Gujarat High Court
Gujarat Urja Vikas Nigam Ltd vs Mono Steel (India) Ltd. Director ... on 23 August, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1822 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI : Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may YES
be 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 of the judgment ? NO
4 Whether this case involves a
substantial question of law as to the
interpretation of the Constitution of NO
India or any order made thereunder ?
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GUJARAT URJA VIKAS NIGAM LTD. & 1 other(s)
Versus
MONO STEEL (INDIA) LTD. DIRECTOR CHIMANLAL M. SHAH
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Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1,2
MR D K TRIVEDI(5283) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 23/08/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI) Page 1 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined
1. By way of preferring present First Appeal under Section 96 of the Civil Procedure Code, 1908, (for short, "the Code"), the appellant, Gujarat Urja Vikas Nigam Limited has assailed the judgment and award passed by learned 5th Additional Civil Judge, (S.D.), Bhavnagar in Special Civil Suit No.147 of 1994 on 09.05.2006. For the sake of convenience and brevity, the appellant-Gujarat Urja Vikas Nigam Limited and others are herein after referred to as "the original defendants" and the respondent - Mono Steel (India) Limited, shall herein after be referred to as "the original plaintiff".
2. The short facts given rise to the present appeal can be summarized as under:-
The original plaintiff has filed Civil Suit against the defendants for declaration and permanent injunction. The defendant authority has followed the procedure as per the guidelines issued by the Electricity Board, and on the strength of it, checking was carried out in the premises of the plaintiff on 7th May 1993 and, thereafter, assessment was carried out and decision about the issuance of supplementary bill was taken. It is the case of the plaintiff that the said action by levelling the charge of theft of electricity of the defendants is unlawful, unconstitutional, illegal and beyond Page 2 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined the jurisdiction, with mala fide intentions and contrary to the principles of natural justice and, therefore, entire proceedings are required to be declared as nullity and void ab-initio. It is pleaded in the plaint that being aggrieved and dissatisfied with the decision taken by defendant no.1, the plaintiff has challenged said decision before the appellate body i.e. appellate Committee. The plaintiff's appeal was partly allowed. Therefore, present suit was filed and prayed to re-connect the electricity connection of the plaintiff and grant permanent injunction. It is pleaded that electricity connections of 2400 KV is given for eight hours and for 16 hours 500 KV, and, accordingly, consumption of units are required is to be calculated.
It is pleaded by the plaintiff that after checking, the defendant-electricity company had assessed the loss of electricity and issued supplementary bill of Rs.1,84,86,983/-, however thereafter, the said supplementary bill was reduced by the appellate authority at Rs.61,62,327.67 ps. The said decision about issuance of supplementary bill is arbitrary, unauthorized, nullity, without jurisdiction and not binding to the plaintiff, therefore, being aggrieved and dissatisfied with said decision, suit was preferred.Page 3 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023
NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined
3. Learned advocate, Ms.Lilu Bhaya, who appears on behalf of the appellant-Electricity Board has submitted that judgment and order passed by learned 5th Additional Civil Judge, (S.D.), Bhavnagar, is capricious, vaxatious, not based upon sound principles of law and against the facts and evidence available on record and at the time of arriving at a particular conclusion, learned Judge has not properly appreciated and evaluated the oral and documentary evidence available on record. Learned advocate, Ms.Lilu Bhaya has submitted that learned Judge has committed an error by not drawing correct inferences from the proved facts and also drawn incorrect inferences from the proved facts and, by doing so, learned Judge has committed grave mistake, which requires to be rectified by this Honourable Court by allowing present First Appeal and quashing and setting aside, the impugned judgment and decree dated 9th May 2006 passed by learned 5th Additional Civil Judge, (S.D.), Bhavnagar in Special Civil Case No.147 of 1994.
4. Learned advocate, Ms.Lilu Bhaya, has submitted that, in fact, the respondent is running steel factory and he has obtained electricity connection and high tension load for 2400 KVA, which was given to the company to be used as per Page 4 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined HTP-4 tariff during 10 p.m. to 6 a.m. and 500 KVA under tariff HTP-1 for the period during 6 a.m. and 10 p.m. The respondent Steel Industry runs in three shifts. The electricity department has given electricity connection on 11.12.1992 and to maintain the power load consumption of the electricity, the plaintiff was required to provide time switch and Trevecto meter, so that the units consumed during the above stated period can be segregated for computing the consumption of units during day and night time. The electricity company has verified that after installation of the electricity connection, within no time, there was loss of electricity is found in the feeder and, therefore, surprise checking was organized on 7th May 1993. The checking was conducted by the officers of the defendant electricity company in the presence of the representatives of the plaintiff. Meter was checked with acue check meter and it is found that "R" phase current C-1 was 1.107 and "B" phase current C-3 was 2.176 and C-4 armoured cable metallic wire was used to earth the "R" phase C.T. and resultant effect was loss in recording of electricity consumption in the meter. It is submitted that normally "R" phase and "B" phase current should be the same, however, in this case, difference was found abnormal and, therefore, detailed investigation Page 5 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined was carried out and it was found that the meter cable, which was connected with core armourmed cable B, it was coming from backside of the C.T. Chamber requires to be opened but furnace was running, therefore, CT Chamber could not have been opened and inspected immediately. The checking officers had waited for one and a half hours and, thereafter, it was opened and it was found that "R" phase CT main green colour, which is of armourmed cable to metering ½ inch insulation was cut and inside metallic wire was connected and likewise, gray colour load wire was also found pilled off and external metallic wire was found connected. Thus, both the metallic wires were connected with earthing system and due to this external connection system was visibly found disturbed and in unorganized manner. The joint inspection report and abnormal condition of the meter box cannot be considered as natural or accidental and because of above-said arrangement, "R" phase CT current was half and half current was not getting recorded in the meter and it was directly going to the earthing. In short, "R" phase was getting only 50% current and metering cable is part of the meter and tampering has been done with the meter cable and current transformer and systematic arrangement has been made to see to it that less amount of Page 6 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined consumption of unit is recorded. The position of the affixing instrument and wiring of the meter shows that the conditions of meter box are unnatural and unorganized manner and, therefore, the act and action of the officers of the plaintiff-company would fall under the category of theft of electricity. At the time of preparing joint panchnama, photographs of place of occurrence as well as sketch was also prepared in presence of the representative of the plaintiff and, after completion of panchnama signature of the concerned persons of the plaintiff, who were present at the time of inspection, were also obtained.
