Gujarat High Court
Jagdishbhai Revabhai Patel vs Dakxin Gujarat Vij Co Ltd on 30 November, 2013
Author: S.G.Shah
Bench: S.G.Shah
JAGDISHBHAI REVABHAI PATEL....Petitioner(s)V/SDAKXIN GUJARAT VIJ CO LTD C/SCA/7049/2004 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 7049 of 2004 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH ============================================================== 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 ?
============================================================== JAGDISHBHAI REVABHAI PATEL....Petitioner(s) Versus DAKXIN GUJARAT VIJ CO LTD & 1....Respondent(s) ============================================================== Appearance:
MRS FALGUNI D PATEL, ADVOCATE for the Petitioner(s) No. 1 MR SN SINHA, ADVOCATE for the Respondent(s) No. 1 - 2 CORAM:
HONOURABLE MR.JUSTICE S.G.SHAH Date : 30/11/2013 CAV JUDGEMNT 1 The petitioner is running his factory at plot No. 115, G.I.D.C., Pandesara, Surat, where he was having electric connection from the respondents bearing Consumer No. 05205/01075/4 under LTP-1 category with contracted load of 35 HP and connected load of 21 HP.
2 The present petition is preferred under Article 226 read with Article 227, as also Articles 14 and 19/[1][g] of the Constitution of India and under the provisions of the Indian Electricity Act, 1910 [hereinafter referred to as the Act ] read with Indian Electricity Rules, 1956 [hereinafter referred to as the Rules ] with a prayer to quash and set aside the order of the Appellate Committee constituted under the statute in Appeal No. SZ04/24 dated 15/4/2004, whereby the Appellate Committee has partly allowed the appeal of the petitioner and directed the respondents to reduce the supplementary bill of Rs.2,61,184-68 paise issued by them in pursuance of checking made on 3/1/2004. As a result of such impugned order, the supplementary bill was reduced to Rs.1,91,961-30 paise. Therefore, the petitioner has also prayed to quash and set aside such demand.
3 Heard learned advocate Ms. Falguni Patel for the petitioner and Mr. SN Sinha, learned advocate for the respondent nos. 1 and 2. Perused the record.
4 It is clear that since the inspection was made on 3/1/2004 and since the Electricity Act, 2003 came into force from 27/1/2004, for all purposes, the provisions of the Indian Electricity Act, 1910 would be applicable to the present case and there is no dispute to that effect by either party.
5 The petitioner is consumer and having electricity connection from the respondents as stated hereinabove. It is his case that they have informed the respondents by letter dated 29/11/2003, copy of which is produced at Annexure-B, that there was average bill for the month of November because three phase meter was stopped and, therefore, they have requested the respondents to change the meter. However, thereafter meter was not changed till 3/1/2004 when officers of the respondents have checked the instrument and recorded that the meter was not functioning and thereafter issued supplementary bill of Rs.2,61,184-68 paise. Therefore, the petitioner has submitted a representation dated 15/4/2004 before the Appellate Committee describing all such facts including details of actual consumption of electricity from April 2002 till April 2004 and submitted to cancel the average bill. However, the Appellate Committee has by its order dated 15/4/2004 confirmed the result of the checking while giving benefit of number of days thereby 11 days were deducted from the calculation and directed the respondents to revise the bill which comes to Rs.1,91,961-30 paise.
6 Thereby the petitioner was supposed to pay such amount and, therefore, till such stage the petitioner has preferred this petition praying to quash and set aside the decision of the Appellate Committee dated 15/4/2004 as well as final average bill for Rs.1,91,961-30 paise dated 27/5/2004.
7 While issuing the notice on 23/6/2004 the petitioner was directed to deposit Rs.1 lac and by order dated 18/10/2004, while admitting the petition, the petitioner was further directed to pay the balance amount of the supplementary bill and delayed payment charges in six equal monthly instalments and to continue to pay regular bills thereafter.
8 The respondents has filed counter affidavit and the petitioner has also filed rejoinder affidavit.
9 Considering the submissions of both the parties and on perusing the record, now it becomes clear that in almost all such cases, consumers are coming forward with a story of intimation about defect with their meters just prior to checking of the instrument by the competent officers. However, in most of the cases, such vital evidence is produced in more improper manner, inasmuch as in the present case also, attested typed copy of the letter dated 29/11/2003 is produced at Annexure-B without proof of it being actually delivered or received by the respondents. However, when such fact is admitted by the respondents in para 4 of their affidavit-in-reply, it becomes clear from such reply that at the time of replacing the meter, the competent officer has found that the seal of the meter was tampered with.
10 Therefore, present case is squarely falls within the provisions of section 26[6] of the Act whereby whenever there is a dispute regarding recording of the consumption by the meter in question, either the consumer or the supplier was entitled to refer the issue regarding recording of consumption of electricity to the Electrical Inspector appointed by the Central Government. There is no dispute that in the present case the petitioner has never approached the Electrical Inspector either to show or to prove that the meter is faulty i.e. meter is not recording electric consumption for unknown technical reasons, which are to be examined, ascertained and determined by the technical and competent authority say the Electrical Inspector. Thereafter, when the electricity company has managed to change the meter on 3/1/2004, at the time of checking the meter it was found that the previous meter has stopped functioning at all and testing report no. 3445 dated 3/1/2004, illegible copy of which is produced at Annexure-C, makes it clear that testing was done because of suspected irregularity. Since such vital document is illegible and its typed copy is not produced on record, practically on this count itself, the petition deserves to be dismissed. However, since it is pending since last almost a decade, it has been considered on its merits.
11 The meter was thereupon taken out by the respondents for further checking in laboratory. The checking report of the meter by laboratory dated 16/2/2004 is also on record in the form of photocopy of the original, which is also not clearly legible though better than checking report dated 3/1/2004. In such laboratory report also, it is categorically stated that though there is no tampering with the body seal of the meter, PC of the meter has been found tampered with and PC was got burnt by injecting high voltage in it and, therefore, meter was not able to record consumption of electricity. Thereby it is concluded in such report that this is a case of irregularity and unauthorized consumption of electricity and, therefore, the Board may take steps in accordance with the rules. It is not disputed that such checking report dated 3/1/2004 was endorsed by the representative of the petitioner; whereas the laboratory testing report dated 16/2/2004 was not signed by him and, therefore, the concerned officers have endorsed that petitioner has refused to sign the report. However, non-signing of such report itself would not prove that such report was absolutely false and that there was no irregularity at all in recording of electric consumption at the place of the petitioner. It is clear and obvious that the petitioner was very much aware about the non-recording of electric consumption in the month of November 2003 and, therefore, it was his duty to take immediate steps including intimation to Electrical Inspector for checking correctness of the meter, which he has failed.
12 By representation dated 15/4/2004, it is contended by the petitioner that though their contracted load was 35 HP, they were using only 21 HP and that immediately after the knowledge that the meter was not recording the electric consumption, they have requested to change the meter and that the laboratory testing report is not proper. However, for such last submission regarding testing of meter by the laboratory and condition of the meter with reference to burnt PC, etc., the submissions of the petitioner are quite technical which require proper consideration by technical evidence. For the purpose, it was necessary to adduce the evidence and allowing both the parties to prove or disprove the fact. In short, it is a factual details and aspects, which are pleaded by the petitioner, thereby petitioner wants this Court to examine the technical and factual details of the meter in question. Practically, it would be difficult for this Court to enter into activity of scrutiny of such technical evidence in the present petition. After such representation, the Appellate Committee has decided the issue against the petitioner holding that when Y phase PC was burnt, the hypothetical submission of the petitioner in his representation could not be accepted and thereby the Appellate Committee has considered the meter as irregularity in the meter and thereby theft of electric energy. For such conclusion, the Appellate Committee has also relied upon the consumption pattern by the petitioner s unit, inasmuch as immediately after changing the meter on 3/1/2004 the regular consumption was quite high, which was quite low before changing the meter. However, the Appellate Committee has considered the grievance of the petitioner so far as the number of days for which his unit was functional, inasmuch as the Appellate Committee has given relaxation of holidays and staggered days i.e. of 11 days and reduced the calculation for 184 days to 173 days. By such reduction, the supplementary bill has been reduced to almost Rs.70,000/-.
13 The respondents have in their affidavit-in-reply categorically explained the situation that practically there was illegal abstraction of electricity and, therefore, they have issued the supplementary bill which was revised by the Appellate Committee.
14 Though the petitioner has again in his affidavit-in-rejoinder, tried to explain that there was no possibility of burning Y phase or PC or injecting high voltage and that the Appellate Committee has not considered the reasonings of the variation in consumption pattern, which was because of the strike against excise duty when there was no consumption of electricity and that as per condition 34, also supplementary bill is improper and illegal.
15 As discussed hereinabove, fact remains that even the petitioner himself has pleaded and submitted that if one PC is burnt, then meter would be slow by 33% [page 34 Annexure-E ground [i] page 9]. In that case, the matter would certainly and squarely falls under the provisions of section 26 of the Act, whereby either of the party was bound to refer the dispute regarding propriety of the meter to the Electrical Inspector. It is not disputed that the petitioner has failed to do so. Thereupon, if the proceedings by the respondents are evaluated, then it becomes clear that the respondents have verified the meter in presence of the representative of the petitioner on both occasions and, therefore, only because the petitioner did not agree to such inspection and the result thereof, it could not be proved only by such absence and by such petition that checking of the meter by the competent officer was not proper, more particularly in absence of any cogent and positive evidence to support such stand. It goes without saying that provisions of the Electricity Act, 2003 came into force on such date and, therefore, the petitioner was free to take appropriate steps as per prevailing law and the rules, which the petitioner has failed. In view of the above facts and circumstances, it is difficult for this Court to reevaluate the technical evidence which was considered by the competent statutory authority having technical expert as a member.
16 The petitioner has relied upon the decision rendered by the Hon ble Apex Court in the case of George Da Costa v. Controller of Estate Duty, Mysore, reported in AIR 1967 SC 849, submitting that the provisions and interpretation of the Electricity Act, 2003 cannot be taken into consideration. It is clear that neither the respondents nor the Court is relying upon the provisions of the Electricity Act, 2003. The petitioner has also referred to and relied upon the decision rendered by this Court in the case of Modern Terry Towels Ltd. v. Gujarat Electricity Board reported in 2003 [4] GLR 3122, wherein the Court has held that though in a given case, prima-facie presumption can be against the consumer, the onus to prove theft of electricity or to show that consumption is dishonest is rest upon the company. The Court has remanded the matter to the Appellate Committee considering that order of the Appellate Committee was found to be based on conjectures and surmise. At present, the situation is quite different after the Electricity Act, 2003 came into force. The Appellate Committee constituted under the Electricity Act, 1910 is not in existence and, therefore, there is no scope to remand the matter to the Appellate Committee for reconsideration since technical issues are involved, because even in such reported case, this Court has not interfered with the re-evaluation of technical details before it and, therefore, such judgment would not help the petitioner.
17 The petitioner has also relied upon a decision rendered in the case of Bihar State Electricity Board v. Parmeshwar Kumar Agarwala reported in AIR 1996 SC 2214, wherein practically, while dealing with the Electricity Rules and other provisions relating to tariff, the Hon ble Apex Court has dismissed the appeal. However, the petitioner is relying upon only one para being para 21 of such judgment, wherein it is observed by the Hon ble Apex Court that pursuant to the decision in the case of M.P. Electricity Board v. Basantibai reported in AIR 1988 SC 71, the issuance of supplementary bill to the respondent consumer is in conflict with the statutory provision contained in section 26[6] of the 1910 Act. Though such observation was applicable if the petitioner has initiated the action under section 26 or if the respondents have issued supplementary bill only based upon the fact that the meter has stopped functioning or was running slow. Therefore, there is a thin line between two steps or actions to be taken by the parties. It would be for the consumer to refer the dispute to the Electrical Inspector at the earliest before it is being checked by the supplier company for unauthorized consumption of electricity. Though the provision of section 26 is equally applicable to the supplier company also, this is the real dispute between the parties that supplier company does not state that the meter is either improper or not recording electric consumption properly, but it is their case that the PC was burnt by some unlawful activity so as to stop recording of electric consumption and, therefore, they are entitled to examine the meter and if any irregularity or mishandling or tampering with the meter is found, then they are right in issuing supplementary bill. The fact also remains that practically at the initial stage, the petitioner himself has surrendered to the Appellate Committee without referring the issue at that stage to the Electrical Inspector or to agitate the issue before the appropriate forum by appropriate action and now when the decision of the Appellate Committee is against them, they have preferred this petition challenging the decision of the Appellate Committee on its merits and, therefore, now it is not permissible to the petitioner to go backward and argue that the Appellate Committee has no jurisdiction. It is obvious that till date the petitioner has never asked for taking over alternative steps either by the respondents or before any competent authority including the Electrical Inspector.
