Gujarat High Court
Khodiyar Ice Factory vs G.E.B. & on 18 March, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/24/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.24 of 2005
For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/
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Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the
3 NO
fair copy of the judgment ?
Whether this case involves a substantial
question of law as to the interpretation
4 NO
of the constitution of India, 1950 or any
order made thereunder ?
Whether it is to be circulated to the
5 NO
civil judge ?
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KHODIYAR ICE FACTORY....Petitioner(s)
Versus
G.E.B. & 1....Respondent(s)
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Appearance:
MS SUDHA R GANGWAR, ADVOCATE for Petitioner(s) No.1
MR DIPAK R DAVE, ADVOCATE for Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 18/03/2014
ORAL JUDGMENT
(1) By this petition under Article 226 of the Constitution of India the petitionerIce Factory, situated at Mangrol, Dist. Junagadh has challenged order dated 03.08.2004 passed by the appellate committee of the respondent and has also prayed for direction setting aside the said order and for further directions directing the respondent to Page 1 of 9 C/SCA/24/2005 JUDGMENT refund the amount already paid by the petitioner.
(2) The facts of the case are that the petitioner is a consumer of the erstwhile Gujarat Electricity Board now known as Paschim Gujarat Vij Company Limited (PGVCL) under category No.80501/55091/7 LTP1. That originally the contract load of the petitioner was 90 H.P. It appears from the check list (AnnexureA) that officers of the respondentPGVCL had visited the unit of the petitioner on 09.09.2003 and the connected load found to be 80 H.P. That by application dated 30.10.2003 the petitioner applied for an additional load of 35 H.P. and also paid necessary charges of Rs.1,12,725/. That while the said application was pending for consideration, on 03.01.2004 officers of a special squad visited the unit of the petitioner for inspection of the electrical installations and upon undertaking such inspection it was found that the connected load is 151 HP, whereas the contract load was only 90 HP. It appears from the checking sheet (AnnexureC) that the inspection team found additional load of 61 H.P., which was unauthorized. On the basis of the said report, a special bill Page 2 of 9 C/SCA/24/2005 JUDGMENT came to be issued to the petitioner amounting to Rs.5,84,643/ out of the same the petitioner deposited 50% being Rs.2,92,250/ on 26.02.2004 and filed an appeal before the Appellate Committee of the respondent, as per the conditions of supply than existing. That the Appellate Committee, after giving an opportunity of being heard to the petitioner and upon consideration of the relevant material, including the checklist dated 03.01.2004, confirmed the said special bill by the impugned order. Being aggrieved by the same, the petitioner has preferred the present petition.
(3) Heard Ms.Sudha R.Gangwar, learned Counsel for the petitioner, and Mr.Dipak R. Dave, learned Counsel for the respondentPGVCL. (4) It may be noted that this Court while admitting the matter on 12.09.2005 granted adinterim relief directing the respondent to grant electric connection on conditions as enumerated in the said order. Learned Counsel for the parties have stated at the bar that the said conditions are adhered to, as per the undertaking filed by the power of attorney of the petitioner before this Court dated 19.09.2005.
Page 3 of 9C/SCA/24/2005 JUDGMENT (5) Learned Counsel for the petitioner has taken this Court through the impugned order and has contended that in fact on 09.09.2003 when the officers of the respondentPGVCL inspected the electrical installations of the petitioner nothing untoward was found and on the contrary connected load was found to be 80 H.P. in comparison to contract load of 90 H.P. It is further submitted that the petitioner applied for additional load of 35 H.P. and also paid requisite charges for the same. It is submitted that only after the test was conducted the extra load was used by the petitioner. It is submitted that the respondentPGVCL has not been able to prove that there is any malpractice by the petitioner. It is also contended that even though the connected load was 124 H.P. the checklist wrongly shows connected load of 151 H.P. It is therefore contended that even through there is no proof for the same, merely on the basis of suspicion the Appellate Committee has confirmed the calculation of the special bill. It is contended that the conclusion arrived at by the Appellate Committee to the effect that the petitioner has committed malpractice, is erroneous as the same is not based on any material or evidence. It is however candidly Page 4 of 9 C/SCA/24/2005 JUDGMENT submitted that the only mistake, which was committed by the petitioner, was that the test report was not submitted. It is contended that thus the finding arrived at by the Appellate Committee is based merely on assumption and without showing any cogent material and therefore it is prayed that the present petition be allowed as prayed for.
