Gujarat High Court
Hind Plastic C/O.Rauk Haji Abdul vs Deputy Engineer on 24 April, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/14617/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14617 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
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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HIND PLASTIC C/O.RAUK HAJI ABDUL....Petitioner(s)
Versus
DEPUTY ENGINEER, PASCHIM GUJARAT VIJ CO. LTD. &
1....Respondent(s)
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Appearance:
MR ARCHIT P JANI, ADVOCATE for the Petitioner(s) No. 1
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 24/04/2014
Page 1 of 14
C/SCA/14617/2004 JUDGMENT
ORAL JUDGMENT
1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 8.9.2004 passed by the Appellate Committee of the erstwhile respondentElectricity Company in Appeal No.B215 Of 2004 as well as the supplementary bill issued by the respondent Electricity Company at AnnexureF to the petition.
2. The facts which can be culled out from the record of the petition are as under: 2.1 The petitioner is engaged in manufacturing of plastics and is running the business in the name and style of Hind Plastic at Kodinar. The record reveals that the petitioner got non agricultural permission for industrial use by the competent authority of the State of Gujarat vide its order dated 28.6.2001. The petitioner thereafter applied for electricity connection with the respondentCompany with contracted load of 40 HP. It is a matter of record that thereafter, the same was enhanced to 67 HP. The petitioner was thus given electricity supply by the respondentElectricity Company under Consumer No.84762/00303/4.
Page 2 of 14C/SCA/14617/2004 JUDGMENT 2.2 The record reveals that on 26.4.2003, the officers of the respondentElectricity Company visited the factory premises of the petitioner with a purpose of checking electrical installations. The officers prepared a checking report on the said date and also prepared Rojkam. On the basis of the checking report, the petitioner was served with the supplementary bill amounting to Rs.9,52,867.57.
2.3 The record further reveals that the factory premises of the petitioner was again inspected on 7.2.2004. It further appears that thereafter, the meter which was installed at the factory premises of the petitioner was sent for examination to the laboratory and the laboratory gave its report dated 29.3.2004.
2.4 It appears that the petitioner thereafter challenged the supplementary bill by way of filing an appeal before the Appellate Committee of the respondents. The Appellate Authority by order dated 3.8.2004 has partly allowed the appeal and altered 'C/B' factor to 0.35 keeping all other factors as per ABCD formula as it is and directed the respondents to give special bill by taking the ratio of load factor and diversity factor, as aforesaid.
Page 3 of 14C/SCA/14617/2004 JUDGMENT 2.5 Being aggrieved by the said order, the petitioner has filed this petition. This Court (Coram: K.S. Jhaveri, J.) vide order dated 2.11.2004 admitted the matter and passed the following order: "Rule. By way of adinterim relief, it is directed that the respondent Board shall not disconnect the power connection of the petitioner on the following conditions;
(i) the petitioner shall pay the outstanding dues of the respondent Board in respect of the supplementary bill and the delay payment charges, if any, in six equal monthly installments, starting from the 1st of December 2004.
(ii) if any default is committed on the part of the petitioner in making the payment as mentioned above, it will be open for the respondent Board to disconnect the power connection of the petitioner without any further orders of this Court.
(iii) pending this petition, the petitioner shall not transfer the unit and/or the property without the permission of this Court.
(iv) the petitioner shall pay the monthly consumption bill regularly.
(v) the petitioner shall file an undertaking in these proceedings to the above extent within a period of 15 days from today."
Page 4 of 14C/SCA/14617/2004 JUDGMENT
3. Heard Mr. Archit P. Jani, learned advocate for the petitioner and Mr. Premal R. Joshi, learned advocate for the respondents.
4. Mr. Archit P. Jani, having taken this Court through the factual matrix arising out of this petition, has raised two limited contentions-
(i) that MRI data was not provided for though asked for by the Electricity Company, and (ii) it was urged that the petitioner is a plastic industry and it runs only 8 hrs. in a day. The calculation of the ABCD formula should be accordingly only for 8 hrs. It is therefore submitted that the petition may be allowed.
5. Per contra, Mr. Premal R. Joshi, learned advocate for the respondents has supported the impugned order. It is submitted that the Appellate Committee, on the basis of the evidence led before it, has come to the conclusion that the petitioner has committed theft of electricity energy. It is contended that the contention raised by the petitioner deserves to be negatived on the ground that no such contention was raised before the Appellate Authority. It is further contended that mere averment in the appeal memo is not sufficient as the said point was not at all raised before the Appellate Committee and therefore, it amounts to waiving such a contention. It is Page 5 of 14 C/SCA/14617/2004 JUDGMENT further submitted that the Appellate Committee has examined all factors and has recorded the finding of fact and has held that chargeable days i.e. FactorD would be 151 days and 24 hours. It is further submitted that finding of fact arrived at by the Appellate Authority is on the subjective satisfaction of the Appellate Authority which is based on the appreciation of evidence and therefore, this Court should not exercise its extraordinary jurisdiction under Article 226 and/or supervisory jurisdiction under Article 227 of the Constitution of India. It is therefore submitted that the petition, being devoid of merits, deserves to be dismissed.
