- (1.) THE Purvanchal Vidyut Vitran Nigam Ltd. (in brief the Nigam) replaced the old electricity meter on 14.12.2004 and installed a new Secure Meter No. UPE 62373 at the hotel of the petitioner. Another China Meter No. LT-1 089513 was installed outside the premises of the petitioner on 16.12.2007. THE hotel of the petitioner was checked on 26.11.2008 and the officers of the Nigam found that the Secure Meter No. UPE 62373 was running slow by 12.61%. It was decided by the officers of the Nigam that the aforesaid meter would be tested at the laboratory of the Nigam. On the same day the Secure Meter No. UPE 62373 was sealed and the petitioner was intimated that the meter would be tested at the laboratory of the Nigam and the petitioner should be present on 4.12.2008. THE Secure Meter No. UPE 62373 was taken away and a new meter was installed at the hotel of the petitioner.
(2.) AT the laboratory of the Nigam on 4.12.2008 the seal of the Secure Meter No. UPE 62373 was opened in the presence of the petitioner. The meter and seal, after testing were found to have been tampered. Thereafter, provisional assessment notice dated 31.12.2008 was issued to the petitioner which has been challenged by the petitioner in this writ petition on the ground that the sealed meter should have been sent for testing by an independent agency as provided by Clause 5.6(c)(iii) of U.P Electricity Supply Code, 2005 (in brief the Code 2005). We have heard Shri B.C. Rai, learned counsel for the petitioner and Shri H.P. Dube, learned counsel for the respondent. There is no dispute on facts and only interpretation of Clause 5.6(c)(iii) of the Code 2005 is involved. With the consent of learned counsel for the parties we have taken up this petition for final disposal at the admission stage without calling for a counter affidavit. Shri Rai has urged that the respondents should have informed the petitioner that she had a right to get the sealed meter tested either at the laboratory of the Nigam or at the laboratory of some other independent agency. In absence of any information by the officers of the Nigam or knowledge the petitioner cannot be presumed to have waived her right to get the sealed Secure Meter tested at the laboratory of some other independent agency. On the other hand Shri Dube, learned counsel for the respondents has urged that the petitioner did not avail the opportunity when the meter was sealed and she was asked to appear on 4.12.2008, that she wants to get the sealed Secure Meter tested at the laboratory of some other independent agency. The seal of the meter was opened on 4.12.2008 and it was tested in the presence of the petitioner. Clause 5.6(c)(iii) of Code 2005 provides for only one opportunity and that has not been availed by the petitioner on 26.11.2008 and now it is not open to the petitioner to claim that the Secure Meter No. UPE 62373 be tested by an independent agency.
(3.) CLAUSE 5.6(c)(iii) of U.P. Electricity Supply Code 2005 is extracted below: "5.6 Defective Meters: (a) The licensee shall have the right to test any meter and related apparatus if there is a reasonable doubt about the accuracy of the meter and the consumer shall provide the licensee necessary assistance in conduct of test. However, the consumer shall be allowed to be present during the testing. (b) A consumer may request the licensee to test the meter installed on his premises if he doubts its accuracy of meter reading not commensurate with his consumption of electricity, stoppage of meter, damage to seal, by applying to the licensee in prescribed format (Annexure 5.1) along with the requisite testing fee. The licensee shall test the meter. (i) Within 15 days of the receipt of the application, at consumer's premises, or (ii) Within 30 days at Licensee's lab, or independent lab, or (iii) By installing a tested check meter in series with the existing meter within 7 days of filing of application. (c) In cases of testing of meter at consumer's premises, the testing of meter shall be done for a minimum consumption of 1 KWH. The meter testing team of the licensee shall carry heating load of sufficient capacity to carry out the testing. Optical scanner may be used for counting the pulses/revolutions or meter shall be tested as per the procedure described in IS/IER 1956 or through Aqua Check for LT meters and through RSS for others. The Aqua Check and RSS shall be calibrated in laboratory of national repute once in a year. (i) In case the meter is found ok no further action shall be taken. (ii) In case the meter is found fast/slow by the licensee, and the consumer agrees to the report, the meter shall be replaced by a new meter within 15 days, and bills of previous three months prior to the month in which the dispute has arisen shall be adjusted in the subsequent bill as per the test results. In case meter is found to be slow, at the request of the consumer, these charges may be recovered in installments not exceeding three. (iii) If the consumer disputes the results of testing, or testing at consumer's premises is difficult, the defective meter shall be replaced by a new tested meter by the licensee, and, the defective meter after sealing in presence of consumer, shall be tested at licensee's lab/independent lab/electrical inspector, as agreed by the consumer. The option once exercised by consumer shall not be changed. The decision on the basis of reports of the test lab shall be final on the licensee as well as the consumer. (d) In cases of testing of a meter in the licensee's/independent test laboratory, (i) Consumer shall be informed of the proposed date of testing at least days in advance so that he may be present at the time of testing, personally or through an authorised representative; (ii) the signature of the consumer or his authorised representative, if any present, shall be obtained on the Test Result Sheet; (iii) the results of testing, billing, and in case the consumer disputes the results of testing, shall be same as provided in clause 5.6(c) above. Note: (i) The Licensee may submit a proposal, with a list of reputed and approved test labs, along with their test charges to the commission. (ii) The provisions of IER 1956 shall however be followed until rules are made under Sections 53 and 55 of the Act. (e) In case a check meter is installed, and if after 7-15 days of the period of test, the existing meter is found to be fast or slow beyond the permissible limits, and the test results are not disputed by the consumer, then the same would be removed leaving the check meter in its place for future metering, and bills of previous three months prior to the month in which the dispute has arisen shall be adjusted in the next bill as per the test results. Where the test results are disputed, the procedure as per CLAUSE 5.6(c) as above, as the case may be, shall be followed." From reading of Clause 5.6(c)(iii) it is clear that this clause in unequivocal terms declares that the defective meter after sealing in presence of consumer, shall be tested, at licensee's lab/independent lab/electrical Inspector, as agreed by the consumer. Therefore, the agreement by the consumer is essential for testing of the meter either at the laboratory of the Nigam or at the laboratory of some other independent agency. It further provides that option exercised by consumer once cannot be changed. The clause, therefore, empowers the authorities to seal the meter and get it tested with consumer's agreement. Since the clause operates harshly against the consumer it has to be construed strictly. The consumer has a right to get the meter tested with independent agency. The authorities, therefore, have a corresponding duty to apprise the consumer of the right. Failure to discharge this duty, which flows from sub-clause (c)(iii) by the authorities while exercising their right to send the meter for testing, renders the entire proceedings for sealing the meter irregular and illegal. Annexure-3 dated 26.11.2008 does not comply with this requirement. The relevant portion is extracted below: @ Hindi;