w w w . L a w y e r S e r v i c e s . i n



Quality Steels And Forgings Limited v/s Gujarat Electricity Board

    Special Civil Application 5188 Of 1986

    Decided On, 13 October 1987

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE A.P. RAVANI

    For the Appearing Parties: M.D. Pandya, Sudhir Nanavati, Advocates.



Judgment Text

A.P. RAVANI

(1) Under Sec. 24(2) of the Indian Electricity Act 1910 certain difference or disputes are required to be determined by the Electrical Inspector. Before notice under Sec. 24(1) of the Act is given by licensee if reference is made to the Electrical Inspector the licensee cannot invoke the provisions of Sec. 24(1) of the Act and discontinue the electric supply on failure to pay the charges demanded by it Without taking recourse to the provisions of Sec. 24(2) of the Act; merely by raising a dispute may be a genuine and bona fide one (which in this case it is not) can a consumer deprive the licensee or the Board as the case may be from effecting recovery of its dues by resorting to the provisions of Sec. 24(1) of the Act ? This is the principal question which has surfaced for decision in this petition.

(2) Petitioner No. 1 is a Company registered under the provisions of the Companies Act 1956 It is engaged in the business of steel castings. Petitioner No. 2 is a Director of the Company. The petitioner-Company receives electric supply from respondent No. 1 Gujarat Electricity Board as per agreement dated 7/02/1986 with the respondent-Board. After commencement of the supply of electricity there were certain checks by the officers of the Board but the defect could not be found out. On 6/08/1986 the premises of the petitioner-Company were checked by the head office checking squad and it was found that there was working wiring and due to wrong wiring the petitioner-Companys meter was found under-recording 35.18%. Therefore the bills from June 1985 onwards were revised. By letter dated 6/09/1986 (Ann. G) revised bill for the period commencing from June 198 5/07/1986 was issued by the Board and the petitioner-Company was called upon to pay an amount of Rs. 31 22 280 Ps. within a period of 15 days from the date of receipt of the letter. Bill dated 5/09/1986 (Ann. 1) for the month of August 1986 for an amount of Rs. 9 55 75 60 rs. was issued. Thus the total amount covered by both the aforesaid documents is Rs. 40 77 356 Ps. The petitioners filed the Special Civil Application in this High Court on 13/09/1986 and challenged the legality and validity of the aforesaid documents. Later on by way of amendment the petitioner-Company has challenged the legality and validity of the notice dated 22/09/1986 produced at Ann. K to the petition. It is contended on behalf of the petitioners that there is bona fide dispute between the parties as regards the dues payable to the Board that prior to the checking which took place on 6/08/1986 the petitioner-Company had paid the bills regularly mistake if any was that of the Board in fixing the wires and the petitioner-Company has not neglected to pay the amount due to the Board. In short it is submitted that in the facts and circumstances of he case here is a bona fide dispute between the parties. Therefore the Board cannot invoke the provisions of Sec. 24(1) of the Act and issue notice calling upon the petitioner-Company to pay up the dues. Even on failure to pay the dues as demanded the Board cannot discontinue the supply of electric energy. At the time of hearing of the petition the learned Counsel for the petitioner has challenged the legality and validity of notices under Sec. 24(1) of the Act (Ann. K) to the petition. He has not argued the case as regards revised bill (Ann. G) and Ann. 'I.

(3) The petition is resisted by the Board on facts as well as on law points. It is inter alia contended that initially there was no dispute as regards the dues of the Board. The checking was carried out in presence of a director of the Company and other Officers as well as an expert called by the company that the petitioner-company has not raised a genuine dispute. It has tried to avoid payment or at any rate makes delay in making payment of the bills. In substance it is submitted that there is no bons fide dispute and the Beard is entitled to issue notice under Sec. 24(1) of the Act. It is also submitted that even if it is held that there is a genuine dispute between the parties since the petitioner-Company has not raised the dispute as provided under Sec. 24(2) of the Act it should he held that the dispute is not bona fide the petition should not be entertained. On other grounds also it is contended that the petition under Art 226 of the Constitution of India is not maintainable and therefore the same should be rejected.

(4) Hence the moot question is is there a bona fide dispute between the parties as regards the dues claimed by the respondent Board ? The question may be examined in further details.

(5) Together with the affidavit-in-reply dated 16/09/1987 a copy of the test-sheet which was recorded at the time of checking which took place on 6/08/1986 has been produced. The test-sheet has been signed by Shri D. K. Maheswari one of the Directors of the Company. It is also signed by one Shri B. G. Nair who according to the respondent-Board was called as an expert by the petitioner-Company. One Shri H. B Patel Electrician of the petitioner-Company was also present. Together with the test-sheet two diagrams are attached showing to how the wrong wiring had taken place and as to how the same is set right. The aforesaid test-sheets as well as the diagrams have been signed by the Director of the petitioner-Company Shri D. K. Maheswari Shri H. B. Patel Electrician of the Company and Shri B. G. Nair. In column 16 of the test-sheet the arithmetical calculations have been noted. In the remarks column how the wrong wiring has been set right has been stated. The last sentence of the remarks column reads additional bill may be issued to the party. Below this writing the parties have put their signatures.

