Gujarat High Court
Torrent Power Limited vs Aslambhai Abdulbhai Shaikh on 24 June, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/6464/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6464 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order
made thereunder ?
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TORRENT POWER LIMITED....Petitioner(s)
Versus
ASLAMBHAI ABDULBHAI SHAIKH....Respondent(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1
MR MURALI N DEVNANI, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 24/06/2016
ORAL JUDGMENT
1. By way of the present petition filed under Articles 14 and 226 of the Constitution of India, the petitioner has prayed to issue a writ of mandamus or a writ of certiorari by quashing and setting aside the order dated 31.01.2007 passed by the Gujarat State Consumer Disputes Redressal Commission (herein after referred to as 'the Commission') in Civil Misc. Application No. 493 of 2006 preferred by the petitioner requesting the Commission to condone the delay Page 1 of 6 HC-NIC Page 1 of 6 Created On Fri Jul 01 00:35:56 IST 2016 C/SCA/6464/2007 JUDGMENT of 42 days in preferring the appeal in which the order dated 25.04.2006 passed by the Consumer Disputes Redressal Forum, Ahmedabad (Rural) (herein after referred to as 'the Forum') entertaining the complaint filed by the respondent for issuance of supplementary bill with regard to electricity consumption was issued to the respondent consumer on the ground of theft of electricity committed by the respondent.
The petitioner has also challenged the order of the Forum, by which the supplementary bill issued by the company has been quashed and set aside on the ground of maintainability of complaint before the Forum.
2. Pursuant to notice issued by this Court, the respondent appeared through Mr. Murali N. Devnani, learned advocate and has filed affidavitinreply opposing grant of any relief.
3. The brief facts arise from the record are as under :
3.1 That the petitioner is company registered under the Companies Act, 1956 and engaged in business of private sector of supplying electricity to the consumers in the city of Ahmedabad as well as surrounding areas. The respondent being a consumer was given an electricity connection by the petitioner vide service No. 3028052.
3.2 The said connection was inspected by the officer of the petitioner company on 23.09.2004. It was found that serious malpractice and theft of electricity was made by the consumer by tempering with the meter. A checking report was prepared in the presence of representative of the respondent and accordingly, supplementary bill to the tune of Rs.52,702/ was issued to the respondent.Page 2 of 6
HC-NIC Page 2 of 6 Created On Fri Jul 01 00:35:56 IST 2016 C/SCA/6464/2007 JUDGMENT 3.3 The petitioner appeared before the petitioner and submitted an application on 25.09.2004 that he is ready and willing to pay entire amount of Rs.52,702/, however, he may be granted installments for the payment. On 25.09.2004, the petitioner paid Rs. 15,102/ by cash.
3.4 The respondent had agreed for payment of rest of the amount of Rs. 37,600/ by three installments for the month of October, November and December, 2004.
3.5 Instead of abiding to his undertaking for the payment of his dues, the petitioner filed an application / complaint before the Forum and challenged the supplementary bill. Simultaneously, the petitioner being the supplier of electricity lodged an FIR against the respondent for the offence punishable under Section 135(1)
(b) of the Indian Electricity Act, 2006.
3.6 The preliminary objection was raised by the petitioner with regard to maintainability of the complaint in view of the provisions made in Indian Electricity Act and it was submitted that instead of deciding such preliminary objections, the complaint itself was disposed of by order dated 25.04.2006 quashing and setting aside the bill issued pursuant to theft of the electricity.
3.7 The petitioner challenged the said decision by way of filing appeal before the Commission. However, there was delay of 42 days, an application for condonation of delay under the provisions of Section 5 of the Limitation Act was made and the same was disposed of as dismissed.
3.8 Hence, this petition.
4. Mr.K.B.Pujara, learned advocate appearing for the petitioner, Page 3 of 6 HC-NIC Page 3 of 6 Created On Fri Jul 01 00:35:56 IST 2016 C/SCA/6464/2007 JUDGMENT would submit that there is no dispute that when the connection of respondent was checked, several malpractice were found by the officer of the petitioner company with regard to the meter itself. The seals were tempered with and even duplicate seals were applied on the meter and therefore, accordingly calculation was made and supplementary bill was issued. The respondent had agreed for payment of said amount and on 25.09.2004, he paid Rs.15,102/ and had also agreed to pay rest of the amount in three equal installments but did not pay the same.
