IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 SA.No. 39 of 1996(5) -------------------- AS.610/1994 of SUB COURT, NEYYATTINKARA OS.187/1989 of PRL.M.C., NEYYATTINKARA .................... APPELLANTS/APPELLANTS/DEFENDANTS: -------------- 1) KERALA STATE ELECTICITY BOARD, REPRESENTED BY SECRETARY, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM 2) THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E. BOARD, PARASSALA. BY ADV. SRI.S.RAMESH BABU, SC. KSEB SRI.P.SANTHALINGAM, SC, KSEB SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENTS/RESPONDENTS/PLAINTIFFS: --------------- 1) M.KAMALASANAN, MEKKE VATTAVILA, PUTHEN VEEDU, KARUMANOOR DESOM, PARASSALA PAKUTHY 2) K.V.AYYAPPAN, PEROOR VILAKOM, KUMARA RAJAN NIVAS, DO. DESOM ADV. SRI.SIBY MATHEW THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON 10/08/2010 DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ----------------------------------------- S.A.No.39 of 1996 ----------------------------------------- Dated this the 10th day of August, 2010 JUDGMENT The appellants are the defendants in O.S.No.187 of 1989 on the file of the Court of the Munsiff of Neyyattinkara. The respondents are the plaintiffs therein. The suit instituted by the respondents for a permanent prohibitory injunction restraining the appellants herein from realising the sum of Rs.7075.75 demanded as per Ext.A4 invoice, was decreed by the trial court with costs. The appeal therefrom, A.S.No.610 of 1994, filed by the appellants herein was dismissed by the Court of the Subordinate Judge of Neyyattinkara. The brief facts of the case are as follows. 2. The first respondent is the owner of a shop room bearing door No.PP 8/171 of Parassala Grama Panchayat. The second respondent is the tenant of the said shop room wherein he is running a jewellery under the name and style 'Kumar Jewellery'. The first respondent had obtained electricity connection to the tenanted premises. Under the terms of the entrustment, the second respondent has to pay the energy charges. It is alleged in the plaint that the meter installed in the tenanted premises became faulty early in the S.A.No.39 of 1996 -:2:- year 1987, as a result of which exorbitant bills were issued levying energy charges, that the second respondent had thereupon recorded in the complaint book maintained in the office of the second appellant that the meter is faulty, that notwithstanding the said complaints the meter was not repaired, that based on the meter reading taken on 23.9.1987 it was recorded in the premises meter card that during the period from September 1986 to September 1987, 5169 units of electrical energy have been consumed, that the excessive metering was due to the defective meter, that thereupon the second respondent submitted a written complaint before the second appellant, that based on the said complaint the second appellant and the Executive Engineer inspected the premises on 28.9.1989, that after inspection, the second appellant and the Executive Engineer were satisfied that the meter was faulty, that the meter was thereupon repaired, that they informed the second respondent that they will not recover any excess amount from him as the meter was incorrectly recording consumption of energy, that notwithstanding these facts Ext.A4 invoice was issued demanding the sum of Rs.7075.75 towards energy charges, that the said demand is illegal, that the defendants were bound to keep the meter in good repair, that if the meter is faulty, energy charges can be levied based on the average consumption only for a period of six months preceding the date on which the meter became faulty and S.A.No.39 of 1996 -:3:- therefore, the second respondent is not liable to pay the amount demanded in the invoice. 3. The appellants resisted the suit by filing a written statement. The appellants denied the allegation that the meter installed in the premises of the first respondent became defective early in 1987 and contended that no complaint whatsoever had been lodged in that regard, that during the period from September 1986 to September 1987 the consumption of energy was recorded as 5169 units, that on receipt of the written complaint, a joint inspection of the premises and the meter was conducted by the second appellant along with the Executive Engineer, that on such inspection they were convinced that the meter was not faulty, that the disputed invoice was issued after the electricity tariff was revised for realisation of the energy charges during the period from August 1986 to August 1988 and that the demand is perfectly in order. The appellants also contended relying on the Conditions of Supply and the provisions of the Electricity Act, 1910 that the dispute as to whether the meter is faulty or not has to be referred to the Electrical Inspector and that instead of resorting to the said procedure the respondents have instituted the suit. 4. In the trial court, the second respondent, the tenant of the shop room, was examined as P.W.1 and Exts.A1 to A4 were marked. The then Assistant Executive Engineer, Electrical Major Section, S.A.No.39 of 1996 -:4:- Parassala, was examined as DW1. The trial court on an analysis of the evidence, oral and documentary, held that the appellants ought to have, upon receipt of Ext.A2 letter dated 23-9-1987, referred the dispute regarding the correctness of the meter to the Electrical Inspector and that having not been done, the demand in Ext.A4 invoice cannot be sustained. The trial court also held that the meter is faulty for the reason that the inspection notice or the inspection report relating to the meter installed in the premises of the respondents had not been made available and also for the reason that the appellants have not explained the reason why excess electricity was consumed by the respondents. The suit was accordingly decreed. On appeal, the lower appellate court concurred with the trial court and held that as the respondents had raised a dispute regarding the correctness of the meter, the appellants had no right to issue the disputed invoice or to threaten disconnection of supply. The appeal was accordingly dismissed. Hence this second appeal. 