(6) The aforesaid checking took place on 6/08/1986 The revised bills have been issued on 6/09/1986 The bill for the month of August 1986 Annexure I to the petition has been issued on 5/09/1986 After the checking took place the petitioner-Company has written a letter to the Board on August 14 1986 The letter has been written after rechecking of the wiring by the Executive Engineer Resident Engineer and representative of M/s. Jyoti Limited Baroda. As it noted that as mentioned in para 4.9 of the petition M/s. Jyoti Limited Baroda are the manufacturers of relevant electrical implements. The result of the rechecking has been noted in the letter as follows:

"The wiring and the polarities of C. T. S. and P. T. are found connected correctly to the Boards trivectometer (L and G.). Hence no change is carried out in present Wiring"

Thereafter it is mentioned that the petitioner-Company has installed an additional meter on its panel for its reference. Thus in the letter dated 14/08/1986 there is no complaint with regard to the calculations noted down in the test-sheet nor with regard to the additional bills to be sent to the party. By this letter the petitioner-Company indicated two things - (1) on rechecking by the Executive Engineer Resident Engineer and the representative of M/s. Jyoti Limited Baroda it was found that the present wiring was not required to be changed and the wiring was connected correctly to the Boards trivectometer: (2) that the petitioner-Company wanted to install an additional meter on its panel for its own reference. There is not even a murmer with regard to the genuineness or accuracy of the calculations made in the test-sheet and the diagrams attached with the test-sheet.

(7) The Board issued revised bill on 6/09/1986 in respect of the period covering from June 198 5/07/1986 An amount of Rs. 31 22 280 Ps. has been demanded as per the revised bills. The bill Annexure 'I for the month of August 1986 is for an amount of Rs. 9 55 75 Ps. and it has been issued on 5/09/1986 After the receipt of the revised bill the petitioner-Company requested the Board by letter dated 18/09/1986 (Annexure-H) to furnish the details with regard to the wiring diagrams before and after revised connections. The petitioner-Company also requested to furnish the details regarding the parameters on the basis of which the calculations were made to the effect that there was under-recording to the extent of 35.18% and on the basis of which the calculation for maximum demand was made. In this letter the petitioner-Company requested to extend the time for payment so as to enable the petitioner-Company to verify the calculations and find out the amount payable to the Board.

(8) The Executive Engineer of the Board at Godhra replied to the petitioner-Company that for the details asked for by it the Company may approach the Head Office at Baroda. In that letter it is specifically mentioned that the request for extension of time for payment cannot be considered. The petitioner-Company made similar request in respect of the bills for the month of August 1986 by letter dated 18/09/1986 However together with that letter the petitioner-Company sent a cheque for Rs. 7 88 997 Ps. The petitioner-Company had also sent a calculation sheet narrating the charges payable by it in respect of the month of August 1986 The Board has not accepted the cheque because it did not cover the full amount of the bill. Since the amount as demanded was not paid within the specific time limit two separate notices dated 22/09/1986 have been issued under the provisions of Sec. 24 1) of the Act. They are produced at Annexure K to the petition collectively. One notice is in respect of the amount of Rs. 31 22 280 Ps. and another notice is in respect of the amount of Rs. 9 55 75 Ps. covered by the bill for the month of August 1986 Annexure I to the petition.

(9) When the test was carried out by the Head Office checking squad on 6/08/1986 the Director of the Company Shri Maheswari was present. An expert of the Company Shri B. G. Nair was also called and he was present. Electrician of the Company Shri H. B. Patel was also present. The officers of the Board as well as the aforesaid persons put their signatures in the test-sheet as well as in the diagrams prepared at that time. On 14/08/1986 the petitioner-Company wrote a letter to the Board and did not make any complaint with regard to setting right of the wrong wiring. On the contrary it confirmed that on rechecking what was found was correct and the rechecking was done by representative of M/s. Jyoti Limited Baroda. After receipt of the revised bill in letter dated 18/09/1986 the petitioner-Company made grievance that when the signature on the diagrams was taken it had requested the officers of the Board to furnish copies of the said diagrams but the same was not furnished and hence a request was made to furnish the documents. Similarly clarification was sought with regard to the basis of calculation for the first time by this letter dated 18/09/1986 Be it noted that the test-sheet is signed by no less a person than the Director of the Company where in it is also written that additional bill be issued to the party.

