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Bharat Barrel and Drum Mfg. Co. Ltd. Vs. Municipal Corporation of Greater Bombay and ors. - Court Judgment

LegalCrystal Citation
SubjectElectricity
CourtMumbai High Court
Decided On
Case NumberAppeal No. 173 of 1979 (in Misc. Petn. No.1148 of 1973)
Judge
Reported inAIR1985Bom415; ILR1985Bom2144; 1985MhLJ535
ActsElectricity Act, 1910 - Sections 23, 24, 24(1) and 26(6)
AppellantBharat Barrel and Drum Mfg. Co. Ltd.
RespondentMunicipal Corporation of Greater Bombay and ors.
Appellant AdvocateV.L. Singbal and;S.M. Godbole, Advs.
Respondent AdvocateK.K. Singhvi and;B.N. Singhvi, Advs.
Excerpt:
a dispute regarding detection of defect in meter was referred to electrical inspector- it was held that the revised demand could not be made for electric charges for period beyond six months immediately preceding reference, nor could supply of electricity be discontinued for non-payment of such charges. - - 4 gave his decision on 10th july 1973 holding (1) that it was the obligation of the best (licensee) to have examined the meter periodically as provided by rule 54(4) of the indian electricity rules 1956; and (2) that the period of the assessment by him was six months immediately preceding august 1972. on these findings respondent no. accordingly, respondent 4 directed the consumer to pay to the best licensee the said amount of rs. that decision was communicated to the consumer as.....madhava reddy, c.j.1. the short question that falls for consideration in this appeal directed against the judgment in miscellaneous petition no.1148 of 1973 is, whether under the indian electricity act, 1910 (hereinafter referred to as 'the act') on detection of a defect in the meter installed by the licensee, a revised demand for charges of electric consumption for a period of more than six months could be made and whether the supply of electricity could be disconnected for non-payment of such charges. the few facts necessary to decide this question are not in dispute and must be noticed.2. the original petitioner, a private limited company duly registered under the companies act with its registered office at bombay is the appellant. it owns and runs a dyeing and bleaching mill called.....
Judgment:

Madhava Reddy, C.J.

1. The short question that falls for consideration in this appeal directed against the judgment in Miscellaneous Petition No.1148 of 1973 is, whether under the Indian Electricity Act, 1910 (hereinafter referred to as 'the Act') on detection of a defect in the meter installed by the licensee, a revised demand for charges of electric consumption for a period of more than six months could be made and whether the supply of electricity could be disconnected for non-payment of such charges. The few facts necessary to decide this question are not in dispute and must be noticed.

2. The original petitioner, a private limited company duly registered under the Companies Act with its registered office at Bombay is the appellant. It owns and runs a dyeing and bleaching Mill called 'Jalan Dyeing and Bleaching Mills'. On 28th Nov.1964 it entered into an agreement with the Municipal Corporation of Greater Bombay, respondent I herein (hereinafter referred to as 'the licensee'), which agreed to supply electric energy to the appellant company on the terms and conditions set out in the agreement. The appellant company is hereinafter referred to as 'the consumer' or as 'the appellant'. Respondents 2 and 3 are the employees of the licensee and respondent 4 is the E1ectrical Inspector of the Government of Maharashtra. For the purposes of measuring the quantum of 'energy supplied to the consumer, the licensee installed its own meter at the premises of the consumer. From the date of the agreement the readings of that meter entered were in the register of meter. Based on those entries the licensee was sending bills to the consumer from time to time for the electric energy supplied to the consumer. The consumer duly paid the amount demanded under the said bills. In or about Dec.1972 the licensee claimed that the meter installed at the consumer's premises was not correct and set up a check meter. On the strength of the readings of the check meter it proceeded to revise the consumer's bills. By letter dt. 20th. Feb. 1973 the licensee claimed a sum of Rs. 2,28,760.17 from the consumer as electricity Consumption charges and issued revised bills for the period June 1963 to May 1972. The consumer protested that the revision of the bills was wrongful and unauthorised. By its letters dt. 27th Feb. 1973 and 16th Mar. l973 the consumer denied its liability and referred the dispute under S. 26(6) for decision of the Electrical Inspector, respondent No.4 herein. Through his letter dt. 28th Mar.1973 respondent 4 informed the licensee that he has registered the said dispute under S. 26(6) of the Act. Even while the dispute was pending decision before respondent 4, respondents 1 to 3 renewed the demand for payment of Rs. 2.28.760.l7 and issued the letter dt. 13th April 1973 threatening to disconnect the supply if the amount demanded under the revised bills was not deposited with respondent 4 or with the licensee. The consumer moved this court by way of a writ petition No. 376 of 1973 on 19th April 1973 challenging the right of the licensee to disconnect the supply in those circumstances. This Court disposed of the writ petition on 20th June 1973 by a consent order to the effect that the respondent 1 would not disconnect the supply of electric energy to the consumer on the ground of non-payment of or non-deposit of the amount mentioned in the said petition during the pendency of the reference before respondent No.4 and for fifteen days after the communication of the decision of respondent 4 to the parties. Pursuant to the terms of the consent order the consumer withdrew the writ petition without prejudice to its right to challenge the notices dt. 16th Mar. 1973 and 23rd Mar.1973 after the reference was disposed of respondent No. 4 and respondent 1 continued the supply of electric energy to the petitioner. After hearing the parties respondent No.4 gave his decision on 10th July 1973 holding

