Gujarat High Court
Executive Engineer(O And M) vs Shanti Shirting Pvt. Ltd on 2 August, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/4567/2018 ORDER DATED: 02/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4567 of 2018
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EXECUTIVE ENGINEER(O AND M)
Versus
SHANTI SHIRTING PVT. LTD. & 1 other(s)
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Appearance:
MS LILU K BHAYA(1705) for the Petitioner(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR. GAURAV MATHUR, ADV. WITH YASHRAJ CHAMPAWAT, ADV. FOR
SINGHI & CO(2725) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 02/08/2023
ORAL ORDER
1. The petitioner herein is in business of distribution of electricity in the norther region of State of Gujarat. The present petition is directed against the judgment and order dated 20.1.2018, passed by the Appellate Authority and Chief Electrical Inspector, Gandhinagar in Appeal vide order No.CE/APPEAL/473/2018, quashing and setting aside the bill issued by the petitioner herein to the tune of Rs.1,43,11,353.48ps directing the petitioner herein to refund the amount which was deposited by the respondent No.1 herein. The said judgment and order dated 20.1.2018 passed by the Appellate Authority is duly produced at Anneuxre "A".
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2. The brief facts germane for adjudication of the dispute in question read thus:
2.1 The respondent no.1, on 19.8.2011, applied for connection of 450 KVA at plot no.18, Vraj Integrated Textile Park, on submission of physical documents showing its possession of plot no.18 in support of its application for connection. The connection was released in favour of the respondent No.1 on 5.9.2011 in plot no.18. The respondent no.1 entered into agreement with the petitioner on 2.11.2011 for 450 KVA connection at the address shown as plot no.18. The point of supply shown by the respondent no.1 at the time of taking connection also was in plot no.18 only.
2.2 The respondent no.1 thereafter applied for extension of load on 24.2.2012 from 450 KVA to 1300 KVA, on 25.9.2012 from 1300 KVA to 1800 KVA, on 22.3.2013 from 1800 KVA to 2600 KVA, on 20.9.2013 from 2600 KVA to 3100 KVA and on 25.4.2014 from 3100 KVA to 3600 KVA. On all these occasions, the respondent no.1 Page 2 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined made application in requisite application form. In all the application forms, the respondent no.1 mentioned the address where electricity is required as plot no.18 only.
Not only that in the agreements entered into by the respondent no.1 with the petitioner on each occasion, the address is shown as plot no.18 only. The point of supply shown by the respondent no.1 is also in plot no.18 only. The petitioner herein undertook checking with respect to the connection of the respondent no.1 on 16.12.2015. It was found by the petitioner that the respondent no.1 was using electricity in plot nos. 17, 18 & 19 of Vraj Integrated Textile Park though the respondent no.1 had applied for electric connection in only plot no.18. In view thereof, the usage of electricity in plot nos.17 & 19 was unauthorised use of electricity. The checking was carried out in presence of representative of the respondent no.1, who signed the same. A copy of the checking sheet dated 16.12.2015 and Joint Inspection Report are duly produced at Annexure "G" (Colly). In view of the aforesaid, the respondent no.1 was issued provisional bill for Page 3 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined Rs.1,43,11,353.48ps. vide letter dated 18.12.2015, which is duly produced at"Annexure-H" (Colly.) along with calculation sheet thereof and forwarding letter. 2.3 The respondent no.1 was called upon to make representation against the issuance of the said bill, within seven days from the receipt of the said provisional bill. The respondent no.1 on 29.12.2015 produced copy of map issued by AUDA showing total area of plot nos.17, 18 & 19 and development permission issued by all for merger of plots issued by AUDA, duly produced at "Annexure-I"(Colly.) The respondent no.1 was heard on 4.2.2016 and final bill was issued amounting to the tune of Rs.1,43,11,353.48ps. Copies of the final bill along with calculation sheet and forwarding letter thereof are duly produced at Annnexure "J" (Colly).
2.4 The respondent no.1 preferred Appeal under Sec.127 of the Electricity Act, 2003 before the respondent no.2 by depositing 50% of the said final bill issued on 4.2.2016.
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3. Respondent No.2 allowed the appeal by the impugned judgment and order dated 20.1.2018 and quashed the final bill issued by the petitioner herein, dated 4.2.2016, to the tune of Rs.1,43,11,353.48ps and further directed to refund the 50% amount of the bill, which was deposited by the respondent no.1 by filing the said Appeal invoking Section 127 of the Electricity Act, 2008.
