Gujarat High Court
Gujarat Urja Vikas Nigam Ltd., vs Packing Well on 16 July, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1368 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 12073 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed to YES
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 NO
judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of India
or any order made thereunder ?
==========================================================
GUJARAT URJA VIKAS NIGAM LTD., & 1 other(s)
Versus
PACKING WELL
==========================================================
Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1,2
MS SUDHA R GANGWAR(329) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 16/07/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1 This appeal under clause 15 of the Letters Patent is at the instance Page 1 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021 C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 of the original respondents of a writ application and is directed against the order passed by a learned Single Judge of this Court dated 30 th June 2017 in the Special Civil Application No.12073 of 2002, by which the learned Single Judge allowed the writ application filed by the respondent herein (original writ applicant) and granted the relief as prayed for in the writ application.
2 The impugned order passed by the learned Single Judge reads thus:
"It is prayed to set aside order dated 13 th November, 2002 of the appellate committee of the erstwhile Gujarat Electricity Board which inter alia held that there was a resale of electricity on part of the petitioner.
2. Petitioner was a consumer of respondent and had electric installment for its manufacturing unit situated at Village Sanathal. The petitioner was running a factory of packaging material and for the said manufacturing industry, he had electric connection with contracted load of 100 HP. The connected load was found to be 50.2 HP. The said industry was run at Shed No.15B. The petitioner purchased from Gujarat State Financial Corporation, in auction proceedings, adjoining Shed No.19 for the purpose of expansion of area of industry. After the said purchase, manufacturing activity which was carried on in Shed No.15B was carried in both the sheds with extended area.
3. On 28th February, 2002 the Deputy Engineer of the respondent paid visit to the installation of the petitioner at the manufacturing unit. It was noticed by the said authority that the electricity was used in Shed No.19 along with Shed No.15B for the purpose of industry of the petitioner. The Deputy Engineer treated the said act to be resale of energy. A special bill amounting to Rs.03,95,065.13 was issued to the petitioner. The petitioner preferred Appeal before the appellate committee being Appeal No.B-146 of 2010. The appellate committee did not accept the contention of the petitioner that the same business was carried out under one ownership with extended area of Shed No.19. The appellate committee concluded that there was resale of electricity.
3.1 At the time of issuing Rule on 26th June, 2003, this Court passed following order.
Page 2 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 "Rule. Heard the learned Counsel for the interim relief. Considering the facts and circumstances of the case, since the petitioner has already paid 50% of the disputed bill, the respondent authority is directed to reconnect the electricity supply on payment of usual charges for reconnection and they shall not disconnect on the ground of the impugned order of the appellate authority and on a further condition that the petitioner shall continue to pay the regular bill. The petitioner shall also furnish security within period of 30 days to the satisfaction of the Board for the balance amount of the disputed bill. The petitioner shall also not transfer or alienate the unit in question without an express permission of this Court."
4. Heard learned advocate Ms.Sudha Gangwar for the petitioner and learned advocate Ms.Maya Desai for the respondents. It was submitted by learned advocate for the petitioner that the petitioner had complied with the conditions imposed under the interim order dated 26th June, 2003. According to her submissions, appellate committee was a quasi judicial body which ought to have appreciated the cogent evidence and material. On the other hand, learned advocate for the respondent submitted that Shed No.19 was required to be treated as different premises and the finding of the appellate committee about resale of electricity by the petitioner was justified.
5. Having considered the facts and material on record and examining the order of the appellate committee in that context, certain facts have clearly emerged. The petitioner originally owned Shed No.15B. He subsequently purchased Shed No.19 on 08th March, 1995 in auction proceedings. As both the sheds were adjoining, petitioner wanted Shed No.19 for the purpose of expansion of the industry. Both the plots were merged by removing wall between them and the manufacturing activity was extended. The same industry of manufacturing packaging material was run in the total area comprised of Shed No.15B and Shed No.19. It was only expansion of total area of industry without change of any industrial activity.
5.1 Not only that, the documents were abound which showed that the industry was under one ownership. The partnership deed of the petitioner mentioned that both the sheds were owned by one firm with single production undertaken as above. A permission was obtained for installing generator on 12th August, 1997. This permission was also common for both the Sheds. The plan which was submitted and sent for sanction for having installation of 125 KVA generator showed that it was for one industry run in the total area. Copies of the partnership deed, permission for generator as well as of the Index of the sale deed inter alia the plot was purchased were the relevant documents before the competent authority and were also on record of the appellate committee.
Page 3 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 5.2 The appellate committee proceeded erroneously to record finding that the partners were different, therefore ownership was different. In this, the appellate committee overlooked that there was a mere change in the constitution of the partnership and had additional partner. It was nonetheless industry run by family members with unity of ownership.
6. Admittedly there was one industry run in the expanded Plot/Shed after purchase of Plot/Shed No.19. There were no 'two connections' as such as the electricity connection was only one. Only because the additional area of Plot/Shed was added in the existing area and the industry was run in the expanded place with single meter installation as earlier existed, it could not be said that it was resale of energy. The appellate committee accepted to record the position that there was no additional installation of machinery in the adjoining Plot/Shed No.19. Also there was one electric installation and the meter was single for single industry. Despite these factual aspects evidenced by the material on record, the conclusion was reached that the electricity was resold by the petitioner since Plot/Shed No.19 was also used for the purpose of industry. This conclusion clearly militated against all cannons of rationality. The conclusion was arrived at by the appellate committee in disregard of the evidentiary material on record, therefore the same clearly rendered perverse.
7. For the foregoing reasons and discussion, it is not possible to sustain the impugned order of the appellate committee in so far as it held that the consumption of electricity by the petitioner for its industry was resale. The impugned order is accordingly set aside to the said extent.
Rule is made absolute accordingly."
3 Thus, it appears from the aforesaid that the writ applicant has been allotted the Shed No.15B situated at the village : Sanathal. The writ applicant is a consumer of the appellants. The writ applicant is in the business of packaging material and has a factory. For his manufacturing unit, the appellants provided electric connection with the contracted load of 100 HP. Later in point of time, in one auction proceedings conducted by the Gujarat State Financial Corporation, the writ applicant purchased the adjoining Shed No.19 for the purpose of expansion of his industry. Thus, the writ applicant became the owner of two Sheds i.e. Shed No.15B and Shed No.19 respectively.
Page 4 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 4 It is not in dispute that the electric connection with the contracted
load of 100 HP is in the Shed No.15B. After purchasing the adjoining Shed No.19, the writ applicant demolished the partition wall and extended the electric connection upto Shed No.19. This was noticed by the officials of the appellants during their visit to the manufacturing unit. The appellants considered such extension of the electric connection to the Shed No.19 as illegal and resale of energy. In such circumstances, a supplementary bill amounting to Rs.3,95,065.13 was issued to the writ applicant.
5 The writ applicant, on being served with a supplementary bill referred to above, preferred an appeal before the Appellate Committee being the Appeal No.B-146 of 2010. The Appellate Committee partly allowed the appeal holding as under:
"Before the Appellate Committee, G.E.B. Appellant : Packaging Well, Sanathal- Bavla.
Respondent : 1. The Gujarat Electricity Board.
2. The D.E., GEB, Bopal Sub-Division.
Following members were present on 13-11-2002.
1. Shri BS Patel, Chief Engineer (Appellate), GEB, HO, Baroda
2. Shri MP Bhatt, Member Invitee (Legal)
3. Shri SM Moghe, Member Invitee (Tech.)
4. Shri PM Gandhi, Superintending Engineer (Appellate), GEB, HO, Baroda.
5. Shri VB Dave, Superintending Engineer (RE), GEB, HO, Baroda.
The facts of the present appeal are briefly staled as under :
The appellant runs his unit at village Sanathal of Bopal Sub-division of Bavla Division having Consumer No. 71906/00550/8 I-688 with contract load of 100 HP and connected load was found to be 50.2 HP. The Dy. Engineer, I/c Squad, Sabarmati, checked the electric installation of the appellant's unit on 20.2.2002 and on checking it was found that the appellant was using power supply at plot No.19 instead Page 5 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021 C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 of plot No. 15 B. It may be stated here that he had his electrical connection in plot No. 15-B. It was felt by the officers of the Board that there was resale of power in as much as the supply was used for the machinery installed in adjoining plot No. 19 instead of 15-B. Therefore, the respondent Board had issued Sp. bill amounting to Rs. 3,95,065-13 ps. to the appellant. The appellant had paid 50% of the said amount. The connection was not disconnected. The appellant being aggrieved by the said Sp. bill preferred this appeal.
Shri Mohammed Umar Mohammed Ali Pahelari, Partner of the Firm appeared before the Committee whereas Shri R.G. Patel, Dy. Engineer, Bopal Sub-Division, appeared on behalf of the Board. The appellant submitted written submission.
