Gujarat High Court
Star Ice Factory Through Proprietor vs Guvnal(Gujarat Urja Vikas Nigam Ltd on 1 May, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/16207/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16207 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/-
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO
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STAR ICE FACTORY THROUGH PROPRIETOR....Petitioner(s)
Versus
GUVNAL(GUJARAT URJA VIKAS NIGAM LTD.,) & 1....Respondent(s)
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Appearance:
MR JIGNESH L HAJARE, ADVOCATE for the Petitioner(s) No. 1
MR MD RANA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 01/05/2014
ORAL JUDGMENT
1. By way of this petition under Article 226 of the Page 1 of 14 C/SCA/16207/2004 JUDGMENT Constitution of India, the petitioner has challenged the order dated 27/28.9.2004 passed by the Appellate Authority of the respondent.
2. This Court (Coram: Hon'ble Mr. Justice M.R. Shah) by an order dated 20.12.2004 admitted this petition and granted ad-interim relief in terms of para 8(c) on condition that the petitioner should deposit the amount of Rs.1,70,671/- within a period of one week from today and the balance amount which approximately comes to Rs.7 lacs will be deposited by the petitioner within five equal monthly installments commencing from 1.1.2005.
3. During the pendency of this petition Gujarat Electricity Board is converted into Gujarat Urja Vikas Nigam Ltd. and Paschim Gujarat Vij. Co. Ltd. respectively and therefore the petitioner was permitted to substitute original respondent no.1 and original respondent no.2 respectively.
4. The facts which can be culled out from the record of the petition are as under :
5. The petitioner is a proprietary Firm engaged in Page 2 of 14 C/SCA/16207/2004 JUDGMENT the business of manufacturing of Ice used for storing of fishes at Porbandar. The petitioner was granted electric connection by the respondent electricity company bearing consumer no. 35101/00762/5 LTP-1 with contract load at 100 HP. It is the case of the petitioner that such connection was granted in the year 1995.
6. The record further reveals that the officers of the erstwhile Gujarat Electricity Board visited the factory premises of the petitioner on 5.2.2003. The checking squad which inspected the electrical installation, prepared a check list wherein it was noticed that the petitioner has tampered with MMB seals as well as meter mechanism. It may be noted that such a check list was signed by the representative of the petitioner without any protest. On checking of the electric installation at the factory premises of the petitioner, it was found that the connected load was 121 HP. It further reveals that on 7.5.2003 the old meter was removed and was sent for checking to the laboratory of the electricity company situated at Sabarmati, Ahmedabad. Page 3 of 14
C/SCA/16207/2004 JUDGMENT The petitioner was also issued supplementary bill amounting to Rs.15,26,283/-. The record further reveals that the laboratory report indicates that there was tampering with the meter and more
particularly it was found that MMB seal, terminal cover seal and meter body seals were found duplicate. It was further found that there was tampering with B phase CT wiring and train gear ratio was also found changed from 9R/KWH to 18 R/KWH and on the basis of which the respondent electricity company came to the conclusion that the petitioner had dishonestly abstracted electrical energy by tampering with the seals and meter mechanism and that the petitioner was guilty of theft of electric energy. The record further shows that therefore the supplementary bill was issued accordingly. It is a matter of record that the petitioner deposited Rs.3,05,257/- and thereafter approached this Court by filing a writ petition being Special Civil Application No. 10465 of 2003 which came to be disposed of by this Court (Coram : Hon'ble Ms. Justice R.M. Doshit [as Her Lordship then was]) vide order dated 17.2.2004. It further appears that Page 4 of 14 C/SCA/16207/2004 JUDGMENT thereafter the appeal which was preferred by the petitioner was heard by the Appellate Authority and by impugned order dated 27/28.9.2004 the appeal came to be partly allowed. Being aggrieved by the same the present petition is filed.
