Delhi High Court
H.D. Shourie vs Municipal Corporation Of Delhi And Anr. on 31 March, 1987
Equivalent citations: AIR1987DELHI219, 32(1987)DLT73, 1987(13)DRJ225, 1987RLR243, AIR 1987 DELHI 219, (1987) 32 DLT 73 1987 RAJLR 243, 1987 RAJLR 243
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT B.N. Kirpal, J.
(1) The challenge in this writ petition is to the demand of electricity charges amounting to Rs. 1183.36 which has been raised by revised bill dated 1st November, 1980 in respect of the period from 11th January, 1973 to 29th September, 1973.
(2) Briefly stated, the facts are that the petitioner is the owner of House No. A-31, West End, New Delhi. During the years 1970 to 1973 the said house had been let out to different tenants. There are different electricity meters which are installed in the said house. One meter which was fixed during that period was Meter No. 18 K-513626-PD/WEC, for the sake of convenience hereinafter referred to as 'Meter C'. This meter, I am told, pertains to the supply of electricity to the first floor of the house in question.
(3) On 25th October, 1977 the petitioner received an electricity bill for Rs. 3845.92. The bill merely indicated that the demand was "Assessed 24037 units from 20th March 1970 to 21st September 1973 base 21st September 1973 to 20th May 1974". Immediately on the receipt of the said bill, the petitioner wrote a letter dated 26th October, 1977 protesting against the demand so raised. Reference in this letter was made to the verbal enquiries which the petitioner had made from the Desu office at R.K. Puram. He had then been told that the aforesaid meter C was found to be defective and had been replaced in the year 1973 and that now the demand was being calculated in respect of the earlier period from March, 1970 to September, 1973 on the basis of consumption recorded by the new meter. In his representation the petitioner challenged the legality of the demand so raised. He also asked for the readings of this meter for the respective dates for which the bill was raised. From the tenor of the letter it appears that the petitioner did not accept that the meter which had been replaced was defective.
(4) No reply was received to the aforesaid representation but, on the other hand, the petitioner received four notices to show cause as to why his electricity should not be disconnected on account of non-payment of the city bill. It is not necessary to give any further details about these notices except to note that on 1st November, 1980 the earlier bill dated 25th October, 1977 was revised and a fresh bill for Rs. 1183.36 was sent to the petitioner. The original demand raised by the bill dated 25th October, 1977 was withdrawn and the revised assessment was in respect of the period 11th January, 1973 to 21st September, 1973 and was based on the corresponding billing period of 18th January, 1974 to 13th September, 1974. The petitioner once again wrote a letter dated 4th December 1980 protesting against the said demand. The petitioner referred to his earlier letter dated 26th October, 1977 and repeated his contentions once again. It was also stated in this letter that the petitioner's request for transmission of dispute for arbitration to the Electrical Inspector of the Government had also not been heeded. According to the petitioner the demand which was raised was wholly arbitrary and without following the principles of natural justice.
(5) The petitioner did not get any reply to the aforesaid letter except that he once again got a notice dated 17th September, 1982 for disconnection of electricity on account of non-payment of the bill. The petitioner, however, did elicit some information from the respondent to the queries which he had raised when the respondent wrote a letter dated 28th June, 1983. Along with this letter, copy of the reading chart for the period from 31st March, 1970 to 15th November, 1974 was enclosed. It was stated in this letter that the meter was replaced on 21st September, 1973. It was accepted that the responsibility of seeing whether the meter was defective or not was of the Department but it was stated that this responsibility was discharged by replacement of the defective meter as and when it was found necessary. The petitioner once again sent a representation dated 20th July, 1983 raising various contentions. The petitioner did not accept the correctness of the demand so raised. The petitioner then received another notice of disconnection dated 6th September, 1983, pursuant to which the present writ petition was filed challenging the aforesaid demand for Rs. 1183.36 and also the threatened action of disconnection.