(10) In the letter dated 14/08/1986 which has been written immediately after the rechecking no complaint whatsoever it made with regard to the copies of the diagrams or with regard to the basis of the calculations. Shri B. G. Nair has written in the test-sheet that the connections were charged in front of him as per the attached diagrams. Neither in the test-sheet nor in the diagrams it is mentioned that a copy of the same was demanded by or on behalf of the petitioner-Company and the same was not furnished. Therefore on scrutiny it becomes clear that from 18/09/1986 onwards the petitioner-Company started inventing reasons for delaying the payment. Had there been any doubt either with regard to the correctness of the calculations made in the test-sheet or with regard to the setting right of the wiring as reflected in the diagrams She petitioner-Company would have on the same day raised objection. Instead of raising objection it agreed that additional bill be issued to the party or at any rate it would have raised objection when it wrote letter dated 14/08/1986

(11) Now it is interesting to note that in the petition which has been filed on 30/09/1986 in paragraph 4.9 it is averred as follows:

" They prepared necessary working sheet and diagrams in this behalf and got the same signed by the petitioner-Company also."

It is not stated that on behalf of the Company copy of the diagrams was demanded and the same was not supplied. It is neither mentioned in the petition nor in the letter dated 14/08/1986 or the subsequent letters dated 18/09/1986 that the Director of the Company and the technical expert Shri B. G. Nair as well as the electrician of the Company were required to sign the test-sheet and the diagrams on account of the threat given by the officers of the Board. It is for the first time that in the affidavit-in-rejoinder filed on behalf of the petitioner-Company on 21/09/1987 that the story of threat having been given by the officers of the Board finds its place. This has been denied by officers of the Board in their affidavit. This story cannot be accepted for the simple reason that had it been true the petitioner-Company would have immediately put in writing in the letter dated 14/08/1986 or at any rate in the letters dated 18/09/1986

(12) Moreover there is no reason why these averments could not have been made in the petition. It is only after filing of the affidavit-in-reply by the respondent-Board that for the first time in the affidavit -in-rejoinder the story of threat having been administered by the officers of the Board finds its place. For the first time therein it is alleged that on account of the threat the test-sheet as well as the diagrams were signed by the Director of Company without understanding the same. This story is nothing but an after-thought. It appears to have been invented only with a view to show that there existed a dispute between the parties as regards the dues claimed by the revised bill Annexure G and the bill for the month of August 1986 Annexure - 1. Thus on over-all consideration of the facts and circumstances of the case and on scrutiny of the attitude of the Company an irresistible inference has got to be draw that the reasons sought to be canvassed by the petitioner-Company for not making the payment are not genuine on the contrary the reasons are indicative of an attempt to show that there existed a bona fide dispute between the parties.

. (13) According to Blacks Law Dictionary the term 'bona fide would mean (1) in or with good faith; (2) honestly openly and sincerely (3) without deceit or fraud; (4) truly; (5) actually; (6) without simulation or pretence; (7) innocently; (8) in the attitude of trust and confidence; (9) without notice of fraud etc. (10) real actual genuine and not feigned. In the context it should mean genuine honest and without simulation or pretence. In the facts and circumstances of the case it would be difficult to hold that the petitioner-Company has raised a genuine and honest dispute with regard to the dues claimed by the respondent-Board. This conclusion is irresistible for the following reasons: At the initial stage on 6/08/1986 the petitioner -Company was represented by its Director Shri D. K. Maheswari its expert and electrician and they signed the test-sheet and diagrams without any reservation whatsoever. In the test-sheet the calculations have been made and in the diagrams the wrong wiring is depicted and position of vires after setting light the same is also shown. In the remarks column of the test-sheet it is stated that the additional bill be issued to the parts; (2) No dispute is raised as regards the correctness of the calculations and the diagrams in letter dated August 14 1986 written by the petitioner-Company. On the contrary it stated that on re-checking what has been done by the checking squad on 6/08/1986 has been confirmed as correct; (3) Only after the receipt of the bill the petitioner-Company has tried to invent reasons for the purposes of delaying the payment. After advancing the aforesaid reasons in the letters dated 18/09/1956 the petitioner-Company set silent and did not take any step to refer the dispute to the Electrical Inspector as provided under Sec. 24(2) of the Act. Had the petitioner-Company been genuinely disputing the correctness of the bills it could have and should have referred the dispute to the Electrical Inspector as provided under Sec. 24(2) of the Act. In the petition there is no explanation whatsoever as to why the petitioner-Company did not raise the dispute as provided under Sec. 24(2) of the Act (4) The petitioner-Company did not show willingness to pay even the undisputed amount of Rs. 7 88 597 Ps. for which a cheque dated 19/09/1986 was issued by the petitioner-Company and the Board did not accept the same because it did not cover the full amount of the bill Annexure 1. Had the petitioner-Company been not lacking in bona fides it would have not prayed for absolute stay against recovery of the entire amount (Rs. 9 55 75 Ps.) covered by the bill for the month of August 1986 Annexure 1 to the petition. It would not be open to the petitioner-Company or for that matter to any litigent to say that it had mentioned the relevant facts in the petition regarding the tender of the amount by cheque. If the petitioner wanted to show its bona fides it was incumbent upon the petitioner to tell the Court that it did not pray for stay in respect of the undisputed amount of Rs. 7 88 997 Ps.

