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Hamidullah Khan, Jabalpur Vs. the Chairman, Madhya Pradesh Electricity Board, Rampur, Jabalpur and ors. - Court Judgment

LegalCrystal Citation
SubjectElectricity
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 564 of 1981
Judge
Reported inAIR1983MP1
ActsElectricity Act, 1910 - Sections 24(1), 26(4) and 26(6)
AppellantHamidullah Khan, Jabalpur
RespondentThe Chairman, Madhya Pradesh Electricity Board, Rampur, Jabalpur and ors.
Appellant AdvocateB.D. Jain, Adv.
Respondent AdvocateM.L. Jaiswal, Adv.
DispositionPetition partly allowed
Cases ReferredK. S. Upadhya v. State Electricity Board
Excerpt:
.....counsel for the respondents also referred to us clause vi (3) of the schedule to the act which reads as follows :where any difference or dispute arises as to the amount of energy to be taken or guaranteed as aforesaid, or as to the cost of any service-line or as to the sufficiency of the security offered by any owner or occupier or as to the position of the meter board or as to the improper use of energy, or as to any alleged defect in any wires, fittings, works or apparatus or as to the amount of the expenses incurred under the third proviso the sub-clause (1), the matter shall be referred to an electrical inspector and decided by him. he has, however, failed to point out any defect with respect to the demand of rupees 8,113.50 which is for the period from june, 1979 to jan......was the property of the licensee. it is the duty of the licensee under section 26(2) to keep the meter correct and in default of doing so, the consumer ceases to be liable to pay for the hire of the meter for so long as the default continues. section 26(4) empowers the licensee or any person duly authorised by the licensee at any reasonable time and on informing the consumer of the intention to have access to and he at liberty to inspect and test and for that purpose, to take of and remove any meter. all reasonable expenses of and incidental to such inspecting, testing, taking off and removing, if the meter is found to be otherwise than correct, can be recovered from the consumer and where any difference or dispute arises as to the amount of such reasonable expenses, the matter is to.....
Judgment:

G.P. Singh, C.J.

1. The petitioner is a consumer of electricity. He runs an ice factcty for which he obtained service connection No. 303768/9 of 15 Horse Power load. By letter dated 29th June, 1979 (Annexure A) the petitioner was called upon to pay Rs. 18,123.87, being the revised demand for the period from 11th Sept., 1974 to June, 1979 on account of charges for consumption of electricity as explained in letter dated 30th June, 1979 (Annexure R-2). There was thereafter a further demand of Rs. 8,113.50 for the period from June, 1979 to Jan, 1980. A consolidated demand of Rs. 26,249.37 was then issued which is Annexure-C. On the failure of the petitioner to pay this amount, proceedings for recovery of the demand as arrears of land revenue were started. A notice was issued by the Tahsildar which is Annexure E. By this petition under Article 226 of the Constitution, the petitioner seeks quashing of the demands Annexure A and C and the notice Annexure-E.

2. It is not in dispute that there was a meter installed by the Electricity Board for ascertaining the amount of energy supplied to the petitioner. The meter belonged to the Board. The petitioner was paying the bills which were sent in accordance with the meter reading. The revised demand of Rs. 18,123.87 for the period from 11th Sept., 1974 to June, 1979 was issued for the reasons indicated by the Divisional Engineer in his letter dated 30th June, 1979 which is Annexure R-2. It is stated therein that meters installed in the petitioner's premises were replaced on 31st May, 1978 and 28th March, 1979 and as they were not recording the consumption correctly and digital figures were found disturbed, a new check meter was installed on 31st March, 1979 and the billing for the period from 11th Sept., 1974 to June, 1979 was revised on the basis of consumption recorded by the new meter. When the petitioner revised the revised demand, he gave a reply through his lawyer on 7th July, 1979 which is Annexure-B. In this reply, he contended that the meters earlier installed were not defective and they ware illegally removed. It was further stated that the Board could not make any revised demand without referring the matter to the Electrical Inspector. Learned counsel for the petitioner has repeated the same contentions before us and has argued that in the absence of any decision by the Electrical Inspector under Section 26(6) of the Indian Electricity Act, 1910, it was not open to the Board to make a revised demand.

