Gujarat High Court
Chief Engineer (V.V.) Dakshin Gujarat ... vs Prakashchandra Chandrakant Aariwala on 26 February, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/528/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 528 of 2014
In SPECIAL CIVIL APPLICATION NO. 15804 of 2003
CHIEF ENGINEER (V.V.) DAKSHIN GUJARAT VIJ CO. LTD
Versus
PRAKASHCHANDRA CHANDRAKANT AARIWALA
Appearance:
MS LILU K BHAYA for the PETITIONER(s) No. 1
MR NM KAPADIA for the RESPONDENT(s) No. 1
RULE NOT RECD BACK for the RESPONDENT(s) No. 1,2
RULE SERVED for the RESPONDENT(s) No. 1,2
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 26/02/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) 1 Heard learned counsels for the parties. 2 This appeal under Clause 15 of the Letters Patent arise out of the oral judgment dated 29/30.01.2013 rendered in Special Civil Application No.15804 of 2003 whereby the learned Single Judge quashed and set aside the decision of the appellate committee dated 26.08.2003 and set aside so far as chargeability of the days Page 1 of 23 C/LPA/528/2014 ORDER beyond the period from 20.11.2002 to 18.01.2003 and directed the electricity company to issue fresh bill after taking into consideration the chargeability of the period from 20.11.2002 to 18.01.2003 and if there is any surplus amount paid or deposited by the petitioner, the same is to be refunded or be adjusted in future bills for electricity consumption.
3 Certain facts recorded by leaned Single Judge in para 2 of the impugned judgment are almost remain undisputed and accordingly for the same of convenience produced herein below:
"2 The short facts of the case appear to be that the petitioner is having electricity connection granted by the respondent, the then Board, now the Electricity Company. On 20.11.2002, the checking was made and at that time, it was found that everything was in order, except that the connected load was 27.87 HP against sanctioned load of 20 HP. Another pertinent aspect is that in Clause No.10 of the said checking sheet, it was mentioned that new MM Box seals bearing No.12023090 and paper seals are applied. Since there was more contracted load of 7.87, a supplementary bill was issued for Page 2 of 23 C/LPA/528/2014 ORDER which the petitioner has filed a separate appeal. Thereafter, on 18.1.2003 the officers of the Electricity Company once again examined the electricity connection of the petitioner and it was found that with the help of MM Box when the glass portion was tilted the meter used to stop and, therefore, it was found that it was a case of theft of electricity energy and the supplementary was issued of Rs.2,28,674.41. The petitioner being aggrieved by the said supplementary bill preferred appeal before the appellate committee and the appellate committee thereafter has passed the order on 26.8.2003, whereby the appeal has been partly allowed to the extent that certain days were excluded for staggering and holidays and the bill is made chargeable for 163 days. As per the petitioner, based on the said order of the appellate committee another bill has been issued of Rs.1,77,647/. Under these circumstances, the petitioner has approached this Court by preferring this petition.
4 At the outset, assailing the above judgment Ms. Lilu Bhaya, learned counsel appearing for the appellant would contend that the learned Single Judge has proceeded and allowed the writ petition on the basis of the decision rendered in Special Civil Application No.16975 of 2003 that if during the checking everything was found `ok' and no malpractice or Page 3 of 23 C/LPA/528/2014 ORDER theft of electricity was found and subsequently in another checking any theft or malpractice is found, the chargeable period should be from the date of last checking till date on which the theft or malpractice was found and chargeability cannot go earlier than the date of checking on which everything was found in order. 4.1 It is further submitted that the learned Single Judge has quoted paras 6, 7 and 8 of the decision rendered in Special Civil Application No.16975 of 2003 and proceeded to apply law laid down therein the facts of the case. Ms. Bhaya, however, would contend that Letters Patent Appeal No.470 of 2014 was preferred by the electricity company challenging the order dated 29.01.2013 rendered by the learned Single Judge in Special Civil Application No.16975 of 2004, which came to be decided along with Letters Patent Appeal No.96 of 2014 and allied appeals and the judgment and order dated 29.01.2013 rendered by learned Single Judge in Special Civil Application No.16975 of Page 4 of 23 C/LPA/528/2014 ORDER 2004 are quashed and set aside and decision of the appellate committee conforming the supplementary bill issued by the electricity company for the period of 180 days prior to the date of detection of pilferage of electricity was restored. Therefore, according to Ms. Bhaya, learned counsel for the appellant, the very basis on which reliance is placed by learned Single Judge in the impugned judgment in this appeal, no more exist and the issue of the subject appeal is governed by the judgment dated 18.12.2014 rendered by Division Bench of this Court in Letters Patent Appeal No.96 of 2014 and allied appeals.