5. Learned advocate, Ms.Bhaya has submitted that meter was installed on 11.12.1992 and sealing process was conducted on 23.12.1992. Therefore, it can safely be said that tampering was done during the period between 11.12.1992 to 23.12.1992. Learned advocate, Ms.Bhaya has submitted that considering the loss of electricity units in the feeder as well as considering the connection load assigned to the company, as per the settled practice after calculating the loss suffered to the Company as per the standard formula, the electricity company has issued supplementary bill of Rs.1,84,86,983/-. Being aggrieved and dissatisfied with the said decision of the Page 7 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined electricity company, the plaintiff has preferred an appeal to the appellate committee. The appellate committee is an expert body consisting of outside legal experts as well as technical experts. After verifying and scrutinizing all the material available on record, the appellate committee opined that since the officers of the electricity company had inspected the premises of the plaintiff and readings were taken and checking was done on 9.2.1993, 24.2.1993 and 22.4.1993, the possibility of earthing is ruled out during that period and it can be said that the actions were taken prior to 9.2.1993. The appellate committee has confirmed that tampering must have been done in collusion with the local staff and opined that this is a case of theft of electricity. It is opined that earthing was done by the plaintiff-company and there is presence of foreign substance of metallic wire, which was used for earthing purpose. The outer body of rubber insulation has been pilled off from the armoured wire and difference between "R" phase and "B" phase, which should have to be equal but found 50% less and, therefore, conclusive effect of the evidence available on record.
6. Learned advocate, Ms. Bhaya submitted that the insulation has been pilled off from the armoured wire and difference between "R" phase and "B" phase, which should have to be equal but found Page 8 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined to be 50% less and, therefore, conclusive effect of the evidence available on record goes to show that this is a clear cut case of theft of electricity. Learned advocate Ms.Bhaya has submitted that members of the appellate committee had examined checking sheet, joint inspection report, laboratory report and also personally called the officers for recording statement to know about the modus operandi.
7. Learned advocate submitted that the appellate committee observed that time switch and trevector meter have not been provided and applied by the respondent-consumer to record the data consumption of electricity units and they have continuously utilized the power 24 hours, round the clock. The appellate committee has further opined that before that plaintiff has not examined any expert witness to prove that the company has not indulged into the activity of theft of electricity. Mere denial of the allegation is not suffice to discharge the burden of charge. Considering and appreciating all the material available on record, the appellate committee reached to the conclusion that "R" phase C.T. was found earthed and ultimately, resultant effect was recording of less units by 35.34%. The appellate Committee also took into consideration data collected from the transformer to a particular feeder and also Page 9 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined calculated and worked out the transmission loss of the feeder is about 40%, which should be 1% in normal course. The total length of feeder is 0.5 kilometer and the said feeder has total five connections, out of which three are HT connections and two are LT connections and, ultimately, considering such loss, the appellate committee had directed to reduce the bill from Rs.1,85,86,983/- to Rs.61,62,327.77 ps.
8. Learned advocate, Ms.Bhaya has submitted that witness was examined by the defendant electricity company and the said witness has explained entire modus operandi of the plaintiff company in a very categorical terms. The actual date of release, connection date of sealing, consumed data and company is continuously working in three shifts during 24 hours in a day and a detailed cross-examination of the said witness was made by the plaintiff but they could not succeed in their attempt to disprove the evidence of the said witness. Learned advocate, Ms.Bhaya has further submitted that the plaintiff-company has checked the history so far as the issue pertaining to theft of the electricity is concerned, the respondent - Company is in the habit of committing theft of electricity and number of cases have been registered against the company by the electricity board being Criminal Case Nos.180, Page 10 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined 181, 182, 183 & 184/1997, which are pending before the competent authorities for adjudication. It is submitted that the sister concern companies of the plaintiff are also indulged in the offence of commission of crime of theft of electricity. This is not only sole case, wherein the officers of the electricity company have found the incident of theft of electricity units. It is further submitted that number of companies owned by the plaintiff company are directly or indirectly connected, wherein after lapse of certain period of time, incident of theft of electricity are found to be made out due to recording of less consumption of units and complaints were registered against them and those complaints are still pending before the competent authority for final adjudication.
9. Learned advocate, Ms.Bhaya has submitted that learned Judge ought to have appreciated the fact that panchnama drawn on the site clearly mentions that opening of the cable side CT Chamber, there is a hole and that part has become blackish due to sparking. Learned advocate, Ms.Bhaya has submitted that the Hon'ble Court has wrongly given undue emphasis to the evidence that there was no tamper with the seals of the meter and all the seals affected by the electricity company are found in Page 11 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined order and in a sealed condition and, therefore, case of the theft of electricity consumption cannot be said to be established. The aforesaid observation of learned Judge is against the evidence available on record and, hence, requires to be modified. Learned Judge has fallen in error by wrongly appreciating and evaluating the evidence available on record that "R" phase 50% current was not passing because the metallic wire is inserted and earthing was done and, therefore, "R" phase current should not be recorded in the meter and the observations of learned Judge that merely "R" phase earthing has been done, therefore, it cannot be said that this is a case of theft of electricity. Learned advocate, Ms.Bhaya has submitted that there are many ways in and ways out, on the basis of which theft of electricity can be made out and it is not necessary that for the purpose of committing the offence of theft of electricity, tampering with meter/wiring system, the seals of the meter are required to be opened. Without opening seals, all the wiring system of the meter, by adopting other ways and mode of tactics, theft of electricity can be done. The reasons assigned and the findings arrived at by the learned Judge goes on to show that probably, learned Judge could not understand the actual mode and manner of Page 12 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined calculation method of the feeder loss and, therefore, the learned Judge could not be able to appreciate and interpret the loss of feeder in correct manner and jumped to the conclusion, which is against the evidence on record. It is an admitted position of fact that the defendant- electricity company has uninterruptedly sent electricity to the plaintiff-company and they were getting regular supply but the units of electricity were not recorded in the meter accordingly and for that purpose, it cannot be said that due to feeder loss those units of electricity had not been consumed by the plaintiff-company and recorded in the meter and thereby the learned Judge has wrongly come to the conclusion that feeder loss is not caused to the electricity company due to earthing done by the plaintiff-company.
10. Learned advocate, Ms.Bhaya has submitted that at the time of instituting connection of electricity connection it has been specifically directed to the plaintiff company to supply the TV meter and time switch together and the time switch is the instrument on the basis of which the consumption of electricity units during the period of day time and night time can be gazed.
