Gujarat High Court
Pro. Bhimji Dhanji Motivaras Of M/S. ... vs Paschim Gujarat Vij Company Ltd Pgvcl on 28 March, 2014
Equivalent citations: AIR 2014 (NOC) 583 (GUJ.)
Bench: M.R. Shah, R.P.Dholaria
C/FA/3278/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3278 of 2013
With
CIVIL APPLICATION NO. 12106 of 2013
In
FIRST APPEAL NO. 3278 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1. Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2. To be referred to the Reporter or not ? Yes
3. Whether their Lordships wish to see the fair copy No
of the judgment ?
4. Whether this case involves a substantial question No
of law as to the interpretation of the constitution
of India, 1950 or any order made thereunder ?
5. Whether it is to be circulated to the civil judge ? No
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PRO. BHIMJI DHANJI MOTIVARAS OF M/S. SAGAR ICE
FACTORY....Appellant(s)
Versus
PASCHIM GUJARAT VIJ COMPANY LTD PGVCL....Defendant(s)
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Appearance:
MR. EKRAMA H QURESHI, ADVOCATE for the Appellant(s) No. 1
MS LILU K BHAYA, ADVOCATE for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 28/03/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 20.09.2013 passed by the learned Principal Page 1 of 15 C/FA/3278/2013 JUDGMENT Senior Civil Judge, Porbandar passed in Special Civil Suit No.23 of 2005, by which, the learned trial Court has partly allowed the suit directing the original defendant to pay a sum of Rs.20,00,976.55 being amount under electricity theft bill with 6% delay payment charges from the date of filing of the suit, the original defendant has preferred the present First Appeal.
2.0. The facts leading to the present First Appeal in nutshell are as under:
2.1. That the appellant hereinoriginal defendant was the consumer of the respondent hereinoriginal plaintiff Vij Electricity Company for industrial purpose. That while checking in the factory premises of the defendant it was found that plastic seals on the electric meter were tampered, wires were destroyed and thus the defendant played mischief with the electric meter. Therefore, the Rojkam was made by the plaintiff electricity company and it was found that the defendant has made electric theft. Therefore, the bill of Rs.20,24,484.05 was sent according to ABCD Formula to the defendant. That thereafter, the defendant challenged the said supplementary bill before the Appellate Committee/ Authority of the plaintiff company, where the said bill was revised as Rs. 15,93,680.99. In that Rs.4,64,308.63 was added as delayed payment charges. Thus, the supplementary bill was for amount of Rs.20,60,989.92. Thereafter, the defendant was served with the revised supplementary bill, as per the decision of the Appellate Committee/ Authority of the Electricity Company. As the defendant did not make the payment as per the supplementary bill, on 29.12.2004 a legal registered notice was served upon the defendant to make the payment. However, the defendant did not make the payment of bill amount and therefore, the plaintiff instituted aforesaid suit for recovery Page 2 of 15 C/FA/3278/2013 JUDGMENT of Rs. 30,15,884.20 ps being Rs.20,24,484.05 towards theft bill amount, Rs.9,91,325.15 towards delay payment chargers.
2.2. That the suit was resisted by the defendant by filing written statement at Exh.14 denying the averment in the plaint. It was the case on behalf of the defendant that the suit is barred by limitation. The suit was also resisted on the ground of no cause of action has arisen for the plaintiff to file the suit. It was also the case of the defendant that he has not committed any theft of electricity. Therefore, it was requested to dismiss the suit.
