Gujarat High Court
Vikram Textiles vs Gujarat Electricity Board & on 22 August, 2014
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/15655/2005 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15655 of 2005
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VIKRAM TEXTILES....Petitioner(s)
Versus
GUJARAT ELECTRICITY BOARD & 1....Respondent(s)
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Appearance:
MS MEGHA JANI, ADVOCATE for the Petitioner(s) No. 1
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 22/08/2014
ORAL ORDER
1. In this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the supplementary bill dated 30.12.2003 for Rs.1,36,259.06/(Rupees One Lac Thirty Six Thousand Two Hundred Fifty Nine Point Zero Six Only), the order of the Appellate Committee dated 10.03.2004 passed in the Appeal preferred by the petitioner against the supplementary bill as also the revised bill dated 25.05.2004 issued to the petitioner for amount of Page 1 of 10 C/SCA/15655/2005 ORDER Rs. 89,126.94/ (Rupees Eighty Nine Thousand One Hundred Twenty Six Point Nine Four Only).
2. Learned advocate Ms.Amrita Patel appearing for Ms.Megha Jani for the petitioner submitted that the impugned order of the Appellate Committee reflects total non application of mind inasmuch as the decision of the Appellate Committee is not based on the correct appreciation of the contents of the checking sheet as also the facts emerging from other relevant documents. Ms.Patel submitted that it was on the application of the petitioner, the meter of the petitioner was taken out from the Metal Meter Box (MMB) after removing the seals on the MMB. At that time, the seals of MMB were found intack and in proper condition. Ms.Patel submitted that in the checking sheet drawn by the Checking Squad for taking out the meter from MMB, it is clearly recorded that the meter was taken out after removing the seals of the MMB. It is nowhere mentioned that the seals of MMB were found tampered or were not in good condition. Page 2 of 10 C/SCA/15655/2005 ORDER Ms.Patel submitted that during the testing of the meter in the laboratory, all seals of the meter also were found in good condition and just only on the basis that there was small hole found on the meter cover and some scratches on the meter desk, the petitioner was charged with theft of energy. Ms.Patel submitted that the Appellate Committee has just relied on the testing report wherefrom no conclusion could be derived that the petitioner had committed theft of energy. However, the Appellate Committee recorded contrary findings that checking sheet mentioned about tampering with the seals of MMB. Ms.Patel submitted that such observations of the Appellate Committee clearly reflect that the Appellate Committee has just concluded on the issue of theft of energy against the petitioner without any cogent evidence. Ms.Patel also drew the attention of the Court to narration of some facts in the order of Appellate Committee not connected with the case of the petitioner so as to urge that the order of the Appellate Committee Page 3 of 10 C/SCA/15655/2005 ORDER concluding that the petitioner has committed theft of energy cannot be sustained.
3. Learned advocate Mr.Joshi appearing for the respondents submitted that in the laboratory test, the seals of MMB were found tampered with, there was a hole found on the meter cover and scratches on the desk of the meter were found. Mr.Joshi submitted that the testing report reveals that the petitioner had committed theft of energy by tampering with the seals on the MMB as also by tampering the meter cover body itself and there is no reason to doubt the conclusion of theft of energy based on testing report. Mr.Joshi submitted that the Appellate Committee after hearing the petitioner and on the basis of material before it found that the petitioner had tampered with the seals of the MMB and with the meter body. Therefore, it cannot be said that there was no material or evidence available with the Appellate Committee to arrive at the finding as regards the theft of energy against the petitioner. Mr.Joshi thus urged to dismiss the Page 4 of 10 C/SCA/15655/2005 ORDER petition.
4. Having heard learned advocates for the parties, it appears that the Appellate Committee has remained unmindful to the record of the case while deciding the appeal of the petitioner. The Appellate Committee in its order at page no.25 has recorded findings that in the checking sheet, it is clearly mentioned that the meter was in stopped condition and the MMB seals were in tampered condition. However, in the checking sheet, at Annexure "B", it is not mentioned that the MMB seals were tampered. In fact, what is mentioned in the checking sheet is that on the basis of the application of the petitioner giving information that the meter stopped running, the seals of MMB were removed and the meter with seals of MMB were taken for the laboratory test. Thus, MMB seals were not found tampered or in broken condition when the meter was taken out of the MMB.
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5. There is one more aspect of the matter which reflects the non application of mind of the Appellate Committee. The Appellate Committee has observed that the electrical installation of the petitioner was checked on 24.10.2003 by the checking squad of the board and it was noticed that the meter was burnt and the seals of the MMB were tampered. Whereas, it is mentioned in the checking sheet that it was on the basis of the application made by the petitioner informing the respondent that the meter stopped running, the officers visited the premises of the petitioner and took out the meter from the MMB. Therefore, it was never a case even of the respondent board that there was surprise visit by the checking squad or that the meter was found burnt.
6. In the test report, it is mentioned that seal wire and malefemale stop were found tampered, and on such basis the seals of MMB were believed to be tampered. It is required to be noted that the MMB seals were opened/removed from MMB by Page 6 of 10 C/SCA/15655/2005 ORDER the checking squad on 24.10.2003 for taking out the meter from the MMB and when they were inspected, naturally, they were in same condition when removed by the officers on 24.10.2003. Therefore, it is not possible to believe that such MMB seals were tampered with by the petitioner when same was not even the case of the checking squad when they removed the MMB seals. It is also required to be noted that all seals on the meter were found good and proper condition. There is no allegation of tampering with any seal on the meter. However, the conclusion of theft of energy is drawn on finding the hole on the meter cover and some scratches found on the meter board and the meter desk. If the petitioner had not tampered with MMB seals and if the checking squad was required to remove the MMB seals to take out the meter, it is not understood how the petitioner could have any access to the meter itself. Not only this but all seals on the meter are found intact. Therefore, if none of the seals either on MMB or on meter was tampered by the Page 7 of 10 C/SCA/15655/2005 ORDER petitioner then the finding arrived at by the Appellate Committee of theft of energy could be said to be only on inference drawn on the basis of hole on meter cover body and scratches on desk of meter. If the Appellate Committee has failed to notice the correct facts from the record of the case, how could the findings recorded by the Appellate Committee be relied on. From the checking sheet as also from the testing report when it clearly appears that the MMB seals were not tampered with nor even seals on the meter were tampered, no conclusion as regards the theft of energy could have been drawn simply on the basis of existence of hole and scratches on desk of meter.
7. Learned advocate Ms.Patel has made available the photo copy of original testing report dated 29.12.2003, to point out the manipulation in the report. She drew the attention of the Court to the over writing at two places. Over writing is on word 'good' at two places in hand written Page 8 of 10 C/SCA/15655/2005 ORDER conclusion of the testing report. The MMB seals were first stated to be in good condition, however, later on the word 'good' is overwritten by word "tampered". However, even if, such over written portion is not considered then also for the reasons stated above the order of the Appellate Committee cannot stand scrutiny of law.
8. In the result, the petition is allowed. The order of the Appellate Committee dated 10.12.2004 at Annexure "F" in the appeal preferred by the petitioner is quashed and set aside. The Appeal of the petitioner stands allowed. Consequently, the revised bill dated 25.05.2004 for Rs. 89126.94/ (Rupees Eighty Nine Thousand One Hundred Twenty Six Point Nine Four Only) is also quashed and set aside. Rule is made absolute.
(C.L.SONI, J.) Page 9 of 10 C/SCA/15655/2005 ORDER Manoj Page 10 of 10