11. Learned advocate, Ms.Bhaya has submitted that the appellate committee has reduced the bill issued by the electricity company by adopting Page 13 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined the normal calculation mode and ordered to recover the amount of actual loss suffered by the electricity company by reducing the amount of supplementary bill. The said order passed by the appellate committee is contrary to the terms and conditions of supply, which clearly goes on to say that the calculation formula would be as per NHC formula and at the time of reducing the amount, NHC formula calculation mode as per consumption of unit was not applied. The electricity company has not preferred any appeal against this order, because normally it is the practice of the board not to prefer an appeal against the decision of the appellate committee. The board has accepted the decision despite the fact that the defendants are entitled to get charge of electricity as per the NHC formula. It is submitted that the feeder loss is not a criteria to decide the modus operandi. The appellate committee has worked out the extent of loss on account of earthing and accordingly directed to calculate the bill for that amount, instead of following the standard NHC formula incorporated in the statutes. Learned advocate, Ms.Bhaya has submitted that the consumption of electricity unit is not the sole criteria on the basis of which one can jump to the conclusion that theft of electricity is committed or not and reiterated the argument that if a person Page 14 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined starts factory today and tomorrow he would be found in the case of theft of electricity, in that event, it cannot be said that he has not committed theft of electricity on the basis of consumption data. The bill may be prepared and issued accordingly but it cannot be said that he has not indulged in the activity of theft of electricity. Therefore, all the arguments based upon the consumption data are required to be considered as irrelevant and immaterial.
12. Learned advocate, Ms.Bhaya has submitted that, as per the evidence available on record, it is found out that in the feeder as per the scientific data 40% units were found less due to transmission loss, when the inspection team of the electricity board has checked the meter box with the instrument of acue meter which showed that in "R" phase and "B" phase current there was difference of 50% which normally should be equal and close to the same, but due to earthing done the 50% current is found in "R" phase and the rest of the 50% is found in the earthing line. Therefore, the reasons assigned and finding given by the learned Judge about the incident of theft is against the evidence available on record and has no legs to stand for a moment and, therefore, the impugned order is required to be modified. Learned Judge has opined that if loss is found, in that event, in Page 15 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined absence of any cogent evidence, the consumer cannot be held liable and it cannot be said that he has committed theft of electricity. The said finding given by the learned Judge is not in consonance with the evidence available on record. On the contrary, at the time of issuance of theft bill, feeder loss data requires to be looked into for giving benefit to the consumer for the purpose of calculation of actual loss caused to the board. It is submitted that considering the factual aspects as well as evidence available on record, this is a fit case wherein electricity company has successfully proved its case by leading cogent, convincing and reliable evidence but it was not considered and appreciated by learned Judge in proper perspective. Hence, the judgment and order passed by the learner Judge is required to be quashed and set aside by allowing present First Appeal and liability to pay the revised supplementary bill as per the order passed by the appellate committee consisting of expert persons should be fastened on the head of the respondents.
13. Per contra, learned advocate Mr. D.K.Trivedi, who appears on behalf of the respondent original plaintiff has submitted that this judgment and award passed by the learned Judge is just, fair, reasonable and based upon the sound principles Page 16 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined of law. Learned Judge has considered each and every evidence available on record in true spirit and proper perspective. Not only that after appreciating and considering the same, learned Judge has passed a detailed reasoned order by discussing each and every aspect of the matter in a very exhaustive manner, therefore, the impugned judgment and order passed by the Court below is required to be confirmed by dismissing present first appeal.
14. Learned advocate, Mr.Trivedi has submitted that it is an undisputed fact that on 7 th May 1993, team of officers of the electricity company had visited the factory of the respondent and during inspection they have prepared panchnama in presence of independent persons as well as in presence of representatives of the plaintiff. The officers of the electricity board has prepared a case of theft of electricity and supplement electricity bill of Rs.1,85,86,983/- was issued and electricity connection of the plaintiff was disconnected on immediate basis. Very serious charge of theft of electricity was levelled against the plaintiff company and the electricity connection disconnected and, therefore, immediately the respondents have preferred petition before this Hon'ble High Court for restoration of electricity connection. The said petition was allowed and electricity Page 17 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined connection was restored subject to condition to deposit certain amount which was deposited and connection was restored. Learned advocate, Mr.Trivedi has further submitted that simultaneously the respondent plaintiff has preferred an appeal before the appellate committee and at the time of the deciding the dispute between the parties the appellate committee has given findings as recorded in the impugned judgment and award.
15. Learned advocate, Mr. Trivedi submitted that the appellate committee has partly allowed the appeal of the respondent plaintiff by reducing the supplementary electricity bill from Rs.1,85,86,983/- to Rs.61,62,327/-. In short, the Appellate Committee had fixed 33% liability of the supplementary bill on the head of the respondents. Therefore being aggrieved by and dissatisfied with the said decision, the respondent had preferred Civil Suit being Special Civil Suit No. 148 of 1994 before 5 th Additional Senior Civil Judge, Bhavnagar, by raising manifold grounds, which were eventually considered by the Hon'ble Court by allowing the suit filled by the original plaintiff and, hence, present appeal is filed by the appellant
- original defendant. Learned advocate, Mr.Trivedi has submitted that at the time of deciding the suit lower Court has opined that Page 18 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined the appellate authority has not properly considered and appreciated the evidence available on record. The plain reading of the evidence clearly goes on to show that there was no incident of theft of electricity on the part of the plaintiff, a contrary conclusion was arrived at by the appellate committee and revised supplementary bill was ordered to pay by reducing the amount of supplementary bill from Rs.1,85,86,983/- to Rs.61,62,327.77. The said view adopted by the appellate committee is contrary to their earlier findings. Learned advocate, Mr.Trivedi has submitted that the trial Court has observed that the Appellate authority has concluded that after 9.2.1993, there is no possibility of earthing because after the same date electricity connections of the respondent was jointly checked by various officers of the board on three different occasions, and all three times electric reading was recorded and no difference in the consumption is found and connection and sealings were found in a sealed condition. Learned advocate, Mr.Trivedi has submitted that at the time of checking, the officers of the board have found that there is "R" phase earthing and there was feeder loss in the feeder of the Board, therefore, the appellate committee had concluded that feeder loss is attributable to the "R"
Page 19 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined phase earthing at the end of the respondents, despite the fact that there is not a single piece of evidence, which would show that feeder loss is possible due to earthing and more particularly it is an evidence on record that all necessary seals i.e. paper seal on the "R" phase and plastic seal on the CT chamber were found intact and in order at the time of visit of the officer.
16. Learned advocate, Mr.Trivedi has submitted that the appellate committee has found that incident of sparking could not be said to have happened due to earthing and in support of such finding, it is observed that a piece of armour cable was checked. Mr.Trivedi has submitted that the appellate committee believes that there is earthing in "R" phase and on examination of armoured cable, it was found that on the metallic wire, there was a joint and PVC tape was applied on said joint. However, in the operative part of the order, no where the appellate committee has given any specific finding which could establish that the incident of theft of electricity has occurred due to "R" phase earthing. Therefore, it is rightly held by the trial Court that the appellate committee has undisputedly concluded that all the seals in the meter were intact. It is necessary to give a particular finding as to how theft of Page 20 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined electricity could be possible without opening the seal.
