Gujarat High Court
Amruta Techno Cast Pvt Ltd vs Paschim Gujarat Vij Company Ltd on 8 October, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/1618/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1618 of 2016
With
CIVIL APPLICATION NO. 1 of 2016
With
R/FIRST APPEAL NO. 673 of 2017
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AMRUTA TECHNO CAST PVT LTD
Versus
PASCHIM GUJARAT VIJ COMPANY LTD
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Appearance:
MR CHAITANYA S JOSHI(5927) for the PETITIONER(s) No. 1
MR SUDHAKAR B JOSHI(3465) for the PETITIONER(s) No. 1
MS LILU K BHAYA(1705) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/10/2018
COMMON ORAL ORDER
1. As the issues raised in both the captioned appeals are the same, the parties are also the same and the challenge is also to a common judgment and decree passed by the court below, those were heard analogously and are being disposed of by this common judgment and order.
2. I take notice of the fact that the Special Civil Suit No.72 of 2001 came to be filed by Amruta Techno Cast Pvt. Ltd for permanent injunction restraining the Paschim Gujarat Vij Co. Ltd. from disconnecting the power supply, whereas the Special Civil Suit No.51 of 2002 came to be filed by the Paschim Gujarat Vij Co. Ltd against Amruta Techno Cast Pvt. Ltd for recovery of Rs.11, 17,088.82 paisa with interest at the rate of 24% per annum. Both the suits were adjudicated together, Page 1 of 9 C/FA/1618/2016 ORDER and by a common judgment and order, both the suits came to be decided. The Special Civil Suit No.72 of 2001 filed by Amruta Techno Cast Pvt. Ltd came to be dismissed, whereas the Special Civil Suit No.51 of 2002 filed by the Paschim Gujarat Vij Co. Ltd. came to be partly allowed. The operative part of the order reads as under;
"ORDER
1. Special Civil Suit No.72 of 2001is hereby dismissed.
2. No order as to costs.
3. Special Civil Suit No.51 of 2002 is hereby partly allowed.
4. The plaintiff PGVCL company of Special Civil Suit No.51 of 2002 is hereby entitled to recover sum of Rs.10,23,460.82 ps. together with interest at the rate of 5% p.a. from the date of the suit till its realization from the defendant company as well as from person and property of the defendant company.
5. No order as to cost.
6. One copy of this judgment be kept in Special Civil Suit No.51 of 2002.
7. Decree to be drawn accordingly."
3. The relevant findings recorded by the court below are noted hereunder;
"28. Now, looking to the said evidence, it appears that the plaintiff company is a registered company and there is no dispute between the parties regarding this. The plaintiff has produced registration certificate of the company at Ex.113. Moreover, the company has authorized Naranbhai Jadavbhai Babiya to contest the suit on behalf of the plaintiff company and resolution to Page 2 of 9 C/FA/1618/2016 ORDER that effect is produced at Ex.114. Moreover, there is no dispute between the parties regarding the location of the factory of the plaintiff factory at village Veraval of Tal. Kotdasangani and the plaintiff company is engaged in the business of making engineering goods, liner, blocks, valve etc. Moreover, there is no dispute between the parties that the defendant PGVCL has given 250 K.V.A HT electrical connection bearing No.25856 to the plaintiff connection. Moreover, it is also undisputed fact between the parties that the officers of the defendant have checked the electrical installation of the plaintiff company on dated 22.12.2000. Now, looking to the plaint of the plaintiff company, it appears that the officers of the defendant have come to check the electrical installation of the plaintiff company on dated 22.12.2000. The allegation is made in the plaint that the officers of the defendant have tampered with the electrical installation of the plaintiff and prepared checking report. Moreover, the officers of the defendant have broken the seal on the MMB and made internal checking by applying accue check meter and thereby made checking. The plaintiff has also stated the said fact in his affidavit. The said checking report is produced at Ex.75. As per the say of the plaintiff, in absence of the representative of the plaintiff, the officers of the defendant have tampered with the electrical installation of the plaintiff and thereby prepared power theft case. Looking to the checking report produced in the suit, it appears that the said checking report was prepared in the factory of the plaintiff on 22.12.2000 in presence of plaintiff. Looking to the said checking report, it appears that consumption of the plaintiff was checked by applying accue check meter. Moreover, during the checking of meter of the plaintiff, seal of TTB was broken and removed and by connecting it in the accuse check meter, meter was checked. Moreover, one white colored seal of Maruti brand was found on terminal cover of CTPT which seal wire was found in broken condition and the said broken seal wire was also shown to the plaintiff. It was easily removed because of broken terminal cover seal and broken seal wire and thereafter, the cap of the CTPT terminal which was only fitted with the bolt and head of fifth bolt was found broken and therefore, three bolts from it were removed which were easily removed. Nuts of bolt of back side fitting which was generally used to fit the terminal cover was not in existence. Moreover, Page 3 of 9 C/FA/1618/2016 ORDER PT wire on the C terminal was not found properly fitted and the nut which is being used to fit the wire was also found in loose condition. Further, extra illegal thin copper wire was found alongwith CT wire over 2S1 terminal. Moreover, thin