Section 26 of the Indian
Electricity Act, 1910 – Theft of Electricity – penalty imposed at Rs. 5 lakhs
and odd – challenged – High court held that the petition under sec.26 not
considered and held that it was violation of principles of natural justice and as
such set aside the orders of Board – Apex court held that in case of a theft of
Electricity, the question of application of sec.26 does not arise and as such
High court committed grave error – Apex court set aside the orders of High
court and allowed the appeal.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO . 4023 of 2014
(Arising out of Special Leave Petition
(Civil) No. 3396 of 2011)
Western
Electricity Supply Co. of Orissa Ltd & Ors. ...Appellants
vs
M/s Baba Baijanath
Roller and Flour Mill P. Ltd. ...Respondent
With
CA No.4024 of
2014
(arising out of
SLP (Civil) No.3397 of 2011)
J U D G M E N T :Pinaki Chandra Ghose, J.
1.
Leave granted.
2.
This appeal is directed against an order dated
August 3, 2010 passed by the High Court of Orissa allowing the writ petition filed
by the respondent, quashing the bill issued by the appellant for a sum of
5,10,930/- as well the notice of disconnection dated October 5, 2010.
3.
The respondent-writ petitioner is a registered
company, inter alia, carrying on its business under the name and style of M/s. Baba
Baijnath Roller and Flour Mill Pvt. Ltd., having installed a Mill in the
district of Jharsuguda and is the consumer of the appellant herein.
4.
The facts of the case, briefly, are as follows
:
4.1.
The
respondent alleged in the writ petition that on an inspection conducted by the
appellant on September 9, 2002 at the premises of the respondent, the appellant
intimated that at the time of inspection it was found that H.T. Meter, T.P
Box’s inner door and meter terminal cover quick seals, plastic seals and paper
seals were tampered. In addition, L.T.T.P Box inner door quick seals, plastic
seals and paper seals were found tampered. The B-Phase P.T wire was found cut
as such the meter was not getting B-Phase potential.
4.2.
It was further brought to the notice of the
respondent by the appellant that the interference with the metering arrangement
was made by the respondent in order to prevent the meter from recording actual
consumption which attracts Regulation 64 of the Orissa Electricity Regulatory Commission
Distribution (Conditions of Supply) Code, 1998 (hereinafter referred to as “the
Code”). Accordingly, the penal charges as per rules were intimated and raised
on the respondent on September 30, 2002. The appellant further called upon the
respondent to submit its representation, if any, within seven days. It was
intimated that in default of payment of such charges within seven days from the
date of receipt of the penal bill, the power supply to the premises will be
disconnected without any further notice. The penal bill was raised on the
respondent/writ petitioner for a sum of 5,10,930/-. On October 5, 2002 the
electricity supply was disconnected since the respondent failed to make the payment.
4.3.
In these circumstances, a writ petition was
filed by the respondent challenging the action on the part of the appellant
before the High Court. The respondent-writ petitioner made out a case that the
bill used to be received by the writ petitioner was around 80,000/- per month
and according to the writ petitioner/respondent, the meter was defective and
recording excessive consumption.
4.4.
The writ
petitioner/respondent challenged the action on the part of the appellant that
when the inspection was made, at that point of time the officers of the
appellant made a demand for illegal gratification since refused by the Manager of
the respondent-company, the officers of the appellant raised such allegations
and further the Manager was forced to sign several papers under duress and
coercion.
4.5.
It was urged
before the High Court on behalf of the respondent-company on the ground (i)
that the penal bill had been issued in violation of the principles of natural
justice; (ii) that the inspection was made without giving a notice and in the
absence of the representative of the firm; (iii) that the allegation of
tampering with seals cannot be sustained as there was no allegation that the
outer seal of T.P. box was broken or tampered with; and (iv) that the penal
bill could not have been raised since the meter was defective and was not
recording proper consumption. By filing a counter affidavit, the appellant
herein duly contested the writ petition and stated that an alternative remedy
was available to the respondent under the Code. It was further submitted that
in the instant case, there is no question of alleging that the meter is
defective. It is a clear case of theft of electricity by the consumer and
Section 26 of the Indian Electricity Act, 1910 (hereinafter referred to as “the
Act of 1910”) has no application. It is submitted that Section 26(6) of the Act
of 1910 is attracted only when a meter is defective and is incapable of
recording the correct consumption of electricity. It was further contended on
behalf of the appellant before the High Court that inspection of the meter was
done in the presence of the representative of the writpetitioner/ respondent.
4.6.
