Section 26 of the Indian Electricity Act, 1910 - Theft of Electricity - penalty imposed at Rs. 5 lakhs and odd - challenged - High court held that the petition under sec.26 not considered and held that it was violation of principles of natural justice and as such set aside the orders of Board - Apex court held that in case of a theft of Electricity, the question of application of sec.26 does not arise and as such High court committed grave error - Apex court set aside the orders of High court and allowed the appeal =
The respondent alleged in the writ petition that on an inspection
conducted by the appellant on September 9, 2002 at the premises of the
respondent, the appellant intimated that at the time of inspection it
was found that H.T. Meter, T.P Box’s inner door and meter terminal
cover quick seals, plastic seals and paper seals were tampered. In
addition, L.T.T.P Box inner door quick seals, plastic seals and paper
seals were found tampered. The B-Phase P.T wire was found cut as such
the meter was not getting B-Phase potential.-
interference with the metering arrangement was made
by the respondent in order to prevent the meter from recording actual
consumption which attracts Regulation 64 of the Orissa Electricity
Regulatory Commission Distribution (Conditions of Supply) Code, 1998
(hereinafter referred to as “the Code”). Accordingly, the penal
charges as per rules were intimated and raised on the respondent on
September 30, 2002. -
The penal
bill was raised on the respondent/writ petitioner for a sum of [pic]
5,10,930/-. On October 5, 2002 the electricity supply was disconnected
since the respondent failed to make the payment.=
It was urged before the High Court on behalf of the respondent-company
on the ground
(i) that the penal bill had been issued in violation of
the principles of natural justice;
(ii) that the inspection was made
without giving a notice and in the absence of the representative of
the firm;
(iii) that the allegation of tampering with seals cannot be
sustained as there was no allegation that the outer seal of T.P. box
was broken or tampered with; and
(iv) that the penal bill could not
have been raised since the meter was defective and was not recording
proper consumption.
Counter affidavit
It is a clear case of theft of
electricity by the consumer and Section 26 of the Indian Electricity
Act, 1910 (hereinafter referred to as “the Act of 1910”) has no
application. It is submitted that Section 26(6) of the Act of 1910 is
attracted only when a meter is defective and is incapable of recording
the correct consumption of electricity. It was further contended on
behalf of the appellant before the High Court that inspection of the
meter was done in the presence of the representative of the writ-
petitioner/respondent.
the High Court set aside
the penalty charges imposed by the appellant on the writ
petitioner/respondent. The inspection report was also quashed on the
ground that such inspection was never done in the presence of the
authorised persons of the writ petitioner. The High Court further held
that since the penalty is untenable, the appellant was not entitled to
levy delayed payment surcharge on the penal charges treating it as old
arrears or current arrears. In these circumstances, the High Court
further directed to refund the amount so paid within three months.
Apex court conclusion
M.P Electricity Board v. Basantibai [1988 (1) SCC 23] and J.M.D. Alloys Ltd. v. Bihar
SEB [2003 (5) SCC 226] it has been held that in cases of
tampering or theft or pilferage of electricity, the demand
raised falls outside the scope of Section 26 of the Electricity
Act. If that is so, neither the limitation period mentioned in
Section 26 of the Electricity Act nor the procedure for raising
demand for electricity consumed would arise at all. In this view
of the matter, that part of the order of the Division Bench of
the High Court, directing that there should be a reference to
the Electrical Inspector, shall stand set aside. In other
respects the order of the High Court shall remain undisturbed.
The appeal is allowed accordingly.”
15. In these circumstances, in our opinion, the High Court was
wrong in bringing the matter within the scope of the provision of Section
26(6) of the said Act, and further the High Court was totally wrong in
appreciation of facts even on the question of inspection and stated that no
representative was present at that point of time. On the contrary,
admittedly the Manager of the respondent at the time of the inspection was
present.
16. In these circumstances, the appeals are allowed, the writ
petitions filed by the respondent/writ-petitioner are dismissed and the
order passed by the High Court is set aside.
2014 (March. Part ) judis.nic.in/supremecourt/filename=41341
GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO . 4023 of 2014
(Arising out of Special Leave Petition (Civil) No. 3396 of 2011)
Western Electricity Supply Co. of Orissa Ltd & Ors. ...Appellants
vs
M/s Baba Baijanath Roller and Flour Mill P. Ltd. ...Respondent
With
CA No.4024 of 2014
(arising out of SLP (Civil) No.3397 of 2011)
J U D G M E N T
Pinaki Chandra Ghose, J.
1. Leave granted.
2. This appeal is directed against an order dated August 3, 2010 passed by
the High Court of Orissa allowing the writ petition filed by the
respondent, quashing the bill issued by the appellant for a sum of
[pic]5,10,930/- as well the notice of disconnection dated October 5,
2010.
3. The respondent-writ petitioner is a registered company, inter alia,
carrying on its business under the name and style of M/s. Baba Baijnath
Roller and Flour Mill Pvt. Ltd., having installed a Mill in the district
of Jharsuguda and is the consumer of the appellant herein.
4. The facts of the case, briefly, are as follows :
4.1 The respondent alleged in the writ petition that on an inspection
conducted by the appellant on September 9, 2002 at the premises of the
respondent, the appellant intimated that at the time of inspection it
was found that H.T. Meter, T.P Box’s inner door and meter terminal
cover quick seals, plastic seals and paper seals were tampered. In
addition, L.T.T.P Box inner door quick seals, plastic seals and paper
seals were found tampered. The B-Phase P.T wire was found cut as such
the meter was not getting B-Phase potential.
