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PETITIONER:

BELWAL SPINNING MILLS LTD. ETC. ETC.

Vs.

RESPONDENT:

U.P.STATE ELECTRICITY BOARD AND ANR.ETC.ETC.

DATE OF JUDGMENT: 10/07/1997

BENCH:

G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

WITH

(CIVIL APPEAL NOS. 1571 OF 1987, 2538 OF 1985 AND 1255 OF

1986)

J U D G M E N T

G.N.RAY,J.

The appeals arising out of Special Leave Petition Nos.

5262-64 of 1992 are directed against order dated February

19, 1992 passed by the Division Bench of the Allahabad High

Court disposing of Writ Petition Nos. 10379 of 1988

challenging the notice dated April 26, 1988 and the demand

dated May 17, 1988 of the U.P.State Electricity Board and

Writ Petition No. 16723/88 and 16325/90 challenging the

validity of the bills for the month of June and july, 1988

issued by the u.p. State Electricity Board and also the

deamdn dated June 14, 1990 made by the said Board. By the

impugned judgment dated Febraury 19, 1992, the High Court

guashed various demand notices issued to the appellant on

the basis of check meters installed by the respondent

U.P.State Electricity Board and directing that payment for

six months would be made on the basis of estimate of

Electrical Inspector dated october 10, 1990 and further

directing that the fresh bills for the period 7.9.87 to

10.10.90 be issued on the basis of new meter. By the order

dated March 10, 1992, the Division Bench of the Allahand

High Court passed an interim order on another Writ Petition

filed by the appellant on March 9, 1992 challenging the

action of the U.P. State Electricikty Board in respect of

the bill dated January, 1992 and disconnecting the supply of

electricity in the factory of the appellant. By the order

dated March 10, 1992, the High Court directed the appellant

to deposit Rs. 10 lacs and on such deposit, the u.P. State

Electricity Board was to restore the connection within 24

house and also directing the U.P. State Electricity Board to

prepare the bills for the period subsequent to 10.10.90

within a month with a further direction to the appellant to

pay such bill within a month thereafter.

The relevant facts leading to the controversy as to the

raising demands for the bills and the consequential

direction passed by the High Court on February 19,1992 and

March 10, 1992 are stated hereunder.

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On Febraury 7, 1986 U.P. State electricity Board

installed a meter bearing No. 5850497 in the factory of the

apopellant. The Board carried out periodical inspection and

tests and had raised the bills on the basis of the said

installed meter and the appellant had also paid such bills.

On September 7, 1987, the U.p. State Electricity Board

issued a notice raising doubt about the correctness of the

said meter No. 5850497. On October 25, 1987, the appellant

controverted the contents of the said notice of the

Electricity Board and asserted that the meter was correct.

No reference to the Electrical Inspector was made under

Section 26 of the Electricity Act, 1910 by the Board. The

Board installed a check meter on November 30, 1987. The

appellan, however, deposited the testing fee and requested

the Electricity Board to check the said test meter. The

Board, however, continued to raise the bills on the basis of

the said check meter for the period December, 1987 to May,

1988. On April 26, 1988 to November, 1987 could be revised

o the basis of check meter and sought information for the

purpose of revising of the bills prior to 1987. On May 17,

1987, the Electricity Board raised a demand of

Rs.10,70,886.82 for the period May, 1987 to November, 1987

on the basis of readings in the check meter and threatene

the appellant that the electricity connection would be

discontinued if the payment was not made. It was at this

stage that the appellant moved a Writ Petition No. 10379 of

1988 challenging the said notice dated April 26, 1988 and

the demand datd may 17, 1988. During the pendency of the

said Writ Petition, the electricity Board again raised bills

for teh months of June, 1988 on the basis of check meter and

also thereatened the appellant that disconnection would be

restorted to if the payment was not made. The appellant

then moved another Writ Petition No. 1672/88 in the

Allahabad High Court challenging the said bills for June and

July, 1988. By an interim order, the High Court restrained

the desconnection of the electric supply subject to

thepayment of electricity dues by the appellant on the basis

of original meter reading and furnishing security and bank

guarantee for Rs.1 lakh every month. The Electricity Board

raised additional demand of Rs. 5,54,963.64 ending July 1988

on the basis of check meter. The appellant moved the third

Writ Petition on June 21 1990 being writ petition No.

16325/90 challenging the demand dated June 4, 1990 for the

said sum of Rs. 5, 54,963.64. The High Court passed an

interim order staying the operation of the demand and

directed the appellant deposit a sum of Rs. 1,50,000/-. It

may be stated that on July 9, 1988 the appellant made an

application for reference to the Electrical Inspector to

check the correctness of the original meter and also the

check meter. Between 26th June, 1990 and 28th June, 1990,

the work of inspection was carried out and on October 10,

1990 the Electrical Inspector submitted a report containing

his decision under Section 26(6) of the Electricity Act,

1910. In the said report, the Electrical Inspector held

that the original meter as well as the check meter

incorrect. The Electrical Inspector made an estimae of the

energy supplied to the appellant during the period of six

months from December, 1989 to May, 1990 and authorised the

Board to raise a deamnd accordingly for a period of six

months and the Electrical Inspector also directed that the

original meter as well as the check meter should be

installed under SEction 26(1) of the Electricity Act.

As aforesaid, on Febraury 19, 1992, by common judgment

the High Court disposed of all the said Writ Petitions by

quashing various demand notices issued on the basis of the

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check meter and directing that the payment be made on the

basis of estmate of Electrical Inspector dated October 10,

1990 in respect of the said period of six months and also

directed that fresh bills for teh period September 7, 1987

to October 10, 1990 be issued on the basis of new meter.

Thereafter, the fourth Writ Petition not numbered as yet was

moved by the appellant on March 9, 1992 in respect of bill

for January, 1992 in which an interim order was passed on

March 10, 1992. Such interim order is also impugned in one

of these appeals.

MR. Sunil Gupta the learned counsel appearing for the

appellant in these appeals has contended that under SEction

20 of the Indian Electricity Act, 1910, the State

Electricity Board being the licensee has power to enter the

premises of the appellant and to remove fittings where a

supply f energy is no longer required. The licensee has

also the power of inspecting, testing, repairing or altering

the electric supply-lines, meters, fittings and apparatus

for the supply of energy belonging to the licensee. The

Board is also empowered to ascertain the amount of energy

supplied or the electrical quantity contained in the supply.

Mr. Gupta has drawn the attention of the Court to

Section 26(6) of the India Electricity Act, 1910 as it stood

before the amendment to the following effect.

Section 26(60 : Where any

difference or dispute arises as to

whether any meter rferred 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, or a competent person

specially appointed by the State

Government in this behalf, and

where the meter has, in the opinion

of such Inspector or person, ceased

to be correct, such Inspector or

person shall estimate the amount of

the energy supplied to the consumer

or the electrical quantity

contained in the supply, during

such time as the meter shall not in

the opinion of such Inspector or

person have been correct, and where

the matter has been decided by any

person other than the Electrical

Inspector, an appeal shall liew to

the Inspector, whose decision shall

in every case be final; but save as

aforesaid, the register of the

meter shall, in the absence of

frand, be coclusive peroof 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 noless than seven days'

notice of his intention so to do.

