Gujarat High Court
Madhya Gujarat Vij Co. Ltd. Notice To Be ... vs Rajan M Shah on 11 September, 2014
Equivalent citations: AIR 2015 GUJARAT 56
Author: V. M. Sahai
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/LPA/110/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 110 of 2014
In SPECIAL CIVIL APPLICATION NO. 6300 of 2004
With
CIVIL APPLICATION NO. 1055 of 2014
In
LETTERS PATENT APPEAL NO. 110 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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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MADHYA GUJARAT VIJ CO. LTD. NOTICE TO BE SERVED UPON....Appellant(s)
Versus
RAJAN M SHAH....Respondent(s)
=============================================
Appearance:
MS LILU K BHAYA, ADVOCATE for the Appellant(s) No. 1
MR PARTHIV B SHAH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Page 1 of 11
C/LPA/110/2014 CAV JUDGMENT
Date : 11/09/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA)
1. This intra court Letters Patent Appeal under Clause 15 of the Letters Patent is filed by Madhya Gujarat Vij Company Limited (hereinafter referred to as 'the appellant' for short) interalia challenging the judgment and order dated 10.09.2013 passed by the learned Single Judge in Special Civil Application No.6300 of 2004, whereby the learned Single Judge was pleased to issue direction to the appellant herein to issue a fresh supplementary bill by taking Dfactor to be 90 days instead of 180 days.
2. For deciding this appeal, the facts germane to the issue, which required a mention, are recapitulated below:
2.1. That the electrical installation of respondent (hereinafter referred to as 'the consumer' for short) being consumer No.16306/00473/4 of LFD1 category was checked by DE (I/C), the then Gujarat Electricity Board, Vadodara on 06.11.2003. During the course of checking it was found by the officials of the appellant that one single phase meter and another three phase meter were installed in the house. It was also noticed that a switch of higher capacity was provided on load side of single phase meter and the load of three phase meter bearing consumer no. 16306/00473/4 was connected with this switch. During the course of checking it was further revealed that neutral was broken on the main side of the single phase meter and the phase of the load side was given to aforesaid switch. One earthling switch was also provided to use earthling in place of neutral. So the load of three phase meter was connected on single phase meter and consumption was not recorded due to such arrangement. For the above arrangement, the seals of meter Page 2 of 11 C/LPA/110/2014 CAV JUDGMENT box were not disturbed or required to be touched. A statement of checking to this effect was prepared at the site which was signed by the consumer's representative and officers of the then Gujarat Electricity Board - appellant herein. It appears that while checking the aforesaid connection, it was explained in details to the person who had signed the checkingsheet.
2.2. In view of the above checking, the officials of the appellant came to the conclusion that the consumer has committed theft of electricity.
Hence, his connection was disconnected and a supplementary bill amounting to Rs.1,72,914/ was issued to the consumer in accordance with condition Nos. 33(B) and 34 of the Conditions and Miscellaneous Charges for Supply of Electrical Energy.
2.3. Being aggrieved by the aforesaid checking and resultant issuance of supplementary bill, the consumer preferred an appeal before the Appellate Committee for the Central Zone at Baroda and after affording reasonable opportunity of hearing to the consumer and on appreciation of the facts of the case, the Appellate Committee consisting of five members including the members of legal as well as technical, was pleased to allow the appeal in part and the respondent therein - appellant herein was directed to revise the supplementary bill by considering chargeable units as 7229 instead of 10901 units.
2.4. Thereafter, the consumer challenged the aforesaid decision of the Appellate Committee by way of preferring a writ petition being Special Civil Application No.6300 of 2004 before this Court. During the course of hearing of the writ petition, the consumer had givenup his other contentions except the below mentioned contentions raised in grounds (C) and (D) of the petition.
Page 3 of 11 C/LPA/110/2014 CAV JUDGMENT"(C) The petitioner states and submits that the appellate authority of the respondentBoard has committed a serious error while considering the ABCD formula and while fixing factorD to be of 180 days. It is submitted that three months prior to the checking the meter of the single phase connection was checked and replaced by the respondentBoard and therefore the period should be 90 days at best.
(D) The petitioner further respectfully submits that even assuming without admitting that the petitioner has committed theft of power supply by connecting load of one phase of the three phase meter with single phase meter of the sister of the petitioner, then also, the load of one phase out of three phases is diverted to the single phase meter. It is not clear either from the checking report or from the appellate committee's order as to which phase of three phases of the petitioner's power supply is connected with the singlephase meter and while applying the ABCD formula that much power is only required to be considered. However, in the present case the appellate committee has considered all three phases of the petitioner's power supply to have been diverted at a time and accordingly calculated the units alleged to have been pilferaged by the petitioner. It is also submitted that while calculating the lighting load the appellate committee has assumed the power load of 10 KW for 24 hours a day though it is the peak load and the power consumption at a given point of time hardly touches the peak load. It is therefore, submitted that the impugned order of the appellate committee deserves to be set aside by the Hon'ble Court".
