Gujarat High Court
Masuk Dental Prodeucts Pvt Ltd vs Executive Engineer ( O & M) & on 18 April, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/3372/2004 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3372 of 2004
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MASUK DENTAL PRODEUCTS PVT LTD....Petitioner(s)
Versus
EXECUTIVE ENGINEER ( O & M) & 1....Respondent(s)
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Appearance:
MR BHARAT T RAO, ADVOCATE for the Petitioner(s) No. 1
MS LILU K BHAYA, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 18/04/2017
ORAL ORDER
1. This petition is filed under Article 226 of the Constitution of India to challenge the order dated 22.01.2004 passed by Appellate Committee in Appeal No.A-116 of 2003 preferred by the petitioner challenging supplementary bill issued to it for an amount of Rs.14,20,467.85 paise.
2. The supplementary bill was issued to the petitioner on the ground that the petitioner unauthorizedly used more load of 114.769 HP without permission of the Gujarat Electricity Board ('the Board') - now Madhya Gujarat Vij Company Ltd ('the Company').
3. The case of the petitioner is that after the petitioner was granted recognition for Dental College by Dental Council of India ('DCI'), the Inspector of the DCI inspected the premises and as per the norms of DCI, 70 Dental Chairs with a capacity of 1.75 HP were required to be installed with 10 HP Tubewell, and, since the petitioner had original power supply of 40 HP Page 1 of 9 HC-NIC Page 1 of 9 Created On Sun Aug 13 12:33:38 IST 2017 C/SCA/3372/2004 ORDER which was not sufficient, it applied for additional load of 150 KVA for its Dental College on 19.09.2002. It is the case of the petitioner that as per the revised estimate given by the Board, i was required to pay Rs.1,97,381/- for service line, service connection charges and development charges plus Rs.3,59,727/- towards security deposit which the petitioner deposited on 04.06.2003. After depositing of such amount, the testing report was also submitted by the petitioner as prescribed under the terms and conditions of the Board on 09.07.2003. It was, thereafter, the Board communicated to the petitioner that it had agreed to release 150 KVA power supply and order was issued to the petitioner where one of the conditions was that if the petitioner did not get No Objection Certificate ('NOC') from Gujarat Pollution Control Board ('GPCB'), the petitioner shall be charged minimum bill for contract load of 150 KVA after expiry of three months. As averred in the petition, subsequently, the petitioner was asked to procure metering CTPT unit for release of the new load. The Board then approved lay out and released the connection and started billing on the basis of 150 KVA load. However, on 16.10.2003, the checking squad of the Board inspected the connection of the petitioner and since it was found that the petitioner had started using 150 KVA against sanctioned load of 40 HP, the checking sheet was prepared and the petitioner was issued supplementary bill for the above stated amount.
4. Learned advocate Mr. Rao for the petitioner submitted that the petitioner for its Dental College applied for extension of load for which the petitioner was given estimate and according to the estimate given by the Board, the petitioner paid the amount to the Board and, thereafter, the petitioner Page 2 of 9 HC-NIC Page 2 of 9 Created On Sun Aug 13 12:33:38 IST 2017 C/SCA/3372/2004 ORDER was communicated that decision to release 150 KVA power as demanded by the petitioner was taken. He submitted that such decision was with a condition that the actual power supply shall be released to the petitioner only after furnishing NOC from GPCB, failing which the Board was to commence with issuance of minimum bill after expiry of three months on the basis of contract demand of 150 KVA. He submitted that the petitioner had already given testing report but on account of urgent need to give demonstration to the Inspector for the purpose of recognition of Dental College, 70 Dental Chairs with a capacity of 1.75 HP were installed and extra load of power supply was used. He submitted that as per the condition of the decision to release extra power load, if the petitioner failed to provide NOC of GPCB, at the best, the petitioner could have been charged for actual consumption of energy by taking contract demand of 150 KVA but the petitioner could not have been charged with supplementary bill on the ground that use of extra load by the petitioner was a case of malpractice. He submitted that even as per the circular of the Board, use of extra load by consumer for which consumer had only paid necessary charges for release of the extra load is not to be treated as a case of malpractice. He, therefore, urged that the Appellate Committee committed serious error in holding that the use of extra load by the petitioner was a case of malpractice.