3.Section 26(1) provides that in the absence of an agreement to the contrary, the amount of energy supplied to a consumer 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. The Board is a licencee for purposes of the Act. The meter was the property of the licensee. It is the duty of the licensee under Section 26(2) to keep the meter correct and in default of doing so, the consumer ceases to be liable to pay for the hire of the meter for so long as the default continues. Section 26(4) empowers the licensee or any person duly authorised by the licensee at any reasonable time and on informing the consumer of the intention to have access to and he at liberty to inspect and test and for that purpose, to take of and remove any meter. All reasonable expenses of and incidental to such inspecting, testing, taking off and removing, if the meter is found to be otherwise than correct, can be recovered from the consumer and where any difference or dispute arises as to the amount of such reasonable expenses, the matter is to be referred to an Electrical Inspector whose decision is final. There is, however, an important proviso to Section 26(4) which restricts the power to take off or remove the meter if a difference or dispute of the nature described in Section 26(6) has arisen until the matter has been determined as therein provided. Section 26(6) reads as follows:--

'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 he decided, upon the application of either party, by an Electrical Inspector; and where the meter has, in the opinion of such Inspector ceased to he correct, such Inspector shall estimate the amount of 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 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 not less than seven days' notice of his intention so to do.'

There is an explanation contained in Section 26 which says that a meter shall be deemed to be correct if it registers the amount of energy supplied, or the electric quantity contained in the supply, within the prescribed limits of error.

4. A reading of Section 26(6) makes it clear that a dispute whether a meter is correct or incorrect an be resolved only by the Electrical Inspector. The Electrical Inspector can be moved for this purpose by either the consumer or the Board. In case the Inspector finds that the meter was not correct, he has further to estimate the amount of energy supplied to the consumer during the period in the opinion of the Inspector the meter was not correct but no exceeding six months. In case of a dispute relating to the correctness of the meter, the Board cannot even remove the meter till the dispute is decided by the Electrical Inspector. This, as earlier noticed, is specifically provided in the proviso to Section 26(4). Section 26(6) further declares that except as provided therein, the register of the meter shall, in the absence of fraud be conclusive proof of the amount or quantity of the electrical energy supplied to the consumer.

5. The Board, in the instant case, unilaterally removed the meters and installed a check meter. The case of the Board was that the meters earlier installed were not recording the consumption properly for the actual energy availed of by the petitioners and the digital figures were disturbed. The dispute, therefore, related to the correctness of the meters and the Board could not have removed the meters without getting the dispute determined by the Electrical Inspector. Even after removal of the meters and installation of a check meter, the Board did not make any reference to the Electrical Inspector. The Board sent a revised bill for five years i.e. for the period from 11th Sept., 1974 to June, 1979. The demand so made was clearly illegal for various reasons. First, the Board removed the meters without referring the dispute about the correctness of the meters to the Electrical Inspector and contravened the proviso to Section 26(4). Secondly, the Board itself decided that the meters installed were incorrect when such a decision could be given only by the Electrical Inspector. Thirdly,the Board illegally estimated the quantity consumed for the period during which, according to the Board, the meters installed were not giving correct reading. Such an estimate could be made only by the Electrical Inspector under Section 26(6) and not by the Board unilaterally. Fourthly, the revised bill for a period of five years was wholly unjustified for even when the matter is referred to the Electrical Inspector, under Section 26(6), the revised estimate can cover only a period of six months and not beyond that.