5. Learned advocate for the petitioner would further submit that the Forum has not considered the preliminary objections raised by the petitioner company about the maintainability of the complaint itself under the provisions of Consumer Protection Act, 1986. He would further submit that since there was theft of energy, the consumer should have approached the Special Court as per the provisions made under Chapter XV of the Electricity Act. By relying upon the decision in case of Harayana State Electricity Board V. Mam Chand reported in (2006) 4 SCC 649 as well as the decision in case of Mamoramaben Kansara Wd/o. Balkrishna Kansara V. Madhya Gujarat Vij Company Limited and Ors. reported in 2011(2) GLH 563, would submit that the Forum has no jurisdiction to entertain the case. He would further submit that the Commission ought to have considered the application for condonation of delay since there was sufficient reasons to file the appeal at belated stage. He, therefore, would submit that both the orders are required to be quashed and set aside.
6. He would further submit that the present petitioner company preferred the appeal before the Commission and direction was issued to pay an amount of Rs. 25,000/ accordingly, the same was deposited before the Commission and the same may be Page 4 of 6 HC-NIC Page 4 of 6 Created On Fri Jul 01 00:35:56 IST 2016 C/SCA/6464/2007 JUDGMENT refunded to the petitioner. He would further submit that during pendency of the appeal, the respondent consumer has cleared all his dues with regard to supplementary bill and has paid the rest of the amount to the tune of Rs.37,600/. The said amount is lying before the registry shall also be handed over to the petitioner.
7. On the the other, Mr. Devnani, learned advocate for the respondent, has supported the order passed by the Forum as well as the Commission.
8. I have heard learned advocates for the respective parties. It is an undisputed fact that when the officer of the petitioner company checked the connection and the meter at the place of the respondent, it was found that duplicate seals were applied and for the same, checking report was prepared and upon such report, the representative of the respondent put his signature. It is also an undisputed fact that the respondent consumer, by an application, declared that he needs time to pay the entire amount of Rs.52,702/ and the respondent paid Rs.15,102/ by cash and he also assured that he shall clear the remaining amount in equal installments and therefore, time to pay the rest of the amount is granted by three installments. Instead of paying the remaining amount, the consumer filed a complaint before the Forum.
9. I have also gone through the several provisions of the Electricity Act as well as two decisions in case of Harayana State Electricity Board V. Mam Chand (Supra) and Mamoramaben Kansara Wd/o. Balkrishna Kansara V. Madhya Gujarat Vij Company Limited (supra), by which it has been held by the Apex Court as well as by the Division Bench of this Court that in case of grievance with regard to theft of electricity, the aggrieved party has to approach the Special Court or the authority established Page 5 of 6 HC-NIC Page 5 of 6 Created On Fri Jul 01 00:35:56 IST 2016 C/SCA/6464/2007 JUDGMENT under the provisions of the Electricity Act. It has also been held that the Forum has no jurisdiction to entertain such complaint by the respondent consumer.
10. As far as the delay is concerned, I am of the opinion that the Commission should have examined the valid legal point with regard to the maintainability instead of rejecting the application for condonation of delay that too only 42 days. Considering the over all facts and circumstances of the case, the present petition requires consideration and the order 31.01.2007 passed by the Gujarat State Consumer Disputes Redressal Commission and the order dated 25.04.2006 passed by the Consumer Disputes Redressal Forum, Ahmedabad (Rural) are hereby quashed and set aside. Accordingly the petition is allowed and both the orders are hereby quashed and set aside.
11. As stated herein above, the amount of Rs.25,000/ deposited by the petitioner before the Commission be returned by A/c payee cheque to the petitioner forthwith.
12. Registry is hereby directed to return the amount of Rs.37,600/ to the petitioner by A/c payee cheque forthwith.
13. Rule made absolute. No order as to costs. Direct service is permitted.
(A.J.DESAI, J.) *Kazi...
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