Gujarat High Court
Dy vs Himashubhai on 13 September, 2011
Author: K.M.Thaker
Bench: K.M.Thaker
SCA/16816/2011 17/ 17 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16816 of 2011 ========================================================= DY. ENGINEER (O & M) - Petitioner(s) Versus HIMASHUBHAI JAGDISHBHAI NAVDIWALA & 1 - Respondent(s) ========================================================= Appearance : MS LILU K BHAYA for Petitioner(s) : 1, MS MEGHA JANI for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 30/07/2012 ORAL ORDER
1. Heard Ms. Bhaya, learned advocate for the petitioner and Ms. Jani, learned advocate for respondent No.1.
2. The petitioner has brought under challenge order dated 13.9.2011 passed by the Electricity Ombudsman in Case No.48/2011 wherein, the Electricity Ombudsman has set aside the order passed by the Electricity Consumer Forum and directed the petitioner company to restore supply of LFD-II connection and to refund the energy charges recovered from 1.1.2009.
3. The facts involved in and leading to present petition are as follows:
3.1 The respondent is a proprietary concern engaged in manufacture and sale of textile/cloth.
3.2 It has its industrial unit at Surat where the respondent has been granted electricity connection under industrial tariff as well as commercial tariff. The industrial tariff connection is released and registered as Consumer No.12306/07161/6 at Plot No.2204.
3.3 In the very same premises and for the same industrial unit, the respondent has also been granted electricity supply connection under consumer tariff which is released and registered as Consumer No.12306/03046/4.
3.4 The case of the petitioner company is that when its team visited the industrial unit, the respondent forcibly did not allow the officers and employees of the petitioner company to enter the premises and inspect the electrical installation. It is also alleged that the the respondent and its men assaulted the officers of the petitioner company and the officers had to file a complaint against the respondent and ultimately with police protection the checking squad could enter the premises and conduct the inspection.
3.5 The petitioner has also alleged that during the inspection, it was noticed that the respondent company had indulged into the theft of electricity and that, therefore, the officers tried to disconnect the power supply which was obstructed by the respondent and the officers had to disconnect the electricity supply to the industrial unit of the petitioner company from the main connection/main line.
3.6 It is also claimed that subsequently, on detection of theft of electricity, the petitioner company has lodged criminal complaint against the respondent company under Section 135 of the Electricity Act, 2003 for offence of theft of electricity.
3.7 The petitioner company has raised supplementary bill of Rs.43,18,953/- in accordance with the provisions contained under the Electricity Act, 2003 and the electricity supply connection of the respondent's industrial unit at said plot number 2204 (for industrial tariff and commercial tariff) has been disconnected.
3.8 According to the petitioner company, in view of the fact that the supplementary bill raised by the petitioner company qua the petitioner's industrial undertaking, has remained unpaid since January 2009, even otherwise the respondent's electricity supply connection for commercial tariff/purpose is otherwise also liable to be disconnected.
3.9 Aggrieved by the petitioner's action of disconnecting the supply, the respondent approached the Electricity Consumer Forum. The case was registered as Case No.195/2011. The Electricity Consumer Forum heard the complainant, i.e. present respondent and the opponent, i.e. present petitioner in connection with the grievance-complaint filed by the present respondent company and after hearing the parties, the Electricity Consumer Forum passed the order dated 20.6.2011and rejected complaint of the respondent with below mentioned observations and directions:
"Further, he requested to the CGRF that licensee be directed to refund full amount of energy bill of single-phase connection collected by respondent by way of regular bills and the respondent be directed to pay 25$ p.a. simple interest, on the amount collected during the period when the power was illegally disconnected until it is restored. Moreover, they requested to the CGRF may direct the GUVNL to institute an impartial judicial inquire into the matter as per the relevant laws. In addition, he requested to inquiry as per the relevant laws into the matter as to why section 135 of Electricity Act, 2003 was not applied according to Ministry of power circular, in the case of MR Natvarlal (ACE) who was found indulging in theft of electricity in his own premises. The respondent of the company has indulged in gross unfair trade practice. Considering the fact that present case enumerate and expose many unfair trade practice indulge in by the corrupt, cunning and dirty officers of the licensee and its parent company; according to rules, regulations and law, honest members of the CGRF may direct to inquire and stem action against those who have indulged in unfair trade practice.
The Respondent i.e. DGVCL was represented by (1) I/c. Executive Engineer (O&M), Pandesara Surat (Ind.) Division. (2) Dy. Engr. (O&M), Industrial Sub-Division. Office Sachin (3) DE (O&M), Kosamba S/Dn. (erstwhile Sachin Ind. S/Dn.) as mentioned above as per executive summary.
Further respondent has stated that as per table above in executive summary:-
[1] It is responsibility of the complainant to clear ANY ELECTRICITY DUES of his own before restoring the power supply to single phase lighting connection consumer no 12306/0346/4 as demanded by the complainant. As per Supply Code 4.1.11, Notification No.6 which came into force from dated 20.08.2010 amending Clause No.4.1.11 of GERC.
Hence without payment of the outstanding electricity dues of the same premises and same name the respondent cannot be directed to give reconnect the Load to existing connection.
[2] However, as per new Forum regulation published by GERC dated 07.04.2011, and the following mentioned evidence A Complainant shall not be entitled to approach the Forum. As per Forum regulation clause, no.2.30 mentioned below.
2.30 A Complainant shall not be entitled to approach the forum in any of the following cases:
[i] In cases where proceedings in respect of the same matter and between the same Complainant and the Licensee, are pending before any court, tribunal, arbitrator or any other authority, or a decree or award or a final order has already been passed by any such court, tribunal, arbitrator or authority;
[ii] In cases which fall under sections 126, 127, 135 to 139, 152 and 161 of the Act;
[iii] In cases where the Complaint/Grievance has been registered two years after the date on which the cause of action has arisen;
[iv] Complainants/Grievances which are:
a) frivolous, vexatious, malafide;
b) without any sufficient cause;
c) there is no prima facie loss or damage or inconvenience caused to the Complainant.
[3] The complainant allegations are without evidence. It is noted that complainant has already represented the case to appropriate authority.
This Forum has heard both the parties and perused the documents placed before the Forum. In this case, and on going through the available documents and as per forum regulation dated 07.04.2011 clause no. 2.30.
[1] A complainant shall not be entitled to approach the Forum in any of the above mentioned allegations cases:
[2] Supply Code 4.1.11 as per Notification No.6 which came into force from dated 20.08.2010 amending Clause No.4.1.11 of GERC related to an application for new connection, reconnection, addition or reduction of load, change of name or shifting of Service Line need not be entertained if any dues pending in same premises.
Looking to the above facts and pending arrears of same premises and same name as per supply code
4.1.11. Hence without payment of the outstanding electricity dues in the same premises and same name the respondent cannot be directed to give reconnection of single phase connection.
[3] The complainant has sent the application dated 18.06.2011 in which he has stated that Forum may give the copy of reply of DE (O&M), Sachin Ind. Sub Divn. in reference to hearing scheduled on 25.05.2011 but the Forum cannot give such reply in view of the provision of CGRF, therefore his application was not considered. In view of the aforesaid discussion and legal position, the following order is passed.
ORDER [1] This complaint of the complainant is dismissed.
[2] The allegation made by the complainant is not applicable in the instant case in view of Regulation published by GERC clause no.2.30.
[3] Looking to the above facts and pending arrears of same premises and same name as per supply code 4.1.11. Hence, without payment of the outstanding electricity dues in the same premises and same name the respondent cannot be directed to give reconnection of single phase connection. However, the respondent is directed to take necessary action as per the norms of DGVCL.
[4] It is hereby directed to respondent that the amount of bills of single phase connection, consumer no. 12306/03046/4 are to be adjusted against dues of LTP-I connection no.12306/07161/6 as per norms of the DGVCL.
[5] With this order, complaint is disposed off."
3.10 Aggrieved by the said order of the Electricity Consumer Forum, the respondent herein approached the Electricity Ombudsman which registered as Criminal Case No.48/2011. After hearing the parties, the Electricity Ombudsman passed the order dated 13.9.2011. Aggrieved by the said order of the Electricity Consumer Forum, now electricity company is before this Court.
4. Ms. Bhaya, learned advocate for the petitioner submitted that the impugned order is contrary to the provisions contained in the Electricity Act and the relevant facts and circumstances and the facts about the theft of electricity have been ignored. She submitted that it is only for the purpose of applying different tariff rate and for facilitating the calculation in accordance with two different tariffs that two separate connections, i.e. one for industrial purpose and second for lighting and such other purposes, i.e. commercial purpose, are granted. Ms.Bhaya, learned advocate for the petitioner submitted that the conduct of the respondent company is also required to be taken into account inasmuch as the entry of petitioner's staff to inspect the installation was resisted with physical force and assault on officers was caused, and ultimately the electricity installations could be inspected only with the help of police and under police protection and theft was detected. She submitted that the supplementary bill in connection with industrial unit has been raised which has not been paid and that, therefore, in view of the provisions contained under the Electricity Supply Code framed by the Electricity Commission, the respondent is entitled to claim payment of dues before restoring the electricity supply connection and the order by Electricity Ombudsman is without jurisdiction.
