Gujarat High Court
Dy.Enginerr ( O & M) vs Rajshree Kisan Pipe on 18 July, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/23219/2005 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 23219 of 2005
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DY.ENGINERR ( O & M)....Petitioner(s)
Versus
RAJSHREE KISAN PIPE....Respondent(s)
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Appearance:
MS LILU K BHAYA, ADVOCATE for the Petitioner(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 18/07/2017
ORAL ORDER
The respondent herein, a partnership firm, was the consumer of petitioner electricity company with contracted load of 60 HP. The electric connection of the respondent was checked on 30.06.2005. In the checking, the respondent was found to have indulged in malpractice. It was detected that against the contracted load, the respondent had the connected load of 100.72 HP, which was excess by 40.72 HP. The respondent consumer was given a provisional supplementary bill for Rs. 3,37,847/-, pursuant to the checking-sheet which was prepared upon inspection and signed by the representative of the consumer.
2. After the provisional supplementary bill was given on 4.7.2005, final bill came to be issued on 2.8.2005 for Rs. 3,41,628/-, the petitioner Page 1 of 9 HC-NIC Page 1 of 9 Created On Fri Aug 18 06:35:00 IST 2017 C/SCA/23219/2005 ORDER company exercising its powers under section 126 of the Electricity Act, 2003.
3. The aggrieved respondent consumer preferred appeal before the Assistant Electrical Engineer-the Appellate Authority under section 127 of the Act. The said Appeal No. 7 of 2005 came to be allowed, therefore the petitioner company has filed present petition impugning the decision of the Appellate Authority.
3.1 The respondent tried to contend before the Appellate Authority that the partner of the respondent Rameshbhai Patel had demanded a new connection adjacent to the factory of the respondent on 03.05.2005 and paid the estimate charges on 22.06.2005 and the load of the said unit of Shri Rameshbhai was considered in the load of the respondent. For the said new connection test report was submitted on 30.07.2005 for 45 HP. The respondent also contended that in three checkings took place on 02.04.2004, 02.08.2004 and 22.08.2005, the connected load was less than 60 HP. It was further contended that the new connection was applied in the name of Shri Rameshbhai and the machineries which were lying in the new nit were taken into consideration by the petitioner which could not have been considered. The respondent produced certain bills for purchase of machineries for the said new units and requested to quash the bill.
Page 2 of 9 HC-NIC Page 2 of 9 Created On Fri Aug 18 06:35:00 IST 2017 C/SCA/23219/2005 ORDER 3.2 The petitioner's case was that the connection of the respondent was checked on 30.06.2005, the connected load was found to be 100.72 HP., which load was tested with the accucheck meter which was an approved electronic instrument and the details of all the machineries were given in the checking sheet. That the representative of the respondent had signed it without any protest. It was the case of the petitioner that for the new connection the test report was submitted on 21.07.2005 and it was released on 30.07.2005. It was the further case that the respondent was using additional load without the permission of the petitioner; no such permission was granted, no separate connection was released on the date of checking and therefore, the bill issued by the petitioner is in order. 3.3 The appellate authority passed order dated 05.09.2005 holding that the respondent has succeeded in showing that the machineries were installed on 13.06.2005 and therefore the bill should be issued only for the period from 13.06.2005 to 30.06.2005 for Rs. 31,934.55 ps. and further directed the petitioner to cancel the bill issued by it for Rs. 3,41,628.00.
4. Heard learned advocate Ms. Lilu Bhaya for the petitioner. Though served with the Rule of this court, none appeared, on behalf of the respondent.
Page 3 of 9 HC-NIC Page 3 of 9 Created On Fri Aug 18 06:35:00 IST 2017 C/SCA/23219/2005 ORDER
5. Now, section 126 of the Act, is as under.
"Section 126: (Assessment): --- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3) The person, on whom an order has been served under sub-
section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him.
(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months Page 4 of 9 HC-NIC Page 4 of 9 Created On Fri Aug 18 06:35:00 IST 2017 C/SCA/23219/2005 ORDER immediately preceding the date of inspection.
(6) The assessment under this section shall be made at a rate equal to twice the tariff rates applicable for the relevant category of services specified in sub-section (5).
Explanation.- For the purposes of this section,-
(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;
(b) "unauthorised use of electricity" means the usage of electricity -
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorized."
5.1 Recollecting the admitted facts, the contracted load for the respondent-consumer was 60 HP. The checking was undertaken on 30.06.2005. As noticed at that time and recorded in the checking sheet, the connected load was 100.72 HP. meaning thereby that load of electricity higher by 4.072 HP was in use. The representative of the consumer present at the time of checking and signed it without protest or Page 5 of 9 HC-NIC Page 5 of 9 Created On Fri Aug 18 06:35:00 IST 2017 C/SCA/23219/2005 ORDER objection. The copy of the checking sheet which is on record of the petition fortifies the aforesaid factual aspects. The further fact demonstrated therein in seventh column of the sheet was the details of the electric appliances, machineries and instruments which were connected with the electric supply, and the analysis of the horse power electricity consumed thereby.
