1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant herein – original plaintiff to quash and set aside the impugned Judgement and Order passed by the learned appellate court - learned Extra Assistant Judge, Mehsana in Regular Civil Appeal No. 51 of 1986 dtd.13/6/1988, by which the learned appellate court has allowed the said appeal preferred by the respondent herein – original defendant and has quashed and set aside the judgement and decree passed by the learned Civil Judge (J.D.), Kadi in Regular Civil Suit No.79 of 1985 dtd.10/10/1985, by which the learned trial court has decreed the said suit preferred by the appellant herein – original plaintiff and has quashed and set aside the Supplementary Bill of Rs.3271/- issued by the respondent No.1 – Gujarat Vidyut Board.
2.00. Facts leading to the present Second Appeal, in nutshell, are as under :-
2.01. One Mr.Keshavlal Amrutlal Rathod, was the consumer of the respondent Board. It appears that the meter installed by the respondent Board was burnt and thereafter the consumer informed the respondent Board with respect to burning the meter and the respondent Board changed the meter and issued supplementary bill on the basis of average consumption as per Condition No.20(C)(vii) of the Conditions of Supply of Electrical Energy for an amount of Rs.3271/-. That the original plaintiff challenged the said supplementary bill by filing Regular Civil Suit No. 79 of 1985 in the court of learned Civil Judge (J.D.), Kadi, contending inter-alia that despite the fact that the meter was burnt it was recording the consumption. It was also the case on behalf of the original plaintiff that as such the defendant has not established and proved that the meter was running slow. Therefore, it was the case on behalf of the plaintiff that unless and until it is established that the meter was running slow by sending the meter to the electrical inspector as required under section 26 of the Electricity Act, the respondent Board could not have issued supplementary bill.
2.02. The said suit was resisted by the defendant – respondent Board by filing Written Statement at Ex.12. It was the specific case on behalf of the defendant - respondent Board that the meter was not recording the consumption as the meter was burnt and therefore as per Condition No.20(C)(vii) of the Conditions of Supply of Electrical Energy, supplementary bill of Rs.3271/- for average bill came to be issued. Therefore, it was submitted that as such supplementary bill was just and proper and in consonance with the Conditions of Supply of Electrical Energy.
2.03. That the learned trial court framed the issues at Ex.13. That both the parties led evidence and the learned trial court decreed the suit and held that the supplementary bill is illegal as the defendant – respondent Board failed to prove that the meter was sunning slow and unless there was a report from the Electrical Inspector, the respondent Board could not have issued the supplementary bill and consequently the learned trial court decreed the suit and quashed and set aside the supplementary bill by declaring the supplementary bill as illegal.
2.04. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Civil Judge (J.D.), Kadi, in Regular Civil Suit No.79 of 1985 dtd.10/10/1985 in decreeing the suit, respondent Board – original defendant preferred Regular Civil Appeal No. 51 of 1985. That the learned appellate court considered the fact that even the suit filed by the plaintiff was not maintainable as the day on which the suit was filed, consumer – Keshavlal Amrutlal Rathod had expired and the suit was filed by Nikulbhai Keshavlal as administrator of said Keshavlal Amrutlal Rathod – consumer. The learned appellate court also held that despite the fact that the original consumer - Keshavlal Amrutlal Rathod had expired, the respondent Board was not informed and even the Court was also not informed. Under the circumstances, the learned appellate court allowed the said appeal by quashing and setting aside the judgement and decree passed by the learned trial court decreeing the suit. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned appellate court - learned Extra Assistant Judge Mehsana in Regular Civil Appeal No.51 of 1986 dtd.13/6/1988, appellant herein – original plaintiff has preferred the present Second Appeal under section 100 of the Code of Civil Procedure.
2.05. At the outset, it is required to be noted that the present Second Appeal came to be admitted for determination of the following substantial question of law :-
(1)Whether the the respondent can issue supplementary bill before the dispute as to whether the meter is correct or faulty is decided by the Electrical Inspector under section 26 of the Electricity Act?
Therefore, this court is required to consider the aforesaid substantial question of law only in the present Second Appeal.
3.00. Mr.Suresh M. Shah, learned advocate appearing on behalf of appellant, relying upon the decision of the Hon'ble Supreme Court in the case of M.P.E.B. And others Versus Smt. Basantibai, reported in AIR 1988 S.C. 71, has vehemently submitted that unless and until it was established by the respondent Board that in fact, the meter was incorrect or faulty and/or that the meter was running slow, by sending the meter to the Electrical Inspector, as required under section 26 of the Electricity Act, the respondent Board could not have issued supplementary bill. In support of the above submission, Mr.Shah, learned advocate appearing on behalf of the appellant has also relied upon the unreported decision of this Court rendered in the case of Electricity Board Versus Bharat Ice Factory in Second Appeal No.437 of 1973 dtd.15/12/1977, taking similar view.
