V.D. Gyani, J.
1. The petitioner Basantibai is the proprietor of Santosh Industries, D-11 B. C Sector, Saver Road, Indore. She had obtained the service connection No. 192352 of 30 H. P. load for running an oil-mill. The Madhya Pradesh Electricity Board (respondent 1) who is a licensee, had installed a meter for ascertaining the amount of energy supplied and consumed by the petitioner under the aforesaid service connection. The meter so installed is the property of respondent 1.
2. According to the petitioner on 18-2-1983 the meter got burnt and this fact was immediately reported to the respondent 4 an Assistant Engineer of the Zone in which the petitioner Industry is situated. On 1-3-1983 the petitioner was directed to deposit a sum of Rs. 433/- as the price of the meter and Rs. 44/-as connection charges. The petitioner deposited the aforesaid amounts on the same day. However, the respondent-Board failed to restore the electric connection by installing another meter even after the aforesaid deposit made by the petitioner, who on 5-3-1983, vide notice Annex-D called upon the respondents to restore the electric connection by installing another meter. However instead of restoring the electric connection the respondent 4 through a registered letter dt. 4-3-1983 Annexure-E called upon the petitioner to pay a sum of Rs. 12,346.10 paise as per the supplementary bill dt. 2-3-1983 Annexure F. The basis of the supplementary bill was that the meter was not recording the actual energy supplied and consumed as it was found that one phase was not working and the meter was running on two phases only. The petitioner was also informed that in case of non-compliance the electric supply would be cut off.
3. The petitioner by this petition challenges the letter dt. 4-3-1983 (Annex. E) and the supplementary bill dt. 2-3-1983 (Annex. F) as according to her this demand is illegal.
4. The respondents' case, as it emerges from the return, is that on 17-2-1983 the power connection was checked and it was found that out of three phases, one phase was not working. The body seal was found to be intact. It is contended that the consumer was informed that his bills would be revised in view of the non-working of one phase as found at the time of 'checking. The respondents have denied that the meter got burnt on 18-2-1983. On the other hand, it is their charge that the petitioner or her associates burnt the meter, which according to the respondents ordinarily would not burn. The respondents further contend that on 19-2-1983 a checking party was sent for checking the meter, which was removed in the presence of the petitioner's husband and the meter reading was also done in his presence, which was 29929. It is alleged that the body seals of the meter were broken. According to the respondents this tampering of seals prima facie appears to have been done between 17th and 19th Feb. 1983 and it is their imputation that in order to avoid any liability, which would have accrued for retailing, the meter itself was burnt. The respondents allege that the petitioner's husband refused to sign the Panchnama, which according to respondents was prepared on the spot.
5. The petitioner contends that the respondents in view of Section 26(6) of the Indian Electricity Act, 1910 (hereinafter referred to as the (Act)) and the rules cannot revise or prepare a supplementary bill and compel the petitioner to pay the same before restoring the electric supply. Such a payment cannot be made a condition precedent for restoring the electric supply. The respondents on the other hand contend that as one of the phases was not working, it is apparent that one-third of the total actual consumption by the petitioner could not be recorded and as such the respondent Board was justified in preparing a supplementary bill on the basis of average billing, recalculating the same and adding one-third to it on account of non-recording of the meter from the period commencing with the date of installation to the date of checking, i. e. 17-2-1983. The respondents have further contended that the petitioner was called upon to produce her production records so as to satisfy the respondents as to the actual hours when the Industry had worked, thus enabling them (the respondents) to calculate the actual consumption of electric energy on the basis of the consumption of electricity keeping in view the actual production. However, the petitioner's husband is said to have refused to produce the records of production. It is on this basis that the respondents impute lack of bona fides to the petitioner and thus the supplementary bill, Annex. F, is sought to be justified as correct. The respondents have further contended that the authorities have right to withhold the electric supply when the charges are not paid.
6. The respondents' contention is that it is only in absence of fraud that a reference under Section 26(6) of the Act is possible and according to them they have made out a case of fraud against the petitioner.
7. Learned counsel for the petitioner contends that the petitioner had been regularly depositing the electric bills and as such, her supply of electric connection cannot be stopped. The petitioner has not disputed the meter readings. According to the learned counsel the register of the meter is the conclusive proof of the quantity consumed in absence of any fraud on the petitioner's part, as is contemplated by Sub-section (6) of Section 26 of the Act, which reads as under:
'Section 26. Meters -- (1) ........ (2) ..........
(6) where any difference or dispute arises as to whether any meter referred to in Sub-section (1) is or is not correct, the matter shall be decided, upon the application of either party, by an Electrical Inspector : and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, during such time not exceeding six months as the meter shall not, in supply in the opinion of such Inspector, have not 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 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.'
