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JUDGMENT S.B. Sinha, J.
1. In this application, the petitioner which is a company incorporated under the Indian Companies Act, 1956 question the bills raised by the Bihar State Electricity Board (hereinafter referred to as 'the Board') during the period March, 1992 to June, 1992.
2. The fact of the matter is not in dispute. The petitioner is a consumer of High Tension electrical energy having contract demand of 1275 K.V.A. of electrical energy in terms of an agreement dated 23-5-1979 as contained in Annexure 1 to the writ application. The Board installed a Trivector meter wherefor the petitioner has to pay rent. The transformer however was installed by the petitioner. According to the petitioner owing to highly unstable and erratic main supply voltage the current transfarmer and potential transformer (C.T.P.T.) of the Board's trivector meter was burnt on 9-5-1990. As the meter was burnt, the petitioner was billed on the basis of 4.03.528 units per month which was said to be the average unit consumed recorded during January, February and March, 1990. The meter however became functional on or form 1st July, 1992. The grievance of the petitioner is that during the period March, 1992 to June, 1992 there had been inadequate supply of electrical energy as a result whereof the petitioner could not have even consumed units of electrical energy calculated on the basis of three months average supply.
3. Mr. Navaniti Prasad Singh, learned counsel appearing on behalf of petitioner has raised short question in support of the application. Learned counsel submitted that the bills on the basis of average supply can be raised only in terms of Clause 3(c) of the agreement. But the bills have been raised on the basis of Clause 16.8 of the new tariff which came into force with effect from 20th Sept. 1991. It has been submitted that average supply of electrical energy was only 45%. In this connection our attention was drawn to paragraphs 4, 5, 6 and 7 of the supplementary affidavit.
4. Learned counsel drew our attention to the amount of bill which used to be paid previously by the consumer and which has to be paid now. He, therefore, submitted that Clause 16.8 of 1991 tariff must be held to be irrational as no provision therein has been made for grant of proportionate reduction in the matter of consumption of electrical energy. Learned counsel submitted that Clause 3(c) of the agreement has to be read with Clause 6(1) and if the same is compared with Clause 16.8 of the new tariff, it must be held that the same is wholly irrational.
5. Mr. Singh has further submitted that whereas Clause 13 of the High Tension Agreement provides for redressal of the consumer's grievance of obtaining proportionate reduction in minimum guarantee charges in case of non-supply/short supply of the electrical energy but no provision has been made in relation to consumption of the electrical energy.
Learned counsel in this connection has relied upon a decision of the Supreme Court in Northern Indian Iron and Steel Co. v. The State of Haryana reported in AIR 1976 SC 1100.
6. Mr. Shiva Kirti Singh, learned counsel appearing on behalf of the Board on the other hand submitted that Clause 16.8 of the tariff has been held to be intra vires by Division Bench of this Court in Bihar Chamber of Commerce v. Bihar State Electricity Board reported in (1993) 1 Pat LJR 36.
He further submitted that the clause relating to raising of bill on average consumption of electrical energy must be held to be rational and even if there has been short supply of electrical energy the consumer cannot raise any grievance in relation thereto.
7. In this case evidently the meter was burnt on 9-5-1990 and the petitioner did not make any protest with regard to the bills raised on the basis of average consumption of electrical energy from January, February and March, 1990; till February, 1992. Admittedly it has also paid the bills for to month of March and April, 1992. It is true that normally consumer is supposed to be billed on the basis of consumption of the electrical energy. However, it is well known that fixation of tariff is a legislative function. (See Ashok Sqap Factory v. Municipal Corporation of Delhi, reported in (1993) 2 SCC 37 : (1993 AIR SCW 650)).
8. Clause 3(c) and Clause 6 of the agreement reads as follows:
"3(c) -- Subject to Clause 6 appearing hereinafter in the agreement, in the event of any meter ceasing to register or found to be defective or the Board's employee having been unable to read meter, the reading during the period of such cessation or defective registration or non-reading shall be based on the average reading of the previous three months, in which the meter ran correctly and reading was duly recorded. In taking such average due regard shall be given to the conditions of working during the month under dispute and during the previous three months. In case of failure to take reading by the Board's employees, proper adjustment shall be made when actual reading is taken next."
