# Smt. Amrawati Devi v. Purvanchal Vidyut Vitran Nigam Ltd. and another

- **Citation:** (2009) 1 ILRA 113
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-15
- **Case number:** Civil Misc. Writ Petition No.1545 of 2009
- **Bench:** V.M. Sahai, Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-amrawati-devi-v-purvanchal-vidyut-vitran-nigam-ltd-and-another-41328
- **Pages:** 6

## Headnote

U.P. Electricity Supply Code 2005-5-6
©(iii)-Testing of defective meters of
Electric
supply-authorities
found
the
meter of petitioner tempered-having
very slow movement-after scale the
meter-petitioner was required to be
present in laboratory of Nigam for
testing-without obtaining the consent of
consumer
in
writing-held-illegal
impugned
order
can
not
sustaindirection issued for fresh testing after
taking consent of consumer by separate
agency.

Held: Para 11

We are of the considered opinion that
after sealing the meter the Nigam must
serve a notice, on which it should be
printed in bold capital letters, intimating
the consumer or his representative to
exercise his option either to get the
meter tested by the electrical inspector
or at the laboratory of the Nigam or the
consumer may exercise his option to get
his meter tested from one of the outside
agencies
approved
by
the
Nigam
mentioned in the notice. Once the
consumer
exercise
his
option
then
immediately a date has to be fixed for
testing of the meter in the presence of
the consumer.
Case law discussed:
AIR 1979 SC 621, (1867) LR 2 HL 43 at p. 57,
(1920) 28 CLR 305 (Aus), (1846) 2 CB 706,
(1937) AC 473,

## Text

1 All] Smt. Amrawati Devi V. Purvanchal Vidyut Vitran Nigam Ltd. and another
113
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.01.2009

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No.1545 of 2009

Smt. Amrawati Devi

...Petitioner

Versus
Purvanchal Vidyut Vitran Nigam Ltd. and
another

 ...Respondents

Counsel for the Petitioner:
Sri B.C. Rai

Counsel for the Respondents:
Sri H.P. Dube

U.P. Electricity Supply Code 2005-5-6
©(iii)-Testing of defective meters of
Electric
supply-authorities
found
the
meter of petitioner tempered-having
very slow movement-after scale the
meter-petitioner was required to be
present in laboratory of Nigam for
testing-without obtaining the consent of
consumer
in
writing-held-illegal
impugned
order
can
not
sustaindirection issued for fresh testing after
taking consent of consumer by separate
agency.

Held: Para 11

We are of the considered opinion that
after sealing the meter the Nigam must
serve a notice, on which it should be
printed in bold capital letters, intimating
the consumer or his representative to
exercise his option either to get the
meter tested by the electrical inspector
or at the laboratory of the Nigam or the
consumer may exercise his option to get
his meter tested from one of the outside
agencies
approved
by
the
Nigam
mentioned in the notice. Once the
consumer
exercise
his
option
then
immediately a date has to be fixed for
testing of the meter in the presence of
the consumer.
Case law discussed:
AIR 1979 SC 621, (1867) LR 2 HL 43 at p. 57,
(1920) 28 CLR 305 (Aus), (1846) 2 CB 706,
(1937) AC 473,

(Delivered by Hon'ble V.M. Sahai, J.)

1. The Purvanchal Vidyut Vitran
Nigam Ltd. (in brief the Nigam) replaced
the old electricity meter on 14.12.2004
and installed a new Secure Meter No.
UPE 62373 at the hotel of the petitioner.
Another China Meter No.LT-1089513
was installed outside the premises of the
petitioner on 16.12.2007. The hotel of the
petitioner was checked on 26.11.2008 and
the officers of the Nigam found that the
Secure Meter No. UPE 62373 was
running slow by 12.61%. It was decided
by the officers of the Nigam that the
aforesaid meter would be tested at the
laboratory of the Nigam. On the same day
the Secure Meter No.UPE 62373 was
sealed and the petitioner was intimated
that the meter would be tested at the
laboratory of the Nigam and the petitioner
should be present on 4.12.2008. The
Secure Meter No.UPE 62373 was taken
away and a new meter was installed at the
hotel of the petitioner.

2. At the laboratory of the Nigam on
4.12.2008 the seal of the Secure Meter
No. UPE 62373 was opened in the
presence of the petitioner. The meter and
seal, after testing were found to have been
tampered.
Thereafter,
provisional
assessment notice dated 31.12.2008 was
issued to the petitioner which has been
challenged by the petitioner in this writ
petition on the ground that the sealed
meter should have been sent for testing by
an independent agency as provided by
Clause 5.6 (c)(iii) of U.P. Electricity
114 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Supply Code 2005 (in brief the Code
2005).