2.3. That the learned trial Court framed the issues at Exh.25.
2.4. On behalf of the plaintiff Electricity Company one H.G.Modha came to be examined at Exh.73. In the deposition, it is narrated how the defendant played mischief with the electric meter and thereby committed the theft of electricity. The plaintiff also produced the documentary evidence. The plaintiff produced the laboratory testing report at Exh.41. The plaintiff also produced document at Exh.42, in which, it was specifically mentioned that all the three plastic seals on the electric meter of the defendant factory were found tampered, wires were destroyed, lock was broken and external artificial means were found joined and therefore, the defendant committed theft of electricity. That one Deputy Engineer of the plaintiff company Shri H.I. Unal also came to be examined and he stated that while making checking on 06.05.2002, it was found that the defendant has played mischief with the electric meter. Therefore, it was the case on behalf of the plaintiff that the defendant committed the theft of electricity for which supplementary bill was issued and therefore, it was requested to decree the suit.Page 3 of 15
C/FA/3278/2013 JUDGMENT 2.5. It was argued on behalf of the defendant that M.M.B of the defendant factory was not scientifically examined by the plaintiff company. It was also further argued that the witness of the plaintiff Shri Unal, who was examined at Exh.82, has admitted in his affidavit that no checking was made whether the meter is running in proper order or not whether the meter was properly recorded or not and therefore, it was the case on behalf of the defendant that the defendant has not played any mischief and not committed the theft of electricity.
2.6. That on appreciation of evidence, the learned trial Court answered issue no.1 whether the plaintiff prove that the defendant has committed the aforesaid theft, in affirmative.
2.7. However, considering the decision of the Appellate Committee/ Authority of the plaintiff reducing the supplementary bill to Rs.15,93,680.99 ps and further added Rs.4,64,308.63 towards delay payment charges, for which revised statutory bill was produced at Exh.49, the learned Judge has partly decreed the suit and has directed the defendant to pay Rs.20,00,976.55 with 6% delay payment charges from the date of filing of the suit.
2.8. Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court, the appellant hereinoriginal defendant has preferred the First Appeal.
3.0. Shri Qureshi, learned advocate for the appellant has vehemently submitted that the learned trial Court has not properly appreciated and considered whether the appellant had, as such, committed any theft of electricity or not. It is submitted that as such the plaintiff has failed to establish and prove by leading cogent evidence that Page 4 of 15 C/FA/3278/2013 JUDGMENT the defendant committed theft of electricity. It is submitted that therefore, the learned trial Court has materially erred in answering the issue no.1 in affirmative.
3.1. Relying upon the decision of the Division Bench of this Court in the case of Kiran Industries, Mehsana vs. Gujarat Electricity Board, Baroda and Anr reported in 1995(2) GLR 1158, it is vehemently submitted by Shri Qureshi, learned advocate for the appellant that the learned trial Court ought to have gone into the legality and validity of the supplementary bill and ought to have decided whether the appellant defendant has committed any theft of electricity or not. It is submitted that as held by the Division Bench of this Court despite the decision of the Appellate Committee/ Authority, the legality and validity of the supplementary bill can be considered by the Civil Court.
3.2. It is further submitted by Shri Qureshi, learned advocate for the appellant original defendant that even otherwise the impugned judgment and decree passed by the learned trial Court is wholly without jurisdiction. It is submitted that as per the amendment in the Indian Electricity Act and on constitution of the Special Court under the Act considering Section 154(5) of the Electricity Act, the suit was required to be transferred to the Special Court and in the present case the Court of Presiding Officer, Fast Track Court, Porbandar only would have jurisdiction to try the suit. It is submitted that therefore, considering Section 154(5) of the Indian Electricity Act except the Special Court, no Court would have jurisdiction to decide the dispute and therefore, the learned trial Court lacks jurisdiction and therefore, impugned judgment and decree passed by the learned Principal Senior Civil Judge, Porbandar is wholly without jurisdiction and therefore, nullity. 3.3. It is further submitted by Shri Qureshi, learned advocate for Page 5 of 15 C/FA/3278/2013 JUDGMENT the appellantoriginal defendant that even otherwise the supplementary bill issued is erroneous inasmuch as even as per the ABCD formula, supplementary bill for electricity theft can be issued considering electricity consumption of last six months only. However, in the present case subsequent supplementary bill has been issued on the basis of ABCD formula considering the aforesaid consumption of last 9 months.