Mr. Gupta has also drawn the attention of the Court to

the provisions of Section 26 of the Indian Electricity Act

as it stands amended by Act No.32 of 1959 :-

26 Meters : (1) In the absence of

an agreement to the contray, the

amount of energy supplied to a

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consumer or the electrical quantity

contained in the supply shall be

ascertained by means of a correct

meter, and the licensee shall, if

required by the consumer, cause the

consumer to be supplied with such a

meter :

Proided that the licensee may

require the consumer to give him

security for the price of a meter

and enter into an agreement for the

hire thereof, unless the consumer

elects to purchase a meter.

(2) Where the consumer so enters

into an agreement for the hireof a

meter, the license shall keep the

meter correct, and, in default of

his doing so, the consumer shall,

for so long as the default

continues, cease to be liable to

pay for the hire of the meter.

(3) Where the meter is the property

of the consumer, he shall keep the

meter correct, and in default of

his doing so, the licensee may,

after giving him seven days notice,

for so long as the default

continues, cease to supply energy

through the meter.

(4) The licensee or any person duly

authorised by the licensee shall,

at any reasonable time and on

informing the consumer of his

intention, have access to, and be

at liberty to inspect and test, and

for that purpose, if he thinks fit,

take off and remove any meter

referred to in sub-section (1) :

and except where the meter is hired

as aforesaid, all reasonable

expenses of, and incidental to,

such inspecting testing, taking of

and removing shall, if the meter is

found to be otherwise than correct,

be recovered from the consumer,

and, where any difference or

dispute arises as to the amount of

such reasonable expenses, the

matter shall be referred to an

Electrical Inspector, and the

decision of such Inspector shall be

final:

(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

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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 applis 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.

(7) In addition to any meter which

maybe placed upon the premises of a

consumer in pursuance of the

provisions of sub-section 91), the

licensee may place upon such

premises such meter, maximum demand

indicator or other apparatus as he

thinks fit for the prupose of

ascertaining or regulating either

the amount of energy supplied to

the consumer, or the number of

hours during which the supplyis

given, or the rate per unit of time

at which energy is supplied to the

consumer, or any other quanity or

time connected with the supply:

Provided that the meter, indicator

or apparatus shall not, in the

absence of an agreement to he

contrary be placed otherwise than

between the distributing mains of

the licensee and any meter referred

to in sub-section (1) :

Provided also, that, where the

charges for the supply of energy

depend wholly or partly upon the

reading indicaing of any such

meter, indicator or apparatus as

aforesaid the licensee shall, in

the absence of an agreement to the

contrary, keep the meter, indicator

or apparantus correct, and the

provisions of sub sections (4) (5)

and (6) shall in that case apply

as though the meter, indicator or

apparatus were a meter referred to

in sub-section (1).

Explanation - A meter shall be

deemed to be "correct" if it

registers the amount of energy

supplied, or the electrical

quantity contained in the supply,

within the prescribed limits of

error and a maximum demand

indicator or other apparatus

referred to in sub-section (7)

shall be deemed to be "correct" if

it complies with such conditions as

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may be prescribed in the case of

any such indicator or other

apparatus."

Mr. Gupta has also drawn the attention of the Court to

Rule 57 of the Indian Electricity Rules, 1956. Rule 57 runs

to the following effect:

Rule 57 -Meter, maximum demand

indicators and other apparatus on

consumers' premises

(1) Any meter or maximum demand

indicator or other apparatus placed

upon a consumer's premises in

accordance with SEction 26 shall be

of appropriate capacity and shall

be deemed to be correct if its

limits of error are within the

limits specified in the relevant

Indian Standard Specification and

where no such specification exists,

the limits of error do not exceed 3

per cent above or below absolute

accuracy at all loads in excess of

one tenth of full load and upto

full load.

(2) No meter shall register at no

load.

(3) Every supplier shall provide an

maintain in proper condition such

suitable apparatus as may be

prescribed or approved by teh

Inspector for the examination,

testing and regulation of meters

used or intended to be used in

connection with the supply of

energy:

Provided that the supplier may with the approval of the

Inspector and shall, if required by the Inspector, enter

into a joint arrangement with any other supplir for the

purpose aforesaid.

(4) Every supplier shall examine,

test and regulate all meters,

maximum demand indicators and other

apparatus for ascertaining the

amount of energy supplied before

first installation at the

consumer's premises and at such

other intervals as may be directed

by the State Government in the

behalf.

(5) Every supplier shall maintain a

register of meters showing the date

of the last test, the error

recorded at the time of the test,

limit of accuracy after adjustment

and final test, the date of

installation, withdrawal,

reinstallation etc., for the

examination of the Inspector or his

authorised representative.

960 Where the supplier has failed

to examine, test and regulate the

meters keep records thereof as

aforesaid, the Inspector may cause

such meters to be tested and sealed

at the cost of the owners of the

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meters in case it is found

defective."

Mr. Gupta has contended that on a correct reading of

SEction 26 as a whole along with all important deeming

clauses in the Explanation containing the definition of

correct meter as also along with reading of section 26(1) of

the Indian Electricity Act, it would be evident that there

can be in the eye of law only one 'correct meter' in the

case of any consumer. The deeming clause in the explanation

statutorily determines and declares the correctness of the

meter if only it registers the amount of energy supplied

within the prescribed limits of error and leaves the same to

nobody's liking or imagination. If the meter so installed

registers the amount of energy, the Board has no choice but

to accept it as correct and once a correct meter it must be

deemed to be correct all along unless it is doubted and

dispute is raised and thereafter such meter is despensed

with on being decided that it is incorrect by the Electrical

Inspector in accordance with the procedure prescribed by

Section 26(6) of the Indian Electricity Act. Mr. Gupta has

submitted that so long meter on being adjudicate as

defective is not discarded by replacing a correct meter, the

consumer treats the said meter as the correct and can resist

raising the bill on the basis of any other meter.

Mr. Gupta has submitted that in the instant case, the

Board has not taken any step to refer the dispute to

Electrical Inspector to correct the meter even when it had

doubted about the correctness of the installed meter. The

appellant also did not raise any dbout about the correctness

of the said meter. But during the pendency of the Writ

Petition, the appellant even though not required to raise

dispute took steps to get the dispute as to the correctness

of the meter referred to the Electrical Inspector. Mr. Gupta

has submitted that the check meter installed by the Board

cannot be treated as a correct meter or replacement of

original meter. The check meter was installed by teh Board

for the purpose of checking the correctness of the original

meter installed earlier. Therefore, the very purpose of the

check meter was to take the reading of the check meter fot

the purpose of verifying the reading in the original meter

installed by the Board. Mr. Gupta has submitted that until

and unless any dout raised about the correctness of the

meter is finally scrutinised and decided by the Electrical

Inspector on a reference made to such authority, the Board

should not be permitted to install another meter simply by

doubting the correctness of the earlier meter installed by

it. Any such libery to be given to the Board will amount to

permitting the Board to short circuit and avoid the fair and

impartial mechanism provided under Section 26 of the Indian

Electricity Act. Mr. Gupta has contended thay any proposal

of correctness of one meter by another meter should not be

permitted until the corrrectness of the earlier meter

installed is finally decidedby Electrical Inspector as

incorrect. Mr. Gupta has contended that any libery granted

to the Board to continue to dislodge and dislocate one meter

after anotehr meter arbitrarily, whimsically and without any

reason and without the concurrence of the consumer will be

loaded with the potentiality of grave mischief and high

handedness at the hands of the Electricity Board and such

action is bound to seriously impair the rule of law between

the parties which is so delicaely maintained by the

different parts of Section 26 of the Indian Electricity Act.