(14) For the aforesaid reasons an irresistible inference has got to be drawn that a pretence has been made by the petitioner-Company to show that there is a genuine dispute and the vail of innocence put on by the Company is nothing but a devise to delay the payment. Had it not been so. the petitioner-Company would not have prayed for stay even with regard to the undisputed amount of Rs. 7 88 997 Ps. The aforesaid discussion clearly shows that there was complete lack of good faith and honesty on the part of the petitioner-Company and therefore it can never be said that there was a bona fide dispute between the parties.

(15) The learned Counsel for the petitioner-Company submitted that the Board cannot invoke the provisions of Sec. 24(1) of the Act. If the Board feels that certain amount remains due to the petitioner-Company it will be open to the Board to recover its dues by filing a suit or by any other lawful means but not by adopting coercive methods as provided under Sec. 24(1) of the Act. In his submission once a dispute and a bona fide dispute is raised it should be held that there is no neglect to pay and the Board cannot issue notice calling upon the consumer to pay its dues and cannot cut of the supply of electricity on failure to make payment as might have been mentioned in she notice. In his submission all that is required for the consumer is to raise a bona fide dispute and the consumer is not obliged to refer the dispute to the Electrical Inspector as provided under Sec. 24(2) of the Act. Assuming that I am wrong in my finding regarding the nature of dispute the contention raised by the petitioner be examined.

(16) In order to examine the contention the provisions of the Act may be seen. Section 22 of the Act imposes an obligation upon the licence to supply energy to every person within the area of supply who makes an application requesting for supply of electrical energy. Section 22A confers power on the State Government to give directions to a licensee in regard to supply of energy to certain class of consumer. Section 22P empowers the State Government to control the distribution and consumption of energy. Section 23 of the Act prohibits the licensee from showing undue preference to any person in making any agreement for the supply of energy. It may be noted that reference to licensee would in the context be applicable to the Board. Section 24 provides for discontinuance of supply to a consumer who neglects to pay the charges. Sub-sec. (1) of Sec. 24 confers power upon the licensee to cut off supply of electrical energy in certain circumstances after giving notice of seven clear days in writing. These circumstances are that if the consumer neglects to pay any sum due from him either in respect of charge for electric energy or any sum other than the charge for energy in respect of the energy supplied. The licensee is bound to restore the supply of electric energy as soon as the amount demanded is paid. Sub-sec (2) of Sec. 24 is very much material. The power conferred upon the licensee under Sec. 24(1) of the Act is curtailed or circumscribed to a certain extent by sub-sec. (2) of Sec. 24. It provides that in cases of dispute between the licensee and the consumer which is required to be determined by or under the provisions of the Act by an Electrical Inspector and if the same has been referred to the Electrical Inspector before the notice under Sec. 24(1) is given the licensee shall not be entitled to cut off the Electric supply till the decision is given lay the Electrical Inspector. Thus this is a fetter placed on the right to cut off the electric supply. Proviso to sub-sec. (2) of Sec. 24 is enacted for dual purposes. One is to relieve the licensee from the rigour of provisions of Sec. 22 and the legislature has given some further choice or option to the licensee to ask the consumer to deposit the amount claimed by it with the Electrical Inspector. In case the consumer fails to deposit the amount as instructed by the licensee the licensee would he entitled to enforce it by coercive measures.

(17) In the case of Shantilal R. Dasai v. P. N. Vyas and Another AIR 1968 Gujarat 179 provisions of Sec. 24 of the Act came up for consideration In that case the dispute was referred to the Electrical Inspector. The Electrical Inspector had asked the licensee not to resort to provisions of Sec. 24(1) of the Act. This action of the Electrical Inspector was challenged by the licensee on the ground that the dispute referred to the Electrical Inspector was not a dispute referable to him under the provisions of Sec. 24(2) of the Act. The dispute was with regard to the payment of electricity changes for which supplementary bills were issued by the licensee. In view of the provisions of the Act and the Rules as then existed it was held that the dispute was not referable to the Electrical Inspector and therefore the Electrical Inspector bad no jurisdiction to entertain the dispute and direct the licensee not to proceed further pursuant to the notice issued under Sec. 24(1) of the Act. The natural corollary of the aforesaid decision is that wherever the dispute is referable to the Electrical Inspector under Sec. 24(2) of the Act and once the dispute is referred the licensee would not be entitled to invoke the provisions of Sec. 24(1) of the Act. In such circumstances it would not be open to the licensee to issue notice calling upon the consumer to pay up its dues within prescribed time limit failing which to discontinue the electric supply.

