W.B.S.E.B. vs SANDEEP ENGINEERING WORKS

THIS is an appeal filed against the order dated 30.10.2000 passed by the District Forum, Howrah. The present appellants were the O.Ps. before the Forum whereas the present respondent was the complainant. The brief facts of the case are as under: The old meter of the complainant who is a consumer of W.B.S.E.B., the O.P. was replaced by the O.P. by a new meter on the alleged plea that the old meter was moving sluggishly though according to the complainant there was no sluggishness in the movement of the old meter. Bills were raised since inception according to the readings obtained from the old meter till October, 98. Then on 20.10.1998 the internal audit team of the W.B.S.E.B. conducted a physical verification of the metering installation of the factory and detected that the industrial meter was running slow. It was further detected that the complainant was enjoying 37.5 HP of load which was in excess of the contractual load of 30 HP. On the basis of the report of the audit team bills were raised by the O.P. for under-charged units for the period from May 98 to October, 98 on the consideration that the meter got defective and was moving slowly since May, 98. Afterwards for the period November, 98 to June, 99 bills were claimed @ 2506 units per month on an average basis though the actual meter readings for the said period were taken by the meter reader from the old meter. The complainant paid the bills upto February, 99 as well as the so-called under-charged units as claimed by the O.P. for the period from May, 98 to October, 98. Subsequently the allegedly defective meter was replaced by a new meter on 1.7.1999 and at that time the reading in the old meter was 096511. Since July, 99 Bills are being raised on the basis of the actual readings of the new meter. The complainant requested by his letter dated 24.1.2000 for recast of the bills from 11/98 to 6/99 in tune with the monthly consumption pattern as reflected in the new meter and also for refund of excess amount paid, if any. As there was no positive response from the O.P. the complainant filed a case before the Forum with the prayers as stated above. The O.Ps. contested the case at the Forum by filing a written version and upon hearing both the sides the Forum came to the conclusion that the O.Ps. had no authority to declare a meter to be defective and replace the same by a new meter. Similarly it could not estimate the consumption of electricity for the period for which the meter was moving sluggishly according to the O.P. By making reference to the Section 26(6) of the Indian Electricity Act, 1910 the Forum emphatically observed that such authority could be exercised only by the Chief Electrical Inspector and not by the O.P. on their own. The Forum further attempted detailed computation of the average units consumed for three 12f-month periods namely before May, 98 (that is during the period when there was no allegation of sluggishness), from May, 98 to June, 99 (that is the period during which the meter moved sluggishly according to the O.P. but not according to the complainant) and the period from August, 99 to July, 2000 (i.e., when the new meter was operational). The Forum found that the average monthly units consumed for these three periods were not very different from one another and on this basis the Forum came to the conclusion that the allegation of the O.Ps. about sluggishness of the old meter had no basis at all. The Forum further noted that in the ''blue card'' there was no remark of the meter reader that the meter was moving slowly. As stated above, the Forum concluded that the W.B.S.E.B. should have referred that meter to the CEI, but instead they removed the meter on 1.7.1999 giving no opportunity to the complainant to get the correctness of the meter being adjudicated by CEI. After giving detailed justification the Forum passed the order that all the bills drawn on the basis of 2506 units of monthly consumption for the period from November, 98 to June, 99 be quashed. The O.Ps. were directed to raise fresh bills for the period as per actual consumption reflected in the old meter and the excess amount already released from the complainant on the basis of the report of the internal audit team of the O.P. was to be adjusted to the credit of the complainant from the revised bills to be raised as per the order of the Forum. The balance after the adjustment was to be adjusted against the bills for July, 99 to October, 99. The Forum further ordered that the O.P. should pay Rs. 5,000/- as compensation to the complainant. Being aggrieved by this order the W.B.S.E.B. (O.P.) has filed the present appeal.

IN the memo of appeal the appellant has contended that the Board has every right to make adjustment for un-metered consumption and raise bills on average basis, on the basis of "scientific explanation" regarding consumption of energy. The appellant has further taken the point that the Forum on its own can neither quash the bills nor can it direct the O.P. to recast the bills on the basis of the recording of a defective meter. The appellant has also contested the award of compensation of Rs. 5,000/- without any finding as regards the deficiency in service on the part of the appellant. The appellant has prayed for setting aside the impugned order passed by the District Forum. During the hearing the appellant was represented by Mr. Nayek, Advocate, but the respondent was absent and hence the matter was heard ex parte. During the hearing the learned Advocate for the appellant by and large raised the same points as pleaded in the memo of appeal. Mr. Nayek argued that it was the statutory duty of the Board to disconnect the line of bills are not paid. In view of this Mr. Nayek challenged the order of the Forum that there shall be no disconnection of supply for non-payment of bills from July, 99 to October, 99 till the adjustments are made by the O.P. Mr. Nayek further contended that the award of compensation of Rs. 5,000/- had no basis whatsoever inasmuch as there was no deficiency in service on the part of the appellant.

