Full Judgment Text
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PETITIONER:
BELWAL SPINNING MILLS LTD. ETC. ETC.
Vs.
RESPONDENT:
U.P.STATE ELECTRICITY BOARD AND ANR.ETC.ETC.
DATE OF JUDGMENT: 10/07/1997
BENCH:
G.N. RAY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
WITH
(CIVIL APPEAL NOS. 1571 OF 1987, 2538 OF 1985 AND 1255 OF
1986)
J U D G M E N T
G.N.RAY,J.
The appeals arising out of Special Leave Petition Nos.
5262-64 of 1992 are directed against order dated February
19, 1992 passed by the Division Bench of the Allahabad High
Court disposing of Writ Petition Nos. 10379 of 1988
challenging the notice dated April 26, 1988 and the demand
dated May 17, 1988 of the U.P.State Electricity Board and
Writ Petition No. 16723/88 and 16325/90 challenging the
validity of the bills for the month of June and july, 1988
issued by the u.p. State Electricity Board and also the
deamdn dated June 14, 1990 made by the said Board. By the
impugned judgment dated Febraury 19, 1992, the High Court
guashed various demand notices issued to the appellant on
the basis of check meters installed by the respondent
U.P.State Electricity Board and directing that payment for
six months would be made on the basis of estimate of
Electrical Inspector dated october 10, 1990 and further
directing that the fresh bills for the period 7.9.87 to
10.10.90 be issued on the basis of new meter. By the order
dated March 10, 1992, the Division Bench of the Allahand
High Court passed an interim order on another Writ Petition
filed by the appellant on March 9, 1992 challenging the
action of the U.P. State Electricikty Board in respect of
the bill dated January, 1992 and disconnecting the supply of
electricity in the factory of the appellant. By the order
dated March 10, 1992, the High Court directed the appellant
to deposit Rs. 10 lacs and on such deposit, the u.P. State
Electricity Board was to restore the connection within 24
house and also directing the U.P. State Electricity Board to
prepare the bills for the period subsequent to 10.10.90
within a month with a further direction to the appellant to
pay such bill within a month thereafter.
The relevant facts leading to the controversy as to the
raising demands for the bills and the consequential
direction passed by the High Court on February 19,1992 and
March 10, 1992 are stated hereunder.
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On Febraury 7, 1986 U.P. State electricity Board
installed a meter bearing No. 5850497 in the factory of the
apopellant. The Board carried out periodical inspection and
tests and had raised the bills on the basis of the said
installed meter and the appellant had also paid such bills.
On September 7, 1987, the U.p. State Electricity Board
issued a notice raising doubt about the correctness of the
said meter No. 5850497. On October 25, 1987, the appellant
controverted the contents of the said notice of the
Electricity Board and asserted that the meter was correct.
No reference to the Electrical Inspector was made under
Section 26 of the Electricity Act, 1910 by the Board. The
Board installed a check meter on November 30, 1987. The
appellan, however, deposited the testing fee and requested
the Electricity Board to check the said test meter. The
Board, however, continued to raise the bills on the basis of
the said check meter for the period December, 1987 to May,
1988. On April 26, 1988 to November, 1987 could be revised
o the basis of check meter and sought information for the
purpose of revising of the bills prior to 1987. On May 17,
1987, the Electricity Board raised a demand of
Rs.10,70,886.82 for the period May, 1987 to November, 1987
on the basis of readings in the check meter and threatene
the appellant that the electricity connection would be
discontinued if the payment was not made. It was at this
stage that the appellant moved a Writ Petition No. 10379 of
1988 challenging the said notice dated April 26, 1988 and
the demand datd may 17, 1988. During the pendency of the
said Writ Petition, the electricity Board again raised bills
for teh months of June, 1988 on the basis of check meter and
also thereatened the appellant that disconnection would be
restorted to if the payment was not made. The appellant
then moved another Writ Petition No. 1672/88 in the
Allahabad High Court challenging the said bills for June and
July, 1988. By an interim order, the High Court restrained
the desconnection of the electric supply subject to
thepayment of electricity dues by the appellant on the basis
of original meter reading and furnishing security and bank
guarantee for Rs.1 lakh every month. The Electricity Board
raised additional demand of Rs. 5,54,963.64 ending July 1988
on the basis of check meter. The appellant moved the third
Writ Petition on June 21 1990 being writ petition No.
16325/90 challenging the demand dated June 4, 1990 for the
said sum of Rs. 5, 54,963.64. The High Court passed an
interim order staying the operation of the demand and
directed the appellant deposit a sum of Rs. 1,50,000/-. It
may be stated that on July 9, 1988 the appellant made an
application for reference to the Electrical Inspector to
check the correctness of the original meter and also the
check meter. Between 26th June, 1990 and 28th June, 1990,
the work of inspection was carried out and on October 10,
1990 the Electrical Inspector submitted a report containing
his decision under Section 26(6) of the Electricity Act,
1910. In the said report, the Electrical Inspector held
that the original meter as well as the check meter
incorrect. The Electrical Inspector made an estimae of the
energy supplied to the appellant during the period of six
months from December, 1989 to May, 1990 and authorised the
Board to raise a deamnd accordingly for a period of six
months and the Electrical Inspector also directed that the
original meter as well as the check meter should be
installed under SEction 26(1) of the Electricity Act.
As aforesaid, on Febraury 19, 1992, by common judgment
the High Court disposed of all the said Writ Petitions by
quashing various demand notices issued on the basis of the
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check meter and directing that the payment be made on the
basis of estmate of Electrical Inspector dated October 10,
1990 in respect of the said period of six months and also
directed that fresh bills for teh period September 7, 1987
to October 10, 1990 be issued on the basis of new meter.
Thereafter, the fourth Writ Petition not numbered as yet was
moved by the appellant on March 9, 1992 in respect of bill
for January, 1992 in which an interim order was passed on
March 10, 1992. Such interim order is also impugned in one
of these appeals.
MR. Sunil Gupta the learned counsel appearing for the
appellant in these appeals has contended that under SEction
20 of the Indian Electricity Act, 1910, the State
Electricity Board being the licensee has power to enter the
premises of the appellant and to remove fittings where a
supply f energy is no longer required. The licensee has
also the power of inspecting, testing, repairing or altering
the electric supply-lines, meters, fittings and apparatus
for the supply of energy belonging to the licensee. The
Board is also empowered to ascertain the amount of energy
supplied or the electrical quantity contained in the supply.
Mr. Gupta has drawn the attention of the Court to
Section 26(6) of the India Electricity Act, 1910 as it stood
before the amendment to the following effect.
