Judgment:
Shivaraj Patil, J.
1. This Writ Appeal is by respondents 1 and 2 in the Writ Petition. The petitioner filed the Writ Petition and prayed for the following reliefs;
(a) Call for the records from the respondents which ultimately resulted in issuing the communication Annexure-A.
(b) Declare that the Section 5 of the Karnataka Electricity Board, Recovery of Dues, Act, 1976 as illegal and void in law.
(c) Declare the Regulation No. 41(e)(1) of the Regulations of the Karnataka Electricity Board to the extent it directs the consumer to deposit the amount demanded in the bill before filing an appeal as illegal and void in law.
(d) Issue a writ, order or direction in the nature of writ of certiorari or any other appropriate writ order or direction quashing the - Annexure-A dated 26-12-1988 made in No. N4/AEE/ AAO/4540 by the 2nd respondent.
(e) Grant such other reliefs as this Hon'ble Court may deem fit on the facts and in the circumstances of the case including the cost of this writ petition.
2. The petitioner's case was that it was a Private Limited Company carrying on the business in Plastic and Rubber at Industrial Estate, Peenya, Bangalore since 1982; the first respondent had given electrical connection to it through Meter No. RR W10/P.287/P1 430; neither the petitioner nor its employees had tampered with the said meter of electrical installation at any time; on 2-3-1988 it was noticed by the Manager of the petitioner Company that the said meter installed in the factory of the petitioner was not functioning properly; the petitioner-Company gave a letter dated 2-3-1988 to the second respondent; when no response was received, it sent another reminder dated 13-3-1988 by registered post acknowledgment due and also by hand delivery to the second respondent, served on 13-3-1988 itself; however in spite of repeated complaints given by the petitioner no steps were taken to rectify the defect in the meter; according to it the meter was running very fast; to the utter surprise, the petitioner received a communication dated 26-12-1988 (Annexure-A to the writ petition), in which it was stated that the meter installed in the premises of the petitioner was inspected by Meter Testing Division, Staff, K.E.B. along with Technical Audit Cell staff on 23-4-1988 and found that the meter was not recording; on that basis back billing was issued to the petitioner; the petitioner denied that the meter was inspected on 23-4-1988 as stated and Annexure-A was illegal and void in law.
3. The learned single Judge held that the Decision of the Supreme Court in M.P.E.B. AND ORS. v. SMT. BASANTI BAI, AlR 1988 SC 71covered the matter in controversy. Accordingly, he allowed the Writ Petition.
4. In this Appeal before us, Sri. Ashok R. Kalyan Shetty, learned Counsel for respondents 1 and 2, urged that it is a case where the meter did not record any reading at all and it is not a case of faulty or defective recording of meter, As such the provisions of Section 26(6) of the Indian Electricity Act, 1910 (for short the Act) cannot be applied to the facts of the case on hand. According to him Regulation 29.02 of the Karnataka Electricity Board Electricity Supply Regulations, 1988 (for short the Regulations) is attracted and the demand raised under Annexure-A was in accordance with the said Regulations. His submission was that the Decision in Madhya Pradesh Electricity Board , has no application to the facts of the case on hand.
5. On the other hand, learned Counsel for the petitioner, made submission in support of the order under Appeal.
6. In order to appreciate the contentions it is useful to extract the relevant portion of Section 26 of the Act and Regulations 29.01 and 29.02 of the Regulations:
'Section 26(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 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.
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'.
'Regulation 29.01: Board will conduct periodical inspection/ tests to check the working/correctness of meter. If the meter is found to be faulty, it would be replaced at the earliest.
Regulation 29.02: If the meter is found not recording (for any reason other than tampering) the consumer will be billed for a period of not more than six billing months preceding the date of inspection/testing on the basis of the average energy consumption of the immediately preceding 3 (three) billing months when the meter was recording properly plus demand/fixed charges.
Notwithstanding, where it is established that a meter is out of order only for a few days in a billing month, the consumption for such period shall be computed on pro-rata basis of the consumption recorded for the remaining number of days in the billing month.
Also, where the recorded consumption is not available fully for three preceding billing months, the available consumption of such lesser period shall be deemed sufficient for computing the consumption, provided consumption of atleast one full billing month is clearly established. Notwithstanding anything specified in this condition, the quantity of electricity supplied shall be assessed by the Board on the basis of production figures of usage of electricity or on such other basis as the Board may keep proper'.
7. In our considered opinion, the controversy raised falls within the ambit of Section 26(6). In the instant case, the petitioner did make complaints to respondents 1 and 2 that the meter was not correct and requested them to set right. Respondents 1 and 2 did not give any response and there are no allegations that the petitioner tampered with the meter, if the meter is faulty or defective, and, it records slow or does not record, it is to be taken that the meter is not correct. Section 26(6) cannot be read and understood in the narrow sense as the learned Counsel Sri Ashok Kalyana Shetty wants of faulty or defective recording. He wanted to take support to his argument from the Explanation to Section 26. The Explanation only states that when a meter shall be deemed to be 'correct'. Where a dispute arises as to whether any meter is or is not correct, the matter shall have to be decided by an Electrical Inspector. Such dispute may arise on account of faulty, defective or non-recording of meter. The case of Madhya Pradesh Electricity Board, in our view fully covers the case on hand. In that case also the meter was burnt and the same was brought to the notice of the Assistant Engineer. Without installing a new meter the installation was checked and found that out of three phases one phase was not working. Thus, there was no recording of actual energy supplied. The Supreme Court stated that it is evident from the provisions of Section 26 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. It is for the Inspector to determine whether the meter is correct or not. If there is 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 Sub-section (6) of Section 26 and that a dispute regarding the commission of fraud in tampering with the meter and breaking the body seal is out side the ambit of Section 26(6) of the Act. In the case with which we are concerned there is no allegation of commission of fraud in tampering with the meter and breaking the body seal. Hence, we have no hesitation to hold that the dispute that had arisen falls within the ambit of Section 26(6) as to whether the meter is correct or not. We do not accept the argument of the learned Counsel for respondents 1 and 2 that Regulation 29.02 applies to the facts of the case. Even otherwise, when the facts of the case are covered by the Judgment of the Supreme Court supra to the effect that Section 26(6) of the Act applies, the Regulation 29.02 has to yield to the said provision.
8. Under the circumstances, we do not find any good or valid reason to differ from the conclusion arrived at by the learned single Judge and granting the relief to the Writ petitioner. Hence, we find no merit in this Writ Appeal. As such, the same is dismissed. There shall be no order as to costs.