The High Court
after hearing the parties held that in case of violation of principles of
natural justice even if alternative remedy is available, a writ court can
interfere for redressal of grievance of the petitioner. The High Court further
held that the representation filed by the writ petitioner was never considered
before the imposition of penalty, far less giving an opportunity of hearing to
the writ petitioner. Accordingly, the High Court held that this action of the
appellant is in clear violation of the principles of natural justice. In these
circumstances, the High Court set aside the penalty charges imposed by the
appellant on the writ petitioner/respondent. The inspection report was also quashed
on the ground that such inspection was never done in the presence of the
authorised persons of the writ petitioner. The High Court further held that
since the penalty is untenable, the appellant was not entitled to levy delayed payment
surcharge on the penal charges treating it as old arrears or current arrears.
In these circumstances, the High Court further directed to refund the amount so
paid within three months.
4.7.
Being
aggrieved, this appeal has been filed by the appellant.
5.
Learned counsel
appearing on behalf of the appellant contended before us that the High Court
has erred in holding that the matter should come within the purview of Section
26(6) of the Act of 1910. He submitted that the High Court ignoring the
judicial pronouncements on this question undermined the authority of the licensee
(appellant) to impose penalty as a consequence on a consumer even if the
consumer has committed theft of electricity. By this process, the provisions of
the statutory Code have been made nugatory. The meter could be subjected to
tampering in various ways. The methods as detected on inspection by the officers
of the appellant are more than sufficient to conclude that the meter was
tampered with and did not record the actual consumption of energy consumed by
the writ petitioner/ respondent. He further contended that the theft of electricity
is governed by the Code and not under the provisions of the Act of 1910.
6.
The relevant
provisions of the Act of 1910 as well as the Code, in particular Clauses 54,
56, 64, 105, 110 and 115, were duly placed before us. It will be proper for us
to reproduce those hereunder:
“Section 26 -
Meters. – (1) In the absence of an agreement to the contrary, the amount of
energy supplied to a consumer or the electrical quantity contained in the supply
shall be ascertained by means of a correct meter, and the licensee shall, if
required by the consumer, cause the consumer to be supplied with such a meter: Provided
that the licensee may require the consumer to give him security for the price
of a meter and enter into an agreement for the hire thereof, unless the
consumer elects to purchase a meter.
(2) Where the
consumer so enters into an agreement for the hire of a meter, the licensee
shall keep the meter correct, and, in default of his doing so, the consumer
shall, for so long as the default continues, cease to be liable to pay for the
hire of the meter. (
(3) Where the
meter is the property of the consumer, he shall keep the meter correct and, in
default of his doing so, the licensee may, after giving him seven days’ notice,
for so long as the default continues, cease to supply energy through the meter.
(4) The
licensee or any person duly authorised by the licensee shall, at any reasonable
time and on informing the consumer of his intention, have access to and be at
liberty to inspect and test, and for that purpose, if he thinks fit, take off
and remove, any meter referred to in sub-section (1); and, except where the
meter is so hired as aforesaid, all reasonable expenses of, and incidental to,
such inspecting, testing, taking off and removing shall, if the meter is found to
be otherwise than correct, be recovered from the consumer, and, where any
difference or dispute arises as to the amount of such reasonable expenses, the
matter shall be referred to an Electrical Inspector, and the decision of such
Inspector shall be final:
Provided 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.
(5) A consumer
shall not connect any meter referred to in sub-section (1) with any electric
supply-line through which energy is supplied by a licensee, or disconnect the same
from any such electric supply-line, but he may by giving not less than
forty-eight hours’ notice in writing to the licensee require the licensee to
connect or disconnect such meter and on receipt of any such requisition the licensee
shall comply with it within the period of the notice.
(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.
(7) In addition
to any meter which may be placed upon the premises of a consumer in pursuance
of the provisions of sub-section (1), the licensee may place upon such premises
such meter, maximum demand indicator or other apparatus as he may think fit for
the purpose of ascertaining or regulating either the amount of energy supplied
to the consumer, or the number of hours during which the supply is given, or
the rate per unit of time at which energy is supplied to the consumer, or any
other quantity or time connected with the supply:
Provided that the meter, indicator or
apparatus shall not, in the absence of an agreement to the contrary be placed
otherwise than between the distributing mains of the licensee and any meter
referred to in sub-section (1):
Provided also that, where the charges
for the supply of energy depend wholly or partly upon the reading or indication
of any such meter, indicator or apparatus as aforesaid, the licensee shall, in
the absence of an agreement to the contrary, keep the meter, indicator or apparatus
correct; and the provisions of sub-sections (4), (5) and (6) shall in that case
apply as though the meter, indicator or apparatus were a meter referred to in
subsection (1).
