# Mohd. Sagir v. Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors

- **Citation:** (2014) 2 ILRA 866
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-05-30
- **Case number:** Civil Misc. Writ Petition No. 55384 of 2009
- **Bench:** Ashok Bhushan, Mrs. Ranjana Pandya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-sagir-v-dakshinanchal-vidyut-vitran-nigam-ltd-agra-ors-42996
- **Pages:** 15

## Headnote

Constitution
of
India,
Art.-226Alternative Remedy-writ petition-held no
absolute bar-where principle of Natural
Justice violated-and petition pending
since
long-assessment
on
opening
meter-behind the back of petitioneropportunity to file objection-held must in
view of section 126(3) of Act 2003objection to avail remedy of appeal
under Section 127-held no bar.

Held: Para-29
Learned counsel for the petitioner has also
raised some other submissions regarding
the assessment made by the respondents
on 30/9/2009 including the submissions
that the assessment made for 365 days was
unjustified since the respondents have
already
conducted
the
inspection
on
28/4/2009 and no period prior to the said
date
can
be
taken
for
assessment.
However, we having taken the view that
the petitioner was entitled for opportunity
to file an objection against the provisional
assessment notice dated 05/9/2009, we
leave it open to the petitioner to raise such
objection as permissible regarding the
provisional assessment, and do not feel it
necessary to decide the said submissions in
this writ petition.

Case Law discussed:
2009(1) ADJ 430; 1998 (8) SCC 1.

## Text

_Characters 0–39,799 of 50,283. This is a partial read: ask again with offset=39799 for what follows._

866 INDIAN LAW REPORTS ALLAHABAD SERIES
The substitution of the petitioner herein as
party in the M.A.C.P. No.195 of 2005
shall be allowed to be carried out within a
period of one month from the date of
submission of a certified copy of this
order and the learned Tribunal shall
proceed thereafter in accordance with law
in the light of the observations made
hereinabove for ascertaining the loss, if
any, caused to the estate of the deceased
late Radhey Shyam Sharma on account of
the
accident
suffered
by
him
on
09.02.2005 on the basis of the pleadings
and proof adduced before it.

18. The writ petition is accordingly
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2014

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE MRS. RANJANA PANDYA, J.

Civil Misc. Writ Petition No. 55384 of 2009

Mohd. Sagir ...Petitioner
Versus
Dakshinanchal Vidyut Vitran Nigam Ltd.
Agra & Ors. ...Respondents

Counsel for the Petitioner:
Sri B.C. Rai

Counsel for the Respondents:
Sri Rajesh Tripathi, Sri H.P. Dube, Sri
Rajendra Kumar Mishra

Constitution
of
India,
Art.-226Alternative Remedy-writ petition-held no
absolute bar-where principle of Natural
Justice violated-and petition pending
since
long-assessment
on
opening
meter-behind the back of petitioneropportunity to file objection-held must in
view of section 126(3) of Act 2003objection to avail remedy of appeal
under Section 127-held no bar.

Held: Para-29
Learned counsel for the petitioner has also
raised some other submissions regarding
the assessment made by the respondents
on 30/9/2009 including the submissions
that the assessment made for 365 days was
unjustified since the respondents have
already
conducted
the
inspection
on
28/4/2009 and no period prior to the said
date
can
be
taken
for
assessment.
However, we having taken the view that
the petitioner was entitled for opportunity
to file an objection against the provisional
assessment notice dated 05/9/2009, we
leave it open to the petitioner to raise such
objection as permissible regarding the
provisional assessment, and do not feel it
necessary to decide the said submissions in
this writ petition.

Case Law discussed:
2009(1) ADJ 430; 1998 (8) SCC 1.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. We have heard Shri B.C. Rai,
learned counsel for the petitioner and Shri
Rajenda Kumar Mishra, learned counsel
appearing for the respondents.

2. Counter and rejoinder affidavits
having been exchanged between the
parties, with the consent of the learned
counsel for the parties, we proceed to
decide the writ petition finally.

