IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.03.2008 C O R A M THE HONOURABLE Mr.JUSTICE P.JYOTHIMANI W.P.No.16251 of 1998 Usman Sharif ... Petitioner -Vs- 1. The Superintending Engineer, CEDC/N, Distribution Circle, Tamilnadu Electricity Board, Chennai – 600 002. 2. The Executive Engineer, O&M, Tamilnadu Electricity Board, Vyasarpadi, Chennai – 600 039. 3. The Asst. Executive Engineer, O&M/Madhavaram/C ED C/North, Tamilnadu Electricity Board, Chennai – 600 060. .. Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus calling for the records of the third respondent herein by his letter No.AEE/O&M/Madhavaram/F.16/CI/D.471/98, dated 15.09.1998, and quash the same and direct the third respondent to re-assess the amounts payable based on the actual power utilized by the petitioner in their factory at No.69, G.N.T.Road, Madhavaram, under M.E.S. A/c.No.73:01:30, in the previous three years. For Petitioner : Mr.Zaffarullah Khan. For Respondents : Mr.S.N.Kirubanandam,for Mr.A.Selvendran Standing Counsel for TNEB. - - - - O R D E R This writ petition is filed challenging the order of the third respondent the Assistant Executive Engineer, O&M / Madhavaram / C ED C/ North, Tamil Nadu Electricity Board dated 15.09.1998, under which the third respondent has issued a revised bill for payment to be made by the petitioner in respect of M.E.S. A/c.No.73:01:30 in the factory premises of the petitioner at No.69, G.N.T. Road, Madhavaram. https://hcservices.ecourts.gov.in/hcservices/ 2. The impugned order is challenged on various grounds including that the third respondent has computed the period of defective supply from 15.02.1997 to 28.07.1998, which is without any basis. It is also the case of the petitioner that inspection was carried out by the Electricity Board on 29.05.1998 and thereafter, new meter was installed on 28.08.1998 and in such circumstances, the amount which should have been fixed must be as per the provisions of the Electricity Supply Act and therefore the exorbitant claim of the third respondent against the petitioner for payment of Rs.1,53,363/- has no legal basis whatsoever. 3. A perusal of the impugned order shows that the amount has been arrived at by the third respondent by calculating the consumption recorded with effect from 25.02.1997 to 28.07.1998. It is also admitted that the petitioner has deposited 50% of the amount demanded by the third respondent in the impugned order as per the order of this Court. 4. The learned counsel appearing for the petitioner by relying upon Section 26(6) of the Indian Electricity Act, 1910 would submit that as per the said provision, when there is dispute regarding any meter, the same has to be decided by the Electrical Inspector, such Inspector has to estimate the amount of energy supplied to the consumer, during the said time, not exceeding six months prior to the period when the defect was detected. In the present case, the third respondent has taken nearly 22 months prior to the date of detection of the fault of the meter and it is against the provisions of the said Act. He would also submit that even as per Clause 17(10) of the terms and conditions of supply, the Electricity Board can only take four previous months and calculate the average amount due and therefore according to the learned counsel appearing for the petitioner, calculation given by the third respondent in the impugned order has no legal basis at all. Further to substantiate his contention the learned counsel referred to the Judgments of the Hon'ble Supreme Court and this Court reported in (i) M.P.E.B. and others Vs. Smt.Basantibai (AIR 1988 SC 71) (ii) Bihar State Electricity Board and others Vs. Parmeshwar Kumar Agarwala (AIR 1996 SC 2214) (iii) A.A.Mohd. Rafi Vs. Tamil Nadu Electricity Board (2000 (3) M.L.J. 293) 5. On the other hand, it is the contention of the learned standing counsel for the respondent Electricity Board that the calculation is made in the usual process and there is no deviation or illegality in the calculation made by the third respondent. It is his submission that when inspection was made on 29.05.1998, out of three phase commercial connection, the meter reading was not recorded in one phase at all and https://hcservices.ecourts.gov.in/hcservices/ therefore, it was a suspected case of tampering. In view of the same, instead of proceeding under power theft, the amount has been calculated as per the Code. 6. Heard Mr.Zaffarullah Khan, learned counsel appearing for the petitioner and Mr.S.N.Kirubanandam, learned standing counsel appearing for the respondents and perused the entire records. 7. It is an admitted fact that there was an inspection on 29.05.1998 and the third respondent has passed the assessment order by taking into consideration the meter reading for the period from 25.02.1997 to 28.07.1998 to arrive at the calculation that the petitioner is liable to pay a sum of Rs.1,53,363/-. As correctly pointed out by the learned counsel for the petitioner that under the Electricity Act, 1910, Section 26(6) provides for inspection by Electrical Inspector and even the Electrical Inspector has to make assessment taking into consideration the meter reading not exceeding six months. It is also contemplated to give notice by the Electrical Inspector before making such inspection. Section 26(6) of the Act as follows: Section 26.Meters. (1) ..... (2) ..... (3) ..... (4) ..... (5) ..... (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' notices of his intention so to do." 8. The above said provision came to be scrutinised by the Hon'ble Supreme Court in M.P.E.B. and others Vs. Smt.Basantibai (AIR 1988 SC 71). After analyzing Section 26 of the Act, it was held that till the decision is taken by the Electrical Inspector as per Section 26(6), no supplementary bill can be prepared by the Board estimating the energy supplied to consumer, since as per the Act, the Board is not empowered to do so. It is also held that tampering or commitment of fraud in https://hcservices.ecourts.gov.in/hcservices/ respect of use of electricity, does not come within the purview of Section 26(6) of the Act. After analysing the entire legal aspects of the said provision, the Hon'ble Supreme Court has held in para 10 as follows:- "10. 