(1) that it was the obligation of the BEST (licensee) to have examined the meter periodically as provided by Rule 54(4) of the Indian Electricity Rules 1956; and

(2) that the period of the assessment by him was six months immediately preceding August 1972.

On these findings respondent No. 4 ruled that the consumer was liable to pay a sum of Rs. 12,314-93 being the difference in the energy charges on the basis of the maximum demand in RAVAH. Accordingly, respondent 4 directed the consumer to pay to the BEST licensee the said amount of Rs. 12,314-93 and a further sum of Rs. 15/- for testing the meter. That decision was communicated to the consumer as well as to the licensee on or about 20th Nov.1973. No appeal or revision was preferred by any of the parties and the decision of respondent 4 became final. Nonetheless, by the letter dt. 29th Oct.1973 respondent 3 intimated the consumer that he had reviewed the bills in the light of the decision of respondent 4 and that as per the details shown in the statement accompanying the said letter, demanded payment of Rs. 1,68,402-90 instead of a sum of Rs. 2,28,760-19. Respondent 3 also intimated the consumer that the said sum would be shown in the next bill and requested the petitioner to pay the same immediately after the bills were received by the petitioner. While no bills were sent as stated therein, the consumer was required by a letter dt. 16th Nov.1973 to pay a sum of Rs. 1,68,402-90 within seven days from the receipt of the said letter on pain of disconnection of electric supply without further notice. The consumer sent a cheque to respondent 3 for Rs. 12,314-93 being the amount payable as per the decision of respondent 4 dt. 10th July 1973 along with a letter dt. 22nd Nov. 1973 asserting that the licensee's claim was illegal, unjustified and without jurisdiction and requesting it to cancel its demand for the balance of the amount. Respondents 1 to 3 however insisted upon payment and threatened to disconnect the electric energy supply if the amount of Rs. 1,68,402-90 was not paid. The consumer calls in question the legality of this demand and the jurisdiction of the respondents to disconnect the supply of electric energy for non-payment of the amount alleged to be due for a period beyond six months of the raising of the dispute.

3. The argument for the petitioner runs thus: The respondent licensee has a monopoly of supplying electric energy to the consumers in Greater Bombay. They are bound to supply electric energy to the petitioner's premises as per the agreement dt. 28th Nov.1964 and the petitioner is liable to pay the charges for the quantity of electric energy consumed as recorded by the meter installed by the licensee (BEST). Installation of a correct meter and its maintenance is the liability of the licensee (BEST); the licensee (BEST) is entitled to demand and recover charges only as per the meter. If there is a dispute with regard to the correctness of the meter or the charges payable by the consumer for the electric energy supplied on the ground that the meter is not correct, that may be referred by either party for the decision of the Electrical Inspector. The Electrical Inspector is empowered to decide, if the meter ceased to be correct, the quantity of electric energy consumed during the period of six months immediately preceding the date of reference and determine the correct amount of charges payable. The licensee (BEST) can collect only such amount of charges as are held payable by the Electrical Inspector under S. 26(6) of the Electricity Act. The licensee is not entitled to revise the bills for any period beyond six months on the ground that the meter was not correct even beyond that period. The licensee has no jurisdiction to disconnect electric supply on the ground that the charges demanded under the revised bills for any period beyond six months referred to above are not paid.

