Paul Aluminium Manufacturing Co. vs Municipal Corporation Of ...
1997 Latest Caselaw 160 Del

JUDGMENT

S.N. Kapoor, J.

(1) This order shall dispose of the above mentioned revision- petition directed against an order directing the petitioner to deposit Rs. 60,00,000.00 by 23.6.1994 to avoid disconnection.

(2) According to submissions made by Mr. Sunil Malhotra that a sum of Rs. 5,00,000.00 out of Rs. 8,00,000.00 has been paid. Mr. Malhotra also submitted that the meter was inspected earlier on 15th April, 1991 (Annexure A) and it was found in good working condition. All the three phases were working. The meter was found defective on 9th January, 1992 and it was observed that the consumer meter was recording 67 percent less consumption, due to moving one phase in right direction and stop on two phases. On this basis, it was found that it was recording 67 percent less consumption and it also appeared that it was checked by Accqua Check Meter in the presence of the consumer.

(3) In this light, while it appears that there was prima fade evidence indicating that there was something essentially wrong with the meter, submission of Mr. Malhotra that Desu could not claim any amount on the same assumption for the billing for the last three years from 9th January, 1989 till 9th January, 1992 for the meter was found working in good condition from 15th April, 1991. Mr. Malhotra contends that at the most the Desu could raise an amount of the bill by 67 percent with effect from 16th April, 1991 till 9th January, 1992 and not for any period before 15th April, 1991. It is also contended by Mr. Sunil Malhotra that there is no plea of the Desu that all the seals were found intact. Though this aspect is being disputed by Mr. Ajay Jha, learned Counsel for the respondent.

(4) Mr. Sunil Malhotra also contends that under Section 26(6) bill for only six months could be raised and teamed Counsel has relied upon Municipal Corporation/ Idesu v. S.D. Shone, 53 (1994) Dlt l=1994 R.L.R. (111). In this connection following paragraph of the above said judgment is noteworthy : "WE,therefore, agree with the finding of the learned Single Judge that u/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 injustice for taking a decision. Similarly, in case a consumer is aggrieved in respect of alleged defective meter and raises a dispute that more charges than were really due from him are being recovered on the basis of reading 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 Bharat Barrel (supra). It is, however, made clear that the dispute whether a meter is correct or faulty would only come under the provisions of Section 26(6) of the Act, and not the dispute regarding the tampering of meter in term of law laid down by the Supreme Court in the case of M.P. Electricity Board (supra)."

(5) Mr. Sunil Malhotra contends if the meter is seen in proper perspective in the light of admitted facts borne out by the record the amount which could be due under Section 26(6) has already been paid by payment of Rs. 5,00,000.00 and virtually the petitioner's Counsel would be entitled to some refund as submitted by him. In view of the above, I feel that the order passed by Hon'ble Mr. Justice Anil Dev Singh dated 26th August, 1994 granting stay is to be extended till the disposal of the application by learned Additional District Judge.

(6) The learned Trial Court as well as Appellate Court have not dealt with any of the facts of the matter referred to above while deciding the application after hearing both the parties.

(7) Mr. Jha contends that this Court must not interfere with the order passed under Order 39 Rule I before the opposite party was heard. He further contends that in view of the judgment of Hindustan Aeronautics v. Ajit Prasad, A.I.R. 1973 Sc 176, this Court must not interfere in an order where the Appellate Court as well as the Trial Court have found an action on a question of fact unless it raises the question of jurisdiction.

(8) On the other hand learned Counsel for the petitioner in response to the above argument contends that it is settled law in terms of pronouncement of the Supreme Court in Vinod Kumar Arora v. Smt. Surjit Kaur, , that there is an exception to' the above said general rule pleaded by learned Counsel for the respondent and 'following observations in para 12 of the judgment in Vinod Kumar (supra) are relevant:

"LEARNED Counsel for the appellant repeatedly contended that when the Rent Controller and the Appellate Authority have rendered concurrent findings of fact, the High Court was not entitled to disregard those findings and come into a different conclusion of its own and cited in this behalf the decision of this Court in Hira Lal Vallabhram v. Sheth Kasturbhai Lalbhai, . The proposition of law put forward by the Counsel is undoubtedly a well settled one but then it must be remembered that the rule would apply only where the findings have been rendered with reference to facts and not on the basis of non-existent material and baseless assumptions."

(9) In the instant case as has been observed earlier there is no material so far to indicate that meter was giving any defective meter reading before 15th April, 1991. As such the submission of the Desu could not be said to be acceptable. Consequently, the contention of Mr. Jha that this Court should not interfere in this matter fails.

(10) The revision is accordingly allowed. Electric connection shall not be disconnected if the petitioner has already paid Rs. 5,00,000.00 till the final disposal of the application pending before the learned Addl. District Judge. It is made clear that no observations made hereinabove shall be taken as an expression of final opinion on the matter.

(11) A copy of this order be sent to the learned Trial Court. Both the parties are directed to appear before the learned Trial Court on 27th March, 1997.