Municipal Corporation Of Delhi ... vs H.D. Shourie
1993 Latest Caselaw 716 Del

JUDGMENT

Sat Pal, J.

(1) This Letters Patent Appeal is directed against the judgment dated 31st March, 1987 passed by a learned Single Judge of this Court in Civil Writ Petition No.2004 of 1983. Before the learned Single Judge the following contentions were urged on behalf of the petitioner :- 1)No demand can be raised for period which is more than three years after the consumption of the electricity. 2) Since the provisions of section 26(6) of the Indian Electricity Act, 1910 (hereinafter referred to as the Act') have not been complied with, the demand raised by Delhi Electric Supply Undertaking (for short called 'DESU')vide bill dated 1st November, 1980 was liable to be quashed. 3) Assuming there can be a demand which is raised in case of a defective meter, then the basis of calculating the correct consumption of electricity during the period should be not with reference to the subsequent period but should be with reference to the period earlier than the period in question.

(2) Dealing with the above contentions the learned Single Judge in the impugned judgment gave the following findings:- 1)Even though the liability to pay may arise when the electricity is consumed by the petitioner, nevertheless it becomes due and payable only when the liability i quantified and a bill is raised. The Desu is, therefore, at liberty to send a bill for consumption of electricity even three years after the electricity has been consumed. 2) Section 26(6) of the Act provides for the Electrical Inspector taking a decision on disputed question and in this the requirement of the inspector following the principle of natural justice is implicit. Further under section 26(6) of the Act, an estimate by the Electrical Inspector is not to be for a period in excess of six menths. In the present case since the Electrical Inspector was never brought in the picture and Desu took a unilateral decision and the bill was for a period in excess of six months, the provisions of section 26(6) of the Act have been violated. In view of non-compliance of section 26(6) of the Act, the bill date 1st November, 1980 is quashed. It is also held that Desu can raise a valid demand only by complying with the provisions of section 26(6) of the Act if it alleges that the , was defective and not of her wise. 3) In case of a defective meter the electricity charges should be calculated in terms of clause 22(d) of the Conditions of Supply Say in case of a defective meter in the months of May to July 1973, the amount of electricity consumption will be calculated by having reference to the consumption in the previous three season months i.e. for the same months for the years 1970,1971 and 1972.

(3) For the reasons mentioned here in above the writ petition was allowed with costs, hence the present appeal has been filed by the DESU. It may be pointed out here that in the present case cross-objections have been filed on behalf of the respondent and in the cross-objections the rinding of the learned Single Judge that the period of three years will start from the date the bill is sub milled to the consumer, has been challenged. Besides, the learned counsel for the appellant and the respondent, counsel for the writ petitioner in Civil Petition No.1443 of 1988 and other connected writ petitions also addressed arguments since the points raised in the connected writ petitions were also identical to those raised in the present appeal.

(4) Mr. Ashwani Kumar, learned Senior Counsel, appearing on behalf of the appellant submitted that the writ petition itself was not maintainable in view of the provisions of the Act. He .submitted that under section 26(6) of the Act the disputes or difference between the licensee (DESU) and consumer are required to be referred to Electrical Inspector who has got technical knowledge, lt is, therfore, not proper to entertain the dispute of this this nature in.a petition under Article 226 of the Constitution. In support of his contention the learned counsel placed reliance on a judgment of Gujarat High Court in Quality Steels and Forgins Ltd. and Gujarat vs. Gujarat Electricity city Board and another,

(5) The learned counsel further submitted that in case the consumer was aggrieved with the amount of the boll sent by Desu, he is at liberty to raise the dispute before the Electrical Inspector in terms of section 26(6) of the Act and pending adjudication of the matter before the Electrical Inspector the Desu will he entitled to recover the amount from such a consumer on the basis of clause 22(d) of the Conditions of Supply. He further submitted that the learned Single Judge erred in holding that a demand cannot be raised on account of defective meter when the question of correctness of the mater being adjudicated upon by the Electrical Inspector. He submitted that in case the aforesaid finding of the learned Single Judge is upheld, it will create difficulties in the proper functioning0 of Desu as in the Union Territory of Delhi there were thousands of maters which keep becoming defective from time to time. He further submitted that the Conditions of Supply which are contractual in nature are binding on the consumer and in case a meter is found defective, the consumer is hound to pay the bill for the electricity consumed, on the basis mentioned in clause 22(d) of the Conditions of Supply.

