Gujarat High Court
Harikrupa Ice Factory And Cold Storage vs Paschim Gujarat Vij Company Ltd -Pgvcl & ... on 21 April, 2014
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/16012/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16012 of 2013
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HARIKRUPA ICE FACTORY AND COLD STORAGE....Petitioner
Versus
PASCHIM GUJARAT VIJ COMPANY LTD -PGVCL & 2....Respondents
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Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner.
(MR SN SINHA), ADVOCATE for the Respondent No. 2
MS LILU K BHAYA, ADVOCATE for the Respondent Nos. 1 & 2
MR UDIT D MEHTA, ADVOCATE for the Respondent No. 3
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 21/04/2014
ORAL ORDER
1. By way of the present writ petition under Articles 14, 19, 21 and 226 of the Constitution of India, the petitioner has prayed to issue a writ of mandamus or any other appropriate writ, order and/or direction by making following prayers in terms of para-11, which reads as under:
"11(a) to admit this petition and to issue Notice for final disposal on returnable date and to allow the same;
(b) to quash and set aside the impugned
Supplementary Bill dtd.28-3-2013 as per
Annexure-E, on condition that the petitioner shall pay the civil liability that may be determined by Page 1 of 15 C/SCA/16012/2013 ORDER the Special Court under Section 154(5) of the Electricity Act,2003;
(c) to direct the respondent nos.1 and 2 to forthwith restore the electricity supply of the petitioner's Service No.80717/00798/7;
(d) to direct the respondent no.3 company to forthwith discontinue the use of all L & T make meters so that the innocent consumers of electricity like the present petitioner and others may not be penalised without any fault on their part merely because of display of the figures 9496729.5 in L & T make meters;
(e) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondent nos.1 and 2 to forthwith restore the electricity supply of the petitioner's Service No.80717/00798/7, subject to further orders that may be passed in the present petition, as the off-season period of the petitioner is over and the petitioner is in dire need of electricity supply;
(f) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to stay further operation of the Supplementary Bill dtd.28-3-2013 as per Annexure-E, on condition that the petitioner shall pay the civil liability that may be determined by the Special Court under Page 2 of 15 C/SCA/16012/2013 ORDER section 154(5) of the Electricity Act,2003;
(g) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondent no.3 - Larsen & Toubro Ltd. to explain to this Hon'ble Court the Phenomemon of L & T make meters displaying the figures 9496729.5 and to explain as to how and why it should be presumed that the display of the figures 9496729.5 in L & T make meters indicate theft of electricity, and why the respondent no.3 electricity company and other companies should not be directed to discontinue the use of L & T make meters so that the innocent consumers of electricity like the petitioner and others may not be penalised without any fault of their part.
(h) to grant any other appropriate and just relief/s including the costs of this petition."
2. Pursuant to the Notice issued by this Court, respondent Nos.1 & 2 i.e. electricity company has filed an Affidavit-in-reply dated 20/11/2013 through Deputy Engineer of Paschim Gujarat Vij Company Limited [hereinafter referred to as "PGVCL"]. Respondent No.3 i.e. Larson & Toubro Limited [hereinafter referred to as "L&T"] has filed Affidavit- in-reply dated 13/01/2014 through its Assistant Manager - Sales, Metering and Protection System and have opposed Page 3 of 15 C/SCA/16012/2013 ORDER grant of any relief, prayed by the petitioner. The petitioner has also filed its Affidavit-in-rejoinder.
3. Brief facts, arise from the record of the case, are as under:
Respondent No.2 is a Company registered under the Companies Act and providing electricity supply to its consumers within western part of the Gujarat and the petitioner is one of the consumers having its Ice factory situated at Junagadh District. Company has provided electricity supply for industrial purpose and having service no.80717/00798/7. On 06/09/2012, the officers of the Company visited the ice factory belongs to the petitioner and checked the meter, etc. The company having found that by tampering with the meter, there was a theft of electricity to the tune of Rs.34,88,823.84 ps. and served supplementary bill.
The Company also lodged an FIR against the petitioner being C.R.No.2104/13 with GUVNL Police Station, Rajkot on 30/03/2013 for the offence of theft of electricity u/s.135 of the Electricity Act,2003. Since the petitioner did not pay the amount demanded by the Company, electricity supply provided to the petitioner's ice factory, was discontinued.
