IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 320 of 1996 A N D CIVIL REVISION APPLICATION No 321 of 1996 For Approval and Signature: Hon'ble MR.JUSTICE S.D.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- Civil Revn. Appln. No. 320 of 1996 EXECUTIVE ENGINNER Versus ROHINI OIL MILLS Civil Revn. Appln. No. 321 of 1996 EXECUTIVE ENGINEER Versus KRISHNA OIL MILLS -------------------------------------------------------------- Appearance: MR TUSHAR MEHTA for Petitioners MR MA KHARADI for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE S.D.SHAH Date of decision: 01/03/96 ORAL JUDGEMENT 1. RULE. Mr. M.A. Kharadi waives service of rule on behalf of respective respondents. With the consent of the learned advocates appearing for the parties, the matter is finally heard today. 2. The respondent plaintiff in each Civil Revision Application has after instituting Civil Suit No. 11 of 1996 and 10 of 1996 respectively in the Court of Civil Judge (S.D.) Gondal, tendered an application at Exhibit-5 under Section 94 read with Section 151 of the Code of Civil Procedure read with Order 26 of the Code of Civil Procedure. It was the case of the plaintiff in the plaint that they are the consumer of electricity under Indian Electricity Act, 1910 and that electrical meters installed at their premises by the petitioner Gujarat Electricity Board were defective and therefore they had made complaint in writing that such meters were defective. It is thereafter that the Officers of the Gujarat Electricity Board came to the premises of each plaintiff with new meter to be installed and at the time of preparing the rojkam and report of checking, which is known as "Test Report", they have removed the meters in question from the premises of each plaintiff and have installed new meter. In the Test Report, which is prepared by the Officers of the Gujarat Electricity Board, it is clearly noticed that there was some foul play and/or mischief played with the meter by the consumer and that therefore the meters in question were required to be opened and tested at the laboratory of the Gujarat Electricity Board. It is submitted by Mr. M.A.Kharadi, learned Counsel appearing for the opponents plaintiffs that in the case of Rohini Oil Mills, such suspicion did not exist though the Test Report which is prepared does show the nature of irregularity and/or foul play and/or tampering with the meter and at this stage it is not proper for this court to express any opinion about the Test Report and/or about the checking carried out by the Officers of the Gujarat Electricity Board. 3. It is at such crucial stage when the electrical meters about which complaint was made that there was defect by the consumers and when such meters were removed and new meters were installed after Test Report, the plaintiffs have filed the aforesaid suit and have by a novel idea which is recently noticed by this court in number of cases coming from Saurashtra, moved the trial court for exercise of power under Section 151 of the C.P. Code read with Order 26 for appointment of Court Commissioner for taking possession and/or custody of the meter from the Officers of the Gujarat Electricity Board and/or testing such meter till the Electrical Inspector under the relevant provisions of the aforesaid Act examines the meter. This Court has very recently deprecated the practice which is now encouraged by the trial court in Civil Revision Application No. 175 of 1996 and 176 of 1996 by judgment and order dated 8th February, 1996 and has quashed and set aside the order passed by the trial court in exercise of its power under Order 26, which in the opinion of this Court was not called for at the stage at which it is exercised. In the present case, the very modus operandi is noticed by this court that the consumers of electricity instead of moving the Court for any injunctive relief or temporary relief under the relevant provisions of the Code of Civil Procedure, directly applied for appointment of Court Commissioner and for taking custody of the electrical meters which the officers of the Gujarat Electricity Board have already removed either on the suspicion of tampering with the meter or on test report when it was satisfied that the meters were tampered with and that they were required to be examined by the officers of Gujarat Electricity Board. It is the primary function of the officers of the Gujarat Electricity Board, when during investigation on the spot it is noticed by them that some foul play was committed or that electrical meter was tampered with, to remove the meter and to install the new meter and to examine such meter in their laboratory. Such a statutory function which is cast on the officers of the Gujarat Electricity Board is now by a new device adopted by certain advocates, whose names are consistently found in all orders, have achieved the object of getting relief higher than the relief of temporary injunction and of preventing the officers of Gujarat Electricity Board from checking the meter in their laboratory. In the present case, the learned Civil Judge (S.D.), Gondal, by order dated 13th and 15th of February, 1996, running into as many as 24 pages undertaken an exercise which was absolutely not called for and unwarranted and beyond his jurisdiction. He has fallen prey to the device being adopted by the consumers with a view to seeing that the checking of the electrical