Gujarat High Court
Paschim Gujarat Vij Co. Ltd Through ... vs Millenium Industries C/O Mahendrabhai ... on 24 June, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/152/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 152 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI Sd/-
=========================================
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 ?
===========================================================
PASCHIM GUJARAT VIJ CO. LTD THROUGH DEPUTY ENGINEER....Petitioner
Versus
MILLENIUM INDUSTRIES C/O MAHENDRABHAI N MAKWANA &
1....Respondents
=========================================
Appearance :
MR SP HASURKAR, ADVOCATE for the Petitioner.
MS RITU R. GURU, AGP for the Respondent No.2.
RULE SERVED BY DS for the Respondent No.1.
=========================================
CORAM : HONOURABLE MR.JUSTICE A.J.DESAI
Date : 24/06/2016
ORAL JUDGMENT
1. By way of the present petition under Article 226 of the Constitution of India, the petitioner Company has challenged the order dated 29.7.2010 passed by the Appellate Authority & Page 1 of 5 HC-NIC Page 1 of 5 Created On Thu Jun 30 01:07:39 IST 2016 C/SCA/152/2011 JUDGMENT Assistant Electrical Inspector in Appeal No.25 of 2010 by which the supplementary bill issued by the petitioner was quashed and set aside and has directed the petitioner Company to issue a bill calculating the consumption as per the well known ABCD formula enumerated in the Gujarat Electricity Regulatory Commission (GERC) Electricity Supply Code and Related matters Regulations issued by the Gujarat Electricity Regulatory Commission being Notification No.11 of 2005 and as per the same, the amount of supplementary bill was reduced to Rs.17,347/- and since the respondent No.1 had deposited an amount of Rs.20,000/- being 50% of the supplementary bill, an amount of Rs.2653/- was ordered to be refunded to the respondent No.1.
2. Though served, the respondent No.1 - consumer has chosen not to appear before this Court either personally or through any advocate. The respondent No.2 i.e. Assistant Electricity Electrical Inspector has appeared through learned Assistant Government Pleader and has filed affidavit-in-reply and opposed this petition.
3. The brief facts arise from the record are as under :-
3.1 That the petitioner is in the business of supply of electricity and distributing the supply in the western part of State of Gujarat. The respondent No.1 is the consumer of petitioner Company and was given two different electric connections, one for commercial use and another for industrial use. Two separate meters were installed at the site of the consumer. On 22.1.2010, surprise inspection was carried out in the factory premises of the consumer and it was found that the consumer was unauthorizedly using supply of industrial connection for commercial purpose. The Page 2 of 5 HC-NIC Page 2 of 5 Created On Thu Jun 30 01:07:39 IST 2016 C/SCA/152/2011 JUDGMENT respondent No.1 consumer pulled out wires from meters of commercial connection and inserted wires in industrial connection, thereby by-passed commercial connection by supply from industrial connection.
3.2 Having found the same, a checking report was prepared in presence of representative of the consumer and supplementary bill was issued to the respondent No.1 under Section 126 of the Electricity Act, 2003 to the tune of Rs.39,001.60. The said supplementary bill was challenged by the consumer by way of filing appeal. The Appellate Authority after hearing all concerned accepted that the respondent No.1 - consumer had changed the connections from commercial purpose to industrial connection for which the tariff is low. However, the Appellate Authority held that since it is unauthorized consumption of electrical energy, ABCD formula provided under the Notification No.11/2005 would be applicable and accordingly, calculated the same and reduced the supplementary bill to Rs.17,347/- instead of Rs.39,001.60 ps. issued by the petitioner Company and since the respondent No.1 had deposited an amount of Rs.20,000/- being 50% of the supplementary bill, the petitioner was directed to refund the amount to the tune of Rs.2653/- to the respondent No.1. Hence this petition.
4. Mr. S. P. Hasurkar, learned advocate appearing for the petitioner would submit that the order passed by the Appellate Authority is contrary to the provisions of the Electricity Supply Code. It is not the case of the petitioner that the consumer has tampered with the meter or that the meter was not recording proper consumption. He would submit that the only allegation against the consumer was to the effect that he has bypassed the Page 3 of 5 HC-NIC Page 3 of 5 Created On Thu Jun 30 01:07:39 IST 2016 C/SCA/152/2011 JUDGMENT meter meant for recording the commercial connection. The wires were changed to industrial connection and whatever consumption was made by the consumer was properly recorded by the meter.
By taking me through the amended provisions of the said Code, particularly, the amendment made by notification dated 25.9.2006 issued by the Gujarat Electricity Regulatory Commission, he would submit that under Clause 10 of the said notification, it has been clarified that if the consumed electricity is properly recorded in the meter, ABCD formula should not be applicable. He has, therefore, submitted that the Appellate Authority has erred in calculating as per the ABCD formula which is not applicable in the present case. He, therefore, would submit that the petition requires consideration and hence, the impugned order is required to be quashed and set aside.
5. Though served, the consumer - respondent No.1 herein has chosen not to appear before this Court.
6. Having heard learned advocate appearing for the petitioner and having gone through the documents annexed along with the present petition, I am of the opinion that it is not in dispute that the meter was tampered. It is further pertinent to note that there is an amendment to the Gujarat Electricity Regulatory Commission (Electricity Supply Code and related matters) (Second Amendment) Regulation, 2006 vide Notification dated 25.9.2006. The item No.8 of the said notification reads as under :-
"ii) At the end of 'Load Factor and Diversity Factor table', following paragraph shall be inserted -Page 4 of 5
HC-NIC Page 4 of 5 Created On Thu Jun 30 01:07:39 IST 2016 C/SCA/152/2011 JUDGMENT "The above mentioned ABCD formula shall not be applicable to the cases where the number of units of electricity consumed is duly metered.
Only in cases of usage of electricity for purpose other than the purpose authorized by licensee viz. for actual commercial use against authorized domestic use and supply of electricity to another person (release of energy) etc., the assessment shall be made on the basis of proportionate units for the load found as 'unauthorized'.
7. In view of the aforesaid amendment, I am of the opinion that the respondent No.2 has committed an error apparent on the record for interpreting the regulations framed by Electricity Regulatory Authority and ought not to have utilized ABCD formula for interfering in supplementary bill which was even otherwise rightly calculated by the petitioner Company.
8. Hence, the present petition is allowed. The order dated 29.7.2010 passed by the Appellate Authority & Assistant Electrical Inspector in Appeal No.25 of 2010 is hereby quashed and set aside. Rule is made absolute to the above extent. There shall be no order as to costs.
Sd/-
(A.J.DESAI, J.) Savariya Page 5 of 5 HC-NIC Page 5 of 5 Created On Thu Jun 30 01:07:39 IST 2016