17. Learned advocate, Mr.Trivedi has submitted that the appellate committee has opined that with the help of the officer and involvement of the officers of the electricity company, theft has been committed by the respondent-plaintiff. When the specific observations are made by the appellate authority about involvement of the officers of the electricity Board, in that event, incident of theft has to be established by the Board beyond reasonable shadow of doubt. The appellate committee has opined that loss has occurred due to earthing wire but how the loss is caused due to earthing is not mentioned in its order. It seems that only on the basis of assumption loss is attributed to earthing only. There is no evidence which could establish that feeder loss is caused as a result of "R" phase earthing and in absences of any conclusive evidence or proof against the respondent, it cannot be said that the respondent-company has committed an offence of electricity theft and as a consequential effect, supplementary electricity bill can be issued. Learned advocate, Mr.Trivedi has submitted that as soon as said fact has come to the notice of the officers of the electricity Board that there was feeder loss of 50% due to earthing, they have Page 21 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined immediately removed earthing. Even though electricity consumption of the respondent company has remained static. The officers have recorded the electricity consumption as well as reading of feeder loss and after taking into consideration the figures prior to 7 th May 1993 and post 7th May 1993, it is found that feeder loss is not as a result of "R" phase earthing and, therefore, the trial Court has after considering the evidence available on record clearly opined that feeder loss is not as a result of "R" phase earthing.
18. Learned advocate, Mr.Trivedi has submitted that data pertaining to consumption of electricity units post and prior to the date of raid was already placed on record. It is found out that prior to checking the electricity consumption for 150 days of the respondent was 1751970 units i.e. 11,600 units per day. After 14th May 1993, electricity consumption for 191 days was recorded and as per the data, the company had used 22,58,130 units and if it would be converted in days, then it would come to 11,822 units per day. Therefore, the comparison of pre and post period of checking would suggest that electricity consumption along with earthing and without earthing was the same and that is why at the time of appreciating the material available on record, learned Judge has opined in very Page 22 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined clear terms that when electricity consumption during the period when earthing was there and after removal of earthing, it is found to be same. In that event, it is not correct on the part of the appellate committee to observe that incident of feeder loss is caused as a result of earthing done by the plaintiff. The appellate committee should have taken into consideration other incidents also for the loss of electricity in the feeder, but, for the reasons best known to the appellate committee, they have not assigned single reason for the same. It is also evidence on record that total eight sub- connections were passing through said feeder. The electricity company and the appellate committee have held that loss of electricity units to the feeder is due to fault on the part of the respondent only. In fact, in the said feeder line another 3 HT and 2 LT connections were already filled and in a working condition and for the purpose of loss of electricity in the feeder, they have to also check the meter of those connections and should have reached to a conclusion after checking and assessing all the meters and connections. More particularly, in the case where after removal of earthing, consumption of the electricity is found same as earlier recording.
19. The appellate committee has reduced Page 23 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined supplementary bill by putting liability of 33% of loss of feeder line on the head of the respondent-plaintiff but on what basis and by adopting which procedure, they have reached to the particular conclusion is not mentioned in the operative part of the order and in absence of any material particular, it can be assumed that the appellate authority has considered and attributed the incident of loss of electricity at the feeder solely on the basis of earthing made in the company of the respondents. The appellate committee has to seek opinion from the Board, whether they have checked and prepared report so far as loss of electricity in the feeder line from the other customers, who have also got electricity connections from the same feeder and, therefore, in absence of proper calculation about the loss of electricity, issuance of 1/3rd supplementary bill is arbitrary and without basis of any evidence and material particular.
20. Learned advocate, Mr.Trivedi has further submitted that the plaintiff has successfully proved its case by leading cogent, convincing and reliable evidence. To disprove the case of the plaintiff, the electricity - company has examined the witness. In cross-examination of said witness, the plaintiff has proved its case very successfully. Learned advocate, Mr.Trivedi Page 24 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined has read the testimony of the said witness and submitted that very pertinent question was being asked to him that "at the time of issuance of 1/3rd bill", the period of weekly power cut, public holidays and staggering were not taken into account. (loss in the feeder due to usage of electricity by other customers from the same feeder line is occurred or not?) Learned advocate, Mr.Trivedi has further submitted that at the time of demand of the electricity connection as per the practice of the board, specific condition was imposed that after supplement of time switch and Trevecto meter, connection would be installed. Therefore, before installing the connection, the Company has already submitted all the necessary apparatus to the electricity board including the time switch and TV meter and the said witness answered affirmatively and, hence, the said fact about supply of articles has come on record in the deposition of the witness. When the Time Switch and TV meter have been handed over and lying in the custody of the electricity Board, in that event, they are answerable to give explanation as to why they have not affixed TV meter and time switch at the time of installation of electric meter. Therefore, in absence of TV meter and time switch, liability cannot be fixed on the head of the company because they have Page 25 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined already supplied it and at the time of giving electricity connection they are supposed to affix it on the meter.
21. Learned advocate, Mr.Trivedi has further submitted that as per calculation chart, 1/3 rd amount of bill of supplementary bill issued by the electricity board, ordered by the appellate committee is not correct also as the electricity Board has given 24 hours power supply and as per the conditions that power consumption limit is fixed in day time and night time. The respondent-plaintiff had already supplied time switch and TV meter, which was not affixed by the officers of the electricity company, at the time of installation of electricity connection. In that event, calculation of supplementary bill on the basis of day time operation, which is higher than night time operation is also not correct and, therefore, the bill issued by the electricity company cannot be taken into consideration in that regard also.
22. Learned advocate, Mr.Trivedi, has submitted that in the cross-examination of the said witness, he has categorically stated that at the time of getting HT connection, consumer has to apply for the same at the head office of GEB and the head office would provide list of equipments. Such apparatuses are required to be arranged and supplied to GEB by consumer and after supplyment Page 26 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined of the same, it would be inspected by the head office and when everything is found perfect and in order, in that event, power connection would be installed and started and the company had got power connection after fulfilling all the necessary and requisite conditions mentioned in the new connection form issued by the head office.
23. Heard learned advocate, Ms. Lilu Bhaya for the appellant and learned advocate, Mr. D.K. Trivedi for the respondent - Company. We have also perused the record and proceedings available on record.
