Gujarat High Court
Executive Engineer vs Aditi Re-Rolling Mills P.Ltd. & on 7 September, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/18064/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18064 of 2006
WITH
SPECIAL CIVIL APPLICATION NO. 20522 of 2006
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR.JUSTICE A.J.DESAI Sd/-
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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 NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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EXECUTIVE ENGINEER....Petitioner
Versus
ADITI RE-ROLLING MILLS P.LTD. & 1....Respondents
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Appearance :
1. Special Civil Application No.18064 of 2006
MS LILU K BHAYA, ADVOCATE for the Petitioner.
MR HARSHIT S TOLIA, ADVOCATE for the Respondent No.1.
MS RITU R. GURU, AGP for the Respondent No.2.
2. Special Civil Application No.20522 of 2006
MR HARSHIT S TOLIA, ADVOCATE for the Petitioner.
MS LILU K BHAYA, ADVOCATE for the Respondent Nos.1 & 2.
MS RITU R. GURU, AGP for the Respondent No.3.
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CORAM : HONOURABLE MR.JUSTICE A.J.DESAI
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C/SCA/18064/2006 JUDGMENT
Date : 07/09/2016
COMMON ORAL JUDGMENT
1. Special Civil Application No.18064 of 2006 has been preferred by the Electricity Company challenging the judgment and order dated 22.5.2006 passed by the Electrical Inspector - Appellate Authority constituted under Section 127 of the Indian Electricity Act, 2003, in Appeal No.26 of 2005 by which the appeal preferred by the Consumer (petitioner of Special Civil Application No.20522 of 2006) was partly allowed and the supplementary bill issued by the Electricity Company to the tune of Rs.84,48,624.78 ps. has been cancelled and the Electricity Company was directed to issue a supplementary bill of Rs.3,72,898.69 ps. and also directed the Electricity Company to refund an amount of Rs.24,43,311.30 ps. which was deposited by the consumer at the time of preferring appeal.
2. Special Civil Application No.20522 of 2006 has been preferred by the consumer seeking direction against the Electricity Company to refund an amount of Rs.24,43,311.30 ps. lying with the Electricity Company as per the order of the Appellate Authority.
3. In each of the petitions, respective respondents have filed affidavit-in-reply and opposed grant of any reliefs.
4. The brief facts arise from the record are as under :-
4.1 That the consumer is in the business of re-rolling of steel and having electric connection at Navagam, Tal. Shihor, Dist.
Bhavnagar. The consumer had high tension connection having 475 KVA at the unit. That on 20.7.2005, team of the Electricity Company visited the unit of the consumer where the meter was Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Sep 10 01:38:33 IST 2016 C/SCA/18064/2006 JUDGMENT installed and rojkam was prepared on the same day in presence of the representative of the consumer. As per the said checking report, it was found that 7 seals were found tampered and the meter was running slow to the extent of 60.096%. The Electricity Company having found that the consumer has committed theft of electricity, supplementary bill was issued on 25.7.2005 under Section 135 of the Electricity Act to the tune of Rs.84,48,624.78 ps.
4.2 After issuance of supplementary bill, the consumer filed Special Civil Suit No.87 of 2005 in the Court of learned Additional Senior Civil Judge, Bhavnagar and prayed for the relief that the consumer be permitted to prefer an appeal under Section 127 of the Act to the Electrical Inspector on payment of 33% of the supplementary bill. The learned Civil Court accepted the said prayer of the consumer and vide interim order dated 2.9.2005 allowed the consumer to approach Appellate Authority.
4.3 Being aggrieved with the said order, the Electricity Company preferred Appeal From Order No.332 of 2005 before this Court. It was contended by the Electricity Company that since the case is of theft of electrical energy, the action undertaken by the Company is in accordance with law and, therefore, the order of the learned Civil Court be quashed and set aside. The coordinate Bench of this Court vide oral judgment dated 21.10.2005 dismissed the said Appeal From Order.
4.4 Thereafter, Appeal No.26 of 2005 was proceeded before the Electrical Inspector - Appellate Authority and vide impugned order dated 22.5.2006, partly allowed the appeal preferred by the Consumer and the supplementary bill issued by the Electricity Company to the tune of Rs.84,48,624.78 ps. has been cancelled and Page 3 of 7 HC-NIC Page 3 of 7 Created On Sat Sep 10 01:38:33 IST 2016 C/SCA/18064/2006 JUDGMENT the Electricity Company was directed to issue a supplementary bill of Rs.3,72,898.69 ps. and also directed the Electricity Company to refund an amount of Rs.24,43,311.30 ps. which was deposited by the consumer at the time of preferring appeal.
