Gujarat High Court
Ghanshyambhai Naranbhai Patel vs Gujrat Urja Vikas Nigam Limted & 2 on 13 March, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/11954/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11954 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
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 ?
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GHANSHYAMBHAI NARANBHAI PATEL....Petitioner(s)
Versus
GUJRAT URJA VIKAS NIGAM LIMTED & 2....Respondent(s)
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Appearance:
MR YH MOTIRAMANI, ADVOCATE for the Petitioner(s) No. 1
MR MD PANDYA, ADVOCATE for the Respondent(s) No. 1 - 3
RULE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 13/03/2014
ORAL JUDGMENT
1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged supplementary bill dated 31.05.2004 (at Annexure:B) as well as order dated 02.09.2004 passed Page 1 of 14 C/SCA/11954/2004 JUDGMENT by the appellate Committee (at Annexure:D).
2. The brief facts that emerge from the record of the petition are as under:-
2.1 The petitioner is resident of village Vavol, Dist: Gandhinagar. The petitioner is an agriculturist by vocation and is the owner of 11 Vighas agricultural lands being Survey Nos.79, 104/1, 200, 131/1, 131/2 and 179 of village Vavol.
2.2 It appears from the record that the petitioner had electric connection of 3-Phase line with contracted load of 20 Horse Power (H.P), being customer No.AG-344, which was granted by the respondents-Board. The said connection was obtained by the petitioner solely for the agricultural purpose. It is the case of the petitioner that the petitioner installed submersible motor of 20 H.P upon his well, situated in the agricultural field and was paying average bill of Rs.5,000/- for one bill cycle of two months. It appears that on 31.05.2004, officers of the respondents-Board visited the field of the petitioner with purpose to inspect the electric connection. It further appears that the connection of the petitioner was technically examined by the officers of the respondent-Board and accordingly, a checklist was prepared. However, on the ground that the petitioner may be informed as to what has been done by the officers of the respondents-Board, the petitioner did not sign the Page 2 of 14 C/SCA/11954/2004 JUDGMENT checklist.
2.3. It further appears that accordingly, rojkam was prepared on 31.05.2004, which is forming part of the record of this petition (at Annexure:A). Said rojkam indicates the manner in which the electric connection was used and as per the allegations of the respondents-Board, the same was used for commercial purpose of providing water to the industries run by Premjibhai Parmar and thereby it was found that the petitioner has consumed electricity of 36 H.P, whereas the contracted load was only 20 H.P. It further appears that accordingly the impugned supplementary bill dated 31.05.2004 was issued to the petitioner asking the petitioner to pay an amount of Rs.2,06,361.61/-.
3. The petitioner being aggrieved by the same, deposited 25% amount of the said bill i.e. Rs.51,600/- and filed an appeal before the appellate Committee as per the conditions of supply of electric energy of the Gujarat Electricity Board as operative.
Thereafter, the appellate Committee by impugned order dated 02.09.2004 was pleased to partly allow the appeal and has come to the conclusion that the petitioner is liable to pay an amount of Rs.1,35,897/- instead of Rs.2,06,361.61/- and accordingly directed the respondents-Board to modify the supplementary bill whereby the petitioner is required to pay an amount of Rs.84,297/-.
Page 3 of 14C/SCA/11954/2004 JUDGMENT 4. Being aggrieved by the supplementary bill as
well as the order passed by the appellate Committee, the petitioner has approached this Court.
5. This Court vide order dated 01.10.2004 was pleased to admit the matter and passed the following order: -
"(i) The petitioner is directed to pay an amount of Rs.84,297/- (Eighty four thousand two hundred and ninety seven only) in three equal installments. The first installment to be paid on or before 10th October 2004; the remaining two installments to be paid on or before 10 November 2004 and 10 December 2004 respectively.
(ii) With regard to the payment of installments as aforesaid, the petitioner to file an undertaking before this Court and to submit an application to that effect before the respondent Board.
(iii) On receipt of the said application from the petitioner, the respondent Board is restrained from disconnecting the electric connection of the petitioner.
(iv) The petitioner shall not supply water to any of the Industrial concerns which have been referred to in the Appellate Court's order.
(v) The petitioner will not use power more than the contracted load.
(vi) The petitioner will not transfer his property pending the disposal of this suit. Direct service is permitted."
6. It further appears that as per the order dated 01.10.2004, the petitioner has also filed an undertaking dated 05.10.2004 before this Court which reads as under:-
"I undertake to make the payment of Rs.84,297/- (Eighty Four thousand two hundred and ninety seven only) in three equal installments. I will make the payment of the first installment of Rs.28,099/- on or before 10th October 2004. I further that I will make the payment of the second installment of Rs.28,099/- and I will make the last installment of 10th October 2004."
7. Heard Mr.Y.H.Motiramani, learned counsel for the Page 4 of 14 C/SCA/11954/2004 JUDGMENT petitioner and Ms.Maya Desai, for Mr.M.D.Pandya, learned counsel for the respondents-Board.
8. It may be noted that when the petition was filed, the 'Gujarat Electricity Board' was in existence and thereafter, the area falls within the jurisdiction of UGVCL and accordingly, as per order dated 02.02.2010 passed in civil application filed for substitution of the respondents, the petitioner substituted respondent Nos.1 and 3 as "Gujarat Urja Vikas Nigam Limited" and "Uttar Gujarat Vij Company Limited" respectively.
9. Learned counsel for the petitioner has taken this Court through the impugned order passed by the appellate Committee and has raised following contentions.
(a) Rojkam is not properly made and hence, the petitioner refused to sign the same.
(b) There is no motor of 36 H.P. installed near the well of the petitioner.
(c) That the conclusion arrived at by the appellate Committee that the petitioner was selling water for commercial purpose is without any basis and therefore the same is erroneous and vague as no specific survey numbers are mentioned, whereas the petitioner is the owner of various parcels of lands being different survey numbers.Page 5 of 14
C/SCA/11954/2004 JUDGMENT (d) It was contended that the provisions of the
Electricity Act, 2003 would apply and therefore the order passed by the appellate committee is without jurisdiction.
10. Learned counsel for the petitioner has relied upon the judgment of this Court in the case of Modern Terry Towels Ltd. Vs. Gujarat Electricity Board & Ors., reported in 2003(4)GLR 3122, more particularly in paragraph Nos.24, 25 and 29, which read as under:-
"24. There is one more aspect of the matter. Condition No.22 of the Conditions provides for entering into a formal contract or a deemed contract once the supply of electricity has commenced. The respondent Board cannot lay down any term in such agreement which is contrary to the statutory provisions under the Act and the Rules. Therefore, onus to show that no theft of power is committed by the consumer cannot be shifted by virtue of an agreement on the consumer on the basis of the location of the meter. As already stated the onus will have to be prima facie discharged by the respondent Board.
25. The Board may, in a given situation, be able to raise a prima facie presumption against consumer by virtue of the location of the meter, but nonetheless onus to show that the consumption is dishonest has to be discharged by the Board. The appellate committee is necessarily required to bear this aspect in mind while deciding the appeals of the consumer before it. It is necessary for the appellate committee to appreciate that by virtue of such charge levelled against a consumer the consequences that flow therefrom are : disconnection of power supply, the consumer being charged at a higher rate, claiming compensation by way of reconnection charge etc. which are by their very nature harsh and may lead to financial ruin in case of commercial consumers. Furtheremore, as stipulated in Condition No.34 of the Conditions a consumer is not entitled to appeal before making pre-deposit of the stipulated sums of the supplementary bill. In other words, the right of appeal is hedged by pre-requisite condition of pre-deposit.
29. Though the appellate Committee is not a Court of Law and is not expected to function like a Civil Court it is necessary that it approaches the case before it by applying principles of natural justice and passing a reasoned order. As stated by the Supreme Court in the case of Punjab State Electricity Board and Another vs. Ashwani Kumar, reported in (1997) 5 SCC 120 : "When the provision for appeal by way of review has been provided by the statutory instructions, and the parties are directed to avail of the remedy, the authorities are enjoined to consider Page 6 of 14 C/SCA/11954/2004 JUDGMENT all the objections raised by the consumer and to pass, after consideration, the reasoned order in that behalf, so that the aggrieved consumer, if not satisfied with the order passed by the Board/appellate authority, can avail of the remedy available under Article 226 of the Constitution. Therefore, by necessary implication, the appropriate competent authority should hear the parties, consider their objections and pass the reasoned order, either accepting or negativing the claim. Of course it is not like a judgment of a Civil Court xxxx " This approach is all the more necessary because as laid down by this Court in the case of Shamji Ramji Vs. Deputy Engineer (O & M) GEB, Dwarka and others reported in 2000(4) GLR 3101, a consumer has no right to engage an Advocate to represent his case before the appellate authority."
11. In light of the same, it was submitted that the impugned order is bad and illegal and resultantly, the supplementary bill is also bad and illegal and the same deserves to be quashed and set aside as prayed for.
12. Per contra, learned counsel for the respondents- Board has contended as under:-
(a) The petitioner was present when the rojkam was prepared and has refused to sign the rojkam, which is signed by four officers of the respondents-Board.
(b) In presence of the officers of the respondents-
Board, on inspection, it was found that the water which was fetched from the well by electric motor was being supplied to the industries run by Premjibhai Parmar, who is the neighbor of the petitioner for commercial purpose.
