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PETITIONER: M.P.E.B. & OTHERS

       Vs.

RESPONDENT: SMT. BASANTIBAI

DATE OF JUDGMENT10/11/1987

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SHETTY, K.J. (J)

CITATION:  1988 AIR   71            1988 SCR  (1) 890  1988 SCC  (1)  23        JT 1987 (4)   294  1987 SCALE  (2)985

ACT:      Indian Electricity  Act, 1910:  Section 26(6)-Scope of- Disputes   regarding   electricity   meter-Jurisdiction   of Electrical  Inspector  to  decide-Electricity  Board-Whether competent to  issue supplementary  bill for  energy consumed during pendency  of dispute  regarding inherent defect/fault in the meter.

HEADNOTE: %      An electricity  meter with  three phases  installed  by appellant No.  1 for  running  an  oil  mill  owned  by  the respondent was  burnt. This  was brought  to the  notice  of appellant No.  4. The  respondent was  directed to deposit a certain amount  towards price  of the  meter and  the  meter connection charges,  which the  respondent complied, but the meter was  not installed,  nor  electric  supply  connection restored.  The  respondent  requested  appellant  No.  1  to restore electric  supply by  installation of  another meter. However, appellant  No.  1  sent  a  letter  dated  4.3.1983 calling upon  respondent to pay a sum of Rs.12,346.10 as per the attached  supplementary bill dated 2.3.1983, prepared on the basis  that the  meter was  not recording  actual energy supplied and  consumed, as  it was  running on  two  phases, since  one   of  the  three  phases  was  not  working,  and threatening disconnection of supply without notice, for non- payment.      The respondent  filed a writ petition in the High Court challenging the  legality of  the aforesaid  letter and  the supplementary bill.      On behalf of the appellants, it was contended that when the power connection was checked by an Assistant Engineer of the Board,  it was found that out of three phases, one phase was not  working, and body seal of the meter was intact and, therefore, respondent  was informed  that the bill should be revised due to non-working of one phase. It was alleged that respondent got  the meter  burnt,  since  it  did  not  burn ordinarily, and  the body  seal of the meter was broken, and the meter  tampered with  subsequently in order to avoid any liability.      The High  Court held  that since the dispute, was as to

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whether the  meter was  or was  not correct  it  had  to  be decided by the Electrical 891 Inspector, under  sub-section (6)  of s.  26 of  the  Indian Electricity Act,  1910 and  so long  as it  was not decided, appellant  No.   1  was   not  competent   to  prepare   the supplementary bill  or revised  bill, and quashed the letter dated 4.3.83 and supplementary bill of 2.3.83, as illegal.      In the  appeal by  special leave it was urged on behalf of the  appellants that  the respondent  committed fraud  in breaking the  body seal  of the  meter and running the same, and as  such, the  dispute did not attract the provisions of s. 26(6)  of the Act and the dispute could not be decided by the Electrical Inspector.      Dismising the appeal, ^      HELD: Under  sub-section (6)  of s.  26 of  the  Indian Electricity Act,  1910, it is only the dispute as to whether any meter  referred to  in sub-section (1) is/is not correct or it  is inherently  defective  or  faulty,  not  recording correctly the  electricity consumed, which can be decided by the Electrical Inspector. [896A-B]      It is  also evident  from the  said provision that till the decision  is made, no supplementary bill can be prepared by  the   Board,  estimating  the  energy  supplied  to  the consumer, as the Board is not empowered by the Act to do so. [896C-D]      A  dispute   regarding  the   commission  of  fraud  in tampering with  the meter  and breaking the body seal is one outside the ambit of section 26(6) of the Act. An Electrical Inspector has no jurisdiction to decide such cases of fraud. [895H; 896A]      In the  instant case, it appears from the report of the Assistant Engineer  of the  State Electricity Board that one phase of  the meter  was not  working at  all; so,  there is undoubtedly a dispute as to whether the meter in question is a correct  one or  a faulty  one. This  dispute,  therefore, squarely falls  within the provisions of the Act, and it has been  rightly  held  by  the  High  Court  that  it  is  the Electrical Inspector,  who alone  is empowered to decide the dispute. If  the Electrical  Inspector comes  to the finding that the,  meter is faulty and due to some defect it has not registered the actual consumption of electrical energy, then the Inspector  will estimate  the amount  of energy consumed and will fix the amount to he paid in respect of such energy consumed within  a period  not  exceeding  six  months.  The appellant No.  1 is not competent, pending the determination of this  dispute by  the Electrical  Inspector, to issue the impugned  notice  threatening  disconnection  of  supply  of electricity 892 for non-payment  of supplementary  bill prepared and sent by it. The  A Board is also not competent to prepare and send a supplementary bill  in respect  of energy  consumed  by  the respondent from  the one phase which stopped functioning and did not  record any  consumption of energy. [896B-C; 897F-H; 898A-B]      It appears  from the  report of  the Executive Engineer dated 17th  February, 1983  that the  body seal of the meter was intact at the time of inspection. He only found that the meter  which   was  installed   was  closed  on  one  phase. Therefore, there  is no  question of  fraud in  breaking the body seal  of the meter. The story of so-called fraud was an after thought,  and was not raised at any stage prior to the filing of the return in the High Court. [894E-F]

