1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : Assistant Engineer (C.S.D.I.), R.S.E.B., Pali & Another Vs. Manohar Process through Proprietor Sohanlal (S.B. Civil Second Appeal No.48/1995) DATE OF JUDGMENT : November 26th, 2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS __________________________________________ Mr. Ravi Bhansali for the appellants. Mr. N.M. Lodha for the respondent. BY THE COURT : Instant second appeal has been filed under Section 100, C.P.C. against judgment and decree dated 04.06.1994 passed by Addl. Civil Judge, Pali in Civil Appeal No.4/93, whereby, learned lower appellate Court confirmed the judgment and decree dated 04.06.1993 passed by Addl. Munsiff & Judl. Magistrate (First Class) No.1, Pali in Civil Case No.141/93. This appeal was listed in the Court for admission on 22.11.1995. On that date, while admitting the appeal, 2 following substantial question of law was framed for consideration : “(1) Whether the Courts below erred in applying the provisions of S.26(6) of the Indian Electricity Act, 1910 inasmuch as the meter being out of order, Regulation No.19(d)(vii) of the General Conditions of Supply & Scale of Misc. Charges relating to the Supply of Electricity ought to have been applied ? (2) Relief ?” As per facts of the case, respondent-plaintiff filed the civil suit against appellants against recovery of Rs.15,164.73 ps made by the appellant Board for electricity consumption. In the suit, it is specifically stated by the plaintiff-respondent that he is having small scale industry, in which, he took electricity connection bearing A/c No.38/300 and being consumer he was consuming the electricity supplied by the defendant-appellants. As per pleadings of the suit, it is specifically stated that employees of the Board were regularly taking meter-reading at the premises of the plaintiff-respondent and he was regularly making payment of bills sent by the defendant Electricity Board. It is further stated that if defective meter was installed by the Board or the meter was not registering correct reading 3 and/or meter is not functioning, then, the plaintiff-respondent is not responsible and, upon any dispute with regard to consumption of electricity that meter is defective and not giving correct reading, then, as per provisions of the Act, dispute can be resolved by the Electricity Inspector and recovery can be determined as per decision of the Electricity Inspector. It is also pointed out that the demand can be raised for six months from the date of defect found in the meter. A bill was sent on 24.02.1986, in which, in addition to regular demand of Rs.2,612.88 ps, Rs.19,037.50 and outstanding of Rs.2,075.70 ps were demanded. As per the plaintiff-respondent, it was nowhere mentioned in the bill as to for which period the said recovery was sought to be made. After receiving the above bill, the plaintiff-respondent made contact with the Board authorities, then, he was informed verbally that his meter was defective in between August 1982 to August 1985, therefore, this demand has been raised. The plaintiff-respondent objected to the above demand raised by the Board and submitted that the Board is not entitled to recover any amount from him on the ground that meter was defective in between the aforesaid period. The Board authorities informed the plaintiff-respondent that he should deposit the said amount, otherwise his electricity connection will be disconnected after seven days. On 11.03.1986, while 4 sending a letter, it was prayed by the plaintiff that he is ready to deposit the actual amount and, upon this, he was informed that he may deposit the entire amount in three installments. The plaintiff-respondent, looking to the urgency, deposited Rs.11,168/- under protest while raising the objection that there is no right left to the Board to recover the said amount on illegal grounds. After deposit the above amount, the suit for recovery of Rs.11,168.73 ps along with interest at the rate of 18%, total Rs.15,164.73 ps was filed by the plaintiff-respondent and challenged the demand so made by the defendant Board. In the suit filed by the plaintiff-respondent, after due trial, the suit was decreed in favour of the plaintiff-respondent vide judgment dated 04.06.1983 and decree for payment of Rs.8,555.85 ps as principal, Rs.3,061/- interest to plaintiff- respondent by the defendant-appellants was passed along with interest at the rate of 12% from the date of filing suit until realization. Against said judgment and decree dated 04.06.1993, an appeal was preferred before the District Judge, Pali and District Judge, Pali transferred the appeal to the Court of Addl. Civil Judge, Pali. Learned Addl. Civil Judge, Pali decided the appeal vide judgment dated 04.06.1994, whereby, lower appellate Court dismissed the appeal and maintained the judgment and decree dated 04.06.1993 passed by the trial Court. 