According to Mr. Gupta, the different parts of Section

26 of the Act only manifest that the original correct meter

once duly installed with the concurrence of concerned

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parties, acquires a sacrosanct status. After the

installation, neither party has the right to take off or

remove or replace the meter. Sub-section (4) of Section 26

permits the originally installed correct meter to be taken

off and removed by the Electricity Board, if at all for the

purpose of inspecting and testing, such removal is

necessary. There is no unlimited liberty granted to the

Electricity Board or the licensee to take off and remove the

originally installed meter and replace the same by another

meter by treating such other meter as correct. Sub-section

(6) of Section 26 of the Electricity Act requires that save

as estimated by the Electrical Inspector for a period not

exceeding six months, the register of the meter shall be

conclusive proof of the amount of energy supplied to the

consumer. This limit of six months, according to Mr. Gupta,

is to be corelated with the primary rule contained in sub-

section (1) of Section 26 of the Act, which requires that

the amount of energy supplied shall be ascertained by means

of a correct meter.

Mr. Gupta has ubmitted that Section 21 of the Indian

Electricity Act bars and disentitles the Board from

prescribing any special form of appliance and it also

indicates that the original correct meter cannot be tinkered

with. Regulation 21 (ii) of the Electricity (Supply)

Regulations 1984 also provides for a check meter only for

checking the accuracy of the original meter. Sub-Section

(7) of Section 26 permits any other meter to be placed upon

the consumer's premises only in addition to and not in lieu

of or in replacement of the meter already placed upon the

said premises in pursuance of the provisions of sub-section

(1) of Section 26 of the Act. If the Board places in the

consumer's premises a check meter and thereafter finalises

or regularises it so as to bid farewell to the original

meter installed under sub-section (1) for purposes of

ascertaining the amount of energy supplied to the concumer,

it must be held to be a breach of sub-section (7) inasmuch

as such placement is in lieu of and not in place of the

original meter. Mr. Gupta has submitted that the check

meter has only been placed to check the original meter and

suchmeter cannot directly dislodge and replace the said

original meter and not indirectly allow to do so by means of

any process of formality of finalisation or regularisation

or some other such paper ritual.

Mr. Gupta has further contended that the law courts in

India have decided that a check meter can only be used for

checking and not for the purposes of regular reading,

billing etc. Even the impugned judgment had disapproved of

such action and quashed the check meter bills inter alia on

the finding that as the power to decide the dispute about

the correctness of the meter installed at the consumer's

remises vests in Electrical Inspector under sub-section (6)

of Section 26, it s not open to the Board to assign that

power to itself. it may be open to the Board to install the

check meter to find out the correctness of the meter

originally installed at the consumer's premises but it is

not open to it to send bills on that basis for the period of

dispute. The Board's decision about the correctness of

meter is not binding on the consumer and what is binding on

him is the decision of the Electrical Inspector under Sub-

section (6) of Section 26. Under these circumstances, if

the Board issues any additional bills for the disputed

period, it is not liable to be paid by the consumer. The

consumer is required to make payment provisionally, during

the period of dispute, on the same basis on which payment

was being made before the dispute has arisen.

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Mr. Gupta has contended that not only a new correct

meter cannot be brought in but truly speaking the old

correct meter cannot be taken off or removed or abandoned

except under the provisions of Section 26(6) of the

Electricity Act. Mr. Gupta has also contended that although

sub-section (7) of Section 26 permits the Board to use, in

addition to the meter installed under sub-section (1), such

other apparatus as it thinks fit for the purpose of

scertaining the amount of energy supplied, under the second

proviso of the said sub-section, the Board has an obligation

to keep also such apparatus correct. mr. Gupta has further

contended that second proviso to sub-section (7) of Section

26 also requires that the provisions of sub-sections (4),

(5) and (6) shall mutatis mutandis also apply to the said

additional apparatus as though it was the meter referred to

under sub-section (1). in other words, if the Board has any

doubt about the correctness of such other apparatus then it

becomes the duty of the Board to make a formal reference of

the dispute to the Electrical Inspector after giving the

consumer not less than seven days' notice of its intention

to do so. Any correctness undertaken otherwide would not be

a reference under Sub-section (6) of Section 26 of the Act

and in that event, as declared by the saving clause in sub-

section (6) of Section 26 of the Electricity Act, the

register of the meter shall alone be conclusive proof of the

amount of energy supplied to the consumer.

Mr. Gupta has also contended that the Electricity Board

cannot also unilaterally and without notive add any further

compliant wih regard to any other apparatus by merely making

some mention of it in a letter forming part of the

correspondence taking pace in connection with a validly

referred dispute relatin, to teh meter. Much less can it do

so by resorting to such methods in the course of a

correspondence taking place under a reference made by the

consumer.

It has also been contended by Mr. Gupta that any

attempt at inviting the Electrical inspector who is in

seisin of the original dispute relaing to the meter, to also

decide the question of correctness of an additional

apparatus midstream and that too without any notice and the

copy of the complaint being given to the consumer would be

ab initio illegal and void and the Electrical Inspector's

decision upon the matter, once again without ensuring that

notice and copy of the complaint has been furnished to the

consumer, would only further compoiund the breach of

principles of natural justice and fair play.

According to Mr. Gupta, any controversy,

correspondence, opinion, adjudication etc. apearing on the

record of the Board or of the Electrical Inspector at any

point of time with regard to the correctness either of the

meter or of any other apparatus shall deserve to be

disregarded and ignored by a court of law if the same has

not taken place and trasnpired in accordance with

theprocedural requirements of sub-section (6) of Section 26

of the Electricity Act.