3. By this writ petition, the
petitioner, proprietor of M/s Monex Glass
Private Limited has challenged the order
dated 30/9/2009, by which the Executive
Engineer finalized the theft assessment on
the basis of checking dated 16/8/2009.
Petitioner has also prayed for appropriate
writ, order or direction declaring the
meter testing report dated 03/9/2009 as
illegal
and
arbitrary.
2 All]. Mohd. Sagir Vs. Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors.
867

4. Brief facts of the case which
emerge from the pleadings of the parties
are:That the petitioner, had a contracted
load of 498 KVA from the Dakshinanchal
Vidyut Vitran Nigam Limited (hereinafter
called the "Corporation"). Two meters
have been installed by the Corporation i.e.
main meter in the meter room and one out
door meter installed outside the factory
premises at the same line. On 20/8/2008,
the Officers of the Corporation inspected
the main meter and outdoor meter and no
irregularity was found. Inspection report
dated
20/8/2008,
was
prepared
accordingly. On 28/4/2009, inspection
was again carried out by the Officers of
the Corporation along with authorized
representatives of the manufacturing
company namely: M/s Secure Meters
(Pvt.) Limited, but nothing incriminating
was found either with the main meter or
with the outdoor meter. Meter Sealing
Certificate dated 28/4/2009 was prepared
by the inspection team. An Office
Memorandum
dated
19/6/2009,
was
issued by the Corporation forming a
Committee for testing of meters. On
16/8/2009, Officers of the Corporation
inspected the factory premises of the
petitioner. Inspecting team also obtained
MRI report. New meters were installed at
the factory premises of the petitioner and
both the old meters were taken out and
were given to the Assistant Engineer
(Raid) for further investigation. On the
same date i.e. 16/8/2009, Meter Sealing
Certificate No.103 was prepared. On
19/8/2009, the checking team required the
petitioner to return the Meter Sealing
Certificate No.103 dated 16/8/2009 and
thereafter the checking team prepared
another Sealing Certificate No.105 dated
16/8/2009.
On
18/8/2009,
the
Superintending Engineer, issued a letter
directing the Executive Engineer to obtain
an acknowledgement from the petitioner
to appear on 27/8/2009 in the office of the
Corporation at Agra. The said letter was
served
on the
petitioner's
Manager
working in the factory, who on the said
letter endorsed that for some work,
petitioner has gone out of India and he
shall return on 10/9/2008, he prayed for a
date to be fixed. Another letter dated
25/8/2009
was
issued
by
the
Superintending Engineer addressed to the
Executive Engineer in which it was
mentioned
that
according
to
the
Electricity
Supply
Code,
2005
(hereinafter called the "Code 2005")
consumer has to be informed within seven
days. It was stated in the letter that
03/9/2009 is the date fixed for opening of
the meter and owner of the firm, Manager
or any other representative be asked to
ensure his presence on 03/9/2009 in the
office of the Managing Director of the
Corporation at Agra. On 25/8/2009, the
Manager of the factory again wrote a
letter that the firm owner is out of India
and a date be fixed after 10/9/2009. He
further stated that he being the Manager
of the factory, cannot go out of the
factory. He prayed for next date. On
03/9/2009, the meter was opened before a
Committee constituted by office order
dated 19/6/2009. The inspection report
dated 03/9/2009 found meters body, seal,
lead seal, and ultra-sonic welding steps
were in order. However, it observed that
foreign wires were found connected and
remote control and sensing device was
found inside the meter. An F.I.R. was also
lodged against the petitioner on 04/9/2009
under Sections 135 and 150 of the
Electricity Act, 2003 (hereinafter called
the
"Act,
2003").
A
provisional
assessment notice dated 05/9/2009 for an
amount of Rs.21588487/-was sent to the
petitioner.
On
11/9/2009,
petitioner
868 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted an objection against the testing
of the meter carried on 03/9/2009.The
objection was made against the testing of
the meter done on 03/9/2009 and was not
made against the provisional assessment
notice dated 05/9/2009. Petitioner had
also filed Writ Petition No.49991/2009 on
15/9/2009 challenging the testing of the
meter made on 03/9/2009. Petitioner's
representative on 22/9/2009 prayed for
time to file objection. It was prayed that
the matter be adjourned after 05/10/2009.
By letter dated 23/9/2009, petitioner's
request was not acceded and 29/9/2009
was the date fixed for filing the objection.
On 29/9/2009, petitioner appeared before
the Executive Engineer and prayed that
his objection dated 11/9/2009, be first
decided and he also prayed that his writ
petition in the High Court is pending
which is fixed for 05/10/2009, hence he
be given 15 days time to file objection.
Petitioner's prayer for filing the objection
was not acceded and the assessment was
finalised by order dated 30/9/2009,
against which order this writ petition has
been filed. A Division Bench of this Court
passed an interim order on 28/10/2009,
restraining
the
respondents
from
enforcing the recovery proceedings in
pursuance of the final assessment made
by the respondents on 30/9/2009 and
further directed the respondents for
restoration of the power supply. The
Corporation thereafter filed Special Leave
to Appeal (Civil) No(s).35966/2009,
challenging the interim order dated
28/10/2009. The said Special Leave
Petition was disposed of by the Apex
Court
on
26/3/2010
permitting
the
Corporation to file an application for
vacating the interim order within seven
days which was to be disposed of within
next three weeks after giving opportunity
of hearing to both the parties.