18 The petitioner has also relied upon the decision rendered in the case of Thakore K Patel v. Gujarat Electricity Board reported in 2003 [1] GLR 506, wherein the same Hon ble Judge [Coram : D.A. Mehta, as he then was] has taken the same view as His Lordship has taken in the case of Modern Terry Towels Ltd. [supra] and remanded the matter back to the Appellate Committee.
19 The petitioner has also relied upon the decision rendered in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai reported in [1998] 8 SCC 1 probably for maintainability of such a petition since otherside is pressing for dismissal of the petition because of availability of alternative remedy. It is well settled that the jurisdiction of High Court under Article 226 is wide enough so as to stop arbitrariness, illegality, irregularity, perverseness, selectiveness, etc., and, therefore, if any, such ground is proved, then certainly writ jurisdiction will come in picture.
But at the same time, it cannot be ignored that in absence of any of such issue and more particularly if there is availability of alternative remedy, it would be difficult for the High Court to exercise its extraordinary powers under Article 226. However, in the present case, though it is stated that the petitioner has failed to approach the Electrical Inspector under section 26 of the old Act, it is not considered as an alternative remedy, but it is the only remedy available to the consumer or supplier in the case of issue relating to correctness of the meter because correctness of the meter cannot be checked by the High Court in a petition under Article 226.
20 As against that, the respondents are relying upon the decision rendered by the Hon ble Apex Court in the case of J.M.D. Alloys Ltd. v. Bihar SEB reported in [2003] 5 SCC 226, wherein it was held that the High Court, while hearing the writ petition, was not hearing an appeal against the decision of the statutory authority and, therefore, the scope of inquiry in such a matter is limited one. It is further held that when the petitioner was afforded an opportunity of hearing by such statutory quasi-judicial authority and when relevant facts had been considered by it and when finding recorded was born out of the material available before it, it cannot be said that the order passed by such authority is unreasonable or perverse in any manner. Thereby the Hon ble Apex Court has held that compensatory bill prepared by the supplier company in that case could not be interfered with in a writ petition under Article 226. The same is the position before me. Therefore, I do not have hesitation to say that it would be difficult to scrutinize and re-evaluate the technical details in present petition. Though the petitioner has disclosed Article 227 as well as Articles 14 and 19 in the cause title of the petition, the fact remains that the statutory Appellate Committee was not directly under the supervisory control of the High Court except to verify that whether it has acted without following the settled principles of law thereby if such decision is without giving opportunity to otherside and if such observation and fact is considered by such authority while delivering such decision or if any arbitrariness or selectiveness or irregularity is found, then and then the High Court can verify and deal with it in a petition under Article 226 or 227.
21 The respondents have also relied upon the decision rendered in the case of Assistant Collector, Central Excise v. Dunlop India Ltd. Reported in AIR 1985 SC 330, wherein the Hon ble Apex Court has held that Article 226 is not meant to short circuit or circumvent the statutory procedure. It is further stated that it is only where statutory remedies are entirely ill-suited to meet the demands of extra-ordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public enquiry and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. The Hon ble Apex Court has taken judicial notice of the fact that vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereby to prolong the proceedings by one device or the other, observing that such practice needs to be strongly discouraged.
22 The respondents have also relied upon the judgment rendered in the case of Kiran Industries v. Gujarat Electricity Board reported in 1995 [2] GLH 1, which is practically followed in deciding the present matter.
23 In view of above discussion, the fact which clearly transpires is to the effect that the condition of meter on the date of checking was not proper and though the petitioner had not signed the report, the fact remains that condition of meter was believed to be changed and if because of such change, meter is not recording the consumption coupled with the fact that before the date of checking, the consumption of electricity was less and after installing new meter, the consumption has increased, certainly there is unauthorised utilization of electrical energy by the petitioner. However, in any case, this is purely a technical issue and if petitioner fails to prove otherwise, then there is no reason to disbelieve the checking report and determination by the Appellate Committee.