Mr. Gupta has very seriously contended that after the

amendment of Section 26, the legal position is that when a

dispute is raised either by consumer or by licensee about

the correctness of the meter installed at the premises of

the consumer, such dspute is got to be rexolved by making a

reference to the Electrical Inspector. The Electrical

Inspector after amendment of Section 26 of the Electricity

Act, has been authorised to make estimate of the electricity

consumed by the consumer upon a finding that the installed

meter was defective only for a period of six months prior to

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the date of reference of the dispute to the Electrical

Inspector. For any other period beyond that period of six

months, the reading on the basis of the installed meter must

form the basis of raising the bills. It is neither

permissible under the scheme of Section 26 of the

Electricity Act nor it can be presumed that from any

particular point of time, the original installed correct

meter had gone wrong so that revised bills can be drawn from

such point of time. Since it was the duty of the licensee

namely the Electricity Board to keep the meter installed at

the consumer's premises in a correct position for which the

licensee had the right of access in the premises of the

consumer, on the failure of the licensee to check the meter

installed at the premises of the consumer and to make

reference to the Electrical Inspector whenever any dbout

arises about the correctness of the meter installed and

getting appropriate adjudication by the Electrical

Inspector, the licensee cannot be permitted to raise any

revsed bills beyond a period of six months from the date of

reference of the dispute to the Electrical Inspector on the

basis of any meter subsequently installed at the premises of

the consumer after the finding of the Electrical Inspector

that the earlier meter installed was defective.

Mr. Gupta has subitted that in the instant case,

attempt has been made by the Electricity Board to raise

revised bills on the basis of the check meter exceeding the

period of six months from the date of reference of the

dispute. MR. Gupta has contended that once on a reference,

the Electrical Inspector comes to the finding that the meter

installed at the premises of the consumer is defective, the

legislature, in its wisdom, has given the Inspector to make

an estimate of the amount of electricity consumed for a

period of only six months prior to the date of reference.

The estimate made by the Electrical Inspector would be held

to be correct index of consumption of the electricity for

the said statutory period of six months because of the

statutory presumption of incorrectness of the meter upto

that period. But beyond the said period of six months, the

licensee is not permitted to raise any dispute about the

incorrectness of the bills raised and the licensee can only

raise bills on the basis of the installed meter for all

earlier period beyond the said statutory period of six

months.

Mr. Gupta has submitted that unfotunately, the High

Court has failed to appreciate the provisions of Section 26

of the Electricity Act and by the impugned order the High

Court has allowed the respondent Electricity Board to raise

bills for the period exceeding the said six months for which

estimated amount of electricity consumed was determined by

the Electrical Inspector on the basis of the reading of the

meters installed at the premises of the appellant. Such

order of the High Cort is clearly illegal and against the

provisions of Section 26 f the Electricity Act and thus it

cannot be sustained.

So far as the interim order passed on March 10, 1992

since assailed in one of the appeals is concerned, the High

Court according to Mr. Gupta, has passed the said order

without appreciating that such order was without

jurisdiction and outside the scope and ambit of the last

Writ Petition filed by the appellant challenging the

validity of the bill for the month of January 1992 only.

Mr. Gupta has submitted that the impugned interim order of

March 10, 1992 passed on the last Writ Peition of the

appellant is manifesly unjust, improper and illegal.

Mr. B. Sen, learned senior counsel appearing for the

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U.P. State Electricity Board has, however, submitted that

the Board has the power to install a check meter for the

purpose of checking the functioning of the installed meter

and to regularise the bills on the basis of check meter. He

has also submitted that since the licensee has the power to

alter the meter if the installed meter is found defective,

there is no difficulty in treating the check meter as the

regular meter installed in lieu of the original meter.

Therefore, the bills drawn on the basis of the check meter

cannot be held to be illegal. On the question of true

construction of Section 26 (6) of the Electricity Act, Mr.

Sen has submitted that sub-section (6) of Section 26 should

be read in the light of amended sub-section and when so

read, it would be seen that the words 'not exceeding six

months' have been added by amending Act 32 of 1959. The

result of the amendement is not that any claim of the

licensee in respect of correct meter is restricted only to

the amount of energy supplied to the consumer during a

period not exceeding six months. Mr. Sen has submitted that

the words save as aforesaid the register of the meter shall

in the absence of fraud be conclusive proof of such amount

or quantity means that except in cases where there is a

determination by the Electrical Insepctor that the meter is

not correct, the register of the meter is conclusive proof

of the amount or quantity. After the amendment, the

Electrical Inspector's jurisdiction to estimate the amount

of energy supplied to the consumer from the incorrect meter

is restricted to a period not exceeding six months. In

other words, the Electrical Inspector's jurisdiction to

estimate the amount of energy is restricted upto a time

period. This does not mean that the meter is approved as

correct for any period anterior to six months.

Mr. Sen has also submitted that the distinction must be

drawn between the estimating or quantifying the amount of

energy and the duration of the incorrectness of the meter.

The former does not affect the latter. Section 26(6) is not

a section which bars the latter claim either by limitation

or otherwise. Consequently, it is open to th elicensee to

make a claim on the basis of the value of incorrectness

found by the Electrical Inspector in respect of a period

anterior to the maximum six months period for which the

Electrical Inspector can estimate the amount of supply.

MR. Sen has, however, submitted that the claim of the

licensee about the quantum of electricity consumed is not

statutorily conclusive and therefore, such claim may be

subject to contest if any to be made by the consumer.

Mr. Sen has submitted that the above interpretation is

only fair and just and the said interpretation harmonises

the lessening of the burden on the Electrical Inspector for

which the amendment was effect in sub-section (6) of Section

26 and also preserves the claim of the licensee which is a

public undertaking and just claim should not be allowed to

be abandoned or defeated. Mr. Sen has submitted that it was

open to the licensee to make revised bills for teh quantum

of electricity consumed by the consumer by correcting the

bills to the extent of error in recording as indicated by

the Electrical Inspector. Therefore, the impugned decision

of the High Court must be sustained.

Mr. Sen has also submitted that although the last Writ

Petition was moved for assailing the bill raised for a

particular month but the contention raised in the Writ

Petition is the same, namely, excepting the 'six months

period' for which the estimate was prepared by the

Electrical Inspector, for all other periods prior to such

estimation, must be covered by the readings in the installed

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meter even if the installed meter has been found to be

defective and no revised bill can be drawn and payment can

be claimed on the basis of revised bills for any period

exceeding six months. Since much contention cannot be

accepted and the High Court has already answered against the

appellant in disposing of the earlier three writ petitions,

the impugned interim direction give by the High Court

appears to be just and proper and no interference is called

for against the judgment of the High Court under Article 136

of the Constitution. Mr. Sen has, therefore, submitted that

these appeals should be dismissed.

Mr. T.R. Andherujina, learned Solicitor General, has

appeared for the Municipal Corporation fo Greater Bombay,

the appellant in Civil Appeal Nos. 2538 of 195 and Civil

Appeal No. 1571 of 1987. Civil Appeal No. 2538 of 1985 is

directed against the judgment dated April 4, 1985 passed by

the Division Bench of the Bombay High Court allowing Appeal

No. 173 of 1979 preferred by the respondent Bharat Barrel

Drum Manufacturing Company Limited assailing the order of

dismissal of the Writ Petition of the said respondent by a

Single Judge of the High Court, Civil Appeal No. 1571 of

directed against Order dated July 1, 1987 passed by the

Division Bench of the Bombay High Court in O.S. Appeal No.

890 of 1983 arising from Misc. Petition No. 1662 of 1979.

The impugned judgment of the Bombay High Court in O.S.

