Gujarat High Court
Sarfaras vs Paschim on 22 September, 2008
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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SCA/1758920/2006 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 17589 of 2006
============================================
SARFARAS
INDUSTRIES - Petitioner(s)
Versus
PASCHIM
GUJARAT VIJ CO. LTD., - Respondent(s)
============================================
Appearance
:
MR KETAN
SHAH FOR TUSHAR MEHTA for Petitioner(s) : 1,
MS
LILU K BHAYA for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 22/09/2008
ORAL
ORDER
1. Rule.
Ms. Lilu Bhaya, learned advocate, waives service of rule on behalf of the respondent-Electricity Company.
2. This petition under Article 226 of the Constitution of India is filed by the petitioner who had obtained the electricity connection from the respondent-Board having consumer No.84762/00198/8.
3. It is the case of the petitioner that on 12.12.2003, the electrical installation of the petitioner was checked by the officer of the respondent Board, and it was alleged that the connected load was 174 HP against the contract load of 124 HP. The checking sheet was prepared on the same day and representatives of the petitioner had accepted the same under the protest. Consequently, supplementary bill dated 6.1.2004 for an amount of Rs.2,87,611.50 ps. was issued to the petitioner by the respondent considering the case of the petitioner as mal practice. The amount of Rs. 71,903/- was deposited by the petitioner on 23.1.2004 so as to prefer an appeal and it was contended in the appeal preferred by the petitioner that on 5.9.2003, when a new meter was installed, check sheet was prepared and connection was loaded as 114 HP and on 29.10.2004, the MRI was taken of the meter, were also connected load is mentioned as 114 HP. Thus, according to the petitioner on the inspection being carried out by the checking squad on 12.12.2003 connected load as mentioned as 174 HP is without any basis.
3.1. It was, therefore, requested to the appellate authority of the Board that supplementary bill issued pursuant to the impugned order deserves to be quashed and set aside.
4. The appellate authority by order dated 21.12.2004 in Appeal No. 3/25 rejected the submissions of the appellant and it was found that on the date when checking squad inspected the electrical installation of the petitioner, connected load was 174 HP inspite of the contracted load of 124 HP and thus, mal practice was committed by the petitioner using unauthorised extra load of 50 HP and accordingly, the petitioner was forwarded the supplementary bill.
5. Upon challenge to the above order, by filing Special Civil Application 1102/2005 by the petitioner on the ground that the order passed by the appellate authority was devoid of reasonings and it was non-application of mind, after hearing the parties the learned Single Judge of this Court by the order dated 28.3.2005 remanded the matter to appellate authority for deciding the appeal afresh on its own merits and in accordance with law and after considering the submissions which was raised in the appeal memo and to pass the order within 3 months from the date of receipt of the order.
6. The appellate authority after hearing the petitioner and the representative of the Board passed a fresh order on 9.6.2005 and it was specifically noted by the appellate authority that appellant had not submitted any additional technical evidence in support of his appeal and after considering the submissions of the appellant as well as the representative of the Board it was found that connected load of 174 HP was more than the contracted load of 124 HP as found by the checking squad on 12.12.2003 and thus, what is necessary is for the appellate committee is to see that whether the supplementary bill which was issued as per condition No.35 was just and proper in the backdrop of the above facts. According to appellate authority nothing new was submitted to justify any alteration in the previous order, the appeal came to be dismissed.
7. Shri K.D.Shah, learned advocate, appearing for the petitioner submits that the order dated 9.6.2005 passed by the appellate authority after remand by this Court vide order dated 28.3.2005 in Special Civil Application No.1102/2005, is mere repetition of earlier order dated 21.12.2004 passed in appeal No.3/25 and no reasonings have been assigned to arrive at conclusion that supplementary bill issued to the petitioner pursuant to the report of the checking squad on 12.12.2003 about excess load of 50 HP connected to the installation of the petitioner inspite of contracted load of 124 HP. Learned advocate, therefore, submits that appellate authority has passed the above order without application of mind and defiance to the directions given by this Court in the order dated 28.3.2005 passed in Special Civil Application No.1102/2005. It is further submitted that the appellate authority has failed to notice that on earlier occasion when the new meter was supplied and meter was checked on 5.9.2003 consumption was 114 HP and even subsequently also, when checking party had collected MRI on 29.10.2004, it was 114 HP. Thus, the above submissions of the appellant were not dealt with. It is next contended that MRI data was not supplied to the petitioner and, therefore, also the impugned order deserves to be quashed and set aside.