7. Heard Mr. Jignesh Hajare, learned Advocate for the petitioner and Mr. M.D. Rana, learned Advocate for the respondents.
8. Mr. Hajare, learned Advocate for the petitioner has raised the following contentions :
[i] It was contended that as such the meter was installed in the year 1995 whereas the checking was done on 5.2.2001 i.e. after a period of seven years and therefore the allegation that the seals were found to be duplicate and further allegation that the petitioner has tampered with the meter mechanism are made without any basis.
[ii] It was contended that the contentions raised by the petitioner before the Appellate Authority have not been taken into consideration.
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C/SCA/16207/2004 JUDGMENT [iii] It was contended by Mr. Hajare that the
petitioner has been wrongly denied the benefit of 36 chargeable days while calculating factor D inasmuch as the petitioner has not been granted benefit of staggering, public holidays as well as power interruption.
[iv] It was contended that the load factor has been wrongly calculated as 121 HP in place of 101 HP. It was contended that there is no evidence on record to show that any new motor was installed by the petitioner after the test report which was submitted in 1995. Mr. Hajare lastly relying upon the laboratory report has contended that meter is not changed as per laboratory report.
In view of the aforesaid, Mr. Hajare, learned Advocate for the petitioner contended that the impugned order deserves to be quashed and set aside.
9. Per contra, Mr. M.D. Rana, learned Advocate for the respondent - electricity company has taken this Court through the finding of fact arrived at by the Page 6 of 14 C/SCA/16207/2004 JUDGMENT Appellate Authority and has contended as under :
[i] That the Appellate Authority has come to the conclusion on the basis of the finding of fact which cannot be labelled as perverse in any manner whatsoever.
[ii] It was contended that there is no material produced by the petitioner even to rebut the finding of fact which is based on cogent evidence i.e. letter, rojkam and laboratory report etc. [iii] The Appellate Authority has decided the all issues raised by the petitioner on the basis of the evidence which was before it and the entire process of decision making does not even remotely show any perversity.
[iv] It was contended that the scope of judicial review by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India is very limited and in absence of any perversity this Court should not interfere with the same.
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C/SCA/16207/2004 JUDGMENT [v] It was contended that even while discussing and deciding the chargeable days, the Appellate Authority after recording the finding of fact has rightly denied the benefit of staggering. It was further contended that while considering the load factor the Appellate Authority has considered the report of power interruption which was placed by the representative of the electricity company. [vi] It was lastly contended that the finding of fact arrived at by the Appellate Authority are just, reasonable and the Appellate Authority has arrived at a reasonable conclusion. There is no error which warrants interference of this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India, hence the petition deserves to be dismissed.
10. No further contentions and/or averments are made by the learned Advocates appearing on behalf of the respective parties.
11. Considering the record of the petition and on Page 8 of 14 C/SCA/16207/2004 JUDGMENT perusal of the impugned order passed by the Appellate Authority, it clearly bornes out that the Appellate Authority has considered all relevant aspects that were urged before it and the process of decision making does not exhibit any error which warrants interference of this Court under Article 226 of the Constitution of India.
12. As can be seen from the impugned order, the Appellate Authority has considered the local rojkam which was prepared on the date of which the electrical installations of the petitioner's factory premises were checked. The laboratory inspection report which was considered by the Appellate Authority clearly establishes the fact that connected load was verified and found 125 HP. On the basis of the laboratory report the Appellate Authority has come to the conclusion that the MMB seal was found to be duplicate. While discussing the factum whether the petitioner has dishonestly abstracted electrical energy without being it fully recorded in the meter, the Appellate Authority has also considered the laboratory report which indicates that outgoing and Page 9 of 14 C/SCA/16207/2004 JUDGMENT incoming cables entry holes in MMB were found enlarged. The laboratory report further indicates that all the meter body seals were compared with the standard seals and they were found duplicate. The Appellate Authority has also recorded that in the meter terminal block B phase CT load contact and the neutral contacts were connected by 1/18 size wire link and same were directly connected to the earthing screw of the MMB and thus the supply of power to the meter could be disturbed as and when desired which is considered by the Appellate Authority as basis of the finding of fact. It further reveals that the petitioner has also tampered with the meter mechanism by changing revolutions from 9 per unit to 18 per unit.