Explanation.—A
meter shall be deemed to be “correct” if it registers the amount of energy
supplied, or the electrical quantity contained in the supply, within the
prescribed limits of error, and a maximum demand indicator or other apparatus
referred to in sub-section (7) shall be deemed to be “correct” if it complies
with such conditions as may be prescribed in the case of any such indicator or
other apparatus.”
“CHAPTER – IV
METERS
54. Initial
power supply shall not be given without a correct meter. Meters will be
installed at the point of supply or at a suitable place as the engineer may
decide. The same shall be fixed preferably in the basement or ground floor in
multistoried buildings where it will be easily accessible for reading and
inspection at any time. The consumer shall run his wiring from such point of
supply and shall be responsible for the safety of the meter or metering
equipment on his premises from theft, damage or interference.
x x x
56. The meters
and associated equipment shall be properly sealed by the engineer and consumer’s
acknowledgement obtained. The seals, nameplates, distinguishing numbers or marks
affixed on the said equipment or apparatus shall not be interfered with,
broken, removed or erased by the consumer. The meter, metering equipment, etc.
shall on no account be handled or removed by any one except under the authority
of the engineer. The engineer can do so in the presence of the consumer or his
representative. An acknowledgement shall be taken from the consumer or his representative
when seal is broken.
x x x
64. If a meter
or metering equipment has been found to have been tampered or there is
resistance by the consumer to the replacement of obsolete or defective meters
by the engineer, the engineer may disconnect the supply after giving seven
clear days show cause notice and opportunity to the consumer to submit his
representation.
x x x
Penal Charges –
105. (1) On
detection of unauthorised use in any manner by a consumer, the load connected
in excess of the authorized load shall be treated as unauthorised load. The
quantum of unauthorised consumption shall be determined in the same ratio as
the unauthorised load stands to the authorised load.
(2) The period
of unauthorised use shall be determined by the engineer as one year prior to
the date of detection or from the date of initial supply if the initial date of
supply is less than one year from the date of detection. If the consumer
provides evidence to the contrary, the period may be varied according to such
evidence. The engineer may levy penal charges in addition to the normal charges
for aforesaid period of unauthorised use. Where addition of the unauthorised
installation or sale or diversion would result in a reclassification according
to this Code, the whole of the power drawn shall be deemed to have been drawn
in the reclassified category. The consumer shall also be required to execute a
fresh agreement under the reclassified category.
(3) The penal
energy charges for unauthorised use of power shall be two times the charges
applicable to the particular category of consumer.
(4) The penal
demand charges for unauthorised use of power in cases covered under two part
tariff shall be calculated on un-authorised connected load expressed in KVA
multiplied by two times the rate of demand charges applicable.
x x x
CHAPTER – XII
CONSUMER PROTECTION
110. (1) A
consumer aggrieved by any action or lack of action by the engineer under this
Code may file a representation within one year of such action or lack of action
to the designated authority of the licensee, above the rank of engineer who
shall pass final orders on such a representation within thirty days of receipt
of the representation.
(2) A consumer
aggrieved by the decision or lack of decision of the designated authority of
the licensee may file a representation within forty five days to the chief
executive officer of the licensee who shall pass final orders on such a representation
within forty five days of receipt of the representation.
(3) In respect
of orders or lack of orders of the chief executive officer of the licensee on
matters provided under Section 33 of the Act, the consumer may make a reference
to the Commission under Section 37(1) of the Act.
x x x
Overriding
effect –
115. (1) The
provisions of this Code shall override the provisions of OSEB (General
Condition of Supply) Regulation, 1995.
(2) Nothing
contained in this Code shall have effect, in so far as it is inconsistent with
the provisions of Indian Electricity Act, 1910, Electricity (Supply) Act, 1948
and Rules framed thereunder as amended by the Act.”
7.
Therefore, it would be evident from Section
26(6) which carves out an exception, that where there is an allegation of “fraud”,
the same provision is not attracted. He further contended that invariably a
plea is being taken by the consumer found to have committed theft of
electricity that his meter was defective. In the instant case, in accordance
with Section 26(4), an inspection was conducted in the presence of the representative
of the respondent. If the meter is found to be defective on such inspection and
if the respondent was desirous of availing the benefit of Section 26(6), it is
the duty of the consumer under the said Section to move an application before the
Electrical Inspector for getting the meter tested.
8.
It was
submitted that the Orissa Electricity Regulatory Commission (for short “OERC”)
by virtue of Section 54 of the Orissa Electricity Reforms Act, 1995 has framed
a Code on different issues including the manner in which theft of energy is to
be determined. They are statutory in character. Accordingly, he submitted that
the High Court has erred in dealing with the matter without taking into account
the clauses of the Code which are framed to deal with the theft of electricity.
