JUDGMENT G.P. Mathur, J.
1. This petition under Article 226 of the Constitution of India has been filed praying that the auction notice (Annexure-4 to the writ petition) be quashed and a writ of mandamus be issued directing the respondents to issue correct bills as per compromise decree and to restore the supply of electricity to the petitioner. The parties have exchanged their affidavits and with their consent. the writ petition is being disposed of finally at the admission stage.
2. The relevant facts which are necessary for the decision of the writ petition and which emerge out of the affidavits filed by the parties are as follows :
(1) The petitioner No. 1 is a Polyclinic/Nursing Home at Garh Road. Meerut, An electricity connection of 55 K.V. was released to the petitioners and a meter was installed on 20.7.1988. In the sealing certificate, the C.T. ratio was mentioned as 100/5 and the multiplying factor (M.F.) was shown as '1'.
(2) The petitioner's premises were checked on 10.6.1992 by the staff of U, P. State Electricity Board (for short U.P.S.E.B.) who suspected that the meter was running slow an Nursing Home had six air-conditioners. it was proposed that a check meter be installed. A check report was prepared which was also signed by the petitioners' representative, copy filed as Annexure-C.A. 1 to the counter-affidavit.
(3) The entire metering equipments were checked by meter department on 17.6.1992 in presence of petitioner No. 2. it was then revealed that C.T. installed therein was of the ratio of 200/5 and, therefore, the M.F. was '2' and not T as noted in the sealing certificate. The checking report was prepared which was signed by the representative of the petitioner (petitioner No. 2) and a copy of the same has been filed as Annexure-C.A. 2 to the counter-affidavit. It was mentioned in the report that as the correct M.F. was '2', the consumer had paid only half of the charges of the electricity consumed by him.
(4) In accordance with the checking report, a bill for the balance amount from the date of connection, i.e., 20.7.1988 to the date of checking, i.e., 17.6.1992 amounting to Rs. 1.71,306.18 dated 6.7.1992 was sent to the petitioners (Annexure-C.A. 3 to the counter-affidavit).
(5) The petitioners did not pay the amount but filed a suit being O.S. No. 762 of 1992 in the Court of Civil Judge, Meerut on 3.8.1992 praying that a decree of permanent injunction be passed against the U.P.S.E.B. and others retraining them from recovering the amount of Rs. 1.71.306.13 or from disconnecting the petitioners electricity connection. The learned Addl. Civil Judge passed an ex parte injunction order on 3.8.1992 restraining the U.P.S.E.B. from disconnecting the petitioners supply on the ground of non-payment of the aforesaid bill dated 6.7.1992.
(6) After 17.6.1992, U.P.S.E.B. issued electricity bills to the petitioners on the basis that the M.F. was '2'.
(7) On 25.11.1993, the S.D.O. of U.P.S.E.B. reported that the existing meter had jammed and, therefore, the reading of consumption of electricity was not available.
(8) On 8.12,1993 another meter bearing No. 2043543 was installed. The meter bearing No. 001009 which had been initially installed on 20.7.1988 was not removed on account of pendency of the civil suit.
(9) On 13.5.1994 a surprise checking was made, then it was found that there was a small hole on the body of second meter installed on 8.12.1993. A wire could be inserted in the meter through the hole without disturbing the meter box or existing lock or seals. A check report was prepared which was also signed by the representative of the consumer (copy filed as Annexure-C.A. 6 to the counter-affidavit). The supply of the petitioners was disconnected.
(10) The petitioners moved an application in the civil suit alleging that inspite of injunction order dated 3.8.1992, their supply had been disconnected. The learned Civil Judge passed an injunction order on 13.5.1994 directing the U.P.S.E.B. and others (defendants in the suit} to restore the electricity supply of the petitioners.
(11) On 16.5.1994, a compromise was filed in the civil suit and a prayer was made that the same be decided in terms of the compromise. The suit was decreed in terms of the compromise on the same day and the electricity supply was also restored.