3.4. By making above submissions and relying upon the above decision, it is requested to admit / allow the present First. Appeal.
4.0. Present Appeal is opposed by Ms. Lillu Bhaya, learned advocate for the respondentoriginal plaintiff Electricity Company. It is submitted by Ms. Bhaya, learned advocate for the original plaintiff that as such the learned trial Court has not committed any error and / or illegality in decreeing the suit. It is submitted that as such it was the plaintiff Electricity Company who instituted the suit for recovery of amount under the supplementary bill / revised supplementary bill issued as per the decision of the Appellate Committee/ Authority. It is submitted that as such appellantoriginal defendant had not questioned and / or challenged the legality and validity of the supplementary bill / revised supplementary bill. It is submitted that therefore, and even as held by the Division Bench of this Court in the case of Vrajlal Devjibhai vs. Gujarat Electricity Board rendered in First Appeal No.2506 of 2003, it is not open for the appellantoriginal defendant to take up the contention that it has not committed any electricity theft, by way of defence in the suit filed for recovery of the dues as such in accordance with the condition of Supply ABCD formula.
4.1. It is submitted by Ms. Bhaya, learned advocate for the original plaintiff that as such initially the supplementary bill was issued Page 6 of 15 C/FA/3278/2013 JUDGMENT for an amount of Rs. 20,60,989.92, which came to be challenged by the defendant before the Appellate Committee/ Authority of the Electricity Company and the Appellate Authority specifically observed and gave finding that the defendant did commit the theft of electricity and indulged into malpractice, however reduced the supplementary bill to Rs. 15,93,680.99 and accordingly revised supplementary bill came to be issued. It is submitted that the decision of the Appellate Committee/ Authority thereafter has not been challenged by the defendant and said decision has attained the finality. It is submitted that only thereafter the plaintiff instituted suit for recovery of the amount under the revised supplementary bill which was issued as per the decision of the Appellate Committee/ Authority which has attained the finality. It is submitted that as such the learned trial Court has not committed any error and / or illegality in decreeing the suit.
4.2. It is submitted by Ms. Bhaya, learned advocate for the original plaintiff that as such the revised supplementary bill has been issued as per the decision of the Appellate Committee/ Authority and even as per the ABDC Formula and even considering the electricity consumption of last six months. It is submitted that as such the learned trial Court has committed an error in partly decreeing the suit and directing the defendant to pay Rs.20,00,976.55 with 6% interest as delay payment charges. It is submitted that to charge interest at 6% of delay payment is absolutely erroneous and contrary to the condition of supply of electricity.
4.3. Now, so far as contention on behalf of the appellantoriginal defendant relying upon Section 154(5) of the Indian Electricity Act and the submission that the judgment and decree passed by the learned Principal Senior Civil Judge, Porbandar is wholly without jurisdiction Page 7 of 15 C/FA/3278/2013 JUDGMENT and a nullity as on constitution of Special Court, the suit was required to be transferred to the Special Court and the Civil Court Principal Senior Civil Judge, Porbandar would not have any jurisdiction to try the suit is concerned, it is submitted that as such, no such contention was ever raised by the defendant before the learned trial Court and therefore, such a contention cannot be permitted to be raised before this Court for the first time.
4.4. It is further submitted that even otherwise in the facts and circumstances of the case Section 154(5) of the Act would not be attracted. It is submitted that in the present case it was a suit filed by the Electricity Company for recovery of amount under the supplementary bill / revised supplementary bill having already issued earlier and much prior to the amendment in the Electricity Act. That the defendant had committed the electricity theft and there was already a decision earlier then the insertion of Section 154(5) of the Act, by the Appellate Committee. Therefore, in the facts and circumstances of the case Section 154(5) of the Act would not be attracted and / or applicable at all. It is submitted that Section 154(5) of the Act would be attracted and applicable only in case where the case for theft of electricity is pending. It is submitted that therefore, the submission on behalf of the appellant original defendant that the impugned judgment and decree passed by the learned Principal Senior Civil Judge, Porbandar is wholly without jurisdiction and is a nullity has no substance.
