MISRA, J. - (1.) THIS appeal has been preferred against the judgment and order dated 25. 9. 1991 passed by the learned single judge by which the writ petition filed by the respondent M/s Modern Syntex (India) Ltd. , was allowed and it was directed therein that the dispute between the petitioner-respondent herein, and the appellant Rajasthan State Electricity Board, pertaining to the alleged defective meter of the respondent, be referred to the Electrical Board, pertaining to the alleged defective meter of the respondent, be referred to the Electrical Inspector in accordance with S. 26 (6) of the Indian Electricity Act, 1910 and the demand, if any, should be raised only thereafter.
(2.) THE appellant-Rajasthan State Electricity Board (hereinafter shortly referred to as `the Board'), instead of complying with the directions of the learned single judge for taking steps to get an Electrical Inspector appointed for checking the meter of the respondent consumer, preferred this appeal and has challenged the judgment and order of the learned single judge. The principal ground of challenge by the appellant-Board is that the respondent-consumer having conceded to the fact that there was defect in the meter, which was checked on 15. 1. 1989, on which date the respondent consumer had agreed for rectification of the meter, the appellant Board was under no obligation to refer the matter to the Electrical Inspector and it was legally permissible for the Board to raise an additional demand for the electricity consumed for the last six months on the basis of their subjective calculation. In order to appreciate the controversy it is essential to relate to the relevant background under which the dispute arose which are as follows:- The respondent-consumer M/s Modern Syntex (India) Ltd. admittedly is a consumer of the Rajasthan State Electricity Board, now substituted by Rajasthan Rajya Vidyut Vitaran Nigam Ltd. (referred to as `the Nigam') after dissolution of the Board, and all the electricity bills for consumption were paid by the respondent-consumer till December 1988. On 15. 1. 1989, however, some officers of the vigilence of the Board on checking, found the meter of the respondent-consumer to be defective and according to them the respondent also conceded that the mater was defective and, therefore, a demand was raised for the period of six months preceding 15. 1. 1989. Consequently, an additional bill for the preceding six months amounting to Rs. 2,54,017/- had been raised against the respondent-consumer. The respondent-consumer feeling aggrieved with this demand, filed a writ petition before the learned single judge of this court where-after hearing the counsel for the parties, the learned single judge delivered a reasoned judgment and order on 5. 9. 1991 after taking notice of S. 26 of the Indian Electricity Act, 1910 and found that the dispute regarding the fact as to whether the meter is correct or faulty had to be referred to the Electrical Inspector and without resorting to this procedure, the Board is not competent to issue supplementary bill or demand in respect thereof or disconnect the electricity connection for non payment of such a demand. The learned single judge in support of this view also relied upon the judgment and order delivered in the case of MPSEB & Others vs. Smt. Basanti Bai, 1988 (1) SCC 23, and therefore, the learned single judge was pleased to allow the writ petition but granted liberty to the Board to raise the additional demand after checking of the meter by the Electricity Inspector in accordance with S. 26 (6) of the Act of 1910 as recorded hereinbefore.
(3.) LEARNED counsel for the appellant Board now substituted by Rajasthan Rajya Vidyut Vitaran Nigam Ltd. , as already indicated hereinbefore, has argued with vehemence that the order of learned single judge is fit to be quashed and set aside as the respondent-consumer at the time of checking of the meter had conceded to the factual position that the meter was defective and, therefore, the then RSEB was legally justified in raising the supplementary bill even without referring the matter to the Electrical Inspector. We have anxiously considered the arguments advanced by the counsel in support of the stand of the Board/nigam and have reached to a conclusion that had it been a case where merely a common sense point of view based on circumstantial evidence could be taken and inference could be drawn by the appellant, perhaps it might have been possible to accept this argument. But we, at the appellate stage, are dealing with the reasoning assigned by the learned single judge which has to be examined in the light of the provisions of the Indian Electricity Act, 1910 wherein S. 26 is explicitly clear about the mode and manner in which the checking of defective meters can be done. For this purpose it is essential to quote sub-section (6) of S. 26 of the Indian Electricity Act, 1910, which lays down as follows:- " Where any difference or dispute arises as to whether any meter referred to in sub-section (1) is ceased to be correct 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, have 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 this Sub-section, he shall give to the other party not less than seven days' notice of his intention so to do. " A bare perusal of the aforesaid Section clearly indicates that where any meter is found to be defective at the time of checking, then it is open for any party who is aggrieved with the defective meter, to file an application before the competent authority, for appointment of an Electrical Inspector and after its checking, if the Electrical Inspector is of the opinion that the meter is defective, only in that event, it can raise an additional demand for the preceding six months to the date of checking of the meter and before doing so a notice, obviously, is required to be given. ;