4. In view of the aforesaid, the petitioner approached this Court by filing the present petition seeking the following reliefs:
"10.(A) To allow this petition.
(B) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the judgment and order dated 20.1.2018 passed by the Chief Electrical Inspector, Gandhinagar in Appeal Vide order No.CEL/APPEAL/472/2018 and confirm the bill for Rs.1,43,11,353.48ps. issued by the petitioner.
(C) To stay, the execution, implementation and operation of the judgment and order 20.1.2018 passed by the Chief Electrical Inspector, Gandhinagar in Appeal vide order No.CEL/APPEAL/472/2018 pending admission, hearing and final disposal of this petition.Page 5 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023
NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined (D) To grant ad-interim relief in terms of Para-9 (C) hereinabove.
(E) To award the cost of this petition.
(F) To grant such other and further relief as may be deemed fit by this Hon'ble Court in the interest of justice."
5. Heard Ms. Lilu Bhaya, the learned advocate appearing for the petitioner.
5.1 Ms. Bhaya, the learned advocate for the petitioner herein submitted that the appellate authority though admitted that Letter of AUDA sanctioning merger of Plots was not submitted to the petitioner at any point of time prior to the issuance of provisional bill, erred in holding that the connection was released in Plot Nos. 17, 18 and 19 and that the same was authorized. It was submitted that the respondent No.1 had, right from the beginning i.e. from the first application seeking electricity connection and in all subsequent applications, for extension of load, mentioned that the electricity connection is required in Plot Nos. 18 and produced documents related to Plot No. 18 only.
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NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined 5.2 Placing reliance on the same, it was submitted that the electricity connection was released only for Plot No.18 and that the connection could not have been released for Plot Nos. 17 and 19.
5.3 It was submitted that the finding arrived at by the appellate authority that mere sanction of merger of Plots by AUDA, does not amount to release of connection by the petitioner in the merged plots, in view of the fact that the same was never within the knowledge of the petitioner Company, that the Plots were merged. 5.4 It was submitted that merely because the AUDA had merged the plots before release of connection, does not empower giving electricity connection in the plot other than where the connection demand was released, though that may be owned by the respondent no.1 only. Placing reliance on the aforesaid submissions, it was submitted that the impugned judgment and order dated 2.1.2018 passed by the respondent No.2, in Appeal vide order No. No.CE/APPEAL/473/2018 be quashed and set-aside. Page 7 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023
NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined 5.5 Ms. Bhaya, the learned advocate appearing for the petitioner has also placed reliance on the ration as laid down by this Court in 2010 (3) GLR 1917 and the order dated 6.7.2021 passed in Letters Patent Appeal No. 1368 of 2018.
6. Heard Mr. Gaurav Mathur, the learned advocate with Mr. Yashraj Champawat, the learned advocate appearing for Singhi & Co., appearing for the respondent No. 1.
6.1 Mr. Mathur, the learned advocate, at the outset submitted that no interference is called for in the impugned judgment and order passed by the Appellate authority. The appellate authority has rightly come to the conclusion that the plots in question stood merged by the order, dated 11.8.2011, and in view thereof, premises of the appellant units have been unaltered since the merger and having remained the same at the time of release of HT connection, that there was no physical extension made in the boundary of the premises and, therefore, the entire premises comprising of Plot Nos. 17, 18 and 19 Page 8 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined have been rightly construed for supply of electricity and hence, unauthorized use of electricity as contemplated by the petitioner herein is not justified. 6.2 Placing reliance on the aforesaid, it was submitted that the Textile Park vide letter dated 23.8.2011 allotted internal plot Nos. 17, 18 and 19 as one single Plot to the respondent herein. The said allotment letter is duly produced at page-96 Annexure "B". It was submitted in view of the above, the respondent herein installed CTPT line in the Energy Meter in the internal Plot No.19, though the connection was granted for Plot No.18. This exercise was undertaken, in view of the fact that, the petitioner herein was aware that Plot Nos. 17, 18 and 19 are in fact one single Plot. The connection was released by the petitioner to the appellant for premises admeasuring 15,388.65 sq. mtrs, being merged internal plot Nos. 17, 18 and 19. In view thereof, no interference is called for in the order impugned passed by the respondent authority and, therefore, the petition is required to be dismissed in limine. It was lastly submitted Page 9 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined that the findings arrived at by the respondent authority, are the findings of fact and, therefore, this Court will not exercise its extra-ordinary jurisdiction in the findings of the facts arrived at by the appellate authority and on that ground also, the petition requires to be dismissed.
7. Having heard the learned advocates appearing for the respective parties, the undisputed facts which emerge for the consideration of this Court are that the respondent herein applied for connection of 450 KVA at Plot No.18 of Vraj Integrated Textile Park, on 19.8.2011, which came to be granted by the respondent authority and connection came to be released by the petitioner herein on 5.9.2011 on he said Plot No.18 and an agreement came to be entered into between the petitioner and respondent No.2 herein on 2.11.2011, duly produced at Annexure "D". The respondent No.1 herein applied for extension of load for Plot No.18 from time to time, which came to be released by the petitioner herein, which is undisputed and the inspection being carried out by the petitioner, on 16.12.2015, the petitioner noticed Page 10 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined that the respondent No.1 was using electricity in Plot Nos. 17, 18 and 19 in the Vraj Integrated Textile Park, though respondent No.1 had applied for electricity connection for Plot No.18 only.
8. In the aforesaid set of facts, the agreement which was entered into between the petitioner and respondent No.1, on 2.11.2011, for 450 KVA, was for Block Nos. 827, 829, 830, 831 and 832, forming part of Plot No.18 of the Vraj Integrated Textile Park (Page-25)
9. In the opinion of this Court, it can be inferred that the said connection was granted from time to time by the petitioner herein for Vraj Integrated Textile Park, for Plot No.18 only. The petitioner herein has produced on record, a checking sheet and the calculation thereof, a joint inspection report at Annexure "G"(Colly) and provisional bill at Page-62, wherein the report by the Engineer is produced at Page-69.
The said checking was carried out in the presence of respondent No.1.
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10. It is the case of the petitioner that, when the electricity connection was granted only qua Plot No.18, any usage qua Plot Nos.17 and 19 which is forming part of check-sheet, which is produced at Page-62, the resultant effect of the same would be, unauthorized usage.
11. In the opinion of this Court, though the AUDA had merged all the Plots, before the connection came to be granted by the petitioner herein, by sanctioning the Plot to be merged on 11.8.2011 and the electricity connection came to be released by the respondent authority on 5.2.2012, for 450 KVA and the extension of load also came to be released from time to time. It appears that the same was never brought to the notice of the petitioner herein and when permission was sought for Plot No.18, an agreement to the said effect came to be entered into between the petitioner and the respondent No.1 also for Plot No.18, usage of electricity in Plot Nos. 17 and 19 could be construed to be an usage which was not authorized.
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12. At this stage, this Court deems it fit to refer to the order passed in LPA No. 1368 of 2018 wherein in an identical issue, which was considered by the Hon'ble Division Bench, the paras-3,4 and Analysis Para-13 onwards read thus:
"3. Thus, it appears from the aforesaid that the writ applicant has been allotted the Shed No.15B situated at the village :
Sanathal. The writ applicant is a consumer of the appellants. The writ applicant is in the business of packaging material and has a factory. For his manufacturing unit, the appellants provided electric connection with the contracted load of 100 HP. Later in point of time, in one auction proceedings conducted by the Gujarat State Financial Corporation, the writ applicant purchased the adjoining Shed No.19 for the purpose of expansion of his industry. Thus, the writ applicant became the owner of two Sheds i.e. Shed No.15B and Shed No.19 respectively.
4. It is not in dispute that the electric connection with the contracted load of 100 HP is in the Shed No.15B. After purchasing the adjoining Shed No.19, the writ applicant demolished the partition wall and extended the electric connection upto Shed No.19. This was noticed by the officials of the appellants during their visit to the manufacturing unit.
The appellants considered such extension of the electric connection to the Shed No.19 as illegal and resale of energy. In such circumstances, a supplementary bill amounting to Rs.3,95,065.13 was issued to the writ applicant. Page 13 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023
NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined ANALYSIS:
13. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the learned Single Judge committed any error in passing the impugned order.
14. The following facts are not in dispute:
[a] The electric connection was provided by the appellants to run a factory of packaging material on the Shed No.15B.
[b] The Shed No.19 purchased by the writ applicant, later in point of time, has no electric connection. [c] The wall between the Shed No.15B and Shed No.19 came to be demolished and both the Sheds were made one composite structure. However, on record, there are two Sheds i.e. Nos.15B and 19 respectively. [d] At the time of inspection, it was noticed that the electricity was being used in the Shed No.19 along with the Shed No.15B.
15. Bearing in mind the aforesaid, we may now look into the relevant provisions of the conditions of supply of electrical energy. The term "consumer", as defined under the conditions, reads thus:
"Consumer" means the owner or occupiers of the premises which are for the time being connected for a supply of electrical energy with the Board's distribution system and includes intending consumer."Page 14 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023
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16. The term "installation", as defined under the conditions, reads thus:
"Installation" means the whole of the electric wires, fittings, motors and apparatus erected and wired by or on behalf of the consumer on one and the same set of premises."
17. The terms "connected load", as defined under the conditions, reads thus:
"Connected load" shall mean the sum of the rated capacities of all the energy consuming devices on the consumers apparatus which can be operated simultaneously with the exemption of the equipments which are listed below:
For Residential Consumer Mixer Grinder Juicer Sewing Machines Hot Iron For Commercial Consumers Equipments kept for demonstration purpose only."
18. "The application for supply" is provided under clause 2 of the conditions. The same reads thus:
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NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined "Application for a supply" pr am additional supply of electrical energy must be made on the form affected hereto (Annexure A) copies of which are obtainable free of cost at any office of the Board. The application must be signed by the consumer."
19. Clause 24 is about "Unauthorised Supply of Energy". The same reads thus:
"24. Unauthorised Supply of Energy:
The consumer shall not supply a part of whole of the energy purchased by him from the Board to any other persons unless, (1) he holds a suitable sanction or licence for distribution and sale of energy granted by the State Government, or (2) There is special contract or permission granted by the Board permitting the consumer to supply energy in accordance with such permission. If a consumer is detected so supplying energy unauthorisedly at any time, his supply shall be disconnected without serving notice."
20. Clause 33(A) is about "malpractice and theft of energy". The same reads thus:
"33 (A) Malpractice and Theft of Energy Malpractice Page 16 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined 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 cases:
(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 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."
21 Clause 34 is about "payment for energy dishonestly used or abstracted or maliciously wasted or diverted". The same reads thus:
"34. Payment for energy dishonestly used or abstracted or maliciously wasted or diverted.Page 17 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023
NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined Where it is established to the satisfaction or Board's officer that a consumer has dishonestly abstracted, used, consumed or maliciously caused energy to be wasted, or diverted, the value of the electrical energy thus abstracted, used, consumed, wasted or diverted shall be assessed by such officer for the period and in the manner specified hereinbelow and the value of energy so assessed shall be collected by including the same in the next bill or by a separate bill. Such amount shall always be deemed to be the arrears of electricity dues for all purposes.
Provided that the value of the electricity energy so assessed to have been abstracted, used, consumed, wasted or diverted shall be subject to review by the Appellate Authority on the representation/appeal being filed by the consumer in the manner stated hereinbelow.
Provided further that in the case of a consumer detected to have committed or to have been committing pilferage of energy in addition to his liability to pay the amount towards the value of the electrical energy assessed to have been pilfered as computed in the manner specified hereinbelow (subject of course to the appeal to the Appellate Authority in regard to the quantum of energy so assessed), the power supply to such consumer shall be disconnected and shall be kept disconnected for a period of 30 days from the date of disconnection of power supply on the ground of pilferage of energy subject to review by the Page 18 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined Review Committee of the Board or until a minimum amount specified hereinbelow is paid against the energy so assessed, whichever is later and the authority of such disconnection may be be exercised by the Board at any time, but generally as soon as possible, after the detection of pilferage of energy. Subject to provisions of the second proviso hereinabove, when a consumer on first occasion is found wasting, directly using / abstracting / consuming energy dishonestly or maliciously, is aggrieved by the assessment made by the Board's Officer in respect of the monthly quantum of energy deemed to have been consumed and/or the period considered therefor, he shall pay an amount equivalent to 15% of the value of the energy so assessed before the supply is reconnected. The another 15% of the amount of the supplementary bill shall be payable within 30 days of reconnection. Board shall process the party / consumer's appeal on payment of 15% amount. However, hearing shall be take only after receipt of second installment. However, if the consumer on second or subsequent occasion is found wasting, directly using / abstracting / consuming energy dishonestly or maliciously he shall have to pay full amount of the energy so assessed before the supply is reconnected."