'The appellant inter alia has stated that prior to 8.3.95 they were doing their manufacturing work in shed No. 15-8, which had the connected load of 50 HF. Since their work increased they had purchased adjoining plot No. 19 in auction sale by G.S.F.C. They used 50 HP of power in shed No. 19. They have stated the description of their plots. They have further stated that they have applied on 20.5.96 for the additional power wherein they had stated about the plot No. 19 also. They have further stated that the officers of the Board have already taken survey of the site in connection with their application. They have further stated that the ownership of shed No. 15-B and shed No. 19 is of same owner and that their manufacturing business is being done under the name and style of M/s. Packing Well. The appellant produced annexure G, the Partnership Deed and has further stated the production is being done by the management of the said Firm and there was no resale of power. Since the ownership of the plots does not change, there is no resale and that the Sp. bill be quashed and set aside.
The Dy. Engineer Mr. R.G. Patel, relied on the checking sheet dated 20.2.2002 and contended that the whole machinery was installed by Packing Well in the plot No. 19 and this amounts to resale and that the Sp. bill that has been issued is proper and in order.
We heard both the parties and perused the record. On perusal of the checking sheet No. 007024 dated 20.2.2002, it is mentioned that the connected load of 50.2 HP was installed in shed No. 19 - while the original electrical connection given and the meter etc, are in plot No.
158. Furthermore, this factual aspect has not been controverted by the appellant so the fact that there was machinery installed in plot No. 19 and was connected to power supply given for plot No. 15B, is established by the Board.
The next contention would be whether it would amount to resale or not. For that the appellant has Stated that it is a partnership firm and that ownership of both units remains the same and so it does hot Page 6 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021 C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 amount to resale. The appellant has produced the zerox copy of his partnership deed dtd. 13.11.90. In that partnership deed. it appears that there were 3 partners whose names were Khalil Ahemed, Smt. Abeda and Smt. Kherunia Mohammed Amin. They have also relied the partnership deed of the same partners dated 1.4.96. It will be clear that there were the original 3 partners in the Said partnership and some additional partners were taken. In this partnership deed of the year 1996, the names of Khalil Ahmed and Smt. Abeda Ahmed continue as before. However, from this, it is not clear whether the partnership continues or not. The appellant has not produced any other document to prove the fact that the plots and units are not of same ownership. The appellant has relied on property card of plot No. 15B and 19 from the Sanathal village: wherein it seems that the plot No.19 is purchased by M/s. Khalil Pehelari and brothers' partnership. From this, it can not be said that the owners of both the plots are same. Annexure F is also produced where the purchaser of plot No. 15B are Muslima Khalid, Abeda Imtiyaz and Nazneen Kausar Umar. 'The appellant's contention, therefore, as regards to ownership of the plot and also ownership of the business can not be swallowed and hence has to be rejected. It may be stated that in the Sp. bill, the Board has prepared the bill for the period upto 20.2.2002. However, in the revised bill, it should be for 5.9.2001 upto 20.2.2002 i.e. the date of checking as the date of previous checking is 4.9.2001, when there was 20 additional installation of the machinery in the adjoining plot No.19.
Appeal is partly allowed. The Board is directed to revise the Sp. bill by taking the period from 5.9.2001 to 20.2.2002.
Copy of the judgement be sent to the appellant.
Sd/- sd/-
Member Invitee (Legal) Member Invitee (Tech.)
sd/- sd/-
S.E. (RE) S.E. (Appellate)
sd/-
C.E. (Appellate)"
6 Thus, it appears that the Appellate Committee ruled that there
was a resale of electricity at the end of the writ applicant.
7 In such circumstances referred to above, the writ applicant came before this Court by filing the Special Civil Application No.12073 of 2002.
Page 7 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 8 The learned Single Judge allowed the writ application. The
appellants, being dissatisfied with the impugned order passed by the learned Single Judge, are here before this Court with the present appeal.
9 Ms. Lilu Bhaya, the learned counsel appearing for the appellants vehemently submitted that the learned Single Judge committed a serious error in allowing the writ application filed by the writ applicant. She would submit that the learned Single Judge committed a serious error in taking the view that the case is only one of expansion of the total area of industry without any change in the industrial activity. She would submit that the learned Single Judge could be said to have committed an error in holding that at the time of inspection, the officials did not find "two connections". There was only one connection in plot No.15B. In other words, according to the learned Single Judge, there was no illegal connection in the Shed No.19.
