Gujarat High Court
Madhya Gujarat Vij Company Limited vs Gujarat Minerals Grinding Industries on 5 October, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/466/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 466 of 2014
In SPECIAL CIVIL APPLICATION NO. 7463 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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 or any order
made thereunder ?
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MADHYA GUJARAT VIJ COMPANY LIMITED....Appellant(s)
Versus
GUJARAT MINERALS GRINDING INDUSTRIES....Respondent(s)
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Appearance:
MS LILU K BHAYA, ADVOCATE for the Appellant(s) No. 1
MR KETAN D SHAH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 05/10/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. By way of this appeal, which is filed under Clause 15 of the Letters Patent, the appellant - original respondent seeks to challenge the order Page 1 of 9 HC-NIC Page 1 of 9 Created On Thu Oct 06 06:04:43 IST 2016 C/LPA/466/2014 CAV JUDGMENT dated 22.10.2013 passed by learned Single Judge in Special Civil Application No.7463 of 1999 by which the learned Single Judge has allowed the petition and thereby the order passed by the Appellate Committee on 21.07.1999 is quashed and set aside as well as supplementary bill issued by the appellant - original respondent for theft of energy is also quashed and set aside.
2. It is the case of the original petitioner that it is a proprietorship concerned and running an industry since last many years and a consumer of the appellant. It is the case of the petitioner that on 04.12.1998 when the representative of the petitioner went to record the meter reading, he found two seals broken. Therefore, immediately on the same day petitioner wrote a letter and brought the said fact to the notice of the appellant. However, no corrective measures were taken to repair the said seals or to re-affix the fresh seals. Thereafter, during the general check on 21.12.1999 by the checking squad it was found that two seals are broken out of four seals. Petitioner pointed out to the concerned officers that he has already pointed out that seals are broken on 04.12.1998. In spite of that the appellant issued supplementary bill treating the case of theft of electricity and issued a bill for an amount of Rs.27,40,992.64ps.
3. It is the case of the petitioner that he preferred an appeal before the Appellate Page 2 of 9 HC-NIC Page 2 of 9 Created On Thu Oct 06 06:04:43 IST 2016 C/LPA/466/2014 CAV JUDGMENT Committee by depositing the required amount. The Appellate Committee allowed the appeal to the limited extent and thereby directed the present appellant to revise the supplementary bill by taking chargeable days as 26 days during the period between 24.11.1998 to 22.12.1998 as the meter was checked on 24.11.1998 and no defect was found in the meter on the said date. However, the Appellate Committee believed the case of the appellant that two seals of the meter are broken and when it was examined in the laboratory it was held that it is the case of theft of electrical energy by tampering with the meter mechanism. Petitioner, therefore filed the petition before this Court. Learned Single Judge by the impugned order allowed the petition whereby the order passed by the Appellate Committee is set aside as well as the supplementary bill issued by the appellant is also set aside. The appellant - respondent has therefore preferred this appeal under Clause 15 of the Letters Patent.
4. Heard learned advocate Ms. Lilu K. Bhaya for the appellant and learned advocate Mr. Ketan D. Shah for the respondent - original petitioner.
5. Learned advocate Ms. Bhaya assailed the order of the learned Single Judge mainly on the ground that the learned Single Judge has failed to appreciate that the checking report shows that all the seals of metal meter box, meter body cover and terminal cover were found to be Page 3 of 9 HC-NIC Page 3 of 9 Created On Thu Oct 06 06:04:43 IST 2016 C/LPA/466/2014 CAV JUDGMENT missing. It has also been mentioned in the said report that there was tampering with the P.T. Wiring in the terminal block so that actual consumption of electricity may not be recorded in the meter. Hence, the mischief was played subsequent to 24.11.1998 when the meter was checked.
6. Learned advocate for the appellant thereafter would contend that the meter was tested in the laboratory and the laboratory inspection report also confirmed that the seals were found missing and therefore it is the case of tampering with the meter. At this stage, learned advocate has referred to the report submitted by meter testing laboratory, Vadodara, which is produced at page 54 of the compilation and submitted that in the said report it was specifically stated that the screws on the terminal cover were not found intact and on the terminal block, P.T. Wire screws were found loose and there were scratches on the screws. It was also observed that on terminal block, stud and nuts on both seal wires were applied but the right side stud was found broken and the seal wire was passing not through the hole. The seals found on the meter body screw were different than the original. Thus, it was observed that there is tampering in the terminal block, terminal cover seals and after breaking the terminal cover seals in the meter terminal cover, P.T. Wirings were tampered with and thereby there was tampering in the P.T. Links of Page 4 of 9 HC-NIC Page 4 of 9 Created On Thu Oct 06 06:04:43 IST 2016 C/LPA/466/2014 CAV JUDGMENT the terminal block so that correct consumption may not be recorded. Thus, when the expert has given the opinion that it is a case of theft of electricity, the learned Single Judge ought not to have interfered with the decision given by the Appellate Committee.