5. I heard Sri.C.K.Karunakaran, the learned counsel appearing for the appellants and Sri.Siby Mathew, the learned counsel appearing for the respondents. The learned counsel for the appellants contended that section 26 of the Indian Electricity Act, 1910 provides a remedy to the consumer in cases where the meter is faulty, and therefore, it impliedly bars the jurisdiction of the civil court to entertain disputes S.A.No.39 of 1996 -:5:- related to correctness of the meter. The learned counsel also referred to and relied on the decision of the Apex Court in Dhruv Green Field Ltd. v. Hukam Singh and others (2002) 6 SCC 416) to contend that even though there is no express provision in the Indian Electricity Act, 1910 barring the jurisdiction of the Civil Court, an examination of the scheme underlying section 26 of the Indian Electricity Act, 1910 would lead to the conclusion that the jurisdiction of the Civil Court is impliedly excluded. Per contra, the learned counsel appearing for the respondents contended that the provisions of the Indian Electricity Act, 1910 do not exclude the jurisdiction of the Civil Court and that it was the duty of the appellant to refer the dispute regarding the correctness of the meter to the Electrical Inspector, in view of the objection in that regard raised by the respondents. 6. I have considered the rival submissions made at the Bar by the learned counsel appearing on both sides. The trial court and the appellate court have held, relying on the decision of the Apex Court in Madhya Pradesh Electricity Board v. Basantibai, AIR 1988 SC 71 that it was a duty of the appellants to refer the dispute regarding the correctness of the meter to the Electrical Inspector for adjudication and that pending resolution of the dispute by the Electrical Inspector, the Board cannot issue a supplementary bill or threaten disconnection of supply of energy. In Madhya Pradesh Electricity Board v. S.A.No.39 of 1996 -:6:- Basantibai, (supra) even according to the Electricity Board, one phase of the meter was not working though the seal of the meter was intact. It was in such circumstances that the Apex Court held that as one phase of the meter was not working, the dispute as to whether the meter is a correct one or a faulty meter has to be decided by the Electrical Inspector and consequently, in view of the statutory provisions contained in section 26 of the Indian Electricity Act, 1910, the Board could not have issued a supplementary bill based on the reading of the said meter. In the said decision the Apex Court also held that a dispute as to whether the meter is correct or not can be decided by the Electrical Inspector upon an application made by either of the parties. The same view was reiterated by the Apex Court in Belwal Spinning Mills Ltd. v. U.P.SEB, 1997(6) SCC 740. In Belwal Spinning Mills Ltd. v. U.P.SEB (supra), the Apex Court held that any unilateral decision of either of the parties about the correct status of the meter is not to be accepted by the other party if the other party raises an objection as to the status of the meter. The Apex Court also held that any dispute arising between the licensee and the consumer as to whether any meter has recorded or is recording correct reading or not can be raised by either party and referred, upon the application of either party, for decision by the Electrical Inspector. 7. In Bombay Electricity Supply and Transport S.A.No.39 of 1996 -:7:- Undertaking v. Laffans (India) (P) Ltd., (2005) 4 SCC 327 the Apex Court after considering the aforesaid decisions held as follows:- “7. What is a correct meter? The language of sub-section (6) of Section 26 starts with - “where any difference or dispute arises as to whether any meter referred to in sub-section (1) is or is not correct ...” . The dictionary meaning of the word “correct” is: adhering or conforming to an approved or conventional standard; conforming to or agreeing with fact; accurate. 8. As to what would be a “correct” meter, there is sufficient indication in the Act and the Electricity Rules, 1956 in the Explanation given at the end of sub-section (7)of Section 26 of the Act and sub-rules (1) and (2) of Rule 57, quoted hereinabove. Where the meter is completely non- functional on account of any fault or having been burnt, it will not register the supply of energy at all. Since a burnt meter does not record any supply of energy, it virtually means “no meter”. 