Gujarat High Court
Bharat Milling Company vs Paschim Gujarat Vij Co. Ltd. & on 9 August, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/13161/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13161 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BHARAT MILLING COMPANY....Petitioner
Versus
PASCHIM GUJARAT VIJ CO. LTD. & 1....Respondents
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Appearance:
(MR NS DESAI), ADVOCATE for the Petitioner.
MR DHARMESH V SHAH, ADVOCATE for the Petitioner.
MR. C. K. PATEL, ADVOCATE for the Petitioner.
MR MD PANDYA, ADVOCATE for the Respondent Nos.1 - 2
RULE SERVED for the Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 09/08/2016
ORAL JUDGMENT
1. Pursuant to the Notice issued by this Court, respondents have appeared through learned advocate Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Aug 13 02:19:05 IST 2016 C/SCA/13161/2003 JUDGMENT Mr.M.D.Pandya. Since learned advocate Mr.M.D.Pandya is not well and is filing sick note/ leave note since considerable long time, his colleague Ms.Maya Desai was requested to file her appearance as she is appearing for the respondents. On 25/07/2016, following order was passed by this Court:
"Ms.Maya Desai, learned advocate shall file her appearance on behalf of the respondents. She requests for time to file affidavitin reply, if any, and the same shall be filed on or before 05.08.2016 and the copy thereof shall be supplied to the learned advocate for the petitioner on 06.08.2016. S.O. to 09.08.2016."
Today also, Ms.Maya Desai is not present and has not filed her appearance as well as Affidavit-in-reply in the matter. Hence, the petition is taken up for final hearing today.
2. By way of the present petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed as under:
"17(A)Your Lordships may be pleased to allow this Special Civil Application by issuing a writ of certiorari or any other appropriate writ, order or direction declaring the impugned judgement and order passed by the Appellate Committee of the Gujarat Electricity Board dated 5.8.2003 Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Aug 13 02:19:05 IST 2016 C/SCA/13161/2003 JUDGMENT is void and arbitrary and further be pleased to quash and set aside or modify or revise the impugned judgement and order passed by the Appellate Committee of the Gujarat Electricity Board dated 5.8.2003 in Appeal No.A63(a)/2003 Annexure.B;
(B) Pending admission and final hearing of this petition, Your Lordships may be pleased to grant stay against the disconnection of power supply of the petitioner;
(C) Pending admission and final hearing of this petition, your Lordships may be pleased to grant stay against execution of the last revised additional bill dated 22.08.2003 AnnexureE as the petitioner has already paid 45% of the final bill amount;
(D) That Your Lordships may be pleased to grant suitable relief which may be deemed fit in view of the facts and circumstances of the case."
3. Brief facts, arise from the record, are as under:
That the respondent company is in business of providing electricity supply to its consumers and the petitioner is one of the consumer, having its mill at Bhalgamda Gate, Limdi, District Surendranagar. The Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Aug 13 02:19:05 IST 2016 C/SCA/13161/2003 JUDGMENT petitioner is manufacturing non-edible oil from raw-materials of cotton seeds.
The petitioner company was granted load of 140 HP. Checking Squad of the respondent authority visited the premises of the petitioner on 13/11/2002 and checked the meter installed by it. The said meter was checked in presence of representative of the petitioner company and it was found that there was no seal on the Metal Meter Box and all three phases of C.T. and P.T. connection wires were found removed from the meter and the meter was found completely by-passed and the petitioner was using electricity directly from the main supply and, therefore, the case was treated as theft of electricity and the bill was issued to the petitioner for 79 days.
The said bill was challenged by the petitioner by way of filing an appeal being appeal No.A-63(a) of 2003. The Appellate Committee after giving an opportunity of hearing to all concerned and after verifying the relevant documents, partly allowed the said appeal and directed the respondent authority to issue a revised supplementary bill for 64 days instead of 79 days, after deducing the public holiday, etc.. Hence, this petition.
