1992 to May 1994 (26 months).
Questioning the supplementary bill dated July 20, 1999 the petitioners moved a WP No. 20165 (W) of 1999 before this Court under art.226. By a decision dated June 22, 2000 the WP was disposed of directing the petitioners to raise dispute before the Chief Electrical Inspector, West Bengal and pay 50% of the bill. Feeling aggrieved by the decision of the Single Bench, the petitioners filed an FMA No. 1280 of 2000 before the Division Bench.
By a decision dated June 29, 2000 the Division Bench set aside the decision of the Single Bench, allowed the appeal, and directed WBSEB to refer the matter to the Chief Electrical Inspector (in short CEI). The Division Bench said, inter alia, as follows:
"We do not want to go into the question at this stage as to whether the action of the West Bengal State Electricity Board is arbitrary or not. We leave this matter open for adjudication by the Chief Electrical Inspector, West Bengal who shall decide the matter after hearing both the parties in accordance with law whether the bills raised by the West Bengal State Electricity Board are in consonance with law or not."
Pursuant to the decision of the Division Bench WBSEB referred the matter to the CEI. By the order a copy whereof was sent to the first petitioner under a memo dated August 22, 2002 the Dep.CEI disposed of the reference upholding the bill, deducting Rs.11,785.25 claimed twice. Feeling aggrieved, the petitioners filed an appeal under s.36 of the Indian Electricity Act, 1910. By the impugned order dated March 15, 2004 the Appellate Authority dismissed the appeal. Feeling aggrieved, the petitioners filed this WP.
Mr Chatterjee appearing for the petitioners has submitted that when the Division Bench of this Court directed the CEI to decide the dispute, the Dep.CEI could not decide it. I do not think there is any merit in the contention.
Sub-section(6) of s.26 of the Indian Electricity Act, 1910 is quoted below:
"(6) Where any difference or dispute arises as to whether any meter referred to in sub-section (1) is or is not correct, the matter shall be decided, upon the application of either party, by an Electrical Inspector;
and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained is 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."
It is not disputed that the dispute between the petitioners and WBSEB was referred under sub-s.(6) of s.26 of the Indian Electricity Act, 1910. Sub-section (6) of the section empowered an Electrical Inspector to decide the dispute. Simply because the Division Bench left the dispute for decision of the CEI, that does not mean that the Dep.CEI deciding the dispute was an unauthorized person. The Dep.CEI possessed the requisite power to decide the dispute.
Mr Chatterjee has submitted that the Dep.CEI did not decide the question whether the reference concerning a dispute for the period from April 1992 to May 1994 could be made as late as June 29, 2000 when the Division Bench gave the decision.
There is no merit in this contention as well. Whether the reference could be made as late as June 29, 2000 was a question that ought to have been raised by the petitioners in their appeal that the Division Bench allowed by the decision dated June 29, 2000. The Division Bench directed WBSEB to make the reference, presumably, under s.26(6) of the Indian Electricity Act, 1910. Having accepted the decision, in my opinion, the petitioners could not contend before the Dep.CEI that the reference was belated.
Besides, validity of the reference could not be decided by the Dep.CEI. It is also to be noted that no provision of law barred the reference at the date the Division Bench passed the order. In other words, no law provided that the reference could be made within a particular period. Hence I am unable to see why the reference could not be made at the date it was made in compliance with the decision of the Division Bench.
Mr Chatterjee has submitted that the Dep.CEI neither formed any opinion on the correctness of the meter, nor adjudicated anything.
The Dep.CEI recorded in his order that at the date he was deciding the dispute the defective meter was not in existence. What happened to the defective meter is not known, for the parties have not said anything about its fate. In the absence of a case specifically stated in the pleading, I am unable to accept Mr Chatterjee's contention that WBSEB removing the defective meter and keeping it in its custody failed to produce it before the Dep.CEI.
Mr Chatterjee has argued that since the defective meter was not produced by WBSEB, the Dep.CEI ought to have rejected the reference; for he could adjudicate the dispute only if the defective meter was produced. For this he has relied on Bombay Electricity Supply & Transport Undertaking v. Laffans (India) (P) Ltd. & Anr., (2005) 4 SCC 327.
I do not think the principles stated in Bombay Electricity Supply & Transport Undertaking v. Laffans (India) (P) Ltd. & Anr., (2005) 4 SCC 327 are applicable to this case. There absence of the defective meter became the decisive factor, because the consumer did not admit that the meter in question was defective. In this case the petitioners never disputed that the meter in question was defective. On the contrary, the petitioners accepted that the meter was defective, and that the defective meter was replaced by a new meter installed on May 12, 1994.