(18) In the instant case the reverse is the position. The notice under Sec. 24(1) of the Act is issued and the consumer disputes the legality and validity of the notice. While disputing the legality and validity of the notice the only ground raised by the petitioner Company is that there is bona fide dispute and therefore notice cannot be issued. The petitioner-Company does not contend nor it is argued before me or averred anywhere in the petition that the dispute raised by the petitioner-Company is not referable to the Electrical Inspector. It is also not shown that even if the dispute is held to be referable to the Electrical Inspector as provided for under Sec. 24(2) of the Act it is not for the petitioner to raise the dispute before the Electrical Inspector and it can sit silent after raising the dispute. This later contention is raised only during the course of arguments.

(19) Now if the contention raised by the petitioner-Company is accepted all that the consumers would be required to do would be to raise the dispute and give a simulation or pretExt to the same of being genuine. In a given case there may be a genuine and bona fide dispute raised by the consumer. But to show the bona fides it will be for the consumer to refer the dispute to the Electrical Inspector as provided under Sec. 24(2) of the Act. If this course is not adopted by the consumer and if the scheme of the Act is not interpreted to mean that it is obligatory upon the consumer to refer the dispute to the Electrical Inspector the entire provisions of Sec. 24 of the Act would become nugatory. Particularly the provisions of Sec. 24(1) of the Act would become meaningless. When the Board makes the demand of the amount as contemplated under Sec. 24(1) of the Act the Board would proceed on the footing that the demand made by it is genuine and correct. According to the Board there would be no room for dispute much less a genuine or bona fide dispute. However this belief of the Board may be mistaken. In such a case if the consumer feels that there is a genuine difference or dispute he must refer the dispute to the Electrical Inspector any time before the notice under Sec. 24(1) of the Act is given. This can be done by the consumer immediately after the receipt of the bill and before the insurance of the notice In the instant case the petitioner Company did not refer the dispute to the Electrical Inspector but attempted to invent reasons for delaying payment.

(20) Now the contention of the petitioner be examined from yet another angle. If the contention of the petitioner is upheld it would not be necessary for consumers of electricity to refer the bona fide disputes to Electrical Inspector. In such cases the Board cannot invoke the provisions of Sec. 24(1) of the Act. Therefore it may resort to any other lawful remedy available to it. This in all the cases of bonafide disputes between the parties the provisions of Sec. 24(1) of the Act would be excluded. Then question arises are the powers under Sec. 24(1) of the Act meant to be exercised by the Board only in cases wherein the consumers withhold the amount due to the Board by raising false and frivolous disputes ? Another question that arises is are the bona fide disputes and differences not to be referred to Electrical Inspector under Sec. 24(2) of the Act and only the false and frivolous disputes are to be referred to him ? If reasonable interpretation to the provisions of the Section is to be given the answer would be negative. Otherwise it would amount to re-writing Sec. 24(2). At the appropriate place before the words disputes and/or differences the phrase except bona fide will have to be inserted and/or read. This is neither warranted nor permissible to the Court. Moreover such interpretation would be absurd inasmuch as it would make the provision of Sec. 24 meaningless. In cases where Sec. 24(2) does not apply different consideration may arise which it is not necessary to spell out since the question does not arise before me. 20 In the instant case it may be noted that the dispute is with regard to the revision of bills which has been necessitated on account of wrong wiring. Such a dispute is covered by the provisions of sub-clause (3) of Clause VI of the Schedule to the Act. Sub-clause (3) of Clause VI inter alia refers to any difference or dispute arising out of the defect in any wires works or apparatus etc.. Such a dispute is required to be referred to an Electrical Inspector as provided in this sub-clause. It is not the case of the petitioner-Company that the dispute is not referable to Electrical Inspector under the provisions of Sec. 24 of the Act. On behalf of the respondent-Board it is positively shown that the dispute is referable to Electrical Inspector. This is so in view of the provisions of sub-clause (3) of Clause VI of the Schedule to the Act.

(21) Here reference may be made to the decision of the Allahabad High Court in the case of State Electricity Board U. P. Bandu v. Prakash Talkies AIR 1977 Allahabad 460. The dispute arose between the Board and the respondent cinema talkies as regards the demand of energy charges in respect of running of fans. The Division Bench of Allahabad High Court after referring to the provisions of Sec. 24 of the Act observed in para 5 of the judgment as follows:

"On a plain reading of this provision it appears to us to be clear that there was Po duty cast on the licensee to refer a dispute covered by sub-clause (3) clause of VI of the Schedule of the Act for determination to the Electrical Inspector. If a dispute of that character is raised by the consumer in our opinion it is for him to make a reference to the Electrical Inspector for determination thereof. Section 24(1) of the Act gives power to licensee where a consumer neglects to pay any charge for energy or any sum other than a charge for energy due from him to licensee in respect of the supply of energy to him to disconnect the electric supply after giving one weeks notice in writing to the consumer for payment of the amount due."