(12) An affidavit was filed by the representative of the petitioners on 22.9.1994 before the Superintending Engineer of U.P.S.E.B. stating that a sum of Rs. 1,10,000 had been deposited in terms of the compromise. It was further prayed that the meter produced by him may be installed in the premises.
(13) On 11.10.1994 the meter supplied by the petitioners was installed.
(14) On 21.11.1994 the Executive Engineer gave a report that the meter supplied by the petitioners and installed on 11.10.1994 appeared to be running slow. It was suspected that the same was not running properly (copy of which is filed as Annexure-C.A. 11 to the counter-affidavit).
(15) On 18.1.1995 a check meter was installed and sealing certificate was signed by a representative of the petitioners besides the officers of U.P.S.E.B. (copy filed as Annexure-C.A. 12 to the counter-affidavit).
(16) On 27.4.1995 the readings from the original meter installed on 1 1.10.1994 and check meter were compared. It was found that the original meter was running slow by 41.45 per cent. On the same day, the aforesaid meter was removed and the check meter was left at the site in a properly installed and sealed condition. A report was prepared which was also signed by the representative of the petitioner (copy attached as Annexure-C.A. 13 to the counter-affidavit).
(17) The revised bills were issued on the basis of average consumption of 152.08 units per day as revealed by the check meter, for the period August, 1993 to January, 1995. This was apparently done as the readings taken from the meter installed on 8.12.1993. in which a hole was detected was ignored and the last available reading of the first meter was that of 26.8.1993.
(18) In December. 1995 the check meter was found to be not working.
(19) On 4.12.1995 a new meter was installed and bills subsequent to December, 1995 were issued on its basis.
(20) The electricity supply was disconnected on 27.3.1996 on account of" non-payment of dues.
(21) According to U.P.S.E.B. after April, 1992 the petitioners have not paid anything except Rs. 55,000 on 17.5.1994 and again Rs. 55,000 on 4.7.1994 which was a term of the compromise. The demand of U.P.S.E.B. is for Rs. 13,358 which was sought to be recovered as arrears of land revenue. The petitioners have sought quashing of the notice issued by the Addl. Collector, Meerut to recover the aforesaid amount by auction sale of their property (Annexure-4 to the writ petition).
3. Sri Ashok Khare, learned counsel for the petitioners has submitted that the U.P.S.E.B. has no authority to issue bill dated 6.7.1992 for Rs. 1.71,306 as the dispute had neither been referred nor it had been decided by the Electrical Inspector as contemplated by Section 26(6) of Indian Electricity Act (hereinafter referred to as the Act). Sri Sudhir Agarwal, learned counsel for U.P.S.E.B. has, on the other hand, contended that the aforesaid provision will be attracted only if there is a dispute regarding correctness of the meter and not otherwise. He has urged that in the present case the correctness of the first meter installed on 20.7.1988 (bearing No. 001009) was not at all involved and there was only a mistake in calculation on account of wrongly noting the M.F. as T though in fact it was '2'. A supplementary counter-affidavit has been filed on behalf of the respondents wherein it is stated that the meters installed at the premises of the consumers taking a heavy load is different from the meters installed at the premises of domestic consumers. Such meters depend upon the supply voltage and connected load and are normally of following three types :
(i) H.T., C.T. connected meter (external C.T.) :
(ii) H.T., P.T., C.T. meter: and
(iii) H.T., C.T. meter.