3.01. Mr.Suresh M. Shah, learned advocate appearing on behalf of the appellant has vehemently submitted that as it was the respondent Board who issued supplementary bill on the ground that the meter was running slow, it was for the respondent Board to prove it by sending the meter to the Electrical Inspector as required under section 26 of the Electricity Act and in the present case as the before issuing supplementary bill the meter was not sent to the Electrical Inspector as required under section 26 of the Electricity Act, the learned trial court has rightly quashed and set aside the supplementary bill which ought not to have quashed and set aside by the learned appellate court.
By making above submissions and relying upon above decision, it is requested to allow the present Second Appeal.
4.00. Present Second Appeal is opposed by Mr.M.D. Pandya, learned advocate appearing on behalf of the respondent – Board – original defendant. It is submitted that as such, it was not the case on behalf of the defendant - respondent Board that the meter was faulty and therefore, it was running slow and was not recording the correct consumption. It is submitted that as such the meter was burnt and not recording the electricity consumption and therefore, there was no question of sending the meter to the Electrical Inspector by the respondent Board as provided under section 26 of the Act.
4.01. Mr.Pandya, learned advocate appearing on behalf of the appellant has further submitted that the aforesaid question is not res-integra in view of the decision of the learned Single Judge of this Court in the case of Gitar Laboratories Versus Ahmedabad Electricity Co.Ltd., reported in 2001 (2) GLR 1478, confirmed by the Division Bench vide order dtd.4/9/2009 passed in Letters Patent Appeal No. 328 of 2001. It is submitted that as held by the learned Single Judge confirmed by the the Division Bench in the Letters Patent Appeal, when a supplementary bill was issued by the Electricity Board on the ground that the meter was burnt and was not recording the electric consumption, and a supplementary bill has been issued of average bill for last three billing period, section 26(6) of the Act would not applicable and such a dispute is not required to be sent to the Electrical Inspector. Therefore, it is requested to dismiss the present Second Appeal.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered and gone through the impugned Judgement and Order passed by the learned appellate court as well as learned trial court decreeing the suit. This Court has also gone through the Record and Proceedings received from the learned trial court.
5.01. It appears that the supplementary bill of average bill for last three billing period was issued by the respondent Board as per Condition No.20(C)(vii) of the Conditions of Supply of Electrical Energy for an amount of Rs.3271/- on the ground that the meter was burnt and was not recording electric consumption and/or was not recording correct electric consumption. Therefore, it was never the case on behalf of the defendant - respondent Board that as the meter was faulty and was recording incorrect consumption and therefore, what is required to be considered is whether the meter was required to be sent to the Electrical Inspector?
5.02. Identical question came to be considered by the learned Single Judge in the case of GITAR Laboratories (SUPRA) wherein the learned Single Judge of this Court has observed and held in para 12 as under :-
“12. Sub-section (6) of section 26 of the Electricity Act provides that where any difference or dispute arises as to whether any meter referred to in subsection (1) is or is not correct, the matter shall be decided , upon the application of either party, by an Electrical Inspector; and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the
electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector, have been correct; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity.
5.03. It is required to be noted that in the aforesaid decision, the learned Single Judge also considered decision of the Hon'ble Supreme Court in the case of Smt. Basantibai (Supra) which has been relied upon by the learned advocate appearing on behalf of the appellant. Under the circumstances, even the decision relied upon by the learned advocate appearing on behalf of the appellant in the case of Smt. Basantibai would not be of any assistance to the appellant. On the contrary, the said decision of the learned Single Judge in the case of Gitar Laboratories (supra) confirmed by the Division Bench squarely applies to the facts of the present case.
5.04. Even otherwise, it is required to be noted that when the plaintiff challenged the supplementary bill by submitting that despite the fact that the meter was burnt, it was recording correct consumption, it was the duty of the plaintiff to request the respondent Board to send the meter to the Electrical Inspector, which the plaintiff did not do. Be that it may. Considering the aforesaid decision of the learned Single Judge in the case of Gitar Laboratories (supra) confirmed by the Division Bench of this Court and considering Condition No.20(C) (vii) of the Conditions of Supply of Electrical Energy, when supplementary bill was issued on the basis of average consumption over the preceding three billing period, the learned trial court was not justified in decreeing the suit and quashing and setting aside the supplementary bill. Under the circumstances, the learned appellate court has not committed any error and/or illegality in quashing and setting aside the said judgement and decree.
6.00. In view of the above and for the reasons stated above, present Second Appeal fails and the same deserves to be dismissed and is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik