An industrial unit of the petitioner company is provided with an electric connection with Consumer No.VCH 4600. An inspection was conducted at the premises of the petitioner on 04.05.2000, for which Ext.P1 mahazar was prepared. During the inspection it was detected that the Energy Meter does not have a terminal cover. When tested providing load on each of the phase of the Energy Meter, it was found that the B phase of the Meter is running on the reverse direction. It is mentioned in Ext.P1 that the connection to the Meter was rectified on that day itself. Pursuant to the inspection Ext.P2 letter was issued by the 3rd respondent raising three specific allegations. One is regarding a wrong calculation of the multiplication factor. Another is regarding usage of unauthorised additional load to the extent of 14KW. Third one is regarding recording of W.P.(c) No. 14278/2010 -2- consumption in the B phase of the Meter in the reverse direction. Separate amounts were demanded for the 3 distinct defects noted. The petitioner filed appeal against Ext.P2 before the 2nd respondent. The appeal petition was disposed of through Ext.P5, finding that there was an irregularity with respect to the multiplication factor adopted and that the Board has got right to realise the charges from the consumer. With respect to non-recording of consumption in one of the phases of the Energy Meter, it is noted that the defect was reckoned from 1/98 onwards, because there was a fall in the recorded consumption. Ext.P5 order was challenged by the petitioner in a writ petition filed before this court. Considering the disputes raised by the petitioner and also considering the dictum contained in various decisions with respect to Section 26(6) of the Indian Electricity Act, 1910, the impugned order was set aside and the matter was remanded to the 2nd respondent for reconsideration and fresh decision. Ext.P7 is the consequential order issued. The appellate authority W.P.(c) No. 14278/2010 -3- had refused to interfere with the impugned bill. It is challenging Ext.P7 order passed by the appellate authority and Ext.P8 consequential demand issued, this writ petition is filed.
2. Eventhough the petitioner had also disputed correctness of the impugned demand with respect to the unauthorised additional load of 14KW, learned counsel for the petitioner conceded that the said dispute is not being perused in view of subsequent Board Orders issued clarifying the position. The ground on which the impugned penalty is challenged is now limited only with respect to the amount imposed based on the allegation that one of the phases of the Meter was running in the reverse direction from 1/98 onwards.
3. Main contention of the petitioner is that, with respect to the findings regarding reverse running of 'B- phase' in the Energy Meter, the petitioner had raised a dispute that it is coming within the purview of Section 26 (6). Therefore the demand made is unsustainable, unless W.P.(c) No. 14278/2010 -4- the quantification is done by the Electrical Inspector as required under Section 26(6). In this regard it is pertinent to note the provisions contained in section 26 of the Electricity Act 1910. Section 26(1) provides that the amount of energy supplied to a 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 petitioner, cause the consumer to be supplied with such meter. Sub Section 6 of Section 26 provides that 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 such Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the Meter shall not, in the opinion of the Inspector, have not been correct. According to learned counsel, since the question regarding accuracy of the Meter was in dispute, the respondents W.P.(c) No. 14278/2010 -5- ought to have referred the matter for ascertainment by the Electrical Inspector. He placed reliance on the decisions of the hon'ble Supreme Court in Bombay Electricity Supply & Transport Undertaking V. Laffans (India) (P) LTD. and Another (2005 (4) SCC 327) and Belwal Spinning Mills Ltd. and others V. U.P. State Electricity Board and Another (1997 (6) SCC 740) and also in Madhya Pradesh Electricity Board and Others V.
Smt.Basantibai (1998 (1) SCC 23). The dictum contained in all these cases, on a broad spectrum, can be summarised as, whenever a dispute arises as to whether any Meter referred in Sub Section (1) of Section 26 is or is not correct or it is inherently defective or faulty not recording the electricity consumption correctly, it has to be decided by the Electrical Inspector. If the Electrical Inspector comes to the findings that the Meter was faulty and due to some defect it was not registering the actual consumption of energy, then he will estimate the amount of energy consumed and fix the amount to be paid in respect W.P.(c) No. 14278/2010 -6- of such energy consumed, for a period not exceeding six months.
4. In Bombay Electricity Supply's case (supra) it is held by the hon'ble apex Court that, Section 26(6) will apply only when the Meter is not correct, which happens when the Meter runs slow or fast, as a result of which it does not record correct reading. But where the Meter is burnt or became completely non-functional, Section 26(6) is inapplicable, because it does not record any supply of energy.
5. A Division Bench of this court had occasion to consider the above issue relying on the dictum contained in Bombay Electricity Supply's Case (supra) and in Nirmala Metal Industries V. K.S.E.B. (2006 (3) KLT
465). It is held therein that, once the Meter installed is found to be defective, a duty is cast upon the Board to install a correct Meter and to get the defective Meter tested by the Electrical Inspector under Section 26(6). The Electrical Inspector has to estimate the amount of electrical W.P.(c) No. 14278/2010 -7- energy supplied. But it is held that, the situation is different in a case where it is noticed that the consumer had tampered with the Meter. In such a situation, it is not a case of defective Meter, but is a case of a tampered Meter warranting no interference by the Electrical Inspector.
