Gujarat High Court
Executive vs Indian on 6 July, 2011
Bench: S.J.Mukhopadhaya, K.M.Thaker
Gujarat High Court Case Information System
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LPA/1291/2010 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1291 of 2010
In
SPECIAL
CIVIL APPLICATION No. 16110 of 2003
with
CIVIL
APPLICATION No.9569 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE K.M.THAKER
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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EXECUTIVE
ENGINEER (O & M) & 2 - Appellant(s)
Versus
INDIAN
PLASTIC INDUSTRIES - Respondent(s)
=========================================================
Appearance
:
MS
LILU K BHAYA for
Appellant(s) : 1 - 3.
MR KETAN D SHAH for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE
MR.
S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
:06/07/2011
CAV
JUDGMENT
(Per :
HONOURABLE MR. JUSTICE K.M.THAKER) Present appeal is directed against the judgment and order dtd. 2nd December, 2009 whereby the learned Single Judge has allowed the writ petition filed by the present opponent. The learned Single Judge has directed present appellant, who was the respondent in the petition, to recalculate the supplementary bill on the basis of connected load of 31.5 HP and to give credit of the excess amount, if any, out of the amount deposited before the appellate authority.
2. The relevant facts involved in present appeal are that the opponent herein i.e. the original petitioner is a Low Tension-consumer ('L.T.Consumer', for short) of present appellant. The appellant herein is a licensee under the provisions of Electricity Act, 2003 (hereinafter referred to as 'the Act') and the other appellants are its officers. The appellant has allowed low tension connection of electricity supply to the original petitioner i.e. the consumer. The petitioner-consumer (hereinafter referred to as 'Consumer') has been granted contracted load of 90 HP and as per the contract between the consumer and appellant-licensee, the applicable tariff is LTP-I. It appears that on 9th September, 2002, the officers of the appellant-licensee paid a surprise visit at the premises of the consumer and inspected the electricity installation. According to the appellant-licensee, during the said visit-inspection it was found that the consumer had indulged into unauthorized consumption of electricity supply which amounted to theft of electricity, under the provisions of the Act. According to the appellant-licensee, the provisions under the Act permits and authorizes the appellant-licensee to raise supplementary bill in cases of theft and for the said purpose (i.e. for raising supplementary bill), the appellant-licensee can calculate the bill amount by taking into account the actual/ connected load. It is clear that in view of such provisions under the Act, ordinarily whenever officers of the appellant-licensee inspect any installation, they also examine the actual connected load and such details are recorded in the inspection note. According to the petitioner-consumer, on 9th February, 2002 when the inspection was carried out, the connected load was found to be of 31.5 HP (though contracted/permitted load is of 90 HP). Since the officers of the appellant-licensee found that the consumer had indulged into the theft of electricity, the meter was removed as per the prescribed procedure and for the purpose of testing, the said meter was sent to laboratory for test-report. According to appellant-licensee, the laboratory report also confirmed that the petitioner-consumer had indulged into act of theft of electricity. The appellant-licensee, thereafter, issued supplementary bill in accordance with the applicable provisions. The calculation for determining the supplementary bill, amount was made by applying A X B X C X D formula and the supplementary bill dated 25th April, 2003 for a sum of Rs.6,29,754.73 was issued and served upon the consumer. The appellant-licensee also disconnected the electricity supply. Subsequently when the consumer deposited a sum of Rs.1,25,954.73 on 5th May, 2003, the electricity supply connection was restored. The consumer was aggrieved by the supplementary bill. Hence the petitioner preferred an appeal before the appellate committee. The appeal was registered as Appeal No.B-337/2003. After hearing the parties, the appellate authority partly allowed the appeal. However, the consumer's contention that it had not indulged into theft of electricity was not accepted. The appellate authority passed order dated 10th September, 2003 and directed the appellant-licensee to revise the supplementary bill by taking 153 days as the chargeable days and to apply 0.4. factor. Aggrieved by the appellate-committee's order, the petitioner-consumer preferred the petition. The learned Single Judge by the impugned order dated 2nd December, 2009 has directed the appellate-licensee to recalculate the supplementary bill, on the basis of connected load of 31.5 HP and give credit of the excess amount deposited by the petitioner before the appellate authority in the future bills. Accordingly, the learned Single Judge has directed the appellate licensee to take into account the connected load i.e. 31.5 HP and not 90 HP i.e not the contracted load.