2. It was further brought to the notice of the respondent by the
appellant that the interference with the metering arrangement was made
by the respondent in order to prevent the meter from recording actual
consumption which attracts Regulation 64 of the Orissa Electricity
Regulatory Commission Distribution (Conditions of Supply) Code, 1998
(hereinafter referred to as “the Code”). Accordingly, the penal
charges as per rules were intimated and raised on the respondent on
September 30, 2002. The appellant further called upon the respondent
to submit its representation, if any, within seven days. It was
intimated that in default of payment of such charges within seven days
from the date of receipt of the penal bill, the power supply to the
premises will be disconnected without any further notice. The penal
bill was raised on the respondent/writ petitioner for a sum of [pic]
5,10,930/-. On October 5, 2002 the electricity supply was disconnected
since the respondent failed to make the payment.
4.3 In these circumstances, a writ petition was filed by the respondent
challenging the action on the part of the appellant before the High
Court. The respondent-writ petitioner made out a case that the bill
used to be received by the writ petitioner was around [pic]80,000/-
per month and according to the writ petitioner/respondent, the meter
was defective and recording excessive consumption.
4.4 The writ petitioner/respondent challenged the action on the part of the
appellant that when the inspection was made, at that point of time the
officers of the appellant made a demand for illegal gratification
since refused by the Manager of the respondent-company, the officers
of the appellant raised such allegations and further the Manager was
forced to sign several papers under duress and coercion.
4.5 It was urged before the High Court on behalf of the respondent-company
on the ground (i) that the penal bill had been issued in violation of
the principles of natural justice; (ii) that the inspection was made
without giving a notice and in the absence of the representative of
the firm; (iii) that the allegation of tampering with seals cannot be
sustained as there was no allegation that the outer seal of T.P. box
was broken or tampered with; and (iv) that the penal bill could not
have been raised since the meter was defective and was not recording
proper consumption. By filing a counter affidavit, the appellant
herein duly contested the writ petition and stated that an alternative
remedy was available to the respondent under the Code. It was further
submitted that in the instant case, there is no question of alleging
that the meter is defective. It is a clear case of theft of
electricity by the consumer and Section 26 of the Indian Electricity
Act, 1910 (hereinafter referred to as “the Act of 1910”) has no
application. It is submitted that Section 26(6) of the Act of 1910 is
attracted only when a meter is defective and is incapable of recording
the correct consumption of electricity. It was further contended on
behalf of the appellant before the High Court that inspection of the
meter was done in the presence of the representative of the writ-
petitioner/respondent.
6. The High Court after hearing the parties held that in case of
violation of principles of natural justice even if alternative remedy
is available, a writ court can interfere for redressal of
grievance of the petitioner. The High Court further held that the
representation filed by the writ petitioner was never considered
before the imposition of penalty, far less giving an opportunity of
hearing to the writ petitioner. Accordingly, the High Court held that
this action of the appellant is in clear violation of the principles
of natural justice. In these circumstances, the High Court set aside
the penalty charges imposed by the appellant on the writ
petitioner/respondent. The inspection report was also quashed on the
ground that such inspection was never done in the presence of the
authorised persons of the writ petitioner. The High Court further held
that since the penalty is untenable, the appellant was not entitled to
levy delayed payment surcharge on the penal charges treating it as old
arrears or current arrears. In these circumstances, the High Court
further directed to refund the amount so paid within three months.
4.7 Being aggrieved, this appeal has been filed by the appellant.
5. Learned counsel appearing on behalf of the appellant contended before
us that the High Court has erred in holding that the matter should come
within the purview of Section 26(6) of the Act of 1910. He submitted that
the High Court ignoring the judicial pronouncements on this question
undermined the authority of the licensee (appellant) to impose penalty as a
consequence on a consumer even if the consumer has committed theft of
electricity. By this process, the provisions of the statutory Code have
been made nugatory. The meter could be subjected to tampering in various
ways. The methods as detected on inspection by the officers of the
appellant are more than sufficient to conclude that the meter was tampered
with and did not record the actual consumption of energy consumed by the
writ petitioner/respondent. He further contended that the theft of
electricity is governed by the Code and not under the provisions of the Act
of 1910.
6. The relevant provisions of the Act of 1910 as well as the Code, in
particular Clauses 54, 56, 64, 105, 110 and 115, were duly placed before
us. It will be proper for us to reproduce those hereunder:
“Section 26 - Meters. – (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 so long as the default
continues, cease to supply energy through the meter.
(4) The licensee or any person duly authorised by the licensee
shall, at any reasonable time and on informing the consumer of his
intention, have access to and be at liberty to inspect and test, and
for that purpose, if he thinks fit, take off and remove, any meter
referred to in sub-section (1); and, except where the meter is 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.
(5) A consumer shall not connect any meter referred to in sub-
section (1) with any electric supply-line through which energy is
supplied by a licensee, or disconnect the same from any such electric
supply-line, but he may by giving not less than forty-eight hours’
notice in writing to the licensee require the licensee to connect or
disconnect such meter and on receipt of any such requisition the
licensee shall comply with it within the period of the notice.
(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 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 sub-section, he shall give to the
other party not less than seven days’ notice of his intention so to
do.
(7) In addition to any meter which may be placed upon the premises
of a consumer in pursuance of the provisions of sub-section (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-section (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 or 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-sections (4), (5) and (6)
shall in that case apply as though the meter, indicator or apparatus
were a meter referred to in sub-section (1).
Explanation.—A meter shall be deemed to be “correct” if it registers
the amount of energy supplied, or the electrical quantity contained in
the supply, within the prescribed limits of error, and a maximum
demand indicator or other apparatus referred to in sub-section (7)
shall be deemed to be “correct” if it complies with such conditions as
may be prescribed in the case of any such indicator or other
apparatus.”