4. The respondents, however, contended that while the Electrical Inspector under S. 26(6) of the Act may decide whether the meter was correct or not and the quantity of electric energy consumed during the period of six months immediately preceding the date of reference, the licensee is not precluded from revising the bills for the entire period during which, according to it; the meter was not correct and demand payment of the charges for the supply of energy during that entire period and to disconnect supply for failure to pay the charges demanded under the revised bills. It is argued that irrespective of whether the charges due to the licensee for any period beyond three years from the date of demand could or could not be recovered by way of a suit or otherwise, the licensee is entitled under S. 26(2) of the Act to disconnect the supply of electric energy to the consumers for non-payment of the charges demanded under the revised bills.

5. The decision on the issues raised calls for a consideration of the scope and ambit of S. 24 and S. 26 of the Act. In determining the scope of these provisions, it must be remembered that S. 22 of the Act places an obligation on the licensee to supply electric energy in the words :

'22. Where energy is supplied by a licensee, every person within the area of supply shall, except in so far as is otherwise provided by the terms and conditions of the license, be entitled on application, to a supply on the same terms as those on which any other person in the same area is entitled in similar circumstances 10 a corresponding supply: Provided that no person shall be entitled to demand, or to continue to receive from a licensee a supply of energy for any premises having a separate supply unless he has agreed with the licensee to pay to him such minimum annual sum as will give him a reasonable return on the capital expenditure and will cover other standing charges incurred by him in order to meet the possible maximum demand for those premises the sum payable to be determined in case of difference or dispute by arbitration.'

A corresponding obligation is placed upon the licensee to pay the charges for electric energy consumed and other incidental charges. A right to demand payment of the charges is vested in the licensee under S. 23 of the Act. S. 26 lays down that in the absence of an agreement to the contrary, the amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of a correct meter. It also imposes a duty on the licensee to supply such a meter, S. 26 in so far as it is relevant for our present purpose reads as under

'26(1). In the absence of an agreement to the contrary, the amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of a correct meter, and the licensee shall, if required by the consumer, cause the consumer to be supplied with such a meter:

Provided that the licensee may require the consumer to give him security for the price of a meter and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter. (2) Where the consumer so enters into an agreement for the hire of a meter, the licensee 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 se 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-sec.(1); and. except where the meter is so 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.

Provided that the licensee shall not be at liberty to take off or remove any such meter if any difference or dispute of the nature described in sub-sec. (6) has arisen until the matter has been determined as therein provided.

(5) xx xx xx xx

(6) Where any difference or dispute arises as to whether any meter referred to in sub sec. (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 subsection, 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 may be placed upon the premises of a consumer in pursuance of the provisions of sub-sec. (1), the licensee may place upon such premises such meter, maximum demand indicator or other apparatus as he may think fit for the purpose of ascertaining or regulating either the amount of energy supplied to the consumer, or the number of hours during which the supply is given, or the rate per unit of time at which energy is supplied to the consumer or any other quantity or time connected with the supply:

Provided that the meter, indicator or apparatus shall not, in the absence of an agreement to the contrary, be placed otherwise than between the distributing mains of the licensee and any meter referred to in sub-sec. (1)..

Provided, also that, where the charges for the supply of energy depend wholly or partly upon the reading or indication of any such meter, indicator, apparatus as aforesaid, the licensee shall, in the absence of an agreement to the contrary, keep the meter, indicator or apparatus correct; and the provisions of sub-secs. (4), (5) and (6) shall in that case apply as though the meter, indicator or apparatus were a meter referred to in sub-sec. (1).'

6. The meter in question was supplied to the appellant consumer by the licensee. It is therefore the licensee's responsibility under S. 26(2) of the Act to keep that meter correct. After the meter was installed by the licensee at the appellant's premises at no time was there any complaint either by the consumer or by the licensee (BEST) or its employees that it was not correct. The readings of the meter were taken periodically and noted in the register of meter by the employees of the licensee. The bills were issued to the consumer as per the entries in the register of meter showing the amount of energy supplied to the consumer. The bills issued to the petitioner were based on a correct calculation of the charges for the electric energy consumed and admittedly those bills were duly paid by the petitioner. The additional amount now demanded is solely based on the footing that the meter installed by the licensee was not correct and that it did not correctly record the electric energy consumed. The revised demand for the period June 1963 to. May 1972 was initially for Rs. 2,28,760-19. After reference of the dispute to the Electrical Inspector, respondent 4, the revised demand was reduced to Rs. 1,68,402-90. As per the decision of the Electrical Inspector the additional amount due and payable by the consumer on account of electric energy consumed but failed to be recorded by the meter for a period of six months immediately preceding the reference was only Rs. 12.314.19. That amount was paid Initially it was urged by the consumer that as the meter is required under S. 26(2) to be maintained in a proper condition by the licensee (and not by the consumer), no additional charges can be demanded on the ground that the meter was not correct, and for non-payment of such amount the supply cannot be disconnected. That contention was not pursued and Rs. 12,314-19 was paid. It is, however, the stand of the consumer that no bill for any period beyond six months of the reference of the dispute could be revised and no additional amount could be demanded as due towards the consumption of electric energy from a consumer who had already paid the bills sent to him for the said period, on the ground that the meter was not, correct. It was also pleaded that when the meter was checked and tested on 12th Oct.1967 and 15th May 1969, no defect was noticed. That fact was also recorded by respondent 4 in his order dt 10th July 1973. Notwithstanding those tests the licensee (BEST)) is now claiming that the meter was not correct even from June 1963 and is demanding revised charges for a period of nine years from June 1963 to May l972 ' which is illegal.