3. The appellant-licensee claims that the learned Single Judge overlooked the relevant provisions under condition no.34 and, therefore, the directions are unsustainable.
4. Ms.Bhaya, learned counsel for the appellant has appeared for the appellant-licensee and submitted that the appellants had indulged into the act of committing theft of electricity and, therefore, the supplementary bill was prepared, which was in accordance with the applicable provisions, i.e. by applying A X B X C X D formula. It is also claimed that there was no error or illegality in the said supplementary bill under which a sum of Rs.6,29,754.73 was demanded. However, the appellate authority, after considering the submissions of the petitioner-consumer, partly allowed the appeal by directing that the number of chargeable days should be brought down to 153. The appellate committee, however, rightly did not interfere with the decision of taking into account the contracted load i.e. 90 HP and rejected the consumer's contention that connected load should be taken at 31.5 HP. She further submitted that there was no basis or justification to set aside the said decision of the appellate authority. However, the learned Single Judge has set aside the said direction and has directed by the impugned Judgment to take into account actual connected load not the contracted load which is unjustified. She has heavily relied upon the condition no.34 and its proviso of the conditions and miscellaneous charges for supply of electrical energy.
5. Learned counsel for the consumer has vehemently supported the order passed by the learned Single Judge and submitted that though the actual and connected load was only 31.5 HP and it had never used more than 31.5 HP and that, therefore, even while applying the A X B X C X D formula, only connected load (of 31.5 HP) should have been taken into account and not the contracted load (90 HP). Even otherwise it (consumer) can not be asked to make payment for the quantity/power which it had never consumed and considering the actual fact-situation of the factory it was not even possible to consume more power i.e. beyond 31.5 HP which was the connected load. Learned counsel for the consumer also submitted that the learned Single Judge has rightly held that the applicable load would be connected load and the said decision of the learned Single Judge does not warrant to be set aside, as claimed by the appellant-licensee.
6. We have heard learned counsel for the contesting parties and have considered the records.
7. There is no dispute about the fact that the installation of the petitioner was inspected by the officers of the appellate-licensee on 9th February, 2002. During the checking of the electric installation at the factory premises, it was found that the functioning of the meter was not proper and the officers also gathered impression that the petitioner-consumer was indulging in theft of powers. The meter equipment was found to be not functioning properly, and, therefore, the meter was replaced and was sent to the laboratory for testing. Upon laboratory test, it was found that the M.M.B. Seal and the terminal cover seal were tampered. The said report established that the consumer had indulged into theft of electricity and, therefore, supplementary bill in the sum of Rs.6,29,754.73 ps was issued. To this extent, there is no dispute between the parties.
7.1. According to the licensee, the dispute is governed by the provisions contained under the relevant conditions viz. " the conditions and miscellaneous charges for supply electrical energy". Since the petitioner is L.T.-Consumer, the applicable tariff is LTP-I. The aforesaid conditions of supply contain clause-34 which, inter alia, contain provisions titled as "payment of energy dishonestly raised or extracted or maliciously vested, or diverted". The said clause/condition No.34 reads thus;
34. Payment for energy dishonestly used or abstract or maliciously wasted or diverted.
Where it is established to the satisfaction of Bord's officer that a consumer has dishonestly abstract, used, consumed or maliciously caused energy to be wasted, or diverted, the value of the electrical energy thus abstracted, used, consumed, wasted or diverted shall be assessed by such officer for the period and in the manner specified hereinbelow and the value of energy so assessed shall be collected by including the same in the next bill or by a separate bill. Such amount shall always be deemed to be the arrears of electricity dues for all purposes.
