Rajasthan High Court - Jodhpur
M/S. Quality Marbles Pvt. Ltd vs Ajmer Vidhyut Viteran Nigam Ltd. & Ors on 27 January, 2012
Author: Govind Mathur
Bench: Govind Mathur
S.B.C.W.P.No.3865/08
M/s. Quality Marbles Pvt. Ltd v. AVVN Ltd. & Ors.
1/9
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
O R D E R
M/s. Quality Marbles Ajmer Vidhyut Vitaran Nigam
Pvt. Ltd. v. Ltd., Ajmer & ors.
S. B. CIVIL WRIT PETITION NO.3865/2008
under Articles 226 and 227 of the
Constitution of India.
Date of Order :: 27th January, 2012
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. B.L. Purohit & Mr. J.L. Purohit, Senior Advocates
assisted by Mr. Ajay Purohit, for the petitioner.
Mr. Ravi Bhansali, for the respondents.
....
BY THE COURT :
The petitioner, a body corporate, is having a large industrial electricity connection with sanctioned contract demand of 250 KVA. An inspection of the industrial unit run by the petitioner was made on 16.9.2001 and on basis of load survey report taken by Memory Recording Information (MRI) Device illegal extraction of energy without getting of actual S.B.C.W.P.No.3865/08 M/s. Quality Marbles Pvt. Ltd v. AVVN Ltd. & Ors. 2/9 consumption of electricity was noticed. A provisional assessment for Rs.35,36,968/- was made in accordance with clause 29(C) of the General Conditions of Supply, 1964 (GCOS), and the final assessment in a tune of Rs.35,39,502/- was made on 21.12.2001. An appeal preferred in the terms of clause 29(M) of GCOS against the final assessment came to be rejected on 13.1.2003. A petition for writ giving challenge to the final assessment and its affirmation by the appellate authority came to be accepted by this Court on 20.7.2007 in following terms:-
"The petitioner raised various objections with regard to assessment made and also relating to holding the petitioner guilty for abstraction of the electricity unauthorisedly. The appellate authority should have dealt with all the relevant contentions raised by the petitioner while examining correctness of the order passed by the assessing authority.
I found the order passed by the appellate authority is illegal being a non-speaking and unreasoned one, as such, the writ petition assailing validity of the same deserves acceptance.
For the reasons given above, the writ petitions No.3681/2001 and 361/2002 are dismissed as becoming infructuous. The writ S.B.C.W.P.No.3865/08 M/s. Quality Marbles Pvt. Ltd v. AVVN Ltd. & Ors.3/9
petition No.6089/2003 giving challenge to the order passed by the appellate authority is allowed and the order impugned is quashed. The appellate authority shall decide the appeal preferred by the petitioner afresh on or before 3rd December, 2007. The bank guarantee furnished by the petitioner in pursuant to the order passed by this Court in SBCWP No.3681/2001 shall remain in currency and in the event the appellate authority affirms the assessment, the amount will be payable to the respondent No.1 capable of being subsequently adjusted against the petitioner's liability. In the event the petitioner be not held liable for any dues, the bank guarantee furnished by the petitioner shall be released."
A revised appeal then was filed by the petitioner as per clause 29(M) of the GCOS and that also came to be rejected on 3.6.2008, hence this petition for writ is preferred.
The submissions of the petitioner are :-
(1)the appeal was not considered by the appellate authority, but by the Chief Engineer (Commercial); (2)without prejudice to above, the appeal, if at all was considered, then that was by the Corporate Level Committee and not by the appellate authority as S.B.C.W.P.No.3865/08 M/s. Quality Marbles Pvt. Ltd v. AVVN Ltd. & Ors. 4/9
envisaged under Section 127 of the Electricity Act, 2003; and (3)without prejudice to the above, the order impugned is an order non-speaking and unreasoned as much as the objections and contentions raised on behalf of the petitioner were neither examined nor any finding is given thereon.
A detailed reply to the writ petition has been filed by respondent Electricity Supply Company meeting with all the arguments advanced.
Heard counsel for the parties.
The first submission of counsel for the petitioner is that the appeal was considered and decided by the Chief Engineer (Commercial) and not by the appellate committee. The submission aforesaid is based on the fact that the order impugned dated 3.6.2008 is signed by the Chief Engineer (Commercial).
This Court by order dated 24.1.2012 directed the respondents to make available the record of appellate committee to explain as to how the committee concerned considered the appeal submitted by the petitioner. In pursuant thereto, minutes of the S.B.C.W.P.No.3865/08 M/s. Quality Marbles Pvt. Ltd v. AVVN Ltd. & Ors. 5/9 meeting of the Corporate Level Appellate Committee held on 24.5.2008 are shown to the Court. The minutes of the meeting bears signatures of the Managing Director, Ajmer Vidhyut Vitaran Nigam Ltd., Chairman of the committee concerned and four other members including the Director (Finance), Executive Engineer (Legal), Chief Engineer (O & M) and Chief Engineer (Commercial). The petitioner company was represented by its Manager Shri Ashok Bhandari. The order dated 3.6.2008, as a matter of fact is a consequential communication to the decisions taken by the committee in its meeting dated 24.5.2008. The signatures of Chief Engineer (Commercial) are available on the order aforesaid being Member Secretary of the committee. In view of the factual position aforesaid, the first argument advanced is having no merit.