“CHAPTER - IV
METERS
54. Initial power supply shall not be given without a correct meter.
Meters will be installed at the point of supply or at a suitable place
as the engineer may decide. The same shall be fixed preferably in the
basement or ground floor in multi-storied buildings where it will be
easily accessible for reading and inspection at any time. The consumer
shall run his wiring from such point of supply and shall be
responsible for the safety of the meter or metering equipment on his
premises from theft, damage or interference.
x x x
56. The meters and associated equipment shall be properly sealed by
the engineer and consumer’s acknowledgement obtained. The seals,
nameplates, distinguishing numbers or marks affixed on the said
equipment or apparatus shall not be interfered with, broken, removed
or erased by the consumer. The meter, metering equipment, etc. shall
on no account be handled or removed by any one except under the
authority of the engineer. The engineer can do so in the presence of
the consumer or his representative. An acknowledgement shall be taken
from the consumer or his representative when seal is broken.
x x x
64. If a meter or metering equipment has been found to have been
tampered or there is resistance by the consumer to the replacement of
obsolete or defective meters by the engineer, the engineer may
disconnect the supply after giving seven clear days show cause notice
and opportunity to the consumer to submit his representation.
x x x
Penal Charges --
105. (1) On detection of unauthorised use in any manner by a consumer,
the load connected in excess of the authorised load shall be treated
as unauthorised load. The quantum of unauthorised consumption shall be
determined in the same ratio as the unauthorised load stands to the
authorised load.
(2) The period of unauthorised use shall be determined by the engineer
as one year prior to the date of detection or from the date of initial
supply if the initial date of supply is less than one year from the
date of detection. If the consumer provides evidence to the contrary,
the period may be varied according to such evidence. The engineer may
levy penal charges in addition to the normal charges for aforesaid
period of unauthorised use. Where addition of the unauthorised
installation or sale or diversion would result in a reclassification
according to this Code, the whole of the power drawn shall be deemed
to have been drawn in the reclassified category. The consumer shall
also be required to execute a fresh agreement under the reclassified
category.
(3) The penal energy charges for unauthorised use of power shall be
two times the charges applicable to the particular category of
consumer.
(4) The penal demand charges for unauthorised use of power in cases
covered under two part tariff shall be calculated on un-authorised
connected load expressed in KVA multiplied by two times the rate of
demand charges applicable.
x x x
CHAPTER - XII
CONSUMER PROTECTION
110. (1) A consumer aggrieved by any action or lack of action by the
engineer under this Code may file a representation within one year of
such action or lack of action to the designated authority of the
licensee, above the rank of engineer who shall pass final orders on
such a representation within thirty days of receipt of the
representation.
(2) A consumer aggrieved by the decision or lack of decision of the
designated authority of the licensee may file a representation within
forty five days to the chief executive officer of the licensee who
shall pass final orders on such a representation within forty five
days of receipt of the representation.
(3) In respect of orders or lack of orders of the chief executive
officer of the licensee on matters provided under Section 33 of the
Act, the consumer may make a reference to the Commission under Section
37(1) of the Act.
x x x
Overriding effect --
115. (1) The provisions of this Code shall override the provisions of
OSEB (General Condition of Supply) Regulation, 1995.
(2) Nothing contained in this Code shall have effect, in so far as it
is inconsistent with the provisions of Indian Electricity Act, 1910,
Electricity (Supply) Act, 1948 and Rules framed thereunder as amended
by the Act.”
7. Therefore, it would be evident from Section 26(6) which carves out an
exception, that where there is an allegation of “fraud”, the same provision
is not attracted. He further contended that invariably a plea is being
taken by the consumer found to have committed theft of electricity that his
meter was defective. In the instant case, in accordance with Section 26(4),
an inspection was conducted in the presence of the representative of the
respondent. If the meter is found to be defective on such inspection and if
the respondent was desirous of availing the benefit of Section 26(6), it is
the duty of the consumer under the said Section to move an application
before the Electrical Inspector for getting the meter tested.
8. It was submitted that the Orissa Electricity Regulatory Commission
(for short “OERC”) by virtue of Section 54 of the Orissa Electricity
Reforms Act, 1995 has framed a Code on different issues including the
manner in which theft of energy is to be determined. They are statutory in
character. Accordingly, he submitted that the High Court has erred in
dealing with the matter without taking into account the clauses of the Code
which are framed to deal with the theft of electricity. Factually also, the
High Court was incorrect in recording that the inspection was conducted in
the absence of the consumer. It is further submitted that the decision
relied on by the High Court is totally inapplicable in the facts and
circumstances of this case since Belwal Spinning Mills Ltd. v. U.P. State
Electricity Board [1] did not deal with the Code of 1998 framed by the
Orissa Electricity Regulatory Commission and the distinguishable feature of
the said decision is that the said decision made it clear that when there
is an allegation of fraud or tampering of meter, Section 26(6) of the Act
of 1910 has no application. Learned counsel further relied upon the
decision in Madhya Pradesh Electricity Board & Ors. v. Smt. Basantibai [2]
and drew our attention to paragraph 9 of the said decision and contended
that Section 26(6) of the Act of 1910 has no application where there is a
dispute regarding the commission of fraud in tampering with the meter and
breaking the body seal is totally outside the ambit of Section 26(6) of the
said Act. It is further contended that after the inspection was conducted
in the presence of the representative of the consumer, details of the
illegalities found on such inspection were shared with the respondent
consumer, resulting in receipt of a vague reply from the consumer and was
processed to raise a demand by way of a penal bill. Therefore, according to
him, the requirement under the law was followed before issuance of the said
penal bill. He further pointed out that on being aggrieved by such
decision, the writ petitioner/respondent could have followed the statutory
remedy as envisaged under Section 110 of the Code. It is further stated
that the High Court did not even give any reason for the direction to
refund the delayed payment surcharge.
9. In these circumstances, it is submitted that the order of the High
Court cannot be sustained under the provisions of law. The penal bill was
quashed only on the ground that the unit of the respondent was closed. Such
fact is immaterial and irrelevant in respect of demand of a penal bill. The
approach of the High Court is patently erroneous.
