Gujarat High Court
Ramesh Silk Mills vs Dakshin Gujarat Vij Company Ltd & on 17 June, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/22197/2005 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 22197 of 2005
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RAMESH SILK MILLS....Petitioner
Versus
DAKSHIN GUJARAT VIJ COMPANY LTD & 1....Respondents
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Appearance:
MR UTPAL M PANCHAL, ADVOCATE for the Petitioner.
MS LILU K BHAYA, ADVOCATE for the Respondents.
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 17/06/2016
ORAL ORDER
1. By way of the present petition under Articles 14, 16, 19(1)(g) and 226 of the Constitution of India, the petitioner has prayed as under:
"21(A)Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the Supplementary Bill issued by the Resp.No.1 authority at Annex."B" and the order dated 19.9.2005 at Annex."D" passed by the Resp.No.2 Appellate Authority.
(B) Pending admission, hearing and final disposal of this writ petition, Your Lordships may be pleased to stay the Page 1 of 6 HC-NIC Page 1 of 6 Created On Thu Jun 23 01:19:44 IST 2016 C/SCA/22197/2005 ORDER recovery of the bill at Annex."B" and be further pleased to restrain the respondent Board, their agents and servants from disconnecting the power supply given to the petitioner;
(C) Be pleased to pass such other and further reliefs as may be deemed just and proper by Your Lordships in the facts and circumstances of the case."
2. Pursuant to the Notice issued by this Court, the respondent has appeared through learned advocate Ms.Lilu K. Bhaya and has filed Affidavit-in-reply dated 11/12/2005 opposing to grant any reliefs, as prayed for by the petitioner. Affidavit-in-Rejoinder is also filed on 26/12/2015.
3. Brief facts, arise from the record, are as under:
That the petitioner is a "consumer" of the respondent company as defined u/s.2(15) of The Electricity Act, 2003. The petitioner is running a textile mill and had entered into contract with the respondent company for electricity supply of 40 HP. A meter was also installed at the premises belongs to the petitioner. Premises of the petitioner was checked by the officers of the respondent company on 11/09/2004 and it was found that the petitioner was using 65 HP load instead of contracted load of 40 HP. A checking report was prepared in presence of the representative of the petitioner and the same was signed by him. The respondent company treated the case of the petitioner as illegal usage of Page 2 of 6 HC-NIC Page 2 of 6 Created On Thu Jun 23 01:19:44 IST 2016 C/SCA/22197/2005 ORDER electricity supply by malpractice and, therefore, issued supplementary bill for Rs.3,88,418.25 ps. to the petitioner. The petitioner being aggrieved and dissatisfied with the supplementary bill, filed an appeal before the Appellate Committee, as provided under the Act and raised several defences. After giving an opportunity to all concerned and after examining the material available on record, the Appellate Committee found that the petitioner used electricity supply of 65HP instead of contractual load of 40 HP and, therefore, the petitioner had violated the provisions of Conditions and Miscellaneous Charges For Supply of Electrical Energy framed under The Indian Electricity Act as well as Rules framed thereunder. Hence, this petition.
4. Mr.Utpal Panchal, learned advocate appearing for the petitioner would submit that it is not the case of the respondent company that the petitioner has tampered with either electricity line or the meter. He would submit that this is a case of excessive use of electric supply and not the case of theft of electrical energy and, therefore, the authority ought to have issued the bill only for additional use of electric supply and not for the entire usage i.e. 65 HP. The authority ought to have issued additional bill after reduction of contractual bill of 40 HP and ought to have issued bill only for 25 HP. He would submit that the authority has not properly calculated the norms with regard to capacity of the pumps used by the petitioner while calculating the HP. He would submit that appellate authority has not dealt with this aspect and, therefore, the impugned order is required to be quashed and set aside.
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5. On the other hand, Ms.Lilu K. Bhaya, learned advocate appearing for the respondents would submit that the petitioner company has used excessive power load and therefore, the petitioner does not exempt from payment of entire electrical supply used by the petitioner since the same is treated as "malpractice" under the provisions of Conditions and Miscellaneous Charges For Supply of Electrical Energy framed under The Indian Electricity Act,1910.
She would submit that Regulation 33(A)(b) provides that if a consumer uses excessive load than the contracted load, the same shall be treated as Malpractice. Since there were no regulations framed, she has relied upon a notification no.631 and submitted that though the case is of the year 2004 and the new regulation came into existence in 2005, the earlier conditions would be applicable and, therefore, the authority has rightly calculated the revised bill in consonance with Regulation-34.
She would submit that the appellate committee has dealt with the submissions made by the petitioner about calculation put forward by the petitioner with regard to use of HP through each of the pumps and has refused to accept the same, in absence of any cogent material and, therefore, while exercising power under Article 226 of the Constitution of India, there is no need to examine all these aspects. Hence, the petition may be dismissed.
6. Heard learned advocates appearing for the respective parties. It is not in dispute that the petitioner had entered into a contract with the respondent company for load of 40 HP. When the premises was checked, it was found that the petitioner was using 65 HP instead of contracted load of Page 4 of 6 HC-NIC Page 4 of 6 Created On Thu Jun 23 01:19:44 IST 2016 C/SCA/22197/2005 ORDER 40 HP. So far as submission made by Mr.Utpal Panchal, learned advocate for the petitioner that this is a case of excessive use of electrical supply and not the case of theft of electrical energy is concerned, the same cannot be accepted in view of provision of Regulation 33, which reads as under:
"33A Malpractice and Theft of Energy
(a) Malpractice
Malpractice shall mean contravention by the consumer of any of the provision of the I.E.Act,1910 Electricity (Supply) Act,1948 or Indian electricity Rules,1956 or of any other law governing the supply and use of Electricity and the rules framed thereunder as also the contravention of any of the provision of the Board's "Condition and Miscellaneous Charges for Supply of Electrical Energy" or any of the terms and conditions of the contract governing the supply of electricity by the Board to the consumer and shall in particular include the following case:
(a) The supply of electricity by a consumer to any other person whose supply has been disconnected by the Board for any reason.
(b) Exceeding the contracted load by a consumer without the specific Page 5 of 6 HC-NIC Page 5 of 6 Created On Thu Jun 23 01:19:44 IST 2016 C/SCA/22197/2005 ORDER permission of the Board.
(c) Unauthorised addition, alteration and\or extension to the consumer's electrical installation without the permission of the Board
(d) Using supply by a consumer from the service which has been disconnected by the Board for any reason.
(e) Supply of energy to any other person without the permission of the Board."
If Regulation 33(A)(b) is perused, the case is squarely covered as the petitioner had used excessive load than the contracted load and, therefore, calculation made by the petitioner under Regulation 34 is in accordance with law.
7. Considering the overall facts and circumstances of the case and considering the provisions as referred hereinabove, in my opinion, the petition is meritless and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Interim relief, if any, stands vacated forthwith.
[A.J.DESAI, J.] *dipti Page 6 of 6 HC-NIC Page 6 of 6 Created On Thu Jun 23 01:19:44 IST 2016