Karnataka Electricity Board and Another vs M/s. Udyavara Ice Factory

This is a defendants'' second appeal against the concurrent findings of the Courts-below. The plaintiff is a "consumer" within the meaning of that expression under the Indian Electricity Act, 1910 (hereinafter referred to as ''the Act''). Plaintiff/respondent M/s. Udyavara Ice Factory presented Original Suit No. 279/1980 on the file of the Principal Munsiff, Udupi, seeking a declaration that the claim made by the second appellant herein under Exhibit P-2, a demand for payment of Rs. 53,354/- and odd being the arrears due in respect of short billing on account of the bills prepared from the date of service taking the meter constant as 12 as per the test report instead of 20 as per the rating report by M.T. staff as on 8-2-1979, in that the claim was in the sum of Rs. 43,017.42 ps. In other words, the short claim was founded on a discovery made long after the installation and service. Plaintiff contended that the demand was illegal and was not enforceable. Therefore, the plaintiff prayed that as the billing was not enforceable in law, the defendants, Electricity Board and others (appellants before this Court) should be restrained from discontinuing the service or interrupting the energy supply to the plaintiff.

Defendants admitted in the written statement supply of energy to the plaintiff/respondent from February 1970. According to the appellants (Board) transformers attached to the meter of the plaintiff were not of the ratio of 60/5 as alleged by the plaintiff. They contended that it was 100/5. It was admitted that the meter was removed for the purpose of test by the R.T. Division, Bangalore; that there was no need to draw up any mahazar at the time of removal of the meter; that the meter was not removed in the absence of the plaintiffs representatives; that the meter and the current transformers were not tested before installation and that the Meter Testing Department alone was competent to trace the defects in the meter or of any other equipment by making actual test. It was only on 2-7-1980 discovery was made of the multiple being 12 instead of 20; that the meter was subsequently removed in October of that year for purposes of test and thereafter the demand as at Ex. P-2, in regard to which declaration is sought, was issued. Therefore, the Board claimed that the suit was not maintainable not only on facts but also having regard to the provisions of law inasmuch as the suit was barred since the dispute related to meter defect and that ought to have been referred early to arbitration in terms of sub-section (6) of Section 26 of the Act.

On such pleadings, as many as 7 issues were framed by the trial Court and they are as follows:

"(1) Whether the plaintiff proves that the order dated 2-7-1980 is null and void and opposed to principle of natural justice?

(2) Whether the defendants prove that the plaintiff is liable to pay Rs. 53,654-94 towards electricity dues?

(3) Whether the defendants prove that the suit is barred under the provisions of Karnataka Electricity Recovery Dues Act, 1976?

(4) Whether the defendants prove that the suit is premature?

(5) Whether the plaintiff proves that there is a threat to disconnect the supply by the defendants?

(6) Whether the Court-fee is sufficient?

(7) Whether the plaintiff entitled to the relief of declaration and injunction?"

The trial Court answered Issues 1, 5 and 7 in favour of the plaintiff and Issues 2, 3, 4 and 6 against the defendants, resulting in the decree as prayed for. On appeal to the learned Civil Judge, Udupi, the learned Civil Judge formulated the following points for consideration:

"A. Whether the trial Court is justified in holding that M.Os. 1 and 2 which are produced to the Court are not the C.Ts. attached to the meter of the plaintiff?

B. Whether the inspection or the test conducted on 8-2-1979 and the removal of the meter (also C.Ts.) in the month of October, 1979 by the officials of the defendant Board was in accordance with law?

C. Whether the defendants have proved that the C.Ts. installed to the meter of the plaintiff were of the ratio of 100/5?

D. Whether the claim made by the 2nd defendant under Ex. P-2 is opposed to the principles of natural justice?

E. Whether the claim made by the 2nd defendant under Ex. P-2 is valid and enforceable?

F. Whether the Judgment and decree passed by the trial Court are sustainable?"

On Point (A) it has answered in the affirmative, on (B) in the negative, on (C) in the negative, on (D) in the affirmative, on (E) in the negative and on (F) in the affirmative. In the result, the Civil Judge has confirmed the Judgment and Decree of the trial Court.

In this Court the only question raised and argued is that the Civil Court had no jurisdiction to entertain the suit inasmuch as the plaintiff should have resorted to Arbitration provided for under sub-section (6) of Section 26 of the Act, Sub-section (6) of Section 26 of the Act reads as follows:

"(6) 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;

Provided that before either a licensee or a consumer applies to the Electrical Inspector under this sub-section, he shall give to the other party not less than seven days'' notice of his intention so to do".

Therefore, the "meter" referred to in regard to which a difference or dispute may arise, is the meter referred to in sub-section (1) of Section 26 of the Act and that is the meter which a licensee/Board installs or supplies on service to the consumer.

As earlier noticed, though the fault in regard to the multiple, was discovered as early as 8-2-1979, the meter was removed some time in October, 1979 for test without a mahazar but in the presence of a representative of the consumer. One of the matters in issue was whether the current transformers attached to the meter in order to enable proper ascertainment of the energy consumed by the consumer in terms of units were not the same which was removed from the consumer''s premises. On that, both the Courts have recorded a finding that in the absence of a mahazar, defendants have failed to establish what they have produced into Court as M.Os. 1 and 2 to be the current transformers attached as apparatus to the meter in accordance with sub-section (7) of Section 26 of the Act. That is a finding of fact which cannot be disturbed by this Court. In any event, there was no way for the defendants to discharge the burden cast upon them because admittedly they removed it without a mahazar. A difficulty arises on a closer examination for this Court to interfere in view of the proviso to sub-section (4) of Section 26 of the Act. Sub-section (4) provides for right of inspection at all times by the Board/licensee the installation at the premises of the consumer. It is unnecessary to set out the details. But the proviso to that sub-section, which reads as follows:

"Provides that the licensee shall not be at liberty to take off or remove any such meter if any difference or dispute of the nature described in sub-section (6) has arisen until the matter has been determined as therein provided".

imposes a condition as prescribed in sub-section (6) to be followed before removing the meter. In other words, if the proviso is to be operative, on the facts of this case, the meter ought not to have been removed in October, 1979 as admittedly the fault in the meter as described at Item No. 6 in Ex. P-2 was so discovered on 8-2-1979 itself. Therefore, it was incumbent on the appellants (Board) to raise a dispute in terms of Section 26 of the Act and only on resolution of that dispute in accordance with sub-section (6) of Section 26 of the Act the removal of meter for test ought to have been effected. That not have been done, it is difficult for this Court to accept that Section 26 or the Act acts as a bar to a Civil Court to give a declaration and injunction sought for by the plaintiff.

In that circumstance, this appeal has no merit and it is dismissed but after notice to the respondent/plaintiff and after hearing the counsel for the parties at the stage of admission.