10. Per contra, it is submitted on behalf of the respondent that the
argument of the appellant could have succeeded if the appellant could prove
that the respondent had indulged in theft of electricity. It is pointed
out that on October 10, 2002, the High Court directed the respondent to
deposit [pic]30,000/- without prejudice and for restoration of power supply
since the electricity was disconnected on October 5, 2002. The power supply
was restored on deposit of [pic]10,000/- and subsequently, the respondent
further deposited a sum of [pic]20,000/- in terms of the direction. It is
submitted that in spite of the interim order passed by the High Court
directing stay of realisation of the penal bill, the appellants went on
charging delayed payment surcharge on the penal charges in monthly bills
raised subsequently on the respondent. It is submitted that the meter had
actually inherent defects as only the inner seal was broken but the outer
seal was intact. It is true that the matter was not referred to Electrical
Inspector. It is further stated that in case of a dispute between the
Central Act and the State Act, Central Act will prevail upon the State Act.
11. We have noticed the facts in this case. We have also considered the
Sections of the Act of 1910 and it appears to us that Section 26 is
relevant only when there is any difference or a dispute arises in
connection with correctness of a meter, in that case the matter shall be
decided, upon being applied by either party, by an Electrical Inspector and
in the opinion of the Inspector if it is found that the meter is defective,
the 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 but if there is a question of fraud in tampering with
the meter, in that case there is no question of applicability of Section 26
of the said Act in such a matter. In the instance case, we have asked the
learned counsel appearing for the respondent whether following Section
26(6), the respondent ever asked or applied for checking of the meter by
the Electrical Inspector on the ground of defective meter. The answer was
in the negative. Therefore, it shows that the ingredients of Section 26(6)
were not followed by the respondent to meet the necessity of checking the
meter in question in accordance with the said provision.
12. We have further noticed that the inspection was made in the presence
of the representative of the respondent who is a Manager of the said
company and in his presence the meter was checked up and was found to be
tampered with. We have also noticed that the plea of duress or coercion in
signing the inspection report was raised by the respondent but in reality
no allegation was made by the respondent before an appropriate authority
excepting such bald allegations have been made before the writ court
without any basis or evidence. Therefore that fact cannot have any bearings
in deciding this matter. We cannot brush aside the said fact from the mind
while dealing with the matter concerning tampering of meter. It appears to
us that the said aspect has escaped the attention of the High Court and
therefore, in our opinion, the High Court failed to appreciate the facts in
their proper perspective. Therefore, on this ground, we find that the High
Court has misconstrued the facts and the provisions of law in dealing with
the matter. The provision of law which deals with tampering of metering
equipments, i.e. clauses 56, 64 and 105 of the Code have not been
considered by the High Court and in our opinion the High Court has failed
to construe such provisions and erred in deciding the matter ignoring the
said provisions. The High Court accepted the position submitted on behalf
of the respondent/writ-petitioner that it was a case of defective meter and
there is no question of any tampering with the meter in question. The High
Court has failed to appreciate that the inspection was made and the fact of
tampering of meter would appear from the inspection report and such
inspection report was signed on behalf of the respondent/writ-petitioner.
Therefore, the High Court ignoring the said fact, came to the conclusion
without giving any reason, that the inspection report is bad and has erred
in setting aside such inspection report. Hence, such findings of the High
Court cannot be sustained.
13. Therefore, in our opinion, the High Court was also wrong in not
considering the rights of the appellant to raise penal charges on the
respondent on the ground of unauthorised consumption by way of tampering
the meter or metering equipment and has a right to raise penal bill in
accordance with the provisions of Code. On this ground the High Court has
erred in allowing the writ petition in favour of the respondent, quashing
the penal charges and further the direction given to refund the amount. The
said order is without any reason and cannot be sustained in the eyes of
law. Hence, the same is set aside.
14. We have also noticed in Madhya Pradesh Electricity Board & Ors.
v. Smt. Basantibai (supra), this Court held:
“9. 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 of fraud in tampering with
the meter and breaking the body seal is 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, that can
be decided by the Electrical Inspector under the provisions of the
said Act.”
In Sub-Divisional Officer (P), UHBVNL v. Dharam Pal[3], it
appears to us that in case of tampering, there is no scope for reference to
Electrical Inspector. It was held :
“9. In State of W.B. v. Rupa Ice Factory (P) Ltd. [2004 (10) SCC
635], it was observed as follows: (SCC p. 637, para 5)
“5. As regards the second claim, namely, the claim for the
period from December 1993 to December 1995, the finding of the
High Court is that the Vigilance Squad had found that Respondent
1 had tapped the electric energy directly from the transformer
to the LT distribution board bypassing the meter circuit. If
that is so, we do not know as to why the High Court would go on
to advert to Section 26 of the Electricity Act and direct
reference to the Electrical Inspector for decision under Section
26(6). In two decisions of this Court in M.P Electricity Board
v. Basantibai [1988 (1) SCC 23] and J.M.D. Alloys Ltd. v. Bihar
SEB [2003 (5) SCC 226] it has been held that in cases of
tampering or theft or pilferage of electricity, the demand
raised falls outside the scope of Section 26 of the Electricity
Act. If that is so, neither the limitation period mentioned in
Section 26 of the Electricity Act nor the procedure for raising
demand for electricity consumed would arise at all. In this view
of the matter, that part of the order of the Division Bench of
the High Court, directing that there should be a reference to
the Electrical Inspector, shall stand set aside. In other
respects the order of the High Court shall remain undisturbed.
The appeal is allowed accordingly.”
15. In these circumstances, in our opinion, the High Court was
wrong in bringing the matter within the scope of the provision of Section
26(6) of the said Act, and further the High Court was totally wrong in
appreciation of facts even on the question of inspection and stated that no
representative was present at that point of time. On the contrary,
admittedly the Manager of the respondent at the time of the inspection was
present.
16. In these circumstances, the appeals are allowed, the writ
petitions filed by the respondent/writ-petitioner are dismissed and the
order passed by the High Court is set aside.
....................................J.
(Gyan Sudha Misra)
New Delhi;
.....................................J.