7. The Electrical Inspector by his order dt. 10th July 1973 found that the meter in question was 71.9% slow and that error was beyond the prescribed limit of 3%. The meter was therefore incorrect or ceased to be correct within the meaning of S. 26 of the Act. Calculating on the basis of margin of error in the meter in recording the correct quantity of electric energy supplied to the consumer he fixed the difference of electricity charges payable for a period of six months from Mar. 1971 to Aug. 1972 at Rs. 12,314-93. The consumer has paid this amount.

8. Under S. 26(1) of the Act the liability of the consumer is to pay charges for electric energy supplied to him or the electrical quantity contained in the supply as ascertained by means of a correct meter. The correct meter, as per the Explanation to S. 26, is meter which registers the amount of energy supplied or the electrical quantity contained in the supply within the prescribed limits of error of 3%. To resolve the difference between the licensee and the consumer as to whether the meter is correct and whether charges for supply of electric energy must be revised, sub-sec (6) of S. 26 of the Act provides for reference to the Electrical Inspector. The Electrical Inspector on such reference, is required to decide (1) whether the meter is correct or not, (2) if the meter has ceased to be correct, for how long? and (3) the estimated amount of energy supplied to the consumer or the electrical quantity contained in the supply during such time not exceeding six months. Sub-sec. (6) further declares

'....... but save as aforesaid, the register of the meter shall in the absence of fraud, be conclusive proof of such amount or quantity'

In other words, where the consumer has not played fraud, the licensee as well as the consumer are bound by the entries in the register which records the meter reading and the calculations of the charges payable by the consumer for the electric energy supplied. Only if it is found that the meter has ceased to be correct, then that register would not be conclusive proof of the amount or quantity of energy consumed for the period of six months immediately preceding the reference under S. 26(6). For any period beyond those six months, the register would be conclusive. The entries in the register have been declared by the legislature to be conclusive proof of the quantity or amount of electric energy consumed, obviously because it would not be possible even for the Electrical Inspector, to determine in all cases for how long the meter had ceased to be correct. Upon checking or testing the meter, the Electrical Inspector may at best be in a position to estimate the period during which the meter ceased to be correct and may not be able to determine the number of days or months or years during which the meter had in fact been incorrect and calculate the exact amount or quantity of electric energy supplied during that period. That period of six months must also have been fixed having regard to the fact that the liability of the consumer is to pay electric charges only as per the meter installed by the licensee. Where the meter is supplied by the licensee, the duty to maintain the meter correct is upon the licensee and not the consumer. The liability of the consumer to pay more than what is recorded by the meter and entered in the register of meter, having regard to sub-sec. (6) of S. 26 is permitted to be varied at the most for a period of six months on the ground that the meter had ceased to be correct but not for any period beyond those six months. For any period beyond six months sub-sec. (6) of S. 26 declares that the register of meter is conclusive proof of the amount or quantity of energy supplied to the consumer. The intendment of the provision seems to be that if for no fault of the consumer or the licensee, after a correct meter was installed, it ceased to be correct for any reason whatsoever, the rights and liabilities of the parties should not remain unsettled for any period beyond six months. Only for that limited period the entries in the register of meter were not to be conclusive and the demand for payment of charges for electricity supplied could be revised as per the estimate of the Electrical Inspector. The licensee therefore, cannot claim anything more that what is entered in the register of meter for any period beyond six months. The liability of the consumer is only to pay electric charges at per the bills issued on the basis of the register of meter. If ally higher amount is demanded on the ground that the meter was not correct and that it registered a lesser quantity than what was supplied by the licensee and the consumer disputes the claim of the licensee and that dispute is referred to the Electrical inspector, the bills could be revised only for the period during which, according to the Electrical Inspector, the meter was not correct, subject to a maximum period of six months immediately preceding the reference. In all other respects, the Register of Meter is final and binding on the parties and no charges other than what is warranted by the entries therein could be demanded from the consumer.