Section 26(60 : Where any
difference or dispute arises as to
whether any meter rferred 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, or a competent person
specially appointed by the State
Government in this behalf, and
where the meter has, in the opinion
of such Inspector or person, ceased
to be correct, such Inspector or
person shall estimate the amount of
the energy supplied to the consumer
or the electrical quantity
contained in the supply, during
such time as the meter shall not in
the opinion of such Inspector or
person have been correct, and where
the matter has been decided by any
person other than the Electrical
Inspector, an appeal shall liew to
the Inspector, whose decision shall
in every case be final; but save as
aforesaid, the register of the
meter shall, in the absence of
frand, be coclusive peroof of such
amount of 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 noless than seven days’
notice of his intention so to do.
Mr. Gupta has also drawn the attention of the Court to
the provisions of Section 26 of the Indian Electricity Act
as it stands amended by Act No.32 of 1959 :-
26 Meters : (1) In the absence of
an agreement to the contray, the
amount of energy supplied to a
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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 :
Proided 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) Where the consumer so enters
into an agreement for the hireof a
meter, the license shall keep the
meter correct, and, in default of
his doing so, the consumer shall,
for so long as the default
continues, cease to be liable to
pay for the hire of the meter.
(3) Where the meter is the property
of the consumer, he shall keep the
meter correct, and in default of
his doing so, the licensee may,
after giving him seven days notice,
for so long as the default
continues, cease to supply energy
through the meter.
(4) The licensee or any person duly
authorised by the licensee shall,
at any reasonable time and on
informing the consumer of his
intention, have access to, and be
at liberty to inspect and test, and
for that purpose, if he thinks fit,
take off and remove any meter
referred to in sub-section (1) :
and except where the meter is hired
as aforesaid, all reasonable
expenses of, and incidental to,
such inspecting testing, taking of
and removing shall, if the meter is
found to be otherwise than correct,
be recovered from the consumer,
and, where any difference or
dispute arises as to the amount of
such reasonable expenses, the
matter shall be referred to an
Electrical Inspector, and the
decision of such Inspector shall be
final:
(5) ........... .........
..........
(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
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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 applis 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) In addition to any meter which
maybe placed upon the premises of a
consumer in pursuance of the
provisions of sub-section 91), the
licensee may place upon such
premises such meter, maximum demand
indicator or other apparatus as he
thinks fit for the prupose of
ascertaining or regulating either
the amount of energy supplied to
the consumer, or the number of
hours during which the supplyis
given, or the rate per unit of time
at which energy is supplied to the
consumer, or any other quanity or
time connected with the supply:
Provided that the meter, indicator
or apparatus shall not, in the
absence of an agreement to he
contrary be placed otherwise than
between the distributing mains of
the licensee and any meter referred
to in sub-section (1) :
Provided also, that, where the
charges for the supply of energy
depend wholly or partly upon the
reading indicaing of any such
meter, indicator or apparatus as
aforesaid the licensee shall, in
the absence of an agreement to the
contrary, keep the meter, indicator
or apparantus correct, and the
provisions of sub sections (4) (5)
and (6) shall in that case apply
as though the meter, indicator or
apparatus were a meter referred to
in sub-section (1).
Explanation - A meter shall be
deemed to be "correct" if it
registers the amount of energy
supplied, or the electrical
quantity contained in the supply,
within the prescribed limits of
error and a maximum demand
indicator or other apparatus
referred to in sub-section (7)
shall be deemed to be "correct" if
it complies with such conditions as
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may be prescribed in the case of
any such indicator or other
apparatus."
Mr. Gupta has also drawn the attention of the Court to
Rule 57 of the Indian Electricity Rules, 1956. Rule 57 runs
to the following effect:
Rule 57 -Meter, maximum demand
indicators and other apparatus on
consumers’ premises
(1) Any meter or maximum demand
indicator or other apparatus placed
upon a consumer’s premises in
accordance with SEction 26 shall be
of appropriate capacity and shall
be deemed to be correct if its
limits of error are within the
limits specified in the relevant
Indian Standard Specification and
where no such specification exists,
the limits of error do not exceed 3
per cent above or below absolute
accuracy at all loads in excess of
one tenth of full load and upto
full load.
(2) No meter shall register at no
load.
(3) Every supplier shall provide an
maintain in proper condition such
suitable apparatus as may be
prescribed or approved by teh
Inspector for the examination,
testing and regulation of meters
used or intended to be used in
connection with the supply of
energy:
Provided that the supplier may with the approval of the
Inspector and shall, if required by the Inspector, enter
into a joint arrangement with any other supplir for the
purpose aforesaid.
(4) Every supplier shall examine,
test and regulate all meters,
maximum demand indicators and other
apparatus for ascertaining the
amount of energy supplied before
first installation at the
consumer’s premises and at such
other intervals as may be directed
by the State Government in the
behalf.
(5) Every supplier shall maintain a
register of meters showing the date
of the last test, the error
recorded at the time of the test,
limit of accuracy after adjustment
and final test, the date of
installation, withdrawal,
reinstallation etc., for the
examination of the Inspector or his
authorised representative.
960 Where the supplier has failed
to examine, test and regulate the
meters keep records thereof as
aforesaid, the Inspector may cause
such meters to be tested and sealed
at the cost of the owners of the
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meters in case it is found
defective."
Mr. Gupta has contended that on a correct reading of
SEction 26 as a whole along with all important deeming
clauses in the Explanation containing the definition of
correct meter as also along with reading of section 26(1) of
the Indian Electricity Act, it would be evident that there
can be in the eye of law only one ’correct meter’ in the
case of any consumer. The deeming clause in the explanation
statutorily determines and declares the correctness of the
meter if only it registers the amount of energy supplied
within the prescribed limits of error and leaves the same to
nobody’s liking or imagination. If the meter so installed
registers the amount of energy, the Board has no choice but
to accept it as correct and once a correct meter it must be
deemed to be correct all along unless it is doubted and
dispute is raised and thereafter such meter is despensed
with on being decided that it is incorrect by the Electrical
Inspector in accordance with the procedure prescribed by
Section 26(6) of the Indian Electricity Act. Mr. Gupta has
submitted that so long meter on being adjudicate as
defective is not discarded by replacing a correct meter, the
consumer treats the said meter as the correct and can resist
raising the bill on the basis of any other meter.
