Gujarat High Court
Sheth Salt Works vs Dakshin Gujarat Vij Co. Ltd on 29 January, 2013
Author: Jayant Patel
Bench: Jayant Patel
SHETH SALT WORKS....Petitioner(s)V/SDAKSHIN GUJARAT VIJ CO. LTD.,....Respondent(s) C/SCA/16975/2003 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 16975 of 2003 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL ================================================================ 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 ? ================================================================ 1 - SHETH SALT WORKS Petitioner(s) VERSUS 1 - DAKSHIN GUJARAT VIJ CO. LTD., Respondent(s) ================================================================ Appearance: MR BHARAT T RAO, ADVOCATE for the Petitioner(s) No. 1 MR SN SINHA, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL Date : 29/01/2013 ORAL JUDGMENT
The petitioner by this petition has challenged the order passed by the appellate committee, whereby the supplementary bill is maintained for the alleged theft of electricity up to Rs.1,76,698.54.
The short facts of the case are that the petitioner is a proprietary concern engaged in the business of manufacturing of salt. The petitioner is having electricity connection bearing Consumer No.08816/00285/0 LTP-1. On 27.1.2003, it is the case of the petitioner, since the existing meter was not properly functioning, the new meter was replaced on 27.1.2003 and at that time, the checking sheet was prepared, wherein everything was found in order and no adverse was recorded of any malpractice or theft etc., since it was not found. Thereafter, on 9.2.2003, the checking was made and as per the respondent, the theft of electricity was found, since the wires were connected directly with the load etc. The petitioner thereafter was issued supplementary bill by the respondent amounting to Rs.7,76,046/-. Against the said bill, the petitioner preferred appeal before the appellate committee and the appellate committee ultimately vide order dated 9.9.2003 allowed the appeal partly to the extent that the load factor was changed, but the number of days for six months remained unchanged. It is under these circumstances, the petitioner has approached this Court by the present petition.
I have heard Mr.B.T. Rao, learned Counsel appearing for the petitioner and Mr.Sinha, learned Counsel appearing for the respondent Electricity Company.
It was contended on behalf of the petitioner that if everything was found in order on 27.1.2003, as per the checking sheet and thereafter if any theft of electricity was found by the respondent Board on 9.2.2003, the period should be counted from 27.1.2003 and not for the period for six months prior to 9.2.2003. He submitted that the aforesaid aspect was raised before the appellate committee, but the appellate committee has not properly examined the same and, therefore, the present petition.
Whereas, Mr.Sinha, learned Counsel appearing for the respondent submitted that once the theft of electricity is found, it is to be presumed that such period will be for six months for the purpose of supplementary bill and the appellate committee comprising of experts have examined the said aspect and, therefore, this Court may not interfere.
The examination of the contention shows that it is an admitted position that on 27.1.2003, when the officers of the then Board, now Electricity Company, had visited the place of electricity installation of the petitioner, no malpractice or theft was found by the officers of the electricity company. The said checking sheet dated 27.1.2003, which has been made available by the learned Counsel during the course of hearing, shows that the seals of the meter were found in ok condition and the other condition of the meter, terminal cover, etc., were also found in ok condition. In the said checking sheet, no remarks whatsoever has been made for any malpractice or theft of the electricity. Therefore, one can safely conclude that on 27.1.2003, nothing objectionable was found when the officers of the electricity company visited the place of the petitioner for installation of the new meter. It is also a fact that on 9.2.2003 when inspection was carried out by the officers of the Electricity Company the alleged malpractice and alleged theft of electricity was found. The petitioner is not challenging the aspect of the report dated 9.2.2003 and, therefore, the said aspect is not required to be further examined. However, even if it is considered that on 9.2.2003 the alleged theft of electricity was found, then also the relevant period could not be earlier than 27.1.2003, because on 27.1.2003 when checking for the replacement of the meter was made nothing objectionable was found. No material is considered by the appellate committee, nor produced in the present proceedings showing that on 27.1.2003 there was lapse on the part of the officers of the electricity company to record the malpractice in the checking sheet even if they existed.
If the aforesaid factual aspect is considered and thereafter the reasons recorded by the appellate committee are examined, it appears that there is no proper application of mind on the part of the appellate committee and the appellate committee has committed error apparent on the face of record, inasmuch as it is not that in every case of theft electricity energy a period of six months is to be considered for all purposes even if there is a cogent and reliable evidence available for showing the period less than six months. It is true that in absence of any other evidence the period of six months would be chargeable, but thereby it cannot be said that even if there is reliable and cogent evidence available, which may lead to show that the alleged theft of electricity could not be for a period beyond a particular time, the said aspect is to be ignored for all purposes. There was no material before the appellate committee that the officers of electricity company when inspected on 27.1.2003, had committed lapse in not recording the alleged malpractice or theft, which existed. In my view, in absence of such evidence the appellate authority has to proceed on the basis that on 27.1.2003 nothing was found objectionable by the officers of the electricity company. Thereafter, if the alleged theft is found on 9.2.2003, appropriate period would be from 27.1.2003 to 9.2.2003 for the chargeability of the amount on the settled formula, but it would be absurd to conclude that in spite of the checking sheet and report dated 27.1.2003, wherein nothing objectionable was found, the period of six months would apply in the present case. It appears that the conclusion recorded by the appellate committee is clearly by committing error apparent on the face of record, which cannot be sustained in the eye of law for the purpose of applying six months period. It is hardly required to be stated that if the quasi judicial authority, whose order is under challenge, has committed error apparent on the face of record, the jurisdiction of this Court would be attracted for correcting the mistake. The matter could be considered for remanding the case to the appellate committee for reexamination in light of the observations made herein above, however, it has been stated by Mr.Sinha, learned Counsel for the respondent Electricity Company that after the enactment of New Electricity Act, the appellate committee is no more functioning and, therefore, I find that no useful purpose would be served in remanding the matter to the appellate committee, more particularly when the evidence of the checking sheet dated 27.1.2003 is not in dispute.
In view of the aforesaid the impugned order passed by the appellate committee for chargeability of the amount for a period prior to 27.1.2003 cannot sustain in the eye of law. Hence, the same is quashed and set aside. Consequently, the order of the appellate committee shall remain for chargeability of the amount for the period from 27.1.2003 to 9.2.2003. The respondent Electricity Company shall recalculate the amount and refund the amount to the petitioner, if any, or may give adjustment in the future bill within a period of two months from the date of receipt of the order of this Court.
The petition is allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) vinod Page 9 of 9