Gujarat High Court
Uttar Gujarat Vij Company Ltd. Through ... vs M/S Kanak Oil Industries on 25 January, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16113 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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UTTAR GUJARAT VIJ COMPANY LTD. THROUGH ITS DEPUTY
ENGINEER (O AND M)
Versus
M/S KANAK OIL INDUSTRIES
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Appearance:
MS LILU K BHAYA(1705) for the Petitioner(s) No. 1
MR. M.R. MOLAVI for MR M R SAIYED(3362) for the
Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 25/01/2024
ORAL JUDGMENT
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1. RULE, returnable forthwith. With the consent of the learned advocates appearing for the respective parties, the present matter is taken-up for final hearing.
1.1. By way of the present Petition, petitioner herein is aggrieved by the order dated 07.11.2020 passed by the respondent no.2 - Consumer Grievances Redressal Forum, Uttar Gujarat Vij Company Ltd. in case No. UGA-03-005-2020-21, directing the petitioner to revise the bill and issue the bill from the date of checking i.e. from 03.09.2016, considering the Multiplier Factor (for short 'M.F.'- 2) and holding that the earlier period bill is not to be amended.
2. Brief facts leading to the filing of the present Petition read thus:
2.1. It is the case of the petitioner that the respondent no.1 is having LTMD connection NO. 23002005444 with contracted load of 44 KW. The meter of the respondent no.1 was replaced on 03.02.2009 vide checking sheet no. 001315, with multiplier factor-2.Page 2 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024
NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined 2.2. On 03.09.2016, there was a regular checking, which did not look into the aspect of multiplier factor. The checking was only for accuracy of load. Thereafter on 16.09.2020, the connection of the respondent no.1 was checked. Thereafter, once again the meter was checked on 21.09.2020 vide checking sheet no. 59350; it was found that the meter capacity was 100/5 and C.T. Coil's capacity was 200/5. The said details tallied with the details mentioned in the meter replacement proforma dated 03.02.2009. The multiplying factor was in consonance with the meter and C.T. capacity. The said checking sheet is duly produced at Annexure-D. 2.3. Having coming to the knowledge of the petitioner, a supplementary bill came to be issued to the respondent no.1 for Rs.6,95,872.06 Ps. On 21.09.2020, the differential amount was charged for consumption of electricity, due to the mistake in considering multiplying factor at 1 instead of 2. Being aggrieved by the said bill, the respondent no.1 herein approached the respondent no.2 - Consumer Grievance Redressal Forum of UGVCL, wherein, the complaint came to be registered as Page 3 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024 NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined complaint No. UGA-03-005-2020-21. By the impugned order dated 07.11.2020, the respondent no.2 directed the petitioner to revise the bill from 03.09.2016 till the date of issuance of the bill. The respondent no.2 also directed the petitioner to hold departmental inquiry against the concerned officers. 2.4. Being aggrieved by the aforesaid order passed by the respondent no.2 in complaint No. UGA-03-005-2020-21 dated 07.11.2020, the petitioner herein approached this Court seeking the following reliefs:
"(A) To allow this petition.
(B) To issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 7.11.200 passed by Consumer Grievances Redressal Forum, Uttar Gujarat Vij Company Ltd. in case No. UGA-03-005-2020-21 directing the petitioner to revise the bill and issue the bill from 3.9.2016 and upheld bill dated 18.9.2020 issued by the petitioner. (C) To stay, the execution, implementation and operation of the order dated 7.11.2020 passed by Consumer Grievances Redressal Forum, Uttar Gujarat Vij Company Ltd. in case No. UGA-03-005-2020-21 directing the petitioner to revise the bill and issue the bill issue the bill from 3.9.2016 and upheld bill dated 18.9.2020 issued by the petitioner. (D) To grant ad-interim relief in terms of Para-9(C).
(E) To award the cost of this petition.