pieces of copper wire were found inside the terminal box which are matched with the illegal copper wire applied on the 2S1 terminal. All these facts were shown to plaintiff Naranbhai Jadavbhai. If we refer the cross examination of the plaintiff, it appears that the plaintiff has admitted that joint inspection report, inspection report, HT installation and the sealing procedure was checked and prepared in his presence and the plaintiff has signed all these reports with objection. But he has not realized any objection that laboratory testing was made in his absence. Moreover, joint inspection report of laboratory produced at Ex.82 was also prepared in the presence of the plaintiff. Moreover, the paper seal affixed on the CTPT unit which was seized from the factory of the plaintiff was also opened in the presence of plaintiff during the courses of laboratory testing. During the course of laboratory testing, CTPT unit was also found tampered with and on the basis of it, power theft bill was issued. The plaintiff has also raised objections against the laboratory testing which was also explained by the defendant in writing. Thereafter, the plaintiff has challenged the said power theft bill before the appellate committee. The report of the appellate committee is produced at Ex.89. In which, it was found that the CTPT TC seal wire was found broken and the CTPT and terminal cover were opened. Further, an additional thin copper wire was also found rounded on 2S1 terminal stud and other small parts of copper wire were found in the CTPT terminal cover. Further, the C-stud of the CTPT unit was found loose and thereby the load was shorten than the actual one. Thus, the plaintiff has applied the external devise and committed mal-practice and committed theft of power energy. The appellate committee has also considered the factor M, chargeable hours, shift factor and then revised the bill of the plaintiff company. Thereafter, the appellate committee has reduced the bill of the plaintiff to the extent of Rs.7,50,488. 90 ps. The learned advocate of the plaintiff has argued that without giving any finding, the appellate committee has reduced the bill amount. But if we peruse the order of the appellate committee produced at Ex.89, Page 4 of 9 C/FA/1618/2016 ORDER it appears that the appellate committee has discussed all the documents and subsequently passed the order. Therefore, the said argument of the plaintiff is not tenable. Moreover, the plaintiff was also informed to pay the said bill, but the plaintiff has given objections against the said bill and thereby not paid the bill in question.
In the present case, when the checking was made in the factory of the plaintiff, the CTPT TC seal wire was found broken and CTPT and terminal cover were opened. It was further found that there was an additional thin copper wire rounded at 2S1 terminal stud and other small parts of wire were found lying in the CTPT terminal cover. Further, it was found that the PT wire on the C- stud of CTPT unit was found loose and thereby, the plaintiff has committed mischief with both the CTPT and thereby shorten the main and load stud by additional copper wire and the power theft was found which is generally made by tampering with the meter. The above facts have been examined and verified in the presence of the representative of the plaintiff. The representative of the plaintiff has signed the checking report with protest. But, at the time of signing, he has not made any endorsement that in his absence, the officers of the defendant has tampered with the CTPT unit and meter. He has endorsed that as the meter is a technical meter, he has signed with protest. Further, if we look at the evidence of the expert at Exh.129, then in that also, he has admitted that the consumer can commit theft by tampering with the CTPT unit or making changes in the same. It has been further admitted that whenever any new connection is given to the consumer, it is given after testing. It is further admitted that the meter and the CTPT unit is kept after sealing the same. It is further admitted that if the consumer wants to tamper with the CTPT unit then the seal of the CTPT seal has to be broken. It is further admitted that if any kind of seal is tampered than and than the seal is broken otherwise the seal cannot be broken. It is further admitted that in the CTPT unit, no extra wire or copper wire was installed. It is further admitted that if the connection is found loose than there may be a difference in consumption and assessment. It is further admitted that nut fitted in the connection cannot be easily opened. Further, he has admitted that if 1S1 and 1S2 wire is connected with 2S1 and 2S2 than meter can be slow down. Thus, as per the Page 5 of 9 C/FA/1618/2016 ORDER expert of the plaintiff also, if above conditions are found in the CTPT unit than presumption can be drawn for power theft. Further, the advocate of the plaintiff has argued that there is no external artificial means and has drawn the attention of this court towards the article 33-A and 33-B of the Conditions and Miscellaneous charges for supply of electrical energy, which is reproduced herein below."
4. The only argument canvassed by Mr. Joshi, the learned counsel appearing for the appellant in both the appeals, is that the electric meter was installed outside the premises of the company, i.e, Amruta Techno Cast Pvt. Ltd. In such circumstances, according to Mr. Joshi, it is possible that the same could have been tampered by any individual. According to Mr. Joshi, the electricity company, ordinarily, foisted the entire liability on Amruta Techno Cast Pvt. Ltd.
