Gujarat High Court
Pashchim Gujarat Vij Company Limited vs Rishi Container Freight Station Pvt Ltd on 7 May, 2018
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/51/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 51 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? No
2 To be referred to the Reporter or not ?
No
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
No
order made thereunder ?
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PASHCHIM GUJARAT VIJ COMPANY LIMITED
Versus
RISHI CONTAINER FREIGHT STATION PVT LTD
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Appearance:
MS LILU K BHAYA for the PETITIONER(s) No. 1
MS ASMITA PATEL, AGP for the RESPONDENT(s) No. 2
MR JR SHAH for the RESPONDENT(s) No. 1
RULE NOT RECD BACK for the RESPONDENT(s) No. 2
RULE SERVED for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 07/05/2018
ORAL JUDGMENT
1. Present petition is filed by the petitioner under Articles 226 and 227 of the Constitution of India as well as under the Page 1 of 11 C/SCA/51/2014 JUDGMENT provisions of Electricity Act, 2003, for the prayer as prayed for inter alia that appropriate writ, order or direction may be issued for quashing and setting aside the order passed in Appeal No.MVN/APPEAL/8372/2013, by the Appellate Authority dated 23.08.2013 confirming the bill for Rs.33,75,348.18 ps. on the ground stated in the memo of petition.
2. The facts of the case briefly summarized are as follows:
2.1 The petitioner is the distributor company and the respondent No.1 is the consumer, who had taken connection for rice processing plant. However, the said connection of rice processing plant is said to have been used and the electricity supplied has been consumed for stone processing plant.
Therefore, it is contended that it amounts to change of purpose and usage of electricity for the purpose other than for which the electricity is supplied. The officers of the petitioner had visited and on inspection the checking sheet dated 24.01.2013 was prepared for such unauthorized use of electricity as provided under Section 126 of the Electricity Act, 2003 (hereinafter referred to as 'the Act'). Therefore, the bills have been issued for which the respondent No.1 preferred an appeal challenging the said bill. However, the Page 2 of 11 C/SCA/51/2014 JUDGMENT Appellate Authority in the impugned judgment has accepted the say of the respondent that as the electricity was consumed within the premises and withing the limit of contracted load only and as there is no difference in the rate it cannot be said to be violative of HTP-1 tariff. Therefore, the Appellate Authority found that the connection, which was granted for industrial purpose has remained for the same industrial purpose and therefore, the use of electricity within the premises and when the rate applicable are the same, the bill could not have been issued. Thus, the order of the Appellate Authority in Appeal No.MVN/APPEAL/8372/2013 is assailed on the ground stated in the memo of petition inter alia that the Appellate Authority has failed to appreciate that the purpose of rice processing and stone processing are different. It has also been contended that the Appellate Authority has erred in coming to the conclusion that for both the units are for the industrial purpose and when the connection is given for industrial purpose, it would not amount to any change of purpose.
3. Heard learned advocate Ms. Lilu K. Bhaya for the petitioner, learned advocate Shri J. R. Shah for the respondent No.1 and learned AGP Ms. Asmita Patel for the respondent No.2.
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C/SCA/51/2014 JUDGMENT
4. Learned advocate Ms. Bhaya referred to the background of the facts and submitted that the electric connection was given for the use of electricity for industrial purpose. However, as could be seen from the form, which is required to be filled in it was for the rice processing unit. Admittedly, the factory is run for the stone cutting process and therefore, it would amount to change of purpose.
5. Learned advocate Ms. Bhaya referred to the joint inspection report with the sketch to support her contention that it would amount to diverting the electricity, which would not be permissible. She, therefore, submitted that the provisions of Section 126 of the Act referred to the 'Assessment' and Section 126(6)(b) of the Act referred to the 'Unauthorised use of electricity'. She further submitted that Section 126(6)(b)(iv) of the Act provide "for the purpose other than for which the usage of electricity was unthorised". Therefore, learned advocate Ms. Bhaya submitted that the use of electricity as per their own application, which is required to be made in a prescribed form with the details it was for the rice processing unit. She further submitted that the form and the application require disclosure with details as it is necessary to maintain the supply. She submitted that the unit Page 4 of 11 C/SCA/51/2014 JUDGMENT or the voltage required for stone processing industry would be different than the voltage required for rice processing unit though it could be said to be falling in the category of connection for industrial purpose. She, therefore, submitted that the word 'usage of electricity' for which it has been authorised would mean that for the same purpose for which it has been permitted. She submitted that if there is a change in the purpose it has to be notified in order to maintain the supply uniformly and therefore, it amounts to unauthorised use of electricity which would justify such bill. She submitted that even if both units are given the supply as an industrial unit, it would make the difference regarding the use of electricity as there may be difference in the voltage and the rate though the consumption may remain within the contracted load. Therefore, learned advocate Ms. Bhaya submitted that once there is unauthorised use of electricity, it would justify such a bill.
6. Learned advocate Ms. Bhaya submitted that the procedure as provided under Section 126 of the Act before issuance of bill has also been followed. She submitted that as per Section 126 (4) of the Act, the order of provisional assessment has been made and thereafter, further steps have been taken as provided in Section 126 itself. She, therefore, Page 5 of 11 C/SCA/51/2014 JUDGMENT submitted that the order passed by the Appellate Authority may be quashed and set aside and it was submitted that the reasons given by the Appellate Authority has only referred to supply of electricity for industrial connection and has been utilized within the same premises. However, learned advocate Ms. Bhaya submitted that the aspect of change of use or the usage has not been considered and the electricity is used for stone crushing unit and therefore, there is a change of usage.