Provided further that ......
Assessment
1. In case of LT consumers:
The quantity of units consumed per month shall be worked out in the manner prescribed hereunder and the quantity so worked out shall apply for the period as mentioned under the head "Period of assessment"
Consumption per month = A X C X D B Where A is total connected load found at time of detecting the theft of energy.
B is diversity factor.
C is an average load factor.
D is the number of hours in a month For the assessment ............
.....
The cases where connected load of a particular consumer detected under theft is found either "0" (Zero) HP or very less on account of the connection made PDC or any other reason, the supplementary bill is to be served as per ABCD formula considering highest of following:
(1) the load specified in the last test report submitted by the consumer prior to the date of detection.
OR (2) the load found by the field officer at the time during last checking prior to the date of detection, if previous checking date is within 3 months.
OR (3) the applied/contracted load."
7.2. It is noticed that the said clause 34 also provides the period for which such assessment shall be made and states that "where it is established to the satisfaction of the Board's officer that a consumer had dishonestly extracted, consumed or maliciously caused energy to be diverted, the value of electricity extracted, used or consumed shall be assessed by such officer for past six months period or the actual period from the date of commencement of supply, whichever is less......".
7.3. It is also claimed that the clause 34 also provides that the quantity of the unit consumed shall be worked out in the prescribed manner (i.e.as per AXBXCXD formula wherein Factor A is "total connected load" at relevant time) and that shall apply to the past six months period or the actual period, whichever is less, but that is relevant so far as chargeable period is concerned. The above referred proviso to condition No. 34 is related to the said Factor-A. 7.4.
Now, as noticed on perusal of the facts, there is no dispute between the parties about the fact that in case of the petitioner, the contracted load is 90 HP and on the date of inspection i.e. 9th February, 2002 also the contracted load was 90 HP. However, on the date of inspection the actual connected load was 31.5 HP. While preparing and issuing the supplementary bill, the appellant licensee applied AXBXCXD formula, however, for the purpose of Factor A, the licensee took into account 90 HP i.e. the "contract load"
and did not take 31.5 HP i.e. the "connected load" though the Factor "A" under the said A X B X C X D Formula means "total connected load" and not "contract load".
7.5. The dispute is as to whether the contract load i.e. 90.0 HP should be taken into account for the purpose of "Factor A", while applying A X B X C X D formula, or the actual connected load i.e. 31.5 HP should be taken into account. The competent authority decided that it should be contract load i.e. 90 HP. The appellate authority confirmed the said decision but learned Single Judge set aside the concurrent decision and directed to apply connected load i.e. 31.5 HP.
7.6.
Relying on the proviso of condition No.34, the appellant licensee submitted that the condition no.34 also inter alia provide, by virtue of proviso/note that, "the cases where the connected load of a particular consumer' detected under theft is found either "0" (Zero) HP or less on account of connection made PDC or any other reason, the supplementary bill is to be served as per A X B X C X D formula considering the highest of following; (i) ------ the load specified in the last test report submitted by consumer prior to the date of detection (ii) load found by the visit officer at the time of last checking prior to the last date, if provides checking is within three months, (iii) the contracted load", and since in present case the connected load was very less, the decision to take into account contract load was as per the said proviso.
7.7. In light of the said proviso, the learned counsel for the appellant licensee contended and made grievance that though it was necessary to take into consideration, the proviso, the learned Single Judge did not take into account the said proviso while deciding the petition. It is also contended that in present case the said proviso is applicable because at the relevant time the connected load was only about 33 to 34% of the contracted load.
7.8.
Therefore, the second point which arises is whether the authority is justified in concluding that the connected load can be said to be very less.
7.9.
The issue is relevant because it is on the reply to the said issue that the option of invoking the proviso and exercising the right available under it depends. If the reply to the issue is in affirmative then the licencee would be entitled to invoke the proviso and exercise the right thereunder. Whereas if the reply is in negative then the proviso will not be attracted and option would not be available to the licensee.