March 26, 2014. (Pinaki Chandra Ghose)
-----------------------
[1] 1997 (6) SCC 740
[2] 1988 (1) SCC 23
[3] 2006 (12) SCC 222
-----------------------
19
The respondent alleged in the writ petition that on an inspection
conducted by the appellant on September 9, 2002 at the premises of the
respondent, the appellant intimated that at the time of inspection it
was found that H.T. Meter, T.P Box’s inner door and meter terminal
cover quick seals, plastic seals and paper seals were tampered. In
addition, L.T.T.P Box inner door quick seals, plastic seals and paper
seals were found tampered. The B-Phase P.T wire was found cut as such
the meter was not getting B-Phase potential.-
interference with the metering arrangement was made
by the respondent in order to prevent the meter from recording actual
consumption which attracts Regulation 64 of the Orissa Electricity
Regulatory Commission Distribution (Conditions of Supply) Code, 1998
(hereinafter referred to as “the Code”). Accordingly, the penal
charges as per rules were intimated and raised on the respondent on
September 30, 2002. -
The penal
bill was raised on the respondent/writ petitioner for a sum of [pic]
5,10,930/-. On October 5, 2002 the electricity supply was disconnected
since the respondent failed to make the payment.=
It was urged before the High Court on behalf of the respondent-company
on the ground
(i) that the penal bill had been issued in violation of
the principles of natural justice;
(ii) that the inspection was made
without giving a notice and in the absence of the representative of
the firm;
(iii) that the allegation of tampering with seals cannot be
sustained as there was no allegation that the outer seal of T.P. box
was broken or tampered with; and
(iv) that the penal bill could not
have been raised since the meter was defective and was not recording
proper consumption.
Counter affidavit
It is a clear case of theft of
electricity by the consumer and Section 26 of the Indian Electricity
Act, 1910 (hereinafter referred to as “the Act of 1910”) has no
application. It is submitted that Section 26(6) of the Act of 1910 is
attracted only when a meter is defective and is incapable of recording
the correct consumption of electricity. It was further contended on
behalf of the appellant before the High Court that inspection of the
meter was done in the presence of the representative of the writ-
petitioner/respondent.
the High Court set aside
the penalty charges imposed by the appellant on the writ
petitioner/respondent. The inspection report was also quashed on the
ground that such inspection was never done in the presence of the
authorised persons of the writ petitioner. The High Court further held
that since the penalty is untenable, the appellant was not entitled to
levy delayed payment surcharge on the penal charges treating it as old
arrears or current arrears. In these circumstances, the High Court
further directed to refund the amount so paid within three months.
Apex court conclusion
M.P Electricity Board v. Basantibai [1988 (1) SCC 23] and J.M.D. Alloys Ltd. v. Bihar
SEB [2003 (5) SCC 226] it has been held that in cases of
tampering or theft or pilferage of electricity, the demand
raised falls outside the scope of Section 26 of the Electricity
Act. If that is so, neither the limitation period mentioned in
Section 26 of the Electricity Act nor the procedure for raising
demand for electricity consumed would arise at all. In this view
of the matter, that part of the order of the Division Bench of
the High Court, directing that there should be a reference to
the Electrical Inspector, shall stand set aside. In other
respects the order of the High Court shall remain undisturbed.
The appeal is allowed accordingly.”
15. In these circumstances, in our opinion, the High Court was
wrong in bringing the matter within the scope of the provision of Section
26(6) of the said Act, and further the High Court was totally wrong in
appreciation of facts even on the question of inspection and stated that no
representative was present at that point of time. On the contrary,
admittedly the Manager of the respondent at the time of the inspection was
present.
16. In these circumstances, the appeals are allowed, the writ
petitions filed by the respondent/writ-petitioner are dismissed and the
order passed by the High Court is set aside.
2014 (March. Part ) judis.nic.in/supremecourt/filename=41341
GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO . 4023 of 2014
(Arising out of Special Leave Petition (Civil) No. 3396 of 2011)
Western Electricity Supply Co. of Orissa Ltd & Ors. ...Appellants
vs
M/s Baba Baijanath Roller and Flour Mill P. Ltd. ...Respondent
With
CA No.4024 of 2014
(arising out of SLP (Civil) No.3397 of 2011)
J U D G M E N T
Pinaki Chandra Ghose, J.
1. Leave granted.
2. This appeal is directed against an order dated August 3, 2010 passed by
the High Court of Orissa allowing the writ petition filed by the
respondent, quashing the bill issued by the appellant for a sum of
[pic]5,10,930/- as well the notice of disconnection dated October 5,
2010.
3. The respondent-writ petitioner is a registered company, inter alia,
carrying on its business under the name and style of M/s. Baba Baijnath
Roller and Flour Mill Pvt. Ltd., having installed a Mill in the district
of Jharsuguda and is the consumer of the appellant herein.
4. The facts of the case, briefly, are as follows :
4.1 The respondent alleged in the writ petition that on an inspection
conducted by the appellant on September 9, 2002 at the premises of the
respondent, the appellant intimated that at the time of inspection it
was found that H.T. Meter, T.P Box’s inner door and meter terminal
cover quick seals, plastic seals and paper seals were tampered. In
addition, L.T.T.P Box inner door quick seals, plastic seals and paper
seals were found tampered. The B-Phase P.T wire was found cut as such
the meter was not getting B-Phase potential.
2. It was further brought to the notice of the respondent by the
appellant that the interference with the metering arrangement was made
by the respondent in order to prevent the meter from recording actual
consumption which attracts Regulation 64 of the Orissa Electricity
Regulatory Commission Distribution (Conditions of Supply) Code, 1998
(hereinafter referred to as “the Code”). Accordingly, the penal
charges as per rules were intimated and raised on the respondent on
September 30, 2002. The appellant further called upon the respondent
to submit its representation, if any, within seven days. It was
intimated that in default of payment of such charges within seven days
from the date of receipt of the penal bill, the power supply to the
premises will be disconnected without any further notice. The penal
bill was raised on the respondent/writ petitioner for a sum of [pic]
5,10,930/-. On October 5, 2002 the electricity supply was disconnected
since the respondent failed to make the payment.
