Gujarat High Court
Mahesh J.Gadhavi vs Deputy Engineer on 27 November, 2013
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
MAHESH J.GADHAVI....Petitioner(s)V/SDEPUTY ENGINEER, PASCHIM GUJARAT VIJ CO. LTD. C/SCA/14097/2004 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 14097 of 2004 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================================ 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 ? ================================================================ MAHESH J.GADHAVI....Petitioner Versus DEPUTY ENGINEER, PASCHIM GUJARAT VIJ CO. LTD. & 1....Respondents ================================================================ Appearance: MR DAKSHESH MEHTA, ADVOCATE for the Petitioner MS LILU K BHAYA, ADVOCATE for the Respondents No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 27/11/2013 ORAL JUDGMENT
Heard learned advocate for the petitioner. The petitioner, a consumer of electricity in the area of Kutch-Bhuj having consumer No. 38408/00150/7 for the purpose of production of Salt, has approached this Court by way of this petition filed under Article 226 of the Constitution of India with the following prayers :
(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside Checking Sheet dated 30.12.2003 and the order dated 15.7.2004 passed by the Appellate Committee qua rejecting the part of the appeal;
(B) Pending admission, hearing and final disposal of this Writ petition, Your Lordships may be pleased to restrain the respondent Board from disconnecting the electricity connection provided to the petitioner;
(C) Be pleased to pass such other and further reliefs as may be deemed just and proper by Your Lordships in the facts and circumstances of the case Thus, what is essentially under challenge is the order passed by the Appellate Committee dated 15.7.2004 rejecting the Appeal preferred by the petitioner under the provisions of the Gujarat Electricity Supply Act, 1948.
The facts in brief, leading to filing this petition, as could be culled out from the memo of petition, deserve to be set out as under:
The petitioner has a factory for producing Salt at the address given in the petition. For the electricity supply, he has obtained connection bearing Consumer No. 38408/00150/7. The petitioner s factory was subjected to surprise inspection and checking on 30.12.2003 between 21-00 hrs to 22.30 hrs. During the inspection and surprise checking, the electricity squad recorded that the meter was not registering the consumption of supply, though the power was on. The device employed for tempering with the meter was such as to prevent the meter for registering consumption of supply. The meter itself was removed from its original location and placed on shed, which on account of tilt on it prevented the meter from recording the supply. The checking squad recorded that person present on the scene did not express the willingness to sign the checking sheet. The case of theft was processed and a bill on that basis, as per the formula prevalent then, was raised and an amount of Rs.1,88,089=70ps. was raised. The petitioner approached the Appellate Committee, interalia contending that, the checking squad should not have checked the premises on an odd hours and when the mobile number was mentioned on the board, the checking squad should have contacted the petitioner and invited him before carrying out the inspection and checking. The watch person deployed at the premises also could have been requested to bring the petitioner to fetch him so that checking could be done in presence of the consumer. It was also contended in the appeal memo that the wooden plank, which was used for tilting the meter so as to allegedly prevent from recording electric consumption, has not been seized and therefore, the version of the checking squad could not be believable and correct. It was further contended in the appeal that finding of the checking squad qua consumption of load, based upon number of motor, was also not justified, as one of the motor was purchased and the purchase bill was produced, which would indicate that say of the checking squad was not justified and believable. The Appellate Committee came to the conclusion that checking squad s finding qua modus-operandi preventing the electricity consumption being recorded, cannot be said to be uncalled for or incorrect, however, the Committee opined that the connection load, which is alleged to have been of 15 HP should be treated to that of 14HP and ordered revise in the bill accordingly. The appeal was thus partly allowed vide order dated 15.7.2004. Being aggrieved and dissatisfied with said order, whereunder the Appeal is only partly allowed, the present petition is preferred on the grounds mentioned in the memo of petition with prayers set out thereunder.
Learned advocate appearing for the petitioner contended that the odd hour of checking from 21-00 hrs. to 22-30 hrs. itself is impermissible in view of the provisions of Section 135 of the Electricity Act, 2003 and therefore, the entire proceedings should be treated as having been vitiated.