3. We have heard Shri B.C. Rai,
learned counsel for the petitioner and Shri
H.P. Dube, learned counsel for the
respondent. There is no dispute on facts
and only interpretation of Clause 5.6
(c)(iii) of the Code 2005 is involved. With
the consent of learned counsel for the
parties we have taken up this petition for
final disposal at the admission stage
without calling for a counter affidavit.

4. Shri Rai has urged that the
respondents should have informed the
petitioner that she had a right to get the
sealed meter tested either at the laboratory
of the Nigam or at the laboratory of some
independent agency. In absence of any
information by the officers of the Nigam
or knowledge the petitioner cannot be
presumed to have waived her right to get
the sealed Secure Meter tested at the
laboratory of some other independent
agency. On the other hand Shri Dube,
learned counsel for the respondents has
urged that the petitioner did not avail the
opportunity when the meter was sealed
and she was asked to appear on
4.12.2008, that she wants to get the sealed
Secure Meter tested at the laboratory of
some other independent agency. The seal
of the meter was opened on 4.12.2008 and
it was tested in the presence of the
petitioner. Clause 5.6 (c)(iii) of Code
2005 provides for only one opportunity
and that has not been availed by the
petitioner on 26.11.2008 and now it is not
open to the petitioner to claim that the
Secure Meter No. UPE 62373 be tested by
an independent agency.

5. Clause 5.6 (c)(iii) of U.P.
Electricity Supply Code 2005 is extracted
below,

"5.6 Defective Meters:

(a) The licensee shall have the right
to test any meter and related apparatus if
there is a reasonable doubt about the
accuracy of the meter and the consumer
shall provide the licensee necessary
assistance in conduct of test. However,
the consumer shall be allowed to be
present during the testing.

(b) A consumer may request the
licensee to test the meter installed on his
premises if he doubts its accuracy of
meter reading 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
iii. By installing a tested check meter in
series with the existing meter within
7 days of filing of application.

(c) In cases 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
1 All] Smt. Amrawati Devi V. Purvanchal Vidyut Vitran Nigam Ltd. and another
115
calibrated in laboratory of national repute
once in a year.

(i) In case the meter is found OK., 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
the consumer. The option once
exercised by consumer shall not be
changed. The decision on the basis of
reports of the test lab shall be final
on the licensee as well as the
consumer.

(d) In cases of testing of a meter in
the licensee's/independent test laboratory,

(i) Consumer shall be informed of the
proposed date of testing at least 7
days in advance so that he may be
present at the time of testing,
personally or through an authorized
representative;
(ii) the signature of the consumer or his
authorized representative, if any
present, shall be obtained on the Test
Result Sheet;
(iii) the results of testing, billing, and in
case the consumer disputes the
results of testing, shall be same as
provided in clause 5.6 (c) above.

Note: (i) The Licensee may submit a
proposal, with a list of reputed and
approved test labs, along with their test
charges to the commission.
(ii) the provisions of IER 1956 shall
however be followed until rules are made
under sections 53 and 55 of the Act.

(e) In case a check meter is
installed, and if after 7-15 days of the
period of test, the existing meter is found
to be fast or slow beyond the permissible
limits, and the test results are not disputed
by the consumer, then the same would be
removed leaving the check meter in its
place for future metering, and bills of
previous three months prior to the month
in which the dispute has arisen shall be
adjusted in the next bill as per the test
results. Where the test results are
disputed, the procedure as per Clause 5.6
(c) as above, as the case may be, shall be
followed."

6. From reading of Clause 5.6
(c)(iii) it is clear that this clause in
unequivocal terms declares that the
defective meter after sealing in presence
of consumer, shall be tested, at licensee's
lab/independent lab/electrical Inspector,
as agreed by the 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
116 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the authorities to seal the meter and get it
tested with consumer's agreement. Since
the clause operates harshly against the
consumer it has to be construed strictly.
The consumer has a right to get the meter
tested with independent agency. The
authorities,
therefore,
have
a
corresponding
duty
to
apprise
the
consumer
of
the
right.
Failure
to
discharge this duty, which flows from
sub-clause (c) (iii) by the authorities while
exercising their right to sent the meter for
testing, renders the entire proceedings for
sealing the meter irregular and illegal.
Annexure-3 dated 26.11.2008 does not
comply with this requirement. The
relevant portion is extracted below:-