13. While considering the contentions as regards the load factor, the Appellate Authority has come to the conclusion on finding of fact that there is no evidence to show that the motors which were found installed at the time of checking on 5.2.2003 were the same motors which were installed as per test report dated 25.8.1995. Even rojkam dated 7.5.2003 Page 10 of 14 C/SCA/16207/2004 JUDGMENT shows that capacity of motor was stated as 40 HP that too on the say of the consumer and the position which emerges from the rojkam dated 7.5.2003 is based on physical verification of connected load of those motors. In light of the aforesaid finding, no error is found in the finding of fact by the Appellate Authority, to the effect that connected load was 121 HP.
14. Similarly, while considering the other contentions as regards staggering days and 5+2 days on account of power interruption, the Appellate Authority has rightly come to the conclusion that petitioner is an Ice-manufacturing unit, which requires uninterrupted power supply to store the Ice but as recorded by the Appellate Authority, the petitioner has not established the same by any evidence to the effect that the unit of the petitioner was closed. On the contrary, it was found that upon submission made by the representative of the electricity company the Appellate Authority has considered the power interruption while calculating C/B at 0.75 in place of 0.8 and at 0.38 in place of Page 11 of 14 C/SCA/16207/2004 JUDGMENT 0.4 taken in supplementary bill.
15. Considering the modus operandi applied by the petitioner and in view of the finding of fact which is not rebutted by the petitioner, the petitioner is found to be guilty of theft of energy by the Appellate Authority. The petitioner has not even asserted that ground before this Court. Considering the aforesaid finding of fact, the conclusion arrived at by the Appellate Authority cannot be termed as perverse and no error much less the error apparent on the face of the record is found by this Court.
16. On perusal of the laboratory report as well as findings arrived at by the Appellate Authority, it is found that there was tampering with the MMB seal, meter body seal, terminal cover seal, terminal wiring and even with meter mechanism particularly with counter.
17. In a similar matter, in case of Mansukhbhai Makwana Vs. Madhya Gujarat Vit. Co. Ltd. & Ors., reported in 2013 Law Suit (Guj.) 1139, this Court in para 15 has observed Page 12 of 14 C/SCA/16207/2004 JUDGMENT thus :
" In light of the above, I do not find any reason to interfere with the findings of fact arrived at by the Appellate Authority on the aspect of tampering with the meter in exercise of my supervisory jurisdiction under Article-227 of the Constitution of India. I am not hearing the appeal against the decision of the Appellate Committee of the Board. The scope of inquiry in such a matter is a limited one. The judicial review under Article-226 or 227 cannot be converted into an appeal. The judicial review is directed, not against the decision, but is confined to the examination of the decision making process. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the Court."
18. In the instant case also, the findings arrived at by the Appellate Authority are based on true and correct appreciation of evidence on record and the process of decision making is also flawless. From the impugned order, it is found that the Appellate Authority has considered all contentions which were raised before it and has arrived at finding of fact which does not warrant any interference by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India.
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C/SCA/16207/2004 JUDGMENT 19. In view of the aforesaid, therefore, the petition fails and is hereby dismissed. Rule discharged. Interim relief stands vacated. There shall be no order as to costs.
20. After the dictation of the judgment was over, Mr. Hajare has requested for extension of interim relief to enable him to approach the higher Forum, to which, Mr. Rana pointed out that as per earlier interim order, the petitioner has already paid the amount which was due and payable, hence, the request made by Mr. Hajare is rejected.
Sd/-
(R.M.CHHAYA, J.) M.M.BHATT Page 14 of 14