(c) It is an admitted fact that the contracted load was 20 H.P, whereas it was found on inspection that the petitioner utilized 36 H.P., and it was therefore Page 7 of 14 C/SCA/11954/2004 JUDGMENT contended that, unauthorized use was found during the checking.
(d) The appellate Committee has considered everything and has given reduction as observed in the impugned order. Checking sheet was prepared as per the load found and therefore, the petitioner cannot say that the petitioner had only installed a motor of 20 H.P. and he has not using more power other than connected load i.e. 36 H.P.
(e) Judgment of this Court reported in 2002(4) GLR 3221 would not apply to the facts of the present case.
(f) The contention raised by the petitioner that the provisions of new Electricity Act would apply and therefore, the impugned order is bad and illegal and the same deserves to be negatived in view of the judgment of the Division Bench of this Court reported in the case of Torrent Power A.E.C Ltd. Vs. Gayatri Intermediates, reported in 2006(2) GLR 1580.
No other and further submissions are made by learned counsel for the respective parties.
13. Considering the submissions made by learned counsel for the respective parties and on perusal of the contentions raised in this petition as well as the documents on record, it is an admitted position that the petitioner was customer of the respondents- Board, and had accordingly, connection No.AG-344.
Page 8 of 14C/SCA/11954/2004 JUDGMENT Rojkam dated 30.05.2004 shows that it was started at 17:30 hours and completed at 15:50 hours. On bare reading of the said rojkam, it was found that the petitioner was present when the checking sheet was prepared. However, it is recorded that the petitioner refused to sign the said check list and therefore, the rojkam was required to be prepared. Rojkam itself clearly mentions that on taking checking trial, it was found that water from the well of the petitioner through pipeline, ultimately reached the factory run by Premjibhai Parmar, which is at a distance of 200 feet. After technically examining in the same, it was found that accordingly, the connection is used for the said purpose and resultantly, use was found to be of 36 H.P. It is an admitted position that the contracted load of the connection of the petitioner was 20 H.P. and therefore, it is construed that the petitioner has additionally used 16 H.P. for commercial purpose. Rojkam is signed by four officers of the respondents- Board and it is no doubt true that it is mentioned in the rojkam that it was over at 15:50 hours. Learned counsel for the petitioner has drawn the attention of this Court to the fact that the rojkam was prepared afterwards only at the premises, which endorsed i.e. over at 15:50 hours.
14. On perusal of the impugned order, it is found that the petitioner was given opportunity of being heard by the appellate committee. The appellate Committee relied upon the rojkam and has come to the Page 9 of 14 C/SCA/11954/2004 JUDGMENT conclusion that the petitioner connected load was of 36 H.P. against the contracted load of 20 H.P for supplying water from his well to the factory of Premjibhai Parmar through pipeline.
15. Considering the rojkam, the appellate committee has therefore, come to the conclusion that the petitioner is found to be using electric energy for industrial purpose other than agricultural purpose and has also come to the conclusion to reduce the bill from Rs.2,06,361/- to Rs.1,35,897/-.
16. Except the technical plea that the rojkam was not signed by the petitioner and that it bears the endorsement that it was over at 15:50 hours, the petitioner has not been able to establish that the contentions of rojkam are incorrect or false. Rojkam is signed by four officers of the erstwhile Gujarat Electricity Board and therefore, it cannot be said that it was prepared afterwards, which is tried to be canvassed by learned counsel for the petitioner. The petitioner has not denied the fact that the factory run by Premjibhai Parmar is situated at a distance of 200 fts. as recorded in the rojkam. Even in the submissions made before the appellate committee it is merely contended that only pipeline passes through the tank of Premjibhai Parmar.
17. It is not the case of the petitioner that the agricultural lands owned by the petitioner are scattered in such manner that in order to extend the Page 10 of 14 C/SCA/11954/2004 JUDGMENT irrigated facilities to the other parts of his land, pipeline is laid from the tank situated in his field to the other fields which passes through the land of Premjibhai Parmar.
18. On re-appreciation of the rojkam, it is found that the checking squad has taken reading of the meter after operating pump attached to the bore situated in the agricultural land of the petitioner. It is recorded in the rojkam that as the petitioner refused to sign the checklist, rojkam had to be prepared. Copy of the checklist which is provided by learned counsel for the respondents-Board also bears the diagram of the manner in which, the water flows from the bore of the petitioner to the bore of Premjibhai Parmar. It therefore, appears that after technically examining the same, the supplementary bill was raised.
19. The appellate committee has therefore, rightly relied upon the rojkam and has rightly come to the conclusion that the connected load was found to be 36 H.P in comparison to the contracted load of 20 H.P. The appellate Committee has not committed any error in coming to the conclusion that the petitioner consumed the power for industrial purpose other than agricultural purpose for which the connection was given and considering the tariff of industrial purpose, has modified and reduced the supplementary bill of Rs.1,35,897/-.