24 The subject of unauthorised consumption or theft of electricity and checking of meter and electric consumption at the relevant time and supplementary bill by the Electricity Company has been repeatedly dragged upto the Apex Court in different cases with different facts, circumstances and references. However, all such cases are to be looked into with reference to the real facts and evidence of each case. In view of such fact, there cannot be a straightway formula since all such cases are based on the issue that there was unauthorised consumption or theft of electric energy at the relevant point of time. Since electric energy is not a tangible property and virtually the concept of power which always gets changed on its utilization and though it can be stored practically after unauthorised utilization and theft, practically, either user or consumer does not know the unauthorised use or he knows that he is using electricity unauthorisedly. In such case, the knowledge of using electricity unauthorisedly would result into theft of electric energy. Therefore, practically, there would be a difference between the knowledge and mensrea regarding unauthorised consumption of electricity at the given place. There may be such unauthorised consumption of electricity, which would in turn result into financial benefit to the user. In any case, because such unauthorised consumption cannot be caught at the relevant time, the only means to identify the unauthorised consumption is by way of checking the actual reading of consumption and comparing the previous consumption with the consumption to be recorded under the supervision and with condition in which meter was properly installed and allowed to record the proper consumption.
25 In all such cases, all such practical issues cannot be dealt with properly in such petitions under Article 226 of the Constitution. Considering all reported cases till date, if some consumer is of the opinion that there is no other proper remedy, it is for them to find out the proper remedy either from the statute book or by proper representation to the competent legislature making authorities. I have reason to say so because some of the reported judgments, confirms that if consumer has any grievance against the Electricity Company, then, Forum and Commission under the Consumer Protection Act has to take appropriate decision in accordance with law whereas some reported cases states that the Electricity Act, 2003 is a self contained code so far as such disputes are concerned and thereby Consumer Court has no jurisdiction to deal with such issues. The fact remains that the consumption of electricity is being recorded at the end of the consumer and, therefore, if the consumer is vigilant about his own consumption and recording of such consumption by proper meter, nobody could allege or complain about unauthorised consumption or theft of electricity. If at all consumer has any grievance against the proprietariness of the consumption of electricity or the meter in question, generally it would be appropriate for them to agitate such issue in accordance with law. Since provision like Section 26(6) of the Indian Electricity Act, 2010 could not be found in the Indian Electricity Act, 2003, it would be for the competent authority to take care of such situation. However, so far as present petition is concerned, since it is under Article 226 of the Constitution, it would be difficult for this Court to enter into such factual and technical evidence by determining that what is what at the relevant time. Similarly, it would be difficult for this Court to sit as a Appellate Authority against the order of the Appellate Tribunal, which is constituted as per the statute and when it is constituted with members of different faculty like legal and technical. If we refer the different decisions as cited by both the sides, its outcome would be to the effect that unless there is prima facie evidence on record to show that the Appellate Committee has failed to consider the particular aspect in deciding the appeal, it would be difficult for the Court to change such decision which is otherwise supported by factual details and taken by technical as well as judicial Member of the Committee. Therefore, instead of discussing all the judgments referred at Bar at length or reproducing some paragraphs from all such judgments, it would be enough to recollect all such cited cases (1) AIR 1998 SC 1715, (2) 1996(1) GLR 97 , (3) 1995(2) GLR 1158 & (4) (1988)2 SCC 415 with its gist in following manner.
25.1 As pleaded by respondents, the Apex Court has held that the Appellate Committee is a quasi judicial body and, therefore, there is no question of inherent powers to review its own decision. The respondents have also pleaded and submitted that jurisdiction of the Hon ble High Court under Article 226 is of supervisory nature and that High Court does not sit or act as a Appellate Court against the decision of statutory Appellate Authorities - 1999(3) GLR 2554, AIR 1966 SC 1449, 1983 SCC 402 and 1991 SCC 414.
In 1995(2) GCD 762 Bahuma Polytex Ltd. Vs. Gujarat Electricity Board, it was confirmed that when there are number of questions of disputed facts with complicated technical questions, petition under Article 226 of the Constitution is not an appropriate remedy to determine the disputed questions of fact involved technical considerations.
25.3 In 2011(3) GLR 2447 Rajendra R.Sheth, Deputy Engineer Vs. Matariya Textiles the Division Bench of this Court has held that once unauthorised use is confirmed, the learned Single Judge has erred in coming to the conclusion that it was a bonafide mistake on the part of the consumer since there was no such material before the learned Single Judge. Therefore, the Division Bench has confirmed the supplementary bill explaining the provision of Section 126 of the Electricity Act, 2003. The Division Bench has also confirmed the judgment reported in 2006(2) GLH 375 between Torrent Power AEC Ltd. Vs. Gayatri Intermediates Pvt. Ltd.
