JUDGMENT
Rama Jois, J.
1. In this Writ Appeal the question of law which arises for consideration is:
Whether a dispute arising out of under recording of consumption of electricity by an electrical meter, it is for the Board or it is for the consumer, to have the matter decided by the Electrical Inspector under Sub-section (6) of Section 26 of the Indian Electricity Act, 1910?
2. Brief facts of the case are these:
The respondent is running a hotel at Hubli City. At his business premises two meters have been installed for the purpose of recording the quantum of electric power consumed. One meter is in respect of lighting and the other is for power and heating. On 4th August, 1987 the technical audit staff and the meter testing staff of the Electricity Board made a surprise inspection of the premises of the respondent. According to the appellants, both the meters were tested with the assistance of an equipment meant for the purpose and it was found that the power meter was under-recording to the extent of 23% and the lighting meter was under-recording to the extent of 11.2%. In the circumstances the officer of the Board made back billing of electricity charges. Two bills were delivered to the respondent. One was for Rs. 1,261-60 i.e., in respect of lighting and another for Rs. 16,046/- in respect of heating and power. Questioning the legality of the bills and notices to pay the said amounts, the respondent presented the Writ Petition.
3. In the Writ Petition it was Contended for the respondent that the Board had no authority to demand any amount towards consumption of electricity for any past period on the ground that the meter was defective and that it was under-recording unless the matter was referred to the Electrical Inspector under Sub-section (6) of Section 26 of the Act and the Electrical Inspector gave a finding to the effect that the meter was under-recording. As against this, it was the contention of the appellant that when prima facie the authorities of the Board had found after testing meters through the equipment meant for the purpose that the meters were under-recording the consumption of electricity, it was for the respondent consumer to have approached the Electrical Inspector under Sub-section (6) of Section 26 of the Act. The learned Judge however accepted the contention of the respondent and in doing so, the learned Judge relied upon a Judgment of the Supreme Court in MADHYA PRADESH ELECTRICITY BOARD AND ORS. v. BASANTIBAI, . Accordingly, he allowed the Writ Petition. Aggrieved by the said order, the appellants have presented this appeal. The contention urged by the appellants and the respondent in the appeal are the same as those urged before the learned Judge.
4. Elaborating his contention Sri N.K. Gupta, learned Counsel for the appellants submitted as follows: That Sub-section (6) Section 26 of the Act provides that if the consumer disputes the correctness of the demand made by the Board it was for the consumer to raise a dispute before the Electrical Inspector. He also submitted that the ratio of the Decision of the Supreme Court on which the learned Judge relied was that only when a dispute was pending before the Electrical Inspector the Board had no jurisdiction to make any supplementary bill and not when the consumer had not at all chosen to raise a dispute before the Electrical Inspector. Sri Jayakumar S. Patil, learned Counsel for the respondent per contra contends that having regard to the language of Sub-section (6) of Section 26 of the Act in case of under-recording as the aggrieved party will be the Board, it is for the Board to raise a dispute before the Electrical Inspector and not for the consumer. He also submitted that the decision of the Supreme Court does not support the contention urged for the appellants.
5. The relevant portion of Section 26 of the Act reads:
“26. METERS (i) 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.
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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 day’s notice of his intention so to do.”