7. Learned advocate Shri J. R. Shah for the respondent No.1, however, referred to the background of the facts and submitted that the respondent has been supplied high tension connection for the industrial purpose. He submitted that once the connection has been given for industrial purpose and when it is used for the same industrial purpose within the same premises, it cannot be said to be unauthorised use or the change of usage. He submitted that it cannot be said that there is any change of purpose or the usage inasmuch as the connection is given for industrial purpose and it is also used for the same premises. Learned advocate Shri Shah submitted that the connection may be of a different nature like for domestic, commercial or industrial purpose. He, therefore, submitted that the word 'purpose' is required to be considered and pointedly referred to Section 126 (6)(b)(iv) and Page 6 of 11 C/SCA/51/2014 JUDGMENT emphasized that the word 'purpose' suggest the nature of consumer or the type of consumption. He submitted that admittedly the connection, which has been granted or the supply, which has been provided, is for industrial purpose and it has been used also for industrial purpose having the same tariff and within the same premises. Therefore, there is no issue with regard to any change of purpose and the petitioner- Company has provided on the wrong footing about the change of purpose and therefore, the present petition may not be entertained quashing and setting the order passed by the Appellate Authority.
8. Learned advocate Shri Shah submitted that there is no excess demand or supply as the consumption is within the contracted load. He submitted that high tension supply for industrial purpose has remained the same and has been utilized for the industrial purpose and therefore, the tariff would also remain the same. He, therefore, submitted that the submission about the fluctuation, voltage or the load are misconceived. He also submitted that the scope of exercise of discretion under Articles 226 and 227 would also be limited and the order passed by the Appellate Authority on examination of material and evidence may not be disturbed. Page 7 of 11
C/SCA/51/2014 JUDGMENT
9. In view of this rival submissions, it is required to be considered whether the present petition deserves consideration.
10. As could be seen from the background of the facts, admittedly, the respondent No.1 has been granted high tension power for the industrial purpose. It is also not in dispute that the connection, which has been granted for industrial purpose, has been utilized for industrial purpose. Therefore, the industrial connection for the rice processing plant has been utilized for stone cutting process in the same premises. Thus, when it has been considered with reference to the type or the nature of the connection, it has remained the same, meaning thereby the consumption has remained the same for industrial purpose and effectively it is liable for the same tariff whether it is for rice processing unit or for stone cutting unit. However, the word 'purpose' as referred to in Section 126 (6)(b)(v) of the Act, is required to be examined in order to decide whether there is any change of purpose and the usage or whether the electricity has been utilized for the purpose other than for which it was granted is required to be examined and considered with reference to the 'usage'. Thus, it is not the nature of connection or the broad category in which such supply would be covered. The nature of Page 8 of 11 C/SCA/51/2014 JUDGMENT connection has remained the same as stated above. However, the word 'usage' meaning thereby the use of supply of such industrial connection has been changed from rice processing unit to stone processing unit. Thus, the category or the connection has remained the same. Normally the industrial connection and the usage of the electricity has to be considered while deciding the change of purpose meaning thereby whether the use has been for the same purpose for which it was granted.
11. Therefore, the moot question is with regard to the scope of exercise of judicial review. In the facts of the case, the power is said to have been supplied to M/s. Stone Export India Ltd. However, as recorded in the impugned order by the Electrical Inspector and the Appellate Authority that the respondent No.1 as a stone processing unit and the power was utilized for the same unit and there was an agreement for the same. Thus, the supply of electricity to the consumer like respondent No.1 and it was consumed within the premises within the limits of the contracted load for the same industrial purpose. Therefore, the issue is sought to be joined with regard to the unauthorized use of the power supplied for the purpose emphasizing on clause (IV) of the explanation to Section 126(6) it reads 'for the purpose other than for which Page 9 of 11 C/SCA/51/2014 JUDGMENT the use of electricity was authorized'. It, therefore, means that it has to be utilized for the same purpose like industrial, commercial etc. In the facts of the case, respondent is the consumer and has utilized for the same industrial purpose within its own premises. Therefore, merely because there is a shift or the change in the name of firm and as a business requirement, respondent No.1 may have made a contract for job work with other company, which are not an issue to be examined by the electricity company. It has only to see whether the power is supplied to the consumer and it is utilized by the consumer within the premises for its own purpose and for the same category viz., company for industrial connection it has to be utilized for the same purpose. Therefore, the provision of the statute has to be read in the context and background and the word used as to take its colour and meaning with the context in which it is used.
12. It is well accepted that normally the High Court would decline to exercise discretionary jurisdiction to disturb the order passed by the Appellate Authority based on appreciation of material and evidence unless it can be said to be perverse or misdirected. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in (2003) 6 SCC 675 in case of Surya Dev Rai V/s. Ram Chander Rai & Ors. It Page 10 of 11 C/SCA/51/2014 JUDGMENT has been observed that while exercising such discretion, the Court has to be careful and such jurisdiction has to be exercised with care and circumspection. Therefore, when the statutory authority in appeal on the basis of material and evidence has passed an order, it cannot be said to be erroneous or perverse.
13. Therefore, the present petition deserves to be dismissed and accordingly stands dismissed. Rule is discharged. Interim relief, if any, stands vacated.
Sd/-
(RAJESH H.SHUKLA, J.) ABHISHEK Page 11 of 11