8. Shri Garg, appearing for the respondents has laid emphasis on the words 'in the absence of fraud' and submitted that the respondents have made out a prima facie case against the petitioner for inferring such a fraud. Learned counsel for the petitioner has further submitted that it is not open to the respondents, as contended, that they can stop the supply of electricity. He relies on the proviso to Sub-section (4) of Section 26 of the Act, which is as under :
'Section 26(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 so hired as aforesaid, all reasonable expenses of and incidental to, such inspecting, testing, taking off 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-section (6) has arisen until, the matter has been determined as therein provided.'
The proviso lays down that the licensee i.e. the respondent Board here in is not at liberty to take off or remove the meter in the event of any difference or dispute, as described in Sub-section (6), has arisen until such matter has been determined and decided in the manner provided for by Sub-section (6) of Section 26 of the Act.
9. The allegations made by the respondents against the petitioner are a matter of inquiry by the Electrical Inspector and it is he who under Sub-section (6) of Section 26 is entrusted with the task of deciding the correctness or otherwise of the mater. This sub-section clearly provides that where the meter has in the opinion of the Electrical Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied. The correctness of the meter is a question to be decided by the Electrical Inspector and even in the matter of holding an opinion that the meter is not correctly working or recording, it is not the opinion of the respondent Board, but ultimately the matter is to be decided by the Electrical Inspector, Instead of taking the course as provided by the law the respondents seek to justify their action by attributing fraud to the consumer. But, such argument, in our opinion, is not tenable in law. Sub-section (6) of Section 26 also prescribes the period for which a supplementary bill or a revised bill could be prepared and the determination of energy consumed is again entrusted to the Electrical Inspector. The respondent Board or its authorities cannot prepare such revised or supplementary bill and call upon the consumer to pay in accordance with such bills, by whatever name it is called, either revised or supplementary. The very fact that the respondent Board or its authorities are required to prepare such supplementary bill goes to show that they are not satisfied with the correctness of the meter recording, which is not disputed by the petitioner. The insistence to pay such a supplementary bill is, therefore, not supportable and the authorities would not be justified in insisting on such a payment before reconnecting or restoring the electric supply by installing a meter. It is beyond the scope of their authority and such an insistance has no foundation in law.
10. Learned counsel for the petitioner is right in his submission that the respondents could not have themselves decided that the meter installed was defective or was not correctly recording the actual consumption because such a decision can be given only by referring the dispute to the Electrical Inspector Learned counsel for the petitioner further contended that even the so called fraud, which is sought to be made out against the petitioner is an afterthought, as at no stage prior to the filing of this return the respondents have brought it to the notice of the petitioner, the imputations which they are now making in the return.
11. We are not required to go into the truth or otherwise of the allegations made by the respondents, as in our opinion when any difference or dispute arises, which in the instant case has in fact arisen, as to whether the meter is or is not correct, the same is required to be decided by the Electrical Inspector.
12. Learned counsel for the petitioner contends that there is no provision under the Act or the Rules permitting preparation of supplementary bills based on calculations other than the meter reading. Learned counsel appearing for the respondents was specifically called upon to point out any such provision justifying the issuance of such supplementary bills and he was at pains to point out any such provision. In such circumstances the petitioner cannot be called upon or compelled to deposit the amount of the supplementary bill before seeking reconnection or restoration of the electric supply. It can only be done by a decision of the Electrical Inspector and so long as it is not done, the electric supply to the consumer cannot be stopped.
13. Shri Dhupar, learned counsel for the petitioner relying on the decision in Hamidullahkhan v. The Chairman, M.P.E.B. AIR 1983 Madh Pra 1 submitted that it is for the respondents to get the dispute decided by the Electrical Inspector, which alone is the courses open to the respondents in view of Sub-section (6) of Section 26 of the Act. For whatever reasons, it is obvious that the dispute has been raised by the respondents and so long as the Electrical Inspector does not decide the dispute as envisaged by the Section, the consumer petitioner cannot be compelled to pay the supplementary bill, Annex. F.
14. In view of the discussion aforesaid, in our opinion, the petition deserves to be allowed and is accordingly allowed, the letter dt. 4-3-1983 (Annex. E) and the supplementary bill dt. 2-3-1983 (Annex. F) are hereby quashed as illegal. The respondents are directed to reconnect and restore the electric supply by installing another meter, for they have already collected the charges of Rs. 433A and 44A, vide receipts, Annexes-B and C, within a fortnight from the date of this order. However, in the circumstances of the case, there shall be no order as to costs of this petition. The outstanding amount of the security deposit, after verification if any, shall be refunded to the petitioner.