8. According to the proviso, the licensee can, in certain circumstances, apply either (a) the load specified in the last test report or (b) the load found by the Field Officer at the time of last checking prior to the date of detection (if the said previous checking date is within three months); or (c) the applied / contracted load, whichever from amongst the said three options, is highest.
8.1.
From plain reading of the proviso, it becomes clear that the right to select and apply highest out of the said three options would become available to the licencee if and when
(i) the connected load of the particular consumption detected under theft is either found to be "0" (zero) HP; or
(ii) connected load is found to be very less on account of the connection made PDC or any other reasons.
8.2.
If any one of the two contingencies does not exist then the right to opt for either of the three alternatives will not arise or will not be available to the appellant licensee. Thus, only if, after due consideration of all relevant aspects, the concerned authority finds and records that the connected load, at the time of inspection was "zero"
or "very less"
on account of the connection made PDC or other reason and if the connected load is not found to be "o"
or very less then the appellant licensee cannot invoke the right flowing from the proviso and it will be obliged to apply A x B x C x D formula without the aid of the proviso and it will be obliged to take into account only "connected load".
8.3. Before invoking the option of exercising the right under the proviso the licensee will have to arrive at and record the conclusion that the connected load to the concerned consumer was found to be "zero" or "very less". If the connected load is found to be zero at the time when the theft is detected, then the situation may not pose any serious difficulty in resorting to the proviso of Condition No.34.
8.4.
However, when the connected load is not found to be zero then it would become obligatory for the licensee to arrive at a conclusion that (i) at the time of detection of theft the connected load was "very less"; and that (ii) such situation was on account of the connection made PDC or other reason.
8.5. In absence of such finding, the proviso cannot be invoked and the right or option available thereunder cannot be exercised.
8.6.
Such finding must be based on and can be arrived at/recorded on the basis of the relevant details and material and the fact-situation of the installation-premises.
8.7.
The competent authority is conferred with the power to decide as to whether the connected load, in the given set of facts, can be said to be "very less" or not.
8.8. When such discretion is conferred on the licencee and when its exercise involve financial obligation on the consumer (probably criminal proceedings as well) then the licencee ought to exercise such discretion judiciously and reasonably i.e. without being arbitrary and after due application of mind to all relevant aspects and not ipse dixit.
8.9.
In present case it is noticed that the connected load at the time of inspection was not zero but it was found to be 31.5 HP as against the contracted load of 90.0 HP. Therefore, it was necessary for the competent authority to judiciously arrive at a finding that the connected load was "very less" on account of connection made PDC or for other reason.
8.10.
It is not clear from the available record whether such conclusion was recorded or not and if recorded, whether it was after considering relevant aspects or not. The conclusion and decision of the competent authority is not available on record of present appeal. It is only from the order of the appellant authority that it emerges that the competent authority of the licencee was of the view that connected load i.e. 31.5 HP (at the time of inspection) was very less.
8.11.
However there is no material on record before us from which we can ascertain that on basis of which details and material the competent authority of the licensee reached such conclusion or opinion. There is also no material to show as to whether the total number of machines, equipments and other installments / connections points and their respective power consumption limit were taken into account while concluding that the load can be said to be very less, or not. These details do not clearly come out from the record available before us.
8.12.
Ordinarily, for such purpose the inspection team must, at the time of the surprise checking / inspection, make complete list of machinery, equipments, other installments, points etc. and their respective power consumption details also should be enlisted and only after taking into account the probable consumption of installed machinery, equipments etc. put together the authority may conclude as to whether connected load can be said to be very less or not. It is only after taking into account the aforesaid and such other relevant aspects that the authority can reach a conclusion that the connected load was and /or can be said to be very less or not. A so called conclusion reached without undertaking such exercise would merely be a baseless inference, and not a legally sustainable conclusion.
8.13.
