2004(1) ALL MR 157
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.M.S. KHANDEPARKAR, J.

Municipal Corporation Of Brihan Mumbai Vs. Hotel Hill Top International & Ors.

Writ Petition No.441 of 2001

24th September, 2003

Petitioner Counsel: Shri. H. TOOR,CRAWFORD BAYLEY & Co
Respondent Counsel: Shri. P. N. MOD,M/s. NARAYANAN & NARAYANAN,Shri. M. D. NAIK

(A) Electricity Act (1910), S.26(6) - Powers of Electrical Inspector - Dispute as to whether meter in question is a correct one or faulty meter - Dispute requires to be decided by Electrical Inspector in terms of S.26(6) of the Act - However, in a case where the meter has totally stopped functioning or where the parties do not dispute that meter is malfunctioning there remains hardly any scope for any investigation by the Inspector.

The power as regards the dispute on the point of functioning of a meter has been given to the Electrical Inspector because he enjoys the expertise to know about the functioning of the meter and being the appropriate authority to ascertain whether there is any defect in the functioning of the meter or not. However, in a case where the meter has totally stopped functioning or where the parties do not dispute that the meter is malfunctioning, there remains hardly any scope for any investigation by the Inspector or for utilisation of his expertisation in the field, and therefore, in such a situation, there cannot be any occasion for the Inspector to exercise his powers under the Section 26(6) of the said Act. The Electrical Inspector has to ascertain in exercise of such power as to whether the meter in question is or is not correct i.e., on the day of inspection of the meter and not as to whether in past it was or was not correct. Undoubtedly, once the Inspector comes to the conclusion that the meter is not correct, he is empowered to calculate amount of the liability of the consumer for the supply made to the consumer during the period of preceding six months from the day on which the meter is found to be not correct. AIR 1988 SC 71 - Followed. [Para 6,11]

(B) Electricity Act (1910), S.26(6) - Wrong billing - Right of consumer under S.26(6) - Consumer would not be entitled to pursue the remedy under S.26(6) of the Act without depositing the amount demanded under the bill issued to the consumer - Default on the part of licensee in not replacing the defective meter inspite of request made by consumer - Licensee not entitled to assume itself the authority to decide liability of Consumer.

The procedure to be followed by the licensee for the recovery of dues from the consumer relating to the actual consumption of the units of electricity by the consumer during the period the meter had stopped working, or was undisputedly malfunctioning or not recording the consumption accurately, and particularly in the facts and circumstances of the case, is the normal procedure of recovery of the disputed dues by establishing the factum of dues and by pursuing the regular civil remedy for that purpose. In fact, the sub-clause (c) of the Clause 18 of Conditions and Miscellaneous charges for supply of Electrical Energy does give indication in that regard wherein it has been clearly stated that pursuant to failure on the part of the consumer to pay the amount demanded in terms of the bills served upon him, the petitioner is empowered to disconnect the supply after issuance of seven days notice without prejudice to their right to recover the amount of the bill by a suit. Undoubtedly, the said clause relates to the bill prepared on the basis of the meter reading and the dispute sought to be raised in that regard by the consumer in terms of the Section 26(6) of the said Act. However, it reveals that the petitioner, in the absence of the provision under the said Act or the Rules framed thereunder, is not entitled to assume itself the authority to decide about the liability of the consumer even in cases of default on the part of the petitioner itself in not replacing the meter inspite of the fact that the meter was defective and the same was brought to the notice of the petitioner by the consumer and yet the petitioner had allowed to continue the defective meter to remain installed at the establishment of the consumer for a considerably long period and thereafter had sought to claim the amount as arrears. In this regard, the bill which was issued by the petitioner reveals a claim of Rs.3,132/- for "Additional Charges for Wrong Billing". Undisputedly, wrong billing was done by the petitioner itself. It is beyond comprehension of any prudent man as to how a person who himself is responsible for the mistake committed by him, can claim the compensation from others for his own mistake. It is absolutely ridiculous. AIR 1998 SC 849 and AIR 1995 Bom 79 - Referred to. [Para 19]

Cases Cited:
Brihanmumbai Municipal Corporation Vs. M/s. Sapyah Trust and Sarkar Trust, 2002(2) ALL MR 163=AIR 2002 Bom 315 [Para 4,9]
Rajasthan State Electricity Board Vs. State of Rajasthan, AIR 1986 Rajasthan 38 [Para 4,9]
Chief Engineer Electricity, APSEB Hyderabad Vs. Srinivasa Modern Rice Mill, Ramagiri, AIR 2000 A.P. 12 [Para 4,9]
Tata Hydro-Electric Power Supply Co. Ltd., Vs. Union of India, 2003(2) ALL MR 343 (S.C.)=(2003)4 SCC 172 [Para 4,8]
Mumbai Municipal Corporation of Greater Bombay Vs. The Minister for State (Energy), W.P. No.955 of 2000 Dt:5-6-2003 [Para 4]
M/s. Hotel Nilachal Ashok Vs. Executive Engineer, Orissa State Electricity Board, AIR 1997 Orissa 14 [Para 4,22]
Ashok Textiles Vs. Gujarat Electricity Board, AIR 2003 Gujarat 95 [Para 4,22]
A. A. Mohd, Raffi Vs. Tamil Nadu Electricity Board, Madras, AIR 2000 Madras 481 [Para 4,22]
M/s. Sri Krishnarajendra Mills Ltd., Mysore Vs. The Chairman, Karnataka Electricity Board Bangalore, AIR 1991 Karnataka 345 [Para 4,21]
U.P.S.E.B. Vs. Atma Steels, AIR 1998 SC 846 [Para 4,20]
Khurshed Sorabji Cooper Vs. Bombay Electric Supply and Transport Undertaking, AIR 1995 Bom. 79 [Para 4,22]
Bharat Barrel and Drum Mfg. Co. Ltd., Vs. Municipal Corporation of Greater Bombay, AIR 1985 Bom. 415 [Para 4,10]
M.P.E.B. Vs. Smt. Basantibai, AIR 1988 SC 71 [Para 7,9]
Sapphire Machines Pvt. Ltd., Vs. Bombay Municipal Corpn, W.P. No.1925/1999, Dt: 5-8-1999 [Para 9]


JUDGMENT

JUDGMENT :- Heard. Perused the records. The following questions arise for determination in this petition :-

(i) Whether, in a case of absence of dispute about the total stoppage or malfunctioning of the meter, can the Electrical Inspector exercise the power under the Section 26(6) of the Indian Electricity Act, 1910, hereinafter called as "the said Act", and if so, at what stage?