24. It is the case of the Electricity Company that they have given electric connection to the respondent - Company and as per the terms and conditions of the connection, the respondent - Company (consumer) is having HT Connection for 2400 KVA, which was required to be used as per HTP-IV tariff during 10:00 a.m. to 06:00 p.m. and 500 KVA under tariff HTP-I. The respondent - Company is indulging in the construction of steel machinery and used to function 24/7 hours. In short, the respondent - Company functions in three shifts and there was no stoppage or interruption in the consumption or use of electricity connection during the process of manufacturing of the products.
25. Certain facts of the present case, which are Page 27 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined undisputed facts, are as under, 25.1 The respondent - Company has demanded electricity connection, which was eventually allowed by the appellant - board after verifying and scrutinizing all the material supplied by the respondent - Company along with application and thereafter on 11.12.1992, the meter was installed at the premises of the respondent
- Company. Thereafter on 23.12.1992, the officers of the appellant - board had gone to the premises of the respondent - Company and they have completed the sealing (meter) work, however, as the appellant - board has found loss in the units in the feeder, they have made surprise checking at the premises of the respondent - Company on three different days i.e. on 09.02.1993, 24.02.1993 and 22.04.1993 respectively and in all three times, they found that the seals of the meter were in order and in a sealed condition. Thereafter once again on 05.05.1993, the officers of the appellant -
board had gone to the premises of the
respondent - Company and inspection was
carried out in the presence of the
representatives of the respondent - Company and at that point of time, it was found that the plastic and paper seals fixed on Page 28 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined the meter were found in sealed condition but metallic wire, which were seized, was found earthed resulting into less recording of units. The officers have drawn map of the meter and also prepared panchnama. As prima facie, the officers of the appellant
- board were of the opinion that some malpractice is being carried out by the respondent - Company on the strength that 'R' Phase CT was found earthed and due to which resultant effect would be less recording of unit, therefore, electricity connection of the respondent - Company was disconnected immediately. Thereafter for the purpose of restoration of the connection, the respondent - Company preferred writ petition being Special Civil Application No.4816/1993 before this Court.
The appellant - board has issued
supplementary bill for the recovery of
Rs.1,84,86,980/- and charge of theft of
electricity was also leveled against the
respondent - Company. The respondent -
Company has simultaneously challenged the
said bill before the Appellate Committee of the Electricity Board. The Appellant Committee has partly allowed the appeal filed by the respondent - Company after considering and verifying the documentary Page 29 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined evidence available on record and ordered to issue bill for an amount of Rs.61,62,327.77 instead of Rs.1,84,86,980/-. In short, two- third amount of the supplementary bill was reduced by the Appellate Committee. Therefore being aggrieved by the said decision of the Appellate Committee, suit was filed by the respondent - Company before the court of learned 5 th Additional Senior Civil Judge, Bhavnagar, which was allowed by the learned civil Judge, therefore, the appellant - board has preferred the present petition.
25.2 It is the specific case of the appellant -
board that the electricity connection was installed on 11.12.1992 and sealing were applied upon the meter on 23.12.1992, therefore, the incident of tampering with the meter was done during that period as there was no sealing on the meter at that point of time. It is evident from the record that thereafter, on three occasions, checkings were carried out and everything was found in order. The members of the raiding party had checked the reading of the meter and it was found that current in 'R' Phase and 'B' Phase are not matching. Normally, 'R' Phase and 'B' Phase current should be the same but at the time of Page 30 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined checking, it was found that 'R' Phase current C-1 was 1.107 and 'B' Phase current C-3 was 2.176, therefore, there was prima facie abnormality found in the reading pattern and, therefore, the officers had carried out detailed investigation and at that point of time, they found that 7 core armored cable, which was coming from CT chamber, was required to be opened but due to production activity of the respondent - Company, more particularly, as furnace was on, the officers could not be able to check it instantaneously and they waited there for around 1½ hours and, thereafter, they opened it and found that 'R' Phase CT main Green colour, which is of armored cable of metering ½ inch insulation, was cut and in the inside, metallic wire was connected and same way, Grey colour load wire was also found peeled off and internal metallic wire was found connected with earthing system and due to this operation, internal system has been disturbed and condition of armored cable and metallic wire are found to be abnormal and automatically, those position cannot be organized naturally or incidentally. It is clearly observed in the joint inspection report that due to above arrangements, 'R' Phase CT current was half Page 31 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined of the current and remaining half current was not getting recorded in the meter. The said current was going to earthing and accordingly, meter reading is reduced considerably. As per the inspection report, due to tampering made in the armored cable and metallic wire, 'R' Phase was getting only 50% current and, therefore, as a resultant effect, less consumption of electricity unit was recorded in the meter. Hence, the charge of theft of electricity was leveled against the respondent - Company.
25.3 The appellant - board has come with a case that some of the members of the appellant - board had made hand-in-glove with the respondent - Company and with the help of them, a systematic modus operandi was applied in collusion with the officers of the appellant - board to record less number of units in the meter and by adopting such modus operandi, they have played fraud with the appellant - board.
26. The Appellant - board has come with the defence that if the incident of theft is found in LT connection, in that event, supplementary bills are to be issued as per ABCD formula, whereas in case of HT connections, bills should be issued as per MHC formula and accordingly, Page 32 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined supplementary bill was issued. The respondent - Company had approached the Appellate Committee to challenge the supplementary bill of Rs.1,84,86,983/- on depositing requisite amount. The Appellate Committee is an expert body consisting of legal expert as well as technical expert. The Appellate Committee has verified the material available with them and at the time of deciding the appeal, the Appellate Committee has opined that metallic wire has been tampered with and Green Grey wire of armored cable insulation was removed near end armory end insulation burnt spot were found. The Green and Grey wire were found connected with the armored cable through metallic wire and PVC tape was found on the joint. It is also observed that as plastic seals and open cables connected with meter were found inside the box, difference on 'R' Phase and 'B' Phase cable round about 50% variation found. Generally, it should be the same or close to equal and thus, the Appellate Committee jumped to a conclusion that the conclusive evidence shows that this is a case of theft of electricity and there were round about six electricity connections found available in the same feeder line and out of six connections, four were HT connections and two were LT connections and total loss of feeder about 40% was found, which should in normal condition have Page 33 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined been found round about 1%. The length of feeder is about 0.5 km. 'R' Phase CT connection was found earthed and resultant effect was recording of less units by 35.34% as per the data collected by the officer of the appellant - board from the transformer of particular feeder as well as workout-sheet of transmission loss and looking to the total number of consumers on the feeder, the Appellate Committee has reduced the bill from Rs.1,84,86,983/- to Rs.61,62.327.77 ps. The appellant - board has issued supplementary bill as per MHC formula but considering the data available with the Appellate Committee, they have reduced the bill by adopting the technical method calculating principally by adopting the theory of actual loss of electricity units. As such, the appellant - board generally used to accept the decision of the Appellate Committee, therefore, despite the fact that they are aggrieved with the said order of reduction in the bill. The appellant - board could have challenged the same by way of preferring separate suit, instead of that, they have accepted the order of the Appellate Committee.