9. What is contemplated by Section 26(6) is a running meter, but which on account of some technical defect registers the amount of energy supplied or the electrical quantity contained in the supply beyond the prescribed limits of error. It contemplates a meter which is either running slow or fast with the result that it does not register the correct amount of energy supplied. There is an additional reason for coming to such a conclusion. Section 26(6) confers power upon the Electrical S.A.No.39 of 1996 -:8:- Inspector to estimate the amount of 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 Inspector, have been correct. Where the meter is running slow or fast, it will be possible for the Electrical Inspector to estimate the amount of energy supplied to the consumer by determining the extent or percentage of error in recording the supply, whether plus or minus. However, where the meter is burnt or is completely non-functional, such an exercise is not at all possible. Therefore, Section 26(6) can have no application in a case where a meter has become completely non-functional on account of any reason whatsoever.” (emphasis supplied) 8. Section 26 of the Indian Electricity Act, 1910, which was in force during the relevant time, reads as follows:- “26. Meters.--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 shall be ascertained by means of a correct meter, and the licensee shall, if required by the consumer, cause the consumer to be supplied with such a meter: Provided that the licensee may require the consumer to give him security for the price of a meter and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter. S.A.No.39 of 1996 -:9:- (2) Where the consumer so enters into an agreement for the hire of a meter, the licensee shall keep the meter correct, and, in default of his doing so, the consumer shall, for so long as the default continues, cease to be liable to pay for the hire of the meter. (3) Where the meter is the property of the consumer, he shall keep the meter correct, and, in default of his doing so, the licensee may, after giving him seven days' notice for so long as the default continues, cease to supply energy through the meter. (4) The licensee or any person duly authorised by the licensee shall, at any reasonable time and on informing the consumer of his intention, have access to and be at liberty to inspect and test, and for that purpose, if he thinks fit, take off and remove, any meter referred to in sub-section (1); and, except where the meter is so hired as aforesaid, all reasonable expenses of, and incidental to, such inspecting, testing, taking off and removing shall, if the meter is found to be otherwise than correct, be recovered from the consumer, and, where any difference or dispute arises as to the amount of such reasonable expenses, the matter shall be referred to an Electrical Inspector, and the decision of such Inspector shall be final. Provided that the licensee shall not be at liberty to take off or remove any such meter if any difference or dispute of the nature described in S.A.No.39 of 1996 -:10:- sub-section (6) has arisen until the matter has been determined as therein provided. (5) A consumer shall not connect any meter referred to in sub-section (1) with any electric supply line through which energy is supplied by a licensee, or disconnect the same from any such electric supply-line, but he may be giving not less than forty-eight hours' notice in writing to the licensee require the licensee to connect or disconnect such meter and on receipt of any such requisition the licensee shall comply with it within the period of the notice. (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 Inspector; 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 Inspector, have been correct; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity: Provided that before either a licensee 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. S.A.No.39 of 1996 -:11:- (7) In addition to any meter which may be placed upon the premises of a consumer in pursuance of the provisions of sub-section (1), the licensee may place upon such premises such meter, maximum demand indicator or other apparatus as he may think fit for the purpose of ascertaining or regulating either the amount of energy supplied to the consumer, or the number of hours during which the supply is given, or the rate per unit of time at which energy is supplied to the consumer, or any other quantity or time connected with the supply: Provided that the meter, indicator or apparatus shall not, in the absence of an agreement to the contrary, be placed otherwise than between the distributing mains of the licensee and any meter referred to in sub-section (1): Provided, also that, where the charges for the supply of energy depend wholly or partly upon the reading or indication of any such meter, indicator or apparatus as aforesaid, the licensee shall, in the absence of an agreement to the contrary, keep the meter, indicator or apparatus correct; and the provisions of sub-sections (4), (5) and (6) shall in that case apply as though the meter, indicator or apparatus were a meter referred to in sub-section (1). Explanation.-- A meter shall be deemed to be “correct” if it registers the amount of energy supplied, or the electrical quantity contained in the S.A.No.39 of 1996 -:12:- supply, within the prescribed limits of error, and a maximum demand indicator or other apparatus referred to in sub-section (7) shall be deemed to be “correct” if it complies with such conditions as may be prescribed in the case of any such indicator or other apparatus.”