Gujarat High Court
Sarvodaya Hotel And Restaurant vs Deputy Engineer (D & M) on 12 February, 2019
Author: Biren Vaishnav
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/261/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 261 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 10731 of 2007
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SARVODAYA HOTEL AND RESTAURANT
Versus
DEPUTY ENGINEER (D & M)
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Appearance:
MR K I KAZI(5030) for the PETITIONER(s) No. 1
MS LILU K BHAYA(1705) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 12/02/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. This appeal, under Clause 15 of the Letters Patent, has been filed by the appellant who was the respondent consumer of electricity. The oral judgement dated 12.09.2007 is under challenge by which the learned Single Judge allowed the petition filed by the Electricity Company reversing the order dated 14.07.2006 in Appeal No. 8 of 2005 of the Assistant Electrical Inspector-cum-Appellate Authority, Mehsana. The learned Single Judge quashed the order of the Appellate Authority which cancelled the supplementary bill given to the consumer for Rs.69,977/- and which required the petitioner company to refund the amount.
2. The facts in brief are as under:
Page 1 of 8 C/LPA/261/2018 ORDER2.1 The present appellant was a consumer of the respondent
- electricity company and for its hotel/restaurant it had an electricity connection of contracted load of 14HP. On 30.06.2005, a checking squad checked the installation at the premises of the appellant company and found malpractice inasmuch as that there was unauthorised consumption of electricity. Though the contracted load was 14HP, the consumer was found using connected load of 19.48 HP and hence there was unauthorized consumption of electricity to the extent of 5.48 HP.
2.2 A provisional bill of Rs.72,423/- was issued under Section 126 of the Electricity Act, 2003. On objection being filed by the appellant, the final bill dated 02.08.2005 was issued for an amount of Rs.69,977/-. The appellant preferred an appeal before the Appellate Authority under Section 127 of the Act by depositing one-third of the amount of the Bill.
2.3 The Appellate Authority passed an order dated 26.09.2005 concluding that there was no additional connected load. The bill was set aside. On a challenge by the Electricity Company by filing Special Civil Application No. 1634 of 2006, the order of the Appellate Authority was set aside and this Court remanded the matter with certain observations which the learned Single Judge has reproduced in paragraph no. 3.1 of the judgement and which reads as under:
"3.1 It appears that earlier the petitioner filed Special Civil Application No.1634 of 2006 which was disposed of by this Court as per order dated 10th April, 2006. It would not be out of place to extract the relevant part of the reasoning which weighed with this Court to notice an error apparent Page 2 of 8 C/LPA/261/2018 ORDER on the face of the order of the Appellate Authority and remanded the case for decision afresh.
I. On perusal of the facts of the case, it appears that there is an error apparent on the face of the record in an order passed by the Appellate Authority to the effect that when the meter of the respondent was checked, detailed checking sheet was prepared on 30th June, 2005 wherein several points have been recorded including the fact that additional load of electricity was connection by the respondent. The contracted load is less than the connected load. Thus, the respondent was liable to make the payment of additional bill. This additional load communicated has also been admitted by the respondent. There is a signature of the respondent in the checking sheet which is at Annexure -A to the memo of petition. Meter was also running slowly at 7.07% and thus there was no need for the respondent to re-calculate the additional connected load. In fact, the respondent had admitted at the time of checking of the meter, the fact that respondent had connected additional instruments so that there was additional connected load than the contracted load. Thus, admitted position of the fact on the part of the respondent has not been properly appreciated by the Appellate Authority while passing the impugned order. The disputed fact ought to have been properly appreciated by the Appellate Authority.
II After signing the document at Annexure A by the respondent on 30th June, 2005, there was no letter of protest given by respondent to petitioner. The statement of fact made by respondent was never retracted. Never ever before,it has been pointed out by the respondent that the said checking sheet was singed by the Page 3 of 8 C/LPA/261/2018 ORDER respondent under coercion or threat or under compulsion.
The details of Annexure-A.. has been admitted by the respondent. Thus, the facts never permits the Appellate Authority to re-calculate the connected load. What is admitted by respondent for more than reasonable period ought not to have been allowed the Appellate Authority to upset in an appeal while passing the impugned order.
III. Respondent has never contended that there is no signature of the respondent on the checking sheet. When the signature is an admitted fact, the additional connected load is also admitted fact. Without any reason the appellate authority ought not to have come to the conclusion that there was no additional connected load.
(iv) The conclusion arrived at by the appellate authority is patently erroneous and that too without assigning any reasons."