For determination of the amount of the energy supplied by WBSEB during the period the meter ceased to be correct, production of the defective meter was of no consequence; for production of the meter was necessary only for deciding a dispute, if any, about the correctness of the meter, and there was no such dispute, because the meter was admittedly defective; and, on the facts, the Dep.CEI was required only to estimate the amount of the energy supplied to the petitioners, for which the defective meter was not necessary.
WBSEB was supplying electricity to the petitioners on the basis of a duly executed agreement for supply of electricity. This is an undisputed fact, and sub-cl.(3) of cl.13 of the agreement provided how the power and energy consumption during the period the meter ceased to be correct, was to be determined.
Sub-clause(3) of cl.13 of the agreement is quoted below:
"(3). In the event of any Meter showing abnormally low or high reading in comparison to the reading of a reasonably comparable period or Metering system and/or the Meter not functioning properly or reasonably or the Meter being found defective, the power and energy consumption during the period when the Meter(s) shall give such low or high reading or the Meter or the Metering system not functioning properly or reasonably or the Meter(s) was/were deemed to be defective shall be determined by taking an average consumption and other parameters for the preceeding and/or succeeding three months or during any previous and/or subsequent period that may be reasonably comparable."
It is not disputed that the supplementary bill dated July 20, 1999 was raised determining the power and energy consumption by the petitioners during the period from April 1992 to May 1994 according to the provisions of sub-cl.(3) of cl.13 of the agreement. Both the Dep.CEI and the Appellate Authority sustained the bill except that WBSEB was not entitled to claim the amount that the petitioners paid accepting its first supplementary bill dated June 1, 1995.
Heavily relying on the decisions in Belwal Spinning Mills Ltd. v. U.P. State Electricity Board & Anr., AIR 1997 SC 2793, and Bombay Electricity Supply & Transport Undertaking v. Laffans (India) (P) Ltd. & Anr., (2005) 4 SCC 327, Mr Chatterjee has argued that in any case WBSEB never alleging any fraud was not entitled to make any claim for any period preceding six months from May 12, 1994 when the defective meter was replaced by installing a correct meter.
Relying on Shri U.A. Thadani & Anr. v. B.E.S.T. Undertaking & Anr., AIR 2000 Bom 264, and an unreported Single Bench decision of the Kerala High Court dated September 8, 2009 in O.P. No. 37150 of 2001 (Messers Bhima Jewels v. The Chief Engineer, Tvm), Mr Roy appearing for the respondents has strenuously argued that there is no reason why WBBSEB could not backdate its claim to any date preceding November 12, 1993.
The provisions of sub-s.(6) of s.26 of the Indian Electricity Act, 1910 unambiguously provided that an Electrical Inspector forming an opinion that the meter had caused to correct, would estimate the amount of the energy supplied to the consumer only for a period not exceeding six months during which the meter was defective, and that in the absence of fraud the register of the meter would be conclusive proof of the amount of the energy supplied to the consumer for any period exceeding such period of six months.
In the face of these clear provisions of sub-s.(6) of s.26, I am unable to accept the respondents' case that the Dep.CEI rightly upheld the claim of WBSEB for the entire period from April 1992 to May 1994. The decisions cited by Mr Chatterjee support the petitioners' case that no claim for any period preceding November 12, 1993 could be entertained by the Dep.CEI under s.26(6) of the Indian Electricity Act, 1910.
The Single Bench decision of the Bombay High Court was given in a case where the meter was not defective. In that case there was no dispute about the correctness of the meter reading. The Single Bench decision of the Kerala High Court proceeded on the basis that the consumer having knowledge of defect in the meter did not take steps for making a reference under s.26(6) of the Indian Electricity Act, 1910.
In my opinion, in the face the Supreme Court decisions and the clear provisions of sub-s.(6) of s.26 there is no scope for contending that WBSEB, on the facts, was entitled to claim and the Dep.CEI was empowered to entertain the claim for the entire period. Both the Dep.CEI and the Appellate Authority upholding the claim of WBSEB for 26 months acted contrary to the clear provisions of sub-s.(6) of s.26. The allowed claim could be backdated only to the sixth month from May 12,1994.
For these reasons, I dispose of the WP ordering as follows. The respondents' claim is backdated to November 12, 1993. If the deposits pursuant to interim order and bill dated June 1, 1995 exceed the allowed claim, then they shall refund the excess amount within a fortnight from the date this order is served. If deposits are short, no disconnection until a fortnight from the date this order is sent to the server. No costs. Certified xerox.
Ss(c);ab(f) (Jayanta Kumar Biswas, J.)