4.5. Making above submissions, it is requested to dismiss the present appeal.
5.0. Heard the learned advocates for the respective parties at length. Perused the impugned judgment and decree passed by the Page 8 of 15 C/FA/3278/2013 JUDGMENT learned trial Court and even considered and gone through the entire evidence on record from the Record & Proceedings received from the learned trial Court.
5.1. At the outset, it is required to be noted that initially and having found on the basis of checking of the factory premises on 6.5.2002 that the plastic seals on the electric meter were tampered, wires were destroyed, lock was broken and external artificial means were found joined, original plaintiff issued the supplementary bill of Rs. 20,60,989.92 as per ABCD formula as per the condition of Supply of Electricity. The said supplementary bill came to be challenged by the defendant before the Appellate Committee/ Authority of the Electricity Company as per the law prevailing at the relevant time. The decision of the Appellate Authority is produced at Exh.47. From the order passed by the Appellate Committee/ Authority dated 30.10.2003, it appears that it was the specific case of the defendant consumer that he had not played any mischief with the meter, wire and has not committed theft of electrical energy. The appellant also challenged the supplementary bill even on merits also and submitted that the supplementary bill issued is on higher side and beyond the normal consumption of the factory. From the decision / order of the Appellate Committee /Authority produced at Exh.47, it appears that Appellate Committee observed and held as under:
"The checking of the electrical installation of the appellant was carried out by the Head Office, Vigilance Drive on 6.5.2002. At the time of checking, the connected load was 123 HP against the contract load of 100 HP. It was observed during the checking that the seals provided on MMB were tampered. The seal wires of all the 3 seals were broken. The paper seal was also tampered as mentioned in the checking sheet. Since this is a case of theft caught redhanded, no accue check was taken and moreover, as the factory was totally closed by the workers, it was not possible to take load test. However, details of all the equipments along Page 9 of 15 C/FA/3278/2013 JUDGMENT with their HP ratings were listed. Further on checking, it was observed that there was a hole on the backside of the MMB and 4 thin wires were passing through the hole. With the help of these wires, one external instrument was connected with R and B phase PT circuits. The checking sheet was signed by the representative of the appellant. The statement of consumer was also noted on the same day i.e. 6.5.2002, which was signed by the appellant without any protest. Most of the things already listed in checking sheet are reproduced in the statement of consumer. As mentioned in the checking sheet, one external instrument is connected in PT circuit wire with the help of plug socket arrangement. In this instrument, circuit, 1phase supply was in live condition. Further, it is mentioned in the statement of consumer that his factory is running round the clock in all 3 shifts. As mentioned in this statement, the appellant is caught red handed committing theft of electrical energy. The MMB along with the meter was removed and was tested in laboratory on 29.10.2003 in presence of the representative of the appellant. As per the laboratory inspection report, the frame of the MMB and the door is disturbed. There is a gap between the door and the frame and the hinges of the MMB are also broken and rewelded and through the gap it is possible to insert screw driver easily. The lock provided on MMB was found tampered. One hole is also observed on the back of the MMB. On further checking of the wiring, it is observed that neutral wire is nowhere connected. As mentioned in the checking sheet, one external instrument is connected in PT circuit with the help of external wires and plug socket arrangement. With this arrangement whenever desired, PT supply of R and B phase can be cut off. So that though the energy was consumed, meter would stop recording electric energy. There is no abnormality found in the wiring of Y phase PT circuit and CT coil wiring is also proper and in order.