(ii) What is the procedure to be followed by the licensee for the recovery of the amount for the actual quantity of the units of electricity consumed by the consumer during the period when the meter, to the knowledge of the licensee, had undisputedly stopped or had been, undisputedly, malfunctioning?

2. The petitioner-Corporation challenges the orders passed by the Electrical Inspector on 18-8-1999 in exercise of the power under the Section 26(6) of the said Act and the Appellate Authority on 2-2-2000 in exercise of the power under the Section 36(2) of the said Act.

3. The facts relevant for the decision are that the petitioner-Corporation is engaged in the supply of electrical energy to the area comprised of Mumbai as the licensee within the meaning of the said expression under the said Act. The establishment of the respondent No.1 comprises of hotel premises. Initially the supply of electricity to the establishment of the respondent No.1 was measured with the help of three meters bearing Nos.R.780150, R.910468 and D-920832. On 7-12-1993, the said three meters were replaced by a CT operated meter No. S-93055. In the course of routine inspection by the Energy Audit Department of the petitioner no 27-1-1995, the said CT operated meter was found to be defective and was not recording the consumption of supply of electricity accurately. Consequently, the petitioner served unpon the respondent a supplementary bill stating to be the amendment to the bills for the period from 7-12-1993 to 20-6-1995, amounting to Rs.33,50,227.30 ps. along with their letter dated 17-1-1997. It was informed that the amount was calculated on the basis of average of 47794 units per month in relation to the consumption for the period from 20-6-1996 to 29-12-1996. By reply dated 29-1-1997, the respondent No.1, explaining the difficulties faced by them during the relevant period, affecting their business, contended that the demand for Rs.33 lakhs was irrational and unreasonable and did not conform to the reality, besides reminding the petitioner that irrespective of the meter being defective and no bills were being received, the respondent No.1 had continued to pay regularly on the basis of duplicate bills located from the records of the petitioner and consequently, by then, they had already paid a sum of Rs.16 lakhs and therefore requested for the withdrawal of demand for payment. By letter dated 29-8-1997 the respondent No.1 was informed by the petitioner that the disputed claim of Rs.33,50,227.30 ps. was referred to the review committee, which was set up by the petitioner to give opportunity to the consumers to present their case before such committee. It was also informed that the petitioner would be called for hearing in due course. It appears that in the weekly meetings of the review committee, held on 3-10-1997 and 9-10-1997, the case of the respondent No.1 was considered and the demand was reduced by 50%. Not satisfied with the decision, the respondent No.1 by their letter dated 13-10-1997 requested for proper calculations in that regard while submitting the details regarding room occupancy in the hotel premises of the respondent No.1 during the period from March, 1994 to July, 1995. In the weekly meeting of the review committee held on 16-10-1997, it was further clarified that the amendment to the demand was restricted to "the concession of 50% consumption up to 31st of May, 1995, excluding April, 1995, the basis remaining same as decided in the meeting held on 9-10-1997." Again in the meeting of the review committee held on 7-4-1998, while confirming the demand of Rs.17,87,072/-, it was also held that the respondent No.1 was liable to pay for under-billing for the period from 1-8-1995 to 4-9-1995 to the extent of Rs.5,75,883.83 ps. in relation to 11552 units. The same was communicated to the respondent No.1 by letter dated 29-4-1998 along with the bill No.717/215/001. However, the respondent No.1, being not satisfied, by their letter dated 7-5-1998 requested for re-assessment of the computation of the units consumed by the respondent No.1 and the total amount due for the same. Further, by the letter dated 7-5-1998 the respondent No.1 sought to contend that the meter had remained defective for 18 months despite their requests to replace the same and the same was entirely on account of failure to do the needful by the petitioner besides being that the claim for the arrears could not exceed the period of six months and therefore requested for re-assessment. By letter dated 5-6-1998, the Review Committee of the petitioner informed the rejection of the request by the respondent No.1 and confirmed the revised claim of Rs.17,87,072/-. It was also informed that failure to pay the amount within seven days from the receipt of the said letter, might constrain the petitioner to disconnect the electric supply to the establishment of the respondent No.1. The respondent No.1 by letter dated 23-6-1998, while forwarding a sum of Rs.5 lakhs as provisional payment under protest, repeated the request for re-assessment. The petitioner by its letter dated 23-6-1998, after giving the credit to the provisional payment made subsequent to revision of demand, requested the respondent No.1 to pay the balance amount of Rs.12,87,072/- within seven days from the receipt of the said letter, while warning that failure to do so might result in disconnection of the electric supply without further notice. However, the respondent No.1 still persisted with the request under their letter dated 26-6-1998, but without any success, as the said request was rejected by the petitioner by its letter dated 30-7-1998, repeating the warning regarding disconnection of the electric supply to the establishment of the respondent No.1. Meanwhile, by letter dated 29-7-1998, the respondent No.1 sought to refer the matter to the Electrical Inspector for review of the position in proper perspective to arrive at a just and rational settlement, and further requested for grant of stay of the threatened disconnection of the electric supply by the petitioner. The said letter was registered as the Dispute Case No.24 of 1998 by the Electrical Inspector and after hearing both the parties, by its order dated 18-8-1999, the supplementary bill issued by the petitioner was cancelled and it was directed that the supplementary bill should be restricted to the period from 20-12-1994 to 20-6-1995 with the average units of 38026 per month and while considering the amount due and payable on the basis of such calculation, credit should be given to the respondent No.1 of the sum of Rs.10 lakhs by deducting the same from the total amount payable in terms of the revised bill. Being aggrieved by the said order, the petitioner preferred an appeal before the Appellate Authority which was dismissed while confirming the decision given by the Electrical Inspector and holding that the meter was defective and the Section 26(6) of the said Act was applicable. The records also reveal that the respondent No.1 had paid sum of rupees ten lakh after the revision of demand for arrears.