meter, when foul play is established by the officers of the Electricity Board is anyhow resrained by or avoided by passing the impugned order, whereby he has directed that the plaintiffs and the Officers of the Gujarat Electricity Board shall be at liberty to produce evidence on the issue, if defendants are allowed to open and check the meter. He has further directed that Electrical Inspector shall check the meter for determining the question of fitness or otherwise of the meter before meter is examined by the officers of the Gujarat Electricity Board. He has further directed that the officers of the Gujarat Electricity Board were restrained from opening the meters of the plaintiffs which they have taken into custody and that till final decision is taken on the issue, the meter in question shall remain with the officers of the Gujarat Electricity Board as custodian for and on behalf of the Court. In substance, he has denuded the officers of the Gujarat Electricity Board of their powers. He has assumed that the Test Report prepared by the Officers of the Gujarat Electricity Board is baseless and unworthy of any credence and he has taken the case to be one falling under Section 26 of the Indian Electricity Act, 1910. At this stage, it will be necessary to make reference to Section 26 of the aforesaid Act which reads as under : 26. Meters-- (1) In the absence of an agreement to the contrary, the amount of energy supplied to 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. (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 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 by 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 of 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. (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 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." 4. It is on sub-Sec. 6 of Section 26 that the reliance is placed by the consumer, as according to them, the meter installed at their premises were defective and that therefore, the dispute of such nature could be determined by the Electrical Inspector and by none else. 5. It may be pertinent to note that the aforesaid provision was subject matter of interpretation by the Apex Court in the case of M.P.E.B. v. SMT. BASANTIBAI, reported in AIR 1988 SC 71. While dealing with interpretation of sub-Section 6 of Section 26, the Supreme Court has made following observations, which in my opinion, shall have to be kept in mind while dealing with the dispute of this nature: " It is evident from the provisions of this section that a dispute as to whether any meter referred to insub-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 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-section (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. In the instant case it appears from the report of the Assistant Engineer of the State Electricity Board that one phase of the meter was not working at all, so there is undoubtedly a dispute as to whether the meter in question is a correct one or a faulty meter and this dispute has to be decided by the Electrical Inspector whose decision will be final. It is also evident from the said provision that till the decision is made no supplementary bill can be prepared by the Board estimating the energy supplied to the consumer, as the Board is not empowered to do so by the said Act. It is pertinent to refer in this connection to the observations made in the case of Gadag Betgiri, Municipal Borough, Gadag v. Electrical Inspector, Govt. Electrical Inspectorate, Govt. of Mysore, AIR 1962 Mys 209 as follows :- "What the Inspector may decide under sub-sec. (6) is whether or not the readings obtainable from the meter are accurate and whether the meter are accurate and whether the meter is faulty or mechanically defective, producing erroneous readings. That is the limited adjudication which in my opinion, an Inspector or other authority functioning under sub-section (6) may make under its provisions." x x x x x x x x x x x x x x x x x x x x x x x " In my opinion, the legislative intent underlying S.26(6) of the Act is similar. The only question into which the Inspector or other authority functioning under that sub-section might investigate is, whether the meter is a false meter capable of improper use or whether it registers correctly and accurately the quantity of electrical energy passing through it. If in that sense, the meter installed by respondent 2 this case was a correct meter as it undoubtedly was and as it has been admitted to be, the fact that respondent No.2, even if what the petitioner states is true, so manipulated the supply lines that more energy that what was consumed by the petitioner was allowed to pass through the meter would not render the meter which was otherwise correct an incorrect meter." This decision was followed in M.P. Electricity Board, Jabalpur v. Chhaganlal, AIR 1981 Madh Pra 170 where it has been observed: - " Where an electric meter is not registering correct consumption of energy not because there is any defect in the matter but because the wiring is defective S. 26(6) will not be attracted and the meter not being defective the question of arbitration by Electrical Inspector will not also arise." A Contrary view was however taken in the case of Abdul Razak v.M.P. Electricity Board, 1982 MPLJ (Notes) (37) p. 22 where it has been held that :- " About the fittings on the meter and tampering them in such a manner that the reading of the energy would not be correct, such a dispute in view of the language of S.26(6) read with Rule 3 of Schedule VI of the Electricity Act squarely falls within the jurisdiction of the Electrical Inspector." We are, however, unable to accept this contrary view as it is obvious from the provisions of S.26, sub-sec.