6. According to Sub-section (1) of Section 26 of the Act, it is the duty of the licensee i.e., the Board to supply and instal the meter necessary for recording the consumption of electricity at the premises of consumers. According to Sub-section (6), in case of any dispute arising between the Board and the consumer on the question as to whether the meter installed is correct or not such a question has to be decided by an Electrical Inspector on the application made by either of the parties. When such a dispute is raised it becomes the duty of the Inspector to estimate the amount of the energy supplied to the consumer during the disputed period not exceeding six months. It is only after the finding is given by the Electrical Inspector, the Board can proceed to prepare the supplementary bills for the antecedent period in accordance with the Regulation 28 and any other relevant Regulation applicable. The relevant portion of the Judgment of the Supreme Court in Madhya Pradesh Electricity Board’s case reads:
“…In our view, the view taken about the scope of Section 26(6) of the Electricity Act in the decisions cited above are correct. In the instant case the dispute relates to whether the meter is correct 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 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 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 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 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…”
The clear ratio of the above Judgment is that whenever a dispute arises regarding the correctness of a meter installed in a premises of a consumer for electricity such a dispute has to be decided by the Electrical Inspector and until and unless the finding is recorded by the Electrical Inspector, the Board would have no jurisdiction to prepare supplementary bills on the ground that the meter was under-recording.
7. Now the precise question before us is as to whether it is for the consumer to raise a dispute before the Electrical Inspector or for the Electricity Board to raise a dispute. In our opinion, when Sub-section (6) of Section 26 of the Act says that either of the party is at liberty to raise a dispute before the Electrical Inspector it means the party aggrieved is entitled to raise a dispute. Naturally in the case of under-recording, it would be the Board which is the aggrieved party and therefore in such cases, it is for the Board to raise a dispute before the Electrical Inspector and have the matter decided if it wants to make back billing to the extent the Board’s income was reduced on account of fault in the meter. In cases where the complaint is that the meter is over-recording naturally consumer would be the adversely affected party and therefore it is for him to raise a dispute before the Electrical Inspector under Sub-section (6) of Section 26 of the Act, in order to have the amount of the bill reduced. It is of course open to the parties not to raise dispute. For instance in cases where there is under-recording if the consumer is satisfied that the meters having been tested in his presence, that actually the meter was under-recording, even without raising a dispute he might agree for paying the difference. If he does so, thereafter, he cannot object for the same as by such conduct he gives up his right to raise a dispute under Sub-section (6) of Section 26 of the Act. Similarly even in cases of over-recording if the authorities of the Board are satisfied that the meter was defective and it was over-recording, even without compelling the consumer to raise a dispute before the Electrical Inspector, the authorities themselves may fairly concede the fact that the meter was over-recording and give relief to the consumer. In such a case also the question of raising a dispute does not arise as that also amounts to waiver of the rights to raise a dispute, Unless there is such settlement amicably in cases of under-recording it is for the Board, and in cases of over-recording it is for the consumer, to raise the dispute before the Electrical Inspector. Once such dispute is raised the modification of the bill should await the decision of the Inspector. For these reasons, we answer the question set out first as follows:-
In the case of under-recording of electricity by an electrical meter, it is for the Board to raise a dispute before the Electrical Inspector under Section 26(2) of the Indian Electricity Act,1910.
8. As far as the present case is concerned as this is a case of under-recording and the respondent was disputing the same, it was for the appellant Board to raise the dispute under Sub-section (6) of Section 26 of the Act.
9. Learned Counsel for the Board however strenuously contended that now a days there are latest scientific equipments with the aid of which the faulty nature of the meters could be found out immediately, without there being any necessity of settlement of such dispute and when such is the situation and the meter is found to be defective in the presence of the consumer, it was unnecessary to raise a dispute under Sub-section (6) of Section 26 of the Act. But the difficulty in accepting this submission is that Sub-section (6) of Section 26 of 1910 Act continues to be in force. If there are such modern equipments with the aid of which the faulty nature of the meters could be found out correctly and there is no necessity of raising any dispute before the Electrical Inspector it is open for the Electricity Board or the Central Electricity Authority to move the Government to amend the law to dispense with the settlement of dispute under Sub-section (6) of Section 26 of the Act and substitute the simpler method of testing the meters with the aid of the prescribed equipment, in the presence of the consumer or his authorised agent and to provide that itself constitutes the basis for either back-billing and raising supplementary demands or for giving refund of any excess amount collected from the consumer.
In the result, we make the following:
ORDER
Appeal is dismissed.