(22) I am in respectful agreement with the view taken by the Division Bench of the Allahabad High Court. In above view of the matter it is clear that in cases where the difference or dispute is referable to the Electrical Inspector and the provisions of Sec. 24(2) of the Act are applicable it is for the consumer to raise the dispute before the Electrical Inspector. This will be a clear indication of the bona fides of the consumer. Once the dispute is raised and referred to the Electrical Inspector the Board will not be in a position to disconnect the electric supply. At the most the Board may resort to the proviso to Sec. 24(2) of the Act and may ask the consumer to deposit the amount in dispute with the Electrical Inspector and thereby protect its own interest Thus the legislature has provided for drastic powers which may be exercised by the Board. The powers are circumscribed also. In cases where there is a bona fide dispute and the same is referred to the Electrical Inspector the Board cannot exercise its power. This power is conferred upon the Board because the Board is under obligation to supply electric energy and it cannot withdraw the supply on any whimsical ground or an any other unreasonable considerations. Just as the Board is under obligation to supply electricity the consumer is also under obligation to make regular payments. In case of dispute it will be for the consumer to raise and refer the dispute before the Electrical Inspector.

(23) It is note-worthy that the legislature has thought it fit to provide that difference or dispute be referred to an Electrical Inspector. Why Electrical Inspector ? Why not a District Magistrate or a District Judge or even a Court of Civil Judge Senior Division ? The reason is obvious. The dispute which are made referable or which may be made referable in future will be of highly technical nature. Technical knowledge and expertise will be necessary to resolve such disputes. The dues of the licensee in this case the Board cannot be kept in doubt for unreasonably long time inasmuch as certain disputes may be with regard to recurring charges. The technical questions which may arise in such disputes can be easily resolved by a person who has necessary technical expertise. That is the reason why such disputes are required to be referred to an Electrical Inspector as provided for under Sec.

(24) of the Act. When the legislature has clearly expressed in no uncertain terms its intention that such disputes be referred to an Electrical Inspector it would not be wise and proper to entertain a dispute of this nature in a. petition under A rt. 226 of the Constitution of India. Moreover even if the consumer makes out a case and prima facie shows that the difference or dispute existing between the parties is genuine and bona fide the petition at the instance of such a consumer cannot be entertained for two reasons - (1) that the consumer can approach the Electrical Inspector and refer his dispute to the Electrical Inspector as provided under Sec. 24(2) of the Act and (2) normally it would not be possible for the High Court to examine the facts requiring technical expertise. It would be difficult in a petition under Art. 226 of the Constitution to examine the experts and call for their aid and assistance in arriving at a just conclusion. Such a course may be adopted in a civil suit. Therefore even if it is assumed that a bona fide dispute existed between the parties petition under Art. 226 of the Constitution of India is not the proper remedy for resolving such disputes.

(25) It is true that existence of alternative remedy does not create absolute bar against entertaining a petition under Art. 226 of the Constitution. But it cannot be forgotten that resort to jurisdiction under Art. 226 of the Constitution of india is not intended as an alternative remedy for relief which may be obtained by pursuing the course prescribed under a statute. Wherever it is open to an aggrieved person to move another authority prescribed under the relevant provisions of the statutes it would not be proper for the High Court to entertain petition under Art. 226 of the Constitution of India. To do so would amount to permitting a party to by-pass the machinery created by the statutes. In the instant case as indicated hereinabove the legislature has created the machinery under Sec. 24 itself. This machinery cannot be permitted to be by-passed simply because the petitioner has raised some dispute may by genuine and bona fide dispute (however which it is not in the instant case as discussed hereinabove). Simply because a dispute is raised and the dispute is genuine and bona fide if petition under Art. 226 of the Constitution is entertained it would amount to rendering useless the machinery created by the statute. On the other hand the High Court would be arrogating to itself the role of an Electrical Inspector. The dangers of adopting such a course cannot be ignored. However industrious intelligent and able assistance may be received by the High Court in a petition under Art. 226 of the Constitution of India the very nature of the proceedings have their limitations. On account of the expertise that which could be done by an Electrical Inspector within an hour or so may not be achieved by the High Court even after investing time for days together. Therefore even on account of pragmatic considerations it is neither wise nor proper to entertain the petition for resolving disputes for which a separate machinery has been created by the statute itself.