5. On the other hand, Ms. Bhaya, the learned counsel appearing for the electricity company submitted that there is no merit worth the name in both the first appeals. There is a clear finding recorded by the court below as regards tampering with the meter.
6. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that no error, not to speak of any error of law, could be said to have been committed by the court below in passing the impugned judgment and decree.
7. In fact, the entire issue was also considered by the Appellate Committee of the Gujarat Electricity Board in Appeal No.A-35/2001. The order passed by the Appellate Committee has been produced on record vide Exh.106. I may quote the Page 6 of 9 C/FA/1618/2016 ORDER relevant observations made by the Appellate Committee.
"Now, it appears that the meter alongwith CTPT was inspected in the laboratory on 17.2.2001 in the presence of the representative of the appellant. The laboratory inspection report also confirmed the irregularities found in the CTPT terminal cover at the time of checking. No doubt the laboratory inspection report is signed by the appellant under protest. But, in our view, that protest is not such as can make the findings of the laboratory inspection doubtful or unreliable. So, in our view, there is sufficient and reliable evidence emerging particularly from the checking sheet, statement of consumer and laboratory inspection report to establish that there was a tampering with the CTPT terminal cover of the meter of the appellant.
Now, it is pertinent to note that the appellant has contended this aspect of the case in his written statement to deny to have committed theft of electrical energy. The appellant contended that the pieces of copper wire which were found inside the CTPT were of approximately 10 mm while the total length of the gap between 2 terminals was 50 mm and hence there was no possibility to commit mischief in the two terminals of CTPT. But this contention of the appellant does not stand at all. When the pieces of the copper wire were found inside the CTPT the possibility cannot be ruled out that the wire which might have been used between two terminals might have broken into pieces while using it to tamper with the CTPT. So, in our view, this contention of the appellant does not stand at all.
Now, it is contended by the appellant that it is the duty of the GEB to kept all electric evidence and apparatus in a safe condition as provide under Rule 30 of the Indian Electricity Rules, 1956 and hence the appellant cannot be fastened with the liability if any irregularity is found. But it is admittedly clear that the CTPT was checked and seal was applied on 30.5.98. The appellant has specifically admitted in his oral submission that the CTPT was brought by an Electrical Contractor of GEB whom he was not knowing and that CTPT was supplied on 30.5.98. If the CTPT was brought by the Contractor of the GEB who is known to the appellant and at the Page 7 of 9 C/FA/1618/2016 ORDER instance of the appellant then it can be presumed that the CTPT was supplied by the consumer. If this is the position, then it cannot be said that it was the duty of the GEB to keep it in a safe condition as provided under Rule 30f of the Indian Electricity Rules, 1956. Hence, in our view, the submission of the appellant on this count does not stand at all.
Now, the next submission of the appellant with regard to this point is on the legal aspect of the case. It is contended by the appellant in the written submission that the theft is defined in section 39 of the Indian Electricity Act and to establish the case it is for the GEB to establish the charge of the theft electricity. In support of this condition the appellant has relied on 2 judgments of the Supreme Court in cases of Ramchandra Prasad Sharma vs. State of Bihar, AIR 1967 SC pg. 947.
We have perused the contents of these judgments of the Hon'ble Supreme Court and it appears that both these cases deal with the criminal liability of the consumer under section 38 of the Indian Electricity Act. While a case which is of more or less a civil nature and to decide such case preponderance of probability of case requires to be considered. So from this aspect, the judgments of the Supreme Court have no application to the present case either on facts or on point of law. The appellant has also relied on one case of the appellate committee in case of M/s. Bhoms Ind. Ltd., GIDC Kalol.
We have perused the contents of this judgment and we find that it is not applicable to the present case on facts. The appellant has in his oral or written submissions made some unwarranted allegations against the checking officers to show that the those officers have wrongly implicated him by creating a false case of theft of electric energy. We do not find it necessary and even proper and just at this stage to to into the details and merits of those allegations made by the appellant against those officers. So, in our view, the mere allegations levelled against the checking officer without any proof are of no use to appellant to establish that this is a false case against him.
However, as we have stated above, there is sufficient Page 8 of 9 C/FA/1618/2016 ORDER and reliable and trustworthy evidence emerging from the checking sheet, statement of consumer and laboratory inspection report to establish the case of theft of electrical energy against the appellant by tampering with the CTPT terminal cover seal wire and by shorting the main and load stud CT by additional copper wire."
8. In view of the above, I do not find any merit in both the appeals. Both the appeals fail and are hereby dismissed. Notice stands discharged.
9. As the first appeals itself has been dismissed, the connected civil application also does not survive and is disposed of accordingly.
(J.B.PARDIWALA, J) Vahid Page 9 of 9