@JUDGMENTTAG-ORDER
1. In this case the petitioner has prayed for quashing Annexure 1 dated 11-7-1988, the bill raised on behalf of respondent 1 Board for the months of May and June, 1988 on the basis of 45% load factor as the meter installed at the premises of the petitioner for measuring the electricity consumed by the petitioner became defective.
2. There is no dispute with regard to the facts. In the premises of the petitioner there is a high tension electric connection, the nature of supply being at 11000 volts. The Board installed its own meter for measuring the supply of electrical energy. The meter was found defective. The meter was not replaced. The Board raised bill for May, 1988 for 6098 units. It again raised bill for May and also for June, 1988 on the basis of 45% load factor as contained in Anneuxre-1. The monthly bills of the petitioner before issuance of Annexure-1 never exceeded Rs. 12000/-, but in Annexure-1 it far exceeded that amount. This bill was raised under Annexure-3, the notification issued by the Board on 16-2-87 purported to be under Sections 46 and 49 of the Electricity (Supply) Act, 1948 (in short, the Supply Act).
3. According to the petitioner, Annex. 3 was without jurisdiction as it has been issued in contravention of Section 26(6) of the Indian Electricity Act, 1910 (the Electricity Act) and the decision of the State Government u/s 78A of that Act ascontained in Annex. 2.
4. No counter affidavit has been filed on behalf of the respondents.
5. The only question which requires to be decided in this case is whether in view of the provision of Section 26 of the Electricity Act read with Clause 3 of the agreement entered into by and between the petitioner and the Board, the latter could have raised bill on the basis of the notification as contained in Annex. 3.
6. So far Annexure 3 is concerned, it appears that in view of the decision of this Court in Shree Vishnu Re-Rolling Mills v. Bihar State Electricity Board (1986) BLJR 1131 the Board in its meeting held on 23-1-1987 resolved as under : --
"In view of the observations of the Hon''ble High Court in its order dt/- 25-8-86 passed in C.W.J.C. No. 3250/84 filed by Sri Vishnu Re-Rolling Mills against the Bihar State Electricity Board and others, the B.S.E. Board, in its Resolution No. 5873 taken in the 28th meeting of the Board held on 23-1-87 after taking into consideration all the aspects of the matter, has decided and resolved to bill L.T.I.S. consumers at 30% load factors, H.T. consumers at 45% load factors and commercial cons. at 30% load factors, for the period the meter remained defective or non-working with effect from 12-6-1982.
Accordingly it is hereby notified that by virtue of the power conferred under Sections 46 and 49 of the Electricity (Supply) Act, 1948, the Bihar State Electricity Board, has decided to bill LTIS consumers at 30% load factors, H.T. consumers at 45% load factors and commercial consumers at 30% load factors for the period meter remained defective or non-working with effect from 12-6-1982."
This resolution was purported to have been passed by the Board under Sections 46 and 49 of the Supply Act. The notification was issued on 16-2-1987. Clause 3(c) of the agreement provides as follows : --
"3(c): Subject to Clause 6 appearing hereinafter in the agreement, in the event of any meter ceasing to register or found to be defective or the Board''s employee having been unable to read meter, the reading during the period of such cessation or defective registration or non-reading shall be based on the average reading of the previous three months, in which the meter ran correctly and reading was duly recorded. In taking such average due regard shall be given to the conditions of working during the month under dispute and during the previous three months. In case of failure to take reading by the Board''s employees, proper adjustment shall be made when actual reading is taken next."
Clause (6) of the agreement provides as follows : --
"Should the consumer dispute the accuracy of any meter not being his own property, the consumer may upon giving notice and paying the prescribed fee have the meter officially tested by the Electrical Inspector, Government of Bihar, in accordance with Sub-section (6) of Section 26 of the Indian Electricity Act, 1910. In the event of the meter being tested by the Electrical Inspector, Government of Bihar and found to be beyond the limits of accuracy as prescribed in the Indian Electricity Rules, 1956, or any other statutory modification thereof as may be in force from time to time the testing fee will be refunded and the amount in respect of the meter readings of the three months prior to the month in which the dispute has arisen or of three months as provided in Clause 3(c) above, as the case may be, will be adjusted in accordance with the result of the test taken, due regard being paid to the conditions of working during the month under dispute and during the previous three months."
Section 26(1) of the Electricity Act provides that in 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 licencee shall, if required by the consumer, cause the consumer to be supplied with such a meter, provided that the licencee 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. Section 26(6) of the Electricity Act inter alia provides that.
"Where any difference or dispute arises as to whether any meter referred to in Sub-section (1) is or is not correct, the matter shall be decided, upon the application of either party, by an Electrical Inspector, and where the meter has, in the opinion of such inspector, ceased to be correct, such inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector, have been correct.........."
7. It will thus be seen that the parties agreed that the electricity consumed by the petitioner shall be ascertained by means of a correct meter to be provided by the Board. There is no dispute that the agreement between the parties is subsisting. While this was the position the Board issued Annexure 3. It appears that in Shree Vishnu Re-rolling Mills a Bench of this Court struck down the decision taken in the meeting of the General Managers-cum-Chief Engineers to charge at the rate of 30% and 45% load factor in case of L.T.I.S. and H.T.I.C. during the months their meters remained defective on the ground that this decision amounted to an amendment of the tariff which the Board only was competent to do. After this judgment, a decision was taken by the Board itself amending the tariff as contained in Annexure-3.
8. It has been admitted on behalf of both the parties that billing on the basis of load factor was a mode of measuring the electricity supplied by the Board to its consumers. According to the petitioner since the parties agreed that the electricity supplied to the consumer shall be measured by a meter, in view of Section 26(1) and (6) the Board could not have introduced the method to measure consumption of electricity on the basis of load factor for the period the meter remained defective.