We have carefully perused the impugned judgment and the memo of appeal which are the only documents before us. In our opinion the Forum has given quite sound reasons for passing the impugned order. As we are in complete agreement with those reasons, we are not repeating the same here. The most important point made in the impugned order is that the O.P. had no authority to declare a meter to be defective on its own and replace the same by a new meter nor could it estimate the consumption of electricity for the period during which the meter allegedly was moving sluggishly. By making a reference to Section 26(6) of the Indian Electricity Act, 1910 the Forum correctly observed that such authority could be exercised only by the Chief Electrical Inspector and not by the Board on their own. In this connection it would be appropriate to quote here the relevant sections 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. We agree with the Forum that the O.Ps. acted irregularly by removing the old meter on their own, particularly when the complainant did not agree that the mater was moving sluggishly.

IN this context we refer to a ruling (2004) 8 CLD 953 (MAD), of the Madras High Court. IN that case the Hon''ble High Court observed: Under Section 26, it is stipulated that if there is difference or dispute with regard to the correctness of the meter the consumer or the Board may make an application to the Electrical INspector and on such application being made, the Electrical INspector has to verify and ascertain the correctness of the meter and if the meter is found to be defective, the Electrical INspector shall estimate the amount of energy supplied to the consumer for a period not exceeding six months. IN the instant case, (i.e., the case before the Madras High Court) the aforesaid procedure had not been followed. The respondent Board had itself estimated the amount of energy supplied to the consumer for a period more than six months and had passed the impugned order demanding payment of that sum. As per Section 26(6) the authority to declare the meter as ceased to be correct is only the Electrical INspector and on making of such declaration, he has to estimate the amount of energy supplied to the consumer, during such time, not exceeding six months. The impugned order (i.e., the order of the Board) had been passed in utter disregard to the provision in Section 26(6) and it was liable to be quashed.

IN view of what has been discussed above the removal of the old meter (alleged by the Board to be defective) and replacement of the same by a new meter without referring the meter to the CEI was not correct on the part of the W.B.S.E.B. inasmuch as this action does not have the backing of the relevant law in this regard. The Board further acted against the provisions of the law by asking the complainant to pay bills at the rate of 2506 units per month which was estimated by the officers of the Board itself. It goes without saying that as per the above quoted Section 26(6) of the INdian Electricity Act the estimation of the consumption of electricity during the period when the meter was allegedly not functioning properly is to be done by the C.E.I. and not by the Board, and that too for a period of not more than six months. IN view of this, in our opinion the order of the Forum quashing the bills raised at the rate of 2506 units per month for the period from November, 98 to June, 99 is quite in order and does not call for any interference. Admittedly the Board has alleged that the meter was not functioning properly and in such a situation a reference to the C.E.I. should have been the appropriate step. However, in the present matter resorting to such a step at this stage is really very difficult, if not impossible in view of the fact that the meter was removed by the Board long back in the year 1999 and in all probability that meter is no longer readily available with the O.P. and even if available, it is next to impossible to ascertain whether the meter is in the same condition as it was on the date of removal. Therefore, though reference to the C.E.I. would have been the proper step in the present matter, that cannot be done now and for this, the Board itself is responsible. Therefore, at this stage we are not in a position to give the decision for referring the disputed meter to the C.E.I. and in such circumstances the order of the Forum quashing the disputed bills and directing the O.P. to raise bills as per the actual readings in the old meter is quite in order and we are in agreement with the same. It is more so because, as stated earlier, the Forum has come to the conclusion, on the basis of detailed computation of average units consumed for different 12-month periods, that during the disputed period when the meter was allegedly moving sluggishly, the average monthly consumption was not at all lower than those for other periods, particularly during the period when the new meter was operational. The Board has taken another point before the Forum and also in the appeal that the complainant unauthorisedly increased the load from 30 HP to 37.5 HP. The Forum in its impugned order has discussed this issue to find the same to be unacceptable in the absence of the detailed information supporting the Board''s contention and we find no reason to hold a different view. In this context the Forum rightly observed that the signature in the report of the internal audit team of the Board was that of a representative of a company which was different from the complainant and hence there was no question of the complainant agreeing with the report of the audit team. Moreover, even assuming (but without holding so) that the load was increased unauthorisedly we are not able to comprehend how that would have affected the reading of the meter. It is common knowledge that if there is an excessive load that is higher than what had been provided for, the meter would get burnt out. But in this case there was no such burning out of the meter and the old meter was working and readings were being taken therefrom till it was replaced on 1.7.1999 by the Board. The appellant has challenged the order of the Forum awarding compensation of Rs. 5,000/- to be paid by the O.P. to the complainant. We find from the impugned order that the Forum, has not exactly given the precise reasons for awarding this compensation of Rs. 5,000/-. From the records we find that the line of the complainant was never disconnected and he has enjoyed electricity without any interruption though he was required by the Board to pay electricity charges at an arbitrary rate stipulated by the Board and not on the basis of the meter reading. In view of this in our considered opinion the complainant has failed to adduce adequate evidence to justify the award of compensation and hence in our opinion, that part of the order awarding compensation needs to be set aside. However as already discussed, we are not inclined to interfere with the other parts of the impugned order.

IN view of the foregoing discussion, we deem it appropriate to pass the following order. The appeal is allowed in part on contest and the impugned order of the Forum is modified as indicated above. The impugned order of the Forum is affirmed except the order awarding compensation of Rs. 5,000/-. All the directions given on the O.P./appellant in the impugned order except the award of compensation of Rs. 5,000/- are to be complied with within two months from the date of receipt of this order.

HOWEVER taking into account the circumstances, we do not pass any order as to cost. The appeal stands disposed of accordingly. Appeal partly allowed.