6. The learned counsel appearing for the respondents drew our attention to Section 24 and submitted that it was for the petitioner to make a reference to the Electrical Inspector in case he disputed the revised bill issued by the Board. Section 24(1) provides that where any person neglects to pay any charge for energy on 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 may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting of and reconnecting the supply are paid but no longer. Section 24(2) then provides that 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 has been given by the licensee, the licensee shall not exercise the powers conferred by this section until the Inspector has given his decision Now, Section 24(1) which empowers the Board to disconnect the supply in case the consumer neglects to pay the charges can apply only when the bill issued by the Board demanding the charge is valid in law. It is in such cases that the Board has power to cut off the supply unless the consumer had made a reference to the Electrical Inspector before notice was issued to the consumer. The correct position may be explained by taking two examples. If the Board makes a demand in accordance with the meter reading, the demand would be valid. If in such a case, the consumer disputes the correctness of the meter, he cannot stop the Board from disconnecting the supply unless before the issue of the notice, he had referred the dispute to the Electrical Inspector. However, if the consumer has paid the bills in accordance with the meter reading and the Board issues revised bills on the Plea that the meter was not correct which fact is disputed by the consumer, it would be for the Board to refer the matter to the Electrical Inspector for getting a decision on the question whether the meter was correct and also for getting the quantity of energy consumed during the period the meter is found to be not correct estimated. The meter reading, subject to the decision of the Electrical Inspector and in the absence of fraud, is conclusive proof of the amount of quantity of the electrical energy consumed. This, as earlier noticed, is specifically stated in Section 26(6). It is, therefore, the party who wants to challenge the meter reading that has to make the reference to the Electrical Inspector. Till the Electrical Inspector decides that the meter was incorrect, the reading is conclusive and final between the parties. It is true that it is provided in Section 26(6) that either party can refer a dispute to the Electrical Inspector but a party who accepts the meter reading as correct need not do so. It is the party who disputes the meter reading that must go to the Electrical Inspector for in the absence of a contrary decision by the Electrical Inspector, the meter reading is conclusive. If a bill is issued on estimate basis on the ground that the meter was incorrect without having that matter decided by the Electrical Inspector, the bill itself would be bad and invalid in law and non-payment of such a bill cannot authorise the Board to discontinue energy under Section 24.

7. The learned counsel for the respondents also referred to us Clause VI (3) of the Schedule to the Act which reads as follows :--

'Where any difference or dispute arises as to the amount of energy to be taken or guaranteed as aforesaid, or as to the cost of any service-line or as to the sufficiency of the security offered by any owner or occupier or as to the position of the meter board or as to the improper use of energy, or as to any alleged defect in any wires, fittings, works or apparatus or as to the amount of the expenses incurred under the third proviso the Sub-clause (1), the matter shall be referred to an Electrical Inspector and decided by him.'

The learned counsel argued on the basis of the aforesaid provision that the licensee should have made a reference to the Electrical Inspector. Now, Clause VI (3) of the Schedule will not apply to a dispute for which a specific provision is made in the Act. The reference of a dispute to the Electrical Inspector on the question whether a meter is defective is specifically covered by the provisions of Section 26(6). Clause VI (3) of the Schedule which is a general provision will have no application to a dispute to which Section 26(6) applies. Apart from that, Clause VI (3) does not say as to which party has to apply for a reference to the Electrical Inspector. Now, We have already pointed out that a meter reading; except in case of fraud, is conclusive as provided in Section 26(6). The conclusive nature of the meter rending is only subject to the decision of the Electrical Inspector given on reference under Section 26(6). It, therefore, stands to reason that the person who accepts the meter reading has not to make a reference to the Electrical Inspector for the simple reason that until the Electrical Inspector has given a contrary decision, the meter reading would be binding on both the parties. The party who challenges the meter reading will have to make a reference to the Electrical Inspector.

The learned counsel for the respondents relied upon a decision of the Allahabad High Court in S. E. Board v. Prakash Talkies, AIR 1977 All 460 in support of the submission that it was for the petitioner to make a reference to the Electrical Inspector and the Board was not obliged to make any reference to him before sending the revised bill. The dispute in that case was not covered by Section 26(6). The dispute in that case was that energy supplied for one purpose had been utilized for another purpose. The case of Prakash Talkies, therefore, has no bearing on the question before us. The case more in point is K. S. Upadhya v. State Electricity Board, U. P., AIR 1977 All 185, which supports the conclusion reached by us.

8-9. The learned counsel for the petitioner has thus succeeded in establishing the invalidity of the demand notice Annex.-A. He has, however, failed to point out any defect with respect to the demand of Rupees 8,113.50 which is for the period from June, 1979 to Jan., 1980.

10. The petition is partly allowed and the demand of Rs. 18,123.87 made by the Board by Annexure-A is quashed. The demand of Rs. 26,249.37 by Annexure-C and the notice for recovery Annexure-E for the same amount are quashed to the extent of Rs, 18,123.87. The petitioner will get costs of this petition. Counsel's fee Rs. 200/-. Security amount be refunded to the petitioner.


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