SBCSA NO.191/1998 –RSEB, RANI . V/S M/S SAMPAT INDUSTRIES : JUDGMENT DTD.2.7.2008 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.191/1998 R.S.E.B., Rani. versus M/s Sampat Industries PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.G.M.Bhandari, for the petitioner. Mr.M.C.Bhoot, for respondents DATE OF JUDGMENT : 2nd July, 2008. JUDGMENT 1. Heard the learned counsels for the parties. 2. This appeal has been filed against the order of the learned Dist. Judge No.20.12.1997 filed by the Rajasthan State Electricity Board. SBCSA NO.191/1998 –RSEB, RANI . V/S M/S SAMPAT INDUSTRIES : JUDGMENT DTD.2.7.2008 2/6 3. The learned Dist. Judge by the impugned order rejected the appeal of the RSEB on the ground that the demand in question was raised against the respondent – consumer of the Board without referring the dispute to the Electrical Inspector in accordance with Section 26(6) of the Indian Electricity Act, 1910. 4. The learned counsel for the appellant Mr. G.M. Bhandari submits that on the inspection of the meter installed at the business place of respondent – consumer, two phases of the meter in question were found to be stopped and therefore, on the basis of average consumption, the demand in question was raised against the consumer. He submits that in such a case there are two remedies available to the RSEB; (i) either matter may be referred to the Electrical Inspector under Section 26(6) of the Act or (ii) the demand can be raised under Rule 19(7) of the General Conditions of Supply framed under the aforesaid Act of 1910. He submits that since the power of the Electrical Inspector to make such demand is only for a period of six months, whereas under the aforesaid Rules of General Conditions, such demand can be determined for a period larger than six months, therefore, the learned courts below have erred in SBCSA NO.191/1998 –RSEB, RANI . V/S M/S SAMPAT INDUSTRIES : JUDGMENT DTD.2.7.2008 3/6 quashing the demand in question on the ground that the matter was not referred to the Electrical Inspector under Section 26(6) of the Act. He, therefore, submits that substantial question of law arises out of the judgment of Courts below. Hence, the present second appeal. 5. The learned counsel for the respondents on the side opposite argues that the controversy is no longer res integra and is covered by the decision of the Hon'ble Supreme Court in the case of M.P.E.B. And ors. V/s Smt. Basanti Bai reported in AIR 1988 SC 71. The said judgment is relied upon by the learned counsel for the appellant also. Both of them referred to para 9 of the judgment, which is quoted below for ready reference: “9. It is evident from the provisions of this section that a dispute as to whether any meter referred to in sub-sec.(1) is or is not correct has to be decided by the Electrical inspector upon application made by either of the parties. 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 SBCSA NO.191/1998 –RSEB, RANI . V/S M/S SAMPAT INDUSTRIES : JUDGMENT DTD.2.7.2008 4/6 of energy supplied to the consumer or the electrical quantity contained in the supply during a period not exceeding six months and direct the consumer to pay the same. If there is an allegation of fraud committed by the consumer in tampering with the meter or manipulating the supply line or breaking the body seal of the meter resulting in not registering the amount of energy supplied to the consumer or the electrical quantity contained in the supply, such a dispute does not fall within the purview of sub-sec.(6) of S.26. Such a dispute regarding the commission of fraud in tampering with the meter and breaking the body seal is outside the ambit of S.26(6) of the said Act. An Electrical Inspector has, therefore, no jurisdiction to decide such cases of fraud. It is only the dispute as to whether the meter is/is not correct or it is inherently defective or faulty not recording correctly the electricity consumed, can be decided by the Electrical Inspector under the provisions of the said Act.” SBCSA NO.191/1998 –RSEB, RANI . V/S M/S SAMPAT INDUSTRIES : JUDGMENT DTD.2.7.2008 5/6 2. Though a substantial question of law does arise from the judgment of the learned Dist. Judge, namely, as to “whether upon the meter being found defective, resort should be had to Section 26(6) of the Indian Electricity Act or to Rule 19(7) of the General Conditions of Supply”, but the said question also stands answered in para 9 of the Supreme Court decision quoted above. 3. In the aforesaid decision, the Hon'ble Supreme Court has categorically held while dealing with a case where one phase of a three phase meter was found to be not working at all to be a case falling within the domain of Electrical Inspector under Section 26(6) of the Act, held that the only exception is where “if there is an allegation of fraud committed by the consumer in tampering with the meter or manipulating the supply line or breaking the body seal of the meter resulting in not registering the amount of energy supplied to the consumer or the electrical quantity contained in the supply, such a dispute does not fall within the purview of sub-sec.(6) of S.26.” Except the exception of fraud or tampering carved out by the Apex Court in para 9 quoted above, in all other situations, like present in the case involved here, namely, two phases of meter were found to be SBCSA NO.191/1998 –RSEB, RANI . V/S M/S SAMPAT INDUSTRIES : JUDGMENT DTD.2.7.2008 6/6 not working, without there being any allegation of fraud and tampering with the meter against the consumer, the learned courts below cannot be said to have committed any error in holding that the demand in question chould not have been raised and recovered from the consumer without referring the matter to the Electrical Inspector under Section 26(6) of the Act. The controversy is thus, squarely covered by the decision of the Hon'ble Supreme Court quoted above and therefore, does not require any fresh decision on the issue involved. 4. The second appeal is, therefore, devoid of any merit and the same is accordingly dismissed and question of law framed above is answered against the appellant - RSEB. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.45 Ss/-