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....." 9. In Bihar State Electricity Board and others Vs. Parmeshwar Kumar Agarwala (AIR 1996 SC 2214), again the Hon'ble Supreme Court has reiterated the Judgment in M.P.E.B. and others Vs. Smt.Basantibai (AIR 1988 SC 71) stating that under Section 26(6) of the Act, there is no authority on the part of the Electricity Board to submit a supplementary bill to the consumers. The operative portion of the judgment is as follows: "21. This is not all, as it has been held by this Court in M.P. Electricity Board v. Basantibai, (1988) 1 SCC 23 : (AIR 1988 SC 71), that S.26(6) of the 1910 Act does not authorise the Electricity Boards to issue any supplementary bill in respect of the energy consumed during the pendency of the dispute with an Electrical Inspector. We have mentioned about this decision because pursuant to the notification, the Board did submit supplementary bills to the respondent-consumers. It seems to us that this action was really in conflict with the statutory provision contained in S.26(6) of 1910 Act, as interpreted by this Court in Basantibai's case (AIR 1988 SC 71)." 10. Mr. Justice P.Sathasivam, as he then was, in A.A.Mohd. Rafi Vs. Tamil Nadu Electricity Board and others (2000 3 M.L.J. 293) while referring to the above said Judgments has held that the procedure provided under Section 26(6) of the Electricity Act, 1910 has to be followed in cases where there is difference or dispute with reference to the Meter referred to in Section 26(1). This Court has also considered Clause 17(10) of the Terms and Conditions of Supply of Electricity and ultimately held that if the provision under Section 26(6) is not followed, the Board has no right or jurisdiction to issue any supplementary bill. The operative portion of the order is as follows: "5...... It is clear from the above said provision that in case of any difference or dispute with reference to the meter referred to in Sub-sec.(1) of Sec.26, the same has to be https://hcservices.ecourts.gov.in/hcservices/ decided by making an application either by the consumer or the officers of the Electricity Board by an Electrical Inspector. It is also clear that it is for the Electrical Inspector to verify and ascertain the correctness of the meter and even if there is any defect in the meter, it is for the Inspector to estimate the amount of average supply, not exceeding six months. A reading of the said provisions shows that an elaborate procedure is provided in case of any defect in the meter. Admittedly, the respondents, particularly, the third respondent has not followed the said recourse." 11. On the established judicial precedent on this aspect especially with regard to the finding that the amount to be paid in case of dispute regarding the meter reading and applying the same to the facts and circumstances of the present case, it is patent that the third respondent has not at all followed the provisions contemplated under Section 26(6) of the Act. It is relevant to point out that, admittedly it is not a case of power theft and it is the case of dispute regarding meter reading and in such circumstances, the respondents have no other option than to follow the provision contained under Section 26(6) of the Electricity Act, 1910 and in the absence of following of the said provision, I am of the view that the impugned order of the third respondent is not sustainable in law. In view of the same, the impugned order of the third respondent is set aside and the writ petition stands allowed. 12. The third respondent is directed to ascertain the payment due from the petitioner as per the dispute regarding meter reading taking into consideration the procedure contemplated under Section 26(6) of the Electricity Act, 1910 and pass appropriate orders. It is also made clear that the petitioner who has deposited Rs.75,000/- as per the interim order of this Court and on ascertaining the amount due by the petitioner, the third respondent shall give credit to the said amount deposited by the petitioner and pass appropriate orders. The above said process shall be completed within a period of eight weeks from the date of receipt of a copy of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ kk To 1. The Superintending Engineer, CEDC/N, Distribution Circle, Tamilnadu Electricity Board, Chennai – 600 002. 2. The Executive Engineer, O&M, Tamilnadu Electricity Board, Vyasarpadi, Chennai – 600 039. 3. The Asst. Executive Engineer, O&M/Madhavaram/C ED C/North, Tamilnadu Electricity Board, Chennai – 600 060. 1 cc to Mr.Zaffarullah khan, Advocate SR.13751 1 cc to Mr.A.Selvendran, Advocate SR.13610 DM (CO) MMP 20.3.08 W.P.No.16251 of 1998 https://hcservices.ecourts.gov.in/hcservices/