Mr. Gupta has submitted that in the instant case, the
Board has not taken any step to refer the dispute to
Electrical Inspector to correct the meter even when it had
doubted about the correctness of the installed meter. The
appellant also did not raise any dbout about the correctness
of the said meter. But during the pendency of the Writ
Petition, the appellant even though not required to raise
dispute took steps to get the dispute as to the correctness
of the meter referred to the Electrical Inspector. Mr. Gupta
has submitted that the check meter installed by the Board
cannot be treated as a correct meter or replacement of
original meter. The check meter was installed by teh Board
for the purpose of checking the correctness of the original
meter installed earlier. Therefore, the very purpose of the
check meter was to take the reading of the check meter fot
the purpose of verifying the reading in the original meter
installed by the Board. Mr. Gupta has submitted that until
and unless any dout raised about the correctness of the
meter is finally scrutinised and decided by the Electrical
Inspector on a reference made to such authority, the Board
should not be permitted to install another meter simply by
doubting the correctness of the earlier meter installed by
it. Any such libery to be given to the Board will amount to
permitting the Board to short circuit and avoid the fair and
impartial mechanism provided under Section 26 of the Indian
Electricity Act. Mr. Gupta has contended thay any proposal
of correctness of one meter by another meter should not be
permitted until the corrrectness of the earlier meter
installed is finally decidedby Electrical Inspector as
incorrect. Mr. Gupta has contended that any libery granted
to the Board to continue to dislodge and dislocate one meter
after anotehr meter arbitrarily, whimsically and without any
reason and without the concurrence of the consumer will be
loaded with the potentiality of grave mischief and high
handedness at the hands of the Electricity Board and such
action is bound to seriously impair the rule of law between
the parties which is so delicaely maintained by the
different parts of Section 26 of the Indian Electricity Act.
According to Mr. Gupta, the different parts of Section
26 of the Act only manifest that the original correct meter
once duly installed with the concurrence of concerned
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parties, acquires a sacrosanct status. After the
installation, neither party has the right to take off or
remove or replace the meter. Sub-section (4) of Section 26
permits the originally installed correct meter to be taken
off and removed by the Electricity Board, if at all for the
purpose of inspecting and testing, such removal is
necessary. There is no unlimited liberty granted to the
Electricity Board or the licensee to take off and remove the
originally installed meter and replace the same by another
meter by treating such other meter as correct. Sub-section
(6) of Section 26 of the Electricity Act requires that save
as estimated by the Electrical Inspector for a period not
exceeding six months, the register of the meter shall be
conclusive proof of the amount of energy supplied to the
consumer. This limit of six months, according to Mr. Gupta,
is to be corelated with the primary rule contained in sub-
section (1) of Section 26 of the Act, which requires that
the amount of energy supplied shall be ascertained by means
of a correct meter.
Mr. Gupta has ubmitted that Section 21 of the Indian
Electricity Act bars and disentitles the Board from
prescribing any special form of appliance and it also
indicates that the original correct meter cannot be tinkered
with. Regulation 21 (ii) of the Electricity (Supply)
Regulations 1984 also provides for a check meter only for
checking the accuracy of the original meter. Sub-Section
(7) of Section 26 permits any other meter to be placed upon
the consumer’s premises only in addition to and not in lieu
of or in replacement of the meter already placed upon the
said premises in pursuance of the provisions of sub-section
(1) of Section 26 of the Act. If the Board places in the
consumer’s premises a check meter and thereafter finalises
or regularises it so as to bid farewell to the original
meter installed under sub-section (1) for purposes of
ascertaining the amount of energy supplied to the concumer,
it must be held to be a breach of sub-section (7) inasmuch
as such placement is in lieu of and not in place of the
original meter. Mr. Gupta has submitted that the check
meter has only been placed to check the original meter and
suchmeter cannot directly dislodge and replace the said
original meter and not indirectly allow to do so by means of
any process of formality of finalisation or regularisation
or some other such paper ritual.
Mr. Gupta has further contended that the law courts in
India have decided that a check meter can only be used for
checking and not for the purposes of regular reading,
billing etc. Even the impugned judgment had disapproved of
such action and quashed the check meter bills inter alia on
the finding that as the power to decide the dispute about
the correctness of the meter installed at the consumer’s
remises vests in Electrical Inspector under sub-section (6)
of Section 26, it s not open to the Board to assign that
power to itself. it may be open to the Board to install the
check meter to find out the correctness of the meter
originally installed at the consumer’s premises but it is
not open to it to send bills on that basis for the period of
dispute. The Board’s decision about the correctness of
meter is not binding on the consumer and what is binding on
him is the decision of the Electrical Inspector under Sub-
section (6) of Section 26. Under these circumstances, if
the Board issues any additional bills for the disputed
period, it is not liable to be paid by the consumer. The
consumer is required to make payment provisionally, during
the period of dispute, on the same basis on which payment
was being made before the dispute has arisen.
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Mr. Gupta has contended that not only a new correct
meter cannot be brought in but truly speaking the old
correct meter cannot be taken off or removed or abandoned
except under the provisions of Section 26(6) of the
Electricity Act. Mr. Gupta has also contended that although
sub-section (7) of Section 26 permits the Board to use, in
addition to the meter installed under sub-section (1), such
other apparatus as it thinks fit for the purpose of
scertaining the amount of energy supplied, under the second
proviso of the said sub-section, the Board has an obligation
to keep also such apparatus correct. mr. Gupta has further
contended that second proviso to sub-section (7) of Section
26 also requires that the provisions of sub-sections (4),
(5) and (6) shall mutatis mutandis also apply to the said
additional apparatus as though it was the meter referred to
under sub-section (1). in other words, if the Board has any
doubt about the correctness of such other apparatus then it
becomes the duty of the Board to make a formal reference of
the dispute to the Electrical Inspector after giving the
consumer not less than seven days’ notice of its intention
to do so. Any correctness undertaken otherwide would not be
a reference under Sub-section (6) of Section 26 of the Act
and in that event, as declared by the saving clause in sub-
section (6) of Section 26 of the Electricity Act, the
register of the meter shall alone be conclusive proof of the
amount of energy supplied to the consumer.
Mr. Gupta has also contended that the Electricity Board
cannot also unilaterally and without notive add any further
compliant wih regard to any other apparatus by merely making
some mention of it in a letter forming part of the
correspondence taking pace in connection with a validly
referred dispute relatin, to teh meter. Much less can it do
so by resorting to such methods in the course of a
correspondence taking place under a reference made by the
consumer.
It has also been contended by Mr. Gupta that any
attempt at inviting the Electrical inspector who is in
seisin of the original dispute relaing to the meter, to also
decide the question of correctness of an additional
apparatus midstream and that too without any notice and the
copy of the complaint being given to the consumer would be
ab initio illegal and void and the Electrical Inspector’s
decision upon the matter, once again without ensuring that
notice and copy of the complaint has been furnished to the
consumer, would only further compoiund the breach of
principles of natural justice and fair play.