4. The learned Advocate appearing for the petitioner, while assailing the impugned orders, has submitted that the Section 26(6) of the said Act relates to the dispute relating to functioning of the meter and not to a case where there is no dispute about the malfunctioning of the meter or a case where the meter is found to have totally stopped functioning and in such a case considering the provisions of the Clause 18(b) of the Conditions and Miscellaneous Charges for the Supply of Electrical Energy, hereinafter called as "the said Conditions", framed by the petitioner in exercise of the power under the Section 21(2) of the said Act, and the same having received legislative sanction, the matter was dealt with by the review committee and based on the decision of the review committee a supplementary bill was issued. Being so, it was beyond the jurisdiction of the Electrical Inspector to entertain the complaint filed by the respondent No.1 and to consider it as the dispute which can be gone into in exercise of his power under the Section 26(6) of the said Act. He further submitted that the fact that the meter in question had stopped functioning or was not recording the consumption of the supply accurately was never in dispute and, therefore, there was no cause for the Electrical Inspector to calculate the amount for a period of six months in exercise of his power under the Section 26(6) of the said Act. He further submitted that in such a situation the bar of six months provided under the Section 26(6) of the said Act is not attracted and the consumer would be liable to pay for whatever electric supply he might have enjoyed for the period during which the meter was found malfunctioning or had totally stopped functioning, and the calculation in that regard is to be done by the review committee. Much stress was laid on the Clause 18(b) of the said Conditions stated to have been formulated in terms of the power under the Section 21(2) of the said Act. Reliance is placed in the decisions in the matters of Brihanmumbai Municipal Corporation Vs. M/s. Sapyah Trust and Sarkar Trust and others, reported in AIR 2002 Bombay 315 : [2003(2) ALL MR 343 (S.C.)], Rajasthan State Electricity Board Vs. State of Rajasthan and others, reported in AIR 1986 Rajasthan 38, Chief Engineer, Electricity APSEB Hyderabad Vs. Srinivasa Modern Rice Mill, Ramagiri, reported in AIR 2000 A.P. 12 and Tate Hydro-Electric Power Supply Co. Ltd. and others Vs. Union of India, reported in (2003)4 SCC 172 : [2003(2) ALL MR 343 (S.C.)] in support of the contentions on behalf of the petitioner. Attention is also drawn to an unreported decision delivered by me in the matter of Mumbai Municipal Corporation of Greater Bombay Vs. The Minister for State(Energy) and others on 5-6-2003 in Writ Petition No.955 of 2000. The learned Advocate appearing for the respondent No.1, on the other hand, has submitted that immediately upon the CT operated meter being provided to the establishment of the respondent No.1 sometimes in January, 1994, the petitioner was informed by the respondent No.1 about the malfunctioning of the said meter and yet no action was taken by the petitioner on the said complaint. Further that inspite of repeated efforts on the part of the respondent No.1 to bring the said fact to the notice of the petitioner, no action was taken and it was only in the course of routine inspection of the meter in January, 1995 that the fact of malfunctioning of the meter was claimed to have been detected. Even thereafter no steps were taken to refer the matter to the Electrical Inspector under the Section 26(6) or to replace the said defective meter till June, 1995 and only on 20-6-1995 the said meter was displaced and a new meter bearing No.S-95038 was installed. Even thereafter the supplementary bill was issued as late as in January, 1997, in relation to the period from 7-12-1993 to 20-6-1995. According to the respondent No.1, the complaint regarding malfunctioning of the meter was given to the petitioner immediately after its installation and yet no action was taken on the said complaint and, therefore, it was not a case of absence of any dispute regarding malfunctioning of the meter and hence no fault can be found with the exercise of power by the Electrical Inspector under the Section 26(6), pursuant to the complaint filed by the respondent No.1 in that regard. Further, drawing attention to the bills, particularly dated 23-3-1995 and 25-4-1995, issued by the petitioner to the respondent No.1 in relation to the meter No.S-930055 which was provided to the establishment of the respondent No.1 since December, 1993 till June, 1995, it is contended that the contents of those bills apparently disclose that consumption of units were in fact recorded in the meter, but undoubtedly, not accurately disclosing the actual consumption of supply. While in the bill dated 23-3-1995, it disclosed the consumption of 2400 units after noting that "the past reading" in the meter was 2651, whereas "the present reading" to be 2711, and in the bill dated 25-5-1995, it disclosed the consumption of 16000 units while recording "the past reading" to be 2711 and "the present reading" to be 3111. This, according to the learned Advocate, clearly discloses that it was not a case of stop meter but it was a case of malfunctioning of the meter and as there was a dispute on this count, and therefore the Electrical Inspector had ample jurisdiction to deal with the matter. He has also submitted that apart from the Section 26(6) of the said Act, the sub-clause (3) of the Clause VI of the Schedule to the said Act also empowers the Inspector to deal with the disputes regarding the defective apparatus and the expression "the apparatus" would include the meters. He has also submitted that the calculations made by the review committee were irrational and without any cogent material in support of the demand. Reliance is sought to be placed in the decisions in the matters of M/s. Hotel Nilachal Ashok Vs. Executive Engineer, Orissa State Electricity Board and others, reported in AIR 1997 Orissa 14, Ashok Textiles Vs. Gujarat Electricity Board and others reported in AIR 2003 Gujarat 95, A. A. Mohd. Raffi Vs. Tamil Nadu Electricity Board, Madras and others, reported in AIR 2000 Madras 481, M/s. Sri. Krishnarajendra Mills Ltd., Mysore Vs. The Chairman, Karnataka Electricity Board, Bangalore and another reported in AIR 1991 Karnataka 345, U.P.S.E.B. Vs. Atma Steels and others, reported in AIR 1998 SC 846, Khurshed Sorabji Cooper Vs. Bombay Electric Supply and Transport Undertaking, reported in AIR 1995 Bombay 79 and Bharat Barrel and Drum Mfg. Co. Ltd. Vs. Municipal Corporation of Greater Bombay and others, reported in AIR 1985 Bombay 415.

5. The Section 26(6) provides that where any difference or dispute arises as to whether any meter referred to in the 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, has 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 the said sub-section, he shall give to the other party not less than seven days, notice of his intention to do so. Apparently,the sub-section (6) of the Section 26 refers to the meters which are provided in terms of the sub-section (1) of the Section 26. The sub-section (1) of the Section 26 provides that 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.

