HONOURABLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.1463 of 2006 JUDGMENTS: The appellant is the Managing Partner of a Firm, which established a Poultry farm at Timmapuram Village of East Godavari District. The farm is supplied electrical power through S.C. No.29048. The 3rd respondent herein passed an order, dated 29-10-1999 requiring the appellant to pay a sum of Rs.40,589/- towards back billing from 27-07-1998 to 10-11-1998. It was alleged that ‘R’ phase of the meter was stuck up and the defective reading due to the same for the period from 01-07-1998 to 10-11-1998 accounted for that amount. 2. The appellant filed O.S. No.1071 of 1999 in the Court of the I Additional Junior Civil Judge, Rajahmundry, assailing the order, dated 29-10-1999. He pleaded that the procedure prescribed under Section 26(6) of the Electricity Act, 1910, (for short ‘the Act’) was not followed, before the order was passed. It was also stated that the back billing can be resorted to, only when the date on which the meter was stuck up, was ascertained and the consumer is put on notice, about it. He alleged that there was no basis for resorting to back billing, for a period of 3 months 20 days. 3. On behalf of the respondents, a written statement was filed. It was stated that the appellant was put on notice before the back billing was done. According to them, negative error, on account of the meter being stuck up, was found to be –39.55%, and that the prescribed procedure was followed, before the order, challenged in the suit, was passed. 4. The trial Court dismissed the suit through judgment, dated 20-09-2004. The appellant filed A.S. No.122 of 2004 in the Court of the Principal District Judge, East Godavari at Rajahmundry. The appeal was dismissed on 17-10-2006. Hence, this Second Appeal. 5. Sri Narasimha Rao, learned counsel for the appellant, submits that the respondent did not follow the prescribed procedure, before the amount was demanded. He submits that Section 26 of the Act places an obligation upon the electricity supplier i.e. the respondents herein, to refer the matter to Electrical Inspector, for decision about the quantum of amount, to be levied. He submits that except that some inconsequential notices were issued, no steps were taken to place the matter before the Electrical Inspector. 6. Learned Standing Counsel for the respondents, on the other hand, submits that the amount was levied after the meter was tested at laboratory, and that the prescribed procedure was followed. 7. The trial Court framed two issues for its consideration, viz., (a) whether the plaintiff is entitled to the relief of declaration as prayed for and (b) whether the plaintiff is entitled for the consequential and permanent injunction. 8. The appellant deposed as PW-1 and he filed Exs.A-1 to A-8. On behalf of the respondents DW-1 was deposed and Ex.B-1 MRT report was filed. The suit was dismissed and in the appeal, preferred by the appellant, the lower appellate Court framed the following points: 1. Whether assessment of back billing of energy at Rs.40,589-60 payable by the plaintiff / appellant for the period from 21.7.1998 to 10.11.1998 is valid and legal? 2. Whether the plaintiff / appellant is entitled for reliefs of declaration and permanent injunction as prayed for?; and the appeal was dismissed. 9. It is not necessary to refer to the facts in detail. There is no dispute that the meter fitted in the premises of the poultry farm was inspected on 06-10-1998 and one of the phases was found to be stuck up. It was tested on 22-10-1998, in the presence of the appellant, in accordance with the prescribed procedure. The defective recording was found to be at –39.55%. Based upon the result of inspection, the impugned proceedings were issued, covering the period from 21-07- 1998 to 10-11-1998. 10. It may be true that the procedure prescribed by the respondents for back billing mandates that a period of three months anterior to the date of inspection, must be taken into account. That, however, would be possible if only the procedure prescribed under the Act was followed. Section 26 of the Act deals with the matter pertaining to the meters, their inspection and other relevant aspects. Sub-Section (6) thereof is relevant for the purpose, which reads as under: “26(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.” 11. From this, it becomes clear that whenever a dispute arises as to the correctness of the functioning of the meter, an application shall be filed before the Electrical Inspector. Though the provision enables either party to file the application, it is for the respondents to file the application, since they disputed or discovered the defect. Admittedly, the matter was not referred to the Electrical Inspector at all. The assessment was done unilaterally, by the respondents. 12. Whatever may be the authority of the respondents to issue proceedings on their own accord, in the cases of pilferage or theft, they cannot determine the amounts on their own accord, where the back billing is done on the allegations of defective functioning of the meter. 13. Learned counsel for the appellant has placed reliance upon several judgments rendered by the High Courts including the one rendered by a full bench of this Court in Klayman Porcelains Ltd., v. Superintending Engineer Operation, Hyderabad[1]. It was held that in the absence of adjudication or determination of the amount by the Electrical Inspector in matters of this nature, an electricity supplier cannot straightaway levy the amount. 14. Since the prescribed procedure was not followed, the order of assessment deserves to be set aside, leaving it open to the respondents to pass fresh orders, after following the prescribed procedure. However, the inspection has taken place morethan a decade ago and it would not be possible to take the dispute before the Electrical Inspector at this stage. The appellant does not deny that the meter was stuck up. The dispute is only about the period, for which the back billing must be done. This Court is of the view that the ends of justice would be met if the amount payable by the appellant is reduced to half. 16. Hence, the Second Appeal is allowed reducing the amount payable by the appellant to 50%. If the amount is already paid, the appellant shall not be required to pay any further amount either towards interest or otherwise. There shall be no order as to costs. ____________________ L. NARASIMHA REDDY, J December 07, 2011. KTL [1] AIR 2002 ANDHRA PRADESH 19