According to Mr. Gupta, any controversy,
correspondence, opinion, adjudication etc. apearing on the
record of the Board or of the Electrical Inspector at any
point of time with regard to the correctness either of the
meter or of any other apparatus shall deserve to be
disregarded and ignored by a court of law if the same has
not taken place and trasnpired in accordance with
theprocedural requirements of sub-section (6) of Section 26
of the Electricity Act.
Mr. Gupta has very seriously contended that after the
amendment of Section 26, the legal position is that when a
dispute is raised either by consumer or by licensee about
the correctness of the meter installed at the premises of
the consumer, such dspute is got to be rexolved by making a
reference to the Electrical Inspector. The Electrical
Inspector after amendment of Section 26 of the Electricity
Act, has been authorised to make estimate of the electricity
consumed by the consumer upon a finding that the installed
meter was defective only for a period of six months prior to
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the date of reference of the dispute to the Electrical
Inspector. For any other period beyond that period of six
months, the reading on the basis of the installed meter must
form the basis of raising the bills. It is neither
permissible under the scheme of Section 26 of the
Electricity Act nor it can be presumed that from any
particular point of time, the original installed correct
meter had gone wrong so that revised bills can be drawn from
such point of time. Since it was the duty of the licensee
namely the Electricity Board to keep the meter installed at
the consumer’s premises in a correct position for which the
licensee had the right of access in the premises of the
consumer, on the failure of the licensee to check the meter
installed at the premises of the consumer and to make
reference to the Electrical Inspector whenever any dbout
arises about the correctness of the meter installed and
getting appropriate adjudication by the Electrical
Inspector, the licensee cannot be permitted to raise any
revsed bills beyond a period of six months from the date of
reference of the dispute to the Electrical Inspector on the
basis of any meter subsequently installed at the premises of
the consumer after the finding of the Electrical Inspector
that the earlier meter installed was defective.
Mr. Gupta has subitted that in the instant case,
attempt has been made by the Electricity Board to raise
revised bills on the basis of the check meter exceeding the
period of six months from the date of reference of the
dispute. MR. Gupta has contended that once on a reference,
the Electrical Inspector comes to the finding that the meter
installed at the premises of the consumer is defective, the
legislature, in its wisdom, has given the Inspector to make
an estimate of the amount of electricity consumed for a
period of only six months prior to the date of reference.
The estimate made by the Electrical Inspector would be held
to be correct index of consumption of the electricity for
the said statutory period of six months because of the
statutory presumption of incorrectness of the meter upto
that period. But beyond the said period of six months, the
licensee is not permitted to raise any dispute about the
incorrectness of the bills raised and the licensee can only
raise bills on the basis of the installed meter for all
earlier period beyond the said statutory period of six
months.
Mr. Gupta has submitted that unfotunately, the High
Court has failed to appreciate the provisions of Section 26
of the Electricity Act and by the impugned order the High
Court has allowed the respondent Electricity Board to raise
bills for the period exceeding the said six months for which
estimated amount of electricity consumed was determined by
the Electrical Inspector on the basis of the reading of the
meters installed at the premises of the appellant. Such
order of the High Cort is clearly illegal and against the
provisions of Section 26 f the Electricity Act and thus it
cannot be sustained.
So far as the interim order passed on March 10, 1992
since assailed in one of the appeals is concerned, the High
Court according to Mr. Gupta, has passed the said order
without appreciating that such order was without
jurisdiction and outside the scope and ambit of the last
Writ Petition filed by the appellant challenging the
validity of the bill for the month of January 1992 only.
Mr. Gupta has submitted that the impugned interim order of
March 10, 1992 passed on the last Writ Peition of the
appellant is manifesly unjust, improper and illegal.
Mr. B. Sen, learned senior counsel appearing for the
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U.P. State Electricity Board has, however, submitted that
the Board has the power to install a check meter for the
purpose of checking the functioning of the installed meter
and to regularise the bills on the basis of check meter. He
has also submitted that since the licensee has the power to
alter the meter if the installed meter is found defective,
there is no difficulty in treating the check meter as the
regular meter installed in lieu of the original meter.
Therefore, the bills drawn on the basis of the check meter
cannot be held to be illegal. On the question of true
construction of Section 26 (6) of the Electricity Act, Mr.
Sen has submitted that sub-section (6) of Section 26 should
be read in the light of amended sub-section and when so
read, it would be seen that the words ’not exceeding six
months’ have been added by amending Act 32 of 1959. The
result of the amendement is not that any claim of the
licensee in respect of correct meter is restricted only to
the amount of energy supplied to the consumer during a
period not exceeding six months. Mr. Sen has submitted that
the words save as aforesaid the register of the meter shall
in the absence of fraud be conclusive proof of such amount
or quantity means that except in cases where there is a
determination by the Electrical Insepctor that the meter is
not correct, the register of the meter is conclusive proof
of the amount or quantity. After the amendment, the
Electrical Inspector’s jurisdiction to estimate the amount
of energy supplied to the consumer from the incorrect meter
is restricted to a period not exceeding six months. In
other words, the Electrical Inspector’s jurisdiction to
estimate the amount of energy is restricted upto a time
period. This does not mean that the meter is approved as
correct for any period anterior to six months.
Mr. Sen has also submitted that the distinction must be
drawn between the estimating or quantifying the amount of
energy and the duration of the incorrectness of the meter.
The former does not affect the latter. Section 26(6) is not
a section which bars the latter claim either by limitation
or otherwise. Consequently, it is open to th elicensee to
make a claim on the basis of the value of incorrectness
found by the Electrical Inspector in respect of a period
anterior to the maximum six months period for which the
Electrical Inspector can estimate the amount of supply.
MR. Sen has, however, submitted that the claim of the
licensee about the quantum of electricity consumed is not
statutorily conclusive and therefore, such claim may be
subject to contest if any to be made by the consumer.
Mr. Sen has submitted that the above interpretation is
only fair and just and the said interpretation harmonises
the lessening of the burden on the Electrical Inspector for
which the amendment was effect in sub-section (6) of Section
26 and also preserves the claim of the licensee which is a
public undertaking and just claim should not be allowed to
be abandoned or defeated. Mr. Sen has submitted that it was
open to the licensee to make revised bills for teh quantum
of electricity consumed by the consumer by correcting the
bills to the extent of error in recording as indicated by
the Electrical Inspector. Therefore, the impugned decision
of the High Court must be sustained.
