Gujarat High Court
Vishnubhai Mohanbhai Patel vs Dakshin Gujarat Vij Company Ltd on 11 April, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/1101/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1101 of 2005
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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VISHNUBHAI MOHANBHAI PATEL....Petitioner(s)
Versus
DAKSHIN GUJARAT VIJ COMPANY LTD., & 1....Respondent(s)
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Appearance:
MR BHARAT T. RAO, ADVOCATE for the Petitioner(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 1 - 2
MS RV ACHARYA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 11/04/2014
ORAL JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 29.12.2004 passed by the appellate Committee of the respondent-Company in Appeal No.B-316 of 2004 and has also Page 1 of 10 C/SCA/1101/2005 JUDGMENT challenged the supplementary bill dated 23.06.2004.
2. The brief facts, which can be culled out from the record of the petition are as under:-
2.1 The petitioner is a proprietor of small scale unit in the name and style of "M/s. Jansagar Beverages" at Udhana, Surat. The petitioner is engaged in the manufacturing of Cold Drinks namely 'Thums up', 'Coca Cola', 'Pepsi soda', 'Fanta', 'Masala' soda etc. 2.2 The petitioner was consumer of the respondent-
Company and was having Consumer/Category No.12701/09862/9 (LTP-1) with contract load of 10 H.P. 2.3 That the electric meter of the petitioner was regularly checked by the respondent-Company from 2001 to 2003 and at no point of time, any complaint in whatsoever nature is pointed out by the respondent- Company.
2.4 It reveals from the record of the petition that because of tough competition in the market, the petitioner decided to diversify the business and therefore, the petitioner decided to set-up packaged drinking water plant as the petitioner was having sufficient place for the said purpose. Accordingly, the petitioner made an application to the Bureau of Indian Standards on 02.03.2004 as no one is permitted to sale packaged drinking water in the market without BIS mark.
2.5 It further reveals that the petitioner purchased a plant and got delivery of some of the machineries from Ahmedabad Page 2 of 10 C/SCA/1101/2005 JUDGMENT under different invoices dated 10.03.2004, 16.03.2004 and 18.04.2004. The petitioner had paid octroi duty on 14.03.2004, 17.03.2004 and 21.03.2004 to the Surat Municipality and the plant came to be installed at Plot No.153 and it was named as "River Drops Food and Beverages". After the plant was installed, BIS officers were pleased to visit the premises of the petitioner on 12.05.2004 and the petitioner was asked to comply with certain conditions for which the petitioner has relied upon the communication dated 12.05.2004. It is the case of the petitioner that the petitioner was not provided any power at plot No.153 and as the petitioner was directed to start the plant by the officers of the BIS for taking out samples for checking, the petitioner got supply of electrical energy from plot No.150 'Jal Sagar Beverages' only for the purpose of starting the plant of packaged drinking water and drawing samples for the pouch as well as for 20 liters Jar.
2.6. It is the case of the petitioner that the petitioner filed an application on 29.05.2004 with requisite fees for the same and thereafter, the amount of Rs.8,400/- was also deposited by the petitioner as per the estimate given by the respondent-
Company. That the checking was undertaken by the checking squad of respondent -Company on 23.06.2004, wherein it was found that connected load was 14 H.P plus 12.3 K.W, whereas contracted load was only 10 H.P. 2.7. It was contended that the confessional statement was taken by checking squad without explaining what has written by the squad. The record indicates that the checking-sheet mentions that four seals applied on the meter box were Page 3 of 10 C/SCA/1101/2005 JUDGMENT tempered and on basis of which theft of electrical energy is alleged against the petitioner. It further reveals that thereafter, the meter was removed and was sent to the laboratory for checking. What is mentioned in the checking- sheet, has been confirmed by the laboratory vide its report dated 23.08.2004.
2.8 It further reveals from the record of the petition that the respondent-Company issued supplementary bill of Rs.5,09,640.72 ps. and connection of the petitioner came to be disconnected on 02.07.2004. Thereafter, the petitioner deposited 20% amount of the supplementary bill and filed an appeal before the appellate Committee. The appellate Committee by the impugned order, has partly allowed the appeal, whereby the benefit of revision in the factors i.e. C/B has been granted by the appellate Committee and being aggrieved by the same, the present petition is filed.
3. This Court while admitting the matter has passed the following order on 03.10.2005 .
"RULE. By way of ad-interim relief, the respondent Board is directed to grant electric connection to the petitioner on the following conditions;
(i) The petitioner shall pay the outstanding dues in respect of the supplementary bill along with the necessary re-connection charges and delay payment charges, if any, in six equal monthly installments.
(ii) The first installments shall be paid on or before 15 th October, 2005. On payment of the first installment, the electric connection shall be restored.
