IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.534 of 2001 Between: M/s. Bengal Cold Rollers Pvt. Ltd., Rep. Managing Director- Ramautar Aggarwal.Thimmapur Village, Mahaboobnagar. ..... PETITIONER AND 1 Transmission Corporation of A.P.Ltd., (A.P.Transco)., Rep. by its Managing Director, Vodyut Soudha, Khairtabd, Hyderabad. 2 The Superintending Engineer, Operation Circle, Central Power Distribution Company of A.P.Ltd., Mahaboobnagar. 3 The Senior Accounts Officer, Operation Circle, Central Power Distribution Company of A.P.Ltd., Mahabubnagar. 4 The Assistant Divisional Engineer, H.T.Meters Central Power Distribution Company of A.P.Ltd., A.P.Transco, Mahaboobnagar. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ or order or direction more particularly one in the nature of writ of Mandamus declaring the order No.SE/OP/MBNR/BB(Comml.II) D.No.1015/2000 dated 13/10/2000 of the 2nd respondent as highly illegal, arbitrary, unjust, void and contrary to Section26(6) of the Indian Electricity Act, 1910 and consequently set aside the same and pass Counsel for the Petitioner:MR.D.V.NAGARJUNA BABU Counsel for the Respondent No.: O.MANOHAR REDDY(SC FOR APTRANSCO) The Court made the following: Form-NIC-OGS/WP{VVS} THE HON'BLE SRI JUSTICE V.ESWARAIAH WRIT PETITION No.534 of 2001 ORDER: The petitioner is a private limited company, established an Industrial Unit at Thimmapur village in Mahaboobnagar District, which is engaged in the manufacture of Cold Rolled Steel Strips. The petitioner obtained high-tension power supply with a contracted maximum demand of 250 KVA in respect of SC No.HT MBN-375 Cat-I. The petitioner entered into an agreement with A.P.State Electricity Board, which was presently converted into A.P.Transco, represented by the respondents. While so, a show cause notice dated 31.07.2000 was issued by the 4th respondent alleging that the petitioner service connection was inspected by the DE/DPE/MBNR on 05.07.2000 and DE/DPE/HT/Hyderabad on 07.07.2000 and observed that the R-phase voltage in the meter display found missing and this is due to defective test block. The Divisional Engineer, DPE, Mahaboobnagar rectified the defect and restored the voltage to the meter in R-phase. It is further stated that the Divisional Engineer observed that the meter has recorded less consumption since there is no R-phase voltage due to defective TTB. It is stated that in view of the fact that there is a defect in the meter, the petitioner was called upon to pay consumption charges as assessed as per Clause-22.3.3.3 of terms and conditions of supply, demanding back billing in a sum of Rs.4,46,373/- for the period from November, 1999 to June, 2000. It is stated that the petitioner filed an explanation on 19.08.2000 stating that the back billing as proposed in the show cause notice is unjustified and when the meter tested on 22.10.1999, it was found that the meter was functioning satisfactorily, and therefore, issued test report for satisfactory functioning. It is further stated that a reason for less consumption was due to less production activities in conversion of Rolling during the last 8 months i.e. from November, 1999 to June, 2000 for various reasons such as financial problems, non-availability of raw material etc. Thus, the petitioner disputed the allegation with regard to defect in the meter. According to the Department, the meter was inspected on 05.07.2000 and it was rectified on 07.07.2000. The petitioner submits that there was no defect in the meter and the meter was functioning satisfactorily. Thus, the dispute raised by the Department was due to defect in the meter alone, the meter recorded less consumption. But, according to the petitioner, the reasons for less consumption was due to less production in the said period. However, without accepting the dispute raised by the petitioner with regard to defect in the meter, the 2nd respondent-Superintending Engineer passed the impugned order dated 13.10.2000, taking average consumption for three months i.e. August, September, and October, 1999 and demanded to pay the difference of consumption charges for subsequent eight months i.e. from November, 1999 to June, 2000, amounting to Rs.4,44,590-55 ps. The learned counsel appearing for the petitioner submits that the petitioner has paid Rs.75,000/- with the respondent and the same was