Factually also, the High Court was
incorrect in recording that the inspection was conducted in the absence of the
consumer. It is further submitted that the decision relied on by the High Court
is totally inapplicable in the facts and circumstances of this case since Belwal
Spinning Mills Ltd. v. U.P. State Electricity Board 1997 (6) SCC 740 did not deal
with the Code of 1998 framed by the Orissa Electricity Regulatory Commission
and the distinguishable feature of the said decision is that the said decision
made it clear that when there is an allegation of fraud or tampering of meter,
Section 26(6) of the Act of 1910 has no application. Learned counsel further
relied upon the decision in Madhya Pradesh Electricity Board & Ors. v. Smt.
Basantibai 1988 (1) SCC 23 and drew our attention to paragraph 9 of the said
decision and contended that Section 6(6) of the Act of 1910 has no application
where there is a dispute regarding the commission of fraud in tampering with
the meter and breaking the body seal is totally outside the ambit of Section
26(6) of the said Act. It is further contended that after the inspection was
conducted in the presence of the representative of the consumer, details of the
illegalities found on such inspection were shared with the respondent consumer,
resulting in receipt of a vague reply from the consumer and was processed to
raise a demand by way of a penal bill. Therefore, according to him, the
requirement under the law was followed before issuance of the said penal bill.
He further pointed out that on being aggrieved by such decision, the writ petitioner/respondent
could have followed the statutory remedy as envisaged under Section 110 of the
Code. It is further stated that the High Court did not even give any reason for
the direction to refund the delayed payment surcharge.
9.
In these circumstances, it is submitted that
the order of the High Court cannot be sustained under the provisions of law.
The penal bill was quashed only on the ground that the unit of the respondent
was closed. Such fact is immaterial and irrelevant in respect of demand of a
penal bill. The approach of the High Court is patently erroneous.
10.
Per contra, it
is submitted on behalf of the respondent that the argument of the appellant
could have succeeded if the appellant could prove that the respondent had
indulged in theft of electricity. It is pointed out that on October 10, 2002,
the High Court directed the respondent to deposit 30,000/- without prejudice
and for restoration of power supply since the electricity was disconnected on
October 5, 2002. The power supply was restored on deposit of 10,000/- and
subsequently, the respondent further deposited a sum of 20,000/- in terms of
the direction. It is submitted that in spite of the interim order passed by the
High Court directing stay of realisation of the penal bill, the appellants went
on charging delayed payment surcharge on the penal charges in monthly bills
raised subsequently on the respondent. It is submitted that the meter had
actually inherent defects as only the inner seal was broken but the outer seal
was intact. It is true that the matter was not referred to Electrical Inspector.
It is further stated that in case of a dispute between the Central Act and the
State Act, Central Act will prevail upon the State Act.
11.
We have noticed the facts in this case. We
have also considered the Sections of the Act of 1910 and it appears to us that
Section 26 is relevant only when there is any difference or a dispute arises in
connection with correctness of a meter, in that case the matter shall be decided,
upon being applied by either party, by an Electrical Inspector and in the
opinion of the Inspector if it is found that the meter is defective, the
Inspector shall estimate the amount of energy supplied to the consumer or the
electrical quantity contained in the supply during such time not exceeding six
months but if there is a question of fraud in tampering with the meter, in that
case there is no question of applicability of Section 26 of the said Act in
such a matter. In the instance case, we have asked the learned counsel
appearing for the respondent whether following Section 26(6), the respondent ever
asked or applied for checking of the meter by the Electrical Inspector on the
ground of defective meter. The answer was in the negative. Therefore, it shows
that the ingredients of Section 26(6) were not followed by the respondent to
meet the necessity of checking the meter in question in accordance with the
said provision.
12.
We have further
noticed that the inspection was made in the presence of the representative of
the respondent who is a Manager of the said company and in his presence the
meter was checked up and was found to be tampered with. We have also noticed
that the plea of duress or coercion in signing the inspection report was raised
by the respondent but in reality no allegation was made by the respondent
before an appropriate authority excepting such bald allegations have been made
before the writ court without any basis or evidence. Therefore that fact cannot
have any bearings in deciding this matter. We cannot brush aside the said fact
from the mind while dealing with the matter concerning tampering of meter. It
appears to us that the said aspect has escaped the attention of the High Court
and therefore, in our opinion, the High Court failed to appreciate the facts in
their proper perspective. Therefore, on this ground, we find that the High
Court has misconstrued the facts and the provisions of law in dealing with the
matter. The provision of law which deals with tampering of metering equipments,
i.e. clauses 56, 64 and 105 of the Code have not been considered by the High
Court and in our opinion the High Court has failed to construe such provisions
and erred in deciding the matter ignoring the said provisions. The High Court
accepted the position submitted on behalf of the respondent/writ-petitioner that
it was a case of defective meter and there is no question of any tampering with
the meter in question. The High Court has failed to appreciate that the
inspection was made and the fact of tampering of meter would appear from the
inspection report and such inspection report was signed on behalf of the respondent/writ-petitioner.
