Gujarat High Court
Jamnamaiya Ice Factory vs Executive Engineer City Division on 25 March, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/11924/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11924 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
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 ? NO
================================================================
JAMNAMAIYA ICE FACTORY....Petitioner(s)
Versus
EXECUTIVE ENGINEER CITY DIVISION, & 1....Respondent(s)
================================================================
Appearance:
MR BHARAT T RAO, ADVOCATE for the Petitioner(s) No. 1
MR DIPAK R DAVE, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
================================================================
CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 25/03/2014
ORAL JUDGMENT
1. By this petition under Article 226 of the Page 1 of 12 C/SCA/11924/2005 JUDGMENT Constitution of India, the petitioner has challenged the order dated 16.12.2004 passed by the Appellate Committee of the respondent Electricity Company in Appeal No. B-305/04 and has also challenged the supplementary bill dated 18.1.2005.
2. Heard Mr. Bharat T. Rao with Mr. Dakshesh Patel, learned Advocates for the petitioner and Mr. Dipak R. Dave with Mr. Abhishek Joshi, learned Advocates for the respondents. It may be noted that originally the petition was filed against Gujarat Electricity Board as respondent no.1 then existed and by order dated 6.8.2010 in Civil Application No. 8830 of 2010 the petitioner was permitted to amend the cause title whereby Paschim Gujarat Vij Company Ltd. is substituted as respondent in place of Gujarat Electricity Board.
3. The facts which can be culled out from the record of the petition are as under.
4. That the petitioner is a partnership firm and is interalia engaged in the business of manufacturing ice under the name and style of 'Jamna-Maiya Ice Page 2 of 12 C/SCA/11924/2005 JUDGMENT Factory' at Porbandar. It is an admitted position that the petitioner was the consumer of the respondent electricity company having consumer no. 35101/00807/9. The record reveals that contracted load of the petitioner is 111 H.P. It is the case of the petitioner that the petitioner is carrying out his manufacturing activities at his Ice Factory since more than 10 years and the electrical installations of the petitioner were regularly checked by the officers of the respondent electricity company. It is further the case of the petitioner that by letter dated 3.12.2003 the petitioner had informed the local officer of the electricity company that the plant of the petitioner would be shut down for maintenance from 10.12.2003 to 15.12.2003.
5. The record further reveals that on 17.12.2003 checking squad from the head office of the respondent visited and inspected the premises of the petitioner for checking the electrical installations. On checking it was revealed that the petitioner has additional connected load of 37 H.P. i.e. it was Page 3 of 12 C/SCA/11924/2005 JUDGMENT found at the time of checking that the connected load was 148 H.P. instead of 111 H.P. It appears from the record that checking sheet was prepared on 17.12.2003 wherein checking squad has narrated that mainly four electrical installations in form of 3 H.P., 5 H.P., 50 H.P. and 90 H.P. Motors have been installed by the petitioner. The checking sheet at Annexure 'B' to the petition reveals that same is signed by authorised person of the petitioner and statement is also made on behalf of the petitioner that installations were checked by acque check meter test and in fact the petitioner has also stated voluntarily that he would pay supplementary bill for the additional load found at the time of checking. It appears that after the checking, the respondent electricity company issued supplementary bill amounting to Rs.3,62,315.25 ps. The petitioner being aggrieved by the same, after payment of 25% of the amount of the supplementary bill i.e. Rs.90,579/-, preferred an appeal before the Appellate Committee. It further appears that the petitioner also submitted written submissions before the Appellate Committee Page 4 of 12 C/SCA/11924/2005 JUDGMENT dated 15.12.2004. The Appellate Committee by impugned order dated 16.12.2004 dismissed the appeal. After dismissal of the appeal the respondent electricity company issued impugned supplementary bill amounting to Rs.3,29,135.89 ps. at Annexure 'J' to the petitioner. The order passed by the Appellate Committee dated 16.12.2004 and the supplementary bill dated 18.1.2005 are impugned in this petition.
6. Mr. Patel, learned Advocate for the petitioner has taken this Court through the impugned supplementary bill as well as check sheet dated 17.12.2003 and also written submissions made before the Appellate Committee dated 15.12.2004. Mr. Patel contended that the petitioner had closed the regular manufacturing process for maintenance when the checking took place. Mr. Patel further contended that during last 9 years not a single incident of any unauthorised power consumption or theft has been registered against the petitioner. Mr. Patel predominantly contended that the checking squad has wrongly recorded that connected load was 148 H.P. Mr. Patel further contended that the petitioner has got 3 Page 5 of 12 C/SCA/11924/2005 JUDGMENT phase connection since 1995 and the electricity company has installed 100 K.V.A Transformer and connected cable of 85 and therefore it is not possible that the connected load would come to 148 H.P. Mr. Patel further contended that even as per earlier checking sheet when the electric installation of the petitioner was inspected by the officers of the respondent company 2 motors of 50 H.P., 2 motors of 5 H.P. and 1 motor of 3 H.P. and 1 motor of 1 H.P. were installed by the petitioner which would mean that maximum connected load would come to 114 H.P. Mr. Patel contended that due to irregular supply of electricity power it is not possible for any consumer to use the whole connected load. On this premises Mr. Patel contended that contents of the check-sheet are erroneous and the petitioner has never used unauthorised power as reflected in the check-sheet. Mr. Patel therefore submitted that the Appellate Committee has committed an error apparent on the face of the record and has not considered the submissions made by the petitioner.
