Gujarat High Court
Shalimar Ice Factory vs Gujarat Urja Vikas Nigam Ltd & 3 on 14 June, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/15498/2005 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15498 of 2005
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SHALIMAR ICE FACTORY....Petitioner(s)
Versus
GUJARAT URJA VIKAS NIGAM LTD & 3....Respondent(s)
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Appearance:
MR ZUBIN F BHARDA, ADVOCATE for the Petitioner(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 3
MR DIPAK R DAVE, ADVOCATE for the Respondent(s) No. 2
MR MD PANDYA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 14/06/2017
ORAL ORDER
The present petition filed under Article 226 of the Constitution, is directed against judgment and order dated 13.06.2005 in Appeal No. A/26 of 2004 passed by the appellate committee of the respondent. The petitioner has prayed to set aside the said order and has further prayed to remand the matter for issuing the revised bill.
2. Before the appellate committee, what was under
scanner was the legality and validity of the supplementary bill amounting to Rs. 23,11,464,38 paise issued to the petitioner by the respondent erstwhile board, as the petitioner was booked for Page 1 of 8 HC-NIC Page 1 of 8 Created On Fri Aug 18 10:12:31 IST 2017 C/SCA/15498/2005 ORDER theft of electricity.
3. The petitioner is a firm in the name and style of M/s. Shalimar Ice Factory having its office at Veraval. The petitioner is a consumer whose electricity installation came to be checked by the Deputy Engineer of the squad of the respondent company, on 5.11.2004. It was found that total connected load was 123.5 HP against contracted load of 120 HP. The checking revealed certain irregularities. The electric meter was removed since it was a prima facie case of tempering with the mechanism of the meter. The connection of the petitioner was snapped by the respondent on 5.11.2004 itself. The meter was sent for inspection by the testing laboratory and the same was inspected on 28.02.2005 in the presence of the representatives of the appellant. As the irregularities and the acts of tempering were confirmed in the laboratory inspection, the supplementary bill of the aforesaid amount was issued to the petitioner consumer. The petitioner deposited 20% of the bill amount on 11.11.2004, whereupon the connection of the appellant was reconnected on 16.11.2004. The appeal was preferred by the petitioner before the appellate committee which resulted into the impugned order.
4. Heard learned advocate Mr. Zubin Bharda for the petitioner and learned advocate Mr. Dipak Dave for the respondent-erstwhile Gujarat Electricity Board now Pashchim Gujarat Vij Co. Ltd. (PGVCL) Page 2 of 8 HC-NIC Page 2 of 8 Created On Fri Aug 18 10:12:31 IST 2017 C/SCA/15498/2005 ORDER 4.1 Before proceeding the case on merits, it may be recorded that while issuing rule on 12.09.2005, this court passed the following interim order, " RULE. By way of interim relief it is directed that the respondent Board will not disconnect the power connection of the petitioner on the following conditions:-
[a] The petitioner shall pay the outstanding dues in respect of the supplementary bill, reconnection charges and delay payment charges, if any, in nine equal monthly installments.
[b] The first installment will be paid on or before 1st October, 2005.
[c] If any default is committed in making the payment stated above, it will be open for the respondent Board to disconnect the power supply without any further orders of this Court.
[d] The petitioner shall pay the monthly consumption bills regularly.
[e] The petitioner shall file an undertaking in these proceedings to the above extent within a period of 15 days from today. Direct Service is permitted."
5. Upon examining the impugned order of the Appellate Committee in light of the facts and material on record and after considering the submissions of both the sides, when the electric installation of the petitioner was checked by the Engineer on 05.11.2004, the connected load was found higher than the contract load and it was further noticed that all the 3 MMB Seals and Terminal Cover Seal were tampered with. Also found tampered with the CT and wiring of the terminal block. It was recorded that the CT was possible to be operated by placing Page 3 of 8 HC-NIC Page 3 of 8 Created On Fri Aug 18 10:12:31 IST 2017 C/SCA/15498/2005 ORDER magnate and thereby the device was created to stop the meter. The checking-sheet prepared at the time of inspection recorded all these things. Though the checking-sheet was signed by the petitioner under protest, the Appellate Committee was right in observing that it was only a disagreement expressed and would not falsify the contents of the irregularities recorded, more particularity when the same were confirmed in the subsequent laboratory inspection.
5.1 The laboratory inspection is an expert exercise and the inspection report thereby obtained could be said to be a basic document. After the checking as above and removal of the meter, the same was sent to the laboratory and the inspection was carried out on 20.08.2005. In that also it was concluded that the wiring of the terminal block was tampered with, MMB Seals were pierced and it was possible to operate the CT by magnate stopping the meter. The authorities further detected one heavy duty magnate from the possession of the consumer in his office. Not only that, the scratches on the bottom of the metallic meter box was supportive indications for tampering. The Appellate Committee committed no error in accepting the checking-sheet details and the confirming details available from the laboratory inspection report.