27. On perusal of the order of the Appellate Committee, the Appellate Committee has given following findings at the time of deciding the appeal, which are reproduced hereunder to Page 34 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined understand the core issue of controversy involved between the parties,
1) Plastic seals and paper seals were found as per record, before checking of the installation on 7.5.93.
2) Plastic seals provided on the CT Chamber were also found the same at the time of checking.
3) Consumption of the party before and after
the installation checking were also
tallied, i.e. no increase in the
consumption has been noticed after
checking of the installation.
4) Since all seals were OK at the time of
checking and Govt. has put all the Steel Plants under observation and accordingly the representative of Chief Elect.
Inspector was visiting Steel factories
and putting the paper seals. Even for
taking monthly readings, their
representative was coming to open out the trivector-meter and to reset the maximum demand. The reading were jointly taken on 9/2/93, 24/2/93 and 22/4/93. Hence any possibility of earthing CT is ruled out during the above period, which means this have been done before 9.2.93.
5) Second Trivector-meter and time-switch was not provided by the party and hence Page 35 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined day & night units could not be separated. Even after expiry of 4 weeks permission to the power round-the-clock, no action has been taken by the concerned Engineer to fulfill this condition. Thus, possibility of utilizing day power other than night hours could not be ruled out. By not providing time-switch and 2nd TV meter creates doubt.
6) While reconnecting supply on 14.5.93, it has been mentioned in the Panchnama that "cable entry hole of the CT Chamber found blackened for and may create a doubt. However, the armoured cable metallic wire used for earthing the Phase wire is not possible due to the sparking.
7) The R phase CT was found earthed resulting in recording of less units by trivector-meter by 35.34% of the recorded units. This less recording corroborates with the percentage feed loss on this feeder, which is about 40% and is on much higher side. On this feeder, total 3 HT consumers and 2 LT consumers having a total load of 3447 KVA, out of whichm M.s. Mono Steel having a load of 2400 KVA. Thus, theft of power is committed by the consumer in connivance with the local staff.
Page 36 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined
28. It is the specific submission canvassed by learned advocate, Mr. Trivedi that it is the settled proposition of law that the mode and manner and procedure to appreciate the evidence available on record is quite different in civil matters compared to criminal matters. In criminal matters, the complainant has to prove its case based upon the principal of beyond reasonable doubt, whereas in civil matters, the plaintiff has to prove his case on the principle of preponderance of probability and at the time of leading evidence as per the pleading, if the party proves certain facts, in that event, burden shifts on the head of the opposite side to disprove the said evidence and at the time of appreciation and considering the material available on record, the learned Judge need not have to decide the issue involved on the basis of the presumption and assumption and submitted that despite the fact that clear-cut and clinching evidence available with the members of the Appellate Committee that there was a feeder loss in the feeder but entire loss was attributed to 'R' Phase earthing of the Company, despite the fact that there was no evidence to the effect that feeder loss caused or possible due to earthing, more particularly, it is clearly found from the record that all the seals i.e. paper seal on 'R' Phase and plastic seals Page 37 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined on CT chamber were found in a sealed condition at the time of visit of the officers.
29. It is contended that the Appellate Committee opined that the officers of the appellant - board were involved in the incident of theft of electricity and they have made hand-in-glove with the respondent - Company. The Appellate Committee has not given any specific finding, on the basis of which, theft of incident of electricity could be said to have been established beyond reasonable doubt more particularly, the officers of the appellant - board have made hand-in-glove with the respondent - Company. In absence of any evidence and material particular, one cannot reach to a specific conclusion. Therefore, we are of the opinion that the members of the Appellate Committee have jumped to the said conclusion on the basis of presumption. It is well settled by a plethora of judicial pronouncement of the Hon'ble Apex Court as well as this Court that suspicion however strong cannot take the place of "proof". The Appellate Committee has opined that the feeder loss is attributed due to earthing only but to substantiate their claim, they have not assigned any reason. The Appellate Committee has opined that the feeder loss is result of R Phase earthing but failed to assign any reason for the same and it is evident that Page 38 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined only on the basis of assumption, they have jumped to such conclusion. It is evident from the record available on record that feeder loss is not caused due to 'R' Phase earthing because after removal of earthing, the electricity consumption of the Company has remained almost same or constant. Not only that feeder loss of electricity board has also remained constant. The documents pertaining to consumption of electricity as well as reading of feeder loss are produced on record and bare perusal of the said data clearly goes on to show that consumption of units prior to checking of electricity consumption for 150 days of the Company was 17,51,970 units, which comes to 11,680 units per day consumed by the respondent
- Company, whereas in the post checking sheet i.e. after 04.05.1993, the consumption of units for 195 days was recorded as 22,58,130 units, which comes to 11,822 units per day consumed by the respondent - Company during that period. At the time of post checking, 'R' Phase earthing was removed and, therefore above stated data would clearly show that the electricity consumption in the old connection with earthing and new connection without earthing was almost found the same. The electricity consumption during the period when earthing was made and in absence of earthing, it remained constant and, Page 39 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined hence in that event, it is not correct to fasten liability on the head of the respondent - Company by solely attributing feeder loss due to result of earthing. It is also admitted position of fact on record that in the same feeder line, another 3 HT and 2 LT connections were found connected. As per the data collected and produced by the appellant - board, round about 40% electricity loss was found in the feeder line and entire loss was fixed on the head of the respondent - Company. The appellant - board is miserably failed to lead evidence to the effect that that the officers of the appellant - board had verified and scrutinized the data of other 3 HT and 2 LT connections available on the same feeder line whereupon loss is found, more particularly, the officers of the appellant - board were of the definite opinion that the feeder loss should be required to be attributed 1% due to loss in the line, instead of that, if huge feeder loss of 40% was found in the feeder line and there are another 5 connections found to be available on the same feeder, in that event, the appellant - board has to come with specific case that they have verified the data of other connections and made inspection about condition of meter as well as actual consumption of electricity units were tallied with the supply of connections. It is admitted position Page 40 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined of fact on record that the appellant - Company has not produced data about the rest of the connections and, therefore in absence of such vital and important evidence, entire liability should not have been fastened on the shoulder of the respondent - Company solely on the ground that 'R' Phase CT connection was unearthed. The appellant - board has to come with specific case that there was no feeder loss in the connections by any other connections except present Company and in absence of such important evidence, entire liability of feeder loss cannot be put on the head of the Company. The appellant - board's officers have not inspected other HT and LT connections and submitted report to the effect that there was no feeder loss on the part of those connections. The said set of evidence is the conclusive proof that the connection and consumption of the rest of the units are correct and found in order as per the prescribed standard of Electricity Manual and provision of Electricity Act and Rules, and in absence thereof solely on the basis of assumption and presumption, liability cannot be fastened on the head of the respondent - Company.