(6) Though a number of contentions have been raised in the writ petition, the three main submissions which have been urged on behalf of the petitioner are that no demand can be raised for a period which is more than three years after the consumption of electricity. Secondly, the contention is that the provisions of Section 26(6) of the Electricity Act have not been complied with. Thirdly, it is submitted that assuming there can be a demand which is raised in case of a defective meter then the basis of calculating the correct consumption of electricity during the period should be not with reference to the subsequent period but should be with reference to the period earlier than the period in question.
(7) In support of his contention that demand cannot be raised if more than three years have elapsed after the consumption of electricity, the learned counsel for the petitioner drew my attention to the provisions of Section 24 of the Electricity Act and Section 455 of the Municipal Corporation Act. The said provisions read as follows :
"24. Discontinuance of supply to consumer neglecting to pay charge. -
(1) Where any person neglects to pay any charge for energy or any sum, other than a charge for energy, due from him to a licensee in respect of the supply of energy to him, the licensee may after giving not less than seven clear days' notice in writing to such person and without prejudice to his right to recover such charge or other sum by suit, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer.
(2) Where any difference or dispute which by or under this Act is required to be determined by an Electrical Inspector, has been referred to the Inspector before notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by this section until the Inspector has given his decision : Provided that the prohibition contained in this Sub-section shall not apply in any case in which the licensee has made a request in writing the consumer for a deposit with the Electrical Inspector of the amount of the licensee's charges or other sums in dispute or for the deposit of the licensee's further charges for energy as they accrue, and the consumer has failed to comply with such request.
445. In any case not expressly provided for in this Act or any bye law made there under any sum due to the Corporation on account of any charge, costs, expenses, fees, rates or rent or on any other account under this Act or any such bye-law may be recoverable from any person from whom such sum is due as an arrear of tax under this Act: Provided that no proceedings for the recovery of any sum under this section shall be commenced after the expiry of three years from the date on which such sum becomes due."
(8) It was submitted by Shri Thadani that on a correct interpretation of Section 24, the amount becomes due the moment electricity is consumed and under Section 455 of the Corporation Act this amount cannot be recovered more than three years after it has become due.
(9) Charge for electricity which is supplied is made under Section 283 of the Municipal Corporation Act by the respondent at such rates as may be fixed from time to time by the respondent with the approval of the Corporation. The method in which the charges are to be calculated is to be in accordance with the provisions of Section 23 of the Indian Electricity Act. The, rate which is specified has reference to the electricity consumed and this consumption is recorded by the meter which is installed and maintained by the respondent. Bills are sent, under the Conditions of Supply stipulated by the respondent, either monthly or bimonthly. It is not disputed that the period with in which the electricity charges are to be paid is stipulated in the bill so supplied and, further, there is an incentive to pay the electricity charges within a shorter period in which case a rebate is also allowed.
(10) Section 24 inter alia, provides that if a person neglects to pay any charge for energy which is due from him then the licensee may give not less than 7 days clear notice in writing and thereafter without prejudice to his right to recover such charge by suit, it can cut off the supply of electricity. According to the learned counsel for the petitioner this provision gives an indication that the bill cannot be sent more than three years after the electricity has been consumed because for the amount so due the period of limitation for filing a suit is three years.
(11) As I read Section 24 of the Electricity Act and Section 283 of the Corporation Act, it appears to me that the amount of charges would become due and payable only with the submission of the bill and not earlier. As has been mentioned hereinabove, it is the bill which stipulates the period within which the charges are to be paid. The period which is provided is not less than 15 days after the receipt of the bill. If the word "due" in Section 24 is to mean consumption of electricity, and if the argument of the learned counsel for the petitioner is correct, it would mean that electricity charges would become due and payable the moment electricity is consumed and if charges in respect thereof are not paid then even without a bill being issued a notice of disconnection would be liable to be issued under Section 24. This certainly could not have been the intention of the Legislature. Section 24 gives a right to the licensee to issue not less than 7 days notice if charges due to it are not paid. The word "due" in this context must mean due and payable after a valid bill has been sent to the consumer. It cannot mean 7 days notice after consumption of the electricity and without submission of the bill. Even though the liability to pay may arise when the electricity is consumed by the petitioner, nevertheless it becomes due and payable only when the liability is quantified and a bill is raised. Till after the issue and receipt of the bill the respondents have no power or jurisdiction to threaten disconnection of the electricity which has already been consumed but for which no bill has been sent.