Mr. Sen has also submitted that although the last Writ
Petition was moved for assailing the bill raised for a
particular month but the contention raised in the Writ
Petition is the same, namely, excepting the ’six months
period’ for which the estimate was prepared by the
Electrical Inspector, for all other periods prior to such
estimation, must be covered by the readings in the installed
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meter even if the installed meter has been found to be
defective and no revised bill can be drawn and payment can
be claimed on the basis of revised bills for any period
exceeding six months. Since much contention cannot be
accepted and the High Court has already answered against the
appellant in disposing of the earlier three writ petitions,
the impugned interim direction give by the High Court
appears to be just and proper and no interference is called
for against the judgment of the High Court under Article 136
of the Constitution. Mr. Sen has, therefore, submitted that
these appeals should be dismissed.
Mr. T.R. Andherujina, learned Solicitor General, has
appeared for the Municipal Corporation fo Greater Bombay,
the appellant in Civil Appeal Nos. 2538 of 195 and Civil
Appeal No. 1571 of 1987. Civil Appeal No. 2538 of 1985 is
directed against the judgment dated April 4, 1985 passed by
the Division Bench of the Bombay High Court allowing Appeal
No. 173 of 1979 preferred by the respondent Bharat Barrel
Drum Manufacturing Company Limited assailing the order of
dismissal of the Writ Petition of the said respondent by a
Single Judge of the High Court, Civil Appeal No. 1571 of
directed against Order dated July 1, 1987 passed by the
Division Bench of the Bombay High Court in O.S. Appeal No.
890 of 1983 arising from Misc. Petition No. 1662 of 1979.
The impugned judgment of the Bombay High Court in O.S.
Appeal No.890 of 1983 has been passed following the decision
of the Division Bench of the Bombay High Court dated April
4, 1985 in Bharat Barrel Drum Manufacturing Company’s case.
Mr. Solicitor General has submitted that in Bharat
Barrel’s case, the appellant checked the correctness of all
meters of multiplying the constant and of actual connections
of CT operated meters and an additional check meter was
installed and on comparison of the two meters, it was
revealed that due to defective connections, the original
meter was registering 76.6% less than of its actual use.
Therefore, the revised bills of 76.6% of energy consumed
from June 1, 1963 amounting to Rs. 2,28,750.70 was served on
the respondent company. The respondent disputed the revised
bills and referred the dispute to the Electrical Inspector
under Section 26(6) of the Electricity Act. The respondent
company moved a Misc Petition No. 376 of 1973 in the Bombay
High Court, on June 20, 1973, and a consent order was passed
in the said petition where the appellant agrred not to
disconnect the electric supply for non-payment of the amoun
demanded during the pendency of the reference. On July 10,
1973, the Electrical Inspector found that the meter in
question was recording 71.9% slow reading and such error was
beyond the prescribed limit. The appellant thereafter
revised its bills in the light of th decision of the
Electical Inspector and reduced the claim and sent the
corrected revised Bills for a sum of Rs. 1,68,402.90 to the
respondent-Company. Such revised bill was also assailed by
the respondent-Company before the Bombay High Court in Misc.
Petition No.1148 of 1973. The learned Single Judge
dismissed the said petition by upholding the claim of the
respondent-appellant. Thereafter, the respondent preferred
the said Appeal No. 173 of 1979 and such appeal has been
allowed by the impugned judgment dated April 4, 1985.
By the impugned judgment, the High Court has held that
once the dispute is referred under Section 26(6) of the
Electricity Act, the licensee is entitled to pay only the
charges payable as per recording by the meter installed and
such further amount as may be held due for a period of six
months by the Electrical Inspector. The High Court has also
held that any amount demanded by the licensee on the ground
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that the meter ceased to be correct for a period for more
than six months cannot be said to be ’due’ for the purpose
of Section 24(1) of the Act and that the power to discnnect
vested in the licensee under Section 24 cannot be exercised
for non-payment of such amount. The High Court has also
held that the licensee cannot revise its bills for more than
six months immediately proceeding the demand. similar claim
by presenting revised bills on account of error due to
incorrect meter reading has also been rejected in the case
of M/s Eagle Theatre by relying on the judgment passed in
Bharat Barrel Drum Manufacturing Company’s case.
The learned Solicitor General has submitted that
Section 24(1) of the Electricity Act empowers the licensee
to cut the supply where a consumer neglects to pay charge of
Electricity due from him after giving seven days’ notice to
the consumer in writing. Where ther is a dispute as to the
correctness of the meter, sub-section (2) of Section 24
requires that licensee shall not exercise powers of
disconnection until the Inspector has given his decision.
Where the Inspector has given his decision estimating the
amount of energy supplied to the consumer under Section
26(6) during such time not exceeding six months and if
consumer does not pay after such a determination, it will be
open for the licensee to issue a notice of disconnection
under Section 24(1) of the Act. Mr. Solicitor General has
also submitted that in respect of the period exceeding six
months, the licensee may make a demand from the consumer on
the basis of value of incorrectness of the meter determined
by the Electrical Inspector. The licensee may issue such a
notice without prejudive to his right to recover such charge
by suit. Mr. Solicitor General has submitted that it is,
therefore not correct that a licensee can under no
circumstances avail of the powers of disconnection under
Section 24(1) on the score of non-payment of the revised
bills relating to a period exceeding six months as referred
to in Section 26(6). Since the appellant can raise the
revised bills on account of incorrect reading in the
installed meter for some defects either in the meter or in
connection to the meter, the impugned decision of the Bombay
High Court can not be sustained and the same should be set
aside by allowing the appeals.
Mr. Gupta in reply has, however, dispute the
submissions made by Mr.Sen and by the learned Solicitor
General. Mr. Gupta has contended that there is no scope for
any assumption that there is in the licensee a right to make
claims for the amount of energy supplied to a consumer even
outside the provisions of SEction 26(1) and Section 26(6) of
the Act. Mr. Gupta has submitted that the assumption of
claims outside Section 26(1) and (6) is patently wrong and
incorrect. According to Mr. Gupta, such assumption and
consequential claim do not reflect true and correct
intention of the legislature but tends to destroy and defeat
the same because the real purpose and scheme of the
legislature hae been to put an end of such claims. Mr.
Gupta has submitted that the interpretation of Section 26(6)
as suggested by Mr. Sen and the learned Solicitor General
will lead to serious conflicts and difficulties and
anomalies of interpretation and it also leads to protected
litigations and vexatious proceedings resulting in grave
hardship and misery to all concerned. Mr. Gupta has
submitted that the Court will keep in mind that the
Parliament could not have intended such harsh and unsettling
consequences. For such contention, Mr. Gupta has referred
to a decision of this Court in Sanjeev Coke Manufacturing
Company Vs. Bharat Cooking Coal Ltd. (198 (1) SCC 147).