5. Ms.Jani, learned advocate for the respondent has resisted the petition and submitted that respondent company has been wrongly involved in criminal case about alleged theft of electricity and alleged attack on the officers of the petitioner company only because the respondent declined to concede the illegal and arbitrary demand of the officers of the petitioner company. She further submitted that assuming that the respondent company is guilty of theft of electricity in respect of its industrial connection, then also the action of respondent company of not supplying electricity for commercial connection is unjustified and that, therefore, the respondent had approached the Electricity Consumer Forum with a request for direction to the respondent company to restore the supply of electricity so far as commercial connection is concerned. However, since the Electricity Consumer Forum rejected the request, the respondent was constrained to approach the Electricity Ombudsman who has, after considering the facts and circumstances and the material on record, allowed the request of the respondent company. She submitted that in the facts of the case, the order passed by the Electricity Ombudsman is correct and justified and does not warrant any interference. She has relied on the decision in the case of Abdul Razak (Dead) through LRS. vs. Mangesh Rajaram Wagle & Ors. [(2010) 2 SCC 432], so as to contend that the scope of the petition under Articles 226 and 227 against the order of the Electricity Ombudsman would be very limited and that, therefore, the petition may not be entertained.
6. I have considered the submissions made by the contesting parties and have also examined the material on record of present petition.
7. Having regard to the rival contention facts and circumstances of the case, the impugned order passed by the Electricity Ombudsman, it appears prima facie that the Ombudsman has travelled beyond the jurisdiction, the petition deserves consideration. The petitioner company has also prayed for interim relief. In the facts of the case at this stage, below mentioned order is passed.
8. Rule.
9. So far as interim-relief is concerned, it is necessary to note that on 26.12.2011, after hearing the petitioner, the Court (Coram: Hon'ble Smt.Justice Abhilasha Kumari) had passed below mentioned order:
"Heard Ms.Lilu K. Bhaya, learned advocate for the petitioner. It is submitted by her that the impugned order dated 13.09.2011, has been passed by the Electricity Ombudsman, without considering that the electricity connection of respondent No.1 was disconnected at the time of checking on 01.01.2009 for theft of electricity, and a Supplementary Bill was issued to respondent No.1 for an amount of Rs.43,18,953/-. Without taking into consideration the legal provisions and submissions made by the petitioner, the Electricity Ombudsman has directed reconnection of the lighting connection of respondent No.1, even though, the amount of Bill has not been made good by the said respondent.
Issue Notice, returnable on 30.01.2012.
By way of ad-interim relief, it is directed that the implementation, execution and operation of the judgment and order dated 13.09.2011, passed by the Electricity Ombudsman in Case No.48 of 2011, shall remain stayed, till then."
10. By the said order dated 26.12.2011, the Court has granted ad-interim relief and stayed the operation of the impugned order dated 13.9.2011 passed by the Electricity Ombudsman.
11. The said relief has been in operation until now, i.e. since last 7 months. Under the circumstances, and for the reasons recorded in this order - including below mentioned reasons, it is directed as and by way of interim relief that the said relief shall continue, as interim relief, until final decision or until any other or further order is passed.
12. The industrial unit of the respondent was visited by the officers of the petitioner company for the purpose of inspection of the electrical installation. According to petitioner's allegation, entry of the officers was resisted by respondent by use of force and they were not allowed to enter the premises. Allegation about assault and physical attack on the officers is also made and it is claimed that FIR has been lodged. It also emerges from the record that the petitioner company has found that the respondent was committing theft of electricity. Therefore, the proceedings under Section 135 of the Act have been instituted.
13. Before present proceedings, the respondent company had filed Special Civil Application No.3462 of 2009 wherein, the respondent herein had prayed for direction to get the meter tested through independent laboratory. After considering the submission by the petitioner company and the present respondent, the Court disposed of the said petition, i.e. Special Civil Application No.3462 of 2009 with below mentioned observations:
"14. Having heard the learned counsels appearing for the parties and having considered their rival submissions in light of the documents produced before the Court and also the statutory provisions contained in the Act and the decided case law on the subject, t his Court is of the view that the prayers made in the present petitions cannot and should not be granted. The only prayer made in the present petitions is that the petitioners' meters should be tested by Forensic Science Laboratory. The Court, therefore, while considering this prayer takes note of certain salient facts which came to its knowledge only recently. No case is made out by the petitioner which prompts this Court to grant any relief. The petitioner has simply stated in the petitions that he has been wrongly implicated in a theft case, and that the entire case was made out with a malafide intention so as to frame the petitioner in a wrong case, and that the petitioner has not tempered with the meter and has not committed theft of electricity. The petitioner has also alleged that the tempering with the meter as recorded in the Rojkam was done by or at the behest of the officers of DGVCL. An attempt was made to justify it by recording of conversation. As against this, Rojkam reveals that the petitioner has threatened the officers of GUVNL, abused them and beaten them up with fists and sticks and their mobile phone was also snatched away. The police complaint was also lodged and in the presence of the police party, the remaining work was carried out. If the petitioner of this type comes up before the Court without disclosing such facts, the Court may straightway refuse to exercise its equitable jurisdiction in favour of such petitioner and the observations made by this Court in Bahuman Polytex Ltd's case (Supra) to the effect that grievance of fair play from the mouth of persons alleged to be indulged in theft of electricity is as good as terrorist talking of human rights, clearly apply to the present case.
16. Looking to the facts and circumstances of the case and considering the past track record of the petitioners, the Court is of the view that filing of the present petitions before this Court and prayers made therein are nothing but is an attempt to cause delay or to drag on the litigations.
No case is made out before this Court which requires this Court to refer the matters to the Forensic Science Laboratory for checking. Even otherwise, the Court agrees with the submission of Ms.Bhaya that the respondent Company is having a laboratory full equipped for the purpose of testing and/or checking the meter and there is no reason to doubt or dispute the outcome of such checking or testing." (Emphasis supplied)
14. The said order shows the past record and conduct of the respondent. The Court has recorded that the petitioner enters into and drags litigation to delay the action/proceedings for recovery of dues in the sum of about Rs.43.18 lakhs and to delay final conclusion regarding its acts of theft of electricity Against the said order, Letters Patent Appeal was preferred which came to be disposed of by the Court vide order dated 16.7.2008, which reads thus:
"We are of the view that the contentions raised before us in these appeals could be effectively raised before the Special Court constituted under the Electricity Act, 2003. Appellants dispute the tampering of the meter. Appellants therefore seek a direction to send the meter for testing before the Forensic Science Laboratory, Gandhinagar. Since effective mechanism is already available as per the Electricity Act, 2003, the directions sought for by the petitioners cannot be granted in exercise of powers under Article 226 of the Constitution. The appellants, if so advised, may move the Special Court constituted under the Electricity Act, 2003 for appropriate directions in this behalf. However, we make it clear that the meter will be kept in safe custody by the respondent so that unnecessary allegations against the respondents could be avoided. Observations made by the learned single Judge would not prejudice the parties when contentions are examined by the Special Court.
With the above observations, the appeals and civil applications are disposed of."
15. Subsequently, Misc. Civil Application No.1855 of 2010 was taken out and the Court passed order dated 22.4.2011 wherein, the Court observed, inter-alia, that:
"Having heard learned counsel for the parties, we are of the view that the meters, of which the applicant-Company is in custody, can be inspected in accordance with law, i.e. in the manner prescribed under the Electricity Act, 2003 or Rules or Regulations framed thereunder or the guidelines issued by the competent authority under the Act. If the respondents-writ petitioners desire to be present at the time of inspection of the meters, the applicant-Company will fix the date, and get the meters inspected on that date, in the presence of the respondents-writ petitioners. However, in spite of such service of notice, if nobody appears on behalf of the respondents-writ petitioners, it will be open to the applicant-Company to get the matters inspected in absence of the respondents-writ petitioners, but in presence of some other witnesses. The order dated 16th July 2007 passed in Letters Patent Appeals Nos. 392 and 397 of 2009 shall stand modified/clarified to the aforesaid extent. Both the Miscellaneous Civil Applications stand disposed of. No costs."
16. From the relevant factual aspects narrating hereinabove, what emerges is the fact that the respondent company has been granted electricity supply connection for its textile unit at Plot No.2204. The petitioner has released connection under industrial tariff as well as commercial tariff. In view of the detection of theft, electricity connections of respondent's industrial unit has been disconnected and the supplementary bill for Rs.43,18,953/- has been raised.
17. In the impugned order, the Electricity Ombudsman has recorded the submissions of the petitioner company and the present respondent. Thereafter, the Electricity Ombudsman has also taken into account that it has no jurisdiction so far as the proceedings under Section 135 of the Act are concerned. After having taken note of the facts as well as rival submissions, the Electricity Ombudsman has recorded below mentioned observations, findings and directions:
"5. On the basis of representations and documents submitted by Appellant and Respondents, my findings are as under:
5.1 The case booked under Section 135 of Electricity Act, 2003, is not under jurisdiction of Ombudsman.
5.2 The appellant has already represented the matter of various allegations to appropriate authority.
5.3 Connection No. 12306/03046/4-(LFD-II). Supply is disconnected and its energy bills are being issued by DGVCL and same are paid regularly by the Appellant without getting power supply.