(6) Per contra, learned counsel for the respondent has supported the impugned order. It is contended that when the electrical installations of the unit of the petitioner was inspected on 03.01.2004 it was found that the connected load was 151 H.P. It is contended that merely filing of application for additional load of 35 H.P. would not permit the petitioner to use the additional load than the contract load, which was admittedly 90 H.P. on the date on which the squad of the respondent inspected i.e. on 03.01.2004. Relying upon the checklist (AnnexureC) it is pointed out that the said list is signed by one Shri Dhanjibhai Mavjibhai, proprietor of the petitioner unit. It is also contended that in fact no test report is submitted by the petitioner, which is admitted by the petitioner even before the Appellate Committee. It is Page 5 of 9 C/SCA/24/2005 JUDGMENT contended that the respondent has clearly proved that there was malpractice and the additional load of 61 H.P. was used by the petitioner only on the ground that an application for increase of load by 35 H.P. is pending before the respondent. It is further submitted that as earlier checking was undertaken on 09.09.2003 unauthorized additional load was calculated in the special bill only for 116 days and therefore it is submitted that the bill is legal and proper and the findings of the Appellate Committee are based on the evidence, which was placed on record before the authority. It is submitted that the appellate committee has committed no error, much less an error apparent on the face of record so as to warrant interference of this Court in exercise of powers under Article 226 of the Constitution of India and therefore the petition deserves to be dismissed.
No other or further submissions are made by learned Counsel for the parties.
(7) Upon consideration of the submissions made by the learned counsel for the parties and on perusal of the record and proceedings, more particularly the impugned order passed Page 6 of 9 C/SCA/24/2005 JUDGMENT by the Appellate Committee, it clearly transpires that the contract load was 90 H.P. The calculation sheet (AnnexureD) clearly shows the consumption during the said period, more particularly after 09.09.2003 to January 2004. Even in the submissions, which were made before the Appellate Committee dated 03.08.2004 (AnnexureE), the petitioner has admitted the fact that the contract load is 90 H.P. It is also admitted that after application for increase of load was made, through mistake, the test report was not submitted. In the submissions before the appellate authority the petitioner has contended that on such mistaken belief a motor of 100 H.P. was installed and not motor of 125 H.P., as contended by the respondent. On perusal of the impugned order passed by the appellate authority it clearly transpires that the authority has taken into consideration the fact that on 03.01.2004 when the electrical installations of the petitioner were inspected the contact load was verified and it was found that 125 H.P. against the contract load of 90 H.P. was found. The appellate authority has also noted that there is nothing on record to show that the petitioner had obtained any prior permission Page 7 of 9 C/SCA/24/2005 JUDGMENT of the respondent to use the additional load. Relying upon the technical data, more particularly ROMD data of static meter, the Appellate Committee has come to the conclusion that the contention raised by the petitioner that the contact load was 125 H.P. and not 151 H.P. is disbelieved. Considering the fact that the last inspection was carried on 09.09.2003 the Appellate Committee, after verifying the contents of the last bill, has come to the conclusion that the respondentPGVCL has given special bill for 116 days only.
(8) Considering the aforesaid evidence on record as well as on consideration of the findings given by the appellate authority and on perusal of the checklist (AnnexureC) it is found that the connected load was 151 H.P., which was admittedly 61 H.P. more than the contracted load. In light of the aforesaid therefore the findings arrived at by the Appellate Committee to the effect that unauthorized load of 61 H.P. was found is based on evidence, which has been produced by the respondent, which cannot be faulted and this Court finds no error in the findings arrived at by the appellate authority.
Page 8 of 9C/SCA/24/2005 JUDGMENT (9) As noted hereinabove, it is admitted by the
petitioner that no test report was submitted. Merely as application was filed for additional load, the petitioner does not become entitle to utilize such additional load that too 61 H.P. The Appellate Committee, after technical examination of data, has come to the findings which are legal and proper and the same do not warrant any interference of this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India.
(10) Resultantly, the petition fails and is hereby dismissed. RULE discharged. In interim relief granted earlier stands vacated. There shall be no order as to costs.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh [pps]* Page 9 of 9