4. Mr.Dharmesh Shah, learned advocate for the petitioner would submit that the respondent authority as well as Appellate committee have erred in calculating the days while applying formula under clause 33 of the Condition and Miscellaneous Charges for Supply of Electrical Energy. The petitioner was running Mill only for one shift, which was verified by the competent Government Officer and, therefore, the respondent authority ought not to have issued the bill treating the case of the petitioner as if the mill was working Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Aug 13 02:19:05 IST 2016 C/SCA/13161/2003 JUDGMENT for 24 hours.
He would further submit that last bill, which was issued for the period from 16/09/2002 to 17/10/2002 i.e. for 31 days, in which, "No Consumption of Power" has been show by the Gujarat Electricity Board, Limdi and the power consumption has been shown as 'ZERO' in the said bill. Therefore, the respondent authority ought to have issued the bill only for those days when the meter was running i.e. for 13 to 17 days. He would further submit that MRI report also support the case of the petitioner. By making above submissions, he would submit that the petition may be allowed.
5. Since the respondents are not represented by any lawyer, I have gone through the papers of the case and relevant provisions of the Act. It appears from the record as well as observations made by the appellate authority that the meter belongs to the petitioner was checked on 13/11/2002 and it was found that there was no seal on Metal Meter Box i.e. meter itself was tampered by the petitioner. Three phases of CT PT connection wires passed through the meter, were found removed and whatever electricity consumed by the petitioner, was not recorded in the meter, which records the actual units of the electricity consumed by the petitioner, therefore, in my opinion, this is a case of theft of electricity.
6. So far as submission made by Mr.Shah, learned advocate for the petitioner that this is not a case of theft of electrical energy as defined under Condition 33 of the Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Aug 13 02:19:05 IST 2016 C/SCA/13161/2003 JUDGMENT Condition and Miscellaneous Charges for Supply of Electrical Energy is concerned, the same cannot be accepted. Condition No.33 of the said conditions are reproduced hereinbelow for ready reference of the Court:
"33A Malpractice and Theft of Energy
(a) Malpractice
Malpractice shall mean contravention by the consumer of any of the provision of the I.E.Act,1910 Electricity (Supply) Act,1948 or Indian electricity Rules,1956 or of any other law governing the supply and use of Electricity and the rules framed thereunder as also the contravention of any of the provision of the Board's "Condition and Miscellaneous Charges for Supply of Electrical Energy" or any of the terms and conditions of the contract governing the supply of electricity by the Board to the consumer and shall in particular include the following case:
(a) The supply of electricity by a consumer to any other person whose supply has been disconnected by the Board for any reason.
(b) Exceeding the contracted load by a consumer without the specific permission Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Aug 13 02:19:05 IST 2016 C/SCA/13161/2003 JUDGMENT of the Board.
(c) Unauthorised addition, alteration and\or extension to the consumer's electrical installation without the permission of the Board
(d) Using supply by a consumer from the service which has been disconnected by the Board for any reason.
(e) Supply of energy to any other person without the permission of the Board."
If Condition 33(C) is perused, the case is squarely covered as "Malpractice" since there was no seal on the Metal Meter Box and all three phases of C.T. and P.T. connection wires were found removed from the meter and the meter was found completely by-passed. If a consumer dishonestly consumed the energy, is to be dealt with as theft of energy. Under Condition No.34, method of assessment is provided and, therefore, the authority has rightly considered the case of the petitioner as theft of energy and the respondent board has rightly issued supplementary bill.
7. So far as submission made by learned advocate for the petitioner that unit was running only for one shift is concerned, it appears that permission has been granted by the authority for running industry for one shift but when the question of electricity is concerned, the respondent company Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Aug 13 02:19:05 IST 2016 C/SCA/13161/2003 JUDGMENT has not committed any error in issuing bill for 24 hours.
8. Considering the overall facts and circumstances of the case and considering the provisions as referred hereinabove, in my opinion, the petition is meritless and the same deserves to be dismissed and is accordingly dismissed. The impugned order dated 05/08/2003 passed by the Appellate Committee of the Gujarat Electricity Board in Appeal No.A-63(a)/2003 is hereby confirmed. Rule is discharged. Interim relief, if any, stands vacated forthwith. No order as to costs.
sd/-
[A.J.DESAI, J.] *dipti Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Aug 13 02:19:05 IST 2016