Hotel Nilachal Ashok Vs. Executive Engineer, Orissa State Electricity Board and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - further, under clause (h) of regulation 22 of the orissa state electricity board (general conditions of supply) regulation, 1981 (for short, the regulation') it is provided that in the event of meter being out of order for any reason during any month, the consumption will be determined on the basis of average consumption over the preceding three months and the faulty meter shall be replaced by another in good working order immediately or the same shall be repaired and reinstalled as expeditiously as possible and, during the time taken for repair/replacement, billing method on average consumption shall be continued. regulation 22(h) of the regulations clearly postulates that in the case of a defective meter the energy consumed shall be determined on the basis of average consumption over the preceding three months. the decisions relied upon by the petitioner, contended sri rath have no application to the facts and circumstances of the present case since the concerned states do not have similar provisions like regulation 22(h) of the board.r.k. dash, j. m/s. utkal ashok hotel corporation (for short, 'the corporation') is a company duly incorporated under the indian companies act in which indian tourism development corporation and the orissa tourism development corporation are the major share holders. the corporation has a unit in the same and style of m/s. hotel nilachal ashok (for short, 'the hotel') in the town of puri. for supply of electric energy to the hotel, the corporation entered into an agreement with the orissa state electricity board (for short, 'the board'). on or about july/august, 1992 the corporation noticed a defect in the meter installed in the hotel and to get it repaired/replaced officials of the board were approached several times. ultimately, the sub-divisional officer, puri sub-division no. 1, inspected the meter and assured for immediate replacement thereof. but no sincere effort was made by the board despite several communications made in that regard under annexure-3 series. when this was the state of affairs, the board issued bills on the basis of average consumption over preceding three months. even though the demand was excessive, yet the corporation paid the bills under protest and requested for immediate replacement of the meter. this request was however, not heeded to. on the contrary, the board served a notice on 19-3-1993 that since objection has been raised by the board's internal audit as, to the mode of calculation, the actual consumption of energy shall be determined afresh on the basis of average consumption made in the months of april, may and june, 1992 instead of may, june and july, 1992. it is asserted that although average consumption per month was about 40,000 units, but by adopting wrong procedure, inasmuch as calculation being made on average basis, it was raised to 47,050 units under annexure-5 series. again, on further determination, the executive engineer enhanced it to 51,534 units; whereupon the board informed the corporation to make additional payment of rs. 60,000/-, withpenal charges. on 29-10-1993 the board further intimated that an amount of rupees 3.36 lakhs is outstanding against it. to this, immediate reply was sent indicating that the demand was illegal and excessive. on receipt of such reply, the board abruptly disconnected the supply with effect from 23-7-1993, but two days thereafter, restored the same with a stipulation that the payment of rupees 3.21 lakhs should be made in six instalments. the corporation without prejudice to its right and in the compelling circumstances paid the amount.2. all the times, the board paid a deaf ear to the request of the corporation for replacement/repair of the defective meter though, according to section 20(1) read with section 26 of the indian electricity act, 1910 (for short, 'the electricity act'), it is obligatory of the board to instal a defect-free meter. further, under clause (h) of regulation 22 of the orissa state electricity board (general conditions of supply) regulation, 1981 (for short, 'the regulation') it is provided that in the event of meter being out of order for any reason during any month, the consumption will be determined on the basis of average consumption over the preceding three months and the faulty meter shall be replaced by another in good working order immediately or the same shall be repaired and reinstalled as expeditiously as possible and, during the time taken for repair/replacement, billing method on average consumption shall be continued. in view of such provision in the electricity act and regulations, the board should have taken immediate measure for repair/replacement of the defective meter when timely information had been given to it, but it did not do so. therefore, the demand of the board for payment of bills on average calculation is illegal and cannot be enforced. in that view of the matter, the corporation prays that the demands as per annexure-5 series and further demands as per annexures 6 and 9 by the board should be quashed.3. opposite parties on being noticed filed return contending, inter alia, that since the meter installed in the petitioner's hotel became defective with effect from july, 1992 thebills from the next month onwards were by calculating the average consumption over the preceding three months as per the provision contained in regulation 22(h) of the regulations. on receipt of the bills to the tune of rupees three lakhs and odd, the petitioner paid a sum of rs. 50,000/- and for the balance it made a representation to the authorities to grant instalments. considering the prayer, the opp. parties permitted to pay rs. 1,68,000/-and odd in the first instalment and the rest in three equal instalments. accordingly the petitioner paid the first