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    Gadag  Betgiri,   Municipal  Borough,   Gadag  v.   The Electrical Inspector,  Government  Electrical  Inspectorate, Government  of  Mysore,  AIR  1962  Mysore  209  and  M.  P. Electricity Board  Jabalpur and  another v. Chhanganlal, AIR 1981 M.P. 170 approved.      Abdul Razak  v. M.P. Electricity Board, [1982] M.P.L.J. 22 overruled.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 716 of 1985.      From the  Judgment and  order dated  20.9.1984  of  the Madhya Pradesh High Court in Misc. Petition No. 307 of 1983.      K.K. Venugopal,  S.K. Gambhir and Sanjay Sareen for the Appellants.      C.P. Mittal and C.K. Ratnaparkhi for the Respondent.      The Judgment of the Court was delivered by      RAY, J.  This  appeal  on  special  leave  is  directed against the  judgment and  order passed by the High Court of Madhya Pradesh  on 20.9.1984 in Civil Misc. Petition No. 307 of  1983  allowing  the  writ  petition  and  directing  the respondents to  reconnect and restore the electric supply by installing another meter.      The petitioner  is a  proprietor of  Santosh Industries DII BC, Sector, Sanwar Road, Indore and she obtained service connection 893 No. 192352  of 30  H.P. Ioad  for running  the oil mill. The Madhya Pradesh  Electricity Board,  the appellant No. 1, who is the  licensee installed  a meter  with three  phases  for ascertaining the  amount of  energy supplied and consumed by the petitioner  under the  aforesaid service  connection. On February 18,  1983 the  meter was burnt and this was brought to the  notice of respondent No. 4, an Assistant Engineer of the Zone  wherein the  petitioner’s industry is situated. On March 1,  1983 the  petitioner was directed to deposit a sum of Rs.433  as  price  of  the  meter  and  Rs.44  for  meter connection charges.      The sum  was deposited on the same day but no meter was installed  and   the  electric  supply  connection  was  not restored. A  letter  was  sent  by  the  petitioner  to  the respondent No.  1 requesting  to restore the electric supply by installation  of another  meter.  The  State  Electricity Board  sent   a  letter  dated  4.3.1983  calling  upon  the petitioner  to   pay  a   sum  of  Rs.12346.10  as  per  the supplementary bill dated 2.3.1983 sent alongwith said letter failing  which  the  supply  will  be  disconnected  without notice. The  basis of  the supplementary  bill was  that the meter was  not recording actual energy supplied and consumed as it  was found  that one phase out of the three phases was not working and the meter was running two phases only.      The petitioners  filed a  writ petition No. 307 of 1983 challenging the  said letter  dated 4.3.1983  as well as the supplementary bill  dated 2.3.1983  on the  ground that  the demand made  on the  basis of  the  supplementary  bill  was illegal.      A return was filed by the respondent to the effect that on  17.2.1983   the  power  connection  was  checked  by  an Assistant Engineer  of the respondent Board and it was found that out of three phases one phase was not working. The body seal of  the meter  was found to be intact. It has also been stated therein  that the  petitioner was  informed that  the bill should  be revised  due to  non working of one phase as