Appeal No.890 of 1983 has been passed following the decision

of the Division Bench of the Bombay High Court dated April

4, 1985 in Bharat Barrel Drum Manufacturing Company's case.

Mr. Solicitor General has submitted that in Bharat

Barrel's case, the appellant checked the correctness of all

meters of multiplying the constant and of actual connections

of CT operated meters and an additional check meter was

installed and on comparison of the two meters, it was

revealed that due to defective connections, the original

meter was registering 76.6% less than of its actual use.

Therefore, the revised bills of 76.6% of energy consumed

from June 1, 1963 amounting to Rs. 2,28,750.70 was served on

the respondent company. The respondent disputed the revised

bills and referred the dispute to the Electrical Inspector

under Section 26(6) of the Electricity Act. The respondent

company moved a Misc Petition No. 376 of 1973 in the Bombay

High Court, on June 20, 1973, and a consent order was passed

in the said petition where the appellant agrred not to

disconnect the electric supply for non-payment of the amoun

demanded during the pendency of the reference. On July 10,

1973, the Electrical Inspector found that the meter in

question was recording 71.9% slow reading and such error was

beyond the prescribed limit. The appellant thereafter

revised its bills in the light of th decision of the

Electical Inspector and reduced the claim and sent the

corrected revised Bills for a sum of Rs. 1,68,402.90 to the

respondent-Company. Such revised bill was also assailed by

the respondent-Company before the Bombay High Court in Misc.

Petition No.1148 of 1973. The learned Single Judge

dismissed the said petition by upholding the claim of the

respondent-appellant. Thereafter, the respondent preferred

the said Appeal No. 173 of 1979 and such appeal has been

allowed by the impugned judgment dated April 4, 1985.

By the impugned judgment, the High Court has held that

once the dispute is referred under Section 26(6) of the

Electricity Act, the licensee is entitled to pay only the

charges payable as per recording by the meter installed and

such further amount as may be held due for a period of six

months by the Electrical Inspector. The High Court has also

held that any amount demanded by the licensee on the ground

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that the meter ceased to be correct for a period for more

than six months cannot be said to be 'due' for the purpose

of Section 24(1) of the Act and that the power to discnnect

vested in the licensee under Section 24 cannot be exercised

for non-payment of such amount. The High Court has also

held that the licensee cannot revise its bills for more than

six months immediately proceeding the demand. similar claim

by presenting revised bills on account of error due to

incorrect meter reading has also been rejected in the case

of M/s Eagle Theatre by relying on the judgment passed in

Bharat Barrel Drum Manufacturing Company's case.

The learned Solicitor General has submitted that

Section 24(1) of the Electricity Act empowers the licensee

to cut the supply where a consumer neglects to pay charge of

Electricity due from him after giving seven days' notice to

the consumer in writing. Where ther is a dispute as to the

correctness of the meter, sub-section (2) of Section 24

requires that licensee shall not exercise powers of

disconnection until the Inspector has given his decision.

Where the Inspector has given his decision estimating the

amount of energy supplied to the consumer under Section

26(6) during such time not exceeding six months and if

consumer does not pay after such a determination, it will be

open for the licensee to issue a notice of disconnection

under Section 24(1) of the Act. Mr. Solicitor General has

also submitted that in respect of the period exceeding six

months, the licensee may make a demand from the consumer on

the basis of value of incorrectness of the meter determined

by the Electrical Inspector. The licensee may issue such a

notice without prejudive to his right to recover such charge

by suit. Mr. Solicitor General has submitted that it is,

therefore not correct that a licensee can under no

circumstances avail of the powers of disconnection under

Section 24(1) on the score of non-payment of the revised

bills relating to a period exceeding six months as referred

to in Section 26(6). Since the appellant can raise the

revised bills on account of incorrect reading in the

installed meter for some defects either in the meter or in

connection to the meter, the impugned decision of the Bombay

High Court can not be sustained and the same should be set

aside by allowing the appeals.

Mr. Gupta in reply has, however, dispute the

submissions made by Mr.Sen and by the learned Solicitor

General. Mr. Gupta has contended that there is no scope for

any assumption that there is in the licensee a right to make

claims for the amount of energy supplied to a consumer even

outside the provisions of SEction 26(1) and Section 26(6) of

the Act. Mr. Gupta has submitted that the assumption of

claims outside Section 26(1) and (6) is patently wrong and

incorrect. According to Mr. Gupta, such assumption and

consequential claim do not reflect true and correct

intention of the legislature but tends to destroy and defeat

the same because the real purpose and scheme of the

legislature hae been to put an end of such claims. Mr.

Gupta has submitted that the interpretation of Section 26(6)

as suggested by Mr. Sen and the learned Solicitor General

will lead to serious conflicts and difficulties and

anomalies of interpretation and it also leads to protected

litigations and vexatious proceedings resulting in grave

hardship and misery to all concerned. Mr. Gupta has

submitted that the Court will keep in mind that the

Parliament could not have intended such harsh and unsettling

consequences. For such contention, Mr. Gupta has referred

to a decision of this Court in Sanjeev Coke Manufacturing

Company Vs. Bharat Cooking Coal Ltd. (198 (1) SCC 147).

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Mr. Gupta has also submitted that it is well settled in

law that express language is necessary whenever any charges

or dues are required to be paid or any new rights or

obligations are create between parties. For such

contention, reference has been made to Craies on Status Law,

(7th Edition, pp. 112 to 117). Mr. Gupta has also contended

that 'conclusive proof clause in Section 26(6) is designed

to govern only such period during which the meter has been

'de jure' to be presumed to be correct. Mr. Gupta has

submitted that such provision has been made to govern a case

where the inspector holds the meter to be incorrect but is

not able to identify the entire period of incorrectness or

not able for some other reason to estimate the energy

supplied for the entire period of incorrectness. The

conclusive proof clause was meant to legislatively resolve

and settle the claims of the licensee during such an

uncovered or unestimated periof of adjudiated incorrectness.

Mr. Gupta has submitted that the said conclusive proof

clause was provided by the legislature purposely as a matter

of legislative policy to facilitate administrative

expediency and public convenience. Mr. Gupta has also

contended that the Court will accept that interpretation

which assigns a special role and significance to the

'conclusive proog clause in the scheme of Section 26 (6) and

reject any interpretation which would render it otiose,

superfluous and redundant. In support of this contention,

Mr. Gupta has relied on the decision of this Court in J.K.

Cotton (1961 (3) SCR 193) and Radhey Shyam (1989 (1) SCC

591). The Electrical Inspecto on a reference raising

disputeabout the correctness of the meter, is the chosen

Judge and the best Judge appointed by the Legislature to

resolve the dispute. Mr. Gupta has submitted that the true

object of amendment of Sub-section (6) of Section 26 of the

Electricity Act was to eliminate retrospective demand. Mr.

Gupta has submitted that six months' ceiling was imposed by

the Parliament on the power of the Inspector to form an

estimae of the amount of energy supplied for various reasons

and not merely because of the fact that he may not be able

to decide the period of incorrectness. According to Mr.

Gupta, the true object and purpose of the six months'ceiling

was to ensure that the consumer was not vexed with

retrospective demands for past periods and that too on a

rough and ready esimae basis.

