Shanthi Theatres Private Ltd v. The Tamil Nadu Electricity Board

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.11.2009CORAMTHE HONOURABLE MR. JUSTICE N. KIRUBAKARANW.P.No.4278 of 2003andW.P.M.P.No.5370 of 2003Shanthi Theatres Private Ltdrep. by its Director..PetitionerVs.1. The Tamil Nadu Electricity Boardrep. by its Deputy Financial ControllerChennai Central Circle, Anna Salai,Chennai-600 002.2. The Superintending EngineerChennai Electrical Distribution Circle,CentralTamil Nadu Electricity Board, Chennai-600 034... RespondentsThe Writ Petition filed under Article 226 of the Constitution ofIndia for issuance of a Writ of Certiorarified Mandamus, to call forthe records of the proceedings of the respondents in connection withBill No.2034 dated 31.01.2003 and quash the same and consequentlydirect the respondents to receive the electricity consumption chargesbased on the recording in the meters.For Petitioner : Mr.E. Manokaran for Mr A.JenasenanFor Respondents : Mr.Selvendran for Respondents ORDERThe writ petition is filed challenging the Bill No.2034 dated31.01.2003 through which the petitioner was called upon to pay a sumof Rs.2,41,768/- termed as arrears for the period from November 2002to 20th January 2003. The facts of the case are as follows:2. The petitioner is running a cinema theatre known as "ShanthiTheatre" at Anna Salai, Chennai and is screening movies. Accordingto the petitioner, there was a surprise power check conducted by the https://hcservices.ecourts.gov.in/hcservices/ Assistant Engineer of the first respondent, the Tamil NaduElectricity Board and he observed that the meter was suspected to bedefective. Subsequently, the Assistant Engineer visited the theatreagain on 20.01.2003 and replaced the existing meter with a new meterand made an endorsement that the existing meter was defective. 3. Thereafter, on 27.01.2003 the reading of the new meter wasrecorded to be 4400 units for 8 days. Bill for the month of January2003 sent to the petitioner showed that the petitioner consumed27510 units for the month of January 2003 and called upon thepetitioner to pay a sum of Rs.1,21,554/- being the arrears for theperiod from November 2002 to 20th January 2003 amounting toRs.1,07,304/-in all amounting to Rs.2,41,768/-. The said bill ischallenged before this Court.4. The learned counsel for the petitioner submitted that whenthe meter was found to be defective, it is bounded duty of therespondent to refer the matter to the Electrical Inspector for hisopinion as per Section 26(6) of the Electricity Act, 1910. In thiscase, according to the counsel, no such procedure was followed and inthe absence of the said procedure, the demand for the said amount isnot sustainable. He relied upon the Judgment of the HonourableSupreme Court rendered in Bombay Electricity Supply and TransportUndertaking v. LAFFANS (INDIA) (P) LTD AND ANOTHER reported in 2005(4) SCC 327. In that case, the defective meter was not referred tothe opinion of the Electrical Inspector. In paragraph 14 of the saidjudgment, it was stated that the demand raised by theappellant/Electricity Board is justified based on the averageconsumption during the similar period and the calculation based onthe record of consumption for the corresponding period from theprevious year shall be taken as average consumption and so far asthe period which the meter is said to be incorrect, the demand hasnot been revised by the Electrical Inspector and hence it is notavailable to be revised. It was further held that when the meteralleged by the Electricity Board to be not correct it should havebeen referred to the Electrical Inspector under Section 26(6). ButElectricity Board cannot be allowed to raise the demand over andabove the demand raised through the bill issued for the period andpaid by the first respondent and that the right to raise additionalbills stands aloof by the appellant/ Electricity Board for re-valuation to be proceeded in accordance with Section 26(6) of theElectricity Act, 1910. 