5 In this second appeal, main contention of learned counsel for the appellants is that both the Court below have committed an error while applying Section 26 (6) of the Indian Electricity Act because the appellants were not having any legal grounds to refer the dispute to the Electricity Inspector upon the objection raised by the plaintiff-respondent nor they were under obligation to first get adjudication or decision made by the Electricity Inspector because the said provision does not apply in this case because admittedly the meter was not defective but was out of order, therefore, both the Courts have wrongly applied Section 26 (6) of the Indian Electricity Act and wrongly decreed the suit in favour of the plaintiff-respondent. As per learned counsel for the appellants, in the case of defective meter reading is not registered correctly and in that case Section 26(6) of Indian Electricity Act and, in that case, the Electricity Inspector is having jurisdiction by scientific examination to the extent of incorrect reading and where the meter is stopped, there is no need to refer the matter to the Electricity Inspector because Regulation 19(d)(vii) of the General Conditions of Supply will apply, therefore, the finding of the Courts below is perverse. It is also contended that learned Courts below have wrongly held that this case falls under the category covered by the adjudication made by the Hon'ble Supreme Court in the 6 judgment reported in AIR 1988 S.C. 71, in which, it has been held that whether the meter is correct one or faulty, this question shall be decided by the Electricity Inspector. In fact, this is not a case of defective or faulty meter but it is a case in which meter was stopped and was not giving reading, therefore, the judgment and decree impugned deserves to be quashed and set aside. On the other hand, learned counsel appearing for the plaintiff-respondent vehemently opposed this second appeal and stated that adjudication is based on sound appreciation of the provisions of law as well as facts of the case. Further, it is submitted that the learned trial Court has rightly applied Section 26 (6) of the Indian Electricity Act, therefore, the question of law framed by this Court requires to be decided in favour of the plaintiff-respondent. After hearing both the parties, I have perused the entire record of the case. It is admitted position of the case that the demand reaised by the appellants was for the period commencing from August 1982 to August 1985. In the reply filed by the appellants, at para 5, this fact is admitted and it is specifically stated in the written-statement that the demand of so called electricity consumption is for the aforesaid period. It is very strange that as per case of the appellants the meter was stopped for three 7 years and, if such type of contention is accepted, then, it can be said that it is a case of gross negligence on the part of the Board authorities. Obviously, this fact was to be proved by the Board by leading cogent evidence but, it has not been proved and, only assertion was made in the written statement. Further, it is expected from the statutory electricity authority which is appellant Board that if consumer's meter is not giving correct reading, then, action was required to be taken promptly. But, here, in this case, demand has been made while assigning the reason that the meter was stopped for three years. This fact itself gives strength to the adjudication made by the trial Court that in the event of defective meter the meter was required to be referred to the Electricity Inspector for detection of error and fault in the meter. Learned trial Court while taking into consideration the provisions of Section 26(6) of the Indian Electricity Act has held that this case falls under Section 26(6) on the basis of the facts of the case. In my opinion, no error has been committed by the Courts below while applying Section 26 (6) of the Indian Electricity Act and has rightly followed the judgment reported in AIR 1988 SC 71, in which, the apex Court has held that dispute is to be decided by the Electricity Inspector. I am in full agreement with the adjudication made by both the Courts below and while following the judgment of the apex Court reported in AIR 1988 SC 71 (supra), I find that the 8 substantial question of law framed by this Court at the time of admission is required to be answered in favour of the plaintiff- respondent. In this view of the matter, while answering the substantial question of law framed by this Court in favour of respondent-plaintiff, I see no reason to interfere in this second appeal. Hence, this second appeal is hereby dismissed. (Gopal Krishan Vyas) J. Ojha, a.