instalment on 8-12-1993, but thereafter stopped payment and approached this court by filing the present writ application.4. learned counsel sri bijan ray, appearing for the petitioner has contended that the authorities of the board were quite aware that the electric meter of the hotel became defective since july, 1992, but then no steps were taken to replace the same. instead, the authorities issued bills on average basis from august, 1992 till august, 1994 which they are incompetent to do in view of section 26(6) of the electricity act. elucidating the point sri ray has urged that there is clear mandate in the aforesaid provision that in case of any difference or dispute with regard to correctness or otherwise of the meter, the same shall be decided upon application by either party by the electrical inspector and if in the opinion of the inspector the meter has ceased to be correct he shall estimate the amount of energy supplied to the consumer during such time not extending six months. in the present case, therefore, the board ought to have referred the matter to the electrical inspector and that having not been done, it cannot call upon the consumer to make payment, on average basis. sri ray has further submitted that regulation 22(h) of the regulations though provides that in the event of a meter being out of order the consumption would be determined on the basis of average over the preceding three months, but the same being inconsistent with the statutory provision of section 26(6) of the electricity act cannot have any legal effect. alternatively he has argued that by taking advantage of the aforesaid provision of the regulations the authorities of the board cannot calculate the charges for all the times on average basis without replacing the meter. in support of his such contention sri ray has referred to clause (f) of regulation 22 which envisages that quantum of electrical energy supplied to the consumer shall be ascertained by a defect-free meter and whenever any defect is noticed, it shall be removed or replaced within 'reasonable time'. sri ray having referred to certain decisions of the apex court has further submitted that since the electrical inspector is the competent authority to estimate the amount of energy supplied in the case of defective meter, the board does not have any power to raise the bills on the basis of average consumption.per contra, sri g. rath, learned counsel for the board has urged that though section 26(6) of the electricity act provides for resolution of disputes with regard to defective meter by the electrical inspector, but there is no provision or guideline thereunder as to how the inspector shall determine the quantum of energy consumed during the period the meter was found not recording correct reading. it is because of that, contended sri rath, the board by virtue of section 79 (j) and iii 49 of the electricity (supply) act, 1948 framed the regulations regarding general conditions of supply of electricity. regulation 22(h) of the regulations clearly postulates that in the case of a defective meter the energy consumed shall be determined on the basis of average consumption over the preceding three months. the decisions relied upon by the petitioner, contended sri rath have no application to the facts and circumstances of the present case since the concerned states do not have similar provisions like regulation 22(h) of the board. lastly, sri rath has submitted that it being the admitted case of the parties that the meter went out of order since july, 1992 and there being no dispute about the same, section 26(6) of the electricity act, has no application at all.5. for resolution of the controversies and to appreciate the points raised, it is necessary to take stock of the relevant statutory provisions and the regulations governing the field.we may first refer to section 23 of the electricity act which prescribes the mode of charge for energy supplied to a consumer;'23. charges for energy to be made without undue preference: (1) xx xx (2) xx xx (3) in the absence of an agreement to the contrary, a licensee may charge for energy supplied by him to any consumer- (a) by the actual amount of energy so supplied, or (b) by the electrical quantity contained in the supply, or (c) by such other method as may be approved by the state government. (4) any charges made by a licensee under clause (c) of sub-section (3) may be based upon, and vary in accordance with, any one or more of the following considerations, namely- (a) the consumer's load factor, or (b) the power factor of his load, or (c) his total consumption of energy during any stated period, or (d) the hours at which the supply of energy is required.' the next provision which has hearing on the issue is section 26 of the aforesaid act. it provides as to how the meter is to be maintained and the quantity of the energy supplied to the consumer is to be ascertained. for appreciation, the said provision necessary for the purpose, is set out hereunden-'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 ofa 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 as hired as aforesaid, all reasonable expenses of, and incidental to, such inspecting, testing, taking off and removing shall, if the motor 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) xx xx xx (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, notexceeding six months, as the meter shall not, in the opinion of a 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.'the aforesaid two provisions of the electricity act govern the rights, duties and obligations of both licensee and consumer with regard to the mode of supply of energy and maintenance of the meter. as provided in section 23, licensee shall charge for the energy supplied to the consumer by any of the three modes, viz., actual amount of energy supplied, electrical quantity contained in the supply or by such other