IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5319 of 2003 1. MADHURI DEVI SINHA, wife of late Prem Narayan Sinha, resident of Mohalla-Mahraj Ghat, Pollice Station- Khajekala, District- Patna. 2. Kedar Prasad, son of late Bharat Prasad, resident of Flat No.8/46, 7 HF H.I.G. Bahadurpur Housing Colony, Police Station-Agam Kuan, District- Patna. ……. Petitioner Versus 1. THE BIHAR STATE ELEC.BOARD through its Chairman, Bailey Road, Patna. 2. The Superintending Ebngineer, East, PESU Circle, Patna.4. 3. The Electrical Executive Engineer, Electric Supply Undertaking Patna City Gurhatta, Mittan Ghat, Patna. 4. The Assistant Electrical Engineer, Revenue and Supply, Gurhatta, Mittan Ghat, Patna. ……….. Respondents. ----------- For the Petitioner: Mr. Mani Bhushan Kumar,Advocate Mr. Anil Chandra,Advocate For Electricity Board: Mr. Vinay Kirti Singh,Advocate ---- 5. 15.4.2010 Heard learned counsel for the petitioner and learned counsel for the respondent Electricity Board. The petitioner seeks quashing of the bill dated 29.9.2001 and 29.10.2001 for Rs.49,172/ and Rs.56,189/-, as contained in Annexure-1 series and further to quash the inspection report dated 30.8.1999 (Annexure-2) by which the load of the electric connection of the petitioner was enhanced from 10 H.P. to 17 H.P. and for further direction not to charge M.M.G. for the period when the factory was closed as also not to charge the fuel surcharge as well as delayed payment surcharge on illegal dues and to refund the excess amount already - 2 - paid. The short facts of the case are that the petitioner was a consumer having LTIS connection bearing consumer A/C No.22284,155561. The petitioner had originally taken the connection for 3 H.P. load, which was subsequently enhanced to 10 H.P. on the application of the petitioner. On 30.8.1999, an inspection was made in the premises of the petitioner by the Anti Power Theft Team of the Electricity Board which in its inspection report found the connected load to be 17 H.P. instead on 10 H.P. The said inspection was made in the presence of the representative of the petitioner who also signed on the inspection report without any demur. The petitioner states that the said representative is the brother of the petitioner and has no concern with the factory nor has any authority to sign on behalf of the petitioner. Thereafter on 7.9.1999 the petitioner raised objection against the inspection report dated 30.8.1999 before the Electrical Executive Engineer, who wrote to the Electrical Superintending Engineer, PESU (East) Circle, Patna. The Superintending Engineer - 3 - directed the Executive Engineer to constitute a team for joint inspection and on the basis of the load to be found on such inspection to raise bills against the petitioner. Thereafter on the basis of the increased load of 17 H.P. and in terms of clause 16.9 (A)(4) of the Tariff a supplementary bill for Rs. 18,391.20/- was raised. Ultimately, the petitioner applied on 11.8.2001 to disconnect the electrical connection of the premises which was accordingly disconnected on 16.8.2001. Thereafter the bills dated 29.9.2001 and 29.10.2001 were issued in which total bill of Rs. 56,189/- along with arrears was raised, which has been disputed by the petitioner. Learned counsel for the petitioner submits that the inspection was carried out in unwarranted manner by the authorities of the Board and wrongly the load was shown as 17 H.P., whereas the same was in accordance with the sanctioned load of 10 H.P. The main contention of learned counsel for the petitioner is that the Superintending Engineer having directed on 30.11.1999 to make re-inspection, the subordinate authorities were - 4 - obliged to make the same and raise bills accordingly, and thus the bill raised by the Board on the basis of enhanced load of 17 H.P. is not permissible. Learned counsel also refers to the other issues raised in the writ petition regarding the charging of amount on the basis of the average consumption, whereas if a meter is found to be defective, then the only recourse either for the Board or for the consumer is to approach the Electrical Inspector under Section 26 (6) of the Indian Electricity Act, 1910. The same having not been done, it is urged that the authorities of the Board have no power to raise bills on the basis of average consumption. In support of the aforesaid proposition, learned counsel for the petitioner relies upon a decision of the Supreme Court in the case of Madhya Pradesh Electricity Board and others vs. SMT. Basantibai: A.I.R. 1988 S.C.71, in paragraph No.13 of which it has been held as follows: “13. We are however, unable to - 5 - accept this contrary view as it is obvious from the provisions of Section 26 sub-section (6) of the said Act that dispute whether a meter is correct or faulty would come under the said provisions and not the dispute regarding tampering of meter. In our view, the view taken about the scope of Section 26(6) in the decision 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 the finding that the meter is - 6 - faulty and due to some defect it has not registered the actual consumption of electrical energy, then the Inspector will estimate the amount of energy consumed and will fix the amount to be paid in respect of such energy consumed within a period not exceeding six months. Appellant 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 sent a supplementary bill in respect of energy consumed by the respondent from the one phase which stopped functioning and did not record any consumption of energy. For the reasons aforesaid we affirm the order of High Court and - 7 - dismiss the appeal without costs.” Learned counsel for the Electricity Board, on the other hand, submits that so far as the inspection is concerned, the same was carried out by the Anti Power Theft Team of the Board