6. The above provisions of law would apparently disclose that when a meter is provided by the licensee to the consumer, the calculation of the amount which the consumer is liable to pay for the electricity supply consumed by the consumer has to be based on the recording of such supply disclosed from the meter so supplied by the licensee to the consumer. The exception thereof is carved out in the sub-section (6) in case of fraud. Otherwise, the recording of the supply of the electricity as disclosed from the reading in the meter supplied by the licensee is to be considered as the conclusive proof of the quantity so supplied to and consumed by the consumer. The provision of law further discloses that when any dispute arises on the point as to whether the meter supplied by the licensee is or is not correct, then the same is to be decided by the Electrical Inspector. In other words, the Section 26(6) of the said Act empowers the Electrical Inspector to entertain disputes in relation to functioning or malfunctioning of the meter supplied by the licensee to the consumer. It is, however, to be noted that in order to entitle the Electrical Inspector to exercise the power, there has necessarily to be a dispute or difference of opinion between the licensee and the consumer in relation to the functioning or malfunctioning of the meter. Being so, it would not empower the Inspector to exercise such power in a case where there is no dispute or difference between the parties on the point that the meter is not correctly recording the supply or that the meter is malfunctioning or that the parties do not dispute that the meter had totally stopped functioning. As rightly submitted by the learned Advocate for the respondent No.1, the power as regards the dispute on the point of functioning of a meter has been given to the Electrical Inspector because he enjoys the expertise to know about the functioning of the meter and being the appropriate authority to ascertain whether there is any defect in the functioning of the meter or not. However, in a case where the meter has totally stopped functioning or where the parties do not dispute that the meter is malfunctioning, there remains hardly any scope for any investigation by the Inspector or for utilisation of his expertise in the field, and therefore, in such a situation, there cannot be any occasion for the Inspector to exercise his powers under the Section 26(6) of the said Act.

7. The powers of the Inspector under the Section 26(6) of the said Act were explained by the Apex Court in the matter of M.P.E.B. and other Vs. Smt. Basantibai, reported in AIR 1988 SC 71, wherein it was held that "It is evident from the provisions of this section that a dispute as to whether any meter referred to in sub-sec. (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." It was further held that " 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 sub-sec. (6) of S.26." In the case before the Apex Court, the report of the Assistant Engineer of the State Electricity Board disclosed that one phase of the meter was not working at all and therefore it was held that there was undoubtedly a dispute as to whether the meter in question was a correct one or a faulty meter and that dispute was held to be required to be decided by the Electrical Inspector in terms of the Section 26(6) of the said Act.

8. In Tata Hydro-Electric Power Supply Co. Ltd. and others Vs. Union of India (supra), the Apex Court clearly ruled that:-

"Where there is no dispute that the meter is defective, such a dispute is not one contemplated by sub-section (6) of Section 26 of the Act. It is no doubt true that if a dispute as contemplated by sub-section (6) of Section 26 of the Act arises, the matter has to be referred to the Electrical Inspector, and in view of the statutory provisions, private arbitration in the case of such a dispute is not permissible in law. ...... It is only where any difference or dispute arises as to whether any meter referred to in sub-section (1) of Section 26 is or is not correct, that dispute has mandatorily to be resolved by the Electrical Inspector. ....."

(emphasis supplied)

9. The learned single Judge of this Court in Brihanmumbai Municipal Corporation Vs. M/s. Sapyah Trust and Sarkar Trust and others (supra), relying upon the decision of the Apex Court in M.P.E.B. and others Vs. Smt. Basantibai (supra), has held that the jurisdiction of the Electrical Inspector under the Section 26(6) is confined to the type of dispute referred therein and not beyond, and further relying upon an unreported decision of the Division Bench of this Court in Sapphire Machines Pvt. Ltd. Vs. Bombay Municipal Corpn. & Anr. (Writ Petition (Lodging No.1925 of 1999), decided on 5-8-1999, has held that since there was no dispute that the meter had stopped functioning, it was not a case of a meter being correct or not which could be covered under the Section 26(6) of the said Act. Similarly, the Full Bench of the Andhra Pradesh High Court in Chief Engineer, Electricity, APSEB Hyderabad Vs. Srinivasa Modern Rice Mill, Ramagiri (supra), while taking note of the fact that the entire gamut of pleadings in writ petition before it did not disclose any dispute with regard to the defective nature of the meter and the only grievance that was urged was with regard to the regularity of the assessment proceedings qua the terms and conditions of the supply agreement, had set aside the order of the single Judge whereby he had directed the matter to be referred to the Electrical Inspector in a case where the Electricity Board had issued a notice to the consumer calling upon him to pay the arrears which were calculated after considering the fact that the meter recording the supply to the consumer was found to be not working and there was no dispute about the said fact of stoppage of the meter. Likewise, the Division Bench of the Rajasthan High Court in Rajasthan State Electricity Board Vs. State of Rajasthan and others (supra) has also held that where the dispute between the Board and the consumer relates to the payment of charges for consumption of electricity, the dispute being not one which is required to be determined by the Electrical Inspector under any provision of the said Act, it is not covered under the provisions of the sub-section (2) of the Section 24 of the said Act and consequently the Electrical Inspector has no jurisdiction to deal with such dispute. It is, therefore, clear that the provision of law contained in the Section 26(6) of the said Act empowers the Electrical Inspector to deal with a matter wherein there is a dispute as regards the correctness of the meter and not in cases where there is no dispute between the parties on the point of correctness or the malfunctioning of the meter.

10. It is also to be noted that the Section 26(6) of the said Act refers to "the present dispute" between the parties and not "the past dispute" and that has been well clarified by the Division Bench of this Court in Bharat Barrel and Drum Mfg. Co, Ltd. Vs. Municipal Corporation of Greater Bombay and others (supra). It was clearly held therein that "It is significant to note that sub-sec. (6) of S.26 refers to a dispute as to the present state of the meter. What is required to be decided by the Electrical Inspector is, whether the meter is or is not correct, that is, on the date when the dispute arises and not whether it was or was not correct. When on such a reference the Inspector finds that the meter has ceased to be correct, he is vested with the authority to estimate the amount of electric energy supplied to the consumer or electrical quantity contained in the supply not merely on the date when the meter was found to be defective but also for a period not exceeding six months preceding it. Whether the meter was defective on the date when it was checked could be categorically determined by the Electrical Inspector but the period anterior to that date during which it was not correct could at best be only estimated by him. The legislature, in its wisdom evidently, did not deem it advisable to vest the Electrical Inspector with the power of estimating the amount of the energy supplied by the licensee to the consumer for a period of more than six months. Where the licensee supplied electrical energy and the consumer received such supply on the footing that the charges would be paid as per the quantity of electrical energy recorded by the meter and entered in the register of meter, the legislature thought it fit that the parties should be bound by such entries."