Hence, this petition.Page 4 of 15 C/SCA/16012/2013 ORDER
4. Mr.K.B.Pujara, learned advocate for the petitioner would submit that the petitioner industry is producing ice and, therefore, every year there is off-season period of three to four months i.e. from June to September and about the same, intimation have been sent by the company since 2009 to 2013. He would submit that the respondent electricity company installed a new meter manufactured by L & T, at the petitioner's ice factory and installation checking report was prepared on the same date i.e. on 22/04/2009. Officers of the respondent company visited and inspected the ice factory on 06/09/2012 and it was found that certain figures were surfaced on it i.e. 9496729.5 and, therefore, company having doubts about the meter, the same was removed and the new meter of another company was installed. Though the meter was checked at the Meter Checking Lab, Jamnagar on 24/12/2012 and everything was found absolutely normal, the Company having some doubts about figures, which have been surfaced on the meter, an opinion of the manufacturer i.e. L & T Ltd., was obtained about the same. In absence of any representative by the petitioner, L & T Ltd. held that the meter was not recording the correct electricity consumed by the petitioner company and, therefore, company served Page 5 of 15 C/SCA/16012/2013 ORDER supplementary bill dated 28/03/2013 to the tune of Rs.34,88,823.84 ps. and called upon the petitioner to pay the aforesaid amount. He would submit that the petitioner had intimated the company that the factory is not working continuously for the months of June to September and, therefore, the Company ought not to have issued supplementary bill of Rs.34,88,823.84 ps. showing as if the petitioner has consumed 2,83,822 units of electricity. 4.2 By taking me through the report dated 24/12/2012 carried out by PGVCL, Jamnagar, he would submit that the seals were not tampered with at all and there were no other mal-practice committed on behalf of the petitioner with the meter and, therefore, the company ought not to have issued a supplementary bill only relying upon some numbers surfaced on the meter. By relying upon communication dated 19/02/2012 issued by Uttar Gujarat Vij Company Limited and another communication dated 03/03/2012 issued by Daxin Gujarat Vij Company Limited, he would submit that display of figures on the meter itself cannot be treated as theft of electricity. In the present case, the company has issued the bill only on the ground that some figures have been displayed in the meter of the petitioner company.
Page 6 of 15 C/SCA/16012/2013 ORDER 4.3 Mr.K.B.Pujara, learned advocate for the petitioner had relied upon the communication dated 09/09/2011 issued by L & T Ltd. that L & T Ltd. makes meter for "High Voltage Electro-Static Discharge" device and Chief Engineer (Tech.), Paschim Gujarat Vij Company Ltd. was asked to verify certain points to come to the conclusion that there was any mischief played with the meter or not? In the present case, only one point showing figure 9496729.5 has been found out in the meter. However, other two requirements are not fulfilled and therefore, the bill issued by the Company is illegal and, therefore, the same is required to be quashed and set aside. 4.4 So far as contention raised by the other side in affidavit-in-reply that the petitioner has to approach the Special Court established under the provisions of the Electricity Act is concerned, he would submit that there is no alternate efficacious remedy to get any relief under the provisions of the Electricity Act,2003. He would further submit that Special Court has no power to direct the electricity company to supply the electricity during pendency of the proceedings with regard to theft of electricity and, therefore, this Court may issue writ of mandamus or any other Page 7 of 15 C/SCA/16012/2013 ORDER appropriate writ, order and/or direction and accordingly appropriate order may be passed.
4.5 Mr.K.B.Pujara, learned advocate for the petitioner would further submit that the company has lodged an FIR but no further progress has been made with regard to criminal proceedings and, therefore, the petitioner found himself helpless in such scenario and has prayed for interim relief in the matter.
5.1 On the other hand, Ms.Lilu K. Bhaya, learned advocate appearing for respondent Nos.1 & 2 i.e. electricity Company has vehemently opposed this petition and submitted that it is a case of theft of electricity by a consumer, which is an offence as per section 135 of the Electricity Act. 5.2 She would further submit that under Chapter-15 of the Electricity Act, Special Courts are constituted and procedure and power of Special Courts are explained under Section 154 of the Act. She would submit that u/s.154(5) of the Act empowers Special Court to determine whether any civil liability in terms of money for theft of electricity can be imposed or not?
Page 8 of 15 C/SCA/16012/2013 ORDER 5.3 She has relied upon decision rendered in the case of Torrent Power AEC Ltd. V/s. Gayatri Intermediates Pvt. Ltd. reported in 2006(2) GLH 375 as well as in the case of Abdul Rashid Kapadia @ Baba Hiragal & 1 V/s. Torrent Power Ltd. & anr. delivered by this Court on 14/2/2011 in Letters Patent Appeal No.1685 of 2010 and submitted that it has been held by Division Bench of this Court that adjudication with regard to electricity theft can be determined by the Special Court and has upheld the decision of the learned Single Judge refusing to entertain the writ petition on the ground of availability of efficacious alternative remedy. Therefore, she would submit that the petition be dismissed on this ground alone.