7. It is further contended that the so-called letter dated 04.12.1998 was not at all received by the appellant and the said aspect is specifically stated in the affidavit-in-reply filed by the officer of the appellant to which no rejoinder affidavit has been filed by the petitioner. Hence, it is submitted that the letter dated 04.12.1998 is concocted with a view to establish the bona fide of the petitioner that somebody else has tampered with the meter. It is therefore submitted that the learned Single Judge has wrongly exercised the powers under Article 226 of the Constitution of India while examining the technical aspect of the case and by allowing the petition. Hence, this Court may set aside the order passed by the learned Single Judge by allowing this appeal.
8. On the other hand, learned advocate Mr.Ketan D. Shah appearing for the original petitioner mainly contended that before the checking squad has checked the meter on 21.12.1998, the petitioner has informed the appellant by writing a letter dated 04.12.1998 that somebody has tampered with the seals which are broken.
Page 5 of 9HC-NIC Page 5 of 9 Created On Thu Oct 06 06:04:43 IST 2016 C/LPA/466/2014 CAV JUDGMENT However, the appellant has not taken any corrective measures by installing new meter. It is submitted that the Appellate Committee has also wrongly come to the conclusion that the case is of theft of energy only on the basis of the laboratory test report in which it has been stated that the seals are tampered.
9. It is further contended that the electric testing of the meter is not made which is load testing for the purpose of examining whether the excess load has been extracted. He further submitted that even the laboratory test report does not indicate as to how it is manipulated for the purpose of any benefit. Learned advocate referred to the consumption pattern from the document annexed with the petition and submitted that the said pattern would reveal that there is no attempt on the part of the petitioner to reduce the bill by unauthorized extraction of the energy.
10. Learned advocate Mr. Shah thereafter submitted that the people of the area had objection against the industry of the petitioner and therefore they have filed a Public Interest Litigation before this Court and therefore it appears that some interested person must have tampered with the meter, which was kept outside the premises of the petitioner. It is therefore submitted that the Appellate Committee has wrongly considered the case as a case of theft of Page 6 of 9 HC-NIC Page 6 of 9 Created On Thu Oct 06 06:04:43 IST 2016 C/LPA/466/2014 CAV JUDGMENT energy and therefore the learned Single Judge, after considering the documentary evidence, quashed the said order and thereby learned Single Judge has not committed any error. Hence, this appeal be dismissed.
11. We have considered the submissions canvassed on behalf of learned advocate appearing for the parties. We have also gone through the material produced on record. From the checking sheet as well as the laboratory report, it is revealed that two seals out of four seals were broken. In the report which is produced at page 54 of the compilation it has been stated in detail that the screws on the terminal cover were not found intact and on the terminal block, P.T. Wire screws were found loose. There is a specific finding given by the concerned technical person of the laboratory that there is tampering in the terminal block, terminal cover seals and after breaking the terminal cover seals in the meter terminal cover, P.T. Wirings were tampered with and therefore it is a case of theft of energy. The Appellate Committee has also examined the said technical aspect and thereafter held that the case is of theft of electrical energy. However, the Appellate Committee has reduced the days from 180 days to 28 days looking to the facts of the case. So far as the contention of the learned advocate appearing for the respondent
- original petitioner that the petitioner has in advance informed the appellant by letter dated Page 7 of 9 HC-NIC Page 7 of 9 Created On Thu Oct 06 06:04:43 IST 2016 C/LPA/466/2014 CAV JUDGMENT 04.12.1998 that seals of the meter are broken and therefore requested to take immediate steps is concerned, it is the specific case of the appellant in the affidavit-in-reply that no such letter was received by the appellant and the said fact is not controverted by the petitioner by filing affidavit-in-rejoinder. Even otherwise, from reading the report given by the concerned laboratory, it is clear that two seals which were broken were inside the box and the terminal. Thus, except the petitioner, nobody would be interested in tampering with the seals and therefore it was held that the case is of theft of electrical energy.
12. The contention of the learned advocate for the respondent - original petitioner that the people residing in the area have filed PIL seeking direction to the respondent authorities to close the factories which are polluting the air and creating nuisance in the residential locality is concerned, if the memo of the said petition, which is produced at page 75 of the compilation is seen, it reveals that the said PIL was filed against more than 53 industries including the petitioner by alleging that such factories are polluting the air and creating nuisance. Thus, the PIL was not filed only against the petitioner. Moreover, it is also not the case of the petitioner that the concerned interested persons have tampered with the seals of the meter of other factories also. Hence, Page 8 of 9 HC-NIC Page 8 of 9 Created On Thu Oct 06 06:04:43 IST 2016 C/LPA/466/2014 CAV JUDGMENT there is no substance in the said argument canvassed by the learned advocate appearing for the petitioner that some interested persons have tampered with the seals of the meter of the petitioner.
13. In view of the above discussion, we are of the opinion that when the laboratory report suggests that it is a case of theft of electrical energy, which has been confirmed by the Appellate Committee consisting of an expert on the subject, we are of the opinion that the learned Single Judge has committed an error while interfering with the finding of facts recorded by the Appellate Committee on the basis of the report of the laboratory.
14. Accordingly, the judgment dated 22.10.2013 passed by the learned Single Judge in Special Civil Application No.7463 of 1999 is set aside. Appeal is accordingly allowed.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 9 of 9 HC-NIC Page 9 of 9 Created On Thu Oct 06 06:04:43 IST 2016