First Appeal No. 11 of 2002. Case: Maharashtra State Electricity Board, Thane Vs Ms. Hindustan Gas Industries Limited. High Court of Bombay (India)

Case NumberFirst Appeal No. 11 of 2002
CounselFor Appellant: Prashant Chavan Counsel a/w. Nirw Shah, Ravindra Chile i/b. Little and Co., Advs. and For Respondents: Vikram Sathaye and Akash Menon, Advocate i/b Khaitan and Co., Ranbir Singh a/w. Ranjit R. i/b. Malvi R. and Co., Advs.
JudgesA. P. Bhangale, J.
IssueElectricity Act (9 of 1910) - Section 26
CitationAIR 2013 Bom 183
Judgement DateSeptember 20, 2013
CourtHigh Court of Bombay (India)

Judgment:

1. The Special Civil Suit No. 510 of 1993 was filed by the M/s. Hindustan Gas and Industries Ltd - Respondent No.1 in the Court of Jt. C.J.S.D. at Kalyan. M/s. Praxiar India Ltd. the respondent No. 2 company which acquired rights from the Respondent No.1 lis pendente undertook in writing to abide by the result of the appeal. The appeal is against the judgment and order dated 08-03-1999 in Special Civil Suit No.760 of 1996 passed by the Learned Civil Judge Senior Division, Kalyan, District Thane, whereby the suit was decreed for to declare that letter bearing No. SA/Murbad/761 dated 30-04-1993 issued by the Maharashtra State Electricity Board (defendant referred hereinafter as 'Board') to the Plaintiff Company was illegal.

2. Facts briefly stated are:

The plaintiff company, a regular consumer of the Board having Trivector meter No. 3004153 of Simco make, was intimated by the Board on 30-03-1993 to pay towards slow operation of meter upon alleged test and assessment the plaintiff replied the letter from the Board, on 12-04-1993 disputing the assessment on the ground of unilateral decision without giving any opportunity of hearing to the plaintiff. The plaintiff had also applied to the Electrical Inspector by letter dated 12-04-1993 to stay the action of disconnection of power supply of the plaintiff Company. The dispute is still pending and undecided with the Electrical Inspector, Thane. The board by another letter dated 30-04-1993 again demanded the sum assessed by it and threatened to disconnect the electric supply, if payment is not made within 24 hours. The plaintiff company disputed the accuracy of the instruments used for alleged checking of the meter and challenged action threatened as illegal, without following procedure. The plaintiff Company filed suit with prayer for perpetual injunction to restrain disconnection of the electric supply and declaration that the action of the Board is illegal. The defendant had raised preliminary objection as to the jurisdiction of the Civil Court to entertain the suit on the ground that the Electrical Inspector was approached by the plaintiff prior to the filing of the suit. According to the Board the plaintiff Company was required to keep/maintain the meter correct. The meter had fell down from February, 1990 and was replaced on 30-08-1990 and assessment for six month was made under Section 26(6) of the Indian Electricity Act. The Board contended that the procedure under Section 52 of the Act was followed and the plaintiff company was supposed to approach the Electrical Inspector and had approached the Electrical Inspector prior to the filing of the suit. Defendant Board thus prayed for dismissal of the Suit.

3. The Trial court held that the plaintiff was entitled for the relief of perpetual injunction. Letters dated 30-03-1993 and 30-04-1993 (Ex.36) issued by the Board were declared illegal and unwarranted and the defendant Board was not entitled to disconnect the electric supply of the plaintiff Company.

4. Heard submissions at the bar. Learned Advocate for the Appellant referred to the ruling in Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board and others, reported in (1998) 4 SCC 470: (AIR 1998 SC 1715). In paragraph 35 the Apex Court observed thus:

35. We are unable to accept any of the aforesaid contentions. We have carefully perused the provisions of the Electricity Act and we find that those provisions provide for a different situation. Clause 39 will come into play whenever there is malpractice or pilferage on the part of the consumer or a fraud played by the consumer. The Electrical Inspector has no jurisdiction to deal with those matters. He can be approached only when there is a defective meter or any defect in wires, fittings, works or apparatus. As regards, Clause (VI) of the Schedule to the Electricity Act, it is not applicable unless distribution mains have been laid down under the provisions of Clause (IV) or Clause (V) and the supply of energy through those mains of any of them has commenced. The provisions of Section 26 of the Supply Act exclude the applicability of Clauses (1) to (V) of the schedule to the Board. Hence Clause (VI) of the schedule cannot by itself apply and that is why the second proviso to Section 26 clarifies the position that the provisions of Clause (VI) of the Schedule shall apply to the Board in respect of that area only where distribution mains have been laid by the Board and the supply of energy through any of them has commenced. The records before us do not disclose any pleading on the part of the consumers that the requirement of the second proviso to Section 26 have been satisfied. No question has been raised in that regard before the trial court. No doubt, the Full Bench of the High Court has placed reliance on Clause (VI) of the Schedule and the grounds raised in the Special Leave Petition filed by the Board do not refer to the same. But in the absence of a specific pleading to that effect it cannot be presumed that Clause (VI) of the Schedule would apply. Even assuming that clause applied, it will not alter the situation. The difference or dispute referred to in sub-clause (3) of Clause (VI) will not cover fraudulent malpractice or pilferage. A perusal of the said sub-clause makes it evident that the matter shall be referred to an Electrical Inspector only in cases of defects mentioned therein and not otherwise. We have no hesitation to reject the contention of learned counsel for the consumers and hold that the provisions in clause 39 do not contravene the provisions of the Electricity Act.

Next reliance is made upon the ruling by this Court in Indian Seamless Steels and Alloys Ltd. and another v. Rajendra Darda and others, reported in 2005 (2) Mah L J 819: (AIR 2005 Bom 41). In paragraph 13 it is observed thus:

13. At this stage, it would be necessary to deal with one of the issues which has been the subject-matter of submissions before the Court. The period under dispute, it is common ground, is 7th February, 1995 to 13th April, 1995. The jurisdiction of the Electrical Inspector under Section 26(6) is to make an estimate of the electrical energy consumed during such time as the meter has not been correct. The Electrical Inspector is, therefore, duty bound to make an estimate of the consumption during this period. Condition 20(c)(vii) provides that the consumption of the month will be determined on the basis of the average consumption over the preceding three months' period. The consumption which has to be computed by the Electrical Inspector is for that period during which the meter is not correct under Section 26(6). This is further clarified by the subsequent part of Condition 20(c) (vii) which spells out that for a consumer billed on a quarterly or six monthly period, the consumption during the period when the meter is out of order will be the same consumption made by him during the preceding quarter or six months' period. The Electrical Inspector can make an estimate of electricity consumed for the period during which the meter has ceased to be correct and not in excess thereof.

On the other hand Learned Advocate for the respondent pressed in to service the ruling in Belwal Spinning Mills Ltd. and others v...

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