Page 11 of 14C/SCA/11954/2004 JUDGMENT
20. In the facts of the case, which are on record, it clearly establishes that the petitioner has utilized more power other than the contracted power and has given benefit of the same to the neighbor situated at a distance of 200 fts., for industrial purpose. Mere refusal to sign the check list would not absolve the petitioner, and the appellate committee which consists technical experts, has committed no error in appreciating the checklist as well as rojkam.
21. Contention raised by learned counsel for the petitioner that the provisions of the Electricity Act, 2003 would apply, has been considered by the Division Bench of this Court in the case of Torrent Power A.E.C Ltd. Vs. Gayatri Intermediates, wherein the Division Bench of this Court has observed thus:
"21. To sum up then, our conclusions are as under:-
(i) The Electricity Act, 2003 (except Section 121) was brought into force by the Central Government on 10th June 2003, but in the State of Gujarat, its provisions came to be applied with effect from 10th December 2003.
(ii) Although the terms of license issued in favour of the AEC and the GEB under the Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948 and the Conditions of Supply and Miscellaneous Charges framed by the said licensees under the said Acts continued to be operative till 9.12.2004, thereafter with effect from 10.12.2004, the distribution licenses in favour of those licensees continue to operate subject to their being in accordance with the provisions of the Electricity Act, 2003.
(iii) Challenge to the legality of the Central Government order dated 8th June 2005 removing difficulties with reference to the powers of the State Electricity Regulatory Commission under Section 50 of the Act and to the subsequent amendment dated 14th December 2005 to Regulation (Section) 7.6.5 of the Gujarat State Electricity Supply Code is turned down.Page 12 of 14
C/SCA/11954/2004 JUDGMENT
(iv) The Electricity Act, 2003 read with the Central Government order dated 8th June 2005 and the State Electricity Supply Code framed under Section 50 of the Act as amended with effect from 14th December 2005 and the Statutory Regulations framed under the other provisions of the Act constitute a complete self-
contained code in respect of criminal as well as civil liability in cases of theft of electricity and also in respect of the civil liability for unauthorised use of electricity. {para 16]
(v) Assessment to be made by the distribution licensee in theft cases is not governed by the provisions of Section 126 of the Act, but is governed by the provisions of Section 50 read with Regulation (Section) 7.6.5 of the Gujarat State Electricity Supply Code, 2005 as framed by the Gujarat Electricity Regulatory Commission and amended with effect from 14th December 2005.
(vi) Against such assessment, remedy of appeal under Section 127 of the Act is not available to the aggrieved party, but its remedy will be only before the Special Court constituted under Section 153 of the Act which will exercise its jurisdiction in accordance with the provisions of sub-sections (5) and (6) of Section 154 of the Act. [Para 9]
(vii) Although there is no specific provision in Section 145 of the Act for exclusion of jurisdiction of Civil Court to entertain any proceeding in respect of any matter which the Special Court is empowered by or under the Act to determine, we are of the view that any dispute about civil liability in theft cases is impliedly excluded from the jurisdiction of Civil Court.
The aforesaid principles are applicable to all cases wherein theft is detected on or after 14th December 2005."
22. In the present case, the respondents-Board prepared rojkam on 31.05.2004 and hence, the conditions of supplies and miscellaneous charges framed by the respondents-Board under the provisions of the Electricity Act, 1910 and Electricity Supplies Act, 1948 would apply and therefore, the contention raised by learned counsel for the petitioner that the provisions of the new Act would apply, deserves to be negatived.
23. It may be noted that the respondents-Board has Page 13 of 14 C/SCA/11954/2004 JUDGMENT proved beyond doubt that the petitioner has made an unauthorized use of electric energy. With reference to para-29 of the Modern Terry Towels Ltd. Vs. Gujarat Electricity Board & Ors. also does not arise in the instant case as the petitioner is being heard by the appellate committee. From the evidence on record, it cannot be said that the respondents-Board has failed to discharge its onus and the appellate committee has therefore, on appreciation of the evidence on record, more particularly, checking sheet and rojkam, has rightly come to the conclusion that the petitioner has made an unauthorized use of the power and therefore, ratio laid down by this Court in Modern Terry Towels Ltd. (supra) would not apply to the facts of the present case.
24. In light of the aforesaid, the impugned order passed by the appellate Committee dated 02.09.2004 is legal and proper and the same does not warrant any interference by this Court in its jurisdiction under Articles 226 and 227 of the Constitution of India. Hence, the petition fails and is hereby dismissed. Rule is discharged. The petitioner shall adhered to the undertaking filed in this petition. Interim relief, if any, stands vacated. No order as to costs.
(R.M.CHHAYA, J.) Suchit Page 14 of 14