Mr. Gupta has also submitted that under Section 26 (6),

the Parliament has deliberately chosen to deny and disallow

the alleged lcaims of the licensee beyond a period six

months and it is not a case of gap or 'casus omissus'. Mr.

Gupta has submitted that if the Court in the present case

decides to acknowledge the existence of the alleged claims

of licensee outside the six months' limit, it would amount

not only to legislating but legislating in the teeth of the

provision made by the Parliament in Section 26. Mr. Gupta

has submitted that the licensee does not have any extra

claim over and above the maximum period of six months

provided under Section 26 (6). Such position has been

accepted in various judgments by several High Courts.

Therefore, it must be held that the consistent and widely

accepted judicial interpretation of Section 26(6) does not

permit any claim beyond the said period of six months. The

Parliament has never made any attempt of amending Section

26(6) so as to resolve it of the judicial interpretation.

The silence on the part of the Parliament, therefore,

indicates that the interpretation of Section 26(6) by High

Courts over long stretch of period has rightly the true

intention of the Parliament which, therefore, deserves to be

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accepted by this Court.

Mr. Gupta has lastly submitted that sub-section (6) of

Section 26 is capable of being interpreted differently and

should be interpreted differently for the licensee and

consumer who are not similarly circumstanced. The Consumer

is, at all times, at the mercy of the licensee on the point

that consumer has no option in the matter of inspection of

meters and checking and repairing the same. Mr. Gupta has

further submitted that sub section (6) of Section 26 has to

be interpreted in the light of all other connected limbs of

the statute and with reference to specific context in

question. It is appears to the Court that on account of

short sightedness of the legislative draftsman who drafted

the six months' rule in the 1959 amendment, unmerited

prejudice and hardship have been caused to the consumers,

the judicial wing may have to depend on its own creativity

so that hardship is not meted out to the consumers. In this

connection, Mr. Gupta has relied on the decision of this

Cout in Punjab Land Development and Reconstruction

Coperation Ltd. Vs. P.O. (1990 (3) SCC 682 para 70).

Mr. Gupta has, therefore, submitted that the impugned

decision of the Allahabad High Court should be set aside and

the said three writ peritions should be allowed and the

impugned interim direction passed in the last Writ Petition

pending before the Allahabad High Court should be set aside.

Similarly the decisions of the Bombay High Court impugned in

the other appeals should be upheld by dismissing the

appeals.

After giving our careful considearation to the facts

and circumstances of the cases in these appeals and the

submissions made by Mr. Gupta, Mr. Sen and MR. Andherujina,

and learned Solicitor General, it appears to us that Section

20 of the Electricity Act authorises the licensee to enter

the premises of the consumer to remove fittings and otehr

apparatus installed by the licensee. Clause (a) of sub-

section (1) of Section 20 authorises the licensee to enter

the premises of the consumer for 'inspecting, testing,

repairing or altering the supplylines, meters, fittings and

apparatus for the supply of energy belonging to the

licensee. The licenses, therefore, can not only enter the

premises of the consumer for insepcting, testing etc. but

the licensee also can alter the meter whenever such

alteraction is needed. Such power under Section 20 does not

depend on the adjudication of correctness of the meter and

other apparatus by the Electrical Inspector on a reference

under Section 26(6) of the Electricity Act. But such power

flows from the statutory duties and function of the licensee

to maintain the correct meter for recording the quantum of

electricity supplied to the consumer. Such duty to ensure

maintenance of correct meter in the premises of the consumer

has been indicated in sub-section (1) and sub-section (2) of

Section 26. The power of removing the meter under Section

20, however, is circumscribed by the proviso to sub-section

(4) of Section 26 only when the dispute as to the functng of

the meter has been referred to teh Electrical Inspector

under Sub section (6) of Section 26. A licensee is

authorised under sub-section (7) of Section 26 to place, in

addition to the meter installed in the premises of consumer

as referred to in Sub-Section (1) of Section 26, other meter

or apparatus as the licensee deem fit for the purpose of

recording or regulating the amount of energy supplied to the

consumer. Such power also does not depend on the existence

of any dispute as to the correctness of the meter installed.

Check meter is usually installed for the purpose of

checking and ascertaining theproper functioning of the

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installed meter but there is no legal bar for treating the

check meter as an altered meter in place of the meter

installed earlier when on checking the meter the licensee

has found it to be defective. Such power of installing the

meter, replacing it by another mete ris also independent of

existence of any dispute between the consumer and the

licensee.

The expression 'check meter' has no special

significance or legal incidence for which there is a bar

that check meter cannot be treated as an altered meter if

the licensee intends to replace the defective meter by the

check meter. It will be open to the Electrical Inspector to

ascertain the correctness of the check meter along with the

disputed meter when dispute is referred for adjudication by

the Electrical Inspector and the licensee found its case

with reference to check meter. Prior to the amendment of

Section 26(6) of Electricity Act, the Electrical Inspector

or the competent person specially appointed by the State

Government in this behalf, had a statutory duty to first

determine whetehr the meter in question was defective and

thereafter to estimate the quantity of the electricity

consumed during such time as the meter in the opinion of the

Electrical Inspector or the competent person 'shall not have

been correct'. After the amendment of sub-section (6) of

Sectio 26, the Electical Inspector is the only statutory

authority to decide the dispute about the correctness of the

meter, if such dispute is raised by either of the parties.

If the Electrical Inspector on a reference comes to the

finding that the meer has ceased to be correct, the said

Inspector has a statutory duty to estimate the amount of

energy supplied to the consumer or electrical energy

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.'

(emphasis added)

From the legislative change effected in sub-section (6)

of Section 26, it is evident that prior to the amendment of

sub-section (6), upon a determination that the meterin

question was defective, the Electrical Inspector or the

competent person had a statutory duty to also estimte the

amount of energy supplied for the entire period during which

in the opinion of the said Inspector or the competent

person, the installed meter 'shall not have been correct'.

But after the amendment, on a finding that the meter in

question has ceased to be correct, the Electrical Inspector

has been relieved of the statutory duty to estimate the

total quantity of energy supplied to the consumer for the

entire period during which the meter in the opinion of the

Inspector shall not have been correct. But the Inspector

has the statutory duty to estimate the supply of energy for

a limited period referred to under Sub-section (6), namely,

'during such time not exceeding six months'.

The pint of time with reference to which the

electricity consumed by the consumer is to be estimated by

the Electical Inspector for such period not exceeding six

months' has not been specifically indicated insub-section

(6) of Section 26. The expression 'during such time'

appearing in sub-section (6) of Section 26 is capable of

different construction, namely, period between

i) date of dispute and date of

reference

ii) date of dispute and date of

inspection

iii) date of reference and date of

adjudication

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iv) date of dispute and date of

adjudication

It does not require any imagination to hold that the

dispute when raised either by the consumer or by the

licensee and reference to Electrical Inspector is made, the

Inspector is expected to consume some time for entering the

reference of dispute, making inspection of the meter in

question and after taking such technial test as may be

necessary to finally adjudicate the dispute as to the

correctness of the meter. Unless the adjudication as to the

proper functioning of the meter is made, the question of

estimating the supply of electricity for the statutory

period during which such meter shall not have been correct,

will not arise. In our view, taking into consideration the

time lag inherent between raising of dispute and

adjudication of such dispute, the expression 'during such

time' in sub section (6) of Section 26 only means the time

during which the dispute is raised for reference and the

dispute is finally adjudicated. Hence, the estimate of

supply of energy by the Inspector is to be made for a priod

not exceeding six months prior to the date of raising the

dispute for reference to the Electrical Inspector. The

expression 'not exceeding six months' indicates that the

Electrical Inspector even when comes to the finding that the

meter in question has ceased to be correct, is ot required

in all cases to make estimate of consumption of electricity

for a period upto six months prior to the raising of the

dispute for reference to the Electrical Inspector. In a

given case, it may so happen that the Electrical Inspector

may come to the finding that the meter ceased to be correct

from a particular date which is not upto six months earlier

to the date of raising the dispute for reference. In such

case, the estimate to be prepared by the Electrical

Inspector may not go upt six months prior to the date of

raising the dispute for reference but such estimate will

only cover the period prior to raising the dispute during

which, accroding to the Electrical Inspector, the meter had

ceased to be correct.

The question which, however, arises for decision in

these appeals is that although estimation by the Inspector

may be limited to the statutoy period under Sub-section (6)

of Section 26, but if on the basis of the finding of the

Electrical Inspector it is possible to hold that the meter

in question had ceased to be correct from the date even

prior to six months from the date of raising the dispute,

whether the licensee is competent to raise revised bills for

consumption of Electricity by the consumer for such earlier

period and consequentially cut the supply of electricity for

non payment of revised bills. Mr. Gupta has contended that

within the integrated scheme of the Electricity Act, the

licensee being burdened with the duty to maintain the

correct meer installed by it and coupled with the power to

inspect and check the functioning of such meter from time to

time cannot be permitted to raise any revised bill contrary

to the reading by the installed meter beyond the period of

'six months' as referred to in sub-section (6) of Section 26

i.e. maximum period of six months prior to the date of

raising the dispute. If the licensee has failed to properly

check the functioning of the installed meter and has not

changed the alleged faulty meter or has not raised dispute

for reference to the Electrical Inspector, the licensee

cannot but suffer for its inaction under the scheme of the

Indian Electricity Act.

Both Mr. Sen and Mr. Andherujina, the learned Solicitor

General, have disputed such contentionof Mr. Gupta.

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According to Mr. Sen and Mr. Ahdherujina sub-section (6) of

section 26 does not deny the licensee to claim payment on

account of consumption of electricity beyond the statutory

period for which no estimation by the Electrical Inspector

has to be made, if it is established that the meter ceased

to be correct even prior to the said statutory period of six

months.

Sub-section (1) of Section 26 provides that in the

absence of any agreement to the countrary, the mount of

energy supplied to a consumer or the electric quantity

contained in the supply, shall be ascertained by means of a

correct meter. Sub-sections (2), (3) and (4) of Section 26

provide for the inter se rights and futies of the consumer

and the licesee to keep the meter and other apparatus

necessary for recording the consumption of electricity by

the consumer in good condition and for such purpose the

licensee has been clothed with the power to enter the

premises of the consumer for testing, checking, maintaining

ect the meter and other apparatus and for repairing and

altering the same if needed. Explanation to sub-section (7)

of Section 26 provides that 'a meter shall be deemed to be

'correct' if it registers the amount of energy supplied or

the electrical quantity contained in the supply within the

prescribed limits of error and a maximum demand indicator or

other appartatus referred to in sub-section (7) shall be

deemed to be correct if it complies with such conditions as

may be prescribed in the case of any indicator of other

apparatus."

Sub-section (6) of Section 26 provides that in case of

any difference or dispute as to whetehr 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

Electrical Inspector. It also provides that on finding that

meter ceased to be correct, the Electrical Inspector has to

make an estimate of consumption of electricity during the

statutory period as referred to in sub-section (6) of

Section 26. What is the statutory period for which

estimation is to be made by the Electrical Inspector has

already been indicated. Sub-section (6) of Section 26 also

provides that save as aforesaid, namely, estimation of

consumption of electricity by the Electrical Inspector for

the statory period, "the register of the meter shall, in the

absence of fraud, be conclusive proof of such amount or

quantity."

(emphasis added)

On a conjoint reading of various sub-section of Section

26 of the Electricity Act, it is evident that consumption of

electricity or electrical quantity in the supply, shall be

ascertained by means of a correct meter and the meter and

other apparatus for recording the consumption of electricity

by a consumer will be deemed to be correct if the recording

is within the permissible limit of error as prescribed. If

a dispute as to the correctness of the meter is raised by

any party for reference, such dispute can be decided only by

the Electrical Inspector and both the licensee and the

consumer has to accept the stimate of supply of electricity

to the consumer as may be determined by the Electrical

Inspector for the statutory period referred to in sub-

section (6) of Section 26.

Although the licensee is clothed with the power to

maintain a correct meter installedt the premises of the

consumer and for such purpose can enter the premises of the

consumer and the licensee can also repair or alter the meter

and other electrical apparantus if found defective on

checking or testing by the licensee, but if the dispute as

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to the correct status of the meter or otehr electrical