Learned advocate for the petitioner thereafter contended that the checking squad while recording the factum of checking in the checking sheet, though mentioned that the seals are intact, the Appellate Committee recorded contrary finding, which indicate that there is non-application of mind on their part and therefore, on this count also, this petition may be allowed.
Learned advocate for the petitioner thereafter contended that as provided under the provisions of Section 135(2) (b), the checking party was under an obligation to collect and seize all the article, material and instrument deployed for effecting the illegal consumption. In the instant case, the reference of wooden plank is repeatedly seen but its non-production by way of not seizure, should have weighed with the Committee in allowing the appeal. The counsel, however, could not indicate any such provision existing in the old terms of electricity consumption framed under the Electricity (Supply) Act, 1948, as it was vehemently contended on the part of respondent that till 2004 the appointed date, the theft cases were not governed by order under the provisions of the Electricity Act, 2003.
Learned advocate appearing for respondent invited this Court s attention to the checking sheet and contended that the modus-operandi as could be seen therefrom for effecting unauthorized consumption of energy persuaded the Appellate Committee in rejecting the Appeal and the scope of challenge to this order under Article 226 being very limited, the Court may not interfere therewith. Learned advocate appearing for the respondent in support of her aforesaid contention placed heavy reliance upon the decision of the Apex Court in case of J.M.D. Alloys Ltd. Vs. Bihar State Electricity Board and others, reported in (2003) 5 SCC 226 and the observations made in para-14.
Learned advocate appearing for the respondent thereafter contended that the fact remains to be noted that though the Electricity Act, 2003 came into existence and enforced from 10.6.2003 but so far as, in case of Gujarat is concerned, as could be seen from the detailed findings and observations recorded by the Division Bench of this Court in case of Torrent Power A.E.C. Ltd. Vs. Gayatri Intermediates Pvt. Ltd, reported in 2006(2) 1580 and the observations made in para nos. 19 and 21, the theft cases prior to the year 2004 were governed by the provisions and conditions of supply under the old provisions and new provisions of Electricity Act, 2003 did not have any room to play.
This Court has perused the order impugned. The Court is of the considered view that the petition being bereft of merits, deserves to be dismissed and is accordingly dismissed for the following reasons, namely-
The Court is unable to accept the submission of learned advocate for the petitioner qua odd hour checking of the factory premises as the provisions of Section 135, which is to be sought to be pressed into service, even if it is presumed to be obligatory, though it is not pleaded in the petition, would on the plain reading thereof indicate that it is in respect of only domestic premises. Admittedly, the premise of factory is not to be treated as domestic premises nor has it been claimed as such and therefore, the reliance placed upon Section 135 of the Electricity Act, 2003 is misconceived and does not avail to the petitioner in any manner.
This brings the Court to consider the matter on the aspect of contention qua non-collection of wooden plank used for tilting device so as to prevent the recording of consumption of electricity energy. The learned advocate for the petitioner was categorically called upon to indicate any such provision in the applicable Act, which could be said to be pari-materia to Section 135(2)(b) of the Electricity Act. Assuming without holding for the sake of examining that even as per the common law practice, such a requirement is to be read into rules or provisions, then also, looking to the modus-operandi for preventing the meter recording of energy of consumption and Appellate Committee s endorsing thereof, this Court is of the view that the non-collection of wooden plank, which was used as prop for tilting device, cannot tilt the balance in favour of the petitioner so as to interfere with the order impugned. The checking sheet produced on the record along with its recording that the person present refused to sign the checking sheet and modus-operendi of taking the meter or remove the meter from its original place and placing it on a tilted device itself, is sufficient to discard the contention raised on behalf of the petitioner qua any impropriety in recording the scene of occurrence or the operation of device, so as to prevent recording consumption of electricity. The Court is of the considered view that the counsel for the respondent has rightly indicated that this Court, while exercising jurisdiction under Article 226, has to bear in mind the limited scope as prescribed by the Supreme Court in case of J.M.D. Alloys Ltd (supra).
In the result, for the foregoing reasons, the petition, as it is stated above, is required to be dismissed, as the order impugned cannot be said to be in any manner illegal or improper so as to call for any interference. Rule discharged. Interim relief, if any, stands vacated. No costs.
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