7. Mr. Patel further submitted that even while Page 6 of 12 C/SCA/11924/2005 JUDGMENT issuing impugned supplementary bill the respondent electricity company has wrongly levied Rs. 57,399.64 ps. as delayed payment charges. Mr. Patel contended that as such the petitioner was pursuing his right of appeal and as per regulation of the respondent electricity company the petitioner has paid 25% of the amount of supplementary bill amounting to Rs.90,579/- on 23.4.2004 and preferred an appeal which came to be dismissed on 16.12.2004. Mr. Patel further contended that after the impugned order was passed and impugned supplementary bill was raised the petitioner approached Consumer Forum, Junagadh city and the Forum was pleased to grant time till 17.6.2015 to approach this Court. Mr. Patel therefore contended that the petitioner was pursuing remedy under law, hence the petitioner cannot be made liable to pay delayed payment charges. It was therefore contended that the petition be allowed as prayed for.
8. Per contra, Mr. Dipak Dave, learned Advocate with Mr. Abhishek Joshi, learned Advocate for the respondent electricity company has supported the Page 7 of 12 C/SCA/11924/2005 JUDGMENT impugned order dated 16.12.2004 relying upon the contents of checking sheet dated 17.12.2003. Mr. Dave submitted that checking squad did acque check meter which has been admitted by the authorised representative of the petitioner. The checking squad has also described the electrical installation and more particularly 4 motors and calculated the connected load as 148 H.P. Mr. Dave relying upon the statement made by the authorised person of the petitioner before the checking squad submitted that in fact authorised person of the petitioner has admitted that the connected load was 148 H.P. Whereas the contracted load was admittedly 111 H.P. It was therefore contended that the findings arrived at by the Appellate Committee are legal, proper and are bsed on correct appreciation of evidence on record. Mr. Dave further candidly submitted that as the petitioner was pursuing his statutory remedy available under the regulation, this Court may pass appropriate order as regards delayed payment charges which is forming part of the impugned supplementary bill. It was therefore submitted that the impugned Page 8 of 12 C/SCA/11924/2005 JUDGMENT order is legal, proper and the same does not require any interference by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India and the petition therefore deserves to be dismissed in toto. It may be noted that the petitioner has paid full amount of supplementary bill as per order dated 21.6.2005 passed by this Court while issuing notice and the learned Advocates appearing for the parties have also submitted that the whole supplementary bill has been paid.
9. No other and further submissions were made by learned Advocates for the parties.
10. Considering the submissions made by both the sides and on perusal of the relevant record and more particularly the checking sheet and impugned order, it transpires that on 17.12.2003 the checking squad found one motor of 3 H.P., one motor of 5 H.P., one motor of 50 H.P. and one motor was found of 90 H.P. The checking squad has therefore come to the conclusion that the total connected load was 148 H.P. Page 9 of 12 C/SCA/11924/2005 JUDGMENT The record clearly shows that the contents of checking sheet are admitted by the authorised person of the petitioner. On perusal of the impugned order it is found that the Appellate Committee has examined the checking sheet and after technically examining the same, has come to the conclusion that the connected load was 148 H.P. whereas it is an admitted position that the contracted load was 111 H.P. The contention raised by the petitioner that the factory of the petitioner was closed for maintenance as per communication dated 3.12.2003 and that the petitioner is getting low voltage is also examined and considered by the Appellate Committee. Checking sheet clearly indicates that connected load was 148 H.P. and it also transpires that such a conclusion is arrived at by a checking squad after conducting acque check. That the rojkam dated 5.3.2005 at Annexure 'A' which is laboratory report indicates that some objectionable objects were found from the meter. In light of such facts therefore this Court finds no reason to interfere with the finding of fact arrived at by the Appellate Committee on the aspect Page 10 of 12 C/SCA/11924/2005 JUDGMENT of the unauthorised use of electricity. This Court is not sitting in appeal against the Appellate Committee's order and in exercise of jurisdiction under Article 226 of the Constitution, such an interference is not permissible.
11. However, the contention raised by Mr. Patel, learned Advocate for the petitioner that respondent electricity company has wrongly charged/levied delayed payment charges to the tune of Rs.57,399.64 ps. requires to be considered. Mr. Dave, learned Advocate for the respondent Company has candidly submitted that this Court may pass appropriate order on the said aspect. Mr. Patel, learned Counsel for the petitioner has rightly contended that the petitioner pursued the remedy which is available to it under the statute and regulations of the respondent electricity company by way of preferring an appeal. Considering the fact that the petitioner was pursuing the remedy which is available to it under law it cannot be saddled with delayed payment charges and therefore the amount of delayed payment charges to the tune of Rs.57,399.64 ps. deserves to Page 11 of 12 C/SCA/11924/2005 JUDGMENT be deleted from the impugned supplementary bill. Accordingly confirming the finding arrived at by the Appellate Committee by impugned order dated 16.12.2004 the respondent electricity company is directed to delete the delayed payment charges of Rs. 57,399.64 ps. from the supplementary bill dated 18.1.2005. Thus, the supplementary bill is modified to the said extent. In light of the fact that the petitioner has paid the whole impugned supplementary bill the respondent electricity company shall give credit in the bill that may be issued by the respondent electricity company.
12. The order dated 16.12.2004 passed by Appellate Committee is confirmed. The petition is partly allowed. Rule is made absolute to the aforesaid extent only. Parties to bear their own costs.
Sd/-
(R.M.CHHAYA, J.) M.M.BHATT Page 12 of 12