JUDGMENT

Hansaria, J.-Theft of electricity has become so chronic a disease that there can be no doubt that all efforts must be made to curb the same; not only to make the State Electricity Boards viable, but also to ensure regular supply of electricity to the lawful consumers at reasonable tariff.

2. The facet of theft of electricity with which these appeals are concerned relates to the mischief of consumers to tamper with the meters, first to slow it down and then to make the same defective. The basic idea behind this is that the general terms and conditions governing the agreement between Electricity Boards and the consumers require that in such a case reading of the meter shall be based on the average reading of previous three months, in which the meter ran correctly and reading was duly recorded. Section 26 of the Indian Electricity Act, 1910, hereinafter the 1910 Act, is on the subject of "Meters" and sub-section (1) of this Section requires that the amount of energy supplied to the consumer shall be ascertained by means of a correct meter. Sub-section (6) has provided that where any difference or dispute arises as to whether any meter is or is not correct, the matter shall be decided, upon the application of either party, by an Electrical Inspector. Further steps are required to be taken as per the opinion of such Inspector.

3. Confronted with the aforesaid position, the Bihar State Electricity Board (for short, the Board) found itself suffering heavy financial loss to the tune of several crores. It, therefore, arranged a meeting of the General Managers-cum-Chief Engineers on 12.6.1982 and decided, inter alia, that the assessment of the aforesaid type of consumers, should be made, in the case of low tension industrial consumers at 30% load factor and in case of high tension industrial consumers at 45% load factor, during the period their meters remained defective.

4. On the aforesaid decision put to implementation, some consumers approached the High Court of Judicature at Patna by filing a writ petition (CWJC No.2250 of 1984) in which it was held that the decision dated 12.6.1982 having far reaching consequences and having not been taken by the Board itself, could not be sustained. It was also pointed out that the power to amend tariff lay with the Board in exercise of powers under Sections 46 and 49 of the Electricity (Supply) Act, 1948 to be referred hereinafter as the 1948 Act. The High Court, therefore, quashed the decision dated 12.6.1982.

5. The Board thereafter issued a Notification on 16.2.1987 invoking its power under Sections 46 and 49 of 1948 Act and decided to bill industrial consumers in the line of the decision taken earlier. The Notification reads as below :

"In view of the observations of the Hon ble High Court in its order dated 25.8.86 passed in C.W.J.C. No.2250/84 filed by Sri Vishnu Re-Rolling Mills against the Bihar State Electricity Board and others, the B.S.E. Board, in its resoultion No. 5873 taken in the 388th meeting of the Board held on 23.1.1987, after taking into consideration all the aspects of the matter, has decided and resolved to bill L.T.I.S. (meaning, Law Tension Industrial Sector?) consumers at 30% load factor, H.T. (meaning, High Tension) consumers at 45% load factor, for the period the meter remained defective or non-working, with effect from 12.6.92.

Accordingly, it is hereby notified that by virtue of the power conferred under Sections 46 and 49 of the Electric Supply Act, 1948, the Bihar State Electricity Board, has decided to bill LTIS consumers at 30% load factors, H.T. consumers at 45% load factors and commercial consumers at 30% load factors for the period meter remained defective or non-working with effect from 12.6.82."

6. This notification came to be challenged by a number of consumers and the judgments impugned in these appeals relate to the view taken by the High Court qua this notification. The High Court has quashed the notification, not only the retrospective part of it, b