Much emphasis is given upon the second argument with assertion that in exercise of the powers conferred by clause (1) of sub-section(2) of Section 176 of the Electricity Act, 2003 (hereinafter referred to as "the Act of 2003") the Central Government framed "The Appeal to The Appellate Authority Rules, 2004"
and as per Rule 3 of the Rules aforesaid for the purpose of appeal under Section 127, the State Government may, by notification in official gazette, constitute an appellate authority, but that no such S.B.C.W.P.No.3865/08 M/s. Quality Marbles Pvt. Ltd v. AVVN Ltd. & Ors.6/9
appellate authority as per the Rules of 2004 is yet appointed in the State of Rajasthan, therefore, the appeal could have not been considered in accordance with Section 127 of the Act of 2003.
It is further submitted that the appeal submitted by the petitioner could have also not been considered by a committee by the authorised officer prescribed under clause 29(C) of the GCOS as the GCOS aforesaid came to be superseded by "the terms and conditions for supply of electricity-2004".
While meeting with the argument aforesaid it is submitted by counsel for the respondents that the case against the petitioner for illegal extraction of energy was registered in the year 2003 and the final assessment was made on 21.12.2001 i.e. prior to coming into force of the Electricity Act, 2003 and also the terms and conditions for supply of electricity, 2004 made while exercising powers under Sections 43 to 48, 50, 55 and 56 of the Act of 2003. The petitioner was also aware of this position, therefore, the appeal was preferred as per clause 29(M) of the GCOS. The appeal in view of the directions given by this Court on 20.7.2007 was placed before the appellate authority i.e the Managing Director, Ajmer Vidhyut Vitaran Nigam Ltd. The other four officers having expertees with the S.B.C.W.P.No.3865/08 M/s. Quality Marbles Pvt. Ltd v. AVVN Ltd. & Ors. 7/9 issue too were present at the time of consideration, and those are, Director (Finance), Chief Engineer (Commercial), Chief Engineer (O & M) and the Executive Engineer (legal) of the electricity supply company. Shri Ashok Bhandari (Manager of the firm) represented the petitioner before the committee with specific stand that the company was not indulged in any type of theft of electricity nor used any magnetic device for interfering functioning of the meter and, therefore, consumption pattern also by and large remained same. Before the appellate authority no objection was raised by the petitioner about its competence and about presence of the experts.
It is further submitted that Section 127 of the Act of 2003 is having no application in the present case for the reason that the case of the petitioner pertains to the period prior to coming into force of the Act of 2003 and also on the count that under Section 127 cases of the unauthorised use of energy are to be considered and not the cases relating to theft of energy.
The fact that the case of the petitioner is of year 2001 i.e. prior to coming into force of the Electricity Act, 2003, is not at all in dispute. As such, consideration of the petitioner's case by an S.B.C.W.P.No.3865/08 M/s. Quality Marbles Pvt. Ltd v. AVVN Ltd. & Ors. 8/9 appellate authority sought to be created under the Act of 2003 is absolutely misconceived. The case, as a matter of fact, was remanded to the appellate authority that examined validity of the final assessment at first instance. The appellate authority, as per clause 29(C) of the GCOS is Managing Director and the appeal is considered by him with the aid of experts. I do not find any wrong in consideration of the appeal by the appellate authority with the assistance of other competent officers, having expertees. Suffice to note that the order dated 13.1.2003 that was subject matter of earlier writ petition was passed by the Chairman and the Managing Director of the respondent electricity supply company and the present appeal too is considered by him. As such the second contention is also meritless.
The last argument of counsel for the petitioner is that the order impugned is not a
reasoned order. This argument too is having no force. The petitioner essentially raised 12 issues before the appellate authority and each and every issue has been examined, considered and answered by the appellate authority. As a matter of fact the argument advanced is absolutely ill-founded. A bare perusal of the order impugned and also the minutes of the Corporate Level Appellate Committee clearly depicts adequate S.B.C.W.P.No.3865/08 M/s. Quality Marbles Pvt. Ltd v. AVVN Ltd. & Ors. 9/9 consideration of each and every contention of the petitioner before arriving at a definite conclusion.
For the reasons given above, this petition for writ is having no merit. The same, therefore, is dismissed.
No order to costs.
( GOVIND MATHUR ),J.
kkm/ps.