In the present case, the meter was of (i) category mentioned above. The entire current being consumed by the consumer does not pass through the meter and it records a lesser consumption. This is for the reason that the meter cannot take the whole load. The reading recorded by the meter has to be multiplied by the Multiplying Factor (M.F.) which will give the correct consumption. The M.F. is determined on the basis of Current Transformer (C.T.) and several other factors. The petitioners have filed a supplementary rejoinder-affidavit on 10.9.1997 wherein it is stated that it would be wrong to suggest that C.T. and P.T. are not part of the electricity meter. It is asserted that all the metering equipments including the numerical meter, C.T. and P.T, and the wire connecting the same are Jointly called as electricity meter and defect in any part thereof is known as a defect in meter. On the basis of material available on the record, it is difficult to hold that the entire metering equipments including the numerical panel, meter. C.T. and P.T, and the wire connecting the same can be jointly called as electricity meter. The word meter has not been defined in the Act and, therefore, it should be given the same meaning as it is understood in common parlance. The dictionary meaning of the word is an instrument for measuring and recording the amount of flow of something. If an equipment is used to allow only a part of supply to pass through a meter, the said equipment will not become a meter though it may be a metering equipment in a larger sense. In the present case, the correct C.T, ratio was 200/5 but a clerical error was committed in sealing certificate when the first meter was installed-on 20.7.1988 and it was noted as 100/5. Due to the aforesaid mistake, the M.F. was noted as T though in fact it was '2'. Therefore, it was not at all a case of defect in meter but was a case of clerical mistake which had been committed while noting down the relevant data which was necessary to find out the actual consumption of electricity after noting the readings in the meter. Since the correctness or otherwise of the meter was not involved, the provision of Section 26(6) of the Act can have no application.
4. Sri Ashok Khare has next contended that the dispute between the parties had been settled by the compromise dated 16.5.1994 in O.S. No. 762 of 1992 and the U.P.S.E.B. being bound by the compromise decree, it could not raise a demand in excess of the amount determined in terms of the decree and, therefore, the demand made from the petitioners is liable to be quashed.
5. Sri Sudhir Agarwal, learned counsel for the contesting respondents. has urged that the compromise entered into by the parties on 16.5.1994 contained the following terms :
(i) The petitioners had given a post-dated cheque for Rs. 55,000 bearing dated 17.5-1994 to U.P.S.E.B. on 15.5.1994:
(ii) The petitioners would pay cash amount of Rs. 55.000 on 17.5.1994 and then the post-dated cheque would be returned to them.
(iii) The petitioners would purchase a meter as suggested by the Electricity Department or the Electrical Inspector.
(iv) The meter would be tested in presence of representatives of (a) Electricity Department : (b) Electrical Inspector ; and (c) plaintiffs (petitioners) in the Sri Ram Laboratory or N.P.L. Laboratory and the testing report would be signed by the representatives of all three aforementioned parties.
(v) After testing, the meter would be installed in presence of the representatives of the plaintiffs and defendants.
(vi) An average of readings of the first six months would be taken and on the basis thereof the plaintiffs would pay the entire balance amount of the earlier period. In future the plaintiffs will pay in accordance with the reading shown by the meter.
(vii) C.T. of the earlier meter would be removed !n presence of representatives of all three aforementioned parties and would be got tested in anyone of the Laboratories enumerated in condition No. (iv).
(viii) The electricity supply will be resumed with effect from the date, i.e., 16.5.1994.
6. Sri Agarwal has contended that the petitioners did not comply with the terms of the compromise inasmuch as the meter was brought by them was not of the type indicated by the Electricity Department or the Electrical Inspector nor the same was got tested in Sri Ram Laboratory or N.P.L. Laboratory. On the contrary, the petitioners moved an affidavit before the Superintendenting Engineer (Annexure-C.A. 9 to the counter-affidavit) on 22.9.1994 for installing the meter purchased by them. It has been further urged that though the compromise decree was passed on 16.5.1994 but the petitioners supplied the meter after several months and it was installed on 11.10.1994 when the normal period of running the airconditioners was over and the consumption of electricity decreased.