4.2 In the above group of appeals, Division Bench of this Court has placed reliance on the judgment rendered in Letters Patent appeal No.110 of 2014 whereby condition No.34 and criteria contained therein came to be considered. That paragraphs 9 to 13 of the judgment rendered in Letters Patent Appeal No. 110 of 2014 were Page 5 of 23 C/LPA/528/2014 ORDER reproduced and court finally concluded that considering the modus operandi adopted by the consumer, issuance of supplementary bill for theft of electricity, considering the period of 180 days prior to the date of subsequent checking was upheld and order of learned Single Judge in each of the writ petitions for which Letters Patent Appeals were filed, came to be quashed and set aside.
4.3 Thus, according to Ms. Bhaya, learned counsel for the appellant, the issue involved in this appeal therefore is no more res integra and once the basis for applying law no more remains in force, the present Letters Patent Appeal deserves to be allowed by quashing and setting aside the impugned judgment dated 2930.01.2013 rendered by the learned Single Judge in Special Civil Application No.15804 of 2003. 5 Mr. Kapadia, learned counsel for the respondent - original petitioner would contend Page 6 of 23 C/LPA/528/2014 ORDER that writ petition allowed by the learned Single Judge was not solely based on applicability of law laid down earlier by the learned Single Judge in Special Civil Application No.16975 of 2003, but on the basis of clause 34 in the context of facts of the case viz. that upon first checking, which was made on 20.11.2002 everything was found in order except that the connect4ed load was 27.87 HP as against sanctioned load of 20 HP. Further, clause No.10 of the said checking sheet, it was specifically mentioned that MM Box seals bearing No.12023090 and paper seals applied and since there was more contracted load of 7.87 HP, a supplementary bill was issued for which the petitioner has filed a separate appeal. Thus, even as per the case of electricity company, pilferage of electricity was noticed thereafter on 18.01.2003 when the officers of the electricity company again examined the electricity connection and it was found that with the help of MM Box when the glass portion was tilted the meter used to stop and, therefore, it Page 7 of 23 C/LPA/528/2014 ORDER was considered as case of theft of electricity and the supplementary bill was issued to the tune of Rs.2,28,674.41. It is accordingly contended that when there was no case of any irregularity much less any pilferage at the time of checking squad visiting inspected the premises 20.11.2002 and no mention was made in which checking sheet about any kind of tampering either with meter or electricity supply line or any other component, counting of the chargeability of the 180 days 180 commence from the period of 20.11.2002 to 18.01.2003 by the electricity company so confirmed by the appellate committee with some modification is rightly quashed and set aside by learned Single Judge.
5.1 While distinguishing the judgment rendered in Letters Patent Appeal No.96 of 2014 and allied appeals vide oral judgment dated 18.12.2014, it is submitted that the above judgment do not give any authority to the electricity company to issue supplementary bill Page 8 of 23 C/LPA/528/2014 ORDER by charging of electricity dues of checking of electricity supply prior to 180 days provided consumer establishes on facts of the case and proved by leading evidence that when earlier meter was checked and inspection was carried out everything was found `ok' and subsequently any illegality pilferage of energy is noticed. Though burden is shifted upon the consumer, but in the facts of the case on hand, the consumer is successfully brought on record the material that too official record of the electricity company about two inspection reports of the officers of the company which reveal that on the first checking done on 20.11.2002 no irregularity was found and everything was found in order. It is therefore submitted that the judgment dated 18.12.2014 rendered by Division Bench of this Court in Letters Patent Appeal No.96 of 2014 and Letters Patent Appeal NO.470 of 2014 whereby the judgment and order dated 29.01.2013 passed in Special Civil Application No.16975 of 2004 was quashed and set aside on which reliance is placed Page 9 of 23 C/LPA/528/2014 ORDER by learned Single Judge in the writ petition allowing in favour of the petitioner herein quashing and setting aside the order passed by the appellate authority and supplementary bill issued with effect from first visit of the checking squad on 20.11.2002 do not deserve any interference by this Court in this appeal. 6 Heard learned counsels for the parties and perused the record. For better appreciation of the arguments canvassed by learned counsel for the parties, we reproduce herewith the relevant conditions :
34. Payment for energy dishonestly used or abstracted or maliciously wasted or diverted Where it is established to the satisfaction of Board's officer that a consumer has dishonestly abstracted, 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 Page 10 of 23 C/LPA/528/2014 ORDER 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 that the value of the electricity energy so assessed to have been abstracted, used, consumer, wasted or diverted shall be subject to review by the Appellate Authority on the representation/appeal being filed by the consumer in the manner stated hereinbelow.