5. Learned advocate Ms. Bhaya appearing for the respondents submitted that after estimate given to the petitioner, the Board had taken decision to release the extra power load demanded by the petitioner, however, as per the condition of the decision, the actual power supply was to be Page 3 of 9 HC-NIC Page 3 of 9 Created On Sun Aug 13 12:33:38 IST 2017 C/SCA/3372/2004 ORDER released by the Board only after the petitioner would submit NOC of the GPCB. She submitted that the petitioner did not provide such NOC and, therefore, actual power supply for extra load was not released by the Board to the petitioner, however, the petitioner on its own started using extra power load and thus, the petitioner unauthorizedly used extra power load which is certainly a case of malpractice committed by the petitioner. She submitted that even otherwise also as per condition No.16 of Conditions of Supply, a person for whom the decision is taken to release power supply, especially the person who wants High Tension power (HT power), such person is required to give testing report and without submitting the testing report it is not permissible to use the actual power as in the case of HT power supply, if the person starts using extra power load without giving testing report, it may turn to be hazardous to the existing power location. She submitted that in the case of the petitioner, the petitioner started making actual use of extra power load without giving NOC of the GPCB and even without giving testing report and, therefore, the Appellate Committee rightly came to the conclusion that it was a case of malpractice by the petitioner. She submitted that circular relied on by learned advocate for the petitioner at Annexure - 'I' is for Low Tension supply and has no application to the case of the petitioner for whom the power release was of High Tension.
6. The Court, having heard learned advocates for both the sides, finds that, undisputabely, after the petitioner paid estimated amount for release of extra power load of 150 KVA, the Board passed an order dated 09.07.2003 at Annexure - 'B' for release of 150 KVA power for the petitioner. In the release Page 4 of 9 HC-NIC Page 4 of 9 Created On Sun Aug 13 12:33:38 IST 2017 C/SCA/3372/2004 ORDER order, it is nowhere mentioned that the actual power shall be released after petitioner submits testing report. As per the release order, on petitioner contacting the Executive Engineer (O & M), the Executive Engineer was to arrange for release of power and as further mentioned in the said order, the petitioner shall be billed on the basis of contract demand of 150 KVA from the date of release or deemed date of release of power.
7. The only condition for actual supply of extra load mentioned in the release order is of submitting the NOC of GPCB. But as mentioned in the said order, failure to submit the NOC would make the Board entitled to start giving minimum monthly charge bill on the basis of contract demand of 150 KVA on expiry of three months period from the date of release order. Thus, the deemed date of release of extra power load is incorporated in the release order making the petitioner liable to pay on the basis of contract demand of 150 KVA. It appears that before furnishing the NOC of GPCB, the petitioner used actual power load of 150 KVA. As contended by the petitioner before the Appellate Committee, as per the DCI norms for Dental College, to give demonstration of 70 Dental Chairs purchased by the petitioner, the petitioner consumed extra load. The Appellate Committee, however, observed that the xerox copy of the bills produced by the petitioner did not show that 70 Dental Chairs were purchased on 12.09.2003. It is also observed by the Appellate Committee that on the date of checking by the inspecting squad, the connected load did not include the load of 70 Dental Chairs and, therefore, even if it is believed that 70 Dental chairs were purchased on 12.09.2003, it is of no use. The Appellate Page 5 of 9 HC-NIC Page 5 of 9 Created On Sun Aug 13 12:33:38 IST 2017 C/SCA/3372/2004 ORDER Committee recorded that since it is established that the petitioner used 114.769 HP without permission of the Board, it is a case of malpractice.
