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Allahabad High Court · body

2017 DIGILAW 2926 (ALL)

RITURAJ v. STATE OF U. P.

2017-12-14

AJIT KUMAR, SUDHIR AGARWAL

body2017
JUDGMENT By the Court.—Heard Sri Ram Swaroop Umrao, learned counsel for Corporation and learned Standing Counsel for State-respondents. 2. It is contended that the impugned demand has been raised on the basis of so called testing of meter without showing any defect or even doubt in respect of seals of the meter in the report dated 17.2.2017, without complying with the requirement of Rule 5.6(d)(i) of the U.P. Electricity Supply Code, 2005 by issuing notice to consumer giving intimation for alleged testing of the meter seals and therefore, the alleged demand including the alleged testing report is illegal and in violation of the procedure prescribed in Rules. Reliance is placed on a Division Bench jugment of this Court in Smt. Amrawati Devi v. Purvanchal Vidyut Vitran Nigam Limited and another, 2009(1) ADJ 430 (DB), Mohd. Sagir v. Dakshinanchal Vidyut Vitran Nigam Limited and others, 2014(6) ADJ 219 (DB) and M/s. Modern Rice Mill v. Madhyanchal Vidyut Vitran Nigam Limited and another, 2012(1) ADJ 296 . 3. In Amrawati (supra), a co-ordinate Bench of this Court while dealing with the issue of right of a consumer to get the defective meter properly sealed and tested either at the laboratory of Electricity Corporation or at the laboratory of some other independent agency holding thus: 4. 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. 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. 5. 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 readings not commensurate with his consumption of electricity, stoppage of meter, damage to seal, by applying to the Licensee in prescribed format (Annexure 5.1) alongwith 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 case 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 O.K., 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. (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 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 7 days in advance so that he may be present at the time of testing, personally or through an authorized representative. ii. The signature of the consumer or his authorized 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, alongwith their test charges to the Commission. (ii) The provisions of IER1956 shall however be followed until rules are made under Section 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. 6. 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 customer. 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: ^^1- ehVj ,sD;w psd ls psd fd;k x;k ehVj 12-61 /khek ik;k x;kA Cwhl = -12.61% 2- ehVj la[;k ;w0ih0bZ0 dks mrkj dj lhy fd;k x;kA ehVj dk ijh{k.k 4-12-2008 dks ehVj ySc esa gksxkA miHkksDrk dks lwfpr fd;k tkrk gS fd fnukad 4-12-2008 dks 12-00 cts ehVj ds ijh{k.k gsrq mifLFkr gksA^^ 7. It only informs the consumer that the meter shall be tested at licensee’s laboratory and she should be present on 4.12.2008. In absence of intimation that she has a right to get it tested at independent laboratory, the notice was contrary to law.” 4. Following the aforesaid judgment in M/s. Modern Rice Mill (supra), one of us (Sudhir Agarwal, J.) held that a report of laboratory which was not an independent test laboratory could not be relied upon and hence the assessment made on the basis of report, which was not held worth acceptance, was set aside. Following the aforesaid judgment in M/s. Modern Rice Mill (supra), one of us (Sudhir Agarwal, J.) held that a report of laboratory which was not an independent test laboratory could not be relied upon and hence the assessment made on the basis of report, which was not held worth acceptance, was set aside. The Court further expressed the view that unless opportunity is given by means of proper notice regarding testing the defective meter by an independent agency, Corporation cannot take defence of validity of assessment on the basis of testing report of such defective meter. The relevant paragraphs of the judgment in this regard are reproduced herein under: “48. This submission has been seriously disputed by the learned counsel for petitioner. I also finds some substance in the reasoning forwarded on behalf of the petitioner. The practice of getting secure meter tested by its manufacturer has been deprecated as it amounts to making a person judge in his own cause. Secure Meters Ltd., the manufacturer of Secure Meter, is a pure and simple commercial undertaking. Its interest is to prove efficacy of its meters for augmenting its sale. This would be possible only by canvassing a system of metering which is tamper proof, pilfer proof etc. and generate confidence as much as possible. It cannot admit easily or at least cannot be expected to admit easily defect(s) in its meters, if any. Even if it finds something wrong, there is every possibility that being a private party, not accountable to any one, it may try to dispel charge on its own and make responsible someone else. It may be a good commercial undertaking but being solely private not accountable to the consumer or the licensee, testing of a meter by such a company and that too wholly ex parte and in a self-contented manner cannot be imposed on a consumer by the Licensee. The action following the conclusion that a meter has been tampered etc. so as to record incorrect reading results in civil consequences to the consumer. The