adjusted towards part payment of back billing amount, and thereafter the said demand was stayed by this Court by order dated19.01.2001. He further submits that the petitioner is entitled for resolution of the dispute relating to the defect in the meter and the Expert/Arbitrator alone is entitled to resolve the dispute under Sec.26(6) of the Indian Electricity Act, 1910 (herein after referred to as ‘the Act’), and therefore, the petitioner made a representation dated 26.12.2000 before the 2nd respondent requesting to refer the matter to arbitration i.e. to the Chief Electrical Inspector, Government of Andhra Pradesh in terms of Sec.26(6) of the Act. Sri O.Manohar Reddy, learned standing counsel appearing for the respondents submits that after passing of the impugned order dated 13.10.2000, the petitioner himself addressed a letter dated 06.12.2000 stating that the industry was running in loss and the petitioner was paying electricity bills very regularly, and in fact, the operation of the industry during the back billing period is less, but however, the petitioner agreed to pay the back bill and requested to grant instalments and also to adjust the CMD deposit of Rs.51,700/-. It appears that a sum of Rs.75,000/- deposited by the petitioner was adjusted and the same was communicated to the petitioner vide letter dated 23.12.2000, stating that the request for grant of instalments is in process with the Chief Engineer, Commercial. After adjusting the deposit amount, the balance amount of Rs.3,71,373/- was demanded by letter dated 04.01.2001. It is the case of the petitioner that the petitioner never accepted with regard to the allegation made by the Department about the defect in the meter and it is the specific case of the petitioner that the meter is running properly without any defect. It is the case of the Department that due to defect in the meter only, less consumption was recorded. In so far as the defect in the meter is concerned, there is no controversy with regard to law laid down by the Full Bench of this Court in the case of Klayman Procelains Ltd. V. Superintending Engineer[1] wherein it is stated that when there exists a dispute as regards to correctness or otherwise of the meter, Sec.26(6) of the Act shall apply irrespective of any agreement exists between the parties. The Full Bench held that the agreement referred to in Sub-Sec.(1) of Sec.26 controls Sub-Sec.(6) thereof cannot be accepted irrespective of the fact as to whether a liberal meaning or a purposive meaning is assigned. But there is exception for refusing to refer the dispute under Sec.26(6) where there is fraud on the part of the consumer or tampering of the meter for pilferage of electricity energy etc. Sec.26(6) itself provides that the dispute has to be decided upon application of either party by an Electrical Inspector with regard to the defect in the meter in the absence of any fraud. In the instant case, there is no any allegation about the fraud said to have been played by the petitioner. Therefore, I am of the opinion that as per the aforesaid Full Bench judgment of this Court, the matter required to be referred to the Arbitrator i.e. Chief Electrical Inspector, Government of Andhra Pradesh under Sec.26(6) of the Act. Accordingly, the Writ Petition is allowed, directing the 2nd respondent to consider the representation of the petitioner dated 26.12.2000 for taking appropriate action under Sec.26(6) of the Act. It is made clear that whatever amount adjusted or collected from the petitioner, shall be subject to the final orders that may be passed by the Arbitrator i.e. Chief Electrical Inspector, Government of Andhra Pradesh under Sec.26(6) of the Act. No order as to costs. ___________________ V.ESWARAIAH,J Dated: 30.06.2008 Dsr .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 Transmission Corporation of A.P.Ltd., (A.P.Transco)., Rep. by its Managing Director, Vodyut Soudha, Khairtabd, Hyderabad. 2 The Superintending Engineer, Operation Circle, Central Power Distribution Company of A.P.Ltd., Mahaboobnagar. 3 The Senior Accounts Officer, Operation Circle, Central Power Distribution Company of A.P.Ltd., Mahabubnagar. 4 The Assistant Divisional Engineer, H.T.Meters Central Power Distribution Company of A.P.Ltd., A.P.Transco, Mahaboobnagar. 5 2. 2CCs to 6. 2CD copies [1] 2001 (5) ALT 274 (F.B)