4.5 Hence this petition.
5. Ms. Lilu K. Bhaya, learned advocate appearing for the Electricity Company would submit that since the civil proceedings were pending before the Civil Court as well as before this Court and subsequently before the Electrical Inspector, the tempered meter which was removed from the place on 20.7.2005 i.e. date of checking, could be sent for examination in the Laboratory only on 19.6.2006. The said meter was checked by the Laboratory in presence of the representative of the consumer. She has taken me through the report dated 19.6.2006 and would submit that the case put forward by the Electricity Company at the initial stage about tampering with the meter is supported by the Laboratory Testing Report and would submit that the Appellate Authority has committed an error in not relying upon the checking report. She, therefore, would submit that the petition preferred by the Electricity Company is required to be allowed. She would submit that it is a case of theft of electricity and that the consumer has inserted foreign articles which proves that the consumer has indulged in theft of electricity and, therefore, the petition be allowed and the impugned order passed by the Appellate Authority be quashed and set aside.
6. On the other hand, Mr. Harshit S. Tolia, learned advocate appearing for the consumer would submit that though the meter was removed from the unit of the consumer on 20.7.2005, Page 4 of 7 HC-NIC Page 4 of 7 Created On Sat Sep 10 01:38:33 IST 2016 C/SCA/18064/2006 JUDGMENT the same was sent for examination in the Laboratory after a period of about 11 months i.e. that too subsequent to the order passed by the Appellate Authority. He would further submit that the Appellate Authority while dealing with the appeal filed by the consumer has considered all the aspects of the matter and has rightly passed the impugned order which does not call for any interference. He, therefore, would submit that the petition filed by the Insurance Company be dismissed and the amount be refunded to the consumer as per the order of the Appellate Authority.
7. I have heard learned advocates appearing for the respective parties. I have also perused the checking-sheet, impugned order dated 22.5.2006 passed by the Appellate Authority. I have also considered the fact that after issuance of supplementary bill, the consumer approached the Civil Court by way of Special Civil Suit and the said proceedings ultimately came to an end on 21.10.2005 when the coordinate Bench of this Court dismissed Appeal From Order preferred by the Electricity Company. In my opinion, the Electricity Company was trying to get the issue resolved by this Court with regard to civil proceedings and hence, it may not have sent the meter for checking to the Laboratory. It is also true that the Electricity Company has sent the meter to the Laboratory subsequent to the order passed by the Appellate Authority. However, the representative of the consumer who had remained present at the time of checking at the Laboratory on 19.6.2006 when the meter was examined by the Laboratory in detail, has not raised any objection about the same. Hence, I am of the opinion that there is no delay in referring the meter to the Laboratory. It is true that the Appellate Authority had no occasion to examine the Laboratory Report which has been received subsequent to the order passed by the Appellate Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Sep 10 01:38:33 IST 2016 C/SCA/18064/2006 JUDGMENT Authority. I have also considered the fact that the Appellate Authority has passed the impugned order on the basis of the MRI Data submitted before him by the Electricity Company. Therefore, I am of the opinion that if the appeal is remanded to the Appellate Authority for fresh consideration, interest of justice would be served.
8. Considering the totality of the facts and circumstances of the case, I am of the opinion that Special Civil Application No.18064 of 2006 requires consideration and hence, the same is allowed. The order dated 22.5.2006 passed by the Electrical Inspector - Appellate Authority in Appeal No.26 of 2005 is hereby quashed and set aside. The appeal is remanded to the Electrical Inspector - Appellate Authority for deciding the same afresh. The Electricity Company as well as the Consumer are permitted to file their submissions / evidence / representations etc. before the Electrical Inspector - Appellate Authority within a period of 8 weeks from today. The Electrical Inspector - Appellate Authority is hereby directed to decide the appeal after giving opportunity of hearing to all concerned and after examining the evidence that may be produced by both the parties on record and shall pass appropriate order in accordance with law, without being influenced by its earlier order as well as any observations made in this order. It would be open for the Consumer as well as the Electricity Company to raise all contentions which are available in accordance with law. The Electrical Inspector - Appellate Authority shall decide the dispute with regard to whether it is a case of malpractice or theft of electricity. The Electrical Inspector - Appellate Authority shall complete the entire exercise and pass appropriate order within a period of 6 weeks thereafter. Rule is made absolute to the above extent.
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C/SCA/18064/2006 JUDGMENT
9. With the aforesaid observations and directions, Special Civil Application No.20522 of 2006 stands disposed of. The prayer of the consumer with regard to refund of the amount shall be subject to the order that may be passed in the appeal proceedings by the Electrical Inspector - Appellate Authority. Rule is discharged.
Sd/-
(A.J.DESAI, J.) Savariya Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Sep 10 01:38:33 IST 2016