Gujarat High Court
Ashwinbhai G. Gohil vs Gujarat Urja Vikas Nigam on 5 February, 2013
Author: G.R.Udhwani
Bench: G.R.Udhwani
ASHWINBHAI G. GOHIL....Petitioner(s)V/SGUJARAT URJA VIKAS NIGAM LTD. NOTICE TO BE SERVED THROUGH - C/SCA/12478/2004 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 12478 of 2004 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE G.R.UDHWANI ================================================================ 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, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ================================================================ ASHWINBHAI G. GOHIL....Petitioner(s) Versus GUJARAT URJA VIKAS NIGAM LTD. NOTICE TO BE SERVED THROUGH - & 1....Respondent(s) ================================================================ Appearance: MR MRUGEN K PUROHIT, ADVOCATE for the Petitioner(s) No. 1 MR MD RANA, ADVOCATE for the Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 05/02/2013 ORAL JUDGMENT
The petitioner is a consumer of the Erstwhile Gujarat Electricity Board having electricity connection No.3451-00323-9. The contract between the petitioner and Erstwhile Board was governed by inter-alia condition No.34. On 14.2.2003 the checking squad of Erstwhile Board checked the above connection and having found unauthorised extraction of electricity to an extent of 27 HP against the contractual load of 20 HP, a bill under condition No.34 in the sum of Rs.1,12,587.75ps was served upon the petitioner. Aggrieved by such bill, the petitioner preferred an appeal before the Appellate Committee constituted by Erstwhile Board under the relevant conditions of supply of electricity. The Appellate Committee rendered its decision on 22.12.2003 partly allowing the appeal, reducing 47 HP load to 35 HP load for the period from 14th August, 2002, to 17th November, 2002, and for rest of the period thereof, 47 HP was ordered to be considered as the load used by the petitioner.
The petitioner is aggrieved by the above impugned decision, and by filing this petition has raised various contentions.
During the pendency of the petition, Indian Electricity Act, 1910 and other allied Acts were repealed and replaced by New Act known as Indian Electricity Act, 2003, which came into force in so far as the State of Gujarat is concerned, with effect from 10th December, 2004. Therefore, the petitioner, by amending the petition, substituted the Gujarat Electricity Board with Gujarat Urja Vikas Nigam Limited as well as the Deputy Executive Engineer (Rural) with Paschim Gujarat Vij Co. Ltd respectively as respondents.
Learned counsel for the petitioner invited attention of this Court to the checking sheet at Annexure B to the petition in general, and Item No.5 in particular, and submitted that the said checking sheet prepared by the respondents itself indicated HP load as 11.23 after checking the same with the Accu-check meter and, therefore, the claim of the respondents that the petitioner used the load to an extent of 47 HP was factually incorrect, and though the petitioner raised this issue specifically in appeal, it was not answered. It is also contended that it was specifically argued before the appellate authority that, before and after the checking, the average consumption has remained same indicating that there was no illegal extraction of electricity by the petitioner. It was submitted that this aspect has also not been replied by the respondents in appeal. It was lastly contended that the petitioner s industry runs only for one shift i.e. for 8 hours, but this issue has also not been answered by the respondents. Therefore it is submitted that the impugned judgment rendered in the appeal deserves to be quashed and set aside.
Vehemently opposing the petition, learned counsel for the respondents submitted that, on checking of the meter, it was found to be running slow by 13.44%, and in the checking sheet, the petitioner admitted by making appropriate statement that the additional load was removed in his presence, and that he had used extra load of 27 HP. Relying upon such admission and the checking sheet at Annexure B , it was contended that there is no illegality in the impugned judgment in the appeal as the facts admitted were not required to be dealt with by the appellate committee.
To appreciate the issues arising this petition, the Court may refer to the contents of the appeal preferred by the petitioner before the appellate committee on 10th November, 2003. The appeal memo indicates that the petitioner had contended that his industry runs only for one shift, and that before and after checking, the average consumption was the same. It was also contended that through the Accu-check test, a load of 11.23 K.W. was found, and if all the three phases are taken into consideration, the load respectively was 31.8, 22.0 and 21.3 and therefore it was contended that the total load could not have been 47 HP. The veracity of checking sheet was also challenged with the contention that, if the contents therein were correct, the consumption during the period of 26 days would have been 7732 units, whereas the average consumption after and before the checking was only 2500 units. The decision rendered by the appellate committee is produced at Annexure A wherefrom it appears that none of the above contentions have been dealt with by the appellate committee and it is not the case of the respondents that it was dealt with by the appellate committee. It could thus be seen that the checking sheet refers to Accu-check meter having been used by the respondents for checking the load and load was 11.23 K.W., and at the same time, it finds that the connected load of the petitioner s industry was 47 HP at the time of checking. Either of them could be correct and not both the findings.