5.2 It was also the contention raised by the petitioner by filling further affidavit that the Page 4 of 8 HC-NIC Page 4 of 8 Created On Fri Aug 18 10:12:31 IST 2017 C/SCA/15498/2005 ORDER respondent electricity company had also filed a criminal complaint in respect of the same incident which was registered as Electricity Special Sessions Case No. 17 of 2013 before the learned 8th (ad-hoc) Additional Sessions Judge, Veraval, who by his judgment and order dated 29.02.2015 acquitted the partners of the partnership firm and that it was concluded that the evidence produced by the complainant was not sufficient to come to the conclusion about the commission of theft of electricity. There was an attempt to submit thereby that since the acquittal was passed in the said criminal proceedings, conclusion reached by the appellate committee was erroneous and the petitioner cannot be said to have indulged into any theft or pilferage of electricity. The equation canvassed by the petitioner to further contend that the order of the appellate committee was liable to be set aside as having passed on erroneous conclusion, have got to be stated to be rejected. It is well known that standard of proof and the requirements of proof in the criminal proceedings and on the other hand in civil proceedings, are different. The same yardsticks cannot be applied to map the two. A criminal case would be decided on the principle of proof beyond criminal doubt whereas the civil liability and the finding in the realm would be guided to by the preponderance of probabilities. Therefore merely because there was an acquittal in the criminal case, it would not make the findings of the appellate committed false. Therefore, mere Page 5 of 8 HC-NIC Page 5 of 8 Created On Fri Aug 18 10:12:31 IST 2017 C/SCA/15498/2005 ORDER acquittal in the criminal case would not brand the findings of the appellate committee to be not sustainable.
5.3 In this regard, learned advocate for the respondent company could successfully rely on the following observations made in para-13 of the decision of the Hon'ble Supreme Court in J.M.D. Alloys Limited vs. Bihar State Electricity Board [(2003) 5 SCC 226].
"...That apart, the purpose of a trial under section 39/44 of the Indian Electricity Act is entirely different and the object is to punish and sentence the person who is alleged to have committed the offence. The trial of an accused in a criminal case can have no bearing in the matter of assessment made in accordance with the tariff of the value of electricity dishonestly abstracted or consumed. Therefore, the contention raised on the basis of alleged acceptance in the criminal case has absolutely no merit."
5.4 A submission in vain was sought to be advanced by learned advocate for the petitioner that the authorities had no power to find the magnate from the drawer of the table of the consumer's office and it was submitted that since such attempt was made, the Court may not believe the entire case of theft and unauthorised extraction of electricity. The laboratory inspection was an expert exercise. The checking person who initially checked the meter was an expert. The Appellate Committee was also an expert Page 6 of 8 HC-NIC Page 6 of 8 Created On Fri Aug 18 10:12:31 IST 2017 C/SCA/15498/2005 ORDER body. When both of them found the irregularities in the nature of tampering with the meter concurrently, in absence of any direct material to dislodge the findings, it is all the reasonable to accept their conclusions. A mere circumstance of locating a magnate is from the office of the consumer could not tilt the balance, rather it would circumstantially support the conclusion about the tampering when other evidence cogently showed the acts of tampering. No other submission was advanced on behalf of the petitioner.
6. The Appellate Committee also dealt with in its order, the submission with regard to no change in the consumption pattern to record that there was sufficient and reliable evidence from the checking- sheet and laboratory inspection report which established tampering with MMB Seals, Terminal Cover Seal, Terminal Block, Wiring and even with the mechanism of meter and that it was devised to stop display of the meter by use of magnate. It also noticed the aspect of higher connected load vis-a-vis contract load, however held that connected load factor 'A' would remain unchanged. It further found that the factor 'B' would also remain unchanged with regard to the chargeable days and the consumer was held not entitled to any benefit on that count. No calculation error was found in taking 2.5 times the amount which was as per provision of condition No.34.
6.1 The checking of the meter at the initial Page 7 of 8 HC-NIC Page 7 of 8 Created On Fri Aug 18 10:12:31 IST 2017 C/SCA/15498/2005 ORDER juncture, subsequent inspection thereof by the laboratory and conclusions arrived at about the tampering of the meter were all in the expert realm. The findings of the Appellate Committee were expert and technical findings based on relevant material. This Court does not sit in appeal over the order of the Appellate Committee which was a detailed reasoned order based on the direct material including the checking-sheet and laboratory report clearly suggesting acts of tampering. In exercise of writ jurisdiction, the impugned order is not liable to be interfered with from any standpoint.
7. The challenge is devoid of merits. The petition is hereby dismissed. Rule is discharged. Interim relief is vacated.
(N.V.ANJARIA, J.) cmjoshi Page 8 of 8 HC-NIC Page 8 of 8 Created On Fri Aug 18 10:12:31 IST 2017