Provided further that ... ... ...
Assessment
1. In case of LT consumers: ... ... ...
2. In case of HT consumers:
In case of HT consumers taking supply at high tension is detected to have committed theft of energy, the actual maximum demand shall be considered an equivalent to 75% of the total connected load of the consumer at the time of inspection subject to a minimum of the contracted demand and the energy consumption shall be assessed as under: Assessed units per month = M x H x C Where M = Demand in KW (KVA x PF) H = Nos. of Hours in month C = Load Factor Category of HT consumers Load Factor ... .... ... .....
Textile 75% Note: The "Actual maximum demand" in Kilowatt shall be computed from various equipments rated in Kilowatt directly Page 11 of 23 C/LPA/528/2014 ORDER and from equipments rated in horse power by the standard engineering formula. The "actual maximum demand in KVA" shall be computed from "actual maximum demand in KW by dividing the later by the actual average power factor for the period mentioned hereinbelow under head "period of Assessment.
The demand so assessed (in KVA) in excess of the recorded demand shall be charged at two times the applicable tariff rates for "billing demand in excess of contract demand" for each month's assessment.
The consumption assessed in the manner aforesaid shall be reduced by the consumption recorded by the meter and charged at the appropriate tariff rates. The remaining consumption shall be charged at 2.5 times the applicable tariff rates under the head "Energy charges" and "Fuel Cost Adjustment charges".
Neither failure to launch a prosecution nor the acquittal of the consumer in any prosecution on any ground other than the prosecution case is False shall bar the proceedings under this clause.
The levy of the aforesaid charges shall be without prejudice to the rights of the Board to disconnect the service and/or proceed otherwise.
For the purpose of assessment of Units, all rating of appliances will be in HP / Kws. Conversion of rating of electrical appliances and equipment for Brake Horse Power of KVA to Kilowatts will be done as prescribed under Schedule of Tariff Page 12 of 23 C/LPA/528/2014 ORDER in force.
However, Appellate authority shall have the powers to decide the applicable value of the load factor / diversity factor in case of both HT or LT Consumers.
PERIOD OF ASSESSMENT:
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 and upto the date of detection"
6.1 Condition No.35 is pertaining to disconnection for malpractice and compensation thereof. However, the facts of the appeal as Page 13 of 23 C/LPA/528/2014 ORDER such do not require any detailed reference to Condition No.35, at this stage, in view of admitted fact about preferring appeal by the respondent - writ petitioner before the Board against issuance of supplementary bill qua first inspection on 20.11.2002 whereby it was found that extra load of 7.80 HP i.e. against sanctioned load of 20 HP was found. The above appeal is separate subject matter. 6.2 The question now that is to be determined, the starting point of six months from the date of detection of theft / pilferage of energy and in the present case, when the second inspection was carried out on 18.01.2003 modus operandi adopted by the consumer was found as under:
"On perusal of the record and especially the checking sheet dated 18.1.2003, it is explicitly clear that the appellant had made permanent arrangement in such a manner that the MMB containing the meter installed therein, could be tilted in order to stop the recording of the Page 14 of 23 C/LPA/528/2014 ORDER consumption in the meter. It has been specifically stated in the checking sheet itself that at the time of checking practically testing was made by tilting the meter and the recording of consumption stop and as a result of that. Videography of the condition of the meter has also been taken. Still however, the appellant's representative who has signed the checking sheet has the audacity to say that no such arrangement was made as a result of which, the MMB with the meter installed therein could be tilted in order to stop the recording of the consumption in the meter. No objection was written by the appellant either on the checking sheet or by giving it separately in writing to any higher authority of the Respondent. Admittedly, the appellant has no enmity with the officer of the checking squad who were from H.O.Baroda. The checking officers have therefore no reason to file false case against the appellant".