As noted above in present case it does not become clear from the record before us whether such details were taken into consideration by the first adjudicating authority or not.
8.14.
However, in present case it is not the claim or contention or the stand of the consumer- and from record also it does not come out that before the learned Single Judge or even before the Appellate Authority it was the case of the consumer that the competent authority did not record any reasoned finding. Before us also such dispute or contention is not raised. This aspect is supported and fortified by the observations made by learned Single Judge in paragraph No.7 of the judgment, which reads thus:-
"7. Heard learned advocates for the respective parties and perused the documents on record. In view of admission made on the part of the learned advocate for the petitioner that he would not be able to assail the findings arrived at by the appellate authority, except the findings regarding the factor A, I am not expressing any opinion on the other issues. It is not in dispute that at the time of checking, the connected load was 31.5 HP as against contracted load of 90 HP. The laboratory inspection report establishes that theft of electricity had taken place. I am in complete agreement with the findings arrived at by the appellate authority so far as the above issues are concerned."
The consumer had not raised any other issue and the only point contested by the petitioner was regarding the finding record with reference to Factor A i.e. for the purpose of Factor A, whether Contract Load should be considered or Connected Load, was the only dispute raised by the consumer. Even otherwise there are concurrent findings on that issue and much time has passed since the date of inspection / visit. The site situation must have changed considerably, availability of record, particularly about the inspection team's report etc. is also uncertain.
8.15.
Therefore, in present case we will not detain ourselves on these issues and, in the facts of the case, we would rather proceed on the premise that the competent authority had concluded that the connected load was "very less" and that no dispute on that count, is raised by the consumer.
9. In this context it deserves to be noted that installation of the appellant is a factory and had applied for and was granted contracted / maximum load of 90 HP.
9.1.
Ordinarily a factory would not apply for 3 times more than the actual requirement and if the actual requirement of the appellant was, really, around 31 HP, as claimed by the appellant, then it would not have applied for and got installed more than double the requirement. Whereas in the present case, the petitioner consumer had applied for and got contracted load of 90 HP.
10. We have also noticed that either before the appellate authority or before the learned single judge and in present appeal also the petitioner consumer has not established any circumstances which would explain the gap between the contracted load and connected load. Any explanation as to why the contracted load was to the extent of 3 times of its actual requirement which reflected in the connected load of 31.5 HP when inspection was carried out, is not coming out from the record and the petitioner consumer does not appear to have explained the said aspect at any stage. The competent authority, in this backdrop, concluded and recorded that connected load was very less. The appellate authority confirmed the said decision of the competent authority and consequently approved the decision of taking into account the "contracted load" instead of "connected load".
11. It is also necessary to note that according to the appellant the consumer are required to pay even security deposit on the basis of the contract load. In the regular bill the minimum charges are also calculated on the basis of the contracted demand/load and that, therefore also the consumer, ordinarily, would not take excess contract load to the extent of more than almost three times of the actual requirement i.e. 90 HP against alleged connected load of 31.5 HP.
12. Had there been some cogent explanation on the part of the consumer to explain the circumstances on account of which it had secured contract load which was three times more than its actual requirement and such cogent explanation was offered on record, then we would have examined the decision of licensee of treating 31.5 HP as very less load, in that light and perspective. However, in absence of any explanation or material clarifying the reason for the wide gap between contracted load/demand and connected load/demand, we are not able to persuade ourselves to hold that the decision to treat the connected load on the date of inspection as "very less", is arbitrary or unreasonable and/or to take different view. In the facts of present case, the earlier noted second question can be replied to the aforesaid extent.