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found at  the time  of checking.  It has also been submitted that the  petitioner  got  the  meter  burnt  as  the  meter according to  respondent did  not burn  ordinarily.  It  was further alleged that body seal of the meter was broken. This tampering of the meter was alleged to have been done between 17 to  19 of February, 1983 in order to avoid any liability. The respondent further alleged that the petitioner’s husband refused to  sign the  panchnama which  was prepared  on  the spot.      The High  Court of  Madhyra Pradesh  after hearing  the parties held  that since  the dispute relates to whether the meter is or is not 894 correct has to be decided by the Electrical Inspector and so long the  A said  dispute is not decided, the respondent No. 1, Madhya  Pradesh Electricity  Board was  not competent  to prepare the  supplementary bill  or revised bill as the said power is  entrusted to  the Electrical  Inspector under sub- section 6  of section 26 of the Indian Electricity Act, 1910 (Act 9  of 19 10). It has been further held that the alleged notice calling  upon the petitioner to deposit the amount of supplementary   bill    before   seeking   reconnection   or restoration of electricity supply was also not in accordance with the  provisions of  the Act.  The letter dated 4.3.1983 issued by  the respondent no. 1 as well as the supplementary bill of  2.3.1983  were  quashed  holding  the  same  to  be illegal. The question of fraud was not even intimated to the respondent consumer. It was raised for the first time in the return to  the writ  petition. It  is an  after thought. The respondents were  directed  to  reconnect  and  restore  the electricity supply by installing another meter.      Against this  judgment and  order the instant appeal on special leave  has been  filed. It  has been  urged  by  Mr. Venugopal,  learned  counsel  appearing  on  behalf  of  the appellant that  the respondent  committed fraud  in breaking the body  seal of  the meter  and in burning the same and as such the  dispute does  not attract  the provisions  of  the section 26(6)  of the  said  Act.  This  dispute  cannot  be decided by  the Electrical  Inspector.  In  support  of  the submission our attention was drawn to the said provisions of the Act.  It  appears  from  the  report  of  the  Executive Engineer dated 17th February, 1983 that the body seal of the meter was  intact at  the time  of inspection. He only found that the  meter which was installed was closed on one phase. So the  contention that there was fraud in breaking the body seal of the meter cannot be sustained. Moreover, it has been found that  the question  of fraud  was raised  at no  stage prior to  the filing  of the  return in  the High Court. The said story  of so  called fraud  was an  after thought.  Mr. Venugopal after  seeing the report of the Assistant Engineer frankly submitted  that he  would not  press the  ground  of fraud.      In order  to decide  the question  whether the impugned notice dated  4.3.1983 can  be issued  by appellant  calling upon her  to pay the amount of supplementary bill as well as whether supplementary bill can be prepared by the Board when there is a dispute relating to question whether the meter is a correct  meter or  not, it  is necessary  to consider  the relevant provisions  of sub  sections (1) and (6) of section 26 of  the  said  Act.  The  said  provisions  are  set  out hereunder:           "26(1): In  the absence  of an  agreement  to  the           contrary, 895           the amount of energy supplied to a consumer or the

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         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."           "26(6): Where  any difference or dispute arises as           to whether  any meter  referred to  in sub-section           (1) is  or is  not correct,  the matter  shall  be           decided upon  the application of the 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  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           has been  correct;  but  save  as  aforesaid,  the           register of  the meter  shall, in  the absence  of           fraud, be  conclusive  proof  of  such  amount  or           quantity;           Provided  that  before  either  a  licensee  or  a           consumer applies to the Electrical Inspector under           this sub-section, he shall give to the other party           not less  than seven days’ notice of his intention           so to do."      It is  evident from the provisions of this section that a dispute as to whether any meter referred to in sub-section (1) is or is not correct has to be decided by the Electrical Inspector upon application made by either of the parties. It is for  the Inspector  to determine  whether  the  meter  is correct or  not and  in case the Inspector is of the opinion that the  meter is  not correct he shall estimate the amount of  energy  supplied  to  the  consumer  or  the  electrical quantity  contained  in  the  supply  during  a  period  not exceeding six  months and  direct the  consumer to  pay  the same. If  there is  an allegation  of fraud committed by the consumer in  tampering with  the meter  or manipulating  the supply line or breaking the body seal of the meter resulting in not  registering the  amount of  energy supplied  to  the Consumer or the electrical quantity contained in the supply, such a  dispute does  not fall  within the  purview of  sub- section 6  of section  26.  Such  a  dispute  regarding  the commission 896 Of fraud  in tampering  with the meter and breaking the body seal is  A outside  the ambit  of section  26(6) of the said Act.   An   Electrical   Inspector,   has,   therefore,   no jurisdiction to  decide such  cases of fraud. It is only the dispute as  to whether  the meter is/is not correct or it is inherently defective  or faulty  not recording correctly the electricity consumed,  can  be  decided  by  the  Electrical Inspector under the provisions of the said Act.      In the  instant case  it appears from the report of the Assistant Engineer  of the  State Electricity Board that one phase of  the meter  was not  working at  all, so  there  is undoubtedly a dispute as to whether the meter in question is a correct  one or  a faulty meter and this dispute has to be decided by  the Electrical  Inspector whose decision will be final. It  is also evident from the said provision that till the decision  is made  no supplementary bill can be prepared