2.5. In view of the aforesaid factual position the only controversy which was required to be addressed before the learned Single Judge was with regard to the period of preparation of supplementary bill as per factor D of ABCD formula as envisaged under condition No.34 of the Conditions and Miscellaneous Charges for Supply of Electrical Energy. The learned Single Judge while deciding the aforesaid matter has observed that as the electric meter of the aforesaid connection in question was changed in the month of August 2013, the factum of pilferage of electricity by tampering with the neutral could not have been gone unnoticed. The learned Single Judge has further recorded Page 4 of 11 C/LPA/110/2014 CAV JUDGMENT that the change of meter amounts to an inspection of premises and that being so once the premises was inspected on the day when the meter was changed, the Board - appellant herein could not be allowed to charge the consumer at the rate of 180 days and it has to charge only at the rate of 90 days to which the petitioner - consumer had agreed. With above observations, the learned Single Judge directed the appellant herein to issue a fresh supplementary bill by taking D factor to be 90 days instead of 180 days. Hence, this Letters Patent Appeal.
3. Heard Ms. Lilu K. Bhaya, learned advocate for the appellant and Mr. Parthiv B. Shah, learned advocate for the respondent.
4. Ms. Bhaya, learned advocate for the appellant has argued that this is a peculiar case wherein change of meter has nothing to do with the manner in which the consumer has indulged himself for pilferage of electricity by slightly cutting down the rubber cap of neutral wire leading towards the meter and placing a regulatory switch so that the current of load connected would pass through current coil of meter but pressure coil of meter would not receive the voltage and thereby recording of consumption of electricity would be bypassed. She has further argued that the aforesaid condition No.34 of the Conditions and Miscellaneous Charges for Supply of Electrical Energy is self contained and gives detail guidelines regarding counting of assessment period and the finding recorded by the learned Single Judge is not in accordance with the provisions of the aforesaid condition No.34. She has also argued that while assessing the period in case of theft of electricity, four various criteria are provided in condition No.34 out of which criteria No.1 is applicable to the facts and circumstances of the present case, which the learned Single has failed to consider. She has further argued that the learned Single Judge has committed an error while computing the Page 5 of 11 C/LPA/110/2014 CAV JUDGMENT period of 90 days relying upon criteria No. 3 of condition No.34 as if the evidence of theft is detected in the earlier meter which was replaced in the month of August 2013. She has also submitted that it is not a simple case of theft where the officials of appellant can detect the theft of electricity which is usually committed by tampering with the metering system but here in this case the consumer had committed the theft of electricity by adopting a latent modus operandi and therefore the learned Single Judge also committed an error in observing that if the neutral was broken then the said fact could not have been gone unnoticed by the officials, who are trained and skilled officials having expertise in this field at the time of replacement of the earlier meter. Therefore, the judgment and order passed by the learned Single Judge is required to be quashed and set aside.
5. Per contra, Mr. Parthiv Shah, learned advocate for the respondent
- consumer has vehemently argued that criteria No.3 of Condition No.34 shall be applicable to the facts and circumstances of the present case and the learned Single Judge has rightly invoked criteria no. 3 of Condition No.34 for the assessment of period of 90 days, which should not be interfered by this Court. He, therefore, urged to dismiss the appeal with cost.
6. In view of the aforesaid arguments advanced by the learned advocates for the respective parties, the only question that arises for our determination is as to whether the supplementary bill for the pilferage of electricity should be prepared for a period of 90 days or for a period of 180 days prior to the date of checking which was made on 06.11.2013 when the pilferage of electricity came to the notice of the appellant company.
Page 6 of 11 C/LPA/110/2014 CAV JUDGMENT7. In order to appreciate the contention raised by the learned advocate for the respondent that the period should be considered from the date of replacement of earlier metering system till the checking was made on 06.11.2013 and not for a period of 180 days prior to the date of checking when pilferage of electricity was noticed i.e. 180 days prior to 06.11.2013, it is worth to reproduce the period of assessment as envisaged in condition No.34 of the Conditions and Miscellaneous Charges for Supply of Electrical Energy, which reads as under:
PERIOD OF ASSESSMENT:
The assessment of energy under this Clause 34 shall apply on the following basis:
"1. Past six months from the date of detection, (for seasonal industries Six working months, excluding off season period declared by the consumer); or
2. Actual period from the date of commencement of supply upto the date of detection; or
3. Actual period from the date of replacement of component of metering system in which evidence is detected within six months from the date of detection and upto the date of detection; or
4. The actual period from the date of the previous installation checking (and resulted into supplementary bill) under provisions of this clause within six months period of the date of the detection under consideration Page 7 of 11 C/LPA/110/2014 CAV JUDGMENT and upto the date of detection."