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Mr. Gupta has also submitted that it is well settled in
law that express language is necessary whenever any charges
or dues are required to be paid or any new rights or
obligations are create between parties. For such
contention, reference has been made to Craies on Status Law,
(7th Edition, pp. 112 to 117). Mr. Gupta has also contended
that ’conclusive proof clause in Section 26(6) is designed
to govern only such period during which the meter has been
’de jure’ to be presumed to be correct. Mr. Gupta has
submitted that such provision has been made to govern a case
where the inspector holds the meter to be incorrect but is
not able to identify the entire period of incorrectness or
not able for some other reason to estimate the energy
supplied for the entire period of incorrectness. The
conclusive proof clause was meant to legislatively resolve
and settle the claims of the licensee during such an
uncovered or unestimated periof of adjudiated incorrectness.
Mr. Gupta has submitted that the said conclusive proof
clause was provided by the legislature purposely as a matter
of legislative policy to facilitate administrative
expediency and public convenience. Mr. Gupta has also
contended that the Court will accept that interpretation
which assigns a special role and significance to the
’conclusive proog clause in the scheme of Section 26 (6) and
reject any interpretation which would render it otiose,
superfluous and redundant. In support of this contention,
Mr. Gupta has relied on the decision of this Court in J.K.
Cotton (1961 (3) SCR 193) and Radhey Shyam (1989 (1) SCC
591). The Electrical Inspecto on a reference raising
disputeabout the correctness of the meter, is the chosen
Judge and the best Judge appointed by the Legislature to
resolve the dispute. Mr. Gupta has submitted that the true
object of amendment of Sub-section (6) of Section 26 of the
Electricity Act was to eliminate retrospective demand. Mr.
Gupta has submitted that six months’ ceiling was imposed by
the Parliament on the power of the Inspector to form an
estimae of the amount of energy supplied for various reasons
and not merely because of the fact that he may not be able
to decide the period of incorrectness. According to Mr.
Gupta, the true object and purpose of the six months’ceiling
was to ensure that the consumer was not vexed with
retrospective demands for past periods and that too on a
rough and ready esimae basis.
Mr. Gupta has also submitted that under Section 26 (6),
the Parliament has deliberately chosen to deny and disallow
the alleged lcaims of the licensee beyond a period six
months and it is not a case of gap or ’casus omissus’. Mr.
Gupta has submitted that if the Court in the present case
decides to acknowledge the existence of the alleged claims
of licensee outside the six months’ limit, it would amount
not only to legislating but legislating in the teeth of the
provision made by the Parliament in Section 26. Mr. Gupta
has submitted that the licensee does not have any extra
claim over and above the maximum period of six months
provided under Section 26 (6). Such position has been
accepted in various judgments by several High Courts.
Therefore, it must be held that the consistent and widely
accepted judicial interpretation of Section 26(6) does not
permit any claim beyond the said period of six months. The
Parliament has never made any attempt of amending Section
26(6) so as to resolve it of the judicial interpretation.
The silence on the part of the Parliament, therefore,
indicates that the interpretation of Section 26(6) by High
Courts over long stretch of period has rightly the true
intention of the Parliament which, therefore, deserves to be
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accepted by this Court.
Mr. Gupta has lastly submitted that sub-section (6) of
Section 26 is capable of being interpreted differently and
should be interpreted differently for the licensee and
consumer who are not similarly circumstanced. The Consumer
is, at all times, at the mercy of the licensee on the point
that consumer has no option in the matter of inspection of
meters and checking and repairing the same. Mr. Gupta has
further submitted that sub section (6) of Section 26 has to
be interpreted in the light of all other connected limbs of
the statute and with reference to specific context in
question. It is appears to the Court that on account of
short sightedness of the legislative draftsman who drafted
the six months’ rule in the 1959 amendment, unmerited
prejudice and hardship have been caused to the consumers,
the judicial wing may have to depend on its own creativity
so that hardship is not meted out to the consumers. In this
connection, Mr. Gupta has relied on the decision of this
Cout in Punjab Land Development and Reconstruction
Coperation Ltd. Vs. P.O. (1990 (3) SCC 682 para 70).
Mr. Gupta has, therefore, submitted that the impugned
decision of the Allahabad High Court should be set aside and
the said three writ peritions should be allowed and the
impugned interim direction passed in the last Writ Petition
pending before the Allahabad High Court should be set aside.
Similarly the decisions of the Bombay High Court impugned in
the other appeals should be upheld by dismissing the
appeals.
After giving our careful considearation to the facts
and circumstances of the cases in these appeals and the
submissions made by Mr. Gupta, Mr. Sen and MR. Andherujina,
and learned Solicitor General, it appears to us that Section
20 of the Electricity Act authorises the licensee to enter
the premises of the consumer to remove fittings and otehr
apparatus installed by the licensee. Clause (a) of sub-
section (1) of Section 20 authorises the licensee to enter
the premises of the consumer for ’inspecting, testing,
repairing or altering the supplylines, meters, fittings and
apparatus for the supply of energy belonging to the
licensee. The licenses, therefore, can not only enter the
premises of the consumer for insepcting, testing etc. but
the licensee also can alter the meter whenever such
alteraction 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 function 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 proviso to sub-section
(4) of Section 26 only when the dispute as to the functng of
the meter has been referred to teh Electrical Inspector
under Sub section (6) of Section 26. A licensee is
authorised under sub-section (7) of Section 26 to place, in
addition to the meter installed in the premises of consumer
as referred to in Sub-Section (1) of Section 26, other meter
or apparatus as the licensee deem 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.
Check meter is usually installed for the purpose of
checking and ascertaining theproper functioning of the
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installed meter but there is no legal bar for treating the
check meter as an altered meter in place of the meter
installed earlier when on checking the meter the licensee
has found it to be defective. Such power of installing the
meter, replacing it by another mete ris also independent of
existence of any dispute between the consumer and the
licensee.
The expression ’check meter’ has no special
significance or legal incidence for which there is a bar
that check meter cannot be treated as an altered meter if
the licensee intends to replace the defective meter by the
check meter. It will be open to the Electrical Inspector to
ascertain the correctness of the check meter along with the
disputed meter when dispute is referred for adjudication by
the Electrical Inspector and the licensee found its case
with reference to check meter. Prior to the amendment of
Section 26(6) of Electricity Act, the Electrical Inspector
or the competent person specially appointed by the State
Government in this behalf, had a statutory duty to first
determine whetehr the meter in question was defective and
thereafter to estimate the quantity of the electricity
consumed during such time as the meter in the opinion of the
Electrical Inspector or the competent person ’shall not have
been correct’. After the amendment of sub-section (6) of
Sectio 26, the Electical Inspector is the only statutory
authority to decide the dispute about the correctness of the
meter, if such dispute is raised by either of the parties.