9. It is, however, argued by Mr. Singhvi, learned counsel for the licensee, that if the consumer neglects to pay charge of energy due from him to the licensee, S. 24(1) of the Act authorises the licensee to discontinue the supply, after giving him notice of not less than seven clear days in writing, until such time the charge is paid. This right to disconnect is vested in the licensee without prejudice to his right to recover such charges due from the consumer by way of suit. According to him, when charges for supply of electric energy are demanded by the licensee, the consumer cannot avoid payment by disputing his liability; if he neglects to pay he would suffer disconnection of supply. He cannot resist disconnection of supply without payment. S. 24 on the strength of which this Contention is based, reads as follows S. 24(1) on the strength of which this contention is based, reads as follows :-

'24. (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 re-connecting 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 to 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.

It would, however. be seen that where any dispute or difference required to be determined by an Electrical inspector has been referred to the Inspector under sub-sec. (2) of S. 24, the licensee is prevented from exercising the powers conferred under sub-sec. (1) of S. 24 of the Act until the Electrical inspector has given his decision. This provision is obviously intended to make the decision of the Electrical inspector binding on the parties and recover only such charges as may be held payable in the light of that decision. In other words, neither the licensee can claim a higher amount than what is held payable under the decision of the Inspector nor can the consumer refuse to pay the amount so determined. It is unnecessary for the purpose of this case to determine whether the licensee had the right to recover charges for supply for electric energy to the consumer by way of a suit or any period beyond six months on the ground that the meter has ceased to be correct and that it did not correctly record the electric energy supplied to the consumer for a period of more than six months: we are only concerned with the right sought to be exercised by the licensee under S. 24 to disconnect the supply on the ground that even over a period beyond six months the meter had ceased to be correct and charges due for that period as per correct meter were not paid by the consumer. In our view merely because the licensee claim certain charge or sum to be due, it cannot be treated as due for the purposes of S. 24(l). 'Charge or sum due' cannot be equated with the amount claimed by the licensee, nor can be only such amount as is admitted by the consumer to be due constitute 'charge or sum due' under S. 24(1). The consumer cannot avoid the liability to pay or avoid disconnection of supply by disputing the amount demanded by the licensee as due from him. A disputed liability does not of itself cease to be an amount due. What is the charge or sum due for the purpose of S. 24(1) in a case where an amount over and above what was already demanded by the licensee and paid by the consumer, is claimed as due by the licensee, has to be decided having regard to the scheme of the Act and the method of ascertaining the quantity of electric energy supplied to the consumer and the method of calculating the charges due for the granting of electric energy supplied. S. 26 makes a specific provision in this regard. It postulates that the charges payable by the consumer would be as per the agreement. In the absence of an agreement, S. 26 lays down that the amount of energy supplied to a consumer or electrical quantity contained in the supply shall be ascertained by means of a correct meter. If the consumer requires the licensee to supply a meter, it is the duty of the licensee to supply a correct meter provided the consumer complies with the conditions of such supply. Once a meter is supplied, it is the further duty of the licensee to maintain the meter in good order so that the quantity of energy consumed is recorded correctly. Under S. 26(4) the licensee is given free access to check the meter periodically and maintain it in good condition. The licensee is also authorised to inspect and test it and, if it thinks fit, take off or remove any meter installed under sub-sec. (1) of s. 26 and recover the expenses thereof from the consumer. In fact, the licensee is required to check the meter every six months. Under R. 57(4) of the Indian Electricity Rules, 1956, it is obligatory for it to check the meter at least once in three years. The only obligation of the consumer is not to tamper with the meter or commit any fraud. It is in this context that S. 26(6) lays down that the entries in the register of meter shall, in the absence of fraud, be conclusive proof of such amount or quantity except to the extent provided therein. The exception is attracted where there is a dispute between the licensee and the consumer as to whether any meter referred to in sub-sec. (1) is or is not correct. It 5 significant to note that sub-sec. (6) of S. 26 refers to a dispute as to the present state of the meter. What is required to be decided by the Electrical Inspector is, whether the meter is or is not correct, that is, on the date when the dispute arises and not whether it was or was not correct. When on such a reference the Inspector finds that the meter has ceased to be correct, he is vested with the authority to estimate the amount of electric energy supplied to the consumer or electrical quantity contained in the supply not merely on the date when the meter was found to be defective but also for a period not exceeding six months preceding it. Whether the meter was defective on the date when it was checked could be categorically determined by the Electrical Inspector but the period anterior to that date during which it was not correct could at best be only estimated by him. The legislature, in its wisdom evidently, did not deem it advisable to vest the Electrical Inspector with the power of estimating the amount of the energy supplied by the licensee to the consumer for a period of more than six months. Where the licensee supplied electrical energy and the consumer received such supply on the footing that the charges would be paid as per the quantity of electrical energy recorded by the meter and entered in the register of meter, the legislature thought it fit that the parties should be bound by such entries. For no fault of either party the meter may cease to be correct. Having regard to the fact that where the meter is supplied by the licensee the primary duty of maintaining the meter correctly is of the licensee, the licensee is given the right to claim additional charges on the ground that the meter is not correct only for a maximum period of six months. Correspondingly the consumer, if he chooses to raise a dispute that more charges than were really due from him are being recovered on the basis of the reading of defective meter, he is precluded from disputing the correctness of the entries in the Register of meter for any period beyond six months. Where the meter is installed under S. 26(1) by the licensee, the amount due is the amount of charges calculated as per the correct meter reading. That is subject to such variation for a period not exceeding six months in case the dispute is referred by either the licensee or the consumer to the Electrical Inspector on the ground that the meter is not correct. Otherwise, as discussed above, the charges calculated on the basis of the entries in the register of meter are final and binding both on the licensee and the consumer. Once the dispute is referred under S. 26(6) the licensee is entitled to claim only the charges payable at per the register of meter and such further amount as may be held due for a period of six months by the Electrical Inspector and that would be the amount due for the purposes of S. 24 of the Act. Nothing more and nothing less can be said to be the amount due under S. 24(1). Any other reading of the expression 'any charge for energy due' occurring in S. 24(1) read with sub-sec. (2) thereof would nullify the provisions of Ss. 24(2) and 26(6) of the Act, and the very object of referring the disputein case a meter is not correct to the Electrical Inspector and limiting the right of the Electrical Inspector to decide the period during which the meter ceased to be correct to six months, would be defeated. Further, the entire purpose of declaring the register of the meter to be conclusive proof in other respects, would become redundant. A harmonious reading of Ss. 24 and 26 is necessary and on such a reading, it must be held that so long as the consumer pays the difference of amount due from him as ascertained by the Electrical Inspector under S. 26(6), the licensee would have no right to disconnect supply. Any amount demanded by the licensee on the ground that the meter ceased to be correct for a period of more than six months cannot be said to be 'due' for the purpose of S. 24(1) and the power to disconnect vested in the licensee under S. 24 cannot be exercised for non-payment of such amount; only when the amount due as per the decision of the Electrical Inspector is not paid, the licensee may enforce its right under S. 24(1) to disconnect supply of electric energy. Any threat of disconnection on that ground must, therefore, be restrained by the issue of an appropriate writ.