8. The Court finds that here is a case where the petitioner was released extra load by specific order. The release order provides that if the petitioner fails to avail power within three months from the date of the order, it will be billed on the basis of contract demand of 150 KVA for monthly minimum charges. Such was, therefore, deemed release of extra power load of 150 KVA. Learned advocate Ms. Bhaya, however, contended that the petitioner started using extra power load without submitting testing report. The Court finds that such was not the objection raised before the Appellate Committee nor even the Appellate Committee has observed that the petitioner used extra power load without submitting testing report. The above contention on fact is being raised before this Court for the first time, and during the argument, the Court finds that more emphasis by learned advocate Ms. Bhaya was on this contention only. When such contention on fact was not raised before the Appellate Committee. It is not open to the Board to raise it before this Court. In any case, as stated above from the communication shown to the Court by learned advocate Ms. Bhaya, the testing report concerning utilization of extra load except the test of internal wiring of the petitioner was submitted by the petitioner. When the release of power load is not made subject to giving testing report by the petitioner and when even deemed release of the power load is provided on expiry of three months, it could be said that as mentioned in the communication, the petitioner would have submitted the testing report. If the petitioner had not submitted testing report, the release order would have definitely provided for Page 6 of 9 HC-NIC Page 6 of 9 Created On Sun Aug 13 12:33:38 IST 2017 C/SCA/3372/2004 ORDER submitting testing report as one of the conditions for actual release of the power load. In absence of any such condition in the release order, condition No.16 of Conditions of Supply could not be relied to press for the point that use of extra load without submitting the testing report was unauthorized use of extra load by the petitioner.
9. It is required to note that the finding of the Appellate Committee as regards malpractice by using extra load by the petitioner is on the basis of the checking sheet showing that the petitioner connected extra load of power, however, while recording such finding, the Appellate Committee has not considered the release order. The Appellate Committee appears to have just taken the use of extra load by the petitioner as mentioned in the checking sheet as unauthorized use of extra load.
10. The Court finds that though the petitioner had used extra load before submitting the NOC of GPCB, such use of extra load power by itself would not be a ground to say that the petitioner had indulged into malpractice. Whether the use of extra load by the petitioner was malpractice was required to be considered in the context of release order issued by the Board. When the Board had decided to release extra load to the petitioner and when as per the release order, the petitioner was to suffer billing charges on expiry of three months at the contract load of 150 KVA, the use of extra load by the petitioner could not be said to be without permission. In such view of the matter, the Appellate Committee was not justified in arriving at conclusion that the case of malpractice Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Aug 13 12:33:38 IST 2017 C/SCA/3372/2004 ORDER of using 114.769 HP, unauthorized access load without permission of the Board was established against the petitioner. The impugned order of the Appellate Committee is, therefore, required to be quashed and set aside.
11. However, once as per the release order, the Board was entitled to bill the petitioner on the basis of contract load of 150 KVA for monthly minimum charges after expiry of three months from the date of the release order, the petitioner would remain liable to pay for actual consumption of electricity on the basis of contract demand of 150 KVA. Learned advocate Mr. Rao fairly stated before the Court that the petitioner shall pay such charges on receipt of the bill for actual consumption from the Board - the Company.
12. In the result, the petition is allowed. The impugned order dated 22.01.2004 passed by the Appellate Committee in Appeal No.A-116 of 2003 is hereby quashed and set aside. As a consequence of which the petitioner shall be entitled to refund of the amount if deposited by the petitioner pursuant to the supplementary bill. Whatever the amount of bill to be calculated for the actual consumption of energy by the petitioner on the basis of contract load of 150 KVA for the period in question, it will be open to the Board to deduct such amount from the amount to be refunded to the petitioner and it will also be open to the Board to adjust remaining amount refundable to the petitioner towards the future bill of consumption of electricity by the petitioner. If such amount is not possible to be adjusted, it will be refunded to the petitioner within two months from the date of receipt of this order. Rule made absolute accordingly.
Page 8 of 9HC-NIC Page 8 of 9 Created On Sun Aug 13 12:33:38 IST 2017 C/SCA/3372/2004 ORDER (C.L.SONI, J.) Gupta* Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Aug 13 12:33:38 IST 2017