It can be easily seen from the checking sheet, statement of consumer as well as laboratory inspection report that the appellant had committed theft of electrical energy by playing mischief with PT wiring and by connecting external instrument with the help of which the supply of PT voltage in R & B phases is cut off whenever desired. The MMB seal and lock is also tampered. This clearly proves the case of theft of electrical energy. The laboratory inspection report is signed by the appellant with protest.
5.2. After observing and held as above, it appears that thereafter the Appellate Committee considered the supplementary bill on merits and considered whether the supplementary bill has been issued as per Page 10 of 15 C/FA/3278/2013 JUDGMENT condition of supply of electricity or not and Appellate Authority partly allowed the said appeal by directing the electricity company to issue revised supplementary bill by taking C/B at 0.3 in the months of November, December 2001 and directed that for the months of September, October, 2001 and March, April and May 2002 it should be taken at 0.72 keeping Factor "A" connected load and Factor "D"
chargeable days unchanged by holding as under:
"Next question that would arise is about connected load factor "A". So far as this factor is connected, the appellant has not disputed and therefore, it is not required to be revised. Next question that would arise is about the calculation of the chargeable days. The appellant runs ice factor which is a continuous process and the factory works round the clock. So, there is no question of deducting any holidays or staggering off days. In view of this factor "D" i.e. chargeable days, also remains unchanged.
Next question would be about the ratio of load factor and diversity factor i.e. C/B. Having regard to the connected load, nature of industry, consumption pattern, working hours of the factory and also the modus operendi, applied by the appellant in committing theft of electric energy, the Committee felt that for the months of November and December 2001 i.e. off season period, factor C/B is to be taken at 0.3 whereas for the months of September 2001, October 2001 and March, April and May 2002 i.e. seasonal months, C/B should be taken at 0.72. In the circumstances of the case, this appeal is partly allowed. The respondent Board is directed to revise the Sp.bill by taking C/B at 0.3 in the months of November, December 2001 and directed that for the months of September, October, 2001 and March, April and May 2002 it should be taken at 0.72 keeping Factor "A" connected load and Factor "D" chargeable days unchanged."
5.3. It appears that thereafter, the electricity company original plaintiff issued the revised supplementary bill at Exh.49 of Rs.20,63,285.18 i.e. Rs.15,93,680.99 towards theft of electricity and Rs.4,64,308.63 towards delay payment charges.
5.4. As stated above, as such finding given by the Appellate Committee/ Authority specifically holding that the appellant original Page 11 of 15 C/FA/3278/2013 JUDGMENT defendant consumer had tampered with the meter and thereby committed theft of electricity has attained the finality. It is an admitted position that the appellant original defendant has not challenged the decision of the Appellate Committee/ Authority before the higher forum. It is also an admitted position that as such even appellant original defendant has not challenged the revised supplementary bill issued by the plaintiff which was issued on the basis of decision of the Appellate Committee/ Authority of the Electricity Company. It was the plaintiff who instituted suit to recover the amount of revised supplementary bill, which was never challenged by the appellant original defendant. In view of the aforesaid facts and circumstances, as such learned trial Court was not required to consider the defence raised by the defendant that whether the defendant has committed any theft of electricity or not. In the aforesaid facts and circumstances, as such it was not open for the defendant to raise defence that he has not committed any theft of electricity, more particularly, when the decision of the Appellate Committee holding that the defendant has committed the theft of electricity has attained the finality and even the defendant had not challenged the revised supplementary bill which was issued on the basis of the decision of the Appellate Committee / Authority.