(12) Section 455 of the Municipal Corporation Act states that no proceeding for recovery of any sum which is due shall be commenced after the expiry of three years on which the sum becomes due. As I have already observed, the electricity charges become due after the bill is sent and not earlier. This being so, the proviso to Section 455 will apply only when the bill has been sent and the remedy available with the respondents for filing a suit to recover the said amount would come to an end after three years elapse after the electricity charges have become due and payable. To put it differently, the provisions of Section 455 would come into play after the submission of the bill for electricity charges and not earlier.
(13) There is no provision either under the Municipal Corporation Act or under the Electricity Act which provides the period within which a bill for electricity charges must be sent. According to the Conditions of Supply the bill is to be sent monthly or bimonthly but if no bill is sent who is the loser. The loser obviously is the respondent-licensee who is entitled to receive money for the electricity consumed by a consumer but is not in a position to receive the same unless and until it sends a bill. It is true that considerable hardship may be caused to a consumer if a bill for the electricity charges is sent after lapse of a number of years and the consumer is asked io pay a large amount in one lumpsum, but it must not be forgotten that for all this period of time the consumer uses the money which would have been legitimately due and payable to the licensee for the electricity admittedly consumed. I am quite sure that if and when occasion arises and such large sums of money are demanded, the respondents would act reasonably and allow sufficient time to the consumers to pay the amount so demanded. Unless and until a statute clearly limits the right of an authority to assess, compute or to send a bill, it cannot be said that authority loses its right to recover the money due to it by sending a bill within three years. Where, however, once a bill has been sent then the period of limitation for recovery of the same would commence and if payment is not made within three years, the right of the respondents to file a suit would be lost.
(14) For the aforesaid reasons it must follow, therefore, that the respondents are at liberty to send a bill for consumption of electricity even three years after the electricity has been consumed.
(15) Turning now to the question as to whether the provisions of Section 26 of the Electricity Act have been complied with or not, it will be seen that under Section 26(2) it is the obligation of the licensee to keep the meter correct. Section 26(6) is concerned with the situation when there is a defect in the meter. The said provision reads as follows :
"26(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 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 less than seven days notice of his intention so to do."
Threading of Section 26(6) indicates that if any party feels that there is a defect in the meter then the other party must be informed of the same. If both the supplier and the consumer agree that there is a defect in the meter then the same will have to be replaced. If there is no agreement on this issue, then the matter has to be referred to and decided by an Electrical Inspector. It is the Electrical Inspector who will then decide whether the meter has ceased to be correct or not. If he comes to the conclusion that the meter has ceased to be correct then it is he who will estimate the amount of energy which has been supplied to the consumer. Section 26(6) further stipulates that such an estimate by the Electrical Inspector is not to be for a period in excess of six months. In other words, the maximum period for which a bill can be raised in respect of a defective meter is six months and no more. Therefore, even if a meter has been defective for, say, a period of five years, the revised charge can be for a period not exceeding six months. The reason for this is obvious. If is the duty and obligation of the licensee to maintain and check the meter. If there is a default committed in this behalf by the licensee and the defective meter is not replaced, then it is obvious that the consumer should not be unduly penalised at a later point of time and a large bill raised. The provision for a bill not to exceed six months would possibly ensure better checking and maintenance by the licensee.
(16) When Section 26(6) provides for the Electrical Inspector taking a decision on disputed questions, implicit in this is the- requirement of the Inspector following the principles of natural justice. Before the Inspector, therefore, gives his opinion as regards the state of the meter and before he comes to the conclusion as to what was the extent of the electricity consumed during the period when the meter was defective, both the parties have to be given a reasonable opportunity of representing their case and being heard. The decision which is taken without affording such opportunity would not be a valid decision in law.