5.4 The respondent is directed to restore the supply of LFD-II connection, and the energy charges recovered from 1.1.2009 (i.e. from the date of disconnection), are to be refunded to he Appellant alongwith interest.
This is to be implemented within 30 days from the date of receipt of this order.
5.5. An inquiry is to be instituted and responsibility may be fixed within 60 days from the date of receipt of order for disconnection of LFD-II connection power supply and billing continued.
5.6. I order accordingly."
18. It is not in dispute that the proceedings instituted against the respondent under Section 135 of the Electricity Act are pending. Whether the respondent is guilty of theft of electricity or not will be considered and decided by the Court in the said proceedings.
19. Furthermore, even the Electricity Ombudsman has also recorded in para 5.3 of the order that the electricity supply for commercial connection is also disconnected.
20. It is necessary to recall that the electricity company was constrained to disconnect the electricity supply from the main line and main connection in view of the circumstances which occurred at the site on the date of inspection and that, therefore, the connection under commercial tariff is also disconnected.
21. The electricity company has relied on Clause 4.1.11 of the Electricity Supply Code and contended that unless and until the dues so far as industrial connection is concerned, are not paid, electricity supply for commercial connection will not be and cannot be restored.
22. In view of the fact that the case regarding theft of electricity so far as industrial connection is concerned, is pending and the allegations about theft of electricity are yet to be decided and also in view of the fact that the supplementary bill for sum of about Rs.43.80 lakh has remained unpaid and the electricity supply connection for which restoration is prayed for, is in the same premises and for the same industrial unit and for same consumer in connection with which the criminal case under Section 135 is pending, it does not appear justified to grant the request of the respondent company to restore supply connection, even the commercial tariff/purpose connection, until dues as per the supplementary bill are paid.
23. It also does not appear justified and proper to accept the respondent's contention that the allegation about theft is with reference to industrial connection and that, therefore, the commercial connection may be restored as it would amount to allowing the respondent to take benefit of the arrangement and that too without making payment of the supplementary bill and it would also amount to ignoring the fact that industrial connection and commercial connection are in respect of the same industrial unit and same premises and same consumer. The said fact, i.e. both connections are released for same consumer in connection with the same industrial unit and same premises cannot be ignored by the Electricity Ombudsman.
24. In this background and for the said reasons, at this stage, by way of interim relief, the operation order passed by the Electricity Ombudsman is stayed.
25. In the facts and circumstances of the case and considering the fact that as of now supply of electricity is disconnected to the industrial unit of the petitioner, Rule is made returnable on 20.8.2012.
26. Ms. Jani, learned counsel for the respondent company also submitted that even after January 2009, i.e. from the date of disconnection of electricity supply, the petitioner has been raising bills in respect of the commercial connection and the respondent has been paying regularly making payment of the said bills and that, therefore, present case ought not be considered as a case of disconnection, otherwise the petitioner would not have raised the bills for electricity consumption in respect of commercial connection as well. On this count, it is necessary to take into account the remark recorded by the Electricity Consumer Forum in the order at Sr.No.4 on page 96/B, which reads thus:
Sr. No. Name of Consumer Consumer No. Plot No. Date of detection Present Status Remark
4.
Shri H.J. Navadiwala 12306/ 03046/4 2204 01-01-2009 CONNECTION supply not given [1 phase] supply is not reconnct due to arr ease for consumer no. 12306 / 07161 / 6 [same premises and same name].
27. It is also necessary and relevant to take into account the observation made by the Electricity Ombudsman in para 5.3 of the impugned order which reads thus:
"5.3 Connection No.12306/03046/4-(LFD-II), Supply is disconnected and its energy bills are being issued by DGVCL and same are paid regularly by the Appellant without getting power supply."
28. In view of the said observations, the contention of the petitioner that the electricity supply is not disconnected and the respondent is not supplying the electricity, deserves to be considered at the time of hearing of the petition. At this stage, it appears that the entire supply connection is cut-off / disconnected. The legality of the alleged action of raising bills in respect of commercial tariff connection can be decided at final hearing. Furthermore, it is also necessary to take into account that if the power supply was not disconnected, then there was no need or occasion to claim the petitioner that the power supply may be restored.
(K.M. Thaker, J.) Bharat*