(26) The learned Counsel for the respondent-Board has relied upon the decision of the Bombay High Court in the case of M/s. Bharat Barrel Drum Manufacturing Co. Pvt. Ltd. v. The Municipal Corporation of Greater Bombay and Another AIR 1978 Bombay 369 In that case the dispute rose on account of erroneous reading of the matter. Consequently the consumer was undercharged to the extent of 1/2 tone half). When the mistake was detected the licensee issued notice to the consumer for making payment of the amount due. That was challenged before the High Court. In para 21 of the judgment the Division Bench of the Bombay High Court inter alia observed that if the reasons offered by the consumer are not genuine and are indicative of a mere desire not to pay the dispute raised by the consumer ought not to be regarded as bonafide. It is further observed that in each case the Court will have to scrutinise the attitude of the consumer and consider the reasons given by him to the licensee for not meeting with the demand made by the licensee. On consideration of the facts of the case the Bombay High Court came to the conclusion that the dispute raised by the consumer was not bona fide. In that very judgment earlier decisions of the Bombay High Court in the case of Corporation of the City of Nagpur v. Nagpur Electric Light and Power Co. Ltd. AIR 1958 Bom. 498 and Maharashtra State Electricity Board v. Madhusudandas and Brothers AIR 1966 Bom. 160 were considered. It is observed by the Bombay High Court that the nature of dispute raised in the earlier cases was entirely different. Relying upon the aforesaid decision of the Division Bench of the Bombay High Court it is submitted by the learned Counsel for the Board that in the instant case also the dispute raised by the petitioner-Company cannot be said to be bona fide. Therefore it is submitted that the Board is entitled to invoke the powers conferred upon it under Sec. 24(1) of the Act. As discussed hereinabove the dispute raised by the petitioner cannot be said to be bonafide. The petitioner-Company has invented the reasons subsequently. It appears that the reasons advanced by the petitioner-Company are indicative of the desire of the petitioner not to make payment immediately. It also appears that the attempt of the petitioner is to delay the payment and not to comply with the demand made by the revised bill at Annexure-G and the bill for the month of August 1986 Annexure I.

(27) The learned Counsel for the petitioner-Company relied upon the decision of the Bombay High Court in the case of Corporation of the City of Nagpur (supra). In that case the parties had not even agreed as regards the mode in which the charges were to be ascertained. There were no basis for charging. The dispute was with regard to the electric energy supplied for public lamps and other charges connected therewith. In such a situation clause XII of the Schedule to the Act is attracted. In view of these facts of the case the Bombay High Court held that there was bona fide dispute and therefore the Board could not have invoked powers under Sec. 24(1) of the Act. However it may be noted that in that case no question arose as regards the applicability of the provisions of Sec. 24(2) of the Act. In the instant case the provisions of Sec. 24(2) of the Act do apply. In above view of the matter reliance placed on the aforesaid decision of the Bombay High Court does not help the petitioner.

(28) The learned Counsel for the petitioner relied upon the decision of the Bombay High Court in the case of Maharashtra State Electricity Board v. M/s. Madhusudandas and Brothers AIR 1966 Bom. 160. In that case the dispute arose on account of the change in the tariff. The Court held that there was bonafide disputes. Again the dispute was raised by filing a civil suit and not by way of writ petition under Art. 226 of the Constitution of India. Moreover no question as regards applicability of Sec. 24(2) of the Act has been considered in that judgment also. Therefore the aforesaid decision also does not help the petitioner.

(29) The learned Counsel for the petitioner relied upon the decision of the Orissa High Court in the case of M/s. Orissa Fibre v. The Orissa State AIR 1973 Orissa 104. Therein the Court has considered as to whether the consumer had neglected to pay or not. But in para 3 of the judgment it is clearly observed that both the sides conceded that the provisions of Sec. 24(2) of the Act did not apply. In view of this position the reliance placed on this judgment also does not help the petitioner.

(30) The learned Counsel for the petitioner relied upon the decision of the Allahabad High Court in the case of Hindustan Alluminium Corporation Ltd. v. The U. P. State Electricity Board AIR 1973 Allahabad 263. Therein the Allahabad High Court has followed the decision of the Bombay High Court in the case of Corporation of the City of Nagpur (supra) and it is held that where the consumer had raised a bona fide dispute as to the amount payable there is no neglect to pay and the supply of energy cannot be cut off. In the instant case it is held that there is no bona fide dispute. Moreover in that case also the question as regards the applicability of Sec. 24(2) of the Act has not been considered. It may be that dispute or difference which arose between the parties might not be referable to Electrical Inspector under Sec. 24(2) of the Act. Be that as it may. The fact remains that this aspect has not been considered at all in the judgment. Therefore the aforesaid decision also does not help the petitioner.

(31) The learned Counsel for the petitioner submitted that the Board has made demand with retrospective effect. The period covered is from June 198 5/07/1986 In his submission the petitioner has manufactured goods and thereafter marketed the same on the basis of the payment of electricity charges as per the bills received by it. Now if the petitioner is asked to pay an amount of Rs. 31 22 280 as additional amount the petitioner would suffer untold hardship inasmuch as the petitioner-Company would not be able to recover the same from its consumers.