(6) Mr. Thadani, the learned counsel appearing on behalf of the respondent submitted that on a correct interpretation of section 63/24 of the Act, the. amount becomes due the moment the electricity is consumed and under section 455 of the Delhi Municipal Corporation Act sum due to the Corporation on account of any charge cannot be recovered more than three years after it has become due. He, therefore, contended that the learned Single Judge erred in holding that the electricity charges become due after the bill is sent and not earlier. The learned counsel also drew our attention to clause 25 of the Conditions of Supply and submitted that bills are required to be rendered to the consumer monthly and bimonthly and in case Desu fails to send the bills within the period of limitation, it cannot insist that the amount was payalble. In support of his contention, the learned counsel placed reliance on a judgment of the Supreme Court in New Delhi Municipal Committee Vs. Kalu Rum, . He also referred to page 212 of Maxwell '' Interpretation of Statutes, Twelfth Edition", where in it is stated that a man cannot take advantage of his own wrong.

(7) Learned counsel further submitted that a bill bused on defective/burnt meter is not a valid bill and Desu is not entitled to recover any amount in respect of such a bill. He submitted that the only remedy for Desu in such a case is to refer the matter under section 26(6) of the Act to the Electrical Inspector who will estimate the amount of energy supplied to the consumer during such time not exceeding six months. He further submitted that when the mailer is pending before the Electrical Inspector, no bill can he sent to the consumer. In support of this submission the learned counsel placed reliance on a judgment of a Full Bench of Karnataka High Court in Regional Director, E.S.I. corporation vs. M/s.Fibre' Bungalore(P) Ltd., 198O Lab I.C.583, a judgment of Bombay High Court in Bharat Barrel and Drum Mfg. Co.Ltd. vs. Municipal Corporation of Greater Bombay and other, and a judgment of this Court in Major Zorawar Singh vs. M.C.D. & Anr. .

(8) Mr. S.P. Mittal, the learned counsel for the writ petitioner in a connected case, besides reiterating the submissions made by Mr. Thadani, submitted that a demand made from a consumer for any sum of money with respect to the alleged supply of energy is not a valid demand if the same is based on a defective meter. He further submitted that in case of a defective meter Desu can install a pilot meter till a correct mater is provided but cannot charge any money on the basis of a defective meter. In support of his submissions, the learned counsel placed reliance on a judgment of Allahabad High Court in Kamala Shanker Upadhya vs. State Electricity Board, U.P., .

(9) Mr. Valmiki Mehta and Mr. Rana Mukherjee, the learned counsel for the petitioners in other connected cases submitted that in case a meter is found defective, Desu should refer the meter to the Electrical Inspector and during the pendency of reference, should install a pilot meter and Desu should charge the bill only on the basis of the pilot meter till the matter is decided by the Electrical Inspector. They also relied on the judgment of Bombay High Court in the case of Bharat Barrel Mfg. Co. Ltd., (supra).

(10) Mr. A.P.S.Ahl uwalia, the learned counsel for the petitioner in another connected case referred to section 26(6 ) of the Act and submitted that in terms of the said section, person aggrieved has to approach the Electrical Inspector. He further submitted that since in the present case Desu, being the aggrieved party, should approach the Electrical Inspector who shall estimate the amount of energy supplied to the consumer during such time not exceeding six months. He also submitted that under proviso to section 26(4) of the Act, the meter cannot be removed till the matter is decided by the Inspector and till the matter is decided by the Electrical Inspector, Desu cannot charge any amount. In support of his submission he also placed reliance on the judgment of Bombay High Court in the case of Bharat Barrel and Drum Mfg. Co. Ltd. (supra).

(11) We have given our anxious consideration to the submissions made by the learned counsel for the parties. We do not find any merit in the contention raised by the learned counsel for the appellant that the writ petition itself was not maintainable as this point was not raised on behalf of the appellant in the writ petition. In this connection we may, however, refer to a Division Bench judgment of Allahabad High Court in the case of Kamala Shanker Upadhya (supra) which was a case of similar nature like the present one and in that case it was held that normally in case of ordinary contractual liability the writ would not be appropriate remedy but where the action of a public authority invested with statutory power is challenged, the writ petition is maintainable. Here it will also be relevant for refer to a judgment of the Supreme Court inM.P.E. B. and others vs. Smt. Basantibai, , In this case the Supreme Court has upheld the judgment of the High Court of Madhya Pradesh rendered in a writ Petition pertaining to a dispute of defective meter. Accordingly, the contention the learned counsel for the appellant with regard to the maintainability of the writ petition is rejected.

