BOMBAY SUBURBAN ELECTRIC SUPPLY LIMITED vs DEEPALI CO-OP. HOUSING SOCIETY LTD

MR. Hegde, Advocate for the appellant. MR. Gai with Ms. Mama for respondents.

THIS appeal is directed against the order of District Forum, Mumbai Suburban District in C/314/95 directing the appellant BSES not to recover the amount raised in the bills and further pay cost of Rs. 1,000/- to the respondents/ complainants. The main question raised on behalf of the BSES is that the complaint is misconceived and that the approach of the District Forum is wholly erroneous and further that the appeal should be allowed and the order of the District Forum should be set aside. The complainant is the Secretary of the Deepali Co-operative Hsg. Society and its members Mr. Tahilramani and his wife have joined the complaint The complainant is the consumer utilising the electrical energy supplied by the appellant viz. BSES for last 25 years. Meter No. 212906 (hereafter called as Mtr. ''A'') is undisputedly functioning well but the 2nd meter was not functioning well and hence replaced by the BSES in January-February, 1993 by another meter No. 2222117 (hereafter referred as Mtr. B&C). It seems that the meter ''C also failed to function properly and was, therefore, replaced by Mtr. No. 2377649 (hereafter as Mtr. D). According to the complainant Mtr. C stopped recording consumption from 16.1.1993 to 15.8.1993 for over a period of 7 months and the BSES raised the bill dated 24.2.1995 for Rs. 18,946/ -. THIS bill did not provide the calculation on the basis of which such a huge amount was raised in the bill. The complainant asked for verification from the officers who in turn raised the supplementary bill for Rs. 27352/- in the further rounds of enquiry dated 16.8.1995. The appellant BSES modified the bill and demanded the total payment of Rs. 46931 /-. THIS was done without hearing the complainants. The complainants have contended that from December, 1991 to January, 1993, the bill should be on the basis of average consumption of 484 units per month and that the bill should be prepared on that basis. For this harassment, the complainants claimed further amount of Rs. 1 lakh. The appellant BSES admitted that Meter ''A'' was working in order but the Meter ''B'' was replaced on 16.1.1993 and was sent to the laboratory from where it was reported that it was functioning in order within permissible limits. Unfortunately, Meter ''O stopped recording consumption from January, 1993 to April, 1994 for a period of 15 months and that Meter ''D'' was installed on 30.4.1994 and the same recorded consumption properly upto November, 1995 and average consumption for a period commencing from May, 1994 to November, 1995 was 901 units and on the basis of which the demand was raised in the aforesaid bills. As the period went on increasing the bill, naturally got raised because it included the consumption for the later months. However, the BSES reduced the average to 650 units and calculated as Rs. 46,931 /-in respect of arrears of 15 months, ending on 8.8.1995 and for those reasons, the bill cannot be disputed.

The District Forum straightaway landed on Section 26, Sub-section (6) of the Indian Electricity Act which provided 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 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".

THE District Forum felt that the dispute essentially related to the proper functioning of the meter and it was therefore the bounden duty of the appellant to have referred the dispute to the Electrical Inspector. We are afraid that such approach is erroneous because Section 26, Sub- section 6 of the Act clearly provides that Electrical Inspector shall entertain only when the application is made either by the consumer or by the supplier of the electricity. In this case it is not disputed that no such application has been made. The representative for the complainant contended that such dispute did exist and it was the duty of the BSES to refer the matter to the Electrical Inspector. Some case law has been cited in support of that view, but we are of the view that the case law does not embrance the case, where no application has been made to the Electrical Inspector. The Society could have very well made reference to the Electrical Inspector, when it found that the meter was not functioning properly. Not having done so, the protection of Section 26, Sub-section 6 shall not be available to the consumer. The learned Counsel for the BSES has contended that the appellant has never preferred any application to the Electrical Inspector. He has also relied on certain case law, which shows that if no application is made as envisaged in the aforesaid provision, the provision is not attracted. In AIR 1988 Allahabad page 8 in the case of Premier Ice Factory v. Commercial Manager, Kanpur Electricity Supply Administration & Anr., it is clearly observed that Sub-section 6 of the Section 26 does not cast any duty on the licensee (in this case the appellant) to refer any difference or dispute in respect of any meter for determination to the Electrical Inspector on the behalf of the petitioner. If any difference or dispute was raised by the petitioner, it was for him to make a reference to the Electrical Inspector for its determination. When the petitioner has not made any such application, it cannot be said that the respondents i.e. appellant, in this case were not entitled to demand the arrears due against the consumers.

HERE, we also find that the meter was not at all functioning. Meter ''C was recording not any consumption from January, 1993 to April, 1994 and hence it is observed by the Rajasthan State Commission in the case of Rajasthan State Electricity Board v. Ramrikh Vyas, reported in (1996) TCR page 323, that if the meter is completely out of order i.e. stopped or ceased to function such a dispute does not at all fall under Section 26. We find that even the complainants have not denied that Meter ''C viz. meter No. 2222117 had ceased to function and, therefore, the provisions of Section 26, Sub-section 6 cannot be invoked. We believe that this aspect has been totally ignored by the District Forum. There is no such suo motu jurisdiction vested in the Electrical Inspector to call for such an application either from the consumer or by the staff of the electricity. The consumer has complete option to make an application to the Electrical Inspector but if he chose to sleep over such right, the Consumer Fora cannot refer the matter to the Electrical Inspector on its own. We, therefore, hold that the appeal has to be allowed. Accordingly pass the following order. ORDER The appeal is allowed. The order of District Forum is set aside. The original complaint is dismissed with, however, no order as to cost. Appeal allowed.