C.M. No. 1681 of 2010 and LPA No. 590 of 2010 1 `IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. Nos.1680-LPA, 1681-LPA of 2010 and LPA No. 590 of 2010 Date of decision: 28.02.2011 Satish Kapur @ Satish Kumar son of Sh. Late Ram Lal Kapoor ......APPELLANT VERSUS The Punjab State Electricity Board and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Sanjay Tangri, Advocate, for the appellant. Mr. Rajiv Malhotra, Advocate, for respondents No. 1 to 4. *** AUGUSTINE GEORGE MASIH, J. C.M. No. 1680-LPA of 2010 For the reason mentioned in the application, deficient Court fee is permitted to be made good. C.M. stands disposed of. C.M. No. 1681 of 2010 Heard counsel for the parties. For the reasons mentioned in the application, the delay of 159 days in filing the appeal is condoned. C.M.stands disposed of. C.M. No. 1681 of 2010 and LPA No. 590 of 2010 2 LPA No. 590 of 2010 This appeal has been filed challenging the order dated 24.08.2009 passed by the learned Single Judge in CWP No. 12850 of 2009 and the order dated 06.11.2009 passed in Review Application No. 384 of 2009 dismissing the same. Brief resume of the facts are that the appellant is running an industry manufacturing plastic bags for which an electric connection has been provided to him by the respondent-The Punjab State Electricity Board (hereinafter referred to as 'Board'). The appellant is paying monthly service charges regularly. The checking of meter was made on 21.04.2003 and the meter was found to be working in order. Thereafter, on 02.01.2006, electric meter of the petitioner was again checked. The seals were found to be intact which were affixed on 21.04.2003. The official, who checked the electric meter, submitted a report to the Senior Executive Engineer of the respondent-Board stating that the meter was running slow at the rate of 34.25%. The Senior Executive Engineer further investigated and checked the electric meter in the presence of the appellant and found the said report to be correct. The signatures of the appellant was also taken on the report. It was found that phase association of the meter was wrong i.e. instead of U:RYB it was U:RBY which had led to the meter running slow. On this basis, the appellant received a memo wherein the account of the petitioner was overhauled for the period from February, 2001 to January, 2006 and he was directed to make payment of ` 9,37,686/-. Feeling aggrieved, the appellant deposited 10% of the amount demanded on 23.03.2006 and approached the Spot Review Committee. The Zonal Level Dispute Settlement Committee considered his case on 20.08.2008 and taking note of the fact that the meter was checked on 21.04.2003 and found to be in order, the demand period was reduced from February 2001 C.M. No. 1681 of 2010 and LPA No. 590 of 2010 3 onwards to 21.04.2003-03.01.2006. Resultantly, the demand also came down to ` 5,73,241/-. Not satisfied with the decision, the appellant approached the Punjab State Electricity Board, Electricity Grievances Redressal Forum but without any fruitful result. The Ombudsman, Punjab State Electricity Board was approached, who also did not interfere with the order passed by the Zonal Level Dispute Settlement Committee leading to the filing of the writ petition which was dismissed as also the review application. Thus this appeal. Counsel for the appellant submits that without considering the claim of the petitioner that he is being penalized for no fault of his and cannot be fastened with a liability for the action or inaction on the part of the respondent-Board, the writ petition has been dismissed. He submits that the slow running of the meter cannot be attributed to any act or omission of the appellant and, therefore, cannot be called upon subsequently to make good the difference which is found at a later stage. It was never the case of the respondent-Board that the meter was not recording correct consumption of electricity nor was it the case that any fraud was committed or device or trick adopted by the appellant to stop the meter from running or running slow. The appellant has been made liable for the lapse on the part of the respondent-Board which is not permissible in law. In support of this contention, counsel for the appellant has relied upon a judgment of this Court in the case of Punjab State Electricity Board and another vs. Commissioner Appeals, Patiala Division, Patiala and others, 2009 (1) Civil Court Cases 340 (P&H)and a judgment of the Hon'ble Supreme Court in the case of Bombay Electric Supply and Transport Undertaking vs. Laffans (I) Pvt. Ltd. and another, 2005 (2) Civil Court Cases 364 (S.C.). Having considered the submissions made by the counsel for C.M. No. 1681 of 2010 and LPA No. 590 of 2010 4 the appellant, we are of the considered view that the appeal does not call for any interference. It is not in dispute that after the rectification of the phase association of the meter, the consumption as shown by the meter installed at the unit of the appellant, increased by 50% in the next immediate five to six months. This clearly indicated that the meter was running slow. Further, the authorities have taken into consideration that despite reduction in production of plastic bags etc. there was increase in consumption of electricity which again points towards the slow running of the meter. If the electricity has been consumed by the appellant, he is bound to pay for the same. It is true that there is no fault on the part of the appellant but the appellant has proceeded on a wrong belief that he is being penalized for the same, as a matter of fact, he has been asked to pay for the electricity which he had consumed but the consumption could not be recorded by the meter because of the wrong phase association of the meter. We do not see any reason for the appellant to contend that he is being penalized for the inaction and lapse on the part of the respondent-Board. The Division Bench judgment in the case of Punjab State Electricity Board and another (supra) relied upon by the counsel for the appellant, of which one of us was a Member, would not be of any help to the appellant. In that case a demand was raised against the consumer for the slow running of the meter on replacement of the old meter treating the same to be a theft of electricity and a penalty was imposed on him for that reason. It is under those circumstances that this Court has observed that it is the responsibility of the Board to check and maintain the serviceability of the meter installed by it in the premises of the consumer and for its lapses, the consumer cannot be held liable and cannot be penalized. In the case of Bombay Electric Supply and Transport Undertaking (supra), the C.M. No. 1681 of 2010 and LPA No. 590 of 2010 5 Hon'ble Supreme Court was primarily dealing with the provisions of Section 26 (6) of the Indian Electricity Act, 1910, wherein at no stage, a dispute has arisen that the meter was not correctly recording the consumption of the electricity on account of being non-functional due to any fraud committed or device or trick adopted by the consumer nor was the dispute raised or sought for a reference for determination by Electrical Inspector. Further the meter, which was said to be incorrect, was removed and replaced by the Bombay Electric Supply and Transport Undertaking. It is under those circumstances that the Hon'ble Supreme Court observed that the appellant could not be permitted to take advantage of its own act and omission i.e. the act of removing the meter and the omission to make a reference to the Electrical Inspector and raise a demand on the respondent-consumer. The issues involved in this case are different from the judgments reliance on which has been placed by the counsel for the appellant. The impugned judgment passed by the learned Single Judge is based on the facts and their proper appreciation. No legal infirmity has also been found in the impugned judgment and order which would call for any interference. Accordingly, the present appeal stands dismissed. ( RANJAN GOGOI ) ( AUGUSTINE GEORGE MASIH ) CHIEF JUSTICE JUDGE February 28, 2011 pj