In AIR 1966 SC 849 Jagarnath Singh Vs. B.S. Ramaswamy, three Judges bench of Apex Court has dealt with the issue and held that the existence of the unauthorised means for abstraction is prima facie evidence of dishonest abstraction by some person. The special rule of evidence goes no further. Whoever abstracts or consumes or uses electrical energy, dishonestly commits a statutory theft, which may be proved by direct or circumstantial evidence. However, direct evidence of the theft is rarely forthcoming. It may be by tampering with the meter and causing it to record less than the units actually passing through it, the consumer may take the unrecorded energy are unauthorised by the contract with the electrical company, the unauthorised taking is an abstraction and the crippled meter is an artificial means for abstraction.
25.5 In (2004) 10 SCC 635 State of West Bengal Vs. Rupa Ice Factory (P) Ltd. again three Judges Bench of the Apex Court has confirmed that Section 26 of the Electricity Act, 1910 is not applicable in case of tampering or pilferage of electricity.
25.6 In (2004)5 SCC 551 Corporation of Andhra Pradesh Vs. Ch.Prabhakar it is held that proceedings under Article 226 are not a substitute for an appeal.
25.7 In (2003)5 SCC 226 J.M.D. Alloys Ltd. Vs. Bihar SEB wherein three Judges of the Apex Court confirmed the method of calculation of supplementary bill refusing to reduce the maximum period of 180 days. As against that petitioner has relied upon some unreported judgments of this Court in following cases in the matter of Special Civil Application No.6164 of 2004 -
Gujarat Microwax Ltd.
Vs. Chief Engineer Uttar Gujarat Vij Co.Ltd. & Ors. and Special Civil Application No.16975 of 2003 Sheth Salt Works Vs. Dakshin Gujarat Vij Co. Ltd.
However, on careful perusal of such cases, it has become crystal clear that in both such unreported cases, learned Single Judge has given some benefit to the petitioner for the simple reason that some time before the checking of electric meter of the consumer, the connection was checked by the Officers of the Electricity Company and there was report that meter was functioning properly, thereby, consumption of electricity was recorded properly. Because of such reason, the learned Single Judge has directed the respondents to reduce the number of days for calculating supplementary bill. However, so far as judgment dated 31.1.2013 in Special Civil Application No.6164 of 2004 is concerned, learned advocate for the respondent has pointed out that they have preferred Letters Patent Appeal No.618 of 2013 against such judgment, which is pending admission. That it can be said that unless stay is granted against said judgment, it remains in the field, but at the same time, it cannot be ignored that such decisions are sub judice and, therefore, it would not be proper to discuss such judgments.
25.8 In Letters Patent No.1683 of 2010, the Division Bench of this Court has on 05.12.2012, while dealing with the similar issue, categorically held and decided that, cases were highly disputed questions of fact are required to be answered for the purpose of deciding that whether the supplementary bill reflected the real consumption by the consumer, where parties are also free to bring the experts in the witness box, such disputed question should not be decided simply on the basis of affidavit. Therefore, though the Court has considered the pendency of Civil Suit filed by the Electricity Company, the Division Bench has ultimately confirmed the order of dismissal of writ application not on merits, but on the ground of involvement of disputed questions of fact, thereby, allowing both the parties to raise all other contentions and defence before the Civil Court. Therefore, at the most, similar observation as made by the Division Bench in such unreported case that this Court has not gone into the merits of the dispute and while disposing of the suit, the learned Civil Court shall not be influenced by the fact that the writ application has been dismissed, may be followed.
26 In view of above facts, circumstances and legal position, it would be difficult to come to the conclusion that Appellate Authority has committed any error or mistake in calculating the supplementary bill or in deciding the appeal as per the impugned judgment.
27 For the foregoing reasons, the impugned orders cannot be quashed and set-aside, which will result into dismissal of present petition. Accordingly, the petition is dismissed with an observation that if petitioner files Civil Suit in accordance with law to challenge the decision on facts by the respondents, the Civil Court shall not be influenced by the fact that this writ petition has been dismissed and shall decide the issue raised before it in accordance with law and on merits.
(S.G.SHAH, J.) * Pansala Page 27 of 27