30. It is found out from the record that the supplementary bill issued by the appellant - board has been reduced to two-third and bill for an amount of one-third has been calculated Page 41 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined solely on rational basis without taking into consideration the period of public holidays, staggering (weekly power cut) and other holidays.
31. From the cross-examination of the witness examined by the appellant - board, it is also revealed that the appellant - board has given electricity connection with specific direction to use the said electricity connection without any interruption 24 hours in a day and night time continuously and as per the terms of the connection, usage of power is specified for the day and night time. The maximum consumption of electricity was generally found during day time and, therefore, the condition of usage of less voltage has been specified in the contract as a condition precedent and with the sole purpose to make check, control and balance the usage of power as a condition precedent, a time switch and TV meter are required to be installed. It is evident from the record that time switch and TV meter were not found connected in the connection at the time of inspection, therefore, it can safely be said that the usage of power supply could not have been identified as specific device to control the usage of the said electricity units in the day time is not affixed with the electricity connection at the time of installation. As tariffs of day time are much Page 42 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined higher than night time, the said witness has candidly accepted in the cross examination of the defence that the steel company was having HT connections and for the purpose of HT connections, the owner of the Company has to submit an application to the head office to get connection and in turn, head office will have to provide the list of equipments, which the consumer would have to provide to the appellant
- board and after the arrangement of the said equipments, quality of the equipments would be inspected/ tested by the head office and if found in order, in that event, power connection would be installed by affixing those equipment along with connections.
32. Learned advocate, Mr. Trivedi, who appears on behalf of the respondent - Company has forcefully submitted that to substantiate the claim of the Company, they have produced certain documents on record and same were shown to the witness and in turn, after verifying the said documents, the said witness has admitted that time switch and TV meter were supplied by the appellant - Company to the board and, thereafter, the electricity connection was installed and established by the Electricity Board. Therefore at the time of checking and inspection of the premises, if TV meter and time switch are not found fixed with the connections, Page 43 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined in that event, it can be said that there was fault on the part of electricity board and due to their fault, the officers of the Electricity Board cannot fasten liability upon the respondent - Company and they could not get any valuable right to say that there was fault on the part of the respondent - Company because those equipments were already supplied well in time to the appellant - board but for the reasons best known to the officers concerned, they have not affixed it at the time of installation of connections and the said liability and responsibility cannot be fixed on the head of the Company due to fault on the part of the officers of the appellant - board. Admittedly, it may be safely said that apparently on the basis of the evidence available on record, it would be found that there was dereliction of duty on the part of the officer of the appellant - board because they supposed to have to verify the same before installing the connection. At the time of demanding the electricity connection, the respondent - Company has already fulfilled all basic and requisite requirements of the board by supplying all equipments. In that event, it is the duty of the officers of the board to verify the same and before installing the connections, they have to see to it that those equipment are Page 44 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined installed with the connections or not and after installing the connection, the Electricity Board cannot get right to raise its voice against the respondent by stating that TV meter and time switch are not found connected with the electricity connection and in absence of TV meter and time switch, the officers of the checking squad of the appellant - board could not be able to identify actual usage and consumption of the electricity unit during day time. It is also found from the record that the Appellate Committee has reduced the supplementary bill to the extent of two-third of the actual bill but failed to give any plausible explanation to tell that which evidence made them to derive to a particular conclusion to issue one-third bill. There should be some rationality in calculation, which brings the Appellate Committee to reach to a particular findings. The Appellate Committee jumped to a conclusion that there was consumption of particular units of electricity by the company and, therefore on the strength of said evidence, one-third bill of the supplementary bill is required to be issued and accordingly, the said bill was issued. At the time of reaching to particular conclusion, the Appellate Committee has not given any plausible explanation and, therefore in absence of any concrete reason and Page 45 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined findings, the learned Judge has rightly not considered the said observations made by the Appellate Committee and the said view adopted by the learned Judge is just, fair and reasonable and we do not find any perversity or infirmity in the said decision of the learned Judge as documents available on record itself goes on to show that the usage of the consumption of electricity units are found almost similar during pre-checking and post-checking.
33. It is also found out from the testimony of one Mr. Rajyaguru, who was the officer of the appellant - board that at the time of checking of CT chamber and 'R' Phase, seals were found properly placed on the meter and seals were affixed by the officer of the appellant - board on 11.12.1992 and on the day of checking i.e. on 07.05.1993, seals were found in same conditions and by no stretch of imagination, it can be construed that earthing in 'R' Phase would be done without removing the plastic and paper seals. The seals were found in intact position from the date of connection established and till the date of checking. It is also found out from the evidence available on record that during the interregnum period, due to feeder loss found by the board, three times checking was carried out by the officers of the appellant - board into the premises of the respondent - Company but Page 46 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined they could not be able to find out any incident of theft of electricity. On the contrary, all the equipment and conditions of the meter are found in order and, therefore, in absence of any cogent, convincing, concrete and reliable evidence, it cannot be said that the incident of theft of electricity was done during that period. The said witness has also deposed that on the same feeder line, there are three HT connections and two LT connections and the said fact is found out from the record of feeder map. At the time of deriving to the conclusion that there was loss of electricity on the feeder due to 'R' Phase earthing in the CT connections is made by the respondent - Company because the respondent - Company was having 2400 KVA load, the documents pertaining to the usage of the electricity units of the rest of the connections have not been placed on record and simply on the basis of the assumption, the officers of the appellant - board have stated that the feeder loss of electricity is happened due to malpractice made by the respondent - Company.
34. At the time of making submission, learned advocate, Ms. Bhaya put reliance upon the booklet issued by the Gujarat Electricity Board pertaining to the conditions and miscellaneous charges for supply of electrical energy, it is submitted that specific condition is already Page 47 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined incorporated in the particulars of booklet, more particularly, Condition No.33, which provides for 'Malpractice and Theft of Energy'. Learned advocate, Ms. Bhaya has emphatically submitted that it is specifically stated in the booklet that unauthorised addition, alteration and/or extension to the consumer's electrical installation without the permission of the Board would fall under the category of malpractice and any consumer, who dishonestly abstracts, consumers or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code.
