Letters Patent Appeal No. 734 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No. 734 of 2010(O&M) Date of Decision: June 29, 2010 Punjab State Electricity Board ...... Appellant Versus Tagore Public School and another ...... Respondents Coram: Hon'ble Mr. Justice Mukul Mudgal, Chief Justice Hon'ble Mr. Justice Ajay Tewari Present: Mr.Sukhbir Singh Mattewal, Advocate for the appellant. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Mukul Mudgal, CJ(Oral): CM No. 2133 of 2010 For the reasons recorded, delay of 23 days in refiling the present appeal is condoned. CM stands disposed of. CM No. 2135 of 2010 For the reasons recorded, delay of 18 days in filing the present appeal is condoned. CM stands disposed of. Letters Patent Appeal No. 734 of 2010(O&M) 2 CM No. 2134 of 2010 This is an application for impleading/substitution of the Punjab State Power Corporation Limited as party in place of present appellant Punjab State Electricity Board. For the reasons recorded in the application the same is allowed and Punjab State Power Corporation Limited is permitted to file the present appeal. LPA No. 734 of 2010 This appeal arises against the order of the learned Single Judge dated 9.01.2009 by which the order of the Appellate Authority dated 7.12.2006 setting aside the order dated 23.08.2005 was set aside and the order dated 23.08.2005 passed by the Chief Electrical Inspector of the State maintained. The core issue involved in this appeal revolves around the interpretation of Section 26(6) of the Indian Electricity Act, 1910 (hereinafter referred to as 'the Act.). The facts giving rise to the controversy are that writ petitioner school before 20.4.1995 was having three separate electricity connections which were clubbed together by the Punjab State Electricity Board (PSEB) on 28.04.1995 and a single meter of three phase connection having a capacity of 100/5 Amp. having multiplying factor of 10 along with CTs 50/5A having net MF of 10 x (50/100) i.e. 5 was installed. It is the admitted case of the parties that on 7.10.1996 the Junior Engineer of the PSEB carried out an inspection and made a report that the current transformer rotation was 50/5 Amp. On the basis of his report Executive Engineer(Operation) of the PSEB issued a demand notice dated 26.5.2000 saying that the meter was checked on 25.3.2000 by the employee of the Electricity Board and the following shortcoming was found: Letters Patent Appeal No. 734 of 2010(O&M) 3 “MF 15 was to be applied on the aforesaid connection, however, in the bill MF 5 was being applied. Therefore, difference from 6/95 to 4/2000 is being charged. DL = 87.730 SL = 68.000 Additional Load = 19.730 The Board thus called upon the petitioner to pay a sum of Rs. 7, 32, 720/-. The petitioner challenged those orders of the Executive Engineer before the State Consumer Dispute Redressal Commission. The said Commission on agreement between the petitioner and the Electricity Board, referred the matter to the Chief Electrical Inspector of the State for decision, who gave his award on 23.08.2005 wherein he opined that PSEB can claim demand in respect of consumer for a total period not exceeding six months besides an amount of Rs. 26,000/- for extended load and the demand raised by the PSEB to the tune of Rs. 7,32,720/- was declared illegal and thus quashed. Against the award of the Chief Electrical Inspector the board filed an appeal before the Commissioner (Appeals), Patiala Division, Patiala which was allowed on 07.12.2006 setting aside the order of the Chief Electrical Inspector. The order of the Commissioner(Appeals) was challenged by the writ petitioner school before this Court in CWP No. 14559 of 2010 which has been allowed on 9.11.2009 by a learned Single Judge setting aside the order dated 7.12.2006 passed by the Appellate Authority and maintaining that of the Chief Electrical Inspector dated 23.08.2005. Hence this appeal by the PSEB, now Punjab State Power Corporation Limited. We have heard learned counsel for the appellant. He has contended that the impugned judgment of the learned Single Judge does not correctly interpret the legal position. On going through the award dated 23.08.2005 of the Chief Electrical Inspector we find that the reasoning given by him for setting aside Letters Patent Appeal No. 734 of 2010(O&M) 4 the demands raised by the appellant were based on the following sound grounds:- a) That as per Sales Regulation No. 112.2 of the appellant- board each three phase connection was required to be checked at least once a year; b) That it could not be believed that a connection of 58 KWS was never checked during the period of 5 years and the defect of metering system continued to exist for a prolonged period of 5 years; c) That it was sufficiently proved that the Current Transformers of the ratio of 50/5 were installed; d) That since the transformers were not installed in consonance with the specifications as discernible from Section 26(6) of the Electricity Act, 1910( for short 'the Act'), the school could not be fastened with the liability for a period longer than six months. On the other hand we are not satisfied with the order of the Appellate Authority who set aside the award of the Chief Electrical Inspector merely proceeding on the premise that in case electricity is consumed the consumer is bound to pay the amount without taking into account the relevant statutory provisions. Otherwise also, before the learned Single Judge the following factors were not disputed by the appellant:- a) the respondent did not tamper with the electricity meter nor had used any device for closing inadequate turns. No wilful misconduct was thus attributed to the respondent. Letters Patent Appeal No. 734 of 2010(O&M) 5 b) since the meter was not giving correct reading the respondent school could not be held liable for paying dues for a period of five years. c) Section 26(6) of the Act specifically stated that in such a situation electric quantity supplied could not be quantified for a period exceeding six months. Since the aforesaid admitted factors were not disputed and in view of the provisions of Section 26(6) of the Act which provides that electricity quantity supplied could not be quantified for a period exceeding six months, we are of the view that the finding recorded by the learned Single Judge does not call for interference by this Court in this appeal. Apart from the above facts the learned Single Judge has also held that in view of the law laid down by a Division Bench of the Bombay High Court in The Tata Hydro-Electric Power Supply Co. Ltd. v. Union of India, reported as 2002(2) RCR(Civil) 183 that the Current Transformer meter is a meter within the meaning of Section 20 of the Act and the defect in Current Transformer meter is to be understood as a defect in the electricity meter. Learned counsel appearing for the appellant failed to dislodge the legal proposition laid down by the Bombay High Court. So far as interpretation of Section 26(6) of the Act is concerned, we are satisfied that the learned Single Judge has correctly construed Section 26(6) of the Act as the respondent school was not at fault what-so-ever and the fault if any would lay at the door of the appellant itself. S.26(6) of the Act reads as follows:- “26. Meters xxx xxx xxx xxx xxx xxxx Letters Patent Appeal No. 734 of 2010(O&M) 6 (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 day's notice of his intention so to do.”(emphasis supplied) Thus the recovery could not have been for more than six months which the respondent school was bound to pay. Besides, we cannot lose sight of the fact that a school is being fastened belatedly after 5 years with a huge liability of Rs. 7,32,720/- as a result of the mistake of the appellant itself for which the respondent school cannot be made liable. Even before this Court the appellant has not proceeded with promptitude and the appeal was filed delayed by 18 days and 23 days delay occurred in refiling the same. Thus, against the order dated 9.11.2009 the challenge for the first time came Letters Patent Appeal No. 734 of 2010(O&M) 7 before us in the month of June, 2010. Though we have reluctantly condoned the delay but we are satisfied that the judgment rendered by the learned Single Judge does not call for any interference as it has correctly applied S. 26(6) of the Act. Accordingly the appeal is dismissed with no order as to costs. (MUKUL MUDGAL) CHIEF JUSTICE (AJAY TEWARI) JUDGE June 29, 2010 sunita