6. No other of further submissions are made by the learned advocates appearing for the respective parties.
7. Considering the twofold submissions made by the learned advocate for the petitioner and the contentions raised by the learned advocate for the respondents as well as on perusal of the impugned order passed by the Appellate Committee, it clearly establishes that the Appellate Committee has arrived at the finding of fact based upon appreciation of evidence which was adduced. The Appellate Committee has come to the conclusion that theft of electrical Page 6 of 14 C/SCA/14617/2004 JUDGMENT energy is clearly established against the present petitioner. Except in the written application which was filed by the petitioner dated 15.4.2004, the learned advocate for the petitioner has not been able to even prima facie establish that the contention which is raised as regards nonavailability of MRI data was ever raised before the Appellate Committee. The Appellate Committee was therefore unaware about the same and had no opportunity to deal with any such contention raised by the present petitioner. The Appellate Authority has, on the basis of the checkingsheet as well as the laboratory inspection, has recorded findings of fact as under: "We heard both the parties and perused the record.
Admittedly the electrical installation of the appellant with contract load at 67 HP was checked by the Jr. Engineer, I/c Squad, Una on 26.4.2003 and at that time necessary checking sheet was prepared. It is specifically stated in the checking sheet that the plastic seal of the MMB was doubtful. It is also stated in that checking sheet that one hole was found on the back side of the MMB and about 1½ inch diameter hole was also found in the wall behind MMB and one instrument was found on the back side of the wall of the MMB and 4 submersible flexible wires were found connected from that instrument and thereby an arrangement was made to Page 7 of 14 C/SCA/14617/2004 JUDGMENT abstract electrical energy directly without being recorded in the meter. It is also stated in the checking sheet that the static meter box and meter with MMB seal instrument, wires and switch were packed and sealed for further inspection in the laboratory. Thus, it is specifically stated in the checking sheet that the appellate had made an arrangement by making a hole on the back side of the MMB and connecting 4 flexible wires with the instrument which was kept on the back side of the wall and thereby to abstract electrical energy dishonestly without being recorded in the meter. Now the checking sheet is signed by the checking squad, which consists of six officers. There is nothing on the record to show that any of these officers of the checking squad had any grievances against the appellant or any person or representative of the appellant. So, it can not be said that the facts stated in the checking sheet are wrongly stated. The checking sheet also shows that 3 persons on behalf of the appellant were present at the time of checking and they refused to sign the checking sheet. It is in the evidence that necessary Rojkam was prepared at that time and the details of the checking with diagram were stated therein and it was signed by the checking authority. There is also no reason for us not to rely on that Rojkam. Now it is admittedly clear that the meter, MMB seal etc. were inspected in the laboratory on 29.3.2004 in the presence of the representative of the appellant and necessary laboratory inspection report was prepared and it was signed Page 8 of 14 C/SCA/14617/2004 JUDGMENT by the representative of the appellant with protest. During laboratory inspection the MMB seal was found opened and refitted. The strips on which meter was mounted were found tampered. Also additional flexible wires were found connected with R & Y phase PTs. Both PT wires were not connected with meter and thereby an arrangement was found to inject voltage from outside through an instrument and contractor. There is no reason for us not to rely on the laboratory inspection report as it can not be said that the facts stated in that laboratory inspection report are false merely because it was signed by the representative of the appellant under protest. So, in our view, there is sufficient evidence emerging from the checking sheet, Rojkam and even the laboratory inspection report to establish that an arrangement was made in the electrical installation of the appellant e by the appellant to abstract electrical energy dishonestly without being it fully recorded. Now the appellant contended that he had started his unit since 1.7.2002 and there is no variation in the consumption and it goes to negative the case of theft. But this contention of the appellant does not stand at all. The consumption statement shows that there is much increase in the consumption of the appellant after replacement of the meter and after the detection of theft. So, the consumption pattern is of no use to the appellant in a case like this. However, as we stated above, there is sufficient and reliable evidence to establish that Page 9 of 14 C/SCA/14617/2004 JUDGMENT the appellant had dishonestly abstracted electrical energy as alleged by the respondent Board. Hence the case of theft of electrical energy is clearly established against the appellant.