11. It is, therefore, evident that the exercise of power by the Electrical Inspector under the Section 26(6) of the said Act has necessarily to be in relation to the present dispute and the Electrical Inspector has to ascertain in exercise of such power as to whether the meter in question is or is not correct i.e., on the day of inspection of the meter and not as to whether in past it was or was not correct. Undoubtedly, once the Inspector comes to the conclusion that the meter is not correct, he is empowered to calculate amount of the liability of the consumer for the supply made to the consumer during the period of preceding six months from the day on which the meter is found to be not correct.

12. The contention regarding the powers of the Inspector to deal with such dispute in terms of the Clause VI(3) of the Schedule to the said Act is devoid of substance. The said provision relates to eight type of disputes which can be referred to the Electrical Inspector for his decision. They are; (a) as to the amount of energy to be taken by the consumer; (b) as to the amount energy guaranteed to the consumer; (c) as to the cost of any service line; (d) as to the sufficiency of the security offered by any owner or occupier; (e) as to the position of the meter board; (f) as to the improper use of energy; (g) as to any defect alleged in any wires, fitting, works or apparatus; and (h) as to the amount of the expenses incurred under the third proviso to the sub-clause (1) of the Clause VI. The provision of law contained under the Clause VI(3) of the said Schedule does not speak of any other dispute which can be referred to the Electrical Inspector. Certainly the dispute regarding the amount of money which a consumer would be liable to pay to the licensee for a period during which the meter had either stopped recording the consumption or had been malfunctioning and consequently was not recording the consumption accurately is not listed amongst the disputes which can be referred to the Electrical Inspector under the Clause VI(3) of the said Schedule.

13. The answer to the first question for determination, therefore, is that in the absence of dispute about the total stoppage or malfunctioning of the meter, the Electrical Inspector cannot exercise his power under the Section 26(6) of the said Act. The Electrical Inspector is empowered to exercise power only in cases where there is a dispute as to whether the meter is or is not functioning correctly and such power does not include adjudication of the issue as to whether in past the meter was functioning correctly or not.

14. Reverting to the facts of the case, undisputedly, the petitioner had supplied the meter in question to the respondent No.1. Undisputedly, it was the duty of the petitioner to check and ascertain the proper functioning of such meter by holding periodical inspections. Admittedly, there is no allegation of any fraud or any interference by the respondent No.1 with the meter in question. Added to this, the records disclose consistent stand on the part of the respondent No.1 that the respondent No.1 had been complaining about the malfunctioning of the meter in question from the time immediately after the installation of the meter by the petitioner and yet no action was taken by the petitioner on the said complaint of the respondent No.1. The records nowhere disclose any explanation on the part of the petitioner for such a lethargic and indifferent attitude on part to deal with the complaint of the respondent No.1 regarding the malfunctioning of the meter, inspite of the fact that the meter was the only source from which the petitioner could have arrived at the correct finding regarding the liability of the respondent No.1 towards the petitioner for the supply of electricity to the establishment of the respondent No.1. As rightly submitted by the learned Advocate for the respondent No.1, it was only in pursuance to the inspection in the routine course that the petitioner has stated to have detected that the meter was not recording the supply accurately. Surprisingly, even thereafter there was no attempt on the part of the petitioner to replace the meter for a period of six months. Still surprising is that the petitioner woke up only in January, 1997 to claim the alleged arrears from the respondent No.1 in relation to the consumption of electricity for the period from 7-12-1993 to 20-6-1995. Disclosure of pathetic state of affairs in the administration pertaining to the recovery of dues relating to the supply of electricity to the consumer by the public institution like that of the petitioner is really shocking and it also reveals the perfunctory conduct on the part of the officers of the petitioner. Nevertheless, the fact remains that it was never disputed by the respondent No.1 that the meter in question was not accurately recording the consumption of electricity by the establishment of the respondent No.1 and, in fact, the respondent No.1 had paid sum of Rs.16 lakhs in relation to the said period by way of abundant caution and based on their own calculation regarding their liability towards the petitioner on account of supply of electricity. Undoubtedly, in the petition it was sought to be contended that it was a case of stop meter. Indeed in para 5 of the petition it is stated that "On 27th January, 1995, in the course of routine inspection, the Energy Audit Department of the Petitioner detected that the said meter No.S-93055 had completely stopped registering any consumption." It was also further stated that "it was found that the said meter No.S.93055 had been admittedly defective right from its installation". The records, however, speak to the contrary and the same reveal that the meter had not stopped registering the consumption completely but it was not recording the consumption accurately and the said fact was never disputed by the petitioner all throughout the proceedings prior to the filing of the petition. This is also evident from the bills issued by the petitioner, on which reliance is placed by the respondent No.1. Indeed the bills relate to the period after January, 1995 till May, 1995. In other words, even after the routine inspection by the Energy Audit Department, the meter was functioning but it was not recording the consumption accurately. In other words, there was no dispute as regards the malfunctioning of the meter. Therefore, there was no dispute about the fact that the actual consumption of electricity by the respondent No.1 was not recorded in the said meter. Being so, as rightly submitted by the learned Advocate for the petitioner, there was no dispute which could have been entertained by the Electrical Inspector under the Section 26(6) of the said Act. Besides, it is also to be noted that the respondent No.1 approached the Electrical Inspector only on 29-7-1998 and not immediately after the defect in the meter was noticed. Even the presentation of the alleged dispute to the Electrical Inspector under the letter dated 29-7-1998 had been in relation to calculation of arrears done by the review committee on the basis of undisputed fact that the consumption of electricity by the respondent No.1 was not recorded accurately by the meter which was supplied by the petitioner to the establishment of the respondent No.1. In other words, even while submitting the alleged dispute to the Inspector, it was the case of the respondent No.1 that the meter in question was defective and the said contention was not in dispute between the petitioner and the respondent No.1. The dispute related only to the calculation of the amount which the respondent No.1 would be liable to pay to the petitioner for the period for which the meter was not recording the consumption accurately. In other words, considering the provisions of law and the decisions of the Apex Court referred to above, the said dispute was beyond the scope of powers of the Electrical Inspector under the Section 26(6) of the said Act. Hence the petitioner is justified in contending that the Electrical Inspector, by entertaining the letter of the respondent No.1 dated 29-7-1998 and passing the order dated 18-8-1999 on the basis of the said letter, clearly acted without jurisdiction. Besides, the Inspector cannot decide the matter merely on the basis of the report prepared by some other machinery or agency. It is the Electrical Inspector himself, to whom the complaint is referred, is required to decide about the dispute after inspecting the meter and to arrive at the finding regarding the defect in the meter. No such exercise has been done in the case in hand. In any case, such an exercise was not possible in the matter in hand as the alleged dispute had not been relating to "the meter is not defective" but it related to "the meter was admittedly defective". Besides, even assuming that there was a dispute regarding the correctness or incorrectness of the meter, it was in relation to the functioning of the meter in the past and the Inspector has no power to deal with the dispute regarding the malfunctioning of a meter in the past.