7.1. Learned advocate further produced on record two orders passed in the case of similarly situated consumers in the case of M/s. Vardhaman Processors, Pipodara v. The Gujarat Electricity Board & The E.E., (O&M) GEB, Dhna (Ind.) Division in the appeal No. 93/2002 dated 4.2.2003and another order dated 27.9.2002 in the case of M/s. Jai Hanuman Dyeing & Printing Mills Pvt. Ltd., GIDC, Pandesara vs. The Gujarat Electricity Board & The E.E., GEB, Surat (Ind.) Division in Appeal No. A-49/2002, the appellate committee of the Board had considered the factors about previous checking by the vigilance officer/checking squad and accordingly amount of bill was reduced substantially, though they were the theft cases but similar approach is lacking in the case of the petitioner were mal practice is noticed and in this case also in previous checking on 5.9.2003, it was found that connected and contracted load was 124 HP. By denying the benefits as given in the above two order in case of two consumers, the respondent herein has acted arbitrarily, discriminatory and violated Article 14 of the Constitution of India and, therefore, also necessary directions are to be given to the respondent to apply similar view in the case of the petitioner also and further reliance in Special Civil Application No.1102/2005 where non-supply of MRI was considered by the learned Judge of this Court and suitable directions were given.
8. I have heard Ms. Lilu Bhaya, learned advocate, appearing for the Electricity Company who submits that the order passed by the appellate authority after remand of the case by order dated 28.3.2005 in Special Civil Application No. 1102/2005, the petitioner-consumer had not produced any further evidence and, therefore, the appellate authority has passed the order on the basis of record available and after hearing the petitioner, which cannot be in any manner said to be defiance of the directions passed by this Court. On the contrary, according to learned advocate the appellate authority has taken care of the requirement specified under condition No. 35 of Conditions and Miscellaneous Charges For Supply of Electrical Energy, which provides for disconnection of mal practice and compensate thereof and clause
(d) and (e) in the head note of Levy of Compensation (Applicable to the consumer governed by metered supply) and cases of exceeding the contracted load of consumer without specified permission of board or unauthorized addition or extension to the consumers electrical installation without permission of the board is governed by the above condition and it rationalize charges to be levied from the consumer who have unauthorizedly contracted load to the electrical installations. Accordingly to this, unauthorized load of the petitioner will fall in category 2 of the table and supplementary bill issued by the board is as per the requirement of condition No.
35. Learned advocate for the Board further submits that for different types of unauthorized use of electricity, different types of procedure is required and, therefore, cases of theft dealt with by the board cannot be considered in the case of mal practice and other types of illegal or irregular connections. So far as two decisions relied on by the learned advocate for the petitioner in the cases of M/s. Vardhaman Processors, Pipodara v. The Gujarat Electricity Board & The E.E., (O&M) GEB, Dhna (Ind.) Division (supra) and M/s. Jai Hanuman Dyeing & Printing Mills Pvt. Ltd., GIDC, Pandesara vs. The Gujarat Electricity Board & The E.E., GEB, Surat (Ind.) Division (supra), where the case is of theft and were enough part of decision making process is of appellate authority, cannot be relied on in exercise of powers under Article 226 of the Constitution of India. In spite of the opportunity given to the petitioner, no evidence was produced and, therefore, reliance placed by the petitioner on the above two decisions is misconceived. By placing reliance on the affidavit filed by the deponent of the Electricity Board, it is submitted that on the date of checking of the electrical installation of the petitioner on 12.12.2003, it was clearly noticed by the checking squad that contracted load was 114 HP were connected load was 174 HP, which was in excess of 50 HP and, therefore, the above fact was sufficient enough to attract the provisions of Condition 35 and formula laid down therein. According to her, on 12.12.2003 or subsequent thereof, the electrical installation of the petitioner which may have shown contracted load lesser than 174 HP is not relevant for taking decision by the competent authority for issuance of supplementary bill as per their checking sheet on 12.12.2003, connected load was more than the contracted load.