10-11. It is contended by Mr. Singhvi, learned counsel for the respondent-licensee, that under S. 24(1) of the Act if a person neglects to pay any charge for energy due from him to the licensee, then the licensee is entitled to disconnect the supply of energy to the consumer. In this context, amount due must mean the amount of charge payable for the actual quantity of energy consumed. Where a meter is installed the quantity of energy consumed has no doubt to be ascertained under S. 26(1) of the Act as recorded on the meter and entered in the register. But the meter referred to in S. 26(1) is a 'correct meter', which, as per the explanation, 'is a meter which registers the amount of energy supplied correctly within the prescribed limits of error and a maximum demand indicator or other apparatus referred to in sub-sec. (7) if it complies with such conditions as may be prescribed in the case of any such indicator or other apparatus' . According to him, where the meter is not a correct meter, the quantity of electrical energy consumed as shown in the meter and entered in the register k not the correct quantity. Consequently, the amount calculated' as due on the basis of such meter reading and entries in the register is not the 'sum due' for the purposes of S. 24(1); the sum due' in such a case would be the amount calculated as due after correcting the error in the meter. If according to a correct calculation a higher amount is due and that amount is demanded by the licensee and the consumer neglects to pay that amount the licensee is entitled to disconnect the supply. The learned counsel for the licensee contends that whatever amount is so demanded as due from the consumer is the 'sum due' for the purpose of S. 24 of the Act and even if the consumer disputes his liability to pay this amount, the licensee is entitled to disconnect the supply. Reliance in this regard is placed on a decision of this Court in Bharat Barrel & Drum Mfg. Co. v. Bombay Municipality, : AIR1978Bom369 . That was a case where a higher amount was demanded under revised bills on the ground that earlier there was an error in calculation and amount demanded as per the correct calculation now made was not paid. Obviously this is not a case where demand is made on the ground that the meter was not correct: it is not a case covered by S. 26(6). The demand in that case was on the basis of correct recording by the meter and on the basis that the entries in the register of meter were correct, final and binding on the parties; only the error in the calculation of the charges as per the entries in the register of meter was sought to be rectified and correct amount due was sought to be recovered. That decision does not help the licensee in this case where the demand is not based on erroneous calculation of charges but on the footing that the meter itself did not correctly record the electricity consumed.