2.4 On remand, by the order dated 14.07.2006, the Appellate Authority once again set aside the Bill and ordered refund which was the subject matter of challenge before the learned Single Judge. The petition of the Electricity Company was allowed by the learned Single Judge. Since the facts are not in dispute, the reasonings of the learned Single Judge as recorded in paragraph no. 5 are reproduced as under:
"5. The checking-sheet dated 30th June, 2005 is on record. It could not be disputed and nor it is disputable that the contracted load was 14 HP whereas connected load found at the installation of the respondent consumer was 19.48 HP. It implied that to the extent of 5.48 HP, electricity was Page 4 of 8 C/LPA/261/2018 ORDER unauthorisedly consumed. It was detected that meter was connected to several instruments and appliances and it was round to be running slow by 7.07%. The load testing was done by accu-check meter. Checking-sheet also provided the details of the appliances connected with the meter and the total Horse Power consumption. They were - (i) Water Motor (1X2 HP = 1492 W); (ii) Grinder (1X1 HP = 746W); (iii) Water Cooler (1X1500W = 1500W); (iv) Deep Fridge (vertical) (1X1500W = 1500W); (v) Deep Fridge (horizontal) (1X1000W = 1000W); (vi) Deep Fridge (small) (1X180W = 180W); (vii) Fridge (1X225W = 225W); (viii) Exhaust Fan (1X180W = 180W); (ix) Hand Mixture (1X110W = 110W); (x) A.C. (1X2200W = 2200W [2T]) and (xi) A.C. (3X1800W = 5400W [1 1/2T]).
5.1 Looking to the impugned order, the Appellate Authority repeated its errors committed while passing the earlier order. Although the Appellate Authority noticed and noted the details recorded in the checking-sheet, it proceeded only on the basis of the case of the consumer. There was no reason not to accept the contents and details of the checking-sheet. It was mentioned that air conditioners were used and the electricity was consumed for air conditioners along with other appliances mentioned above. However, the Appellate Authority readily accepted the say of the consumer that air conditioners were not used. The Appellate Authority again accepted the case that only 13.85 HP load was connected. When the checking-sheet had recorded about the appliances and the total load of electricity which was 19.48 HP, there was no basis whatsoever for the Appellate Authority to record that the consumer could be said to have connected 13.85 HP load only.
5.2 The above finding was evidently presumptuous. It was not only presumptuous, the same was quite contrary to the actual data recorded in the checking-sheet which could not have been doubted only on the ground that Rojkam was not done, more particularly when the representative of the Page 5 of 8 C/LPA/261/2018 ORDER consumer signed the checking-sheet without protest, thereby accepting the contents. The findings recorded by the Appellate Authority were based on and were guided by conjectures and surmises."
3. Mr. K.I. Kazi, learned advocate appearing on behalf of the appellant - original respondent has argued that the Appellate Authority had found that on factual assessment, there was no variance between the contracted load and the connected load, and the learned Single Judge therefore ought not to have reversed such finding. Mr. Kazi tried to support the analysis of the Appellate Authority pointing out that there were mistakes in the checking sheet as to the equipments used, especially air-conditioners etc and the squad completely made an erroneous calculation. The Appellate Authority therefore made no mistake in ordering refund.
4. Ms. Bhaya, learned advocate appearing on behalf of the respondent - original petitioner - Electricity Company submitted that there was no basis for the Appellate Authority to come to a conclusion of a wrong assessment of data which was available as per the checking sheet. The data was correct and in absence of any error, without any material, it was not open for the Appellate Authority, on presumption to set aside the report of the squad.
5. Having considered the submissions of the learned advocates for the parties, what is borne out from the reading of the report of the checking squad, together with the order of the Appellate Authority, in the first round, which the Court had remanded and was therefore re-decided, is that the Appellate Authority in its second order clearly went beyond Page 6 of 8 C/LPA/261/2018 ORDER the record. In absence of any material contrary to the checking sheet, it could not have set aside the supplementary bill and ordered refund. The facts hereunder would amply suggest that the view taken by the learned Single Judge needs to be affirmed. Such facts which are not disputed are as under:
(A) When the checking squad checked the meter of the appellant - consumer, a detailed checking sheet was prepared. Several points were recorded in the checking sheet including the fact that there was additional load of electricity.
(B) The appellant had admitted the facts. The other glaring fact recorded on the checking sheet which was signed by the appellant was that the meter was running slow at 7.07%.
(C) There was no letter of protest given by the appellant after signing the checking sheet. The statement made when the checking squad made the assessment was never retracted by the appellant.
(D) In light of such facts in view of admitted facts of additional connected load, the Appellate Authority could not have recalculated the questions of connected versus contracted load.
(E) With such specific findings when the order of the Appellate Authority was set aside in the first round, there was no sound reason for the Appellate Authority, Page 7 of 8 C/LPA/261/2018 ORDER once again to undertake the same exercise. The details which the checking sheet provided have been extracted by the learned Single Judge and read as under:
"... They were - (i) Water Motor (1X2 HP = 1492 W); (ii) Grinder (1X1 HP = 746W); (iii) Water Cooler (1X1500W = 1500W); (iv) Deep Fridge (vertical) (1X1500W = 1500W); (v) Deep Fridge (horizontal) (1X1000W = 1000W); (vi) Deep Fridge (small) (1X180W = 180W); (vii) Fridge (1X225W = 225W); (viii) Exhaust Fan (1X180W = 180W); (ix) Hand Mixture (1X110W = 110W); (x) A.C. (1X2200W = 2200W [2T]) and (xi) A.C. (3X1800W = 5400W [1 1/2T])."
6. In light of such glaring facts, the learned Single Judge was right in observing that the findings of the Appellate Authority was presumptuous. The checking sheet had recorded all facts and the Appellate Authority had no basis to record otherwise. We see no reason to interfere with the order of the learned Single Judge. The appeal is accordingly dismissed.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) DIVYA Page 8 of 8