7. We have given our careful consideration to the submissions made by the learned counsel for the parties. In our opinion, the question whether the bill raised by the U.P.S.E.B. Is in accordance with the compromise decree or not cannot be gone into in the present writ petition. Article 226 of the Constitution is not meant for enforcing or giving effect to a decree passed by the civil court. In para 18 of the writ petition. It is mentioned that the petitioners have filed an execution application which bears Execution Case No. 70 of 1997 and in the said case, the executing court had issued notice to the defendants (U.P.S.E.B. and others) inviting objections. Since the petitioners have already moved an execution application, they can pursue their remedy in the aforesaid proceedings. The contention raised by the learned counsel for U.P.S.E.B. that the petitioners did not comply with the terms of the compromise decree can also not . be adjudicated upon in the present proceedings as it may require taking of evidence. They may take such objection as they consider proper before the executing court. Sri Ashok Khare has urged that merely because the petitioners have moved an execution application should not act as a bar to the present petition and in support of his submission, he has placed reliance on Dr. (Smt.) Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, AIR 1987 SC 2186 ; Dr. Bal Krishan Aggarwal v. State of V. P., 1995 (1) SCC 614 ; Capt, Dushyant Somal v. Smt. Sushma Somal, AIR 1981 SC 1026 and A. V, Venkateshwaran v. Ramchandra Sobhraj Wadhwani, AIR 1961 SC 1506. The authorities cited lay down that alternative remedy is not an absolute bar for entertaining a writ petition under Article 226 of the Constitution. In the present case, the petitioners contend that the demand raised by the U.P.S.E.B. is not in accordance with the compromise decree..They had filed an execution application prior to filing of the writ petition and in the said execution case, the Court had issued notice to the defendants (U.P.S.E.B. and others). According to U.P.S.E.B., the terms of the compromise decree have not been complied with and the controversy raised involves disputed questions of fact which cannot decide in a writ petition. The proper forum for decision of the controversy raised is the executing court where the parties will be in a position to adduce evidence in support of their respective contentions. It is, therefore, not possible to give any relief to the. petitioners with regard to the demand raised by U.P.S.E.B. upto the period when the compromise decree was passed, i.e., 16.5.1994 in the present petition.
8. The facts mentioned earlier would show that in all five meters were installed at the premises of the petitioners on different dated, i.e., 20.7.1988, 8.12.1993, 11.10.1994, 18.1.1995 and 4.12.1995. The first meter was found to be jammed on 25.11.1993, then the second meter was installed on 8.12.1993 in which a hole was detected on 13.5.1994 and the supply was disconnected. A check meter (fourth meter) was installed on 18,1,1995 which showed that the third meter supplied by the petitioner and installed on 11.10.1994 was running 41.45 per cent slow and when this meter was found to be not working, the fifth meter was installed on 4.12.1995. The bills were issued for the period August, 1993 to January, 1995 on the basis of average consumption of 152.08 units per day as shown by the readings of the check meter. Sri Ashok Khare has submitted that in view of Section 26(6) of the Act, the bills for such period could not be issued as there was no determination of dispute by Electrical Inspector and even if such a dispute was decided by him, he could not estimate the amount of energy supplied for a period beyond six months. In support of this submission, the learned counsel has placed reliance on Belwal Spinning Mills Lid, u. U.P.S.E.B.. JT 1997 (6) SC 277. Sri Agarwal has submitted that Section 26(6) has no application where it is found that a fraud has been played and the meter has been tampered with. He has drawn the attention of the Court towards the checking report dated 13.5.1994 (Annexure-C.A. 6 to the counter-affidavit) which was also signed by the representatives of the petitioner. A hole was found on the meter body through which a wire of about 1 mm, diameter could be passed without disturbing any existing lock and seals and it was not easily visible as mentioned in the letter of Assistant Engineer of the Electrical Laboratory (Annexure-C.A, 10 to the counter-affidavit). By placing a wire, the rotation of the metering plate could be obstructed. This clearly showed that the meter had been tampered with. Regulation 2 (s) of the Electricity Supply (Consumers) Regulations, 1984 defines "theft of energy" and it means pilferage of energy with or without the aid of any device including the consumption of energy which is not metered and any conduct preventmg the correct recording by the meter of the consumption of electricity and also includes the installations having taken or tampered meter body seals. Regulation 22 (B) permits disconnection of the supply without notice where there is evidence that there has been a theft of energy and the supplier is also entitled to estimate the value of the electrical energy so abstracted or consumed as per guidelines given in Annexure-1 to the Regulations. It will be wholly illogical to apply Section 26(6) to such a case as in the event of non-detection of theft, the period of limitation will come to the aid of a guilty person and will prevent the licensee to recover its legitimate dues. The following observation in para 50 of the judgment in Belwal's case (supra) support this view :
"50. As in none of these appeals, there is any allegation that the concerned consumer had practised fraud or had tampered with the meter or other electrical apparatus 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 ..... ".
