M.N.Shukla, J. - (1.) BY means of this writ petition under Article 226 of the Constitution the petitioner has challenged his liability to pay the amount of electricity dues demanded from him by the State Electricity Board, Uttar Pradesh vide Recovery Certificate dated 11-12-1974 (Annexure-7 to the writ petition) tendered to the Collector, Varanasi for execution against the petitioner.
(2.) THE petitioner installed an Electric Pumping Set near his residence in Village Ganjari in the district of Varanasi in the year 1968 and the Pumping Set was supplied electricity by respondent No.1. A dispute has arisen over the electricity charges outstanding against the petitioner. The Recovery Certificate was for a total sum of Rs. 3912.30 out of which the petitioner admits his liability to the extent of Rs. 1699.90, which amount has admittedly been paid by the petitioner to respondent No. 1 during the pendency of the writ petition. The dispute, therefore, is now confined to the balance of Rs. 2212.40. This is also admitted that this liability relates to the period 20-1-1972 to 31-10-1974 in respect of the energy supplied to the petitioner for working the pumping Set. The parties are also agreed on the fact that prior to 1972 electricity was directly supplied to meters and the State Electricity Board (briefly described as the Board) used to realise electricity charges on the basis of the power of the electric motor used by a particular owner. The said rate was Rs. 10.00 per horse power per month. The Pumping Set of the petitioner was of 7.5 horse power and he paid the entire electricity charges at the rate of Rs. 75.00 per month regularly up to 31-12-1971. This fact is not disputed in the counter-affidavit. The Board subsequently changed its policy and electric power meters were provided to the private Pumping Sets and charges were realised according to the unit of power/electricity consumed at the rate of Rs. 0.20 per unit plus development charges at the rate of Rs. 3 per horse power of electric meter per month. In the counter-affidavit it has been stated that the rate was actually Re. 0.18 per unit. Besides, the charge of Rs. 3.00 per horse power per month is also admitted in the counter-affidavit but it is described as fixed charge instead of development charge. The Pumping Set was installed at the petitioner's premises admittedly on 20-1-1972 and at the time of installation the minimum reading was 42 units which fact is also admitted in the counter-affidavit. Subsequently the system was again altered and with effect from 1-11-1974 the Board started realising charges at the rate of Rs. 5.00 per horse power per month of the electric motor, inclusive of development tax etc. and irrespective of the electricity consumed. These facts have also been admitted in the counter-affidavit. In the circumstances the controversy arose only on two points, namely, whether (1) between the period 20-1-1972 and 31-10-1974 the meter reading was not actually taken by the employees of the Board regularly and the bills were being issued for alleged consumption of units of energy, based on sheer guess. The petitioner actually made a number of complaints of respondent No. 1 in this connection some of which have been annexed to the writ petition as Annexures-3, 4 and 8 dated 14-4- 1972, 5-1-1973 and 4-2-1975 respectively. This allegation that bills were being issued not on the basis of the actual reading of the meter but on speculation was categorically made in paragraph 9 of the writ petition and the defence of respondent No. 1 as disclosed in paragraph 9 of the counter-affidavit was merely this that during the aforesaid period the petitioner's house was found to be closed. The petitioner substantiated his allegations by filing Annexure-5 which is chart of the units of energy actually consumed by the petitioner. This gives a lie to the defence of respondent No. 1. We may refer to only two major circumstances established by Annexure-5. Firstly, on 5-10-1972 the meter exhibited a reading of 1961 indicating that 35 units had been consumed. Likewise on 2-12-1972 the meter showed a reading of 2000 and showed that 39 units had been actually consumed. As against this in the chart filed by respondent No. 1 as Annexure-1 to the counter-affidavit the meter is not shown as indicating any consumption of units but is noted by letters H C meaning thereby that the house was closed during that period. We are not inclined to disbelieve the averments made in the writ petition and substantiated by the material evidence placed before us, namely, the actual readings noted in the meter. On the other hand, there is no evidence before us on the basis of which it may be accepted that the employees of respondent No. 1 visited the house of the petitioner and found the door closed. No such complaint was ever made against the petitioner at the relevant time. This plea has been taken in the counter-affidavit for the first time and we reject the same.
(3.) THE second circumstance borne out by the chart Annexure-5 is that on certain occasions the actual reading shown by the meter was in fact higher than the one alleged to have been noted by the employees of respondent No. 1. Thus, for instance, on 15-7-1972 the reading of the meter according to Annexure-5 of the writ petition was 1926 whereas according to the chart (Annexure-1 to the counter- affidavit) the reading on that date was only 1716. To take only a few more illustrations, it is manifest from Annexure-5 to the writ petition that the first reading of the meter was taken on 15-7-1972. On the other hand, from Annexure-1 to the counter-affidavit it appears that two readings were taken prior to that date i.e. one in April 1972 and the reading was 1404 and another in June 1972 and the reading was 1614. The petitioner's allegation is that no readings of the meter were actually taken on behalf of respondent No. 1 and the bills were served on the petitioner on mere whims and conjectures. There is no averment in the counter-affidavit that any readings of the meter were taken either in the presence of the petitioner or after notice to him nor has any of the dates of the last reading been disclosed. The counter-affidavit filed on behalf of respondent No. 1 and the material placed before us in the shape of annexure thereto are far from convincing and on their basis we are unable to reject the petitioner's contention and accept the allegation made for the first time in the counter-affidavit.;