(F) To grant such other and further reliefs as may be
deemed fit by this Hon'ble Court in the interest of justice." Page 4 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024
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3. Heard Ms. L.K. Bhaya, learned advocate appearing for the petitioner and Mr. M.R. Molavi, learned advocate appearing for the respondent no.1.
3.1. Ms. L.K. Bhaya, learned advocate appearing for the petitioner submitted that the respondent no.2 failed to appreciate that at the time of replacement of meter on 03.02.2009, the multiplier factor was erroneously changed from 2 to 1 and also failed to appreciate that during the subsequent checking on 03.09.2016, only the accuracy of meter and load were checked. 3.2. It was submitted that the respondent no.2 failed to appreciate that it was only on 18.09.2020, when the checking was undertaken, it came to know that the capacity of the meter was 100/5 Amp and CT Coil was 200/5 Amp, and therefore, multiplying factor has to be taken at 2 instead of 1, since this mistake stated from 03.02.2009, the bill was accordingly issued from 03.02.2009.
3.3. It was submitted that the respondent no.2 has failed to appreciate that during the subsequent checking, the meter Page 5 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024 NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined capacity or multiplying factor was mentioned or not becomes immaterial and the case is clear of taking multiplying factor at 1 instead of 2, through bona-fide inadvertent mistake. 3.4. It was submitted that the respondent no.2 has wrongly interpreted the provision of Section 56(2) of the Electricity Act, 2003 (for short Electricity Act'). It was submitted that the respondent no.2 erred in relying on Clause-8.1 of Standard of Performance of Distribution Licensee Regulation, 2005 and Clause 18(2) of the Central Electricity Authority (Installation & Operations of Meters) Regulations, 2006. 3.5. Ms. Bhaya, learned advocate placed reliance on the ratio as laid down by the Hon'ble Apex Court in case of M/s. Prem Cottex v/s. Uttar Haryana Bijli Vitran Nigam Limited and others reported in 2021 SCC OnLine SC 870.
3.6. Placing reliance on the aforesaid submissions, Ms. Bhaya, learned advocate submitted that, the impugned order may kindly be quashed and set aside and the prayers as prayed for by the petitioner may kindly be granted.
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NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined 4.1. Per contra, Mr. M.R. Molavi, learned advocate appearing for the respondent no.1 submitted that no error can be said to have been committed by the respondent no.2 in passing the impugned order. It was submitted that on 03.02.2009, meter was replaced while checking sheet no. 001315 and thereafter the meter was checked on 03.09.2016 and 18.09.2020. 4.2. Mr. Molavi, learned advocate submitted that on 21.09.2020, supplementary bill to the tune of Rs.6,95,872.06 ps. came to be issued by the petitioner for a period of 11 years i.e. from 03.02.2009 to 21.02.2020 and the factor came to be considered at 1 instead of 2.
4.3. Mr. Molavi, learned advocate submitted that the respondent no.1 thereafter filed the objection application with respect to the aforesaid bill issued by the petitioner herein dated 21.09.2020. Pursuant to the issuance of bill, cheque to the tune of Rs.1,77,968/- came to be deposited on 03.10.2020 before the petitioner's office in accordance with the order passed by the Appellate Authority, wherein, the petitioner was directed to Page 7 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024 NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined consider factor 1 from 2016 to 2020. The petitioner is paying the bill under factor 1 after 2020. Placing reliance on the aforesaid, it was submitted that on 03.09.2016, the meter was checked, and thereafter on 18.09.2020, bill was issued by the petitioner. 4.4. Placing reliance on the aforesaid, it was submitted that the said order is just and proper and no interference is called for.