(32) At the first blush the argument seems to be attractive. But with little scrutiny it becomes clear that there is no merit in the argument. It is not shown in the petition that the petitioner was obliged to market its finished goods at a lower rate than the prevailing market rate. On account of the wrong wiring and under-recording of the meter all that had happened was that the petitioner was charged much less As the petitioner was charged less the petitioners cost for manufacturing the end product must have gone down. The cost of the finished product which the petitioner manufactured would have been much lower than what it would have been in case of other similarly situated units As a result of wrong wiring and under-recording of the meter the petitioner was charged less than what it ought to have been charged. The resultant effect would be larger margin of profit and not any loss to the petitioner. It would be absurd to infer that because the cost of production of the petitioners unit alone goes down the prevailing market rate at which the commodity can be sold in the market would also go down. At any rate there is no evidence to show that the petitioner had sold its product at a price lesser than the prevailing market rate.

(33) Thus an irresistible inference has to be drawn that the petitioner-Companys margin of profit was enlarged on account of the wrong wiring and under-recording of the meter. This is not a case of retrospective demand. It is a case of less payment made by the petitioner-Company on account of mistake common to both i. e. the petitioner-Company as well as the respondent-Board. The mistake was discovered after a period of about 14 months. Hence the demand by revised bills. All that has been done by the Board by making the demand is to ask the petitioner-Company to pay something which the petitioner-Company was not entitled to retain with it. This money did not belong to the petitioner. The petitioner-Company would have been made to pay all this amount long back had there not been wrong wiring an the under-recording of the meter. Now when the petitioner is asked to pay up this amount all that would happen will be that its profit margin would get shrunk to some extent. The petitioner-Company will have to pay to the Board something which never belonged to it. It is

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just and proper that a party does not retain anything which does not belong to it. In such a situation it can never be said that the demand is made with retrospective effect. (34) The learned Counsel for the respondent-Board contended that the petitioner was not entitled to invoke the principles of estoppel and/or that of commercial expediency. In support of this submission reliance is placed on the decision of the Privy Council in the case of Maritime Electric Company Ltd. v. General Dairies Limited 1937 Appeal Cases 610. In that case the consumers were charged with only 1/10th of the electric energy supplied. Later on when the mistake was detected the balance of 9/10th of the amount was demanded by the Electric Company. Repelling the argument based on estoppel it is observed that the relevant provisions of the statute imposed duty on the Electric Company to charge and on the consumer to pay at the scheduled rates. In that background the question was posed can the duty so cast by the statute upon both the parties to this action be defeated or avoided by a more mistake in the computation of accounts ?. Answering the question the Privy Council observed that where the statute imposes a duty of a positive kind not avoidable by the performance of any formality it is not open to the consumer to set up an estoppel to prevent performance of the duty. It is also observed it is immaterial whether the obligation is onerous or otherwise to the party suing. The duty of each party is to obey the law. Thereafter it is observed that if the Electric Company does not collect and receive from the consumers the amount remaining due it would be acting in direct violation of the provisions of the statute. It is evident that in the instant case also the same will be the position. If the Board does not collect the amount due from the petitioner-Company the petitioner-Company would be avoiding the obligation arising out of the contract as well as under the provisions of the Indian Electricity Act. The petitioner-Company is bound to pay the electric charges at the same rate applicable to all other consumers. The Board is under a statutory obligation to charge for the electricity supplied to all the consumers at the same rate. If payment of electric charges can be avoided on accounts of mistakes this would open a new vista for malpractices and corruption. In above view of the matter the argument based on estoppel and or commercial expediency has no merits and the same is required to be rejected. (35) The contention that the petitioner-Company is situated in a backward area and therefore in view of the Government policy to develop industries in backward areas the respondent-Board should not be permitted to enforce the demand also cannot be accepted. There is no Government-policy to the effect that industries started in backward areas should be allowed to reap benefits on account of mistakes. It cannot be the policy of the Government nor can there be any such direction that mistakes cannot be corrected. No one can claim to retain the benefits received by it under mistake common to both. It would be both immoral and illegal. Powers under Art. 226 of the Constitution cannot be exercised to support either immorality or illegality. (36) It is contended that the petitioner-consumer was required to pay the charges every month as provided in clause 8 of the agreement between the parties. The petitioner has made payment of electric charges every month as and when the bill was tendered. Therefore the revised bill cannot be issued. Clause 8 of the agreement cannot be pressed in service by the petitioner. Clause 8 refers to the charges for supply of electric energy in regular course. Had there been no wrong wiring or no under-recording the meter reading and the bill which would have been tendered would have shown higher amount than what has been paid by the petitioner. Clause 8 does not preclude the Board from making demand in case of discovery of mistake at a later stage. (37) No argument has been advanced with regard to the correctness and/or reasonableness of the demand made by revised bill sent together with Annexure G and bill for the month of August 1986 produced at Annexure I to the petition. Therefore it is not necessary to consider as to whether the demand made by Annexure G and I is reasonable or not. In the facts and circumstances of the case it cannot be said that the demand made by the aforesaid documents is in any way unreasonable or arbitrary. (38) No other contention is raised. There is no substance in the petition. Hence the petition stands rejected. Notice discharged. Adinterim relief granted earlier stands vacated. (Rest of the Judgment is not material for the Reports.) Rule discharged.
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