4.3 In these circumstances, a writ petition was filed by the respondent
challenging the action on the part of the appellant before the High
Court. The respondent-writ petitioner made out a case that the bill
used to be received by the writ petitioner was around [pic]80,000/-
per month and according to the writ petitioner/respondent, the meter
was defective and recording excessive consumption.
4.4 The writ petitioner/respondent challenged the action on the part of the
appellant that when the inspection was made, at that point of time the
officers of the appellant made a demand for illegal gratification
since refused by the Manager of the respondent-company, the officers
of the appellant raised such allegations and further the Manager was
forced to sign several papers under duress and coercion.
4.5 It was urged before the High Court on behalf of the respondent-company
on the ground (i) that the penal bill had been issued in violation of
the principles of natural justice; (ii) that the inspection was made
without giving a notice and in the absence of the representative of
the firm; (iii) that the allegation of tampering with seals cannot be
sustained as there was no allegation that the outer seal of T.P. box
was broken or tampered with; and (iv) that the penal bill could not
have been raised since the meter was defective and was not recording
proper consumption. By filing a counter affidavit, the appellant
herein duly contested the writ petition and stated that an alternative
remedy was available to the respondent under the Code. It was further
submitted that in the instant case, there is no question of alleging
that the meter is defective. It is a clear case of theft of
electricity by the consumer and Section 26 of the Indian Electricity
Act, 1910 (hereinafter referred to as “the Act of 1910”) has no
application. It is submitted that Section 26(6) of the Act of 1910 is
attracted only when a meter is defective and is incapable of recording
the correct consumption of electricity. It was further contended on
behalf of the appellant before the High Court that inspection of the
meter was done in the presence of the representative of the writ-
petitioner/respondent.
6. The High Court after hearing the parties held that in case of
violation of principles of natural justice even if alternative remedy
is available, a writ court can interfere for redressal of
grievance of the petitioner. The High Court further held that the
representation filed by the writ petitioner was never considered
before the imposition of penalty, far less giving an opportunity of
hearing to the writ petitioner. Accordingly, the High Court held that
this action of the appellant is in clear violation of the principles
of natural justice. In these circumstances, the High Court set aside
the penalty charges imposed by the appellant on the writ
petitioner/respondent. The inspection report was also quashed on the
ground that such inspection was never done in the presence of the
authorised persons of the writ petitioner. The High Court further held
that since the penalty is untenable, the appellant was not entitled to
levy delayed payment surcharge on the penal charges treating it as old
arrears or current arrears. In these circumstances, the High Court
further directed to refund the amount so paid within three months.
4.7 Being aggrieved, this appeal has been filed by the appellant.
5. Learned counsel appearing on behalf of the appellant contended before
us that the High Court has erred in holding that the matter should come
within the purview of Section 26(6) of the Act of 1910. He submitted that
the High Court ignoring the judicial pronouncements on this question
undermined the authority of the licensee (appellant) to impose penalty as a
consequence on a consumer even if the consumer has committed theft of
electricity. By this process, the provisions of the statutory Code have
been made nugatory. The meter could be subjected to tampering in various
ways. The methods as detected on inspection by the officers of the
appellant are more than sufficient to conclude that the meter was tampered
with and did not record the actual consumption of energy consumed by the
writ petitioner/respondent. He further contended that the theft of
electricity is governed by the Code and not under the provisions of the Act
of 1910.
6. The relevant provisions of the Act of 1910 as well as the Code, in
particular Clauses 54, 56, 64, 105, 110 and 115, were duly placed before
us. It will be proper for us to reproduce those hereunder:
“Section 26 - Meters. – (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 so long as the default
continues, cease to supply energy through the meter.
(4) The licensee or any person duly authorised by the licensee
shall, at any reasonable time and on informing the consumer of his
intention, have access to and be at liberty to inspect and test, and
for that purpose, if he thinks fit, take off and remove, any meter
referred to in sub-section (1); and, except where the meter is 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.
(5) A consumer shall not connect any meter referred to in sub-
section (1) with any electric supply-line through which energy is
supplied by a licensee, or disconnect the same from any such electric
supply-line, but he may by giving not less than forty-eight hours’
notice in writing to the licensee require the licensee to connect or
disconnect such meter and on receipt of any such requisition the
licensee shall comply with it within the period of the notice.
(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 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 sub-section, he shall give to the
other party not less than seven days’ notice of his intention so to
do.
(7) In addition to any meter which may be placed upon the premises
of a consumer in pursuance of the provisions of sub-section (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-section (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 or 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-sections (4), (5) and (6)
shall in that case apply as though the meter, indicator or apparatus
were a meter referred to in sub-section (1).
Explanation.—A meter shall be deemed to be “correct” if it registers
the amount of energy supplied, or the electrical quantity contained in
the supply, within the prescribed limits of error, and a maximum
demand indicator or other apparatus referred to in sub-section (7)
shall be deemed to be “correct” if it complies with such conditions as
may be prescribed in the case of any such indicator or other
apparatus.”