(emphasis supplied) 9. Going by the stipulations in sub-section (1) of section 26 of the Indian Electricity Act, 1910 the amount of energy supplied to the consumer or the electrical quantity contained in the supply has to be ascertained by means of a correct meter. Sub-section (6) of section 26 states that 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 Inspector. If upon such reference, the Electrical Inspector is of the opinion that the meter has ceased to be correct, the law then stipulates that he 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 Inspector, have been correct. The proviso to sub- section (6) of Section 26 stipulates that before either a licensee or a consumer applies to the Electrical Inspector under the said sub- section, he shall give to the other party not less than seven days' notice of his intention to do so. S.A.No.39 of 1996 -:13:- 10. Ext.A4, the disputed invoice was admittedly issued early in February 1989 levying the sum of Rs.7075.75 as energy charges. As per Ext.A4 notice, payment of the said sum was to be made before 6.2.1989. The instant suit was instituted on 10.2.1989. Ext.A4 invoice discloses that it was issued levying arrears of energy charges during the period from August 1986 to August 1988 based on the meter reading taken in August 1986 (4362) and the reading taken in August 1988 (874). Ext.A4 invoice is attacked on the ground that the meter is defective and therefore, based on the meter readings the invoice could not have been issued. The respondents however had no case that the meter has become completely non functional. Though the appellants have not raised a dispute regarding the maintainability of the suit either in the written statement filed by them or in the memorandum of appeal filed in the court below, the said contention is raised in the instant appeal. The substantial question of law raised in the second appeal is “whether in view of the provisions contained in Section 26(6) of the Indian Electricity Act, 1910 can a consumer who has not applied to the Electrical Inspector to decide the correctness of the meter get a decree in his favour for the reason that the Electricity Board has not referred the matter to the Electrical Inspector”. 11. As noticed earlier, sub-section (6) of Section 26 of the Indian Electricity Act, 1910 sets out the procedure to be followed by S.A.No.39 of 1996 -:14:- the Kerala State Electricity Board and the consumer when a dispute arises as to whether the meter installed in the premises of the consumer is correct or not. It is stipulated that such a dispute shall be resolved by the Electrical Inspector upon reference by either of the parties. The Indian Electricity Act, 1910 does not specifically bar the jurisdiction of the civil court to decide a dispute regarding the correctness of a meter. Then the question is whether there is an implied bar under the provisions of Section 26 of the Indian Electricity Act, 1910 for the maintainability of the suit and whether before exhausting the remedy provided under the said provision, the respondents were entitled to move the civil court and seek a decree of permanent prohibitory injunction restraining the appellants from realising the amount covered by Ext.A4 invoice. 12. In M/s.Kamala Mills Ltd. v. State of Bombay, AIR 1965 SC 1942, a seven Judge Bench of the Apex Court considered the question as to when and in what circumstances can a suit of a civil nature be said to be barred by a special statute. The Apex Court held as follows:- “(30) ........... In every case, the question about the exclusion of the jurisdiction of civil courts either expressly or by necessary implication must be considered, in the light of the words used in the statutory provision on which the plea is S.A.No.39 of 1996 -:15:- rested, the scheme of the relevant provisions, their object and their purpose. (32) ..........Whenever it is urged before a civil court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. In cases where the exclusion of the civil court's jursidiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant, but cannot, be decisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important, and, in conceivable circumstances, might even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, it is pertinant to enquire whether remedies normally associated with actions in civil courts are proscribed by the said statute or not”. 13. Later, in Ram Swarup and others v. Shikar Chand and S.A.No.39 of 1996 -:16:- another (AIR 1966 SC 893) a Constitution Bench of the Apex Court held as follows:- “(12) One of the points which is often treated as relevant in dealing with the question about the exclusion of civil Courts jurisdiction , is whether the special statute which, it is urged, excludes such jurisdiction, has used clear and unambiguous words indicating that intention. Another test which is applied is: does the said statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions? Applying these two tests, it does appear that the words used in S.3(4) and S.16 are clear. Section 16 in terms provides that the order made under this Act to which the said section applies shall not be called in question in any Court. This is an express provision excluding the civil Courts' jurisdiction. Section 3(4) does not expressly exclude the jurisdiction of the civil Courts, but, in the context, the inference that the civil Courts jurisdiction is intended to be excluded, appears to be inescapable. Therefore, we are satisfied that Mr.Goyal is right in contending that the jurisdiction of the civil Courts is excluded in relation to matters covered by the orders included within the provisions of S.3(4) and S.16.” S.A.No.39 of 1996 -:17:- 14. Still later, in Dhruv