6.3 Even the appellate authority in its order held as under:
"..... So in the above view of the matter, considering the documentary evidence produced by the Respondent Board, we hold that the Respondent Board has succeeded in establishing its case of theft of electrical energy. The submission of the appellant that at best the sup0lementary bill could be served on him for a period 20.11.2002 to 18.1.2003, the date of checking cannot be accepted. Firstly because this is not a case of tampering of Page 15 of 23 C/LPA/528/2014 ORDER meter, Secondly, admittedly at the time of checking dated 20.11.2002, the appellant at his request got the MMB sealed and there is nothing in the said checking sheet which would go to show that the installation of the appellant was checked by the checking squad for theft of electrical energy. Thirdly, that was a case of malpractice wherein as against the contract load of 20 HP, connected load of 27.8 HP was found. In the case, his meter was not required to be checked and as such, there is no observation to that effect of the said checking sheet of meter having been checked on that date. Therefore, in our opinion the checking dated 20.11.2002 as a result of which, the malpractice was found would not be of any help to the appellant. However following the normal practice of the Respondent Board to give relaxation on account of staggered days and holidays in the case of theft of electrical energy, the committee decides to give the following relaxations: [emphasis supplied] [I] 1 Staggered days : 13 days @50% 2 Holidays : 08 days [Diwali - 4 / Makarsankranti1 / Janmastami - 1 / Independence 1 & Raxabandhan 1 = 8 Total 21 days The net chargeable days would be 18421 = 163 Page 16 of 23 C/LPA/528/2014 ORDER [II] There shall not be any change in any other parameters of the ABCD formula.
The Respondent board is directed to revise the supplementary bill in terms of the above direction and recover the balance amount, if any, from the appellant."
6.4 Thus, what is found towards evidence by the checking squad in the checking sheet dated 18.01.2003 that the consumer had made permanent arrangement in such manner that MM box containing the meter installed therein, could be tilted in order to stop recording of the consumption of the electricity. That was demonstrated and even videographed of the condition of the meter was taken. The assessment of charges for consumption of electricity for issuing supplementary bill and starting point for the assessment commencement of six months was considered by the Division Bench of this court in Letters Patent Appeal No.96 of 2014 in Special Civil Application No.8520 of 2004 and allied appeals. Subsequently, another Division Bench in Letters Patent Appeal No.1086 Page 17 of 23 C/LPA/528/2014 ORDER of 2013 in Special Civil Application No.7654 of 2002 relied on the decision rendered in Letters Patent Appeal No.96 of 2014. It is to be noted that in the present appeal, the judgment and order under challenge of learned Single Judge dated 29/30.01.2013 in Special Civil Application No.15804 of 2003 allowing the petition was filed by the writ petitioner - consumer relied on the judgment rendered in Special Civil Application No.16975 of 2003, but aggrieved by the decision in Special Civil Application, Letters Patent Appeal No.407 of 2014 was filed, which was allowed and the judgment rendered Special Civil Application No.16975 of 2004 came to be quashed and set aside.
6.5 However, the fact remains that Division Bench in the oral judgment dated 18.12.2014 rendered in group of Letters Patent Appeal No.96 of 2014 and another Division Bench decision dated 11.09.2014 rendered in Letters Paten Appeal No.110 of 2014, were relied on. Paras 9 to 13 of Page 18 of 23 C/LPA/528/2014 ORDER the CAV judgment dated 11.09.2014 rendered in Letters Patent Appeal No.110 of 2014 read as under:
"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 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.Page 19 of 23 C/LPA/528/2014 ORDER
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 nobodys 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.
11. 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.Page 20 of 23 C/LPA/528/2014 ORDER 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 neutral prior to the period of replacement of the meter in the month of August 2013 stands established."
6.6 Therefore, when the law is laid down by the Division Bench of this Court about a Page 21 of 23 C/LPA/528/2014 ORDER statutory presumption that movement theft of electricity was found, the electricity company can issue supplementary bill for theft of electricity for the period of 180 days / 6 months prior to the date of checking when the pilferage is found, of course, subject to the rider that in the facts of the case, if the consumer is able to establish and prove by leading evidence that when earlier the meter was checked it was found `ok' and subsequently an illegality and/or theft of energy is noticed, on same facts and circumstances on which previously the consumer was not found to have committed theft, the court can come to a different conclusion. But in the facts and circumstances of this case, even at the time of first inspection carried out on 20.11.2002, the consumer was found to have connected with extra load of 7.87 HP against the sanctioned load of 20 HP, it cannot be said that that the consumer - writ petitioner has established his case by rebutting the statutory presumption.
Page 22 of 23 C/LPA/528/2014 ORDER 7 In view of the above discussion, this appeal succeeds and is hereby allowed and supplementary bill dated 20.01.2003 issued by respondent No.1 for an amount of Rs.2,28,674.41, which was later on modified to the tune of Rs.1,43,784.60 vide revised supplementary bill dated 05.0.2003, as per the order dated 26.08.2003 passed by the respondent No.2, is hereby sustained. Accordingly, oral judgment dated 29/30.01.2013 passed in Special Civil Application No.15804 of 2003 is hereby set aside.
(ANANT S. DAVE,J) (BIREN VAISHNAV,J) P. SUBRAHMANYAM Page 23 of 23