10 According to Ms. Bhaya, the learned Single Judge has failed to consider few relevant provisions of the conditions of supply of electrical energy framed by the Gujarat Electricity Board under Section 49 read with Section 79 of the Supply Act, 1910 while passing the impugned order.
11 In such circumstances referred to above, Ms. Bhaya prays that there being merit in her appeal, the same be allowed and the impugned order passed by the learned Single Judge be set aside.
12 On the other hand, this appeal has been vehemently opposed by Ms. Gangwar, the learned counsel appearing for the original writ applicant. She would submit that no error, not to speak of any error of Page 8 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021 C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 law could be said to have been committed by the learned Single judge in passing the impugned order. She prays that there being no merit in the present appeal, the same be dismissed.
ANALYSIS: 13 Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls for our consideration is whether the learned Single Judge committed any error in passing the impugned order.
14 The following facts are not in dispute:
[a] The electric connection was provided by the appellants to run a factory of packaging material on the Shed No.15B.
[b] The Shed No.19 purchased by the writ applicant, later in point of time, has no electric connection.
[c] The wall between the Shed No.15B and Shed No.19 came to be demolished and both the Sheds were made one composite structure. However, on record, there are two Sheds i.e. Nos.15B and 19 respectively.
[d] At the time of inspection, it was noticed that the electricity was being used in the Shed No.19 along with the Shed No.15B.
15 Bearing in mind the aforesaid, we may now look into the relevant provisions of the conditions of supply of electrical energy. The term "consumer", as defined under the conditions, reads thus:
""Consumer" means the owner or occupiers of the premises which are Page 9 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021 C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 for the time being connected for a supply of electrical energy with the Board's distribution system and includes intending consumer."
16 The term "installation", as defined under the conditions, reads thus:
""Installation" means the whole of the electric wires, fittings, motors and apparatus erected and wired by or on behalf of the consumer on one and the same set of premises."
17 The terms "connected load", as defined under the conditions, reads thus:
""Connected load" shall mean the sum of the rated capacities of all the energy consuming devices on the consumers apparatus which can be operated simultaneously with the exemption of the equipments which are listed below:
For Residential Consumer Mixer Grinder Juicer Sewing Machines Hot Iron For Commercial Consumers Equipments kept for demonstration purpose only."
18 "The application for supply" is provided under clause 2 of the conditions. The same reads thus:
""Application for a supply" pr am additional supply of electrical energy must be made on the form affected hereto (Annexure A) copies of which are obtainable free of cost at any office of the Board. The application must be signed by the consumer."Page 10 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021
C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021
19 Clause 24 is about "Unauthorised Supply of Energy". The same
reads thus:
"24. Unauthorised Supply of Energy:
The consumer shall not supply a part of whole of the energy purchased by him from the Board to any other persons unless, (1) he holds a suitable sanction or licence for distribution and sale of energy granted by the State Government, or (2) There is special contract or permission granted by the Board permitting the consumer to supply energy in accordance with such permission. If a consumer is detected so supplying energy unauthorisedly at any time, his supply shall be disconnected without serving notice."
20 Clause 33(A) is about "malpractice and theft of energy". The same reads thus:
"33 (A) Malpractice and Theft of Energy Malpractice Malpractice shall mean contravention by the consumer of any of the provision of the I.E. Act, 1910, Electricity (Supply) Act, 1948 or Indian Electricity Rules, 1956 or of any other law governing the supply and use of Electricity and the rules framed thereunder as also the contravention of any of the provision of the Board's "Condition and Miscellaneous Charges for Supply of Electrical Energy" or any of the terms and conditions of the contract governing the supply of electricity by the Board to the consumer and shall in particular include the following cases:
(a) The supply of electricity by a consumer to any other person whose supply has been disconnected by the Board for any reason.
(b) Exceeding the contracted load by a consumer without the specific permission of the Board.
(c) Unauthorised addition, alteration and/or extension to the consumer's electrical installation without the permission of the Board.
(d) Using supply by a consumer from the service which has been Page 11 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021 C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 disconnected by the Board for any reason.
(e) Supply of energy to any other person without the permission of the Board."
21 Clause 34 is about "payment for energy dishonestly used or abstracted or maliciously wasted or diverted". The same reads thus:
"34. Payment for energy dishonestly used or abstracted or maliciously wasted or diverted.
