Gujarat High Court
M/S.Kantaben Nemchand Doshi ... vs Paschim Gujarat Vij Co on 5 December, 2013
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
M/S.KANTABEN NEMCHAND DOSHI THR'KANTABEN NEMCHAND DOSHI....Petitioner(s)V/SPASCHIM GUJARAT VIJ CO. LTD. NOTICE TO BE SERVED THROUGH -....Respondent(s) C/SCA/17472/2005 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 17472 of 2005 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================================ 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 ? ================================================================ M/S.KANTABEN NEMCHAND DOSHI THR'KANTABEN NEMCHAND DOSHI....Petitioner Versus PASCHIM GUJARAT VIJ CO. LTD. NOTICE TO BE SERVED THROUGH ....Respondent ================================================================ Appearance: MR BHARAT T RAO, ADVOCATE for the Petitioner. MS RV ACHARYA, ADVOCATE for the Respondent. ================================================================ CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 05/12/2013 ORAL JUDGMENT
1. The petitioner by way of this petition filed under Article 226 of the Constitution of India has approached this Court with following prayers:
(A) Your Lordships may be pleased to issue appropriate writ of mandamus or any other suitable writ, order or direction which the Hon ble Court may deem fit, just and proper in the peculiar facts and circumstances of the case quashing and setting aside the decision of the Appellate Committee dated 4.6.2005 passed in Appeal No. B-81/2005 (Annexure-H) and the matter be remanded back to the Appellate Committee for fresh decision on merits after affording a reasonable opportunity of hearing to the petitioner for the reasons stated in the memo of petition and in the interest of justice and fairness of things;
(B) Pending hearing and final disposal of present petition, Your Lordships be pleased to restrain the respondents and its officers, agents and servants from disconnecting the electricity connection from the premises of the petitioner being Consumer No. 30101/56605/0, provided at Municipal Shed No. 6/7, Vithhalvadi Block-A, Bhavnagar and further be pleased to direct the Appellate Committee of the Respondent Board to decide the Appeal on merit afresh, for the reasons stated in the memo of petition and in the interest of justice and fairness of things;
Any other reliefs, which is deemed fit and proper by Your Lordships may please be granted in the interest of justice.
Thus what is essentially under challenge is the order dated 4/6/2005 passed by the appellate committee of the respondent in Appeal No. B-81/2005 rejecting the appeal preferred by the petitioner on account of theft of electricity energy.
2. The facts in brief leading to filing this petition as could be gathered from memo of the petition deserve to be set out as under:
The petitioner was enjoying One H.P. Electricity connection under the said consumer number and as she was desirous of installing greater load up to 47 H.P., she applied and received estimate and deposited money for that. The petitioner deposited Rs.95,927/- on 27/12/2002. Petitioner's amount was lying there with the respondent but 47 H.P. connection was not released as test report was awaited. Petitioner had acquired appliances for selling ice-cream produced by M/s Vadilal Industries. Said appliances were required to be tested hence testing was carried out on One H.P. Power, when raid was made by checking squad i.e.11/1/2003. The checking squad considered the testing to be unauthorized abstraction of energy amounting to theft and hence respondent raised bill for Rs.3,93,760-68, copy of bill is produced at Annexure-C to the petition. Petitioner had in fact not committed any theft of the energy and hence she insisted upon reconnection. Petitioner filed Special Civil Application No. 16664 of 2003 with a prayer that the Board be directed to decide the appeal on merely petitioner depositing 10% of the supplementary bill instead of 30% as prescribed. Said petition was withdrawn in the month of December 2003. In the meantime petitioner also preferred an application before Deputy Engineer, Gujarat Electricity Board, Bhavnagar Division on 4/12/2003 and on 25/12/2003 which were not entertained, but the reply was given on 30/12/2003. Petitioner's attempt to deposit 25% amount with the Board were of no avail hence petitioner preferred writ petition being Special Civil Application No. 31 of 2004 inter alia on the grounds that the appeal itself preferred cannot be treated as time barred. This Court vide order dated 4/10/2004 disposed of the said petition, where in para-2 the Court observed as under:
2. In view of the fact that the petitioner has already deposited 20% of the amount and is not interested in reconnection of the electricity supply, Mr Rao for the petitioner has requested that the petitioner s may be heard on merits. Ms. Acharya, learned advocate for the respondent-Board, objected to the same stating that earlier the petitioner has approached this Court by way of filing Special Civil Application No. 16664 of 2003, which was not entertained. The said fact is already disclosed by the petitioner in paragraph 7 of the petition.
The petitioner's appeal thus was permitted to be decided on merits accordingly. The appellate committee decided the appeal of the petitioner and passed order on 4/6/2005, which is impugned in this petition on the grounds mentioned in memo of the petition.
3. Learned advocate appearing for the petitioner contended that the petitioner's application for enhancement in load up to 47 H.P., was acted upon and resulted into petitioner s depositing the estimate amount of Rs.95,927/- on 27/12/2002. As the test report was awaited, connection was not released, therefore, when appliances had come and it was required to be tested the petitioner carried out the testing of the appliances which was treated to be illegal abstraction of energy supply by the checking squad and hence the same was unfortunate and therefore the resultant bill should not have been issued at all.