5.4 In alternate to the above submission, it was contended that the petitioner is in habit of committing theft of electricity. It was found in the year 1996 that the petitioner had committed theft of electricity to the tune of Rs.15,16,605.50 ps., however, compounded the offence under the existing Act. Again in the year 2004, a case was registered against the petitioner for theft of electricity and the bill was issued to the tune of Rs.1,96,894.50, however, the appellate Page 9 of 15 C/SCA/16012/2013 ORDER authority has partly allowed the appeal and the petitioner pay the revised bill as per the order of the Appellate authority. Again in the year 2006, the petitioner was booked for unauthorised use of electricity u/s.126 of the Electricity Act and bill for Rs.16,39,140.52 ps. was issued, however, the appellate authority reduced the amount to the tune of Rs.5,61,299.07 ps. She further submits that the petitioner was habitual offender so far as theft of electricity is concerned. 5.5 She would submit that under sub-section (4) of section 152 of the Electricity Act, compounding offence shall be allowed only once for a person or consumer and, therefore, it is not possible to consider the case of the petitioner by the company. By opposing the submission made by Mr.Pujara, learned advocate about untampered the meter of the company, she would submit that a figure 9496729.5 was surfaced in the meter and, therefore, it was observed in the report itself that the meter is required to be examined in detail. The meter was checked in the lab on 24/12/2012 in presence of representative of the petitioner as well as Engineer of L & T Limited and the said report was prepared. By a written communication dated 01/01/2013, L & T informed the Company to act according to the Guidelines as Page 10 of 15 C/SCA/16012/2013 ORDER the said number was surfaced on the meter. The details with regard to power consumption were gathered, it was found that the petitioner was booked for theft of electricity since there was reading in KVARh leads 9496729.5 and CFKWH 9496729.5. The tamper date showed total power on time of 1429 days, 18 hours and 39 minutes and simultaneously current failure status showed R phase current failure for 877 days, 17 hours and 39 minutes, Y phase current failure for 882 days, 1 hour and 1 minutes and B phase current failure 876 days, 2 hours and 32 minutes. As per her submission, this is abnormal consumption of electricity, which is not possible except if the consumer had committed theft of electricity. 5.6 By taking me through the details annexed along with its reply, she would submit that it is a theft of electricity without tampering with the body of meter. So far as communication dated 09/09/2011 by L & T Ltd. (replied upon by the petitioner), she would submit that meter displaying or registering no.9496729.5 in any of the energy register is sufficient to conclude that the meter was affected due to High Voltage Electro-Static Discharge" device. It is not necessary that all three conditions are required to be fulfilled. She would further submit that in view of the above facts, no mandamus Page 11 of 15 C/SCA/16012/2013 ORDER can be issued against the petitioner and no relief whatsoever can be granted in favour of the petitioner, as prayed for. Respondent No.3 i.e. L & T Ltd. has supported the case of the electricity company.
6. I have heard learned advocates appearing on behalf of the respective parties and perused the papers annexed along with the petition as well as Affidavit-in-reply. It appears from the report dated 24/12/2012 that on the display of impugned meter installed at the Ice factory of the petitioner, a number 9496729.5 had surfaced. The manufacturer company of the meter i.e. L & T Ltd. had specifically issued guideline to all electricity companies, who are purchasing meters from it, way back in the year 2011 since there were complaints made by the electricity company that the meters do not refer the correct consumption of electricity though consumed by its clients and though the meter is not physically tampered with. Way back on 09/09/2011, L & T Limited had informed Chief Engineer (Tech.), Paschim Gujarat Vij Company Limited that when the meters were checked and certain points are found out, it is presumed or concluded that the meter was affected due to high voltage Electro-Static Discharge" device. The submission Page 12 of 15 C/SCA/16012/2013 ORDER made by Mr.Pujara, learned advocate for the petitioner cannot accepted that theft of electricity can be presumed only after all the three points referred in the said communication are verified by the company since letter itself is very clear suggesting that if the meter displaying / registering no.9496729.5 in any of energy register and/or meter displays anomaly as "TXDT". "XDG" or "XDT". When the meter of the petitioner company is displaying no.9496729.5, there is no need to satisfy other points before concluding that the meter is High Voltage Electro-Static Discharge" device. Since in the present case, such recording is found out, I am of the opinion that prima facie, the company has established a case of theft of electricity against the petitioner.
Since all these aspects are to be examined by the Special Court in future, it is not desirable to record any conclusion against the petitioner. It is pertinent to note that a details of MRI data annexed with the Affidavit-in-reply is also required to be examined in detail by appropriate court. This Court while exercising powers under Articles 226 and 227 of the Constitution of India, cannot decide such issues without detailed examination and method of calculating the electricity supply and manner in which the theft has been committed by the consumer, unless witnesses are examined by recording Page 13 of 15 C/SCA/16012/2013 ORDER their depositions.
It is pertinent to note that in past also, on three to four occasions, the petitioner was found with allegation of theft of electricity and, subsequently, which might have been resulted partly in favour of the petitioner by the appellate authority. Under the circumstance, it would not like to exercise my extra ordinary power in favour of the petitioner.
7. As far as ratio laid down by the Division Bench of this Court in the case of Torrent Power AEC Ltd. V/s. Gayatri Intermediates Pvt. Ltd. (supra) is concerned, the Division Bench of this Court has dealt with alternative efficacious remedy, in paragraph 15 onwards, available to the consumer as far as civil liabilities are concerned. Same is the ratio laid down in the case of Abdul Rashid Kapadia @ Baba Hiragal & 1 V/s. Torrent Power Ltd. & anr. by relying upon the case of Torrent Power AEC Ltd. (supra). As observed in the aforesaid cases, a consumer is not without remedy as submitted by the petitioner.
8. Considering overall facts and circumstances of the case, I do not find any reason to entertain this petition. Hence, the present petition is rejected. Notice is discharged. Page 14 of 15 C/SCA/16012/2013 ORDER
[A.J.DESAI,J.] *dipti Page 15 of 15