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by the Board estimating the energy supplied to the consumer, as the  Board is  not empowered to do so by the said Act. It is pertinent to refer in this connection to the observations made in  the case of Gadag Betgiri, Municipal Borough, Gadag v.   The   Electrical   lnspector.   Government   Electrical Inspectorate, Government  of Mysore,  AIR 1962 Mysore 209 as follows:-                "What the  Inspector may  decide  under  sub-           section  6   is  whether   or  not   the  readings           obtainable from the meter are accurate and whether           the meter  is faulty  or  mechanically  defective,           producing erroneous  readings. That is the limited           adjudication which  in my opinion, an Inspector or           other authority  functioning under  sub-section  6           may make under its provisions. "           x    x    x    x    x    x    x    x    x                "In  my   opinion,  the   legislative  intent           underlying section  26(6) of  the Act  is similar.           The only  question into  which  the  Inspector  or           other authority functioning under that sub-section           might investigate is, whether the meter is a false           meter  capable  of  improper  use  or  whether  it           registers correctly and accurately the quantity of           electrical energy  passing through  it. If in that           sense, the  meter installed  by respondent  2 this           case was a correct meter as it undoubtedly was and           as it  has’been admitted  to  be,  the  fact  that           respondent 2,  even if  what the petitioner states           is true, so manipulated the supply lines that more           energy than  what was  consumed by  the petitioner           was allowed to pass through the 897           meter,  would  not  render  the  meter  which  was           otherwise correct, an incorrect meter."      This decision  was followed  in M.P. Electricity Board, Jabalpur and another v. Chhanganlal, AIR 1981 M.P. 170 where it has been observed:-                "Where an  electric meter  is not registering           correct consumption of energy not because there is           any defect  in the meter but because the wiring is           defective Section  26(6) will not be attracted and           the meter  not being  defective  the  question  of           arbitration by  Electrical Inspector will not also           arise . "      A contrary  view was however taken in the case of Abdul Razak v. M.P. Electricity Board, [1982] M.P.L.J. 22 where it has been held that:-                "About  the   fittings  on   the  meter   and           tampering them  in such  a manner that the reading           of the energy would not be correct, such a dispute           in view of the language of section 26(6) read with           Rule 3  of Schedule  VI  of  the  Electricity  Act           squarely falls  within  the  jurisdiction  of  the           Electrical Inspector.      We are  however, unable to accept this contrary view as it is  obvious from the provisions of section 26 sub-section 6 of the said Act that dispute whether a meter is correct or faulty would  come under  the said  provisions and  not  the dispute regarding  tampering of meter. In our view, the view taken about  the scope  of section  26(6) in  the  decisions cited above  are correct.  In the  instant case  the dispute relates to  whether the meter is correet one or it is faulty not recording  the actual energy consumed in running the oil mill of  the respondent.  So  this  dispute  squarely  falls within the  provisions of  the said  Act and  as such it has

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been rightly  found  by  the  High  Court  that  it  is  the Electrical Inspector  who alone  is empowered  to decide the dispute. If  the Electrical  Inspector comes  to the finding that the  meter is  faulty and due to some defect it has not registered the actual consumption of electrical energy, then the Inspector  will estimate  the amount  of energy consumed and will fix the amount to be paid in respect of such energy consumed within  a period  not  exceeding  six  months.  The appellant No.  1 is  not competent pending the determination of this  dispute by  the Electrical  Inspector to  issue the impugned notice threatening 898 disconnection of  supply of  electricity for  non payment of supplementary bill  prepared and  sent by  it. The  Board is also not  competent to prepare and send a supplementary bill in respect of energy consumed by the respondent from the one phase which  stopped functioning  and  did  not  record  any consumption of  energy. For the reasons, aforesaid we affirm the order  of High  Court and  dismiss  the  appeal  without costs. N.P.V.                                     Appeal dismissed. 899