5.5. The same and similar question came to be considered by the Division Bench in the case of Vrajlal Devjibhai (supra). In the case before the Division Bench the consumer challenged the judgment and decree passed by the learned trial Court decreeing the suit for recovery of its electricity bill with delay payment charges. Before the Division Bench, it was argued on behalf of the consumer that there was no evidence of actual abstraction of energy and the electricity bill in question was based on assumption. In the said decision, the Division Bench has held that the proper remedy for the appellant was to prefer an Page 12 of 15 C/FA/3278/2013 JUDGMENT appeal to the Appellate Authority as provided in the Conditions of Supply of Electrical Energy and the appellant having admittedly not availed of that remedy, it was not open for him to take up the same contentions by way of defence in the suit filed for recovery of the dues assessed in accordance with the Conditions of Supply. In the present case, as such the appellantoriginal defendant did challenge the supplementary bill issued by the electricity company before the Appellate Committee/ Authority and the Appellate Authority vide order at Exh.47, partly allowed the said appeal and directed to issue revised bill and as such it was revised to Rs.15,93,680.99. However, specifically held that the appellant original defendant had committed malpractice and tampered with the meter and thereby committed theft of electricity. As stated above, the said finding and the order passed by the Appellate Committee/ Authority had attained the finality. Under the circumstances, thereafter and without even challenging the order passed by the Appellate Committee as well as without challenging the revised supplementary bill, it is not open for the appellant original defendant to take defence that he had not committed any theft of electricity. At the cost of repetition, it is required to be noted that as such it was the plaintiff electricity company who instituted the suit for recovery of the amount under the revised supplementary bill, which has not been challenged by the appellant original defendant. Now, so far as reliance placed upon the decision of this Court in the case of Kiran Industries, Mehsana (supra) by the learned advocate for the appellant in support of his submission that as observed and held by the Division Bench of this Court that Civil Court has jurisdiction to consider the dispute with respect to supplementary bill and / or legality and validity of the supplementary bill and Civil Court can consider the issue whether consumer has committed theft of electricity or not is concerned, on considering the entire decision of the Division Bench in the case of Page 13 of 15 C/FA/3278/2013 JUDGMENT Kiran Industries, Mehsana (supra) we are of the opinion that the said decision would not be applicable to the facts of the present case and / or would not be of any assistance to the appellant. It is required to be noted that in the case before the Division Bench the consumer as such challenged the supplementary bill before the Civil Court and to that it is held by the Division Bench that Civil Court would have jurisdiction and the jurisdiction of the Civil Court is not barred. It was the suit filed by the consumer questioning the legality and validity of the bill for electricity consumption incorporating higher charges. The aforesaid decision would not be applicable in a case where it was a suit for recovery filed by the electricity company.
6.0. Now, so far as submission and contention on behalf of appellant that impugned judgment and decree passed by the learned Principal Senior Civil Judge, Porbandar is wholly without jurisdiction and is a nullity relying upon Section 154(5) of the Indian Electricity Act is concerned, the aforesaid submission is absolutely misconceived and has no substance. Section 154 of the Electricity Act, 2003 shall be applicable with respect to the case for the offence punishable under Sections 135 to 140 and Section 150 of the Act, pending any inquiry or trial and / or civil liability against the consumer or a person in terms of money for theft of energy is yet to be determined. In any case, it shall not be applicable with respect to the suit filed by the electricity company to recover the amount of supplementary bill/ revised supplementary bill.
7.0. It is also required to be noted at this stage that as such though under the contract and as per the conditions of supply of electricity, the delay payment charges is required to be paid at the rate of 18% from the date of filing, still by passing the impugned judgment and decree the learned trial Court has directed to pay delay payment Page 14 of 15 C/FA/3278/2013 JUDGMENT charge at 6% only, it prima facie can be said to be erroneous. However, as the Electricity Company has not challenged the impugned judgment and decree, we are not considering the aforesaid aspect further. Suffice to say that as such learned trial Court has not committed any error and / or illegality in passing impugned judgment and decree in decreeing the suit.
8.0. In view of the above and for the reasons stated above, there is no substance in the present First Appeal, which deserves to be dismissed and is accordingly dismissed.
9.0. In view of dismissal of First Appeal, Civil Application No.12106 of 2013 also deserves to be dismissed and is accordingly dismissed.
Sd/ (M.R.SHAH, J.) Sd/ (R.P.DHOLARIA,J.) Kaushik Page 15 of 15