(17) This provision came up for consideration before a Division Bench of the Madhya Pradesh High Court in the case of Hamidullah Khan v. The Chairman, Madhya Pradesh Electricity Board, Rampur, Jabalpur and Ors., . The head note of the said decision succinctly brings out the ratio of the case and the same is as under :
"WHERE the Electricity Board unilaterally removed the meters and installed a check meter, on the ground that the meters in question were not recording the consumption correctly and digital figures were found disturbed without getting the dispute determined by the Electrical Inspector, and accordingly the Board sent a revised bill for five years without referring the matter to the Electrical Inspector, the demand under the revised bill was liable to be quashed. The demand so made was clearly illegal for following reasons. First, the Board removed the meters without referring the dispute to the Electrical Inspector and contravened the Proviso to Section 26(4). Secondly, the Board itself decided that the meters installed were incorrect when such a decision could be given only by the Electrical Inspector. Thirdly, the Board illegally estimated the quantity consumed, as such an estimate could be made only by the Electrical Inspector under Section 26(6) and not by the Board unilaterally. Fourthly, the revised bill for a period of five years was wholly unjustified for even when the matter is referred to the Electrical Inspector under Section 26(6), the revised estimate could cover only a period of six months and not beyond that. Further, in such a case, it could not be said on the basis of Section 24(1) that the consumer should have referred the matter to the Electrical Inspector nor could it be said that Clause VI(3) of the Schedule would be attracted. Section 24(1) which empowers the Board to disconnect the supply in case the consumer neglects to pay the charges can apply only when the bill is sent by the Board demanding the charges is valid in law. It is in such cases that the Board has power to cut off the supply unless the consumer had made a reference to the Electrical Inspector before notice was issued to the consumer. However, if the consumer has paid the bills in accordance with the meter reading and the Board issues revised bills on the plea that the meter was not correct which fact is disputed by the consumer, it would be for the Board to refer the matter to the Electrical Inspector for getting a decision on the question whether the meter was correct and also for getting the quantity of energy consumed during the period the meter is found to be not correct, estimated. The meter reading subject to the decision of the Electrical Inspector and in the absence of fraud, is conclusive proof of the amount of quantity of the electrical energy consumed. This is specifically stated in Section 26(6). It is, therefore, the party who wants to challenge the meter reading that has to make the reference to the Electrical Inspector. Till the Electrical Inspector decides that the meter was incorrect, the reading is conclusive and final between the parties. Clause VI(30) of the Schedule which is a general provision, will have no application to the case in question as specific provision is made in the Act in the form of Section 26(6)."
In my opinion law has been correctly enunciated in the aforesaid decision and I am in complete agreement with the same.
(19) With regard to the last contention, namely, as to what is to be the corresponding billing period in calculating the electricity charges in case of defective meter, the answer is clearly provided by Clause 22(d), of the Conditions of Supply, which reads as under :
"(D) If at any time the meter belonging to the Undertaking and installed at the consumer's premises is found defective, the same shall be replaced by Undertaking. For the period during which the meter remained defective, the consumption shall be determined as follows:
(I) Average recorded for the previous three season months for all consumers including perennial factories except those as brought out under items (ii) below.
(II) For seasonal factories and licensees either average of previous three months as in (ii above or last year's consumption for a similar period whichever is considered suitable by the Undertaking."
The reading of this clause shows that if there is a defect, say for instance, in the meter for the months of May to July 1973 then "the previous 3 season months" would be for the same months but for the years 1970, 1971 and 1972. It is obvious that if there is a defect in the meter in the month of December, the amount of electricity consumed cannot be estimated by having reference to the consumption in the month of June or July, during which time the consumption may be higher because of fans, coolers, etc. In the present case, while estimating the consumption of electricity for the period 11th January, 19'73 to 29th September, 1973 the respondents have referred to the correct months from January to September but for the wrong year. Instead of comparing this period with January to September, 1970, 1971 and 1972, it has estimated the consumption for the period January, 1973 to September, 1973 by reference to the actual consumption in January to September, 1974. This it could not do and this was in clear violation of Clause 22(d), extracted above.
(20) For the aforesaid reasons the writ petition is allowed. A writ of mandamus is issued quashing the bill dated 1st November, 1980 whereby a demand for Rs. 1183.36 was raised. The petitioner will be entitled to costs. Counsel's fee Rs. 500.