5. Having heard the learned advocates appearing for the respective parties and considering the facts of the present case, the respondent no.1 herein is having LTMD connection No. 23002005444 with contracted load of 44 KW. The meter of the respondent no.1 was replaced on 03.02.2009 vide checking-sheet no. 001315 with Multiplier Factor of 2. The petitioner herein applied erroneous multiplier of '1' instead of '2'. On 03.09.2016, carried-out the inspection with respect to the accuracy of load. On 18.09.2020, the connection of the respondent no.1 was checked. The said checking-sheet is duly produced at Annxure-C. Thereafter, the meter was once again checked on 21.09.2020 vide checking sheet no. 39350 and it was found that the meter Page 8 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024 NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined capacity was 100/5 and C.T. Coil's capacity was 200/5. The said detailed tallied with the details mentioned in the meter replacement proforma dated 03.02.2009. The multiplying factor was in consonance with the meter and C.T. capacity. On coming to the said mistake, the petitioner issued supplementary bill to the respondent no.1 on 21.09.2020, duly produced at Page.19 to the tune of Rs.6,95,872.06 ps. alongwith the actual calculation, for the differential amount of charges for consumption of electricity due to mistake in considering multiplying factor at 1 instead of 2. The said communication dated 21.09.2020 came to be issued considering factor 1, which according to the petitioner, shall be issued after considering factor 2, since the mistake started from 03.02.2009, the bill was accordingly issued from 03.02.2009.
6. Being aggrieved by the same, the respondent no.1 herein approached the respondent no.2 - Consumer Grievance Redressal Forum registering the complaint being No. UGA-03-005- 2020-21, whereby, by order dated 07.11.2020, the respondent no.2 - Forum directed the petitioner to revise the bill from Page 9 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024 NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined 03.09.2016 till the date of issuance of bill. The forum also directed the petitioner to hold departmental inquiry against the concerned officers.
6.1. The respondent no.1, by way of representation approached, on the ground that it is the responsibility of the petitioner herein to check the meter every six months, in spite of that, present respondent no.1's meter was not checked since long time and the bill in question came to be issued to the present respondent no.1. Pursuant to the supplementary bill issued by the petitioner herein dated 21.09.2020, the respondent no.1 submitted an application for review on 22.09.2020 to the Deputy Engineer, Sub Divisional Office, Santej. The respondent no.1 herein was instructed to contact the office within two days and on the basis of the said letter, the respondent no.1 herein visited the office on 23.09.2020 and made representation to calculate the bill again and to give its copy. The respondent no.1 was handed over revised calculation by the petitioner company and was informed that further action in respect of the recovery would be taken, if the bill was not paid in time. In the said representation, it was Page 10 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024 NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined submitted by the respondent no.1 that the supplementary bill was issued by the company after a lapse of 11 years and that the bill was in violation of Regulation- 6.1.8 of the Gujarat Electricity Regulatory Commission 11 of 2015.
6.2. To the aforesaid representation, the petitioner company submitted that the old meter of the respondent no.1 was changed vide checking sheet no. 001315 on 03.02.2009, however, due to technical fault in the meter, the MF of the meter of the respondent no.1 was at 2 and thereafter, the office has received no record of it being revised to MF-1. The checking of the meter of the present respondent no.1 was checked on 03.09.2016 vide checking sheet no. 916 only with regard to the accuracy of load. Thereafter, the same being rechecked on 21.09.2020 vide checking sheet no. 59350, the capacity of the meter was found to be 100/5 and capacity of city coil was found to be 200/5. Thereafter, by calculating MF-2 till 18.09.2020, in place of MF-1 from 03.02.2009, electricity bill has been issued to the respondent no.1 for recovery of charge of 1/1/145 units used by the consumer for the charge applicable between 03.02.2009 Page 11 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024 NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined and 18.02.2020.
6.3. Considering the aforesaid submissions, the respondent no.2 passed the impugned order dated 07.11.2020. The operative part of the impugned order reads thus:
ORDER The applicant has a 44kw power-load electricity connection for LTMD purpose bearing Customer No. 23005005444 in name of M/s. Kanak Oil Industries.