5. The learned counsel also referred to another judgment of thiscourt rendered in A.A.Mohd Raffi vs. Tamil Nadu Electricity Boardrepresented by its Chairman, Anna Salai, Madras-2 and 2 othersreported in 2003 CTC page 137. In that case also it was held by HisLordship Justice P. Sadasivam, as he then was, that Electricity Boardagain raised a bill in case of defective meter without approachingElectrical Inspector and without having resorted to under Section 26 https://hcservices.ecourts.gov.in/hcservices/ (6) and the said bill was held to be invalid and quashed.6. On the otherhand, Mr.Selvendran, the learned counsel for therespondent/Electricity Board contended that the defective electricmeter was referred to the Executive Engineer(MRT) and the same wasstated in paragraph 4 of the counter affidavit and based on hisopinion the amounts were demanded. He further submitted that as perSection 17(10) of the terms and conditions of the Electricity Supply,the Executive Engineer is authorised to assess the consumption andhence the amounts demand is justified.7. It is seen from the records that the inspection was conductedon 08.01.2003. During that period, the act namely Electricity Act,1910 was in force and said statute clearly governs the facts of thecase. As per section 26(6)of the Act when there is a dispute withregard to the meter it should be referred to the ElectricalInspector. Section 26(6) of the Act reads as follows:"Where any difference or dispute arises as towhether any meter referred to in sub-section (1)is or is not correct, the matter shall bedecided, upon the application of either party, byan Electrical Inspector; and where the meter has,in the opinion of such Inspector ceased to becorrect, such inspector shall estimate the amountof the energy supplied to the consumer or theelectrical quantity contained in the supply,during such time, not exceeding six months, asthe meter shall not, in the opinion of suchInspector have been correct; but save asaforesaid, the register of the meter shall, inthe absence of fraud, be conclusive proof of suchamount or quantity.Provided that before either a licensee or aconsumer applies to the Electrical Inspectorunder this sub-section, he shall give to theother party not less than seven days, notices ofhis intention so to do." 8. Thus, it is clear from Section 26(6) that when there is adispute with regard to the meter or the functioning of the meter,whether it is defective or non defective, the opinion of theElectrical Inspector had to be obtained. As far as the consumer isconcerned he could take advantage of non referring the meter to theElectrical Inspector because he would not be prejudiced whereas theElectricity Board would be prejudiced. Based on the opinion of theElectrical Inspector only, the Electricity Board would raise anadditional bill whereas in this case no such procedure was followedand that it would definitely be detrimental to the interest of theElectricity Board. When a procedure has been contemplated by an Act,the same has to be followed as per the said procedure as stated in https://hcservices.ecourts.gov.in/hcservices/ the Act. The learned counsel for the respondent relied upon Clause17(10) of the terms and conditions of supply to sustain hiscontention that the Electricity Board obtained the opinion of theExecutive Engineer (MRT). The terms and conditions are only acontract and at the best it could only be termed as sub-ordinatelegislation whereas the Electricity Act under Section 26(6) is thestatute. It is settled law that sub-ordinate legislation cannot override the statute and the statute alone will prevail. 9. Apart from that, the Honourable Supreme Court had categoricallystated in the judgment referred to above namely 2005 (4) SCC 327,that the right to raise additional bills stands lost by theElectricity Board for its failure to proceed in accordance withSection 26(6) of the Electricity Act,1910. In view of the proceduralirregularity which is mandate by Section 26(6) of the Act and also inview of the categorical pronouncement of the Honourable SupremeCourt, the respondent/Tamil Nadu Electricity Board cannot raise theadditional bill for the period from November 2002 to 20th January 2003and that portion of the bill is quashed. The above order shall notstand in the way of Electricity Board in referring the matter to theElectrical Inspector as per Section 26(6) of the Act. Further thisCourt cannot lose sight of the fact that 6 years since inspectionpassed and if any material is available, the respondent can proceedas stated above. 10. The above writ petition stands allowed with the abovedirection. No costs. Consequently the connected W.P.M.P.No.5370 of2003 is closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ ssjTo1. The Deputy Financial ControllerChennai Central Circle, Anna Salai,Chennai-600 002.2. The Superintending EngineerChennai Electrical Distribution Circle,CentralTamil Nadu Electricity Board, Chennai-600 034.+ 1 C.C. To Mr. A. Jenasenan, Advocate SR.NO.63783W.P.No.4278 of 2003RS[CO]KS 18/02/2010 25.11.2009