apparatus is raised by the licensee or by the consumer by

making reference to the Electrical Inspector under-section

(6) of Section 26, then such dispute can be determined only

by the Electrical Inspector and the meter or apparatus

cannot also be changed by the licensee unless the dispute is

resolved by the Electrical Inspector. If there is a dispute

as to the proper functioning of the merer or check meter or

other electrical apparatus unders sub-section (6) of Section

26, the Electrical Inspector upon entering the reference

would determine the dispute as to the proper functioning of

the meter and other electrical apparatus and in the event

the Electrical Inspector comes to the finding that the meter

ceased to be correct, he is to determine the quantum of the

electricity consumed during the statutory period referred to

in sub-section (6) but for any other period anterior to the

statutory period, the legislature, in no uncertain term, has

indicated in the latter part of sub-section (6) of Section

26 that reading registered in the disputed meter will not

only be presumed to be correct but such reading shall be

conclusive proof of the quantity of electricity consumed or

the amount of electricity supplied to the consumer provided

no fraud has been practised by the consumer. In appreciating

the intention of the legislature, the provision for treating

the recording of the disputed meter to be the conclusive

proof of the amount of quantity supplied to the consumer in

the absence of fraud where a dispute is raised by either of

the party about the functioning of the meter, cannot be

overlooked. Sub section (6) has been amended and the

legislature has introduced a conscious departure by deleting

the requirement of assessing the quantity of electricity

consumed for the entire period during which the Electrical

Inspector or the competent authority was of the opinion that

the meter had ceased to be correct. In our view, by

limiting the period for estimation to be made by the

Electrical Inspector by the amendment of sub-section (6) and

further providing that for the anterior period, in the

absence of fraud, the register of the meter shall be

conclusive proof of the supply of the electricity it is

quite evident that even if it transpires that the installed

meter ceased to be correct, then for the period anterior to

the statutory period for which the estimation is not to be

mae by the Electrical Inspector, the register of teh meter

about the consumption of the electricity supplied to the

consumer shall be binding between the parties by treating

such recording as conclusive proof of the consumption in the

absence of any fraud practised by the consumer. By the

amendment of sub-section (6) the Electrical Inspector has

been purposely obsolved from the duty to determine as to

from which point of time beyond the said statutory period,

the meter had cease to function so taht for such entire

entire period, the estimation of the supply of electricity

need not be made. Such amendment of sub-section (60, n our

view, only means that beyond the statutory period, in the

event of dispute between the parties as to the proper

functioning of the meter and otehr electrical apparatus, the

consumer has liability to pay the estimated amount indicated

by the Electrical Inspector limiting the estimate upto the

statutory period and not beyond that but for the other

anterior period the consumer is required to pay according to

the consumption of electricity registered in the disputed

meter provided there is no fraud practised by the consumer

because dispute of such anterior period remains unresolved

by the change introduced by the amendment.

Such legislative change by the amendment of sub-section

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6 of Section 26, in our view, has been introduced to set at

rest any dispute between the licensee and the consumer about

the actual consumption of the quantity of electricity by the

consumer where no fraud has been practised by the consumer

for all other period anterior to statory period for

estimation. There is good reason for such legislative

change because is may not be possible to precisely determine

exactly from which point of time the meter ceased to be

correct. The scheme under Electricity Act clearly reveals

that a correct meter is to be installed and such correct

meter is to be maintained by the licensee in the premises of

the consumer so that consumptionof electricity is computed

on the basis of reading in the meter. The scheme also

reveals that unilateral decision of either of the parties

about the correct status of the meter is not be accepted by

the other party if the other party raises objection as to

the status of the meter. Whenever both parties do not

accept a meter to be correct and the dispute is raised, such

dispute is got to be resolved by referring to a statutory

authority under Section 26(6), namely, the Electrical

Inspectr. Within the integrated scheme under Section 26 of

the Electricity Act, it is not possible that even though

dispute is raised about the mal functioning of the meter

such dispute will be treated as statutorily resolved for a

limited period in accordance with the amended sub-section

(6)of Section 26 but for other period anterior to the same,

the dispute will remain unresolved and claim of the licensee

be open to be challenged. Therefore, simply on the finding

that mere had ceased to be correct by the Electrical

Inspector on entering the reference a licensee may not be

justified in contending that a particular meter had ceased

to be correct from a particular point of time even though

the licensee, despite its statutory duty to maintain the

correct meter by repairing or rectifying the defective meter

and by replacing it if necessary has failed to take

appropriate step. Both Mr Sen and the learned Solicitor

General in their fairness, have submitted that beyond the

statutory period for which no estimation for the consumption

of electricity is to be made by the Electrical Inspector

attaching statutory finality to such estimation, although

the licensee is not precluded from raising revised claim for

other period anterior to the statutory period of estimation

but such claim will be open to be challenged by the

consumer. In our view, by the amendment of sub-section (6)

of Section 26, the Legistature has intended to put an end of

such contest between the licensee and the consumer and has

set at rest of any dispute relating to any period anterior

to the statutory period of estimation by providing that in a

casee of dispute as to functioning of meter, the reading in

the meter for the period beyond the period of statutory

estimation, will be final.

As in none of these appeals, there is any alloegation

that the concerned consumer had paractised fraud or had

tampered with the emter or other electrical appartus

provided for recording the supply of electricity to the

consumer, the consumer will be entitled to the statutory

protection of correctness of the recording of the

consumption or supply of electricity consumed in the

meter/check meter as conclusive proof of such amount of

quantity of electricity consumed for all the period anterior

to statutory period of estiation under SEction 26(6) of the

Act because admittedly there is dispute as to the proper

functioning of the meter and check meter installed at the

premises of the consumer.

In the result, Civil Appeal Nos. 2538 of 1985 and 1571

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of 1987 preferred by the Municipal Corporation of Greater

Bombay and Civil Appeal No. 1255 of 1986 are dismissed

without any order as to cost. Civil Appeal Nos. arising out

of S.l.P.Nos. 5262-64 of 1992 are allowed by setting aside

the common judgment dated February 19, 1992 passed by the

Allahabad High Court in three Writ Petitions, namely, Writ

Petition Nos. 10379 of 1988, 16723 of 1988 and 126325 of

1990 and also the interim order dated March 10, 1992 passed

in the Writ Petition No. nil field by the appellant M/s

Belwal Spinning Mills Ltd. in the Allahabad High Court on

March 9, 1992. As both the original meter and the check

meter installed by the u.P. State Electricity Board in the

premises of the appellant M/s Belwal Spinning Mills LTd.

were found to be defective by the Electrical Inspector the

appellant has the liability to pay for the estimated amount

as determined by the Electrical Inspector under Section

26(6) of the Electricity Act for the statutory period under

Section 26(6) but for the earlier period, the appellant has

the liability only to pay on the basis of reading in the

installed meter/check meter in view of the statutory

protection of conclusive proof of consumption of electricity

for such period on the basis of reading in the meter. The

respondent U.P. State Electricity Board will be precluded

from raising any demand contrary to the aforesaid liability

of the appellant and consequently will not be entitled to

disconnect the electricity in the premises of the appellant

for non-payment for the consumption of electricity for any

period earlier than the statutory period beyond the quantity

registered by the installed meter. It is, however, made

clear that it will be open for the U.P. State Electricity

Board to raise bills and demand payments for the period

subsequent to the statutory period and to take consequential

action for non pay ment of bills for such period on the

basis of correct reading in the meter or meters in the light

of the finding of the Electrical Inspector until any new

meter is installed. Civil Appeal arising from SLP Nos 5262-

64 of 1992 are accordingly disposed of without any order as

to costs.

Before we part, we may indicate that although the

licensee has the obligation to keep the installed meter and

other electrical apparatus in proper condition by resorting

to regular checking and testing, repairing etc. but the

feasibility of constant checking, repairing etc. of large

number of consumers in the present day set up may not be a

practical proposition. In the teeth of sub-section (6) of

Section 26 as amended, it is quite likely that in many

cases, the licensee may suffer serious prejudice in not

being able to realise from the consumers the revenue for the

electricity consumed where even though no fraud was

practised by the consumer, the defect in the meter escaped

attention of the employees of the licensee either for

genuine reasons or in a designed manner thereby bringing an

unfortunate situation when the licensee can recover the

estimated amount determined by the Electrical Inspector in a

disputed case limited only to the statutory period but

confining the revenue for the entire anterior period, which

may go for years, only on the basis of reading in the

defective meter. Since after amendment of Section 26(6) of

the Electricity Act, the position in law is such, we feel

that the proper ligislative amendmnt is desirable so as to

protect the large number of licensees including the

Electricity Boards from suffering huge loss of revenus.