12. We are unable to accept the contention of Mr. Singhvi that S. 26 of the Act operates only when the meter is correct and entries in the register of the meter are conclusive only so long as the meter records the energy supplied correctly. S. 26 is a comprehensive section which determines the rights and liabilities of the licensee and the consumers with regard to the payment of charges not only on the basis of a correct meter but also where there is a dispute that the meter is not correct. Charges, of course, are to be paid as per the correct meter. But then S. 26 makes provision for decision of a dispute as to whether the meter is correct or not and determination of amount or quantity of energy supplied during the period of six months immediately preceding the dispute is raised and referred to the Electrical Inspector under sub-sec. (6) of S. 26 of the Act. This provision far from allowing the parties to dispute their liability for any period beyond six months specifically declares that the register of the meter shall be conclusive proof of the amount or quantity of electricity consumed. Neither S. 24 nor any other provision of the Act permits the entries to be questioned for any period beyond six months on the ground that the meter was not correct even beyond that period. As held above, even if the meter be not correct, charge or sum due for the purpose of S. 24(1) is the amount that is payable as per the register of meter subject to such variation as is necessitated by the decision of the Electrical Inspector covering a period of six months.

13. Mr. Singhvi contends that Ss. 24 and 26 of the Act are not for the recovery of the amount due to the licensee from the consumer. But they are only meant to vest authority in the licensee to disconnect supply for non-payment of the charges or sum due. The fact that the amount due c an be recovered only by way of a suit or cannot be recovered because the claim is time barred, cannot take away the right of the licensee to disconnect supply expressly vested in it under S. 24(1) Right to recover the amount claimed as due is one thing and the right to disconnect the supply of electricity in exercise of the power vested under S. 24(1) is another. In our view, for the recovery of any and every sum claimed as due towards supply of electrical energy, the power vested under S. 24(1) cannot be exercised ignoring S. 26(1). In this writ petition, we are not called upon to determine whether the licensee can recover by way of a suit the amount of electrical charges payable by a consumer for the actual quantity of energy supplied by the licensee and consumed by the consumer upon proof of the meter being defective for a longer period than six months. What questions of limitation would arise in such a suit, how far the decision of the Electrical Inspector under S. 26(6) would be conclusive and how far the entries in the register of meter are conclusive and binding on the parties in such a suit, it is not for us to go into in this writ petition. May be on the facts of a given case the licensee is in a position to establish that the meter was not correct for a much longer period than six months of the reference of the dispute to the Electrical Inspector. Whether on proof of that fact the licensee is entitled to recover any amount over and above that is payable by the consumer as per entries in the register of meter or held to be due by the Electrical Inspector on reference tinder S. 26(6), we do not think it necessary to express any opinion. We are only concerned with the question whether the licensee is empowered to disconnect the supply even after payment of the entire amount due as per the register of meter and such other amount as is due and payable under the decision of the Electrical Inspector under S. 26(6) for a period of six months. We think that even if the amount due as per the calculations of the licensee can be recovered by way of suit, where a consumer has already paid the amount due as per the bills based on the entries in the register of meter and a higher amount is now demanded as charges due for electrical quantity contained in the supply upon detection of a defect in the meter, the 'charge or sum due' for entitling the license to disconnect supply could only be the amour due as found by the Electrical Inspector under S. 26(6) and nothing more. Disconnection of electric energy has very far-reaching consequences. Under the Act, the licensee given a ,monopoly to produce and supply electrical energy and the consumer cannot get such supply from any other source if it is disconnected by the licensee. S. 24 which such a peremptory, power in the licensee the exercise of which has serious consequences for the consumer must be strictly construed. A dispute as to the amount due in case the meter is not correct is not left to be decided in the arbitrary discretion of either party. It must be decided on reference under S. 26(6) by the Electrical Inspector. If having regard to all these circumstances the legislature had thought it expedient not to vest power even in the Electrical inspector who is an expert to determine that the meter was defective for a period of more than six months, obviously neither the licensee nor the consumer could be deemed to have that right. Once finality is given to the entries in the register of meter and permitted the parties to question these entries for a limited period of only six months, it would be vesting an arbitrary power in the licensee, which is one of the parties to this arrangement, to disconnect supply of valuable electric energy to the consumer. This is a special provision which must govern the exercise of the power vested under S. 24. The power vested under S. 24(1) cannot be exercised in disregard of sub-sec. (6) of S. 26. The supply cannot be disconnected for failure to pay any sum other than the amount due as per the entries in the register of meter subject to such variation for a maximum period of six months as per decision of the Electrical Inspector under sub-sec. (6) of S. 26 of the Act. in K. S. Upadhya State Electricity Board U. P., : AIR1977All185 , a Division Bench of the Allahabad High Court observed that the procedure to be followed in case of sick meters is laid down in S. 26(6), which provides for calculating the estimated amount of energy consumed on the basis of past consumption, but such estimate could not continue beyond six months. Where no steps were taken to refer the matter of alleged defect in the meter to the Electrical inspector. the demand based on estimated consumption for a period exceeding six months as held to be incompetent. Of course, as contended by Mr. Singhvi, learned Counsel for the licensee, in that case there was no reference of the dispute to the Electrical Inspector under S. 26(6) and on the facts the meter was held to be correct and, consequently, the Board's claim that any amount over and above what was due as per the meter was rejected and the other observations made in those circumstances are only obiter. But, the discussion therein supports the view we have taken. No decision taking a contrary view has been brought to our notice.

