By the Court—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-1 089513 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 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 other 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 pre