method as may be approved by the state government. for ascertaining the amount of energy so supplied a meter is installed in the premises of the consumer. where the said meter is supplied by the licensee on hire, as envisaged in section 26, it is the primary duty of the licensee to maintain the same correctly and for doing so he shall at any reasonable time have access to and be at liberty to inspect and test the same. while doing so, the meter, if found to be defective or is not registering correct consumption of energy, it is obligatory of the licensee either to rectify the defect or instal a new meter and this has to be done as expeditiously as possible, the reason being that consumer's liability to pay the charges towards consumption of energy is dependent upon the actual reading of the meter; in other words on the basis of the amount of energy supplied or electrical quantity contained in the supply. however, in case of any dispute as to whether the meter referred to in sub-section (1) is correct or incorrect, the same has to be decided by the electrical inspector upon application being made by either of the parties. it is then for the inspector to determine whether the meter is correct or not and in case he is of the opinion that the same is incorrect he shall estimate the amount of energy supplied during the period not exceeding six months.6. in the case in hand, undisputedly the meter installed in the hotel became defective in july, 1992 and that is the reason why the board when supplied the monthly bill under annexure-5 mentioned the meter to have been stopped on a particular reading. when the board was quite aware of the defect in the meter, it ought to have taken necessary steps as provided under the electricity act to replace the same within the reasonable time, but it did not. on the other hand, it continued to supply electric energy as usual and furnished bills on average calculation. for its own neglect and laches it cannot raise large bills arbitrarily and compel the consumer to pay the same. duties cast on the licensee as provided in section 26 have to be performed scrupulously and to any deviation thereof, blame must go to it and not to the consumer. legislative intention behind the aforesaid provisions should be read and interpreted according to the intent of them that made it. when the statute in clear terms has prescribed the duties and responsibilities of the licensee regarding the mode of supply of electric energy and calculation thereof as also correction of defects noticed in the meter, it cannot proceed on its own way and compel the consumer to bide by its dictates with a threat to disconnect the line. it admits of no doubt that in case of dispute with regard to any defect or non-functioning of the meter, the same has to be decided by the electrical inspector and not by the licensee. in the case of m. p. e. b. v. smt. basantibai, air 1988 sc 71, non-working of one phase of the meter was held to be a dispute within the meaning of section 26 and electrical inspector was competent to decide it. in that view of the matter, and on analysis of the provisions of the electricity act, we are of the considered opinion that in the present case, the dispute whether the meter is or is not correct ought to have been referred to the electrical inspector for his decision.7. learned senior counsel sri g. rath has submitted that the regulations framed by the board have statutory force and there being no guidelines in the electricity act as to how the inspector shall determine the quantum of energy consumed by the petitioner, theboard by resorting to regulation 22(h),determined the quantum on the basis ofaverage consumption over the precedingthree months and, therefore, no fault can befound with the board for demanding paymentas calculated. 8. we may in this context turn to certain provisions of the regulations bearing on the issue. regulation 22(h) of the regulations envisages in clear terms that in the event of the meter being but of order, the quantity of consumption will be determined on the basis of average consumption and the faulty meter shall be replaced by another one in working order or the same shall be repaired and reinstalled as expeditiously as possible. likewise regulation 22(f) also provides that the quantity of energy supplied to the consumer shall be ascertained by means of a defect-free meter hired from the board and if the meter is found to be defective, the same shall be replaced within a reasonable time. the terra 'reasonable time' as defined in the law as lexicon is 'that much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case'. 'a reasonable time, looking at all the circumstances of the case, a reasonable time under ordinary circumstances; as soon as circumstances will permit, so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea'. in the case in hand, the licensee though calculated consumption of electricity on average basis with the aid of regulation 22(h), but it did take no steps to repair or replace the defective meter till august, 1994 when it was aware that the meter became defunct in july, 1992. by no stretch of imagination period of two years can be said to be 'reasonable time' for replacing the meter in question. in that view of the matter, the method of calculation adopted bythe licensee being contrary to the electricity act and regulations, cannot be approved.9. in view of discussions made above, the writ application is allowed and consequently the demands as per annexure-5 series and further demands as per annexures 6 and 9 are quashed. however, the board is at liberty to raise fresh bills in accordance with law. we make it clear that payment already made to the board shall not be refunded, but the same shall be adjusted against the fresh bills issued after due determination.in the circumstances of the case, there shall be no order as to costs.s. chatterji, a.c.j. 10. i agree.