6. On the facts of the case at hand as noticed above, the Inspection Mahazar would indicate reverse running of the disc of the energy meter in 'B-phase'. It is further mentioned that the defect was rectified at the spot itself by giving proper connection. In Ext.P5 proceedings of the appellate authority it is mentioned that the Board authorities have given statement to the effect that the defect has been rectified on the same day itself. Therefore it is evident that the defect was not in the functioning of the Meter. In other words, the Meter has not became faulty or defective in not recording the accurate consumption. But on the other hand, the connection was provided in a wrong manner which had caused the reverse running of one of the phases of the Meter. In a Division Bench decision of this W.P.(c) No. 14278/2010 -8- court in Southern India Marine Products Co. V. K.S.E.B. (1995 (2) KLT 167) it is held that, when the Meter could not register the amount of energy supplied due to the fact that the wiring given to the Meter was not properly made, there is no question of any dispute as to correctness of the Meter. But it is only due to the wrong connection of the Meter which had resulted in the Meter not registering the exact quantity supplied to the consumer. Only if such question actually arises for consideration, there is an obligation on the part of the Board to refer the dispute. It is not the intention of the legislature to refer all the disputes, the moment when the Meter was not recording properly. So long as there is no defect in the Meter itself, no question arises as to whether the meter is correct or not. Therefore there is no scope for invoking section 26(6) as to decide whether the meter is correct or not. The above view was subsequently followed by another Division Bench of this court in KSEB V. Anappuram Rubber Products (P) Ltd. (2012 (1) KLT SN 147 (Case W.P.(c) No. 14278/2010 -9- No.138). In the said case the meter on inspection was found to be remaining intact. But when tested by applying load on each of the 3 phases the meter was found to be working in order. The irregularity or manipulation only in respect the reverse connection to one of the phases of the meter which led the disc in that phase of the meter rotating in the reverse direction. This court held that the Electrical inspectorate has no role when the meter is found defective and not when meter is perfectly in order and recording happened to be in reverse direction only because of the connection given in a wrong direction.
7. Recently a Division Bench of this court in WA No.912/2010 (judgment dated 07-02-2014) had considered the matter elaborately. In the said decision also one of the phases of the meter installed in the appellant's premises was running in the reverse direction. This court considered the principal enunciated in Bombay Electricity Supply case as well as Nirmala Metal Industries case (cited supra) and observed that, no doubt it is true that if there is W.P.(c) No. 14278/2010 -10- a dispute regarding accuracy of the meter the competent authority to resolve the dispute is the Electrical Inspector under Section 26 (6). This is a mandatory necessity where the meter is found to be defective, has been upheld by the apex court. But when the reading of the meter was not the actual consumption, not on account of any defect in the meter, but on account of the fact that the electric connection to one of the phases of the meter was given in the reverse condition, there was no defect in the meter and the meter was not reading accurate consumption not on account of any defect. In such case the meter cannot be said to be faulty and Section 26 (6) will not apply in such case. Following the decisions in Southern India Marine Products Company's case and Anappuram Rubber Product's case (cited supra) this court held that the meter was not defect in order to attract Section 26 (6).
8. On the facts of the case at hand as already enumerated the above the meter itself was not defective and the defect was in the connection which was rectified on W.P.(c) No. 14278/2010 -11- the date of connection itself. Going by the wordings contained in Section 26 (6) as interpreted by this court in the latest Division Bench decision, the meter in such case cannot be considered as not correct and an examination by the Electrical Inspector is not warranted. There is no question of estimation of amount of energy supplied during such time the meter was remaining is not correct. On the other hand since the meter was recording consumption in two other phases the estimation of the energy which escaped recording is easily ascertainable. Therefore the demand made with respect to escaped assessment depending on the recorded consumption in the two phases which was recording actual consumption, cannot be termed as unreasonable or unjustifiable.
9. Learned counsel for the petitioner further raised a contention that the period of assessment from 1/98 onwards is unsustainable in view of Regulation 31 (c) of Conditions of Supply of Electrical Energy read with conjunction with Section 26 (6) of the Indian Electricity Act, 1910. But on a W.P.(c) No. 14278/2010 -12- reading provisions contained in Regulation 31 (c) it is evident that the procedure dealt with is only with respect to assessment to be made in a case where the meter installed is faulty and correct quantity of energy is not ascertainable. But in the case at hand the meter was not faulty and the correct quantity escaped recording is ascertainable from the pattern of consumption the authorities have categorically found that the shortfall happened from 1/98 onwards. Therefore allowing the amount from the said date onwards is sustainable.
In the result, none of the contentions raised in the writ petition deserves merit. Hence the writ petition is accordingly dismissed.
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C.K. ABDUL REHIM JUDGE Pn/AMG True copy P.A. to Judge