Gujarat High Court
Gujarat Electricity Board Now ... vs Ushaben Vijay Sharma & on 25 November, 2014
Author: Jayant Patel
Bench: Jayant Patel, C.L. Soni
C/CA/10639/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 10639 of 2014
In
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 852 of 2014
In
SPECIAL CIVIL APPLICATION NO. 16944 of 2004
With
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 852 of 2014
In
SPECIAL CIVIL APPLICATION NO. 16944 of 2004
With
CIVIL APPLICATION (STAMP NUMBER) NO. 10270 of 2014
In
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 852 of 2014
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GUJARAT ELECTRICITY BOARD NOW CONVERTED AS & 3
Versus
USHABEN VIJAY SHARMA & 1
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Appearance:
MR DIPAK R DAVE, ADVOCATE for the Applicants
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE C.L. SONI
Date : 25/11/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. Civil Application No.10639 of 2014 is for condonation of delay of 295 days in preferring the appeal against the order passed by learned Single Judge in Special Civil Application No.16944 of 2004, whereby learned Single Judge has for the reasons recorded in the order allowed the petition and quashed the order passed by the Appellate Committee.
2. As the delay was for a longer period of 295 days, we have heard learned counsel Mr. Dave for the applicants-appellants on the Page 1 of 5 C/CA/10639/2014 ORDER aspect of condonation of delay as well as on the aspect of merits of the main appeal.
3. On the aspect of delay, the applicants have given explanation at para 2 of the application which, in our view, cannot be said as sufficient to exercise the discretion for condonation of such a long delay of 295 days. At this stage, we may refer to the decision of the Apex Court in the case of Oriental Aroma Chemical Industries Limited Vs. Gujarat Industrial Development Corporation and Another reported in (2010)5 SCC 459, wherein the question arose for consideration of the exercise of discretion for condonation of long delay. The Apex Court in the said decision at para 15 to 16 observed thus:
15. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, (L.A.) v. Katiji, N. Balakrishnan v. M Krishnamurthy and Vedabai v. Shantaram Baburao Patil.
16. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Land Acquisition Officer, State of Haryana v. Chandra Mani, State of U.P. v.
Harish Chandra, State of Bihar v. Ratan Lal Sahu, State of Nagaland v. Lipok AO and State (NCT of Delhi) v. Ahmed Jaan.
The aforesaid shows that when delay is for a longer period, the Court will take strict view of the matter and if delay is for a shorter period, lenient view may be taken.
4. Considering the aforesaid legal position read with the explanation given at para 2, we are not at all satisfied that the delay Page 2 of 5 C/CA/10639/2014 ORDER is properly explained nor it can be said that the applicants- appellants were prevented by sufficient reasons for not preferring the appeal within the limited period of time.
5. Apart from the above, on merits of the appeal, learned counsel for the appellants submitted that it was a case of direct electricity connection by bypassing the meter and therefore, whether the meter was in order or not cannot be said as the circumstance to be considered. It was submitted that consequently, whether the Appellate Committee considered the laboratory test report or not, would not make any difference so far as its decision is concerned. It was submitted that learned Single Judge has erroneously quashed the order of the Appellate Committee and therefore, there is merit in the appeal.
6. Examination of the aforesaid contentions shows that at the time when the checking was made, it was found that there was tampering to the wire insulation going inside the meter but there is no evidence to show that there was direct wiring by bypassing the meter or there was direct connection taken from the wire going inside the meter. The case of the appellants, as contended by learned counsel, is that the disc of the meter was not running but the electrical gazettes were functioning. It is on account of the same, irregularity was alleged and the bills were issued. It is an admitted position that as per the laboratory test report dated 8.9.2003, the meter is found to be in order and not only that but it has been specifically opined that there is no tampering to the seals over the meter box or the inside seals of the body of the meter. In our view, in absence of any evidence recorded in the checking-sheet that there was direct connection by bypassing the meter or that the power was taken by bypassing the meter, it cannot be said that any misconduct or malpractice was committed, more particularly when as per the laboratory test report, the meter was found in order and no evidence was found for tampering the meter or its body. Had it been a case Page 3 of 5 C/CA/10639/2014 ORDER where the meter was found in order, but there was evidence that there was direct wire connection or electric supply was taken by bypassing the meter, it might stand on different footing and different consideration. In any event, in the circumstances, under which the case was to be considered by the Appellate Committee, the laboratory test report of the meter was one of the vital and relevant aspects to be considered by the Appellate Committee. Learned Single Judge found that the said laboratory test report is not at all considered by the Appellate Committee. Learned counsel Mr. Dave appearing for the appellants is not in a position to show that the laboratory test report was considered by the Appellate Committee. Under these circumstances, it cannot be said that learned Single Judge has committed error in quashing the order of the Appellate Committee. The aforesaid is coupled with the aspect that as recorded herein-above, there is no evidence to show to us that there was direct cabling or that the electric supply was taken by bypassing the meter. Hence, we find that there is no case on merit to be considered in the appeal.
7. In view of the above, if the appeal is lacking merit, no useful purpose would be served in taking too lenient view on the aspect of delay and then to consider the merit of the appeal at a later stage.
8. In view of the above, the application for condonation of delay is not granted. Hence, Civil Application No.10639 of 2014 shall stand dismissed.
9. As delay has not been condoned, Letters Patent Appeal (Stamp) No.852 of 2014 and Civil Application (Stamp) No.10270 of 2014 shall stand disposed of.
(JAYANT PATEL, J.) Page 4 of 5 C/CA/10639/2014 ORDER (C.L.SONI, J.) Omkar Page 5 of 5