5. Counter affidavit along with
application for vacating the interim order
has been filed by the Corporation on
03/4/2010 in this Court.

6. A perusal of the Order Sheet
indicates that although the matter was
listed before different benches from time
to time, but due to adjournment sought on
behalf of the petitioner or respondents the
stay vacation application could not be
disposed of. The case was directed to be
listed peremptorily on 03/4/2014. The
writ petition came up before this bench on
18/4/2014 when a direction was issued to
list on 21/4/2014. The matter was heard
on 22/4/2014 on which date both the
parties agreed that the writ petition itself
be
decided
finally.
Hearing
was
concluded on 22/4/2014 and the judgment
was reserved.

7. Shri B.C. Rai, learned counsel
appearing for the petitioner in support of
the
writ
petition
raised
various
submissions.
He
submits
that
the
assessment order dated 30/9/2009 has
been passed without giving reasonable
opportunity to the petitioner. Petitioner's
request made on 29/9/2009 to give 15
days time to file objection was not
accepted and without there being any
objection by the petitioner to the
provisional
assessment
notice
dated
05/9/2009, final assessment order dated
30/9/2009 has been passed. It is submitted
that the request of the petitioner's
representative to fix a date after 10/9/2009
for opening the meter was also not
acceded whereas it was informed that the
owner of the firm (petitioner) has gone
out of India. The respondents completed
the entire proceedings hastily in utter
violation of the principles of natural
justice. It is further submitted by the
2 All]. Mohd. Sagir Vs. Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors.
869
learned counsel for the petitioner that the
testing of the meter done on 03/9/2009
was made by the Corporation in violation
of the provisions of Clause 5.6 (c) (iii) of
the
Electricity
Supply
Code,
2005
(hereinafter called the "Code 2005"). It is
submitted that the petitioner was never
given any option to indicate as to whether
he wants the meter to be tested at the
licensees lab, or independent lab or by
electrical inspector. The petitioner never
gave his consent for getting the meter
tested at the Corporations Office. The
testing of the meter having been done in
violation of the aforesaid provision, the
entire assessment is illegal. He submits
that the testing of the meter has been done
by the Corporation contrary to the law as
laid down by the Division Bench of this
Court in Smt. Amrawati Devi Vs.
Purvanchal Vidyut Vitran Nigam Ltd &
Anr, 2009 (1) ADJ 430. He further
submits that the assessment made is not in
accordance with the provisions of the Act,
2003 as well as the Code, 2005. He
submits that the assessment has been
made for a period of 365 days whereas on
28/4/2009, the petitioner's meter was
inspected by the Corporation's team and
nothing wrong was found at the petitioner
premises and the assessment could not
have been made of any date prior to
28/4/2009.

8. Learned counsel for the petitioner
has also challenged the office order dated
19/6/2009,
being
ultra-vires
to
the
provisions of the Code, 2005. He submits
that no executive order can be passed
contrary to the statutory scheme as
delineated in the Code, 2005.

