Gujarat High Court
Dy.Engineer vs Sarovodaya on 7 September, 2011
Gujarat High Court Case Information System
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SCA/1634/2006 4/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1634 of 2006
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DY.ENGINEER
( O & M) - Petitioner(s)
Versus
SAROVODAYA
HOTEL & RESTAURANT - Respondent(s)
=========================================================
Appearance
:
MS
LILU K BHAYA for
Petitioner(s) : 1,
MRS MUMTAZ M SAIYED for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE DN PATEL
Date
: 10/04/2006
ORAL
ORDER
1. Rule.
Learned Advocate Mrs.Mumtaz M.Saiyed waives notice of Rule on behalf of the respondent.
2. The present petition has been preferred under Art.226 and 227 of the Constitution of India against the order dated 26.09.2005 passed by the Assistant Electrical Engineer and Appellate Authority, Mehsana in Appeal No.8/2005 under Section 127 of the Electricity (Supply) Act, 1948 (hereinafter referred to as the Act, 1948).
3. Learned Counsel appearing for the petitioner mainly submitted that the meter of the petitioner was checked on 30th June, 2005 and it was found out that there are certain irregularities in the said meter. The meter was running slowly at 7.07% and the connected load was more than contracted load. The details have been mentioned at Annexure-A. It is also submitted by the learned Counsel for the petitioner that the said checking sheet which is at Annexure-A was also signed by the respondent. And it has been mentioned that they are admitting the fact that there is additional connected load of 5.48 HP . What is stated in Cloumn 7 of Anenxure -A is true and correct. Column 7 reflects in detail several electrical appliances and the connected load is calculated and thereafter the additional bill has been issued by the petitioner, (Annexure-C) to the memo of the petition under Sec.126 of the Act, 1948. Against this assessment, an appeal was preferred under Section 127 of the Act, 1948. Though, this clear position of the fact has been explained by the petitioner, the Appellate Authority has not appreciated the same. The checking sheet prepared by the petitioner and was signed by the respondent. It was never retracted, by respondent. The connected load was more than contracted load. There is no scope for re-calculation of the connected load. The checking sheet prepared on 30th June, 2005, which was signed by the respondent was placed before the Appellate Authority. The respondent has never contended that he had singed under coersion or undue influence. Thus, what is stated in Column 7 of the checking sheet could not have been reshuffled by the Appellate Authority. Thus, there is an error apparent on the face of the record. The appellate authority has also not given any reason in the impugned order at Annexure -D of the memo of petition and therefore, impugned order dated 26th September, 2005 passed by the appellate authority in Appeal No.8 of 2005 deserves to be quashed and set aside.
4. I have heard the learned counsel for the respondent who has submitted that in the order dated 26th September, 2005 passed by the Appellate authority, a detailed calculation has been given by the appellate authority of the connected load. Looking to the calculation of the connected load, it was not exceeding the contracted load and therefore order passed by the Appellate Authority is true and correct and the additional bill which has been issued by the petitioner has been rightly quashed and set aside
5. Having heard the learned counsel for both the sides and looking to the facts and circumstances of the case, the impugned order dated 26th September, 2005 in Appeal No. 8 of 2005 passed by Appellate Authority, Mehsana (Annexure D to the memo of petition) deserves to be quashed and set aside, mainly for the following facts and reasons:-
I. On perusal of the facts of the case, it appears that there is an error apparent on the face of the record in an order passed by the Appellate Authority to the effect that when the meter of the respondent was checked, detailed checking sheet was prepared on 30th June, 2005 wherein several points have been recorded including the fact that additional load of electricity was connection by the respondent. The contracted load is less than the connected load. Thus, the respondent was liable to make the payment of additional bill. This additional load communicated has also been admitted by the respondent. There is a signature of the respondent in the checking sheet which is at Annexure -A to the memo of petition. Meter was also running slowly at 7.07% and thus there was no need for the respondent to re-calculate the additional connected load. In fact, the respondent had admitted at the time of checking of the meter, the fact that respondent had connected additional instruments so that there was additional connected load than the contracted load. Thus, admitted position of the fact on the part of the respondent has not been properly appreciated by the Appellate Authority while passing the impugned order. The disputed fact ought to have been properly appreciated by the Appellate Authority.
II After signing the document at Annexure A by the respondent on 30th June, 2005, there was no letter of protest given by respondent to petitioner. The statement of fact made by respondent was never retracted. Never ever before,it has been pointed out by the respondent that the said checking sheet was singed by the respondent under coercion or threat or under compulsion.
The details of Annexure-A.. has been admitted by the respondent. Thus, the facts never permits the Appellate Authority to re-calculate the connected load. What is admitted by respondent for more than reasonable period ought not to have been allowed the Appellate Authority to upset in an appeal while passing the impugned order.
Respondent has never contended that there is no signature of the respondent on the checking sheet. When the signature is an admitted fact, the additional connected load is also admitted fact. Without any reason the appellate authority ought not to have come to the conclusion that there was no additional connected load.
(iv) The conclusion arrived at by the appellate authority is patently erroneous and that too without assigning any reasons.
6. In view of the above facts and reasons, I hereby quash and set aside the order dated 26/09/2005 passed by the of the Appellate Authority, Mahesana in Appeal No. 8 of 2005 and I hereby direct the appellate authority to decide, afresh, said appeal No. 8 of 2005 after giving an opportunity of being heard to the petitioner as well as respondent, within a period of 3 weeks from the date of the receipt of writ of this Court. Rule made absolute accordingly with no order as to costs.
(D.N.PATEL, J.) *Ashish Top