Therefore, the High Court ignoring the said fact, came to the conclusion
without giving any reason, that the inspection report is bad and has erred in
setting aside such inspection report. Hence, such findings of the High Court
cannot be sustained.
13.
Therefore, in
our opinion, the High Court was also wrong in not considering the rights of the
appellant to raise penal charges on the respondent on the ground of
unauthorised consumption by way of tampering the meter or metering equipment
and has a right to raise penal bill in accordance with the provisions of Code. On
this ground the High Court has erred in allowing the writ petition in favour of
the respondent, quashing the penal charges and further the direction given to
refund the amount. The said order is without any reason and cannot be sustained
in the eyes of law. Hence, the same is set aside.
14.
We have also
noticed in Madhya Pradesh Electricity Board & Ors. v. Smt. Basantibai
(supra), this Court held:
“9. It is
evident from the provisions of this section that a dispute as to whether any
meter referred to in sub-section (1) is or is not correct has to be decided by the
Electrical Inspector upon application made by either of the parties. It is for
the Inspector to determine whether the meter is correct or not and in case the
Inspector is of the opinion that the meter is not correct he shall estimate the
amount of energy supplied to the consumer or the electrical quantity contained
in the supply during a period not exceeding six months and direct the consumer
to pay the same. If there is an allegation of fraud committed by the consumer
in tampering with the meter or manipulating the supply line or breaking the
body seal of the meter resulting in not registering the amount of energy
supplied to the consumer or the electrical quantity contained in the supply, such
a dispute does not fall within the purview of subsection (6) of Section 26.
Such a dispute regarding the commission of fraud in tampering with the meter
and breaking the body seal is outside the ambit of Section 26(6) of the said
Act. An Electrical Inspector has, therefore, no jurisdiction to decide such
cases of fraud. It is only the dispute as to whether the meter is/is not
correct or it is inherently defective or faulty not recording correctly the electricity
consumed, that can be decided by the Electrica Inspector under the provisions
of the said Act.”
In Sub-Divisional
Officer (P), UHBVNL v. Dharam Pal 2006 (12) SCC 222, it appears to us that in
case of tampering, there is no scope for reference to Electrical Inspector. It
was held :
“9. In State of
W.B. v. Rupa Ice Factory (P) Ltd. [2004 (10) SCC 635], it was observed as
follows: (SCC p. 637, para 5)
“5. As regards
the second claim, namely, the claim for the period from December 1993 to
December 1995, the finding of the High Court is that the Vigilance Squad had
found that Respondent 1 had tapped the electric energy directly from the
transformer to the LT distribution board bypassing the meter circuit. If that is
so, we do not know as to why the High Court would go on to advert to Section 26
of the Electricity Act and direct reference to the Electrical Inspector for
decision under Section 26(6). In two decisions of this Court in M.P Electricity
Board v. Basantibai [1988 (1) SCC 23] and J.M.D. Alloys Ltd. v. Bihar SEB [2003
(5) SCC 226] it has been held that in cases of tampering or theft or pilferage
of electricity, the demand raised falls outside the scope of Section 26 of the
Electricity Act. If that is so, neither the limitation period mentioned in Section
26 of the Electricity Act nor the procedure for raising demand for electricity
consumed would arise at all. In this view of the matter, that part of the order
of the Division Bench of the High Court, directing that there should be a
reference to the Electrical Inspector, shall stand set aside. In other respects
the order of the High Court shall remain undisturbed. The appeal is allowed
accordingly.”
15.
In these circumstances, in our opinion, the High Court was wrong in
bringing the matter within the scope of the provision of Section 26(6) of the
said Act, and further the High Court was totally wrong in appreciation of facts
even on the question of inspection and stated that no representative was present
at that point of time. On the contrary, admittedly the Manager of the
respondent at the time of the inspection was present.
16.
In these
circumstances, the appeals are allowed, the writ petitions filed by the
respondent/writ-petitioner are dismissed and the order passed by the High Court
is set aside.
....................................J.
(Gyan Sudha Misra)
; .....................................J.
Pinaki Chandra Ghose)
New Delhi
March 26, 2014.