15. The second point which arises for consideration is regarding the procedure to be followed by the licensee for the recovery of the dues from the consumer relating to actual consumption of units of the electricity by the consumer during the period the meter had admittedly stopped working or undisputedly was malfunctioning and therefore was not recording the consumption accurately. In this regard, the contention of the petitioner is that in the absence of powers to the Electrical Inspector to deal with the same, and considering the provision of the Section 21(2) of the said Act, the petitioner has framed the said Conditions and the same has legislative sanction. The Section 21(2) of the said Act provides that a licensee may, with the previous sanction of the State Government, given after consultation with the State Electricity Board and also the local authority, where the licensee is not the local authority, make conditions not inconsistent with the said Act or with his license or with any rules made under the said Act, to regulate its relations with persons who are or intend to become consumers, and may, with the like sanction given after the like consultation, add to or alter or amend any such conditions; and any conditions made by a licensee without such sanction shall be null and void. The said Conditions framed by the licensee in the case in hand do appear to have the approval of the Government in terms of the Resolution No: LBY 1274/CR-325/NRG-4, dated 23-2-1983. According to the learned Advocate for the petitioner, in terms of the Clause 18(b) thereof, the disputes of the nature in hand are to be decided by the review committee, and accordingly the matter was referred to the review committee and the decision was communicated to the petitioner, and that the said decision was arrived at subsequent to the hearing of the petitioner.

16. The Clause 18 of the said conditions refers to the subject of payment of bills. In terms of the sub-clause (a) thereof, the bills shall be paid by the consumer on or before the due date mentioned in the bills at the centres authorised to receive such payments on behalf of the Undertaking. The term "Undertaking" refers to the petitioner. The Clause (b) thereof provides that any complaint with regard to the accuracy of the bills should be made in writing to the Undertaking and the amount payable under such bills shall be paid under protest. The amount of the bill paid under protest is regarded as advance to the credit of the consumer's account, until such time as the bill in dispute is fully settled. Referring to the said sub-clause, it is sought to be contended that pursuant to the payments made by the respondent No.1 under protest, the matter was referred to the review committee. The learned Advocate for the petitioner, however, was unable to point out the provision of law under which the review committee has been constituted except submitting that the same was constituted in terms of the various circulars issued by the authorities of the petitioner and further reference was made to the decision passed by the learned single Judge in M/s. Sapyah Trust and Sarkar Trust's case. At this stage, in the course of the judgment being delivered, the learned Advocate for the petitioner also produced a copy of the Administrative Order No.254, dated 5-3-1997, under which the review committee is stated to have been constituted. Undisputedly, neither there is any provision under the said Act or the rules framed thereunder, on in the said Conditions empowering the licensee to constitute any such review committee. The Section 21(2) of the said Act does not provide for constitution of the review committee to deal with such disputes. The decision of the learned single Judge in M/s. Sapyah Trust and Sarkar Trust's case undoubtedly refers to the information given to the Court by the counsel for the Corporation who had appeared in the said petition that "to deal with such complaints of the consumers, authority has been set up by the petitioner to review such claims. Administrative orders are issued from time to time in this behalf and as of now, it is the administrative order dated 5th March, 1997 which provides for a Review Committee." The copy of the Administrative Order No.254 produced before this Court by the learned Advocate for the petitioner is apparently the same Administrative Order dated 5-3-1997. Perusal of the said Administrative Order nowhere discloses the source of power to issue any such Order by the General Manager of the petitioner's Undertaking. It only says that in supersession of the Administrative Order No.231 (GM/51256/95) dated 9-10-1995, certain procedure is prescribed to be followed in case of claims initiated against the consumers for recovery arising out of amendment cases due to defective meters, stopped meters, tampered meters, change in tariff or theft of energy. Apparently, the Administrative Order is merely a guidance to the officers of the petitioner in cases of investigation regarding certain claims against the consumers. No such administrative order can over-ride the statutory provisions dealing with the supply of electricity to the consumers. The learned single Judge in M/s. Sapyah Trust and Sarkar Turst's case has nowhere held that the Administrative Order dated 5-3-1997 is binding on the consumers. Undoubtedly, the order can be appreciated as an effort on the part of the petitioner to solve the dispute amicably, after hearing the parties. However, in case a resolution or decision of the review committee is not acceptable to the consumer, the same cannot be sought to be enforced as a matter of right by the petitioner without following the due process of law, as such a decision cannot have legal sanctity, nor the review committee is constituted under any statutory powers.