22. Clause 35 provides for "disconnection for malpractice and compensation thereof". The same reads thus:
"Disconnection for malpractice and compensation thereof Page 19 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined Where any consumer is detected for the commission of any malpractice with reference to his use of electrical energy, the Board may, without prejudice to its other rights, cause consumer's supply to be disconnected forthwith. The supply may be restored a the discretion of the Board if the consumer compensates the Board in the manner prescribed thereunder qualified for reconnection by removing the cause of disconnection and takes such other actions as may be directed by the Board in this context."
23. Annexure : A attached to the conditions provides for the 'Form of application for supply of electricity". The relevant part reads thus:
"ANNEXURE 'A' FORM OF APPLICATION FOR SUPPLY OF ELECTRICITY TO, THE GUJARAT ELECTRICITY BOARD
1. I/we hereby request you to supply electrical energy to the premises owned/occupied by me/us hereinafter described.
2. I/We hereby agree to take supply and pay for the said energy, service connection and other dues including the deposit of such security as may be demanded in accordance with the rates and conditions of supply of the Board in force from time to time and further declare and agree to take supply of energy for the under-mentioned purpose for my/our bonafide use for a period not less than two years from the date of commencement of the supply or and in the case of Page 20 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined reconnection of supply (where the initial period of agreement is completed) after a period of six months from the ...(illegible).. or not less than one year from date of reconnection.
3. I/We also undertake to receive supply within three months from the date the Board intimate that it is ready to give supply to our premises failing which I/We undertake to pay the Board the minimum charge as may be applicable.
4. This requisition is for
(a) a new service
(b) a re-connection
(c) an alteration to my existing installation
(d) a temporary service
(e) a change of name from Shri .....
5. Describing of the premises:
House No. Land survey No. Street Town/village District Owner's name owner's address"
24 Having regard to the aforesaid provisions, we are of the view that Ms. Bhaya is right in her submission that the learned Single Judge committed an error in taking the view that the case is one of mere expansion of the factory upon purchase of the adjoining Shed by demolishing the partition and the same would not amount to violation of the conditions Page 21 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined of supply of electrical energy as framed by the Gujarat Electricity Board referred to above.
25 We shall first concentrate on the fact that the electrical installation is in the Shed No.15B. 'Installation' means the whole of electric wires, fittings, motors, on one and the same set of premises. The writ applicant, as a consumer, could be said to be the owner or occupier of the premises, which are connected for a supply of electrical energy with the Board's distribution system. Malpractice, as explained in condition No.33(A) referred to above, would include unauthorized addition, later on, and / or extension to the consumer electrical installation without permission of the Board. The case of the appellants is that so far as the Shed No.19 is concerned, there is no electrical connection and it being a separate premises or rather a different premises, the extension of electrical connection from the Shed No.15B to Shed No.19 would amount to unauthorized addition falling within the ambit of malpractice and theft of energy. 26 We are of the view that merely because the partition wall dividing the Shed No.15B and Shed No.19 came to be demolished by itself will not make the two plots upon merger as one composite plot. For the appellants, the Shed No.19 is altogether a new premises and demolition of the partition wall would not save the situation. If the writ applicant wants to use the electrical connection of Shed No.15B also in Shed No.19, the same could not have been done without the prior permission of the appellants.
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27. The form of application for supply of electricity referred to above would fortify the view which we propose to take in the present appeal. When a request is made to supply electrical energy to the premises owned / occupied, the description of the premises has to be given which would include the house number, land survey number, street, etc. The boundaries are marked or demarcated for the supply. Anything beyond the same would amount to unlawful extension.
28 We may look into a Division Bench decision of this High Court in the case of Paschim Gujarat Vij Co. Ltd. vs. Paras Ship Breakers Ltd reported in 2010 (3) GLR 1917. We may clarify that this judgement dealt with the provisions of the Electricity Act, 2003. The present litigation is prior in point of time. However, on behalf of the consumer, an interesting argument was canvassed that there is no illegality on the part of the consumer if he uses the electric connection on the adjacent plot for its own use may be for another plot. Such argument was repelled by this Court after due consideration of the definition of the term "premises", as defined under Section 2(51) of the Act, 2003. The Court also considered Section 126 of the Act, which provides for mechanism to deal with unauthorized use of electricity. This Court observed as under:
"10.6 Quite apart from the above conclusion that we have reached we are of the opinion that case of the consumer would also fall under subclause(iv) of Clause(b) of the explanation namely "for the purpose other than for which the usage of electricity was authorised" From the original application filed by the Page 23 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined consumer for grant of electricity connection, it can be seen that in item no.13 to a question "Whether supply is asked for (i) expansion or (ii) extension of the existing industry or (iii) for altogether anew industry in the State, the consumer had stated "New Industry".