Where it is established to the satisfaction or Board's officer that a consumer has dishonestly abstracted, used, consumed or maliciously caused energy to be wasted, or diverted, the value of the electrical energy thus abstracted, used, consumed, wasted or diverted shall be assessed by such officer for the period and in the manner specified hereinbelow and the value of energy so assessed shall be collected by including the same in the next bill or by a separate bill. Such amount shall always be deemed to be the arrears of electricity dues for all purposes.
Provided that the value of the electricity energy so assessed to have been abstracted, used, consumed, wasted or diverted shall be subject to review by the Appellate Authority on the representation/appeal being filed by the consumer in the manner stated hereinbelow.
Provided further that in the case of a consumer detected to have committed or to have been committing pilferage of energy in addition to his liability to pay the amount towards the value of the electrical energy assessed to have been pilfered as computed in the manner specified hereinbelow (subject of course to the appeal to the Appellate Authority in regard to the quantum of energy so assessed), the power supply to such consumer shall be disconnected and shall be kept disconnected for a period of 30 days from the date of disconnection of power supply on the ground of pilferage of energy subject to review by the Review Committee of the Board or until a minimum amount specified hereinbelow is paid against the energy so assessed, whichever is later and the authority of such disconnection may be be exercised by the Board at any time, but generally as soon as possible, after the detection of pilferage of energy. Subject to provisions of the second proviso hereinabove, when a consumer on first occasion is found wasting, directly using / abstracting / consuming energy dishonestly or maliciously, is aggrieved by the assessment made by the Board's Officer in respect of the monthly quantum of energy deemed to have been consumed and/or the period considered therefor, he shall pay an amount equivalent to 15% of the value of the energy so assessed before Page 12 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021 C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 the supply is reconnected. The another 15% of the amount of the supplementary bill shall be payable within 30 days of reconnection. Board shall process the party / consumer's appeal on payment of 15% amount. However, hearing shall be take only after receipt of second installment. However, if the consumer on second or subsequent occasion is found wasting, directly using / abstracting / consuming energy dishonestly or maliciously he shall have to pay full amount of the energy so assessed before the supply is reconnected."
22 Clause 35 provides for "disconnection for malpractice and compensation thereof". The same reads thus:
"Disconnection for malpractice and compensation thereof Where any consumer is detected for the commission of any malpractice with reference to his use of electrical energy, the Board may, without prejudice to its other rights, cause consumer's supply to be disconnected forthwith. The supply may be restored a the discretion of the Board if the consumer compensates the Board in the manner prescribed thereunder qualified for reconnection by removing the cause of disconnection and takes such other actions as may be directed by the Board in this context."
23 Annexure : A attached to the conditions provides for the 'Form of application for supply of electricity". The relevant part reads thus:
"ANNEXURE 'A' FORM OF APPLICATION FOR SUPPLY OF ELECTRICITY TO, THE GUJARAT ELECTRICITY BOARD
1. I/we hereby request you to supply electrical energy to the premises owned/occupied by me/us hereinafter described.
2. I/We hereby agree to take supply and pay for the said energy, service connection and other dues including the deposit of such security as may be demanded in accordance with the rates and conditions of supply of the Board in force from time to time and further declare and agree to take supply of energy for the under-mentioned purpose for my/our bonafide use for a period not less than two years from the date of commencement of the supply or and in the case of reconnection of supply (where the initial period of agreement is completed) after a Page 13 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021 C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 period of six months from the ...(illegible).. or not less than one year from date of reconnection.
3. I/We also undertake to receive supply within three months from the date the Board intimate that it is ready to give supply to our premises failing which I/We undertake to pay the Board the minimum charge as may be applicable.
4. This requisition is for
(a) a new service (b) a re-connection (c) an alteration to my existing installation (d) a temporary service (e) a change of name from Shri .....
5. Describing of the premises:
House No. Land survey No. Street Town/village District Owner's name owner's address"
24 Having regard to the aforesaid provisions, we are of the view that Ms. Bhaya is right in her submission that the learned Single Judge committed an error in taking the view that the case is one of mere expansion of the factory upon purchase of the adjoining Shed by demolishing the partition and the same would not amount to violation of the conditions of supply of electrical energy as framed by the Gujarat Electricity Board referred to above.
