Jharkhand High Court
Bharat Rubber Regenerating Co. Ltd. vs Bihar State Electricity Board And Ors. on 29 October, 2002
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. The petitioner has impugned the supplementary bill dated 14.12.2000 raised by the respondent-Board for a sum of Rs. 15,21,870.48 P. for the period from 24.8.1999 to 1.3.2000 on the ground that during that period the electric meter was found defective.
2. Petitioner's case is that it is a Medium Scale Industry and it has taken electric connection in 1974 for a contract demand of 500 KVA which was later on enhanced to 800 KVA in June, 1985, It is contended that on 11.7.1995 an electronic meter was installed in the factory premises of the petitioner and the same was running properly On 20.8.1999 the premises of the petitioner was inspected by the officials of the Board and a metering unit test report was prepared. Because of some defect in the meter it was removed on 10.3.2000. The petitioner said to have paid the monthly bill raised for the period form 24.8.1999 to 10.3.2000 on the basis of the reading recorded in the meter. However, the petitioner was surprised to receive the supplementary bill for the aforesaid period on the ground that the meter was defective and was running slowly.
3. The stand of the respondents in the counter-affidavit is that on 27.11.1999 an inspection was carried on by the Electrical Superintending Engineer in relation to the meter installed in the premises of the petitioner and a decision was taken to send the old meter of the petitioner to the National Physical Laboratory, New Delhi for testing and in place of old meter a new meter was installed. The old meter was accordingly properly sealed in presence of the representatives of the Board, and the petitioner. On 11.3.2000 a pre-commissioning test of the new installed meter was carried out and found to be satisfactory. The National Physical Laboratory, New Delhi sent the test report of the old meter whereby it was detected that the meter of the petitioner was running slow by 33%. On the basis of the test report of the National Physical Laboratory, New Delhi, the concerned respondents revised the average bill of the petitioner for the period from 24.8.1999 to 10.3.2000 and the impugned bill was sent. According to the respondents there has been no illegality in raising the supplementary bill and the same is in accordance with law.
4. Mr. Mittal learned counsel for the petitioner mainly contended that the respondents have no jurisdiction to declare the meter installed in the premises of the petitioner as defective without having made any reference to the Electrical Inspector for verification and declaration in terms of the provisions of Section 26(6) of the Indian Electricity Act, 1910. According to the learned counsel the supplementary bill raised on the basis of the decision of the Board is wholly unjustified. The contention of the respondents on other hand is that the provisions of Section 26(6) of the aforesaid Act has no application in the instant case for the reason that the meter was removed, sealed and sent to the National Physical Laboratory, New Delhi with the knowledge of the petitioner who never protested such removal of the meter for the purpose of testing.
5. In order to appreciate the contentions of the parties it would be useful to refer some of the provisions of Section 26 of the Indian Electricity Act, 1910 which reads as under :
"26 (1) In the absence of an agreement to the contrary, the amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of a correct meter, and the licensee shall, if required by the consumer, cause the consumer to be supplied with such a meter;
Provided that the licensee may require the consumer to give him security for the price of a meter and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter.
(2) ....................................
(3) ....................................
(4) ....................................
(5) ....................................
(6) Where any difference of 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 sup-- plied 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) ....................................
6. From bare reading of the provisions of Sub-section (6) of Section 26 of the Indian Electricity Act. 1910 it is clear that if a dispute arises as to whether any meter is defective or is not correct, the dispute has to be decided by the Electrical Inspector at the instance of either a licensee or a consumer. The scope of Section 26(6) of the said Act has been discussed by the Supreme Court in the case of MPEB and Ors. v. Smt. Basantibai, reported in AIR 1988 SC 71 where their lordships observed as under :
"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 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 or the electrical quantity contained in the supply, such a dispute does not fall within the purview of Sub-section (6) of Section 26. Such 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/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.
In the instant case it appears from the report of the Assistant Engineer of the State Electricity Board that one phase of the meter was not working at all, so there is undoubtedly a dispute as to whether the meter in question is a correct one or a faulty meter and this dispute has to be decided by the Electrical Inspector whose decision will be final. It is also evident from the said provision that till the decision is made no supplementary bill can be prepared by the Board estimating the energy supplied to the consumer, as the Board is not empowered to do so by the said Act."
7. In the case of Belwal Spinning Mills Ltd. and Ors. v. U.P. State Electricity Board and Ors. reported in 1997 (6) SCC 740, the provisions of Section 20 and 26 came for consideration before the Apex Court and it was held as under :
"After giving our careful consideration to the facts and circumstances of the case in these appeals and the submissions made by Mr. Gupta. Mr. Sen and Mr. Andhyarunjina, the learned Solicitor General, it appears to us that Section 20 of the Electricity Act authorizes the licensee to enter the premises of the consumer to remove fittings and other apparatus installed by the licensee. Clause (a) of Sub-section (1) of Section 20 authorises the licensee to enter the premises of the consumer of "inspecting, testing, repairing or altering the electric supply lines, meters, fittings, works land apparatus for the supply of energy belonging to the licensee." The licensee, therefore, cannot only enter the premises of the consumer for inspecting, testing, etc. but the license can also alter the meter whenever such alteration is needed. Such power under Section 20 does not depend on the adjudication of correctness of the meter and other apparatus by the Electrical Inspector on a reference under Section 26(6) of the Electricity Act. But such power flows from the statutory duties and functions of the licensee to maintain the correct meter for recording the quantum of electricity supplied to the consumer. Such duty to ensure maintenance of correct meter in the premises of the consumer has been indicated in Sub-section (1) and Sub-section (2) of Section 26. The power of removing the meter under Section 20, however, is circumscribed by the provision to Sub-section (4) of Section 26 only when the dispute as to the functioning of the meter has been referred to the Electrical Inspector under Sub-section (6) of Section 26. A licensee is authorized under Sub-section (7) of Section 26 to place, in addition to the meter installed in the premises of the consumer as referred to in Sub-section (1) of Section 26, other meter or apparatus as the licensee deems fit for the purpose of recording or regulating the amount of energy supplied to the consumer. Such power also does not depend on the existence of any dispute as to the correctness of the meter installed."
8. It is the specific case of the respondent-Board that the supplementary bill was raised on the basis of the report that the meter and metering unit installed in the premises of the petitioner was running slowly by 33% at the relevant time. Merely because the meter alleged to be defective one was sent to the National Physical Laboratory, New Delhi with the consent of the petitioner, that cannot be ground to raise the supplementary bill without determining the amount and without giving opportunity of hearing to the petitioner. This is why the law provides that if a meter is found defective, the same has to be tested and verified by the Electrical Inspector and the provisions of Section 26(6) of the Act has to be resorted to before raising the supplementary bill for payment of difference of the amount so determined by the Electrical Inspector.
9. Besides the above, in the absence of any specific case of the respondent-Board that the meter became defective because of the mischief of the consumer or any of the illegal activity, the provisions of Section 26(6) of the Act has to be complied with. Since the impugned bill has been raised by the Board without complying with the requirements of Section 26(6) of the Act and without giving opportunity of hearing to the petitioner, the same cannot be sustained in law.
10. For the aforesaid reasons this writ application is allowed and the impugned supplementary bill is quashed. However, liberty is given to either of the parties to apply before the Electrical Inspector within 30 days from today under Section 26(6) of the Act. Needless to say that if such application is made, the Electrical Inspector shall determine the liability after giving opportunity of hearing to the parties.