“CHAPTER - IV
METERS
54. Initial power supply shall not be given without a correct meter.
Meters will be installed at the point of supply or at a suitable place
as the engineer may decide. The same shall be fixed preferably in the
basement or ground floor in multi-storied buildings where it will be
easily accessible for reading and inspection at any time. The consumer
shall run his wiring from such point of supply and shall be
responsible for the safety of the meter or metering equipment on his
premises from theft, damage or interference.
x x x
56. The meters and associated equipment shall be properly sealed by
the engineer and consumer’s acknowledgement obtained. The seals,
nameplates, distinguishing numbers or marks affixed on the said
equipment or apparatus shall not be interfered with, broken, removed
or erased by the consumer. The meter, metering equipment, etc. shall
on no account be handled or removed by any one except under the
authority of the engineer. The engineer can do so in the presence of
the consumer or his representative. An acknowledgement shall be taken
from the consumer or his representative when seal is broken.
x x x
64. If a meter or metering equipment has been found to have been
tampered or there is resistance by the consumer to the replacement of
obsolete or defective meters by the engineer, the engineer may
disconnect the supply after giving seven clear days show cause notice
and opportunity to the consumer to submit his representation.
x x x
Penal Charges --
105. (1) On detection of unauthorised use in any manner by a consumer,
the load connected in excess of the authorised load shall be treated
as unauthorised load. The quantum of unauthorised consumption shall be
determined in the same ratio as the unauthorised load stands to the
authorised load.
(2) The period of unauthorised use shall be determined by the engineer
as one year prior to the date of detection or from the date of initial
supply if the initial date of supply is less than one year from the
date of detection. If the consumer provides evidence to the contrary,
the period may be varied according to such evidence. The engineer may
levy penal charges in addition to the normal charges for aforesaid
period of unauthorised use. Where addition of the unauthorised
installation or sale or diversion would result in a reclassification
according to this Code, the whole of the power drawn shall be deemed
to have been drawn in the reclassified category. The consumer shall
also be required to execute a fresh agreement under the reclassified
category.
(3) The penal energy charges for unauthorised use of power shall be
two times the charges applicable to the particular category of
consumer.
(4) The penal demand charges for unauthorised use of power in cases
covered under two part tariff shall be calculated on un-authorised
connected load expressed in KVA multiplied by two times the rate of
demand charges applicable.
x x x
CHAPTER - XII
CONSUMER PROTECTION
110. (1) A consumer aggrieved by any action or lack of action by the
engineer under this Code may file a representation within one year of
such action or lack of action to the designated authority of the
licensee, above the rank of engineer who shall pass final orders on
such a representation within thirty days of receipt of the
representation.
(2) A consumer aggrieved by the decision or lack of decision of the
designated authority of the licensee may file a representation within
forty five days to the chief executive officer of the licensee who
shall pass final orders on such a representation within forty five
days of receipt of the representation.
(3) In respect of orders or lack of orders of the chief executive
officer of the licensee on matters provided under Section 33 of the
Act, the consumer may make a reference to the Commission under Section
37(1) of the Act.
x x x
Overriding effect --
115. (1) The provisions of this Code shall override the provisions of
OSEB (General Condition of Supply) Regulation, 1995.
(2) Nothing contained in this Code shall have effect, in so far as it
is inconsistent with the provisions of Indian Electricity Act, 1910,
Electricity (Supply) Act, 1948 and Rules framed thereunder as amended
by the Act.”
7. Therefore, it would be evident from Section 26(6) which carves out an
exception, that where there is an allegation of “fraud”, the same provision
is not attracted. He further contended that invariably a plea is being
taken by the consumer found to have committed theft of electricity that his
meter was defective. In the instant case, in accordance with Section 26(4),
an inspection was conducted in the presence of the representative of the
respondent. If the meter is found to be defective on such inspection and if
the respondent was desirous of availing the benefit of Section 26(6), it is
the duty of the consumer under the said Section to move an application
before the Electrical Inspector for getting the meter tested.
8. It was submitted that the Orissa Electricity Regulatory Commission
(for short “OERC”) by virtue of Section 54 of the Orissa Electricity
Reforms Act, 1995 has framed a Code on different issues including the
manner in which theft of energy is to be determined. They are statutory in
character. Accordingly, he submitted that the High Court has erred in
dealing with the matter without taking into account the clauses of the Code
which are framed to deal with the theft of electricity. Factually also, the
High Court was incorrect in recording that the inspection was conducted in
the absence of the consumer. It is further submitted that the decision
relied on by the High Court is totally inapplicable in the facts and
circumstances of this case since Belwal Spinning Mills Ltd. v. U.P. State
Electricity Board [1] did not deal with the Code of 1998 framed by the
Orissa Electricity Regulatory Commission and the distinguishable feature of
the said decision is that the said decision made it clear that when there
is an allegation of fraud or tampering of meter, Section 26(6) of the Act
of 1910 has no application. Learned counsel further relied upon the
decision in Madhya Pradesh Electricity Board & Ors. v. Smt. Basantibai [2]
and drew our attention to paragraph 9 of the said decision and contended
that Section 26(6) of the Act of 1910 has no application where there is a
dispute regarding the commission of fraud in tampering with the meter and
breaking the body seal is totally outside the ambit of Section 26(6) of the
said Act. It is further contended that after the inspection was conducted
in the presence of the representative of the consumer, details of the
illegalities found on such inspection were shared with the respondent
consumer, resulting in receipt of a vague reply from the consumer and was
processed to raise a demand by way of a penal bill. Therefore, according to
him, the requirement under the law was followed before issuance of the said
penal bill. He further pointed out that on being aggrieved by such
decision, the writ petitioner/respondent could have followed the statutory
remedy as envisaged under Section 110 of the Code. It is further stated
that the High Court did not even give any reason for the direction to
refund the delayed payment surcharge.
9. In these circumstances, it is submitted that the order of the High
Court cannot be sustained under the provisions of law. The penal bill was
quashed only on the ground that the unit of the respondent was closed. Such
fact is immaterial and irrelevant in respect of demand of a penal bill. The
approach of the High Court is patently erroneous.
