Gujarat High Court
Sureshbhai C. Bavishiya Deputy ... vs Rajeshbhai Pranjivan Bhagat & on 28 June, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/4666/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4666 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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SURESHBHAI C. BAVISHIYA DEPUTY ENGINEER (O&M)....Petitioner
Versus
RAJESHBHAI PRANJIVAN BHAGAT & 1....Respondents
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Appearance :
MS LILU K BHAYA, ADVOCATE for the Petitioner.
MS RITU R. GURU, AGP for the Respondent No.2.
MR ASHUTOSH R BHATT, ADVOCATE for the Respondent No.1.
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CORAM : HONOURABLE MR.JUSTICE A.J.DESAI
Date : 28/06/2016
ORAL JUDGMENT
1. By way of the present petition under Articles 226 and 227 of the Constitution of India, the petitioner Company has challenged the order dated 10.9.2007 passed by the Appellate Authority in Appeal No.159 of 2007-2008 by which the Page 1 of 4 HC-NIC Page 1 of 4 Created On Fri Jul 01 02:26:14 IST 2016 C/SCA/4666/2008 JUDGMENT supplementary bill issued by the petitioner Company for Rs.1,28,816.65 has been quashed and set aside.
2. Pursuant to the notice, the respondent No.1 - consumer has appeared through learned advocate Mr. Ashutosh R. Bhatt.
3. On 15.6.2016, this Court has passed the following order was passed :-
"When the matter is called out, learned advocate Mr. Ashutosh R. Bhatt is not present. However, it is made clear that on the next date of hearing, the matter shall proceed ex-parte, if the learned advocate does not appear before this Court. S.O. to 28.06.2016."
4. Today, when the matter is called out, Ms. Lilu K. Bhaya, learned advocate appearing for the petitioner as well as Ms. Ritu R. Guru, learned Assistant Government Pleader appearing for respondent No.2 is present. However, Mr. Ashutosh R. Bhatt, learned advocate appearing for the respondent No.1 - consumer is not present. Hence, I have heard Ms. Lilu K. Bhaya and Ms. Ritu R. Guru, learned Assistant Government Pleader.
5. The brief facts relevant for the purposes of the present petition can be summarized as under :-
6. The petitioner is in the business of supply of electricity in the southern region of the State of Gujarat. The respondent No.1 is the consumer. The meter was checked on 13.9.2005. It was found that the respondent No.1- consumer was having more Page 2 of 4 HC-NIC Page 2 of 4 Created On Fri Jul 01 02:26:14 IST 2016 C/SCA/4666/2008 JUDGMENT load connected than his contracted load. As against contracted load of 10 H.P., the connected load was found to be 19 H.P. Therefore, supplementary bill for Rs.1,28,816.56 ps. was issued. The said supplementary was challenged by the consumer by way of Appeal No.159/2007-2008 under Section 127 of the Electricity Act, 2003 before the Appellate Authority. The Appellate Authority vide impugned order quashed and set aside the supplementary bill on two grounds i.e. (i) that the petitioner Company has wrongly calculated ABCD formula applicable as the same has not been applicable pursuant to the Notification issued under Electricity Supply Code (ii) and the actual calculation of the use of electricity supply by considering the breaking load 17.34 H.P. and connected load is 19 H.P.
7. Ms. Lilu K. Bhaya, learned advocate appearing for the petitioner would submit that it is an undisputed fact that the meter belonging to the respondent No.1 consumer was examined on 13.9.2005 and therefore, the Appellate Authority who has considered the Notification of the year 2006 has committed an error in observing that the petitioner Company has committed an error in adopting the ABDC formula, which was to be applied as per the concerned Regulations existing on September 2005 and under that Resolution, ABCD formula for unauthorized electricity use was made applicable. She would, therefore, submit that the Appellate Authority has also committed an error in describing the entire excess load, unauthorizedly used by the consumer and hence, the petition be allowed and the impugned order of the Appellate Authority be quashed and set aside.
8. I have gone through the affidavit-in-reply filed by the respondent No.1 - consumer. It is the case of the consumer that Page 3 of 4 HC-NIC Page 3 of 4 Created On Fri Jul 01 02:26:14 IST 2016 C/SCA/4666/2008 JUDGMENT checking report is not properly prepared since he has not installed any motor for water pump. It is submitted in the reply that the Appellate Authority has not committed any error in quashing and setting aside the supplementary bill. Hence, the present petition be dismissed.
9. It is an undisputed fact that the checking was made on 13.9.2015 and, therefore, Notification No.11/2005 would be applicable and under Section 7.2.4, the Appellate Authority has rightly applied the ABCD formula. Hence, the amendment of 2006 would not be applicable in the present case. Therefore, I am of the opinion that the Appellate Authority has committed an error in holding that the ABCD formula would not be applicable.
10. As far as the case put forward by the consumer and examined by the Appellate Authority that actually, he is using 17.43 HP, I am of the opinion that the said issue requires reconsideration by the Appellate Authority.
11. Hence, the present petition stands allowed. The order dated 10.9.2007 passed by the Appellate Authority in Appeal No.159 of 2007-2008 is hereby quashed and set aside. The matter is remanded to the Appellate Authority for fresh consideration. The Appellate Authority is hereby directed to decide the appeal as expeditiously as possible, preferably within a period of four months from the date of receipt of writ and/or order of this Court, whichever is earlier, after giving opportunity of being heard to the parties. Rule is made absolute to the above extent. There shall be no order as to costs. Direct service is permitted.
(A.J.DESAI, J.) Savariya Page 4 of 4 HC-NIC Page 4 of 4 Created On Fri Jul 01 02:26:14 IST 2016