9. Shri Rajenda Kumar Mishra,
learned
counsel
appearing
for
the
Corporation refuting the submissions of
the learned counsel for the petitioner
contended that against the assessment
order dated 30/9/2009, the petitioner has a
statutory remedy of filing an appeal under
Section 127 of the Act, 2003, hence the
writ petition be not entertained to enable
the petitioner to avail the remedy of
appeal. It is submitted that Clause 5.6 (c)
(iii) of the Code, 2005 is not attracted in
the present case. It is submitted that the
said clause is attracted only with regard to
the defective meters and is not applicable
in the cases of theft of electricity within
the meaning of Section 135 of the Act,
2003. He further submits that the Division
Bench judgment of this Court in Smt.
Amrawati Devi's case (supra) is not
applicable in the facts of the present case.
It is further submitted that the ratio of the
Division
Bench
judgment
in
Smt.
Amwarawati Devi's case (supra) failed to
notice sub-clause (iii) of Clause 5.6 (c) of
the Code, 2005. He submits that the
option once exercised by the consumer
shall not be changed. He submits that the
testing of the meter conducted on
03/9/2009 has became final. It is
submitted that the prayer made in the
objection
dated
11/9/2009
by
the
petitioner that the meters be re-checked
by the licensee in some other independent
lab is neither practically possible, nor
legally permissible.

10. Learned counsel for the parties
have
placed
reliance
on
various
judgments of this Court as well of the
Apex Court which shall be referred to
while considering their submissions in
detail.

11. At first, we need to consider the
submissions of the learned counsel for the
respondents that there being remedy of
appeal provided, the writ petition be not
870 INDIAN LAW REPORTS ALLAHABAD SERIES
entertained and the petitioner be relegated
to avail the remedy of appeal provided
under Section 127 of the Act, 2003. There
cannot be any dispute that against the
final assessment made under Section 126
of the Act, 2003, an appeal is provided
under Section 127 of the Act, 2003. There
are two reasons due to which we do not
find this is a fit case to be dismissed on
the ground of alternate statutory remedy.
Firstly, sub-section (3) of Section 126 of
the Act, 2003 contemplates giving an
reasonable opportunity of hearing to a
consumer before passing a final order of
assessment. The
submission
of the
petitioner in the writ petition is that he
was not afforded reasonable opportunity
of hearing and the assessment order has
been passed in violation of the principles
of natural justice. From the assessment
order dated 30/9/2009, it is clear that there
was no objection by the petitioner to the
provisional
assessment
notice
dated
05/9/2009. Petitioner had also appeared
on 29/9/2009 and prayed for 15 days time
to file an objection which was not
considered. Even the one months period
contemplated under Section 126 (3) of the
Act, 2003 had not expired. There being
allegation by the petitioner that the
assessment order dated 30/9/2009 has
been passed in violation of the principles
of natural justice, we think it proper to
consider the above submissions on merit.
It is well settled that when an order is
passed in violation of the principles of
natural justice, the alternative remedy is
not a bar in entertaining the writ petition.
The above proposition has been laid down
by
the
Apex
Court
in
Whirlpool
Corporation Vs. Registrar of Trade
Marks, Mumbai & Ors, 1998 (8) SCC 1,
in which case the Apex Court laid down
following
in
paragraphs
15,16,17,18,19,20 and 21.

"15.Under
Article
226
of
the
Constitution, the High Court, having
regard to the facts of the case, has a
discretion to entertain or not to entertain
a writ petition. But the High Court has
imposed upon itself certain restrictions
one of which is that if an effective and
efficacious remedy is available, the High
Court would not normally exercise its
jurisdiction. But the alternative reme3dy
has been consistently held by this Court
not to operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the enforcement
of any of the Fundamental Rights or
where there has been a violation of the
principle of natural justice or where the
order or proceedings are wholly without
jurisdiction or the vires of an Act is
challenged. There is a plethora of case
law on this point but to cut down this
circle of forensic whirlpool, we would
rely or some old decisions of the
evolutionary era of the constitutional law
as they still hold the field.

16. Rashid Ahmad vs. Municipal
Board, Kairana, AIR 1950 SC 163, laid
down that existence of an adequate legal
remedy was a factor to be taken into
consideration in the matter of granting
writs. This was followed by another
Rashid case, namely, K.S. Rashid & Son
Vs.
The
Income
Tax
Investigation
Commission AIR 1954 SC 207 which
reiterated the above proposition and held
that where alternative remedy existed, it
would be a sound exercise of discretion to
refuse to interfere in a petition under
Article
226.
This
proposition
was,
however, qualified by the significant
words, "unless there are good grounds
therefor", which indicated that alternative
remedy would not operate as an absolute
bar and that Writ Petition under Article
2 All]. Mohd. Sagir Vs. Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors.
871
226
could
still
be
entertained
in
exceptional circumstances.

