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Rajasthan State Electricity Board, Jaipur v/s Satnarain

    Civil Second Appeal No. 73 of 1984

    Decided On, 28 April 2000

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE SUNIL KUMAR GARG

    For the Appellant: G.M. Bhandari, Advocate. For the Respondent: R.K. Singhal, Advocate.



Judgment Text

This is a second appeal filed on behalf of the appellant defendant against the judgment and decree dated 4-2-1984 passed by the learned District Judge, Sri Ganganagar by which he rejected the first appeal filed by the appellant defendant against the Judgment and decree dated 21-7-1981 passed by the learned Munsiff Magistrate, Sri Ganganagar by which he decreed the suit of the plaintiff respondent against the defendant appellant in the terms that in case bill No. 380443 is not paid, the defendant appellant shall not (sic) disconnect the electric connection of the plaintiff respondent.

2. This second appeal arises in, the following circumstances :--

The plaintiff respondent filed a suit in the Court of Munsiff. Sri Ganganagar on 15-2-19

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79 for permanent injunction against the appellant defendant stating that there is a shop No. 60, which has electric connection No. A-2/2/185 in the name of Mamchand, who is Uncle of the plaintiff respondent. The defendant appellant supplies the electricity to the consumers. The defendant appellant sent a bill No. 380443 to the plaintiff respondent in the month of Jan. 1979 for Rs. 3567.04, on the basis of average consumption. The case of the plaintiff respondent is that the bill is arbitrary and capricious and the defendant appellant has no right to send the bill on the basis of average consumption. Hence, the bill is illegal and the suit be decreed and no recovery be effected on the basis of that bill.

The suit of the plaintiff respondent was contested by the appellant defendant by filing a written statement in the lower Court on 11-7-1979 and it was stated by the defendant appellant in para 3 of the written statement that the meter of the plaintiff respondent since 21-8-1978 was running intermittently and, therefore, average bill for the period from 2-1-1978 to 19-12-1978 for 570 unit per month was prepared, as per the provisions of Condition 19{d)(vii) of the General Conditions of Supply and Scale of Miscellaneous Charges relating to the Supply of Electricity, 1964 (hereinafter referred to as 'Conditions of 1964'). Hence, the bill in question was rightly sent to the plaintiff respondent and he was liable to make payment of the said bill. Therefore, the suit of the plaintiff respondent be dismissed.

On the pleadings of the parties, issues were framed on 8-12-1980 by the lower-Court and main issue which is in dispute, is issue No. 1.

Two witnesses were produced on behalf of the defendant appellant in the lower Court and after recording the evidence, the learned Munsiff, Sri Ganganagar by his Judgment and decree dated 21-7-1981 decreed the suit of the plaintiff respondent in the terms as stated above.

Against the judgment and decree dated 21-7-1981 passed by the learned Munsiff, Sri Ganganagar, the defendant appellant preferred first appeal in the Court of District Judge, Sri Ganganagar, who by his judgment and decree dated 4-2-1984 rejected the appeal of the defendant appellant and upheld the judgment and decree dated 21-7-1981 passed by the learned Munsiff, Sri Ganganagar.

Aggrieved from the judgnient and decree dated 4-2-1984 passed by the learned District Judge, Sri Ganganagar. the appellant defendant has preferred this second appeal in this Court.

3. This Court on 24-8-1984 while admitting this second appeal framed the following substantial question of law :--

"Whether in the facts and circumstances of the case, the learned District Judge was not right in decreeing the suit of the plaintiff as Section 26 of the Indian Electricity Act, 1910 is not applicable and Condition No. 19(D)(7) of the General Conditions of Supply & Scale of Misc. Charges relating to the Supply of Electricity, 1964 applies to the case?

If answer to this question is in the affirmative, to what relief the appellant is entitled?"

4. The case of the defendant appellant is that the case of the plaintiff respondent is covered by Condition 19(d)(vii) of the Conditions of 1964, while the case of the plaintiff respondent is that his case is covered by Section 26(6) of the Indian Electricity Act, 1910 (hereinafter referred to as 'the Act of 1910').

5. In case when there is a dispute between the parties, the same can only be resolved u/s 26(6) of the Act of 1910.

6. For convenience. Condition No. 19(d)(vii) of the Conditions of 1964 is quoted below:--

"(vii) in the event of the meter being out of order i.e. burnt/stopped or having ceased to function (except percentage of defect) for any reason during any month/months the consumption for that month/months shall be assessed by the billing authority or by the vigilance checking Officer, as the case may be as mentioned hereunder :--

1 to 6. ...........,..........."

7. This condition speaks very clear that it is only applicable when the meter is out of order for any reason during any month, while Section 26(6) of the Act of 1910 is applicable when the meter is not correct. In the present case, there is specific case of the defendant appellant as per para 3 of the written statement that the meter of the plaintiff respondent was running intermittently. Not only this, DW1, who is a witness of the defendant appellant has also stated in his statement that the meter was running intermittently. DW 2 has stated that meter was totally stopped. The learned District Judge has clearly mentioned in his judgment and decree dated 4-2-1984 that this is a new? case of the defendant appellant and it is against Its pleadings and, therefore, it cannot be accepted. It means the finding of the Courts below on this point is that the meter of the plaintiff respondent was running intermittently and it was not completely out of order.

. 8. When this being the position, the case of the plaintiff respondent would be covered by Section 26(6) of the Act of 1910 and not by Condition No. 19(d)(vii) of Conditions of 1964. For this purpose, there is a clear authority of this Court in Rajasthan State Electricity Board v. Samprakash, 1995 DNJ (Raj) 36, where it has been held that if the meter was functioning, but not correctly recording the consumption. Section 26(6) would be applicable and not Condition 19(d)(vii) of the Conditions of 1964. Therefore, the finding of the learned District Judge that Section 26(6) of the Act of 1910 would be applicable, is correct one and the case of the defendant appellant that Condition No. 19(d)(vii) would be applicable, is not acceptable and thus, the learned District Judge rightly dismissed the appeal of the appellant defendant by applying the correct proposition of law and thus, there is no force in this second appeal and the same is liable to be rejected.

9. The learned counsel for the appellant defendant has relied on the decision in M.P. Electricity Board, Jabalpur and Another Vs. Chhaganlal, where it has been held that where the meter is not giving correct consumption due to defect not in meter but in wiring. Section 26(6) of the Act of 1910 is not attracted. In my opinion, the facts of this case are totally different from the facts of the present case since in the present case, meter is found defective and not wiring.

10. Thus, the substantial question is answered in the form that Section 26(6) of the Act of 1910 would be applicable in the present case and not Condition No. 19(d)(vfl) of the Conditions of 1964.

For the aforesaid reasons, this second appeal is rejected upholding the Judgment and decree dated 4-2-1984 passed by the learned District Judge, Sri Ganganagar. No order as to costs.
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