8.1. Learned advocate for the respondent-Electricity Board has placed reliance on the decision of the Apex Court in the case of J.M.D.Alloys Ltd. vs. Bihar State Electricity Board & Ors. reported in 2003 (5) SCC 226, where the order of the High Court was upheld by the Apex Court that no compensatory bill could be issued by taking recourse to clause 16.9 of the tariff framed by Bihar State Electricity Board pursuant to the FIR lodged against the appellate a criminal case was registered under the Sections 39/44 of the Electricity Act which culminated in a final report. It was further held by the Apex Court that while computing charges of stolen electricity unlike the value of electricity, fuel surcharge cannot be levied and both the said clauses are separate and distinct and action taken by Chief Engineer of State Electricity Board after due notice and awarding the opportunity to the consumer and after taking into consideration relevant factors and held that the power was used unauthorizedly by the consumer attracting clause 16.9 of the tariff was justified.
9. Thus, it is submitted that this writ petition filed by the petitioner deserves to be rejected.
10. Having heard learned advocates appearing for the parties, considering the facts and submissions and on perusal of the record, I am of the opinion that conditions raised by the learned advocate for the petitioner do not deserve acceptance inasmuch as in the appeal preferred first time being Appeal No. 3/25 the appellant herein had raised few submissions prior to 12.12.2003 and subsequently checking sheets by the Electricity Company mentioned about contract load of 124 HP and 114 HP which requires consideration by the competent authority. The other ground was non-supply of MRI data, which was considered by the appellate authority by taking note of a factor that as per the checking sheet prepared on 12.12.2003 connected load was 50 HP more than the contracted load. Not only that but appellate committee had also considered the average consumption recorded in the years 2001-2002 between 610 to 10,000 units which was increased to 21,000 to 30,000 after replacement of the meter which was a part of the record. Thus, after remand also no new material or findings was laid by the appellant and inspite of the opportunity was given no explanation was rendered on the above aspect. Therefore, sufficient opportunity was given to the petitioner even on second round of litigation before the appellate authority and in absence of any other new evidence, the appellate authority found mal practice of using unauthorized 50 HP being the contracted load of 124 HP and accordingly, issuance of supplementary bill was considered to be just and proper.
11. So far as condition No. 35 on which reliance is placed by the learned advocate for the Electricity Company, an elaborate report was prepared for charging the consumer who had indulged into mal practice and depending on the connected extra load, the charges are to be levied and in this case 50 HP was found to be an extra load and supplementary bill is charged as per the table of Head Note of Levy of Compensation (Applicable to the consumer governed by metered supply) and the above regulation cannot be said to be in any manner illegal, unreasonable, arbitrary, discriminatory or violative of Article 14 of the Constitution of India. A careful perusal of the record indicate that upon replacement of new meter on 5.9.2003, the consumption of the Electricity and increase in the unit was three times higher which itself is indicative of the factor of mal practice committed by the petitioner. The decision relied on by the learned advocate for the respondent in the case of J.M.D.Alloys Ltd. vs. Bihar State Electricity Board & Ors. (supra) where the Apex Court has found charges levied for cases of theft under Regulation 16.9 of the tariff by the Bihar State Electricity Board after following procedure was found just and proper and in the case on hand charging by the electricity company on the basis of mal practice for using unauthorized extra load of 50 HP beyond the contracted load of 124 HP under Condition 35 is just and proper which do not deserve any interference under Article 226 of the Constitution of India after the same is confirmed by the appellate authority.
12. Since no other evidence is produced before the appellate authority justification of passing the order on the basis of record available cannot be considered as defiance of the direction of this Court.
13. So far as reliance placed on the decision of learned Single Judge about necessity to supply the MRI data cannot be applied in this case inasmuch as said data is not relied on by the competent authority as well as the appellate authority for considering mal practice committed for the unauthorized load by the petitioner. Even otherwise also in the above case the findings of the competent authority were reversed by the appellate authority on the basis of MRI data and in the backdrop of the above facts, the learned Single Judge directed the electricity company to supply MRI data.
14. Considering the above factors, I am of the opinion that the petition deserves to be rejected.
15. Rule is discharged. Interim relief granted earlier stands vacated.
16. Request of learned advocate for the petitioner to continue the interim relief is rejected inasmuch as, the dues of the electricity company remains outstanding because of pendency and stay granted by this Court since last 4 years. It will be open for the petitioner to deposit the balance amount with interest with the electricity company and if request is made, the electricity company can consider for reasonable installments.
[ANANT S. DAVE, J.] //smita// Top