We are, therefore, clearly of the opinion that Section 26(6) can have no application where an attempt has been made to tamper with the meter so that it may not record the consumption of electricity in a correct manner.
9. In the compromise, it was agreed that C.T. of the meter installed at the premises of the petitioners would be examined by Electrical Inspector. According to the contesting respondents, the petitioners did not deposit the requisite fee and, therefore, the same was, not done. Annexure-C.A. 17 is a letter sent by the office of Electrical Inspector, Lucknow intimating that as the examination fee had not been deposited, the case of M/s. Panchsheel Nursing Home for examination of C.T. and meter had been closed. This shows that the petitioners themselves did not pursue the matter with the Electrical Inspector regarding the correctness of C.T. connected with the meter installed on 20.7.1988.
10. Shri Khare has lastly urged that it was not open to the U.P.S.E.B. to raise a demand on the ground that the check meter installed on 18.1.1995 showed that the meter supplied by the petitioners and installed on 11.10.1994 was running 41.45 per cent slow as such a claim can only be made on the basis of a decision by the Electrical Inspector in accordance with Section 26(6) of the Act. it may be pointed out that the petitioners never raised any dispute before the Electrical Inspector to the effect that the check meter was defective or that the same was running faster. Unless a dispute is raised by the petitioners and the matter is referred to the Electrical Inspector, they cannot take advantage of Section 26(6) of the Act. The power of Electricity Department to install a check meter and raise bills on its basis has been recognised in Belwal's case (supra) which will be evident from the following observations made in paras 37 and 38 of the report:
"37. .....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 other 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 .supply lines, meters, fittings and apparatus for the supply of energy belonging to the licensee. The licensee, therefore, can not only enter the premises of the consumer for inspecting, testing etc, but the licensee also can alter the meter whenever such alteration 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 functions 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 subsection (1) and sub-section (2) of Section 26. The power of removing the meter under Section 20, however is circumscribed by the proviso to subsection (4) of Section 26 only when the dispute as to the functioning of the meter has been referred to the 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.
38. Check meter is usually installed for the purpose of checking and ascertaining the proper functioning of the 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 meter is also independent of existence of any dispute between the consumer and the licensee."
In view of this authoritative pronouncement by the Apex Court, the U.P.S.E.B. has the absolute right to install a check meter to ensure that the quantum of electricity supplied to a consumer is correctly recorded and this check meter will be treated as an altered meter in place of the originally installed matter. The bills can be issued on the basis of readings in the check meter. If the petitioners disputed the correctness of the check meter, they should have made an application to the Electrical Inspector for deciding the dispute. They having not done so, it is not open to them to agitate in this Court that the readings of the check meter cannot be taken into consideration for measuring the quantity of electrical energy supplied to them.
11. In view of the passing of the decree in the civil suit, one composite demand notice for the whole period is not proper as the nature of controversy raised for the period upto 16.5.1994 and subsequent thereto is entirely different.
12. The demand notice for Rs. 13,57,358 and the auction notice for 7.4.1997 (Annexure-4 to the writ petition) are quashed. The respondent Nos. 3 and 4 are directed to prepare bills afresh, one for the period upto the date of passing of the compromise decree, i.e., upto 16.5.1994 and another for the subsequent period. If the petitioners dispute the correctness of the demand raised for the first period, they may approach the executing court for redress of their grievance. If the stand of the contesting respondents is that the terms of the compromise decree have not been complied with, the said question shall also be gone into by the executing court. The bill for the period subsequent to 16.5.1994 shall be prepared in accordance with the rules.
13. The writ petition is disposed of finally in the manner indicated above. No costs.