On behalf of the Board with reference to Section 23(3)(c) read with (4) of the Electricity Act, it was submitted that the Board was entitled to charge for energy supplied by it to a consumer on the basis of load factor. So far as this submission is concerned there is no merit for two reasons, namely, Section 23(3) provides that in absence of an agreement to the contrary, a licencee (the Board herein) 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.
Sub-section (4) provides that any charges made by a licencee 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. .
So far as charge on the basis of load factor is concerned, that can be resorted to by the Board only with the approval of the State Government. Admittedly, there is no such approval. That being the position, Section 23 of the Electricity Act can be of no assistance to the Board.
9. As noticed above, the agreement between the parties is that supply of energy to the consumer shall be ascertained by means of a correct meter, i.e., Section 23(3)(a). Section 23(3) lays down alternative methods to measure supply of electrical energy to a consumer and thereafter the Board shall work out actual amount with reference to rate provided in the tariff. When this is the position, the question is whether the Board could have unilaterally resorted to measure it with reference to load factor by amending the tariff in purported exercise of its power under Sections 46 and 49 of the Supply Act.
The Supply Act further provides that subject to the provisions of that Act, the Board shall in respect of the whole of the State of Bihar have all the powers and obligations a licencee under the Electricity Act and Supply Act. By a proviso certain sections of Electricity Act relating to the duties and obligations of the licencee have been made not applicable to the Board. But that does not include Section 26 of the Electricity Act. How is a dispute between the Board and the consumer to be settled in a case where a meter is found to be defective? This question came up for consideration before the Supreme Court in
10. It was urged on behalf of the Board that Section 26 is attracted only if there is an agreement to the effect that the energy shall be measured by means of a correct meter. As noticed above, the parties had agreed in writing that the Board shall provide meter for measuring electricity supplied to the petitioner.
11. We, therefore, hold that the Board is a licencee under the Indian Electricity Act, 1910 and that it is bound by the provisions of the Electricity (Supply) Act, 1948 and the Indian Electricity Act, 1910. In terms of Section 49 of the Supply Act, the Board is authorised to supply electricity to any person not being a licencee upon such terms and conditions as the Board thinks fit and for this purpose it is entitled to frame uniform tariffs. In framing such tariffs, the Board shall have regard to all or any of the factors mentioned in Section 49 of the Supply Act. Section 23 of the Electricity Act provides that in the absence of an agreement to the contrary, the Board as a licencee may charge for energy supplied to a consumer by measuring it by providing a meter if there is no agreement between the parties to the contrary. Other alternative methods to measure it, as noticed above, have been provided in Section 26(3). Sub-section (4) of Section 23 provides that the consumer''s load factor may be the consideration upon which the Board may charge the consumer, but the Board may resort to this only with the approval of the State Government and in the absence of an agreement to the contrary. If there is an agreement between the Board and the consumer, then the Board can realise charges from the consumer only on the basis of such an agreement.
12. Section 26 of the aforesaid Act, particularly Sub-section (6) thereof provides that in case of defective meter, it is the Electrical Inspector who shall determine the amount of energy supplied to the consumer or the electrical quantity contained in the supply during such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector, have been correct. In the instant case, we have found that there is an agreement between the Board and the consumer. Clause 3(c) of the agreement itself provides that in the event of any meter ceasing to register or found to be defective, the reading during the period of such defective registration shall be based on the average reading of the previous three months in which the meter ran correctly and reading was duly recorded. Similarly Clause 6 of the agreement provides that in the event of the consumer disputing the accuracy of any meter, the consumer ma(sic) upon giving notice and paying the prescribed fee have the meter officially tested by the Electrical Inspector in accordance with Sub-section (6) of Section 26 of the Indian Electricity Act, 1910 Thus the agreement itself envisages that in case the meter is defective, a consumer may resort to the provisions of Sub-section (6) of Section 26 of the Indian Electricity Act. We have, therefore, no doubt that in a case where there is subsisting agreement that electricity supplied is to be measured by a meter, and if the meter becomes defective, as it happened in the instant case, the charges payable by the consumer during this period had to be determined in accordance with Clause 3(c) and Clause 6 of the agreement and the notification as contained in Annexure 3 shall not apply.
Board must be bound by the agreement. It is open to the Board to frame tariffs having regard to the provisions of the Electricity Act and the (Supply) Act. It is also open to the Board, to frame different tariffs for different classes of consumers. Load factor is only one of the considerations which the Board may take into account while framing tariffs. Having done so, the Board enters into an agreement with a consumer, and the agreement provides for payment of charges by reference to the tariff applicable to him. The agreement therefore determines the basis on which charges are to be paid by a consumer. There appears to be no basis for charging such a consumer at a different rate when the meter is defective, than when the meter is working. His liability to pay at the same rate subsists as long as the agreement is in force. When the meter becomes defective and therefore does not register the consumption correctly, the agreement as well as the provisions of Section 26(6) of the Electricity Act lay down the method by which such consumption is to be: ascertained. Once the consumption is so ascertained, the consumer is liable to pay the charges in accordance with the agreement and the tariff applicable to him. This excludes the applicability of a different tariff during the period when the meter is defective.
14. Such being the legal position, in view of the decision of the Supreme Court in M. P. E. B. (supra), the Board could not have taken recourse to introduce tariff for measuring electricity consumed with reference to load factor as it purported to do by the notification as contained in Annexure-3. This writ application is, accordingly, allowed and the bill, annexure-1 dt. 11-7-88, is quashed. The Board will, however, be at liberty to raise a fresh bill in accordance with law.