17. A specific and clear rule was laid
down in State of U.P. vs. Mohd. Nooh,
AIR 1958 SC 86, as under :

"But
this
rule
requiring
the
exhaustion of statutory remedies before
the writ will be granted is a rule of policy
convenience and discretion rather than a
rule of law and instances are numerous
where a writ of certiorari has been issued
in spite of the fact that the aggrieved
party had other adequate legal remedies."

18. This proposition was considered
by a Constitution Bench of this Court in
A.V.Venkateswaran, Collector of Customs
vs Ramchand Sobhraj Wadhwani, AIR
1961 SC 1506 and was affirmed and
followed in the following words:

"The passages in the judgments of
this Court we have extracted would
indicate (1) that the two exceptions which
the learned Solicitor General formulated
to the normal rule as to the effect of the
existence of an adequate alternative
remedy were by no means exhaustive, and
(2) that even beyond them a discretion
vested in the High Court to have
entertained the petition and granted the
petitioner
relief
notwithstanding
the
existence of an alternative remedy. We
need only add that the broad lines of the
general principles on which the Court
should act having been clearly laid down,
their application to the facts of each
particular case must necessarily be
dependent on a variety of individual facts
which must govern the proper exercise of
the discretion of the Court, and that in a
matter which is thus per-eminently one of
discretion, it is not possible or even if it
were, it would not be desirable to lay
down inflexible rules which should be
applied with rigidity in every case which
comes up before the Court".

19.Another
Constitution
Bench
decision in Calcutta Discount Co.Ltd. vs
Income Tax Officer Companies Distt. I
AIR 1961 SC 372 laid down :

"Though the writ of prohibition or
certiorari will not issue against an
executive authority, the High Courts have
power to issue in a fit case an order
prohibiting an executive authority from
acting without jurisdiction. Where such
action of an executive authority acting
without jurisdiction subjects or is likely to
subject a person to lengthy proceedings
and unnecessary harassment, the High
Court will issue appropriate orders or
directions to prevent such consequences.
Writ of certiorari and prohibition can
issue against Income Tax Officer acting
without jurisdiction under Section 34,
Income Tax Act".

20.Much water has since flown under
the bridge, but there has been no
corrosive effect on these decisions which
though old, continue to hold the field with
the result that law as to the jurisdiction of
the High Court in entertaining a Writ
Petition
under
Article
226 of
the
Constitution, in spite of the alternative
statutory
remedies,
is
not
affected,
specially in a case where the authority
against whom the writ is filed is shown to
have had no jurisdiction or had purported
to usurp jurisdiction without any legal
foundation.

21.That being so, the High Court
was not justified in dismissing the Writ
Petition at the initial stage without
872 INDIAN LAW REPORTS ALLAHABAD SERIES
examining the contention that the show
cause notice issued to the appellant was
wholly without jurisdiction and that the
Registrar, in the circumstances of the
case, was not justified in acting as the
"Tribunal"."

12. Secondly, the writ petition has
been entertained by this Court on
28/10/2009, on which date the interim
order was also passed by this Court
staying the recovery proceedings in
pursuance of the final assessment dated
30/9/2009 and the writ petition has been
pending in this Court for about five years.
This is another reason due to which we
propose to decide the writ petition on
merits instead of dismissing the writ
petition on the ground of alternative
remedy.

13. The submission which needs to
be next considered is the submission
raised by the learned counsel for the
petitioner that the assessment order dated
30/9/2009 has been passed in violation of
the principles of natural justice since he
has not been afforded a reasonable
opportunity of hearing before making the
final assessment. Sub-section (3) of
Section 126 of the Act, 2003 provides as
follows:

"126. Assessment.-

(1)............

(2)...........

(3) The person, on whom an order
has been served under sub-section (2),
shall be entitled to file objections, if any,
against the provisional assessment before
the assessing officer, who shall, after
affording a reasonable opportunity of
hearing to such person, pass a final order
of assessment within thirty days from the
date of service of such order of
provisional assessment, of the electricity
charges payable by such person."