To appreciate the contents of checking sheet, expertise would be necessary, and it is a settled law that the High Court under Article 226/227 of the Constitution of India cannot enter into such exercise. Therefore, in light of the above findings, the case deserves to be remanded. However, before ordering the remand, the relevant provisions of both the Acts are required to be glanced through. It is not in dispute that condition No.34 prescribing ABCD formula for assessing the electricity consumption in case of theft/malpractice/illegal extraction of electricity was framed under Section 49 of the Indian Electricity Act, 1910. The said condition also provided a remedy of appeal on certain terms and conditions if the consumer was dissatisfied with the assessment. The Erstwhile Board had constituted a committee of experts to hear such appeal. In the instant case, as noticed above, checking was done on 14.2.2003 and the act i.e. Indian Electricity Act came into force in so far as State of Gujarat is concerned with effect from 10.12.2004. Thus, this was the case which arose under the Repealed Act. The decision in appeal was also rendered on 22.12.2003 i.e. before the new Act came into force in the State of Gujarat, and during pendency of this petition, the Indian Electricity Act, 1910 is repealed and a new Act has come into force. It is material at this stage to refer to Section 185 of the Indian Electricity Act, 2003, which, in so far as is relevant for the purpose of this petition reads as under:
Sec.185 Repeal and saving :- (1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998 are hereby repealed.(2)
Notwithstanding such repeal :- (a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.
6. It can be noticed from the above provision that it saves inter-alia any document or instrument executed or any direction given under the Repealed Law in so far as it is not inconsistent with the provisions of new Act, and in such circumstances, the deeming provision to an effect that such document or instrument executed under the old law etc., shall be deemed to have been executed under New Act comes into play. Therefore, in absence of inconsistency as above, the remanded case is required to be dealt with as if it were appeal under the New Act.
7. Section 126 of the New Act deals with assessment in cases where unauthorised or illegal consumption of electricity is detected. In the present case, the allegation is made with regard to using extra load by the petitioner and it is not in dispute that the allegation of theft have not been levelled against the petitioner. In Torrent Power AEC Limited Vs. Gayatri Intermediates Pvt. Ltd. [ 2006(2) G.L.H. 375 ], the Hon ble Court in para 12.1, 12.2 and 12.3 explained the distinction between unauthorised use of electricity and dishonest use amounting to theft. While explaining the aforesaid aspects, it appears that mens rea was considered to be the prime factor in coming to the decision either way.
As seen above, in the instant case, the dishonest extraction of electricity has not been alleged against the petitioner and therefore the case is that of unauthorised extraction of electricity by using the load more than what was contracted. As noticed above, it is not in dispute that, the Repealed Law provided a remedy in the nature of appeal in so far as Erstwhile Board was concerned in condition No.34, to the members of committee constituted under the Repealed Law in cases of unauthorised use of electricity as well as theft. Under the New Act, Section 127 provides a remedy in the nature of appeal for unauthorised use of electricity. The forum, however, is different than what was contemplated under the previous law, but, that by itself will not make the provision, in so far as appeal is concerned, inconsistent with the present law. To illustrate what can be the inconsistency, it can be seen that condition No.34 framed under old law contemplated ABCD formula stretching to last six months so as to assess the supplementary bill to be paid by consumer guilty of unauthorised use or theft of electricity, whereas under Section 126 the maximum that can be assessed is one and half time of the tariff applicable for maximum three months prior to the date of inspection ( in case of domestic and agricultural services ) and for period of six months prior to the date of inspection ( for all other categories of services ). Thus the ABCD formula or the formula contemplated under Section 126 cannot stand together and, therefore, there is apparent inconsistency, and such inconsistency has not been saved by Section 185 of the New Act.
In so far as the case on hand is concerned, there is mere change in forum, and change in forum cannot be regarded as inconsistency. Under the circumstances, there is no hurdle in remanding the matter and asking the authority exercising the powers under Section 127 of the Indian Electricity Act, 2003, to hear the appeal afresh as if it has arisen under the New Act, limited however to exercise the powers of appeal alone.
10. In the result, the petition must succeed to the above extent. The impugned judgment and order at Annexure A dated 22.12.2003 is quashed and set aside. The appellate authority constituted under Section 127 of the Indian Electricity Act, 2003, is directed to hear the appeal afresh and render its decision after giving appropriate opportunity to the petitioner, in accordance with law. Rule is made absolute to the above extent.
(G.R.UDHWANI, J.) syed/ Page 8 of 8