Srikant D. Salunke (Dr.) Since ... vs Bombay Electric Supply And ...
2001 Latest Caselaw 422 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. In these proceedings under Article 226 of the Constitution the petitioner seeks to challenge the electricity bills raised by the Bombay Electric Supply and Transport Undertaking for the period 25th September, 1990 to 22nd May, 1993 and from 22nd May, 1993 to 22nd May, 1994. The original petitioner has since expired and his legal heirs have been brought on record. The case of the original petitioner is that the bills which had been issued by the respondent Undertaking had been duly and regularly paid by him. According to the petitioner Meter No. G 863642 which had been installed at his premises in which a Dental Clinic was being conducted by the petitioner, who is a Medical Doctor, was found to be defective upon investigation on 5th August, 1992. On 19th February, 1993 the respondent informed the petitioner that the meter was defective and that it was liable to be replaced. The petitioner has set out that thereafter, on 28th April, 1994, another letter was addressed to him by the respondent stating that the replaced meter was defective and that a new meter had been installed. Thereafter on 1st January, 1996 the petitioner was called upon to pay arrears in the amount of Rs. 77,916/- which form the subject matter of the grievance raised by the petitioner.

2. An affidavit in reply has been filed on behalf of the respondent in these proceedings. In the affidavit in reply it has been stated that the original petitioner had at the material time in the year, 1992 derived electric supply from a meter bearing No. G-863642 to register the units on supply consumed by the use of air-conditioners, heaters etc. On 22nd July, 1992 the Meter Reader noticed that the glass of the meter had been broken and the body seal was damaged. A report was accordingly made by the Meter Reader. Thereafter, on 5th August 1992 the Senior Enquiry Inspector prepared and filed his report stating that the meter had stopped, the glass had been broken and the body of the meter damaged. On the basis of this report the respondent issued directions on 17th August, 1992 to replace the damaged meter and to issue amended bills. On 24th August, 1992 the Enquiry Inspector made a report to the effect that the connected load in respect of the meter comprised of one air-conditioner of 1.5 tonne capacity and two heaters. Thereafter, it has been stated that on perusing the reading folio with respect to the said meter it was found that there was a sudden drop in the consumption for the period from 25th May, 1990 to 25th September, 1993. A revised claim was prepared by the respondent on the basis of a connected load of one air-conditioner and two heaters at the average consumption of 8 hours per day since the premises of the petitioner were commercial premises.

3. On 30th March, 1993 the respondent informed the petitioner that the meter was found to be defective and would be replaced. The petitioner was also

informed that an amended claim would be issued to him. Meter No. G- 863642 was replaced on 22nd May, 1993 by meter No. G-770151 after notice to the original petitioner. A bill for the period 26th March, 1993 till 28th May, 1993 was thereafter prepared on the basis of the connected load and the original petitioner was required to make payment for 2372 Units. Meter No. G-770151 which had been installed on the premises of the petitioner was also found to have ceased to function. The Sub Engineer made a report dated 5th July, 1993 stating that the meter had stopped and that the connected load of the premises was two air-conditioners, one of which was being used at a time for a period of four hours. A memo dated 5th October, 1993 was issued to the petitioner staling that the meter was not working and would accordingly be replaced and that an amended bill would be forwarded to the petitioner. The petitioner protested against the action proposed by a letter dated 22nd October, 1993. Discussions thereafter took place between the parties and the petitioner was called upon to produce proof of his actual consumption with reference to the connected load during the period in which the meters were found to be recording correctly and were damaged or broken. A report was prepared by the Sub-Engineer and after visiting the site and conducting an inspection he found that the meter had stopped and the body seals of the meter had been broken. Further on inspecting the premises it was found that the connected load was actually four air-conditioners out of which one was not working. On 24th January, 1994 the petitioner sought to furnish certain material in regard to the air-conditioners which have been used by him.

4. On 11th May, 1994 the petitioner was informed that meter No. G-770151 had also stopped functioning. The said meter was replaced by meter No. G-941951 on 30th September, 1994. That meter also stopped recording the consumption correctly from 27th March, 1995. After consideration of the evidence which had been produced by the petitioner in regard to the use of the air-conditioners in his commercial premises, the respondents by a letter dated 1st January, 1996 raised a total claim of Rs. 77,906/- upon the petitioner. This comprises of a claim of Rs. 59,009/- for the period from 25th September, 1990 to 22nd May, 1993 and Rs. 18,906/- for the period from 22nd May, 1993 to 30th May, 1994. The respondent has also stated in its affidavit in reply that apart from the revised bill which had been submitted by the respondent, the petitioner had also failed to pay current bills of the Undertaking. On 4th January, 1996 the supply to the petitioner was disconnected for non-payment of bills. It has been stated that despite the disconnection of supply the petitioner continued to illegally derive supply from unauthorised sources. An inspection was carried out on 30th January, 1996 by the Sub-Engineer of the Undertaking, who made a report stating that meter No. G-941451 had also been found to be tampered with. The connection of the meter was found to be interchanged, the seal of the terminal block cover was found to be missing and the meter body seals were found not to be properly clipped. On 30th January, 1996 a police panchanama was recorded at the spot by the Mahim police. The meter which had been tampered was once again removed and replaced on 8th March, 1996 by a new meter No. G-349292. In view of the tampering of the meter a claim for the period 6th June, 1994 to 1st January, 1996 was also raised on the petitioner, which is however not the subject in this Petition.

5. Under Section 26 of the Indian Electricity Act, 1910 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 is to be ascertained by means of a correct meter. Under Sub-section 6 of Section 26 where any difference or dispute arises as to whether any meter is or is not correct, the meter is to be tested upon the application by either party by a Electrical Inspector. Where the Electrical Inspector concludes that the meter has ceased to be correct he is required to estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply for a period not exceeding six months during which the "meter has not been correct. However, save as aforesaid and in the absence of fraud, the register of the meter is to be conclusive proof of the amount or quantity of electrical energy supplied. Sub-section 6 of Section 26 thus clearly postulates that in a case involving fraud the register of the meter shall not be regarded as conclusive proof of the electrical energy supplied to the consumer. The reason for this is obvious. A meter which has been tampered with or which has been unauthorisedly altered by or at the behest of the consumer cannot be regarded as expressing the proper or correct electrical consumption. In a case involving fraud, the supplier of electricity cannot be confronted with the conclusive proof which attaches to an electrical meter.

6. In the present case, there is a clear allegation that the electrical meter had been tampered with. In fact, the respondent undertaking has found on inspection and through the reports of its officers that successive electrical meters which were installed at the premises of the original petitioner had been tampered with. This is clearly, therefore, a case involving fraud. That being the position, the petitioner is not entitled to any relief in these proceedings under Article 226. The undertaking was in the present case justified in revising its bills and claiming an additional amount from the consumer of electricity on the basis of a revised computation of the electrical energy which had been supplied to the consumer. In these circumstances, there is no substance in the grievance which has been sought to be made in the Petition. During the pendency of these proceedings, the petitioner was directed to deposit an amount of Rs. 30,000/- as a condition for the grant of interim relief. Consequent upon the dismissal of the present proceedings, the petitioner would be required to pay the balance which is due and outstanding to the respondent-Undertaking. On the request of the Learned Counsel for the petitioner, time of three months is granted to pay the outstanding dues of the respondent. The respondent shall intimate the outstanding charges within three weeks which shall be paid thereafter in three monthly instalments.

7. Accordingly, the Writ Petition shall stand dismissed. No order as to costs.