The meter at the power-installation of the applicant was inspected, vide Checking Sheet No. 59348 and using an accura machine, on 18/09/2020 during a GUVNL inspection, wherein the capacity of the meter and the coil were found at 100/5 and 200/5, respectively, which means that the Multiplying Factor of meter- reading was found to be 2, whereas, the MF (Multiplying Factor of meter-reading) as per the office records of the Sub Divisional Office, Santej of UGVCL was 1.
On the basis of the Checking-Sheet of the Sub Divisional Office, Santej, as the Multiplying Factor of meter-reading was found as 2, past records of the consumer was examined, wherein it was revealed that, on 03/02/2009, the consumer-meter of the electricity consumer was replaced and registered vide Checking-Sheet No. 00315 and the Multiplying Factor of reading was shown as 2. Thereafter, the power connection was examined on 03/09/2016 and the same was recorded at Checking-Sheet No. 916, wherein the inspecting officer has shown the Multiplying Factor of meter- reading as 1. Thereafter, the meter was again inspected on 18/09/2020.
Therefore, the power dues of the applicant has been assessed as per MF2 for the period from 03/02/2009 to 18/09/2020 and the procedure for recovery of unpaid dues of Rs.6,95,872.06 has been undertaken.
As the electricity-bill was not acceptable to the applicant-consumer and it was UGVCL who was required to inspect the meter every Page 12 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024 NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined six months which was not done and instead, the applicant was handed over a bill of such a huge amount which is a result of a fault on part of UGVCL, the applicant raised an objection against it. Therefore, the applicant has made a representation before the forum.
Perusing the stated documentary evidence and the submissions made by both the parties at the time of hearing, the following issues arise which require consideration by this forum.
The previous electricity-meter of the applicant came to be replaced on 03/02/2009 and it has been inspected on 03/09/2016 and 18/09/2020, i.e. the meter has been inspected on 3 instances in total.
It is noteworthy that, the financial loss has been caused to UGVCL due to a serious fault on the part of the Inspecting Officer during the inspection on 03/09/2016.
The MF of reading was recorded as 2 when the meter came to be replaced on 03/02/2009. Despite that, why the Billing Department considered MF of reading as 1? It is a serious negligence.
Considering the aforesaid submissions and evidence and as provided under Regulation 8.1 of the License Regulation 2005 and as per the Standard of Performance as specified by the Gujarat Electricity Regulatory Commission;
"The Licensee shall regularly inspect check and test the meters.
However the periodicity of such inspection shall not be less than that as may be provided by the central electricity authority in their regulations on installation & operations of the meters."
Along with the aforesaid regulation, as per Regulation 18(2) of the Central Electricity Authority (Installation & Operations of Meters) Regulations, 2006, the testing of Consumer Meters (consumer meter to be tested with a meter having better accuracy) shall be done at the site or at a test laboratory at least once in five years.
Relying on the aforesaid rules, this forum gives instruction to the Deputy Engineer, Sub Divisional Office, Santej that, the power- usage by the applicant for a period from the date of inspection, Page 13 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024 NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined i.e. 03/09/2016, till date be calculated as per Multiplying Factor of Meter-Reading of 2 and accordingly, a revised bill be given to the applicant. The electricity-bill for the period prior than that shall not be revised.
In the Checking-Sheet dated 03/02/2006, though the multiplying factor is shown as 2, the billing was done as per the multiplying factor of 1 and as the inspecting officer has committed gross negligence during the inspection on 03/09/2016, the present question has arisen. It has come to notice that it is due to the Multiplying Factor of 1 for billing during the period from 03/02/2009 to 03/09/2016 that the economic loss has been caused to UGVCL. Therefore, this Forum directs the U.G.V.C.L. to initiate departmental procedure, immediately, against the persons responsible for committing negligence and inform the same to the Forum.
The application is disposed, accordingly.
6.4. It is apposite to refer to Section 56(2) of the Electricity Act, which reads thus:
"56. Disconnection of supply in default of payment.- (2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as reecoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity."