"6. Should the consumer dispute the accuracy of any meter not being his own property, the consumer may upon giving notice and paying the prescribed fee have the meter officially tested by the Electric Inspector, Government of Bihar, in accordance with Sub-section (6) of Section 26 of the Indian Electricity Act, 1910. In the event of the meter being tested by the Electric Inspector, Government of Bihar and found to be beyond the limits of accuracy as prescribed in the Indian Electricity Rules, 1956, or any other statutory modification thereof as may be in force from time to time the testing fee will be refunded and the amount in respect of the meter readings of the three months prior to the month in which the dispute has arisen or of three months as provided in Clause 3(c) above, as the case may be, will be adjusted in accordance with the result of the test taken, due regard being paid to the conditions of working during the month under dispute and during the previous three months."
9. The clause provided for average consumption of electrical energy not only on the basis of average reading of the previous three months but also provides that in taking such average due regards shall be given to the condition of working during the months under dispute and during the previous three months. However, it is now well known that in view of the fact that tariff framed under Sections 46 and 49 of the Electricity Supply Act has the force of statute. The terms and conditions of the supply of electrical energy are not only governed by the agreement entered into by and between the parties but the same is also governed by the provisions of tariff and if there occurs a conflict between the terms and conditions of agreement and tariff, the latter shall prevail, Reference in this connection may be made to Casting (India) Ltd. v. Bihar State Electricity Board, reported in (1993) 2 Pat LJR 34.
10. Clause 3(b) of the tariff notification reads thus:
"Where the terms and conditions of the agreement entered into between the Board and its consumers are at variance with the terms and conditions as contained in this notification the latter shall prevail and such agreement will be deemed to have been amended accordingly."
However, thus although in case of variance of the terms and conditions of the agreement and the tariff, the tariff shall prevail but in such a case recourse to the doctrine of harmonious construction should be applied so that in a given case both the tariff as also the agreement should be given effect to and only in a case where it has been found that both are inconsistent and contradictory to each other the provision of tariff shall apply.
11. In Bihar Chamber of Commerce v. The Bihar State Electricity Board, reported in (1993) 1 Pat LJR 36, it has been held as follows:
"Mr. Pawan Kumar Rajgarhia learned counsel appearing in C.W.J.C. No. 8214 of 1991, however, submitted that the provision for average charging in case of defective meter under Clause 16.8 of the new tariff is also ultra vires and wholly illegal. According to him, Clause 3(c) of the agreement provides for charging in case of defective meter on the basis of average charging of the present three months, whereas, under the new tariff in the event of meter being out of order, the consumption of that month/months is to be assessed on the average consumption of the previous three months from the date of meter being out of order or the average consumption for the corresponding three months of the previous year or the consumption of the minimum guarantee charges, whichever is highest and this shall continue until the meter is replaced/rectified and so far as the fuel surcharge, power factor surcharge and electricity duty are concerned, they shall be levied on consumption so calculated. This, according to the learned Counsel, is wholly irrational and unreasonable. In reply, the learned counsel for the Board has rightly submitted that the provision for charging on the average etc. is only to ensure that the moment the meters are found non-functional the authority is immediately given an information about the same so that the charging may be done on such a basis which is rational and, at the same time, it is to discourage deliberate breakage/tampering with the meters by rendering such acts unbeneficial and for that these alternatives have been provided as a mode of calculation in the case of defective meter and to see that no honest consumer suffers adversely. On a consideration of the relevant provisions and other facts and circumstances, we do not find any substance in the submission of Mr. Rajgarhia that the provision of average charging in case of defective meter under Clause 16.8 of the new tariff is ultra vires or illegal."