(12) As regards the contention of the learned counsel for the appellant pertaining to the demand in respect of a defective meter when the question of correctness of the meter is being adjudicated upon by the Electrical Inspector, it will be relevant to refer to section 26(6) of the Act and. clause 22(d) of the Conditions of Supply which read as under:-

"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 either party, by an Electrical Inspeclor; 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 Inspectors have been correct; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount of quantity : Provided that before either a licenses 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."

"22.Meters & Meter Reading (d) If at any time the meter belonging to the Undertaking and installed at the consumer's premises is found defective, the same shall be replaced by Undertaking. For the period during which the meter remained defective, the consumption shall be determined as follows :- (i) Average recorded for the previous three Season months for all consumers including perennial factories except those as brought out under item (ii) below. (ii) For seasonal factories and licensees either average of previous three months as in (i) above or last year's consumption for a similar period whichever is considered suitable by the Undertaking."

(13) The reading of section 26(6)of the Act shows that a dispute as to whether any meter is or is not correct can be referred on an application made by either of the parties to the Electrical Inspector and 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 the energy supplied to the consumer during a period not exceeding six months and shall direct the consumer to pay the same. Once the dispute is referred under section 26(6) of the Act, Desu will be entitled to claim only the charges payable as per the register of meter and such further amount as may be held due for a period of six months by the Electrical Inspector and that would be the amount due for the purpose of section 24 of the Act. We are, therefore, of the opinion that the bills could be revised only for the period during which according to the Electrical Inspector the meter was not correct subject to a maximum period of six months immediately preceding the reference. In all other respects, the register of meter is final and binding on the parties and no charges other than what is warranted by the entries can be demanded from the consumer. We, therefore, agree with the finding of the learned Single Judge that under section 26(6) of the Act, an estimate by the Electrical Inspector is not to be for a period in excess of six months and the Electrical Inspector will have to follow the principles of natural justice for Inking a decison. Similarly, in case a consumer is aggrieved in respect of alleged defective meter and raises a hh that more charges than were really due from him are being recovered on the basis of rending of defective meter, he also cannot dispute the correctness of the entries in the register of meter for any period beyond six months. The view we have taken also finds support from the judgment of Bombay High Court in the case of Bharat Barrel and Drum Mfg. Co. Ltd. (supra). It is, howerver, made clear that the dispute whether a meter is correct or faulty would only comes under the provisions of section 26(6) of the Act and not the dispute regarding the tampering of meter in term of law law laid down by the Supreme Court in the case of M.P. Electricity Board (supra).

(14) Section 22(d) of the Conditions Supply will have to be read along with section 26(6) of the Act. In terms of the aforesaid section the electricity charges in case of a defective meter can be calculated by Desu with reference to the consumption in the previous three years for the same months till the dispute is adjudicated upon by the Electrical Inspector. We, therefore, uphold the finding of the learned Single Judge on this aspect of the matter also.

(15) As regards the contention of the learned counsel for the respondent that in terms of section 24 of the Act the amount becomes due the months the electricity is consumed, we do not find any substance in this contention. On the contrary we find no infirmity in the finding of the learned Single Judge that the liability to pay may arise when the electricity is consumed by a consumer, never the less it becomes due and payable only when the liability is quantified and a bill is raised. We fully with the reasons given by the learned Single Judge on this as pect the matter. Accordingly, we reject the contention raised by the learned counsel for the respondent.

(16) In the case of Ndmc (supra) which has been relied upon by the learned counsel for the respondent the Supreme Court has held that if the recovery of any amount is barred by the law of limitation it cannot be insisted that the amount was payable. The judgment of the Supreme Court in the aforesaid case is of no assistance to the respondent as the Supreme Court was not concerned with the plaint as to when the amount becomes due and payable under the Indian Electricity Act.

(17) In view of the aforesaid reasons the Letter Patent Appeal is dismissed with no order as to costs. We further direct that the writ petitions be now listed before learned Single Judge for deception week commencing 7th February, 1994.