M/s. Swani Enterprises Registered Partnership Firm vs Punjab State Electricity Board and Another

Sanjay Kishan Kaul, C.J.—The appeal is directed against the order of the learned Single Judge dated 09.03.2009 in Civil Writ Petition No. 3711 of 2009. The appellant is an industrial unit having sanctioned connection for large scale industrial electricity. The checking''s were carried out qua the meter of the appellant on 31.10.1990, 04.10.1991, 04.11.1992, 04.11.1993 and 16.08.1994 by the Senior Executive Engineer which was followed up with a notice dated 16.08.1996 asking the petitioner to deposit a sum of Rs. 2,35,375/- on the allegation that the meter was found running slow and a case of power theft had been made out.

The appellant aggrieved by the same filed a civil suit which came to be dismissed by the learned Civil Judge on 28.11.2001. However, the appeal filed by the appellant was allowed by the learned Addl. District Judge on 03.04.2004 to the limited extent that the respondents were restrained from disconnecting the supply of the appellant but with liberty to decide the matter afresh in accordance with the prescribed procedure.

The respondent-board thereafter raised this dispute u/s 26(6) of the Electricity Act, 1910 which was decided in favour of the appellant by the Chief Electrical Inspector, Punjab. The said decision is based on number of factors:-

i) The board ought to have approached the Chief Electrical Inspector to decide the issue of defective meter being statutory authority for the said purpose.

ii) The inspection reports produced were either illegible or vague;

iii) The procedure of testing of large supply consumers'' meters/equipments as prescribed in Board Circular No. 14/87 dated 25.03.1987 had not been followed.

iv) The meter in dispute could not be produced for joint testing;

v) The method of calculation of KWH consumption by conversion as followed by the board was defective.

vi) The meter was found running in order from 1994 onwards and thus no demand could be raised for the period from 1994 to 1996.

The board preferred an appeal before the Commissioner (Appeals), Patiala Division, Patiala which was accepted as per the impugned order dated 07.11.2008. This order was assailed by the appellant by filing Civil Writ Petition No. 3711 of 2009 which has been dismissed vide impugned order dated 09.03.2009.

We have heard learned counsels for the parties and perused the record.

We may note that though various reasons were given by the Chief Electrical Inspector in coming to a conclusion, the order of the Appellate Authority dated 07.11.2008 after noticing the respective pleas, is in the following terms:-

I have gone through the record of the case and written arguments filed by the parties carefully. On close perusal of the record and written arguments, it is observed that the additional demand raised by the board on the basis of checking report of the team deputed to check the large supply, on power factor as per policy of the board, which is legal and justified. Accordingly, the order of the C.E.I. under challenge is neither legal nor is justified and I set aside the same by accepting this appeal.

The aforesaid order thus shows that it is completely devoid of any reasons whatsoever dealing with none of the pleas which were raised before the Chief Electrical Inspector and that should have been the ground enough to set aside the order. However, the learned Single Judge as per the impugned order, though noticed the pleas raised before the Chief Electrical Inspector, has found no merit in the writ petition on the following reasoning alone:-

The Chief Electrical Inspector completely misdirected himself in observing that it was the PSEB authorities who ought to have initiated proceedings u/s 26(6) of 1910 Act at the earliest. Suffice it to say that it was the petitioner who was aggrieved against the demand notice. Instead of approaching the Chief Electrical Inspector, the petitioner rushed to the civil court where the matter remained pending for over eight years. During this long period, the carbon copies of the demand notices were bound to get delible/fading impression. The fact that some of the reports were not legible, was no ground to draw an adverse inference against the respondent-authorities. Suffice it to say that the demand was raised against the petitioner on the basis of more than one checking report made by different officers/engineers. No motive has been attributed to them nor it is the petitioner''s case that any one wanted to harass it for extraneous considerations. The view formed by the appellate authority, in the facts and circumstances of the case, is plausible one and warrants no interference by this Court.

We are unable to agree with the conclusion of the learned Single Judge. It appears to us that learned Single Judge has based his conclusion largely on what he terms inappropriate course of action followed by the petitioner in instituting the civil suit rather than taking recourse to Section 26(6) of the Electricity Act, 1910. No doubt, that there would have been appropriate course of action but then merely because a wrong legal remedy has been availed off, cannot be fatal to decide the issue when proper forum is seized of the matter. Infact, the learned Single Judge has dealt with only one plea of the Chief Electrical Inspector in observing that his finding that the Board ought to have initiated proceedings u/s 26(6) of the said Act, was not acceptable since it is the appellant who was aggrieved party with the demand notice. The fact that the inspection reports were not legible cannot be wished away as once those proceedings are initiated it is for the respective parties to establish their case. The position would be the same qua non-production of the meter. One of the most important aspects is that the inspection was carried out at the factory premises of the appellant on five different occasions and on three different occasions the meter was not found to be faulty. The earliest was one of 31.10.1990 whereafter no action was taken. Subsequent three inspections showed the meter running properly while on the last inspection on 16.08.1994 it was held to be faulty. This would clearly support the case of the appellant that at least prior to 16.08.1994 there could be no case for raising any bill for defective meter on account of lower power factor. This is apart from the fact that the appellate authority, which is a technical body, did not care to deal with the technical aspects raised by the Chief Electrical Inspector. This aspect cannot be wished away by observing that the view taken by the appellate authority was plausible one where no reasons are given.

For the period post the inspection in August, 1994, when the meter was stated to be defective, the board took no steps to get the meter inspected/tested nor was material produced before the Chief Electrical Inspector through legible inspection reports in support of the plea of lower power factor. We are thus of the view that no fault can be found with the decision of the Chief Electrical Inspector dated 15.01.2008 and consequently the order in appeal dated 07.11.2008 being without any reason whatsoever and order of the learned Single Judge dated 09.03.2009 cannot be sustained and are accordingly set-aside.

The appeal is, accordingly, allowed leaving the parties to bear their own costs.

The amounts in dispute stated to have been deposited by the appellants be adjusted against the future bills.