8. It is true that the consumer has already given up the contention as regard theft/pilferage of electricity committed by him and also agreed for preparation of supplementary bill by considering the D factor to be that of 90 days as recorded by the learned Single Judge. From the record and proceedings, it appears that the consumer acted smartly and adopted a latent modus operandi for committing theft of electricity by slightly breaking the rubber cap of neutral which was proceeded towards the meter and the arrangement was made so that one could not notice it with open eyes. The argument advanced by the learned advocate for the appellant that this sort of abstraction of electricity slightly cutting down the rubber cap of the neutral and placing a regulatory switch and with the help of that recording of consumption can be stopped without tampering either with the meter or its components was not acceptable to us and therefore we thought it fit to request the learned counsel for the appellant to practically demonstrate such arrangement by which the consumer has committed theft of electricity. In response thereto, the learned advocate for the appellant arranged a live demonstration in the open court in presence of learned advocates for the respective parties and the demonstration made by the officials of the appellant company was viewed by us and we have noticed that cutting down latently the neutral which was not noticeable with the open eyes and placing a regulatory switch, the recording of consumption of electricity can be avoided.
9. In this view of the matter, whenever a wise consumer can arrange for such sort of pilferage of electricity without tampering with the meter or its components and when criteria No.3 of condition No.34 clearly provides for the actual period from the date of replacement of Page 8 of 11 C/LPA/110/2014 CAV JUDGMENT component of metering system in which evidence is detected, in our opinion, this criteria cannot be applicable in the facts of the present case because it is not the case of either party that at the time when the meter was changed in August 2013 the theft of electricity was detected by the officials of the appellant company. Since it is not the case of either of the party that the theft was detected at the time when the meter was changed in the month of August 2013, there is no occasion of counting the actual period as provided in criteria 3 of condition No.34 and the learned Single Judge appears to have misconstrued the criteria provided for assessment of period since the earlier meter was not changed due to the detection of theft of electricity by the consumer. The essential part of criteria No.3 is the replacement of component of metering system in which the evidence is detected. Here, in this case, the case of the consumer does not fall within that criteria because the essential part of criteria No.3 is missing in this case.
10. It is also relevant to note that the learned Single Judge has also observed that when the meter was replaced in the month of August 2013, it amounts to inspection of the premises. However, it is nobody's case that at the time of replacement of the metering system, the premises of the consumer was inspected. The facts of replacement of meter and inspection of premises are altogether different. In our opinion, meter can be changed at any time without inspecting the premises and when the inspection is sought to be carried out, it means that the authority may have some doubt about the pilferage of energy. Thus, the observation of learned Single Judge that the replacement of meter in the month of August 2013 amounts to inspection of the premises appears to be based upon presumption only. However, the fact appears to be otherwise.
Page 9 of 11 C/LPA/110/2014 CAV JUDGMENT11. Even if the officers of the appellant by exercising due care and diligence could not notice the pilferage of electricity at the time of replacement of metering system, it did not bring the case of the consumer for the assessment of lesser period commencing from replacement of metering system for want of evidence of pilferage of electricity and resultant replacement of meter, as envisaged in criteria No.3. Further, even if in connivance or with the open eyes the officials of the appellant did not notice the pilferage while replacing the metering system, it would not eliminate the possibility of pilferage of energy by the consumer.
12. Now, a bare perusal of criteria Nos. 2 and 4 clearly indicates that these criteria are not applicable to the facts and circumstances of the present case. Thus, in our opinion, criteria No. 2, 3 and 4 would not be applicable in the facts and circumstances of the present case. Thus, in this view of the matter, the case of the consumer falls within the provisions of criteria No.1.
13. As narrated above, the modus operandi adopted by the consumer for pilferage of electricity was such that even with the open eyes an ordinary man could not notice the breakage of neutral wire below the meter. In this situation at the time of replacement of meter in the month of August 2013, the officials of the appellant could not have noticed the pilferage of electricity, otherwise, at that time on detection of pilferage of electricity, a supplementary bill could have been issued. Even if it is presumed that the fact of theft of electricity was noticed by the officials of the appellant company at the time of replacement of earlier meter in the month of August 2013 and they acted in connivance with the consumer, in that case also, the position being the same that the consumer was committing theft of electricity by cutting down the Page 10 of 11 C/LPA/110/2014 CAV JUDGMENT neutral prior to the period of replacement of the meter in the month of August 2013 stands established.
14. We have also perused the order passed by the Appellate Committee consisting of five members comprising experts as well as legal members. On perusal of the order of the Appellate Committee, it appears that the Appellate Committee elaborately dealt with all the rival contentions raised before it and also recorded the finding of fact that such sort of pilferage cannot be noticed while replacing the meter.
15. For the reasons recorded above, the present Letters Patent Appeal is allowed and the judgment and order dated 10.09.2013 passed by the learned Single Judge in Special Civil Application No.6300 of 2004 is hereby quashed and set aside. In view of the order passed in main appeal today, the civil application does not survive and it is, accordingly, disposed of.
(V. M. SAHAI, J.) (R. P. DHOLARIA, J.) Jani Page 11 of 11