(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 the meter. In our view, the view taken about the scope of S.26(6) in the decisions 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 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." 3. From the aforesaid observation of the Supreme Court and more particularly the interpretation of sub-section 6 of Section 26 it becomes clear that dispute as to whether a meter is correct or faulty, would fall under sub-section 6 and not the dispute regarding tampering of meter, finding any other device to tamper with the meter or suspicion about the theft of electricity supply being committed by the consumer. Prima facie, the case of the petitioner before the lower appellate court was that from the Test Report prepared in each case by the Officers on the site in the presence of the plaintiffs and/or their representative, it was noticed that there was some tampering with the meter and that meter was required to be therefore opened and examined at the Laboratory of the Gujarat Electricity Board. It is their specific contention that the meter did not show faulty reading of consumption because of some inherent manufacturing defect in the meter installed at the premises of each plaintiff. At such a stage the courts of law should not interject themselves and take upon themselves the statutory powers of officers invested in them by law. The courts are not experts in the field and if one goes through the judgment of Civil Judge (S.D.), Gondal in the present case, this Court has the feeling that he has by referring the various guidelines and provisions, assumed for himself the role of an expert and has made certain observations which are absolutely uncalled for and/or unwarranted and were not within his jurisdiction at all. He forgot that he was not the statutory authority but those who had special knowledge in Electrical Engineering and who are appointed by the Gujarat Electricity Board on their qualifications were the officers qualified for the purpose of testing and checking meters. A judicial officer, to say the least, is most ill suited to take upon himself the task, where he has no knowledge whatsoever of the subject. By undertaking such exercise, which is uncalled for and unwarranted, he has not only exceeded his jurisdiction but has passed order, which in the opinion of this court has led to miscarriage of justice. It is, this practice of the lower courts, namely, of assuming the power of statutory authorities themselves and exercising such powers, as if they are the expert in the subject, which is required to be deprecated and is hereby strongly condemned and deprecated. In fact, invocation of Order 26 was not at all justified and warranted and exercise of such power by the trial court was a step towards crossing of limits of judicial propriety. 6. However, in view of the fact that the meters in question are already removed and/or lying with the Officers of the Gujarat Electricity Board and in view of the fact that apprehension is expressed by the consumers that the Officers will try to support their test report, to alleay their apprehension and to see that a consumer is not unnecessarily harassed, it was suggested by Mr. Tushar Mehta, learned Counsel appearing for the Gujarat Electricity Board that at the time when inspection of the meters in question shall be undertaken by the officers of the Gujarat Electricity Board, prior intimation will be given to the plaintiffs as well as to the Electrical Inspector and plaintiffs as well as Electrical Inspector shall be at liberty to remain present and in their presence the meters in question will be opened and tested. The Electrical Inspector shall well in advance inform the date as to when he will remain present or will give the fixed date of his presence or presence of any other officer on his behalf who is duly authorised to perform the same function to remain present within a period of 45 days from today and during such period, as and when the time is fixed, the Officers of the Gujarat Electricity Board in presence of the plaintiffs and the Electrical Inspector and/or his deputy, shall open the meters and shall test the same. If during such checking of the meters, any inherent manufacturing defect is noticed by the Electrical Inspector or his legal deputy, in my opinion, the same shall be brought to the notice of the Officers of the Gujarat Electricity Board, which defect, if any, they will note in their report. 7. Subject to the aforesaid direction, the order passed by the learned Civil Judge (S.D.) at Gondal is required to be quashed and set aside and is hereby quashed and set aside. The copy of this order is directed to be circulated to all Civil Judges (Senior Division) and Civil Judges (Junior Division) all through out Gujarat within a fortnight from today by the Registrar of this Court. The rule is accordingly made absolute subject to the aforesaid direction in each Civil Revision Application. There shall be no order as to costs. ----------------