14. Whether reasonable opportunity
of hearing has been given to a consumer
before making a final assessment is the
question which has to be determined on
the facts of each case.

15. From the facts of the case as
noted above, 16/8/2009, was the date
when the checking was made on the
petitioner's premises. After the checking
dated 16/8/2009, letter dated 18/8/2009
was served on the petitioner in which
27/8/2009 was the date fixed for testing of
the meter. The Manager of the petitioner's
factory made an endorsement that the
owner of the factory (petitioner) has gone
out of India and he shall return on
10/9/2009, hence the date of testing of the
meter be fixed thereafter. The said request
was not acceded by the Executive
Engineer and by another letter dated
25/8/2009, 03/9/2009 was the date fixed
for testing of the meter on which letter
again the same endorsement was made by
the Manager which was made on
25/8/2009 that a date be fixed after
10/9/2009. It was stated that the Manager
is unable to come out of the factory
premises in view of the absence of the
owner. Despite the aforesaid two protests,
the respondents proceeded with the
testing of the meter on 03/9/2009 and a
provisional
assessment
notice
dated
05/9/2009 was served on the petitioner
fixing 23/9/2009 in the matter. On
11/9/2009, petitioner had filed a detailed
objection against the testing of the meter
conducted
on
03/9/2009.
Petitioner
referring to Clause 5.6 (c) (iii) of the
Code, 2005 stated that the testing of the
meter was done without the consent of the
petitioner. Following prayer was made in
2 All]. Mohd. Sagir Vs. Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors.
873
paragraph 24 of the said application
which is to the following effect:

"24-It is, therefore, requested that
power supply of the factory may be
restored
and
information
regarding
approved independent and competent test
laboratory may be provided so that
Applicant may opt for testing of meter and
further provisional assessment notice may
be withdrawn."

16. By letter dated 23/9/2009, the
Executive Engineer fixed 29/9/2009 as
the date for filing objection. Petitioner
appeared on the said date and filed an
application praying that his objection
dated 11/9/2009 be first disposed of. It
was further stated that his writ petition in
the High Court is pending in which
05/10/2009 is the date fixed and he
requested for 15 days time for filing
objection. The
said
prayer
of
the
petitioner
was
refused
and
the
Corporation proceeded to pass the final
assessment order dated 30/9/2009.

17. From the facts as narrated above,
it is clear that the request of the petitioner
for fixing a date after 10/9/2009 for
testing of the meter was not acceded to
and the meter was tested in the office of
the Corporation on 03/9/2009, although
one of his representative was present. The
provisional
assessment
notice
dated
05/9/2009 was served on the petitioner
fixing 23/9/2009 as the date fixed for
filing objection. Another date fixed was
29/9/2009, on which date the petitioner
appeared and made a request for granting
15 days time. Before that a detailed
objection dated 11/9/2009 was filed by
the petitioner against the testing of the
meter conducted on 03/9/2009. Petitioner
in his objection dated 11/9/2009 has
requested for information in respect of
providing independent and competent test
lab so that the applicant may opt for
testing of the meter. The said objection
remained pending and on 29/9/2009 when
the petitioner appeared, he again prayed
that the said objection be decided and 15
days time be given. The Corporation did
not decide his objection dated 11/9/2009.
Further more, on 29/9/2009, when for the
first time the petitioner appeared he stated
that he had gone out of India at the time
of checking and testing of the meter and
requested for time to file objection which
ought to have been acceded even though
the respondents may not have granted 15
days time, at least a breathing time be
allowed to file objection. Further, the
period of one month from serving the
provisional
assessment
notice
dated
05/9/2009 was also not expiring and there
was no such urgency on the part of the
Corporation to finalise the assessment,
even two or three days time for filing the
objection would have been given in
consonance of the principles of natural
justice. When the Corporation did not
accede to the petitioner's request and
finally proceeded to pass the assessment
order dated 30/9/2009 which in our
considered opinion has violated the
principles of natural justice in the facts
and circumstances of the present case,
hence
the
assessment
order
dated
30/9/2009 deserves to be set-aside on this
ground alone.