5.2 The said details reproduced from the checking sheet are, (i) Extrudel:- 1-7.5 Hp + 1 Hp + 2 Hp + 1 Hp = 11.5 Hp + Heating load + 6.75 kw = 9.0 Hp (Ads per accuclive) + Heating load + 2.23 kw = 3.0 Hp (Ads per accuclive), (ii) Roller:- 1 Hp. (iii) Cutter :- 1 Hp (Wrp), (iv) Extrudel-E:- 7.5 Hp + 2 Hp 2 Hp + 1 Hp + 12.5 Hp Heating load + 8.75 kw = 11.7E Hp (Ads per accuclive), (v) Extrudel-3:- 15 Hp (wrap) Heating load = 5.55 kw = 7.5 Hp (Ads per accuclive), (vi) Hamery :- 1 Hp (Wrp), (vii) Mixel :- 5 Hp, (viii) Bole :- 10 HP (11,1,11 9 A, 12 E A,
(ix) Griudur:- 7.5 Hp, (x) Blower :- 2 Hp (wrp), (xi) Cleaning:- 3 Hp (wrp), Total load = 100.72 Hp..
5.2.1 It was upon aforesaid facts that the provisional and thereafter the final bill was issued to the respondent.
5.3 The Appellate Authority committed a clear error in ignoring the facts reveled from the checking sheet. The details of the load alongwith breakup was mentioned in the said checking sheet and the load was Page 6 of 9 HC-NIC Page 6 of 9 Created On Fri Aug 18 06:35:00 IST 2017 C/SCA/23219/2005 ORDER checked with the accucheck meter which is an electronic equipment. These facts were brought to the notice of the appellate authority which were not considered and mechanically the appeal has been allowed and order has been passed by the appellate authority setting aside the bill issued by the petitioner and directing the petitioner to issue the bill only for the period from 13.06.2005 to 30.06.2005.
5.4 When the Appellate Authority accepted the case that the consumer had purchased new machineries and installed them only on 13.06.2005, the said conclusion was not supported by any convincing and cogent materials on record. On the contrary, the petitioner's additional affidavit gave details about the consumption pattern during the relevant period, which could show that there was a possibility that the purchase bills produced by the respondent -consumer were not reliable at all. The relevant part of the factual contention in the additional affidavit is reproduced hereinbelow.
"....Appellate Authority and Electrical Inspector has calculated the supplementary bill considering only 18 days but the consumption history of the respondent states otherwise. The consumption of the respondent has increased from 19.03.2005 as compared to the same period of last two years.......Looking to the consumption pattern, it is self-explanatory that the additional motor found during the checking was installed between the billing period from 18.03.2005 to 14.04.2005 (both the dates are billing dates, during this period consumption has increased significantly). Hence, it is clear from the above consumption history that purchase bills produced by the respondent Page 7 of 9 HC-NIC Page 7 of 9 Created On Fri Aug 18 06:35:00 IST 2017 C/SCA/23219/2005 ORDER are fabricated or the motors found at the respondent-consumer's premises are different."
5.5 Closely examining the order of the Appellate Authority, it mistakenly considered the submission of the consumer that on 2.4.2004 and 2.8.2004, the connected load was less than the contracted load, as those dates were irrelevant being prior to the date of checking. Further, the authority allowed the appeal on the ground that the checking dated 22.08.2005 showed that the load connected was 68 HP. The Appellate Authority applied formula accordingly. This was a manifest error as the date 22.08.2005 fell after the date of checking which was 30.06.2005. The respondent had already obtained another connection for 50 HP and the same was released on 30.07.2005. The submission could be countenanced that these facts showed that at the time of checking the consumer had been using the load more than the contracted load.
6. The findings of the Appellate Authority and the ultimate conclusion thus was clearly demonstrated to be contrary to the established facts and evidentiary material. The impugned decision is not sustainable in law as suffering from evident infirmities and errors.
7. For all the foregoing reasons and discussions, the impugned decision dated 5th September 2005, is required to be set aside. The same is hereby set aside. The petition stands allowed. Rule is made absolute. Page 8 of 9 HC-NIC Page 8 of 9 Created On Fri Aug 18 06:35:00 IST 2017 C/SCA/23219/2005 ORDER No costs.
(N.V.ANJARIA, J.) cmjoshi Page 9 of 9 HC-NIC Page 9 of 9 Created On Fri Aug 18 06:35:00 IST 2017