17. The sub-clause (c) of the Clause 18 of the said Conditions provides that if the consumer fails to pay any bill presented to him, the Undertaking shall be at liberty to take action under sub-section (1) of the Section 24 of the Indian Electricity Act, 1910, and to cut off the supply after giving such a consumer not less than seven days' clear notice in writing, without prejudice to its right to recover the amount of the bill by suit, and the supply once disconnected may not be reconnected unless the consumer pays the outstanding amount in addition to the reconnection fee in accordance with Part-II of the Conditions. The sub-clause (d) provides that where, however, any difference or dispute has been referred under the said Act to an Electrical Inspector before notice as aforesaid has been given by the Undertaking, the Undertaking shall not be at liberty to cut off the supply for failure to pay the bill except where the Undertaking has made the request in writing to the consumer that the amount in dispute should be deposited with the Electrical Inspector and the consumer has failed to comply with such a request. Bare perusal of the sub-clauses (a) to (d) of the Clause 18 of the said Conditions would reveal that the provision in the sub-clause (b) nowhere relates to the right of the petitioner to deal with the dispute of the nature in the matter in hand by referring the same to the review committee. On the contrary, the sub-clause (d) clearly discloses that the payment referred to thereunder relates to the preliminary stage in the proceedings of the dispute referable to the Electrical Inspector under the Section 26(6) of the said Act. In the circumstances specified thereunder, a consumer would not be entitled to pursue the remedy under the Section 26(6) of the said Act without even depositing the amount demanded under the bill issued to the consumer. In other words, moment the bill is served upon the consumer, if he/she finds that the same is not in accordance with the actual consumption of electricity supplied to the consumer on account of any fault in the recording of consumption in the meter, he/she is entitled to raise dispute in that regard by issuing notice in terms of the Section 26(6) of the said Act and refer the matter to the Inspector but while doing so, he/she will have to deposit the amount claimed under the bill. However, that does not entitle the petitioner to refer the matter to the review committee. Undoubtedly, even if the matter is referred to the review committee as an attempt to settle the dispute amicably, if the decision of the review committee is not acceptable to the consumer, the same cannot be sought to be implemented as matter of right without following the due process of law. In that regard, the bill based on the actual meter-reading would prevail and in case of dispute in respect thereof, the same will have to be referred to the Electrical Inspector in terms of the Section 26(6) of the said Act. Albeit when there is no dispute about the malfunctioning of the meter, or the fact that the meter has stopped functioning, the question of reference of the dispute to the Inspector could not arise.

18. It is a situation where undisputedly the meter was not recording the consumption of electric supply accurately for a long time and yet during all that period, no action was taken by the licensee to replace the meter to ascertain the correct consumption of supply. It was only on expiry of period of three years from the time the meter had been malfunctioning that the licensee thought of recovery of the amount in relation to the actual consumption of electricity supplied during the said period. What is the procedure to be followed in such a case? As already observed above, neither the provisions of law contained in the said Act or the Rules made thereunder, nor the said Conditions formulated under the Section 21(2) of the said Act provide any specific procedure in that regard. However, the sub-section (3) of the Section 23 of the said Act provides that "In the absence of an agreement to the contrary, a licensee may charge for energy supplied by him to any consumer either by the actual amount of energy so supplied, or by the electrical quantity contained in the supply, or by such other method as may be approved by the State Government." The Section 24 empowers the licensee to discontinue the supply of energy on consumer's neglect to pay the charges. The sub-section (1) thereof provides that where any person neglects to pay any charge for energy or any sum, other than a charge for energy, due from him to a licensee in respect of the supply of energy to him, the licensee may, after giving not less than seven clear days notice in writing to such person and without prejudice to his right to recover such charge or other sum by suit, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer. The sub-section (2) thereof provides that where any difference or dispute which by or under the said Act is required to be determined by an Electrical Inspector, has been referred to the Inspector before notice as aforesaid has been given by the licensee, the licensee shall not exercise the power conferred by the Section 24 until the Inspector has given his decision. The Section 26(1) of the said Act provides that 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. The Clause 2 of the said Conditions formulated by the petitioner under the Section 21(2) of the said Act deals with the subject of supply of energy to the consumers. The sub-clause (a) thereof provides that an application for supply or additional supply of electrical energy shall be made to the Undertaking in the form of a requisition attached thereto. The requisition has to be signed by the owner or occupier of the premises in respect of which the supply or additional supply is required and has to be registered at the Undertaking's zonal offices on payment of registration fee in accordance with Part-II of the said conditions and the Undertaking shall investigate the requirements of the consumer and advise him of the conditions to be complied with and the charges to be paid by the consumer. Further the Clause 17 deals with the charges for supply. The sub-clause (a) deals with the method of charging. Para (i) of the sub-clause (a) provides that the price and the methods of charging for electricity supplied shall be such as may be fixed by the Undertaking from time to time or such as may be in acco_the consumer and the Undertaking in that respect. In other words, the method of charging the supply of electricity can be either formulated by the licensee or an agreement between the licensee and the consumer may provide for the same. However, in case of formulation of the methodology for charging such supply by the licensee, the same would require approval of the State Government in terms of the Section 23(1)(c) of the said Act. The contention of the petitioner is that, there is already such approval by the Government and the same is revealed from the approval to the said Conditions and more particularly to the Clause 17, sub-clause (a) para (i) thereof. However, as already noted above, the said para of the Clause 17(a) merely provides that the method of charging for electricity supplied shall be such as may be provided by the licensee. That does not mean that the Government has approved the method of charging, if any, formulated by the licensee. In fact, the statute, i.e., the said Act, itself provides that the licensee can formulate the method of charging the supply. But, once such method is formulated by the licensee, it must have approval of the State Government, and in the absence of the agreement regarding the methodology of charging for the supply, any mode of charging prescribed by the licensee may not be binding upon the consumers. In this regard, the provisions of the Clause X of the Schedule to the said Act are also relevant to be noted. The sub-clause (1) thereof provides that, where the licensee charges by any method approved by the State Government in accordance with the Section 23, sub-section (3), clause (c), of the said Act, any consumer who objects to the method may, by not less than one month's notice in writing, require the licensee to charge him, at the licensee's option, either by actual amount of energy supplied to him or by the electrical quantity contained in the supply, and thereafter the licensee shall not, except with the consent of the consumer, charge him by another method. The sub-clause (2) provides that, before commencing to supply energy through any distributing main, the licensee shall give notice, by public advertisement, of the method by which he proposes to charge for the energy so supplied; and, where the licensee has given such notice, he shall not be entitled to change the method of charging without giving not less than one month's notice in writing of such change to the State Government, to the State Electricity Board and the local authority, if any concerned and to the Electrical Inspector, and to every consumer of energy who is supplied by him from such distributing main. However, it is pertinent to note that the Section 24(1) empowers the licensee to take coercive measures only in case of failure to pay any sum due from the consumer on account of the charge for energy. The Section 23(3)(a) prescribes that the licensee may charge for the actual energy supplied to the consumer and at the same time the Section 26(1) provides that such supply should be ascertained by means of a correct meter. Being so, the expression "sum due" in the Section 24(1) has to be understood to mean the sum calculated by following the methods prescribed either under the one prescribed by the licensee and duly approved by the State Government or in the manner agreed upon between the licensee and the consumer, but on the basis of meter reading in terms of the Section 26(1) of the said Act. In other words, if the calculation regarding the charges payable by the consumer cannot be made by following the said procedure, it cannot be said that the licensee can exercise its power under the Section 24(1). This evidently discloses that in case of a situation which is not covered under the statutory provisions in relation to the method of charging for electricity supply can be made the subject-matter of the agreement between the parties and in that case the petitioner can recover such charges in accordance with the agreement between the petitioner and the consumer. In the case in hand, no such agreement in relation to the method of charging in relation to the supply which was not recorded by the meter has been disclosed either from the records or in the course of hearing of the matter. The format of the agreement annexed to the said Conditions also does not disclose any provision in that regard. Being so, the situation will have to be dealt with by applying the provisions of general law applicable to the contracting parties. Merely because the petitioner itself had failed to take prompt steps to replace the meter inspite of the fact that the respondent No.1 had brought to the notice of the petitioner that the meter was not functioning properly, that would not empower the petitioner to insist for the payment of the supplementary bill, alleged to have been prepared in relation to the supply which was allegedly consumed by the establishment of the respondent No.1 for the period prior to the date of inspection of the meter by the petitioner and when it was found to be defective, but such liability being disputed by the respondent No.1. Once such liability is disputed, in the facts and circumstances of the case, it is necessary to adjudicate such dispute in accordance with the provisions of law and by the competent Court or the authority duly empowered in that regard and to decide the same in accordance with the provisions of law. Since neither the provisions of law contained in the said Act or the Rules made thereunder or the said Conditions framed by the petitioner in exercise of the power under the Section 21(2), prescribe any mode, nor empowers the petitioner to make any such claim by way of demand under the supplementary bill, the one issued in relation to the period prior to January, 1997 was clearly without authority and therefore illegal, except to the extent it was admitted by the respondent No.1 by making deposits of various amounts from time to time of their free will, while admitting that the deposit was on the basis of their calculation regarding the actual consumption of electric supply to their establishment during the relevant period.