12. I agree with the said "findings but in that case, the question of harmonious construction of Clause 16.8 of the tariff with Clause 3(c) of the agreement did not arise.
13. It is also well known that the legislature intend to do justice and avoid injustice and interpretation which, is, agreeable to justice and reasons should always be preferred.
Reference in this connection may be made to Artemiou v. Procopiou, (1966) 1 QB 878, Luke v. Inland Revenue Commissioners, 1963 AC 557.
14. The Supreme Court in Northern India Iron and Steel Co. v. The State of Haryana, AIR 1976 SC 1100, was dealing with a case of monthly demand charged from the consumer and in that situation it was held that in case of inability of the Board to supply electrical energy due to power-cut or any other circumstances beyond the control of the Board as per the demand of the contractor according to the contract will be reflected in and consider as a circumstance beyond the control of the consumer which prevented him from consuming the electricity as per the contract and to the extent it wanted to consume.
15. In that case a provision in the agreement existed for proportionate reduction of demand charged in terms of Clause 4(f) of the tariff. The Supreme Court did not decide the issue as to whether Clause 1(h) of the terms and conditions of the supply framed by the Board was unreasonable and violative of Article 14 of the Constitution of India or not. However, the question posed in this application is entirely different. A consumer is supposed to pay the bill raised on the basis of actual consumption of electrical energy recorded in the meter installed in its premises. It is the duty of the Board to keep such meter correct and in default of its doing so a consumer is not liable to pay the higher charges. Where, however, the meter is the property of consumer he has to keep the meter correct and in default of his doing so the licensee may discontinue supply of his electrical energy after giving him 7 days notice.
Reference in this connection may be made to Section 26 of the Indian Electricity Act as also Rule 57 of the Indian Electricity Rules.
Sub-section (6) of Section 26 of the Indian Electricity Act also provides for a reference for the dispute as to whether a meter is correct or not to the Electrical Inspector.
16. However, Clause 16.8 of the tariff reads as follows:
"16.8. Billing when Meter has either gone defective or burnt or stopped.-- In the event of meter being out of order i.e. burnt/stopped or having ceased to function for any reason during any month/months, the consumptions for that month/months shall be assessed on average consumption of previous 3 months from the date of meter being out of order or the average consumption for the corresponding three months of the previous year or the cunsumption of the Minimum Monthly Guarantee whichever is the highest. Such consumption will be treated as actual consumption for all practical purposes until the meter is replaced/rectified. Fuel surcharge power factor, surcharge and electricity duty shall be levied on consumption so calculated."
17. The said provision evidently does not contemplate a situation where a person has to pay the bill raised on the basis of three months' average consumption of electrical energy during the preceding three months when the meter has gone out of order in case there has been a total substantial failure on the part of the Board to supply electrical energy to the consumer. In such an event Clause 16.8 has to be read along with Clause 3(c) which provides that such average bills should be raised having due regard to the conditions of working during the month under dispute and during the previous three months.
18. In such a situation, the remedy of the petitioner, in my opinion, is to bring it to the notice of the concerned authority who may dispose of the claim of the consumer after taking into consideration the facts and circumstances of each case and after giving an opportunity of hearing.
19. The Board being a public authority discharge Governmental function. A consumer depends upon the authorities of the Board for its day to day amenities which are essential for human existence. It is the State within the meaning of Article 12 of the Constitution of India. It thus require to act fairly, judiciously and in accordance with the principles of natural justice. Its action thus must be fair and conform to the standards of public morality. Its Officers cannot act arbitrarily or raise demand for substantial amount of money without affording opportunity of hearing to the consumer.
20. I am, therefore, of the opinion that the petitioner may file representation before the General Manager-cum-Chief Engineer who upon taking into consideration the amount of electrical energy supplied during the last two years and regard being had to the consumption of electrical energy by the petitioner in the month of January to March, 1990 as also the amount of nun-supply of electrical energy during those months may pass appropriate order in accordance with law.
21. This application is, thus, disposed of.
R. N. Prasad, J.
22. I agree.