"1. ehVj ,sD;w psd ls psd fd;k x;k ehVj 12.61
/khek ik;k x;kA CWh=-12.61%
2.
ehVj la[;k ;w0ih0bZ0 dks mrkj dj lhy fd;k x;kA
ehVj dk ijh{k.k 04.12.2008 dks ehVj ySc esa gksxkA
miHkksDrk dks lwfpr fd;k tkrk gS fd fnukad
04.12.2008 dks 12.00 cts ehVj ds ijh{k.k gsrq
mifLFkr gksaA "

7. It only informs the consumer that
the meter shall be tested at licensee's
laboratory and she should be present on
4.12.2008. In absence of intimation that
she has a right to get it tested at
independent laboratory, the notice was
contrary to law.

8. It has been argued by the
respondents that the Code 2005 being the
law, the petitioner cannot claim that she
was not aware of it. On the other hand the
counsel for the petitioner argued that
'ignorance of law is no excuse' does not
apply universally. We do not consider it
necessary to enter into this wider issue as
we
have
found
the
notice
dated
26.11.2008 Annexure-3 to be contrary to
Clause 5.6 (c) (iii).

9. For the same reason the argument
of the respondents that once the petitioner
did not object, she waived her right to get
the defective meter tested by independent
laboratory cannot be accepted, unless she
knew or had knowledge about the
provisions of Clause 5.6 (c)(iii) of Code
2005. In such situation the doctrine of
waiver can not pressed into service. The
Apex Court in M/s Moti Lal Padampat
Sugar Mills Ltd. Vs. The State of U.P.
and others AIR 1979 SC 621 had held in
paragraph 6 as below:-

"Secondly, it is difficult to see how,
on the facts, the plea of waiver could be
said to have been made out by the State
Government. Waiver means abandonment
of a right and it may be either express or
implied form conduct, but its basic
requirement is that it must be "an
intentional act with knowledge." Per Lord
Chelmsford, L.C. in Earl of Darnley v.
London, Chatham and Dover Rly. Co.,
(1867) LR 2 HL 43 at p. 57. There can
be no waiver unless the person who is
said to have waived is fully informed as to
his right and with full knowledge of such
right, he intentionally abandons it. It is
pointed out in Halsbury's Laws of
England (4th edn.) Volume 16 in
paragraph 1472 at page 994 that for a
"waiver to be effectual it is essential that
the person granting it should be fully
informed as to his rights" and Isaacs, J.
delivering the judgment of the High Court
of Australia in Craine v. Colonial
Mutual Fire Insurance Co. Ltd. (1920)
28 CLR 305 (Aus) has also emphasized
that waiver "must be with knowledge, an
essential
supported
by
many
authorities."............Moreover, it must
be
remembered
that
there
is
no
presumption that every person knows the
law. It is often said that everyone is
1 All] Smt. Amrawati Devi V. Purvanchal Vidyut Vitran Nigam Ltd. and another
117
presumed to know the law, but that is not
a correct statement; there is no such
maxim known to the law. Over a hundred
any thirty years ago, Maule, J., pointed
out in Martindale v. Falkner, (1846) 2
CB 706. "There is no presumption in this
country that every person knows the law:
it would be contrary to common sense and
reason if it were so." Scrutton, L.J., also
once said: "It is impossible to know all
the statutory law, and not very possible to
know all the common law." But it was
Lord Arkin who, as in so many other
spheres, put the point in its proper context
when he said in Evans v. Bartlam,
(1937) AC 473"....the fact is that there is
not and never has been a presumption that
everyone knows the law. There is the rule
that ignorance of the law does not excuse,
a maxim of very different scope and
application. It is, therefore, not possible to
presume, in the absence of any material
placed before the Court, that the appellant
had full knowledge of its right to
exemption so as to warrant an inference
that the appellant waived such right by
addressing the letter dated June 25, 1970.
We accordingly reject the plea of waiver
raised
on
behalf
of
the
State
Government."