19. The second point for consideration therefore is to be answered that the procedure to be followed by the licensee for the recovery of dues from the consumer relating to the actual consumption of the units of electricity by the consumer during the period the meter had stopped working, or was undisputedly malfunctioning or not recording the consumption accurately, and particularly in the facts and circumstances of the case, is the normal procedure of recovery of the disputed dues by establishing the factum of dues and by pursuing the regular civil remedy for that purpose. In fact, the sub-clause (c) of the Clause 18 does give indication in that regard wherein it has been clearly stated that pursuant to failure on the part of the consumer to pay the amount demanded in terms of the bills served upon him, the petitioner is empowered to disconnect the supply after issuance of seven days' notice without prejudice to their right to recover the amount of the bill by a suit. Undoubtedly, the said clause relates to the bill prepared on the basis of the meter reading and the dispute sought to be raised in that regard by the consumer in terms of the Section 26(6) of the said Act. However, it reveals that the petitioner, in the absence of the provision under the said Act or the Rules framed thereunder, is not entitled to assume itself the authority to decide about the liability of the consumer even in cases of default on the part of the petitioner itself in not replacing the meter inspite of the fact that the meter was defective and the same was brought to the notice of the petitioner by the consumer and yet the petitioner had allowed to continue the defective meter to remain installed at the establishment of the consumer for a considerably long period and thereafter had sought to claim the amount as arrears. In this regard, as rightly submitted by the learned Advocate for the respondent No.1, that the bill which was issued by the petitioner reveals a claim of Rs.3,132/- for "Additional Charges for Wrong Billing". Undisputedly, wrong billing was done by the petitioner itself. It is beyond comprehension of any prudent man as to how a person who himself is responsible for the mistake committed by him, can claim the compensation from others for his own mistake. It is absolutely ridiculous.

20. The decision sought to be relied upon by the respondent No.1 in the matter of U.P.S.E.B. Vs. Atma Steels and others (supra) is on the point of dispute pertaining to functioning of a potential transformer and it was not in relation to the jurisdiction of the Electrical Inspector to deal with the complaint relating to malfunctioning of the meter. Besides, the grievance therein was that the existing meter could not record the power consumed unless there was stepping down of the voltage from 11000 to 110 and the function of stepping down was done only by the potential transformer. Being so, there was no dispute regarding the functioning or malfunctioning of the meter as such, but it related to the functioning of the potential transformer.

21. In M/s. Sri. Krishnarajendra Mills Ltd., Mysore Vs. The Chairman, Karnataka Electricity Board, Bangalore and another (supra), it was held that where the meter had recorded the reading reflecting the actual consumption of energy and entries had been made by the meter reader regularly every month prior to the date when alleged test checking was made, the circumstances did not warrant reliance on the basis of absence of recording by the meter during the months in respect of which the demand had been raised by the Board by adopting method of average consumption. Apparently, the issue was totally different from the one which arises in the case in hand.

22. In the case of A. A. Mohd. Raffi Vs. Tamil Nadu Electricity Board, Madras and others (supra), there was a clear doubt raised about the correctness of the recording of consumption of energy by the meter. Similarly, the decision in the case of M/s. Hotel Nilachal Ashok Vs. Executive Engineer, Orissa State Electricity Board and others (supra) was on the basis of the decision of the Apex Court in Smt. Basantibai's case and it was a case of defective meter. The decisions of the learned single in Ashok Textiles Vs. Gujarat Electricity Board and others (supra) as well as in Khurshed Sorabji Cooper Vs. Bombay Electric Supply and Transport Undertaking (supra), were in peculiar facts of those cases and in any case the same cannot be said to be laying down the good law in view of the decisions of the Apex Court in Smt. Basantibai's case as well as in the Tata Hydro-Electric Power Supply Co. Ltd.'s case, as also of the Division Bench of this Court in Bharat Barrel's case, which are binding upon this Court.

23. For the reasons stated above, while holding that the Electrical Inspector had no jurisdiction to deal with the matter in issue and for the same reason the orders passed by the Electrical Inspector and the Appellate Authority are not sustainable are, therefore, quashed and set aside, it is also held that the decision of the review committee cannot be binding upon the respondent No.1 and the petitioner cannot seek to enforce the same without following the due process of law. The rule is made absolute accordingly with no order as to costs.

Order accordingly.