exercise, therefore, if not judicial is also not pure administrative. The procedure consistent with the principles of natural justice, therefore, would be attracted in such a case. No person can be made an Arbiter of a dispute when such person has its own interest in the matter. The exercise, therefore, if not judicial is also not pure administrative. The procedure consistent with the principles of natural justice, therefore, would be attracted in such a case. No person can be made an Arbiter of a dispute when such person has its own interest in the matter. When there is a dispute regarding the meter whether it is correct or not, whether tampered or not, Meter Manufacturing company having its own interest in the meter, if allowed to adjudicate and that too conclusively on the question of tampering or tamper etc. that would amount to inviting a decision from a person having large commercial interest in the matter. It would hit the principle that no one shall be judge in his own cause. Even otherwise when the statute talks of an “independent testing laboratory” it does not mean that it should be a test lab of the person holding large commercial interest in the matter. Moreover, a private company’s opinion cannot be given statutory status in absence of any provision to do so. 49. The Patna High Court time and again, confronted with similar situation, has deprecated test of meter by its manufacturer M/s. Secure Meters Ltd. It had observed that it is likely to create a strong bias on the part of suppler/manufacturer. In para 13 of the judgment in M/s. JMD Alloys Limited (supra), a Single Judge of Patna High Court observed: “13. It has also been held by this Court that sending the meter for testing to the accredited laboratory of M/s. Secur Meters Ltd. which is the manufacturer and supplier of the said meters under guarantee to replace the defective meter to the Electricity Board, is likely to create a strong bias on the part of the suppler/manufacturer in testing the meter, even though its laboratory may be an accredited laboratory.” 50. I, therefore, finds no justification in relying on the report of M/s. Secure Meters Ltd. I have no hesitation in holding that in the light of discussion as above, the laboratory of M/s. Secure Meters Ltd. cannot be said to be an “Independent Laboratory” under para 5.6 (b) (iii) of Code 2005. 51. I, therefore, finds no justification in relying on the report of M/s. Secure Meters Ltd. I have no hesitation in holding that in the light of discussion as above, the laboratory of M/s. Secure Meters Ltd. cannot be said to be an “Independent Laboratory” under para 5.6 (b) (iii) of Code 2005. 51. In any case para 5.6 (d) makes imperative upon the licensee or the test laboratory to follow certain procedure before testing of the meter, namely, information to consumer of the proposed date of testing, giving opportunity to consumer or his representative to be present personally at the time of testing, obtaining signature of such person, if he is so present and a right to the consumer to dispute such testing as provided in Clause 5.6 (c). 52. Admittedly and at least there is nothing on record to show that before obtaining report from M/s. Secure Meters Ltd., such procedure was followed. Petitioner categorically raised this issue in para 3 and 4 of his letter dated 6.3.2006 (Annexure 5 to the writ petition) but the same has not been adverted to by any of the authorities at any stage. The Assessing Officer initially issued a Provisional Assessment Order dated 1.2.2006 without commenting on the alleged report of M/s. Secure Meters Ltd. and thereafter issued a revised undated assessment bill (sent to petitioner by registered post in which due date of payment was mentioned as 31.3.2006) for Rs. 10,54,969/-. It was appended with a calculation assessment sheet signed by Divisional Accountant (Revenue), Assistant Engineer (Revenue) and EE. The petitioner’s objection dated 6.3.2006 does not appear to have been attended by Assessing Officer at all. The EE’s letter dated 25.4.2006 only shows that he relied on Clause 5.6 (c) (iii) of Code 2005 but then without caring to go through the relevant provisions simply says that meter manufacturing company is an independent agency and its report must be honoured. This shows closeness with which Assessing Officer had looked into the matter and had miserably failed to apply mind to the entire facts of the case. This Court is constraint to observe that Assessing Officer appears to lack appreciation and knowledge of relevant provisions or there is some deliberate negligence or carelessness on his part in appreciation of application of those provisions.” 5. This Court is constraint to observe that Assessing Officer appears to lack appreciation and knowledge of relevant provisions or there is some deliberate negligence or carelessness on his part in appreciation of application of those provisions.” 5. In view of the above exposition of law and the facts that in the instant case, no intimation was given to the petitioner for alleged testing of meter seals; the assessment order is per se illegal and is hereby quashed. Final bill and demand notice dated 28.3.2016 as well as the provisional assessment bill dated 1.3.2016 (Annexures 7 and 6 respectively) as well as the test laboratory report dated 17.2.2016 (Annexure 5) are hereby set aside. 6. Petition is allowed with cost of Rs. 25,000/-. However, the respondent Corporation shall be at liberty to proceed afresh in accordance with law.