4. Learned advocate for the petitioner further submitted that the checking sheet contains finding qua connected load of 11.01 K.V., which on the face of it is untenable as without there being reconnection of 47 H.P., there should not have been any finding qua connecting load of 11 and odd K.V.
5. Learned advocate for the petitioner further submitted that the premises was given on let to vendor who was interested in running ice-cream parlour and the administrator of the property and power of attorney also filed an affidavit to this effect to which appellate committee has not properly adverted to and therefore, on this count also the petition is required to be allowed.
6. Learned advocate for the petitioner thereafter submitted that the supplementary bill was issued containing exorbitantly high amount without taking into consideration various factors which would go to the root of the matter and therefore same is required to be quashed and set aside.
7. Learned advocate for the petitioner further submitted that the appellate committee has not applied its mind to the facts narrated in memo of the appeal and therefore, to that extent the order of the appellate committee is also required to be quashed and set aside.
8. Learned advocate for the petitioner thereafter contented that the testing of the appliances could not have been treated as an illegal abstraction of energy as sought to be made out by the checking squad. The appellate committee has not appreciated this aspect and thereby the order of the appellate committee is vitiated and therefore same is required to be quashed and set aside.
9. Learned advocate for the respondent electricity company invited this Court's attention to the observations and findings recorded by the appellate committee. It was contented that the findings required by the checking squad and approved by the appellate committee being finding of facts, this Court may not interfere there with in exercise of power under Article 226 of the Constitution of India.
10. Learned advocate for the respondent further submitted that recording of the findings qua drawing of electricity energy without there being any authorized method and by directly connecting the machines by-passing the meter itself being the finding recorded by the checking squad and affirmed by the appellate committee, this Court would appreciate that the applicant petitioner did not have case for interference.
11. Learned advocate for the respondent further submitted that the appliances were connected directly and by-passing the meter is the finding recorded by the checking squad and approved by the appellate committee. In light of this finding the petitioner's prayer of attorney s submission and the affidavit put up by him would be of no avail as those documents cannot be said to be nullifying the findings of checking squad as recorded herein above. The petitioner's case therefore is required to be dismissed.
12. This Court heard learned advocates for the parties and perused the petition as well as the annexures thereto.
(a) The finding of facts as recorded by the checking squad clearly indicate that the electrical appliances for running ice-cream parlour were in operative condition and were in fact connected for drawing power, the meter was by-passed and the supply was directly received. When these are the findings the other documents in form of affidavit of the power of attorney holder that the premises was let or connected load estimate was deposited are of no consequences.
(b) The fact remains to be noted that the appellate committee has clearly recorded in its findings as could be seen from following findings of the appellate committee which deserve to be set out in verbatim.
It is a fact that the installation of the appellant was checked by the I/c Squad under HO drive of the respondent Board on 11.01.2003. It is also a fact that the representative of the appellant, who was running the Ice-cream parlour, had run away from the site and the I/c Squad had to carry out the inspection in the absence of the representative from the appellant s side. The detailed inspection was carried out by the I/c Squad revealing that the appellant had directly connected main incoming of all three phases to load terminals of respective phases in the meter terminal block and hence the meter was bypassed. Thus, the appellant had made permanent arrangement for direct theft of electrical energy to run his equipments of Ice-cream parlour without consumption of electricity being recored in the meter. The Rojkam and checking sheet have been signed by various officers of the respondent Board and there is no reason for us not to believe the checking sheet and the Rojkam. In our opinion, the case of direct theft of electrical energy is clearly established.
The Sup. Bill issued to the appellant is prepared as per the terms and conditions of Supply of Electric Energy for such theft cases. We find that the connected load is taken at 11.01, which was found at the time of checking. Therefore, in our opinion, there is no reasonable ground to revise the same and shall be kept unchanged.
We find that the chargeable period has been taken six months prior to the date of checking at 183x24 hours which is as per the terms and conditions of Supply of Electric Energy. We do not find any reason to revise the same, as it is an Ice-cream parlour, which requires continuous power supply.
(c) The aforesaid findings are based upon proper application of mind as could be seen from the facts as they emerged from the petition. A question arises as to whether the appellate committee was justified in arriving at that finding, the principle of natural justice have been followed? The petitioner's earlier attempt to seek decision on appeal without depositing money had failed as could be seen from petitioner's narration and averments made in earlier paragraph of petition, and petitioner s subsequent petition was partly allowed as direction was issued for deciding appeal on merits. As a result whereof appellate committee undertook the task of deciding appeal on merits and when appeal was decided on merits after recording the findings based upon the findings of the checking squad, and when appellate committee is consisting of experts, then, this Court needs to be very slow in interfering there with in exercise of power under Article 226 of the Constitution of India.
13. In the over all facts & circumstances of the case, this Court is satisfied that there exists no ground for interference with the order impugned in this petition. The petition being bereft of merits deserves dismissal and is accordingly dismissed. Rule discharged. Interim relief, if any granted earlier, shall stand vacated. However, there shall be no order as to costs.
(S.R.BRAHMBHATT, J.) vgn Page 8 of 8