13. If the appellant licensee is in position to justify its decision of considering 31.5 HP connected load as very less then the proviso on which the appellant licensee has placed reliance would come in picture. In present case, as noted above, the appellant licensee considered 31.5 HP load on the date of inspection as very less and in appeal before the appellate authority the consumer, on one hand, could not justify the wide gap between the connected load contracted load and on the other hand the consumer did not even challenge the decision, and could not successfully assail the said decision, as a result of which the appellate authority accepted the decision of the licensee of treating 31.5 HP load as very less. The said decision, as noted earlier, has not been brought under challenge. The appellant merely claimed that for Factor A 31.5 i.e. connected load should have been taken into account and not 90 HP i.e. the contracted load, but the decision to consider 31.5 load as "very less" was never dispatched by the consumer. Once that decision holds the field, the challenge of the appellant will have to be considered only in that light.
14. Thereafter while considering the petition and the challenge against the appellate authority's order, the learned Single Judge, has, in view of A x B x C x D formula, held that the appellate authority committed error in taking 90 HP as the connected load instead of 31.5 HP.
15. The Learned Single Judge has taken into account the actual connected load at the time of visit however not considered the proviso which allows, on fulfillment of the condition, the licensee to treat either the contract load or the load found by the Field Officer during last checking or the load mentioned in the last test report, as the input for Factor A, when the case is identified as "theft case".
15.1.
In present case, the appellate licencee has exercised the right or the option under the said proviso after treating the connected load as very less.
16. Even before the learned Single Judge or before us, the consumer has not been able to successfully assail the said decision of the appellant licensee. The consumer has not placed on record any material which could convince us that in the facts of the case 31.5 HP load cannot be said to be "very less". The consumer has also failed to explain as to why its factory had applied for and entered into agreement with contracted load of 90 HP which is three times more than the actual connected load which appear to be its requirement.
17. In the backdrop of aforesaid facts and circumstances, unless it is held that the competent authority's decision to treat the connected load of 31.5 HP as "very less" is arbitrary or perverse or merely ipse dixit and apparently incorrect in light of material on record, the Court would not be willing to interfere with and upset the licencee's decision and the action of exercising the option or right under the proviso. It would not be for the Court to sit in appeal over and interfere with such decision unless it is shown to be arbitrary or perverse or mere ipse dixit. So long as such decision is based on same relevant and cogent, recognizable and identifiable details and material, the Court would be loath to interfere with such decision of the authority.
17.1.
As noted hereinabove earlier, for want of any material before us it is not possible for us to hold at this stage, that the adjudicating authority acted arbitrarily or without application of mind and arrived at incorrect conclusion while concluding that the connected load of 31.5 HP can be said to be very less.
17.2.
Therefore, it would not be proper for us to interfere with the exercise of right or option available under the proviso and/or with the concurrent decision by two authorities, since even the appellate authority has confirmed the said decision of the competent/first authority.
17.3.
Thus, when in present case it is not possible to hold that the decision of the competent/first authority to consider connected load 31.5 HP as "very less", is arbitrary or perverse or ipse dixit and such which could not have been reasonably arrived at, the action of invoking proviso and selecting one of the three alternatives i.e. selecting and applying contracted load as input for the purpose of Factor-A, cannot be faulted and interfered with. In the facts of the case the above noted first question can be replied to the aforesaid extent.
17.4.
The position would have been different if the available material demonstrated that the said decision of the adjudicating authority is arbitrary or perverse or ipse dixit and could not have been reached in light of the available material.
17.5.
Under the circumstances we have to hold that the competent authority's decision to consider 31.5 load as very less and then, on that premise, to consider contract load i.e. 90 HP, for the purpose of Factor-A, while applying the AxBxCxD formula,(which came to be confirmed by the appellate authority) ought not have been disturbed in the petition preferred by the consumer. It follows that the appellate authority's order confirming aforesaid decision of the competent authority, also ought not have been disturbed.
We, therefore, restore the order of the appellate authority and declare that the order of learned Single Judge would not survive. The appeal, is accordingly allowed and the order of the appellate authority is restored. However, there shall be no order as to costs.
In view of the order passed in main appeal, Civil Application No.9569 of 2010 stands disposed of.
(S.J.MUKHOPADHAYA, CJ.) (K.M.THAKER, J.) Amit Top