25 We shall first concentrate on the fact that the electrical installation is in the Shed No.15B. 'Installation' means the whole of electric wires, fittings, motors, on one and the same set of premises. The writ applicant, as a consumer, could be said to be the owner or occupier of the premises, which are connected for a supply of electrical energy with the Board's distribution system. Malpractice, as explained in condition No.33(A) referred to above, would include unauthorized addition, later Page 14 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021 C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 on, and / or extension to the consumer electrical installation without permission of the Board. The case of the appellants is that so far as the Shed No.19 is concerned, there is no electrical connection and it being a separate premises or rather a different premises, the extension of electrical connection from the Shed No.15B to Shed No.19 would amount to unauthorized addition falling within the ambit of malpractice and theft of energy.
26 We are of the view that merely because the partition wall dividing the Shed No.15B and Shed No.19 came to be demolished by itself will not make the two plots upon merger as one composite plot. For the appellants, the Shed No.19 is altogether a new premises and demolition of the partition wall would not save the situation. If the writ applicant wants to use the electrical connection of Shed No.15B also in Shed No.19, the same could not have been done without the prior permission of the appellants.
27 The form of application for supply of electricity referred to above would fortify the view which we propose to take in the present appeal. When a request is made to supply electrical energy to the premises owned / occupied, the description of the premises has to be given which would include the house number, land survey number, street, etc. The boundaries are marked or demarcated for the supply. Anything beyond the same would amount to unlawful extension.
28 We may look into a Division Bench decision of this High Court in the case of Paschim Gujarat Vij Co. Ltd. vs. Paras Ship Breakers Ltd reported in 2010 (3) GLR 1917. We may clarify that this judgement dealt with the provisions of the Electricity Act, 2003. The present litigation is prior in point of time. However, on behalf of the consumer, Page 15 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021 C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 an interesting argument was canvassed that there is no illegality on the part of the consumer if he uses the electric connection on the adjacent plot for its own use may be for another plot. Such argument was repelled by this Court after due consideration of the definition of the term "premises", as defined under Section 2(51) of the Act, 2003. The Court also considered Section 126 of the Act, which provides for mechanism to deal with unauthorized use of electricity. This Court observed as under:
"10.6 Quite apart from the above conclusion that we have reached we are of the opinion that case of the consumer would also fall under sub- clause(iv) of Clause(b) of the explanation namely "for the purpose other than for which the usage of electricity was authorised" From the original application filed by the consumer for grant of electricity connection, it can be seen that in item no.13 to a question "Whether supply is asked for (i) expansion or (ii) extension of the existing industry or (iii) for altogether anew industry in the State, the consumer had stated "New Industry". The exact location (namely plot no.5) where the factory of the consumer was situated was also indicated along with the said application. Thus the purpose for which electricity connection was demanded and granted was for setting up a new industry in plot no.5. Any other use would be covered also under Sub-clause(iv) of clause(b) of the explanation namely "for the purpose other than for which the usage of electricity was authorised".
11. On this basis, we are of the view that this is a clear case of unauthorized use of electricity covered under Section 126 of the Act. We may recall that the erstwhile consumers namely Khodiyar Rolling Mills and Paras Ship Breakers who had factories situated in plot no. 2/B and 4 respectively had defaulted in paying their electricity bills. Their electricity connections were therefore, disconnected. In ordinary circumstances, by virtue of agreement between the parties, particularly, if those consumers had sold their plots to some other entities through private negotiations, the Electricity Company would have resisted granting any new electric connection on such premise without the past dues being paid up in toto either by the previous owner or by the new purchaser. If we were to accept the contention of the consumer that all that the consumer has done is an innocuous extension of electricity connection in a neighboring plot, use of which is being enjoyed by the same consumer for which the consumer also pays the full electricity charges, we would be negating and totally bypassing the right of the Electricity Company to seek full recovery of its past dues of electricity before granting new electrical Page 16 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021 C/LPA/1368/2018 JUDGMENT DATED: 16/07/2021 connection on the same premises.
12. We also cannot lose sight of the fact that the Electricity Companies have to manage their affairs on the basis of estimated demand of electricity. Such estimation can be made only on the basis of particular load authorized to the consumer. Permitting such extensions without any restrictions would result into as has happened in the present case, drawing of electricity in excess of authorised load."
29 We are of the view that the writ applicant could not have extended the electrical connection to Shed No.19 and could not have used the same without prior permission of the authority concerned.
30 In such circumstances referred to above, this appeal succeeds and is hereby allowed. The impugned order passed by the learned Single Judge is hereby set aside. Consequently, the Special Civil Application No.12073 of 2002 filed by the writ applicant stands rejected.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) CHANDRESH Page 17 of 17 Downloaded on : Tue Sep 07 23:10:19 IST 2021