(iii) If any default is committed on the part of the petitioner in making the payment as mentioned above, it will be open for the respondent Board to disconnect the power connection of the petitioner without any further orders of this Court.
(iv) Pending this petition, the petitioner shall not transfer the unit and/or the property without the permission of this Court and if the delay payment charges, if any, are required to be paid as per the rules, the same shall be paid by the petitioner. The petitioner shall pay the Page 4 of 10 C/SCA/1101/2005 JUDGMENT monthly consumption bills regularly.
(v)The petitioner shall file an undertaking in these proceedings to the above extent within a period of 15 days from today. Direct service permitted."
4. Heard Mr.Daxesh Patel, learned counsel on behalf of Mr.Bharat T. Rao, learned counsel for the petitioner and Ms.R.V.Acharya, learned counsel for the respondent
-Company.
5. Learned counsel for the petitioner has taken this Court through the factual matrix arising out of this petition and contended that the appellate Committee has overlooked the fact that the petitioner did not install the plant for full-fledged production, however, while drawing samples of pouch and 20 liters jar as directed by the BIS authority, the petitioner has been subjected to the impugned supplementary bill.
6. Learned counsel for the petitioner submitted that the appellate Committee has also failed to consider the fact that the petitioner was a manufacturing unit of packaged drinking water and it was run only in one shift, whereas the appellate Committee has confirmed supplementary bill for 24 hours. Learned counsel for the petitioner submitted that the petitioner has not been given benefit for staggering days and holidays as contended by the petitioner before the appellate Committee.
7. Learned counsel for the petitioner contended that from the laboratory report, it reveals that the meter was found okay and there was no tampering with the meter, however, without giving any reason, laboratory report is based only on checking-sheet. It was further contended that as per the Page 5 of 10 C/SCA/1101/2005 JUDGMENT laboratory report, conditions of the meter were found to be okay including counter gear drum, which was found to be easily movable and as no obstruction on the moving of the gear was found, there was no question of less recording the consumption of energy by the meter.
8. Learned counsel for the petitioner further contended that the xerox copies of the relevant documents produced by the petitioner have not been taken into consideration and mechanically the impugned order is passed by the appellate Committee. It was further contended that except checking- sheet, there is no independent material in support of the case of theft of electrical energy by the petitioner and the impugned order is passed merely on inference of theft of electrical energy drawn on basis of checking-sheet. Therefore, the impugned order deserves to be quashed and set aside as prayed for.
9. Per contra, learned counsel for the respondent-Company has supported the impugned order. Relying upon the checking-sheet dated 23.06.2004, it was contended that the details thereof clearly establish the fact that the petitioner had tempered with the seals of meter and used electrical energy for the purpose of water purification plant, which he was not authorized. It was further contended that checking- sheet also indicates that the petitioner had dishonestly obstructed electrical energy, wherein at the time of checking, it was found that the connected load was 14 H.P plus 12.3 K.W.
10. Learned counsel for the respondent-Company relying upon the laboratory report, contended that the laboratory Page 6 of 10 C/SCA/1101/2005 JUDGMENT report confirms the irregularity found at the time of checking and therefore, the same has been rightly relied upon by the appellate Committee while passing the impugned order.
11. Learned counsel for the respondent-Company further contended that, as such the petitioner has confessed before the appellate Committee that he had purchased the machinery of water purification and he had to supply the sample of water for approval of ISI, he had connected the load of mineral water plant and thereafter, he forgot to remove and disconnect the connected load of the mineral water. Therefore, the impugned order is legal and proper, and does not require any interference by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India.
No other and further submissions are made by learned counsel for the parties.
12. It may be noted that in reply to the contentions raised by the petitioner, the respondents-Company have filed an affidavit-in-reply, wherein they have stated as under :-
"6. It is most respectfully submitted that the petitioner's electric conception was checked by the checking squad from the officer of Deputy Engineer Udhnan-II sub-division on 23.06.2004. That a checking sheet was prepared and the meter was sent for laboratory inspection. Pursuant to the laboratory inspection report, a supplementary bill of Rs.5,09,640.72 ps. was issued to the petitioner for theft of electrical energy. That the said meter was removed in presence of the representatives of the petitioner and that the connected load was physically verified and it was found to be 7 H.P in cold drink factory and 7 H.P + 12.3 K.B in the mineral water plant i.e. in all 14 H.P + 12.3 K.B. It was also found that the M.M.B seal was missing terminal cover was missing and two sticker seals of the meter body were found reaffix and all the meter body seals were found tampered with.
"7. It is most respectfully submitted that the said meter was inspected on the laboratory on 04.10.2004 in presence of the representative of the petitioner and the necessary laboratory inspection report was prepared and same was signed by the representative of the petitioner without any protest. During the said laboratory inspection the Page 7 of 10 C/SCA/1101/2005 JUDGMENT irregularities found at the time of checking were confirmed. It was found that the heads of the screw of the nameplate were found mutilated and the drum of counter gear was found freely movable as a result of which the figure of the counter drum could be easily moved. Looking to the same, the appellate authority came to the conclusion it was a clear cut case where the petitioner had committed a theft of electrical energy.
8. It is most respectfully submitted that the petitioner has in his oral and written submissions before the appellate authority had confessed that he had purchased the machinery for mineral water plant on 10.03.2004 and 16.03.2004 which were received by him on 14.03.2004 and 17.03.2004. It was also stated by him that he had to supply the sample of the mineral water for approval of ISI and that is why he connected the load of the mineral water plant to the present connection and took samples of the mineral water and thereafter he forgot to remove and disconnect the connected load of the mineral water. Needless to say that the petitioner had not stated that on which date he had connected the load which goes to show that he was using the said load continuously. At the time of checking the said mineral water plant was connected which is clearly stated in the checking sheet and signed by the representative of the petitioner without any protest, therefore, the say of the petitioner cannot be believed that the said mineral water plant was connected only to take out the samples. If the said mineral water plant was connected only to take samples the representative of the petitioner ought to have sated the same fact at the time of checking ."
13. Similarly checking-sheet has been thoroughly examined by the appellate Committee along with other evidences, which were produced on record and the appellate Committee has recorded the findings of the fact, wherein the appellate Committee has observed thus:
"Suffice to note at the outset that there is no dispute that the electrical installation of the appellant with contract load of 10 HP was checked by the Jr.Engr. Vigilance circle officer, Valsad on 23.06.2004 and at that time, the representative of the appellant was present and necessary checking sheet was prepared and it was signed by the representative of the appellant without any protest. It is respectfully stated in that checking sheet that there was no MMB seal and there was no terminal cover. It is also stated in that checking sheet that both sticker seals of meter body were re-fixed and all the meter body plastic seals were found tempered with. Thus, checking sheet clearly shows that there was tempering with MMB seal and meter body seal. It is also admittedly clear that the meter was wrapped and sealed for further inspection in the laboratory and it was inspected in the laboratory on 04.10.2004 in presence of the representative of the appellant and necessary laboratory inspection report was also prepared and it was signed by the representative of the appellant without any protest. Laboratory inspection report confirms the irregularities found at the time of checking with regard to the MMB seal and meter body plastic seals and meter body sticker seals. It is also stated in the laboratory inspection report that the heads of the screw of nameplate were found mutilated and the counter gear drum was also easily movable and it can be easily Page 8 of 10 C/SCA/1101/2005 JUDGMENT moved with the help of finger. Thus, laboratory inspection report clearly supports the irregularities found at the time of checking and also shows that an arrangement was made by tampering with counter drum gear to disturb the recording of the consumption in the meter. There is no reason for us not to rely on laboratory inspection report which is not controverted by the representative of the appellant on any count. So, in our view, the laboratory inspection report supports the case of theft against the appellant. The appellant contended that the connected load found at the time of checking i.e. 14 HP + 12.3 KW can not be used by him in his electrical installation. But, it is very clear that there is nothing on record to show that all the connected load might have not been used at a time. So, this contention of the appellant does not stand at all. Also, as per conditions of supply, the connected load found at the time of checking is to be considered for the calculation of the sup. Bill. However, as we stated above, it is very clear that there is sufficient and reliable evidence emerging from checking sheet and even laboratory inspection report to establish that there was tampering with MMB seal, meter body seals and even with the counter gear drum, and thereby, an arrangement was made to reduce the recording of the consumption in the meter. So, in our view, this is a fit case in which it is clearly established that the appellant dishonestly abstracted electrical energy without being it dully recorded in the meter, and hence, case of theft of electrical energy is clearly established against the appellant ."
14. On basis of the aforesaid observations, the appellate Committee has rightly decided the case of the petitioner and on perusal of the impugned order, findings of the fact arrived at by the appellate committee on the aspects of theft as well as the tempering with the meter, does not require any interference by this Court.
15. It appears that the appellate committee has not committed any error in coming to the conclusion that the petitioner has committed theft of the electrical energy and has rightly come to the conclusion that the same is established against the petitioner. The checking-sheet as well as the laboratory report have been rightly appreciated by the appellate Committee. Facts and circumstances arising out of this case do not warrant any judicial review by exercising powers under Section 226 of the Constitution of India. Consequently, the petition is liable to be dismissed and is hereby dismissed. Rule is discharged . No costs.
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(R.M.CHHAYA, J.)
Suchit
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