W.B.S.E.B. vs ASHANUL HAQUE

THE petition for condonation of delay filed by the appellant is first taken up for hearing and disposal. We noticed that there is a delay of 38 days in preferring the appeal after receiving the impugned order of the Forum below. Heard argument advanced by the appellant. It is the case of the appellant in the condonation petition that after obtaining certified copy of the order on 22.6.2001 the appeal was filed on 31.7.2001. THE learned Counsel for the appellant submits that since the matter relates to a remote corner of West Bengal, some time was required to take decision and to collect papers. THEreafter the matter was referred to the Head Office, Kolkata for decision. For completing the process a total period of 38 days was consumed. It is submitted by Mr. Nayek, the learned Advocate for the appellant, that the delay was not intentional and if the delay is not condoned and the appeal is not admitted the appellant will be irreparably prejudiced, not being able to challenge the impugned judgment. THE petition for condonation of delay is not challenged by the respondent.

THE settled principle in respect of condonation of delay (vide the decision reported in AIR 1987 Supreme Court 1353) is that the Court should not adopt a pedanctic attitude towards the condonation of delay. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated. Here, 38 days'' delay has taken place and for that the explanation which has been offered is, in our opinion on the whole, satisfactory and considering the well settled principle held by the Apex Court in a number of judgments, that Courts should take reasonable and liberal view regarding condonation of delay, we are inclined to observe that the explanation is on the whole convincing for the purpose of our coming to a finding that the delay of 38 days of which actual delay is 8 days should be condoned.

Accordingly, it is ordered that the petition for condonation of delay under consideration be allowed. After condoning the delay the appeal is taken up for admission hearing. We have heard the argument of the learned Counsel for the appellant. Let the appeal be admitted and registered. The learned Counsel for the appellant submits that he is ready for hearing.

THIS appeal has been directed against the judgment passed by the District Forum, Malda, dated 22.6.2001, wherein the Forum directed not to claim any money from the complainant on the basis of average bills and declared the average bills as illegal. It has further directed the O.P. not to claim money and Rs. 4,000/- which was paid by the complainant would be adjusted by the O.P. against regular bills prepared on the basis of actual meter reading. The O.P. was further directed to pay Rs. 500/- as cost to the complainant. The brief facts of the case of the complainant are that being a consumer under the O.P. in respect of industrial category he paid electric bills regularly. But all on a sudden he received electric bills from 1.6.1999 to 31.8.2000 which were highly inflated according to him. He made several correspondences which were of no avail. On the contrary he was threatened by the O.P. that unless he paid the bills the electric line would be disconnected. Thereafter he filed a case before the Forum praying for direction upon the O.P. not to claim the fictitious electric bills from him and to prepare the electric bills according to the meter reading.

BEING dissatisfied with the abovementioned order the WBSEB-appellant has preferred the present appeal before the Commission. The learned Counsel for the appellant submits that during inspection the meter of the respondent by the WBSEB-people, they found that the meter was in sticky condition, but the respondent never informed the WBSEB that the meter was not moving freely. For this reason the appellant raised electric bills on average basis. It is further submitted by the appellant that the respondent did not apply for replacement of the defective meter by a new one. The total outstanding dues of the respondent are Rs. 10,483/-. The appellant further submits that as the energy was consumed by the respondent he is liable to pay the aforesaid amount. Moreover, as this is a case of billing dispute, it is not a subject matter of COPRA, for which remedy lies before the CEI, W.B. according to the I.E. Act. The Consumer Forum/Commission has no authority to quash or to assess the bills. We have carefully gone through the provision of the Section 26(6) of the Indian Electricity Act, 1910, which states, "where any difference or dispute arises as to whether any meter or bill 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 energy supplied to the consumer...". In this context, we may refer to a judgment reported in Vol. I (1997), CHN page 50 (SC) in the matter of CESC v. N.M. Banka, which held, "The consumer should have approached the Electrical Inspector straightaway if he was aggrieved by the bills. The Court should have declined to intervene when the consumer approached the Court. The Court should have directed the consumer to avail of the statutory remedy". Considering the facts and circumstances we are convinced by the argument made by the appellant and are of the opinion that the abovementioned disputed bills for the period from 1.6.1999 to 31.8.2000 should be referred to the Chief Electrical Inspector, West Bengal for adjudication.

GOING by the foregoing discussion we deem it appropriate to pass the following order: The dispute between the two parties is pertaining to disputed bills from 1.6.1999 to 31.8.2000 as well as the defective meter. The outstanding dues are 10,483/-. To meet the ends of justice the respondent shall pay 50% of the disputed amount to the appellant. The appellant shall accordingly raise a provisional bill within 15 (fifteen) days of getting a copy of this order. After the payment of the 50% of the disputed amount the appellant shall replace the defective meter, by a new and defect free one. As the line was reconnected, the question of restoration does not arise. After payment of 50% of the disputed amount the entire disputed bills for the above mentioned period in question shall be referred to the CEI, West Bengal for adjudication. The CEI would do well to dispose of the matter expeditiously preferably within a period of three months from the date of reference. Be it mentioned that the decision of the CEI regarding the disputed bills will be binding on both the parties. The respondent shall pay all other subsequent undisputed bills within the due date as stipulated by the appellant.

THEREFORE, the appeal is allowed in part ex parte and the impugned order of the Forum is set aside with the above observation. The appeal is disposed of accordingly. A copy is to be sent to the respondent immediately. Appeal partly allowed.