14. The power of disconnection vested in the licensee u/s. 24(1) is a drastic power and could not be allowed to be exercised arbitrarily. In exercising that power, the licensee cannot ignore any other provision of the Act If the Licensee is held entitled to claim a higher amount as due and empowered to disconnect supply for non-payment of that amount ignoring the specific provisions of S. 26(6) that would result in vesting an arbitrary power in he licensee. That would also be contrary to he intendment of the Act and would render S. 26(6) wholly nugatory. Of course, S. 26(6) itself would not apply where the consumer is guilty of fraud. Further, non-payment of the amount in such a case cannot be termed as neglect but the result of a bona fide dispute. We, therefore, hold that the power to discontinue supply vested on the licensee under section 24(1) cannot be exercised ignoring S. 26(6).

15. In this case, the meter was installed under S. 26(2) by the licensee. It was the responsibility of the licensee to keep the meter correct. Even, according to the respondents, the meter installed at the premises of the consumer was being periodically tested. As per the records produced by one Master of the B.E.S. & T. Undertaking, the meter in quest ion which was installed in 1963 was tested on 12th Oct. 1967 and 15th May 1969. Obviously, no defect was detected at such tests. The licensee did not produce the results of the tests either before the Electrical Inspector who decided the dispute under S. 26(6) or before this Court. It must, therefore, be concluded that the meter was correct at least on those two occasions. Notwithstanding the above, it is now alleged that the meter was not correct right from 1st June 1963 up to August 1972. That is evidently a surmise not warranted by the findings of the Electrical Inspector given in a dispute referred to in S. 26(6). The Electrical Inspector on reference under S. 26(6) did not find that the meter was not correct for any period beyond six months. The licensee has unilaterally assumed that ever since the connections were made, the meter was going 71.9% slow. We must observe that if there was any such defect, the tests made on 12th Oct.1967 and 15th May 1969 should have disclosed it. In any event, there is a strong presumption against the meter being not correct earlier to 15th May 1969. Whether the licensee would be able to rebut that presumption, and recover any amount by way of a suit is not within the purview of this writ petition, and we, therefore, express no opinion on that aspect; but we are clearly of the view that where the Electrical Inspector has given a decision under S. 26(6) of the Act, the licensee cannot disconnect supply of electric energy after the amount due as per that decision is paid.

16. In view of the above discussion, the appeal succeeds and is accordingly allowed. The judgment of the learned Single Judge is set aside and the rule is made absolute. In the circumstances of the case, we make no order as to costs.

17. Appeal allowed.


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