10. Per contra, it is submitted on behalf of the respondent that the
argument of the appellant could have succeeded if the appellant could prove
that the respondent had indulged in theft of electricity. It is pointed
out that on October 10, 2002, the High Court directed the respondent to
deposit [pic]30,000/- without prejudice and for restoration of power supply
since the electricity was disconnected on October 5, 2002. The power supply
was restored on deposit of [pic]10,000/- and subsequently, the respondent
further deposited a sum of [pic]20,000/- in terms of the direction. It is
submitted that in spite of the interim order passed by the High Court
directing stay of realisation of the penal bill, the appellants went on
charging delayed payment surcharge on the penal charges in monthly bills
raised subsequently on the respondent. It is submitted that the meter had
actually inherent defects as only the inner seal was broken but the outer
seal was intact. It is true that the matter was not referred to Electrical
Inspector. It is further stated that in case of a dispute between the
Central Act and the State Act, Central Act will prevail upon the State Act.
11. We have noticed the facts in this case. We have also considered the
Sections of the Act of 1910 and it appears to us that Section 26 is
relevant only when there is any difference or a dispute arises in
connection with correctness of a meter, in that case the matter shall be
decided, upon being applied by either party, by an Electrical Inspector and
in the opinion of the Inspector if it is found that the meter is defective,
the 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 but if there is a question of fraud in tampering with
the meter, in that case there is no question of applicability of Section 26
of the said Act in such a matter. In the instance case, we have asked the
learned counsel appearing for the respondent whether following Section
26(6), the respondent ever asked or applied for checking of the meter by
the Electrical Inspector on the ground of defective meter. The answer was
in the negative. Therefore, it shows that the ingredients of Section 26(6)
were not followed by the respondent to meet the necessity of checking the
meter in question in accordance with the said provision.
12. We have further noticed that the inspection was made in the presence
of the representative of the respondent who is a Manager of the said
company and in his presence the meter was checked up and was found to be
tampered with. We have also noticed that the plea of duress or coercion in
signing the inspection report was raised by the respondent but in reality
no allegation was made by the respondent before an appropriate authority
excepting such bald allegations have been made before the writ court
without any basis or evidence. Therefore that fact cannot have any bearings
in deciding this matter. We cannot brush aside the said fact from the mind
while dealing with the matter concerning tampering of meter. It appears to
us that the said aspect has escaped the attention of the High Court and
therefore, in our opinion, the High Court failed to appreciate the facts in
their proper perspective. Therefore, on this ground, we find that the High
Court has misconstrued the facts and the provisions of law in dealing with
the matter. The provision of law which deals with tampering of metering
equipments, i.e. clauses 56, 64 and 105 of the Code have not been
considered by the High Court and in our opinion the High Court has failed
to construe such provisions and erred in deciding the matter ignoring the
said provisions. The High Court accepted the position submitted on behalf
of the respondent/writ-petitioner that it was a case of defective meter and
there is no question of any tampering with the meter in question. The High
Court has failed to appreciate that the inspection was made and the fact of
tampering of meter would appear from the inspection report and such
inspection report was signed on behalf of the respondent/writ-petitioner.
Therefore, the High Court ignoring the said fact, came to the conclusion
without giving any reason, that the inspection report is bad and has erred
in setting aside such inspection report. Hence, such findings of the High
Court cannot be sustained.
13. Therefore, in our opinion, the High Court was also wrong in not
considering the rights of the appellant to raise penal charges on the
respondent on the ground of unauthorised consumption by way of tampering
the meter or metering equipment and has a right to raise penal bill in
accordance with the provisions of Code. On this ground the High Court has
erred in allowing the writ petition in favour of the respondent, quashing
the penal charges and further the direction given to refund the amount. The
said order is without any reason and cannot be sustained in the eyes of
law. Hence, the same is set aside.
14. We have also noticed in Madhya Pradesh Electricity Board & Ors.
v. Smt. Basantibai (supra), this Court held:
“9. 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 of fraud in tampering with
the meter and breaking the body seal is 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, that can
be decided by the Electrical Inspector under the provisions of the
said Act.”
In Sub-Divisional Officer (P), UHBVNL v. Dharam Pal[3], it
appears to us that in case of tampering, there is no scope for reference to
Electrical Inspector. It was held :
“9. In State of W.B. v. Rupa Ice Factory (P) Ltd. [2004 (10) SCC
635], it was observed as follows: (SCC p. 637, para 5)
“5. As regards the second claim, namely, the claim for the
period from December 1993 to December 1995, the finding of the
High Court is that the Vigilance Squad had found that Respondent
1 had tapped the electric energy directly from the transformer
to the LT distribution board bypassing the meter circuit. If
that is so, we do not know as to why the High Court would go on
to advert to Section 26 of the Electricity Act and direct
reference to the Electrical Inspector for decision under Section
26(6). In two decisions of this Court in M.P Electricity Board
v. Basantibai [1988 (1) SCC 23] and J.M.D. Alloys Ltd. v. Bihar
SEB [2003 (5) SCC 226] it has been held that in cases of
tampering or theft or pilferage of electricity, the demand
raised falls outside the scope of Section 26 of the Electricity
Act. If that is so, neither the limitation period mentioned in
Section 26 of the Electricity Act nor the procedure for raising
demand for electricity consumed would arise at all. In this view
of the matter, that part of the order of the Division Bench of
the High Court, directing that there should be a reference to
the Electrical Inspector, shall stand set aside. In other
respects the order of the High Court shall remain undisturbed.
The appeal is allowed accordingly.”
15. In these circumstances, in our opinion, the High Court was
wrong in bringing the matter within the scope of the provision of Section
26(6) of the said Act, and further the High Court was totally wrong in
appreciation of facts even on the question of inspection and stated that no
representative was present at that point of time. On the contrary,
admittedly the Manager of the respondent at the time of the inspection was
present.
16. In these circumstances, the appeals are allowed, the writ
petitions filed by the respondent/writ-petitioner are dismissed and the
order passed by the High Court is set aside.
....................................J.
(Gyan Sudha Misra)
New Delhi;
.....................................J.
March 26, 2014. (Pinaki Chandra Ghose)
-----------------------
[1] 1997 (6) SCC 740
[2] 1988 (1) SCC 23
[3] 2006 (12) SCC 222
-----------------------
19