If the Electrical Inspector on a reference comes to the
finding that the meer has ceased to be correct, the said
Inspector has a statutory duty to estimate the amount of
energy supplied to the consumer or electrical energy
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.’
(emphasis added)
From the legislative change effected in sub-section (6)
of Section 26, it is evident that prior to the amendment of
sub-section (6), upon a determination that the meterin
question was defective, the Electrical Inspector or the
competent person had a statutory duty to also estimte the
amount of energy supplied for the entire period during which
in the opinion of the said Inspector or the competent
person, the installed meter ’shall not have been correct’.
But after the amendment, on a finding that the meter in
question has ceased to be correct, the Electrical Inspector
has been relieved of the statutory duty to estimate the
total quantity of energy supplied to the consumer for the
entire period during which the meter in the opinion of the
Inspector shall not have been correct. But the Inspector
has the statutory duty to estimate the supply of energy for
a limited period referred to under Sub-section (6), namely,
’during such time not exceeding six months’.
The pint of time with reference to which the
electricity consumed by the consumer is to be estimated by
the Electical Inspector for such period not exceeding six
months’ has not been specifically indicated insub-section
(6) of Section 26. The expression ’during such time’
appearing in sub-section (6) of Section 26 is capable of
different construction, namely, period between
i) date of dispute and date of
reference
ii) date of dispute and date of
inspection
iii) date of reference and date of
adjudication
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iv) date of dispute and date of
adjudication
It does not require any imagination to hold that the
dispute when raised either by the consumer or by the
licensee and reference to Electrical Inspector is made, the
Inspector is expected to consume some time for entering the
reference of dispute, making inspection of the meter in
question and after taking such technial test as may be
necessary to finally adjudicate the dispute as to the
correctness of the meter. Unless the adjudication as to the
proper functioning of the meter is made, the question of
estimating the supply of electricity for the statutory
period during which such meter shall not have been correct,
will not arise. In our view, taking into consideration the
time lag inherent between raising of dispute and
adjudication of such dispute, the expression ’during such
time’ in sub section (6) of Section 26 only means the time
during which the dispute is raised for reference and the
dispute is finally adjudicated. Hence, the estimate of
supply of energy by the Inspector is to be made for a priod
not exceeding six months prior to the date of raising the
dispute for reference to the Electrical Inspector. The
expression ’not exceeding six months’ indicates that the
Electrical Inspector even when comes to the finding that the
meter in question has ceased to be correct, is ot required
in all cases to make estimate of consumption of electricity
for a period upto six months prior to the raising of the
dispute for reference to the Electrical Inspector. In a
given case, it may so happen that the Electrical Inspector
may come to the finding that the meter ceased to be correct
from a particular date which is not upto six months earlier
to the date of raising the dispute for reference. In such
case, the estimate to be prepared by the Electrical
Inspector may not go upt six months prior to the date of
raising the dispute for reference but such estimate will
only cover the period prior to raising the dispute during
which, accroding to the Electrical Inspector, the meter had
ceased to be correct.
The question which, however, arises for decision in
these appeals is that although estimation by the Inspector
may be limited to the statutoy period under Sub-section (6)
of Section 26, but if on the basis of the finding of the
Electrical Inspector it is possible to hold that the meter
in question had ceased to be correct from the date even
prior to six months from the date of raising the dispute,
whether the licensee is competent to raise revised bills for
consumption of Electricity by the consumer for such earlier
period and consequentially cut the supply of electricity for
non payment of revised bills. Mr. Gupta has contended that
within the integrated scheme of the Electricity Act, the
licensee being burdened with the duty to maintain the
correct meer installed by it and coupled with the power to
inspect and check the functioning of such meter from time to
time cannot be permitted to raise any revised bill contrary
to the reading by the installed meter beyond the period of
’six months’ as referred to in sub-section (6) of Section 26
i.e. maximum period of six months prior to the date of
raising the dispute. If the licensee has failed to properly
check the functioning of the installed meter and has not
changed the alleged faulty meter or has not raised dispute
for reference to the Electrical Inspector, the licensee
cannot but suffer for its inaction under the scheme of the
Indian Electricity Act.
Both Mr. Sen and Mr. Andherujina, the learned Solicitor
General, have disputed such contentionof Mr. Gupta.
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According to Mr. Sen and Mr. Ahdherujina sub-section (6) of
section 26 does not deny the licensee to claim payment on
account of consumption of electricity beyond the statutory
period for which no estimation by the Electrical Inspector
has to be made, if it is established that the meter ceased
to be correct even prior to the said statutory period of six
months.
Sub-section (1) of Section 26 provides that in the
absence of any agreement to the countrary, the mount of
energy supplied to a consumer or the electric quantity
contained in the supply, shall be ascertained by means of a
correct meter. Sub-sections (2), (3) and (4) of Section 26
provide for the inter se rights and futies of the consumer
and the licesee to keep the meter and other apparatus
necessary for recording the consumption of electricity by
the consumer in good condition and for such purpose the
licensee has been clothed with the power to enter the
premises of the consumer for testing, checking, maintaining
ect the meter and other apparatus and for repairing and
altering the same if needed. Explanation to sub-section (7)
of Section 26 provides that ’a meter shall be deemed to be
’correct’ if it registers the amount of energy supplied or
the electrical quantity contained in the supply within the
prescribed limits of error and a maximum demand indicator or
other appartatus referred to in sub-section (7) shall be
deemed to be correct if it complies with such conditions as
may be prescribed in the case of any indicator of other
apparatus."
Sub-section (6) of Section 26 provides that in case of
any difference or dispute as to whetehr 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
Electrical Inspector. It also provides that on finding that
meter ceased to be correct, the Electrical Inspector has to
make an estimate of consumption of electricity during the
statutory period as referred to in sub-section (6) of
Section 26. What is the statutory period for which
estimation is to be made by the Electrical Inspector has
already been indicated. Sub-section (6) of Section 26 also
provides that save as aforesaid, namely, estimation of
consumption of electricity by the Electrical Inspector for
the statory period, "the register of the meter shall, in the
absence of fraud, be conclusive proof of such amount or
quantity."