35. It is true that there was loss of electricity in the feeder but there are total six connections on the said feeder line and, therefore, feeder loss is occurred due to whose fault is required to be identified and verified first by making inspection to the premises of all the consumers. Admittedly here in this case on hand, the appellant - board has not produced any concrete material, on the basis of which, one can jump to a conclusion that except the present company, there was no fault found in other connections in the feeder line. If the officers of the appellant - board have carried out search in the premises of the rest of the connections and reached to a definite conclusion that there was no fault found in the connection of rest of the Page 48 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined consumers as per the evidence collected by the officers concerned and the feeder loss cannot be attributed to the rest of the connections, in that event, liability of the feeder loss can definitely be fastened on the head of the rest of the company i.e. the respondent - Company but in absence of any concrete material, simply 'R' Phase CT earthing is found in the connections, liability cannot be fastened on the head of the Company simply because after the removal of the said earthing, the officers of the appellant - board have verified the load of the electricity and found that reading of the electricity connection are same as earlier before. Secondly, the data chart of the consumption of electricity unit before and after the checking was collected and it shows that during the period before six months when 'R' Phase CT connection was joined with earthing and after the removal of the said earthing, six months post checking period was calculated and consumption of electricity units are almost found identical similar in nature and the same amount of units were consumed during that period and more particularly, seals are found in intact condition and as per the deposition of the witness of the appellant - board that without removal of seals, cabling connections cannot be tampered with. Therefore on the strength of material placed on record, it Page 49 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined can be safely said that the liability of the theft of electricity units cannot be fastened on the head of the respondent - Company.
36. It is an admitted position of fact that as per the condition of the contract, 24 hours electricity was provided to the Company and out of 2400 KVA, 500 KVA electricity is required to be used for 8 hours in the night hours i.e. for the period between 10:00 p.m. to 06:00 a.m. It is alleged that in absence of time switch, it is to be assumed that 2400 KVA load was used throughout for 24 hours and considering the said number on the basis of ABCD formula, bill was prepared and calculated. If it is to be calculated that the Company has utilized 2400 KVA electricity 24 hours during the period from the date of installation of connections i.e. 11.12.1992 till the day of checking i.e. 07.05.1993, in that event, it can be said that the Company might have utilized and consumed 46,49,426 units, whereas consumption of electricity was found 17,53,590 and by applying the said calculation, supplementary bill of Rs.1,84,86,983/- was issued alleging that there was theft of electricity. The calculation shown by the appellant - board is also not as per the formula and in-consonance with the statutory provision.
37. It is argued by learned advocate for the Page 50 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined respondent - Company that when the bill was prepared without applying ABCD formula then, it can be said that there was theft of electricity, whereas on the case on hand, the appellant - board has levelled charge that there was incident of theft of electricity and that is why supplementary bill was issued. The stand taken by the appellant - board at the time of issuance of supplementary bill and mode and method adopted in the calculation-sheet in the supplementary are quite contrary to the statutory provision and, hence, the appellant - board's claim is not in-consonance with the provision of the Electricity Act. Therefore, the appellant - board is not entitled to claim any relief as prayed for. After verifying and scrutinizing all the material available on record, we cull out following points, which are as under, (1) From the very inception, the date when the electricity connection was installed i.e. on 11.12.1992 till the date of checking i.e. 07.05.1993, three times checking were made by the officers of the appellant - board and the connection was found in order in all three times. The officers of the appellant - company had already applied seals to the meter on CT Page 51 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined chamber and 'R' Phase and they were found intact during above period.
(2) The average consumption of unit per day before removal of 'R' Phase earthing and post removal of 'R' Phase earthing are found very close. The feeder loss after the removal of 'R' Phase earthing and before removal of 'R' Phase earthing are also found same.
(3) There are total six connections available on the same feeder and no document pertaining to checking report of those connections are placed on record.
38. Therefore considering the evidence available on record and the deposition of witnesses available on record, we are of the opinion that the learned Judge has passed judgment and award after appreciating evidence and evaluating all the material before him and after giving due weightage to all the points and has given cogent and convincing reasons, which do not require interference.
39. So far as contentions raised by learned advocates for the parties with regard to the interest portion of the supplementary bill, we have gone through the judgment and award and found that at the time of deciding the issues, the learned Civil Court has clearly opined that as per the contract, the plaintiff - Company is Page 52 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined entitled to recover the principal amount along with interest. As there was contractual terms and conditions, both the parties are ready and willing to fulfill the terms and conditions of the contract. In that event, the appellant - board is required to follow the condition of the terms and conditions as incorporated in the contract as it is on the head of the company to fulfill the contractual obligation levied upon it. As both the parties have voluntarily entered into contract mentioning the provision of the interest, the appellant - board has to pay the interest as mentioned in the contract.
40. At this stage, we would like to put reliance upon the decision of the Hon'ble Supreme Court in case of Venkatesh Construction Company Vs. Karnataka Vidyuth Karkhane Ltd., reported in (2016) 4 SCC 119, wherein the Hon'ble Apex Court has observed in Paragraph No.20 as under, "20. The Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our Page 53 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside."
41. At this stage, we would like to put reliance upon the decision of the Hon'ble Supreme Court in case of V. Prabhakara Vs. Basavaraj K. (Dead) by Legal Representatives & Ors., reported in (2022) 1 SCC 115, wherein the Hon'ble Supreme Court has observed in Paragraph Nos.21 and 22 has observed as under, "21. A relief can only be on the basis of the pleadings alone. Evidence is also to be based on such pleadings. The only exception would be when the parties know each other's case very well and such a pleading is implicit in an issue. Additionally, a court can take judicial note of a fact when it is so apparent on the face of the record. A useful reference can be made to the following passage in Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491:
"15. The relevant principle relating to circumstances in which the deficiency in, or absence of, pleadings could be ignored, was stated by a Constitution Bench of this Court in Bhagwati Prasad v. Chandramaul [AIR 1966 SC 735]: (AIR p. 738, para 10) "10. ... If a plea is not specifically made and yet it is cov- ered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the Page 54 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is:
did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
23. It is fundamental that in a civil suit, Page 55 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of re- lief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court can- not grant a decree for rupees ten lakhs. In a suit for recovery possession of property 'A', court cannot grant possession of property 'B'. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc."
(emphasis in original) Section 96:
22. The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to Page 56 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023 NEUTRAL CITATION C/FA/1822/2007 CAV JUDGMENT DATED: 23/08/2023 undefined the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone."
42. In view of the aforesaid observations made by the Hon'ble Apex Court in the aforesaid decisions and considering the facts of the present case as discussed hereinabove, the present appeal fails and stands dismissed.
Interim relief, if any, stands vacated.
Sd/-
(ASHUTOSH SHASTRI, J.) Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 57 of 57 Downloaded on : Sun Sep 17 02:10:46 IST 2023