Case: Western Elect.Sup.Co.Of Orissa Ld Vs. M/S Baba Baijanath Roller &amp; Flour Mil.Ld

presence of the representative of the respondent who is a Manager of the said company and in his presence the meter was checked up and was found to be tampered with. We have also noticed that the plea of duress or coercion in signing the inspection report was raised by the respondent but in reality no allegation was made by the respondent before an appropriate authority excepting such bald allegations have been made before the writ court without any basis or evidence. Therefore that fact cannot have any bearings in deciding this matter. We cannot brush aside the said fact from the mind while dealing with the matter concerning tampering of meter. It appears to us that the said aspect has escaped the attention of the High Court and therefore, in our opinion, the High Court failed to appreciate the facts in their proper perspective. Therefore, on this ground, we find that the High Court has misconstrued the facts and the provisions of law in dealing with the matter. The provision of law which deals with tampering of metering equipments, i.e. clauses 56, 64 and 105 of the Code have not been considered by the High Court and in our opinion the High Court has failed to construe such provisions and erred in deciding the matter ignoring the said provisions. The High Court accepted the position submitted on behalf of the respondent/writ-petitioner that it was a case of defective meter and there is no question of any tampering with the meter in question. The High Court has failed to appreciate that the inspection was made and the fact of tampering of meter would appear from the inspection report and such inspection report was signed on behalf of the respondent/writ-petitioner. Therefore, the High Court ignoring the said fact, came to the conclusion without giving any reason, that the inspection report is bad and has erred in setting aside such inspection report. Hence, such findings of the High Court cannot be sustained. 13. Therefore, in our opinion, the High Court was also wrong in not considering the rights of the appellant to raise penal charges on the respondent on the ground of unauthorised consumption by way of tampering the meter or metering equipment and has a right to raise penal bill in accordance with the provisions of Code. On this ground the High Court has erred in allowing the writ petition in favour of the respondent, quashing the penal charges and further the direction given to refund the amount. The said order is without any reason and cannot be sustained in the eyes of law. Hence, the same is set aside. 14. We have also noticed in Madhya Pradesh Electricity Board & Ors. v. Smt. Basantibai (supra), this Court held: 9. It is evident from the provisions of this section that a dispute as to whether any meter referred to in sub-section (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 Section 26. Such a dispute regarding the commission of fraud in tampering with the meter and breaking the body seal is outside the ambit of Section 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, that can be decided by the Electrical Inspector under the provisions of the said Act. In Sub-Divisional Officer (P), UHBVNL v. Dharam Pal [2006 (12) SCC 222 ], it appears to us that in case of tampering, there is no scope for reference to Electrical Inspector. It was held : 9. In State of W.B. v. Rupa Ice Factory (P) Ltd. [2004 (10) SCC 635], it was observed as follows: (SCC p. 637, para 5) 5. As regards the second claim, namely, the claim for the period from December 1993 to December 1995, the finding of the High Court is that the Vigilance Squad had found that Respondent 1 had tapped the electric energy directly from the transformer to the LT distribution board bypassing the meter circuit. If that is so, we do not know as to why the High Court would go on to advert to Section 26 of the Electricity Act and direct reference to the Electrical Inspector for decision under Section 26(6). In two decisions of this Court in M.P Electricity Board v. Basantibai [1988 (1) SCC 23 ] and J.M.D. Alloys Ltd. v. Bihar SEB [2003 (5) SCC 226 ] it has been held that in cases of tampering or theft or pilferage of electricity, the demand raised falls outside the scope of Section 26 of the Electricity Act. If that is so, neither the limitation period mentioned in Section 26 of the Electricity Act nor the procedure for raising demand for electricity consumed would arise at all. In this view of the matter, that part of the order of the Division Bench of the High Court, directing that there should be a reference to the Electrical Inspector, shall stand set aside. In other respects the order of the High Court shall remain undisturbed. The appeal is allowed accordingly.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. We have noticed the facts in this case. We have also considered the Sections of the Act of 1910 and it appears to us that Section 26 is relevant only when there is any difference or a dispute arises in connection with correctness of a meter, in that case the matter shall be decided, upon being applied by either party, by an Electrical Inspector and in the opinion of the Inspector if it is found that the meter is defective, the Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply during such time not exceeding six months but if there is a question of fraud in tampering with the meter, in that case there is no question of applicability of Section 26 of the said Act in such a matter. In the instance case, we have asked the learned counsel appearing for the respondent whether following Section 26(6), the respondent ever asked or applied for checking of the meter by the Electrical Inspector on the ground of defective meter. The answer was in the negative. Therefore, it shows that the ingredients of Section 26(6) were not followed by the respondent to meet the necessity of checking the meter in question in accordance with the said provision12. We have further noticed that the inspection was made in the presence of the representative of the respondent who is a Manager of the said company and in his presence the meter was checked up and was found to be tampered with. We have also noticed that the plea of duress or coercion in signing the inspection report was raised by the respondent but in reality no allegation was made by the respondent before an appropriate authority excepting such bald allegations have been made before the writ court without any basis or evidence. Therefore that fact cannot have any bearings in deciding this matter. We cannot brush aside the said fact from the mind while dealing with the matter concerning tampering of meter. It appears to us that the said aspect has escaped the attention of the High Court and therefore, in our opinion, the High Court failed to appreciate the facts in their proper perspective. Therefore, on this ground, we find that the High Court has misconstrued the facts and the provisions of law in dealing with the matter. The provision of law which deals with tampering of metering equipments, i.e. clauses 56, 64 and 105 of the Code have not been considered by the High Court and in our opinion the High Court has failed to construe such provisions and erred in deciding the matter ignoring the said provisions. The High Court accepted the position submitted on behalf of the respondent/writ-petitioner that it was a case of defective meter and there is no question of any tampering with the meter in question. The High Court has failed to appreciate that the inspection was made and the fact of tampering of meter would appear from the inspection report and such inspection report was signed on behalf of the respondent/writ-petitioner. Therefore, the High Court ignoring the said fact, came to the conclusion without giving any reason, that the inspection report is bad and has erred in setting aside such inspection report. Hence, such findings of the High Court cannot be sustained13. Therefore, in our opinion, the High Court was also wrong in not considering the rights of the appellant to raise penal charges on the respondent on the ground of unauthorised consumption by way of tampering the meter or metering equipment and has a right to raise penal bill in accordance with the provisions of Code. On this ground the High Court has erred in allowing the writ petition in favour of the respondent, quashing the penal charges and further the direction given to refund the amount. The said order is without any reason and cannot be sustained in the eyes of law. Hence, the same is set aside