The exact location (namely plot no.5) where the factory of the consumer was situated was also indicated along with the said application. Thus the purpose for which electricity connection was demanded and granted was for setting up a new industry in plot no.5. Any other use would be covered also under Sub-clause(iv) of clause(b) of the explanation namely "for the purpose other than for which the usage of electricity was authorised".
11. On this basis, we are of the view that this is a clear case of unauthorized use of electricity covered under Section 126 of the Act. We may recall that the erstwhile consumers namely Khodiyar Rolling Mills and Paras Ship Breakers who had factories situated in plot no. 2/B and 4 respectively had defaulted in paying their electricity bills. Their electricity connections were therefore, disconnected. In ordinary circumstances, by virtue of agreement between the parties, particularly, if those consumers had sold their plots to some other entities through private negotiations, the Electricity Company would have resisted granting any new electric connection on such premise without the past dues being paid up in toto either by the previous owner or by the new purchaser. If we were to accept the contention of the consumer that all that the consumer has done is an innocuous extension of electricity connection in a neighboring plot, use of which is being Page 24 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined enjoyed by the same consumer for which the consumer also pays the full electricity charges, we would be negating and totally bypassing the right of the Electricity Company to seek full recovery of its past dues of electricity before granting new electrical connection on the same premises.
12. We also cannot lose sight of the fact that the Electricity Companies have to manage their affairs on the basis of estimated demand of electricity. Such estimation can be made only on the basis of particular load authorized to the consumer. Permitting such extensions without any restrictions would result into as has happened in the present case, drawing of electricity in excess of authorised load." 29 We are of the view that the writ applicant could not have extended the electrical connection to Shed No.19 and could not have used the same without prior permission of the authority concerned.
30 In such circumstances referred to above, this appeal succeeds and is hereby allowed. The impugned order passed by the learned Single Judge is hereby set aside. Consequently, the Special Civil Application No.12073 of 2002 filed by the writ applicant stands rejected."
13. Considering the facts of the present case that the petitioner herein released electricity connection for Plot No.18 in Vraj Integrated Textile Park, for a connection of Page 25 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined 450 KVA, for which extension of load came to be granted from time to time, any usage in any other plot, apart from Plot No.18, could be said to be unauthorized use.
14. In view thereof, in the opinion of this Court, while passing the impugned order dated 20.1.2018, the appellate authority has proceeded to allow the appeal filed by the respondent consumer, taking into consideration that the Plots in question merged on 11.8.2011, before the respondent No.1 applied for electricity connection, which came to be released by the petitioner herein on 5.2.2012.
14.1 In the opinion of this Court, the respondent having applied for Plot No.18, the petitioner herein granted the supply of the same. Considering the agreement is also for Plot No.18. The submissions of the respondent herein that the respondent authority had released electricity connection for premises admeasuring 15,388.65 sq. mtrs being amalgamated internal plot Nos.17, 18 and 19, does not weigh with this Court, considering the fact that the Page 26 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023 NEUTRAL CITATION C/SCA/4567/2018 ORDER DATED: 02/08/2023 undefined agreement is with regard to Plot No.18, which include Block Nos. 827, 829, 830, 831 and 832.
15. In view thereof, the order impugned dated 20.1.2018 passed by the appellate authority i.e. respondent No.2 herein in Appeal vide Order No. CEI/APPEAL/472/2018, is quashed and set-aside, remanding the matter back to the Appellate Authority, to decide afresh, after providing an opportunity of hearing to both the sides and in line with the position of law, as referred above. The aforesaid exercise be undertaken as expeditiously as possible.
Exercising extra-ordinary jurisdiction under Article 226 of the Constitution of India, the present petition stands partly allowed.
(VAIBHAVI D. NANAVATI,J) SAJ GEORGE Page 27 of 27 Downloaded on : Sat Sep 16 23:56:54 IST 2023