6.5. Section 56 of the Electricity Act deals with disconnection of supply in default of payment. Section 56(1) of the Act enables the distribution licensee or generating company to disconnect the electricity supply when any person neglects to Page 14 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024 NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined pay any charge of electricity or any other charge due from him. However, before disconnecting the supply, 15 days' clear notice in writing has to be given to such person, and such cutting off or disconnection shall be without prejudice to the rights of the distribution licensee to recover such charge of other sums by permissible mode of recovery. Proviso to sub-section (1) disentitles the distribution company from disconnecting the supply, if, such person deposits the amount claimed under protest or deposits electricity charges for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, pending disposal of any dispute between him and the licensee.
6.6. Section 56 (2) of the Act provides a non-obstante clause with respect to any other law in relation to the right to recover electricity charges, including the right to disconnect. 6.7. Section 56 as discussed above deals with disconnection of electricity supply, if any, person 'neglects to pay any charge for electricity', the question of neglect to pay would arise, only after a demand is raised by the licensee. If the Page 15 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024 NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined demand is not raised, than there is no occasion for a consumer to pay any charge of electricity.
7. In the facts of the present case, the consumer is not issued any bill, there can be no negligence on the part of any consumer to pay the bill and consequently, the question of considering the period of limitation under sub-section (2) of Section 56 of the Act would not arise. In the present case, the respondent no.1 herein never neglected to make the payment and in view thereof the provision of Section 56(2) of the Act would not be made applicable.
8. In the facts of the present case, the petitioner has issued the supplementary bill dated 21.09.2020 seeking recovery of the bill due and payable from 2009 to 2020 after a period of 11 years, though the meter was checked by the petitioner in the interregnum period on 03.09.2016. The competent authority considered the aforesaid, relying on regulation 18(2) of the CEA. Considering the order passed by the competent authority, wherein, the petitioner is directed to issue a bill and considering the checking sheet, that though the multiplying factor shown as Page 16 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024 NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined 2, the billing was done as per the multiplying factor as 1 and as the inspecting officer committed negligence in inspection on 03.09.2016, the present dispute arose.
9. Considering the aforesaid, the respondent no.2 directed the petitioner that the power usage by the respondent no.1 herein for the period from the date of inspection i.e. on 03.09.2016, till date be calculated as per multiplying factor meter reading-2 and accordingly revised bill was directed to be issued. The electricity bill for the period prior thereto was directed not to be revised. The aforesaid order is passed by the respondent no.2 considering the facts of the present case and provisions of the Act, which requires no interference under Article 226 of the Constitution of India. The respondent no.2 - Forum has directed the petitioner to issue revised bill from 2016 to the said date applying multiplying factor-2 and has calculated the same from the date of inspection i.e. on 03.09.2016. The earlier period between 2009 and 2016 was rightly not considered by the respondent no.2- Forum.
10. This Court is not inclined to in appeal over the order Page 17 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024 NEUTRAL CITATION C/SCA/16113/2021 JUDGMENT DATED: 25/01/2024 undefined passed by the respondent no.2, wherein, the respondent no.2 taking into consideration the facts, submissions and law, proceeded to pass the final order/ impugned order. This Court is not inclined to interfere the impugned order, whereby, the authority has directed that the M.F.-2 be applied qua the power usage by the respondent no.1 for a period from date of inspection i.e. on 03.09.2016, till date. The respondent no.1 has already complied with the order passed by the respondent no.2 by depositing Rs.1,77,968/- on 03.10.2020.
11. For the foregoing reasons, in the facts of the present case, no interference is called for to exercise the extraordinary jurisdiction under Article 226 of the Constitution of India, in the impugned order passed in Complaint No. UGA-03-005-2020-21 by the respondent no.2 dated 07.11.2020. The present Petition stands dismissed accordingly. Rule is discharged.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 18 of 18 Downloaded on : Thu Jan 25 20:53:49 IST 2024