18. Much argument has been raised
by the learned counsel for both the parties
on Clause 5.6 (c) (iii) of the Code, 2005
in reference of the testing of the meter
which was conducted on 03/9/2009. The
submission of the petitioner's counsel is
that before the testing of the meter it was
removed from the premises of the
874 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner on 16/8/2009, petitioner was
required to give an option for getting the
meter tested either by a licensees laboratory
or independent lab or with the electrical
inspector. It is submitted that the petitioner
was neither informed about the option, nor
he ever exercised his option. The testing of
the meter done on 16/8/2009, is contrary to
the statutory scheme. It is relevant to note the
statutory scheme of Code, 2005 in the above
context.

19. Chapter V of the Code, 2005
relates to metering. Clause 5.4 of the
Code, 2005 deals with ownership and use
of meter. Clause 5.4 (a) which is relevant
is quoted below:

"5.4 Ownership and Use of meters:
(a) [At the time of seeking a new
connection the consumer shall indicate
option in the application form to either
purchase
the
meter,
MCB/CB
and
associated equipment himself from the
authorized
vendor(s)/make
or
manufacturers of meter approved by the
licensee, or require that such approved
meter,
MCB/CB
and
associated
equipment be supplied by the Licensee.

Provided that it shall be the
responsibility of the licensee to ensure
that meters of national repute only are
used as specified in clause 5.2, and under
Sec 55 of the Act by CEA. The licensee
shall not restrict the consumer choice to
2-3 make/manufacturer only, but shall
offer a wide ranging choice from amongst
the list of approved make/manufacturers.
The Licensee shall put the list of approved
vendor(s)/make
or
manufacturers
of
meter, on their website/ display on the
notice board/and if requested, supply the
consumer with the list of approved
vendor(s) / make or manufacturer.

Provided also that the licensee shall
get the meter lots inspected by test labs
having
accreditation
from
National
Accreditation Board for testing and
Calibrating laboratories, and also adhere
to test procedure specified in clause 5.5.
The Licensee shall put the list of such
approved test labs, on their website /
display on the notice board/and if
requested, supply the consumer with the
list of approved labs. The licensee shall
also set up appropriate number of testing
labs and get the accreditations from
NABL, if not already done.]"

20. Clause 5.6 of the Code, 2005
deals with Defective Meters. Clause 5.6
(a), (b),(c) and (d) which are relevant in
the present case are quoted 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) along with 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
2 All]. Mohd. Sagir Vs. Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors.
875

(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. 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."

Clause 5.9 of the Code, 2005 deals
with
cost
of
Replacement
of
Defective/Burnt Meters. Clause 5.9 (b)
(ii) which is relevant is quoted below:

"5.9 Cost of Replacement of
Defective/Burnt Meters.

(a) ........

(b) [xxx]

(i) .........

(ii) If it is established, as a result of
testing, that the meter was rendered
defective due to tampering or any other
deliberate act by the consumer to
interfere with the meter, the cost of the
meter shall be borne by the consumer as
above. The consumer shall be assessed
under Section 126 of the Electricity Act
2003, and shall be punishable under
Section 138 of the Electricity Act 2003. In
addition, action as permissible under law
shall be taken against the consumer for
pilferage and tampering."

22. In the order impugned dated
30/9/2009,
the
Executive
Engineer
referring to Clause 5.6 (c) of the Code,
2005, has stated that Clause 5.6 (c) is
876 INDIAN LAW REPORTS ALLAHABAD SERIES
applicable for defective meters only, and
is not applicable for the tampered meters.
In the counter affidavit filed on behalf of
the respondents also a categorical stand
has been taken by the respondents that
clause 5.6 (c) of the Code, 2005 as well as
the Division Bench judgment of this
Court in Smt. Amrawati Devi's case
(supra) relates to defective meter and does
not apply to tampered meter. Following
was stated in para 29 of the counter
affidavit which is to the following effect:

"29. That, the contents of paragraph
Nos.24,25 and 26 of the writ petition are
incorrect and as such denied. It is most
respectfully submitted that whatever the
objection
has
been
raised
by
the
petitioner the same were duly considered
and decided by the assessing officer by
means of the assessment order dated
30.09.2009. The allegation being made by
the petitioner contrary to this are
incorrect and unfounded and as such
denied. It is most respectfully submitted
that decision of this Court in the case of
Smt. Amrawati Devi (2009 (1) A.D.J.430)
would not apply in the present case
inasmuch as the ratio laid down by this
Hon'ble Court in the case of Smt.
Amrawati Devi is related to the defective
meters and here in the instant case the
meter of petitioner were found to be
tampered. It is submitted that there is
clear
distinction
between
'tampered
meter' and 'defective meter' under the
scheme of the Act, 2003 and Supply Code,
2005 and therefore, the decision of this
Hon'ble Court in the case of Smt.
Amrawati Devi as affirmed by Hon'ble
Supreme Court will have no application
in the present case. It is further to point
out here that the meters of the petitioner
were tested by the committee of expert
engineers and remote controlling and
sensing device was found fitted inside the
meters and as such the defect could be
and has been detected by naked eyes and
therefore, the same was not required to be
tested in any lab as the same cannot be
termed as defect in meter and it comes
within the definition of tampering in meter
and therefore, the meters were found to be
tampered
and
thus,
the
provisions
pertaining to the defective meters would
not apply in the instant case."

23. There is no dispute in the present
case that the meter was taken out from the
petitioner's premises on 16/8/2009, after it
being sealed was sent to be tested on
licensees lab/independent lab/electrical
inspector as agreed by the consumer.
Relevant part of Clause 5.6 (c) (iii) of the
Code, 2005 is "........ shall be tested at
licensee's lab/Independent lab/Electrical
Inspector, as agreed by consumer."

24. The agreement of the consumer
as contemplated above in Clause 5.6 (c)
(iii) of the Code, 2005, is an agreement
for testing of the meter at any of the
places mentioned therein i.e. (i) Licensees
lab (ii) Independent lab (iii) Electrical
Inspector. The aforesaid clause further
stated that the option once exercised by
the consumer shall not be changed. Thus,
the consumer has to opt any of the three
places for testing of the meter. The word
"agree" has been defined in P. Ramanatha
Aiyar's The Law Lexicon 3rd Edition
2012 in following words:

"Agree. To concur, to come to a
mutual assent; to come into harmony, to
promise; to contract;to assent; to unite in
mental action; to acquiesce in. In Thorton
v.Kelley, II R.I 498,499, it is said that the
word "agree" is sometimes used to signify
an offer merely, but properly speaking it
2 All]. Mohd. Sagir Vs. Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors.
877
embraces
concurrence
or
assent.
(Ame.Cyc.)

To
enter
into
an
agreement
[S.58(b),T.P. Act (4 of 1882)]; to concur
[S.23,Indian Evidence Act (1 of 1872)]."

25. Now the submission and the
stand taken by the learned counsel for the
respondents in the impugned order as well
as in the counter affidavit is that Clause
5.6 of the Code, 2005 is not applicable
when there is an allegation that the meter
has been tampered. Clause 5.6 (a) of the
Code, 2005 provides " The Licensee shall
have the right to test any meter and
related apparatus". Although the heading
of the word is "defective meters", but the
said
heading
cannot
control
the
substantive provision when the provision
is clear and categorical. The right of a
licensee to test the meter where licensee
has a reasonable doubt that the meter is
tampered cannot be taken away and in
event the right is only confined to
defective meters as alleged by the
respondents, the said interpretation shall
not advance the object of the Act, 2003.

26. Clause 5.9 of the Code, 2005
deals with cost of Replacement of
Defective/Burnt Meters. Sub-clause (a)
(ii) of the Code, 2005 uses the words "as a
result of testing, that the meter was
rendered defective due to tampering or
any other deliberate act by the consumer
to interfere with the meter". Thus, when
the sub-clauses 5.6 and 5.9 are read
together, it is clear that the meter is to be
treated as a defective meter consequent to
tampering or any other deliberate act by
the consumer. Thus, in the cases where
the allegations are that the consumer has
tampered the meter the said meter is fully
covered by the definition of defective
meters as given in Cause 5.6 of the Code,
2005 and the case of the respondents that
Clause 5.6 is not attracted is incorrect.

27. A Division Bench judgment of
this Court in Smt. Amrawati Devi's case
(supra) had considered the same Clause
5.6 (c) (iii) of the Code 2005. Paragraphs
6,7,8,9,10 and 11 of the said judgments
are quoted below:

"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 consumer. 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.