Headquarters along with officials of the area and the same was also signed by one Bachan Prasad, who was managing the work of the factory and he had put his signature on behalf of the consumer without raising any protest and thus the inspection report cannot be assailed by the petitioner much less after three months from the date of the inspection as has been done by them. It is further submitted that the inspection having been made by the said Team along with the Officials of the Board, it was not open to the Superintending Engineer to have directed a further inspection to be made and to raise a fresh bill on the basis of the said inspection report, as he has no authority to over-rule the inspection having been made by the Anti Power Theft Team of the Board Headquarters and for the said reason no further - 8 - inspection was made. It is thus submitted that no illegality has been committed by the officials of the Board in not complying with the same. It is evident that wrong order has been passed by the Electrical Superintending Engineer. Learned counsel further submits that Detailed Billing Statement of the petitioner have been filed along with the counter affidavit for the period from April, 1995 to September, 2001 and from a perusal of the same, it would appear that no illegality has been committed by the Board. It is pointed out that the average billing relates to the period from July, 1995 to October, 1997 when 906 units were charged on the basis of average billing. It is pointed out that during the said period, the petitioner kept on paying his bills without raising any protest or demur and thus no such old and stale matter can be permitted to be raised by the petitioner at such a belated stage in a case filed in the year 2003 which ought to be confined to the inspection made on 30.8.1999 and consequential billing. It is further contended that after a - 9 - fresh meter was installed from November, 1997, the petitioner was being charged on the basis of Monthly Minimum Guarantee Charge as per the terms of contract and tarrif of the Board for 10 H.P. connection and it is not open to the petitioner to raise any protest with respect to the said part of the bill, which is from November, 1997 to July, 1999. Learned counsel further states that from August, 1999 the bills have been raised on the basis of the inspection made by the Anti Power Theft Team and the same is also in accordance with law and the bill has been raised on the basis of 17 H.P. connected load found after proper inspection in the presence of the representative of the petitioner. On a consideration of the aforesaid facts and circumstances as also the submissions of learned counsels for the parties, this Court finds sufficient force in the submissions of learned counsel for the Electricity Board. It is evident on a consideration of materials on the record that the average billing had been charged for the period from July, 1995 to October, 1997 which had never been disputed by - 10 - the petitioner and thereafter a new meter has been installed and the billing was being made on the basis of reading of the said meter and in terms of the Tariff. It is, thus, evident that any dispute regarding average billing could have been raised by the petitioner during July 1995 till October 1997 when the same was being made unilaterally by the authorities of the Board without approaching the Electrical Inspector. The petitioner having not challenged the same, he would be deemed to have waived his right and cannot be permitted to raise such an old and stale issue at a belated stage. This Court also finds that after the meter was installed the bills have either been raised on the basis of actual consumption under the said meter or the Minimum Monthly Guarantee Charge as per the contract between the Board and the consumer and the applicable tariff. Thus, the said part of the bill is also unassailable. Subsequently, also from August, 1999, the Board has raised the bills either on the basis of actual consumption or the Minimum Monthly Guarantee Charges on the basis of - 11 - enhancing the connected load as 17 H.P., which was found by the Anti Power Theft Team of the Board and its report could not have been challenged by the petitioner when the representative of the petitioner did not raise any objection when the inspection itself was being carried out. Any protest ought to have been made at the time of inspection and not at any time thereafter. Even a short lapse of a week or so would be sufficient time in order to make changes in the set up of the various power consuming apparatus and thus the inspection report accepted at the time of inspection is not open to challenge subsequently. The only remedy available to the petitioner was to have applied for load reduction subsequently, but it has not been contended by learned counsel for the petitioner that any such attempt was even made. This Court also accepts the submission of learned counsel for the Electricity Board that the inspection having been carried out by the Anti Power Theft Team, it was not open to the Superintending Engineer to have issued any direction for further joint inspection and to - 12 - raise bills accordingly. In the facts and circumstances of the case, it is evident that there is no application so far as the decision of the Apex Court in the case of Basantibai (supra) is concerned, as this is not a case where any charge has been made on the basis of defective meter and so far as the said charge having been made for the period from July, 1995 to October, 1997 is concerned, the petitioner having never challenged the same he cannot be permitted to do so at such a belated stage. Thus, on a consideration of the facts and circumstances of the case, there is no merit in the writ petition and it is, accordingly, dismissed. VPS ( Ramesh Kumar Datta, J. )