10. In our opinion, in absence of
intimation of Clause 5.6 (c)(iii) of the
Code 2005, the petitioner could not be
deemed to have waived her right to
exercise her option to get her meter tested
at independent laboratory. To be fair to
the Nigam as well as consumer, a notice
is required to be given by the Nigam to
the consumer as to whether the consumer
wants to get the defective meter tested at
the laboratory of the Nigam or by
electrical inspector or by an independent
agency. The answer of the notice has to
be given by the consumer. After the
option is exercised by the consumer and
he agrees to get the meter tested at the
laboratory of the Nigam or electrical
inspector, then the Nigam may fix the
date for testing the meter. If the consumer
exercise his option to get the meter tested
from outside agency, the list of the names
of the outside agency approved by the
Nigam should be intimated to the
consumer so that he may choose any one
of the outside agency and according to the
option of the consumer. The outside
agency may test the meter and its finding
about testing of meter would be final. It is
after following this procedure that the
option exercised by consumer cannot be
changed. The decision on the basis of
option exercised by the consumer, and the
report of the test laboratory shall be final
and binding on the licensee as well as on
the consumer. But the Nigam did not
inform the petitioner to exercise her
option on 26.11.2008 when the meter of
the petitioner was sealed and she was
informed to appear on 4.12.2008 for
testing of the meter.

11. We are of the considered opinion
that after sealing the meter the Nigam
must serve a notice, on which it should be
printed in bold capital letters, intimating
the consumer or his representative to
exercise his option either to get the meter
tested by the electrical inspector or at the
laboratory of the Nigam or the consumer
may exercise his option to get his meter
tested from one of the outside agencies
approved by the Nigam mentioned in the
notice. Once the consumer exercise his
option then immediately a date has to be
fixed for testing of the meter in the
presence of the consumer.

12. For the aforesaid reasons the
writ petition succeeds and is allowed. The
118 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
provisional
assessment
notice
dated
31.12.2008 issued by the respondents
Annexure-6 to the writ petition is
quashed.
We
further
direct
the
respondents to send the meter of the
petitioner for testing by an independent
agency in accordance with clause 5.6
(c)(iii) and thereafter make provisional
assessment
provided
the
petitioner
deposits an amount of Rs.2,50,000/- with
the respondents within a period of fifteen
days from today. The respondents are
further directed to restore the power
supply of the petitioner within 48 hours
from the date petitioner deposits the
aforesaid amount. The petitioner shall go
on paying her regular electricity bills.

13. Parties shall bear their own
costs.

Petition allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE RAN VIJAY SINGH, J.

Special Appeal No. 1587 of 2008

Israr Mohammad

...Appellant

Versus
State of U.P and another ...Respondents

Counsel for the Appellant:
Sri Pankaj Kumar Srivastava

Counsel for the Respondents:
S.C.

Constitution
of
India-
Art.226Cancellation of appointment as Sankul
Prabhari-certain lapses on the part of
appellant in distribution of Scholarshipwithout following principle of Natural
Justice-held-appointment
of
Head
Master as Sankul Prabhari governed by
Government
Orders
unless
such
provision contrary to constitution-can
not be interfered-even-appointment on
deputation-no right accure nor can be
termed as reversion.

Held: Para 17 & 22

In view of the aforesaid decisions we are
of
the
view
that
even
if
in
the
appointment letter of the petitioner the
period of deputation is not mentioned it
will
make
no
difference
as
the
petitioner's
appointment
as
Sankul
Prabhari has been made pursuant to the
Government Order dated 29.06.2002
where
the
maximum
period
of
deputation is provided for two years.
Leaned
Single
Judge
has
rightly
observed that the period of deputation
cannot be extended beyond the period of
two years and has rightly dismissed the
writ petition.

We are of the view that the State
Government is competent to make policy
with regard to the appointment of
coordinators and the policy under which
the
appointments
have
been
made
cannot said to be hit any of the
provisions of the Constitution or any
other statute governing the field.
Case law discussed:
2004
ESC
1911,
JT
2000(6)SC
574,
2000(5)SCC 362, JT 1999(7)SC44, 2003(5)ALR
44, 1999(3)UPLBEC 2412, 2005(8)SCC 394,
2007(2)SCC 138,1992(4)SCC 23, 1978 SC 28,
2000(2)AWC1747, 1984 SC1543, 2006 AIR
SCW 3601, 1989 SC 1899, 1990 SC 1277,
1965 SC 491, (1890)3 SCC 418

(Delivered by Hon'ble V.M. Sahai, J.)

1. This special appeal has been filed
by the appellant -petitioner against the
judgment & order dated 20.01.2008
passed by learned Single Judge in writ
petition no. 54217 of 2008 (Israr
Mohammad vs. State of U.P. and others)
by which the petition filed by the
petitioner has been dismissed.