(emphasis added)
On a conjoint reading of various sub-section of Section
26 of the Electricity Act, it is evident that consumption of
electricity or electrical quantity in the supply, shall be
ascertained by means of a correct meter and the meter and
other apparatus for recording the consumption of electricity
by a consumer will be deemed to be correct if the recording
is within the permissible limit of error as prescribed. If
a dispute as to the correctness of the meter is raised by
any party for reference, such dispute can be decided only by
the Electrical Inspector and both the licensee and the
consumer has to accept the stimate of supply of electricity
to the consumer as may be determined by the Electrical
Inspector for the statutory period referred to in sub-
section (6) of Section 26.
Although the licensee is clothed with the power to
maintain a correct meter installedt the premises of the
consumer and for such purpose can enter the premises of the
consumer and the licensee can also repair or alter the meter
and other electrical apparantus if found defective on
checking or testing by the licensee, but if the dispute as
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to the correct status of the meter or otehr electrical
apparatus is raised by the licensee or by the consumer by
making reference to the Electrical Inspector under-section
(6) of Section 26, then such dispute can be determined only
by the Electrical Inspector and the meter or apparatus
cannot also be changed by the licensee unless the dispute is
resolved by the Electrical Inspector. If there is a dispute
as to the proper functioning of the merer or check meter or
other electrical apparatus unders sub-section (6) of Section
26, the Electrical Inspector upon entering the reference
would determine the dispute as to the proper functioning of
the meter and other electrical apparatus and in the event
the Electrical Inspector comes to the finding that the meter
ceased to be correct, he is to determine the quantum of the
electricity consumed during the statutory period referred to
in sub-section (6) but for any other period anterior to the
statutory period, the legislature, in no uncertain term, has
indicated in the latter part of sub-section (6) of Section
26 that reading registered in the disputed meter will not
only be presumed to be correct but such reading shall be
conclusive proof of the quantity of electricity consumed or
the amount of electricity supplied to the consumer provided
no fraud has been practised by the consumer. In appreciating
the intention of the legislature, the provision for treating
the recording of the disputed meter to be the conclusive
proof of the amount of quantity supplied to the consumer in
the absence of fraud where a dispute is raised by either of
the party about the functioning of the meter, cannot be
overlooked. Sub section (6) has been amended and the
legislature has introduced a conscious departure by deleting
the requirement of assessing the quantity of electricity
consumed for the entire period during which the Electrical
Inspector or the competent authority was of the opinion that
the meter had ceased to be correct. 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
mae by the Electrical Inspector, the register of teh 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 obsolved from the duty to determine as to
from which point of time beyond the said statutory period,
the meter had cease to function so taht for such entire
entire period, the estimation of the supply of electricity
need not be made. Such amendment of sub-section (60, n 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 otehr 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
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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 statory period for
estimation. There is good reason for such legislative
change because is may not be possible to precisely determine
exactly from which point of time the meter ceased to be
correct. The scheme under 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 consumptionof 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 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
Inspectr. 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 mere 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, despite 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 Legistature 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
casee of dispute as to functioning of meter, the reading in
the meter for the period beyond the period of statutory
estimation, will be final.
As in none of these appeals, there is any alloegation
that the concerned consumer had paractised fraud or had
tampered with the emter or other electrical appartus
provided for recording the supply of electricity to the
consumer, the consumer will be entitled to the statutory
protection of correctness of the recording of the
consumption or supply of electricity consumed in the
meter/check meter as conclusive proof of such amount of
quantity of electricity consumed for all the period anterior
to statutory period of estiation under SEction 26(6) of the
Act because admittedly there is dispute as to the proper
functioning of the meter and check meter installed at the
premises of the consumer.
In the result, Civil Appeal Nos. 2538 of 1985 and 1571
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of 1987 preferred by the Municipal Corporation of Greater
Bombay and Civil Appeal No. 1255 of 1986 are dismissed
without any order as to cost. Civil Appeal Nos. arising out
of S.l.P.Nos. 5262-64 of 1992 are allowed by setting aside
the common judgment dated February 19, 1992 passed by the
Allahabad High Court in three Writ Petitions, namely, Writ
Petition Nos. 10379 of 1988, 16723 of 1988 and 126325 of
1990 and also the interim order dated March 10, 1992 passed
in the Writ Petition No. nil field by the appellant M/s
Belwal Spinning Mills Ltd. in the Allahabad High Court on
March 9, 1992. As both the original meter and the check
meter installed by the u.P. State Electricity Board in the
premises of the appellant M/s Belwal Spinning Mills LTd.
were found to be defective by the Electrical Inspector the
appellant has the liability to pay for the estimated amount
as determined by the Electrical Inspector under Section
26(6) of the Electricity Act for the statutory period under
Section 26(6) but for the earlier period, the appellant has
the liability only to pay on the basis of reading in the
installed meter/check meter in view of the statutory
protection of conclusive proof of consumption of electricity
for such period on the basis of reading in the meter. The
respondent U.P. State Electricity Board will be precluded
from raising any demand contrary to the aforesaid liability
of the appellant and consequently will not be entitled to
disconnect the electricity in the premises of the appellant
for non-payment for the consumption of electricity for any
period earlier than the statutory period beyond the quantity
registered by the installed meter. It is, however, made
clear that it will be open for the U.P. State Electricity
Board to raise bills and demand payments for the period
subsequent to the statutory period and to take consequential
action for non pay ment of bills for such period on the
basis of correct reading in the meter or meters in the light
of the finding of the Electrical Inspector until any new
meter is installed. Civil Appeal arising from SLP Nos 5262-
64 of 1992 are accordingly disposed of without any order as
to costs.
Before we part, we may indicate that although the
licensee has the obligation to keep the installed meter and
other electrical apparatus in proper condition by resorting
to regular checking and testing, repairing etc. but the
feasibility of constant checking, repairing etc. of large
number of consumers in the present day set up may not be a
practical proposition. In the teeth of sub-section (6) of
Section 26 as amended, it is quite likely that in many
cases, the licensee may suffer serious prejudice in not
being able to realise from the consumers the revenue for the
electricity consumed where even though no fraud was
practised by the consumer, the defect in the meter escaped
attention of the employees of the licensee either for
genuine reasons or in a designed manner thereby bringing an
unfortunate situation when the licensee can recover the
estimated amount determined by the Electrical Inspector in a
disputed case limited only to the statutory period but
confining the revenue for the entire anterior period, which
may go for years, only on the basis of reading in the
defective meter. Since after amendment of Section 26(6) of
the Electricity Act, the position in law is such, we feel
that the proper ligislative amendmnt is desirable so as to
protect the large number of licensees including the
Electricity Boards from suffering huge loss of revenus.