The connected load was found at 71 HP at the time of checking on 26.4.2003 and that connected load is mentioned in the checking sheet with necessary breakup of machines. Now the appellant contended that that connected load taken at 71 HP in the checking sheet is taken on higher side. He contended that the connected load of heater is of 0.75 and the total connected load of 9 heaters comes to 6.75 KW X 1.25 = 8.5 HP. The appellant, therefore, contended that the connected load of those heaters was 8.5 HP and the checking authority had wrongly taken it at 36 HP in place of 8.5 HP. We have considered this submission of the appellate carefully. The zerox copy of the letter dated 2.7.2002 written to the concerned local officer of the respondent Board shows that the appellant connected the motors of 32 HP. Another letter dated 21.1.2003 shows that the appellant uses load of 32 HP. But it is very clear that the details of the connected load are not given in this letter. So, in our view, these letters dated 2.7.2002 and 21.1.2003 are of no use to the appellant to show that the heater was of 0.750 and not of 3 KW. Now the appellant relied on the zerox copy of the proforma No.15 dated 2.8.2003 which shows the connected load of 3 motors of 10 HP and 9 heaters each of 500 watts. But those zerox copy of Page 10 of 14 C/SCA/14617/2004 JUDGMENT proforma No.15 dated 2.8.2003 also does not show the capacity of the heater at 0.75 KW. The appellant relied on another Rojkam dated 7.2.2004 in which it is stated the load of each of the heater at 0.75 KW. But it is very clear that this Rojkam dated 7.2.2004 is after the date of detection. Thus, if we consider such facts and circumstances, it is crystal clear that there is no reliable and substantial evidence to establish that the capacity of each of 9 heaters was at 0.75 KW and not 3 KW as stated in the checking sheet. As we stated above, the connected load was physically verified and stated in the checking sheet at the time of checking and at that time 3 persons on behalf of the appellant were present. There is nothing to show on the record that any person of the appellant has objected to that connected load stated in the checking sheet at the relevant time. So, considering such facts and circumstances, we are of the opinion that that there is no sufficient and reliable evidence to establish that the capacity of each of 9 heaters was 0.75 KW. Hence we do not accept this contention of the appellant. However, it is stated in the checking sheet and even in the Rojkam that the load of those 9 heaters was 27 KW. So, we do not find any reason to revise the connected load factor 'A' which is taken at 71 HP as that connected load was found at the time of checking."
8. In light of the aforesaid observations of the Appellate Committee, it clearly establishes Page 11 of 14 C/SCA/14617/2004 JUDGMENT that the Appellate Committee has considered the evidence on record and has recorded the findings of fact that the petitioner is guilty of theft of electricity energy. The Appellate Committee has also examined the aspect of the connected load factor which is found to be 71 HP. The exercise which is undertaken by the Appellate Committee and the process of decision making is in accordance with law. In absence of any specific contention as regards non availability of MRI data, cannot be permitted to be raised for the first time before this Court in a petition under Article 227 of the Constitution of India in particular as the Appellate Committee had no opportunity to deal with such a contention which is raised by the petitioner herein. The observations made by the Appellate Committee clearly establishes the fact that the meter was tampered with and the same is also certified by the laboratory report. It is found from the impugned order that the Appellate Committee has revised 'D' Factor from 182 days to 151 days by giving deduction of 26 days as weekly staggering days and 5 days as Diwali holidays. It is similarly found that the Appellate Committee has arrived at finding of fact as regards Factor 'C/B' i.e. the load factor and diversity factor and has in fact allowed the appeal partly, whereby the respondentElectricity Company is directed to Page 12 of 14 C/SCA/14617/2004 JUDGMENT consider the load factor and diversity factor i.e. 'C/B' as 0.35.
9. In light of the aforesaid findings arrived at by the Appellate Committee, this Court finds that there is no error or perversity in such a finding. The contention as regards MRI data not provided also cannot be permitted to be raised de novo before this Court and as rightly contended by the learned advocate for the respondents, mere averments in the written application filed before the Appellate Committee is not sufficient. The scope of inquiry under Article 226 and/or 227 of the Constitution of India is very limited and even on examination by this Court as regards the decision making process, in the facts and circumstances of this case, no error much less any patent error is found which warrants exercise of jurisdiction of this Court under Article 226 and/or 227 of the Constitution of India. The finding of fact arrived at by the Appellate Committee is based on subjective satisfaction and on appreciation of the material before it and the same does not require any interference by this Court.
10. Apart from the fact that the petitioner has not raised a contention of nonsupply of MRI data before the Appellate Committee, the petitioner Page 13 of 14 C/SCA/14617/2004 JUDGMENT has not been able to establish as to how non supply of MRI data has, in any manner, prejudiced the case of the petitioner. Having not urged the point before the Appellate Committee, the petitioner cannot be permitted to raise such a point for the first time in a petition under Article 227 of the Constitution of India in particular.
11. In light of the aforesaid, therefore, the petition fails and is hereby dismissed. Ad interim relief granted earlier stands vacated.
(R.M.CHHAYA, J.) mrp Page 14 of 14