Gujarat High Court
M/S Hodder Exports Pvt Ltd vs Executive Engineer (O &Amp; M) on 4 July, 2019
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/2168/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 2168 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 29909 of 2007
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/LETTERS PATENT APPEAL NO. 2168 of 2017
==========================================================
M/S HODDER EXPORTS PVT LTD
Versus
EXECUTIVE ENGINEER (O & M) & 1 other(s)
==========================================================
Appearance:
MR VIRAT G POPAT(3710) for the Appellant(s) No. 1
MS LILU K BHAYA(1705) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 04/07/2019
COMMON ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE) It is not in dispute that Electrical Inspector concluded in his report that electric meter was tampered with and based on such tampering, supplementary bill was issued. In the above backdrop of factual scenario, the learned Single Judge reversed the order of the appellate authority by recording the following findings.
"5.1 On a consideration of the order of the Appellate Authority, it is evident that the Appellate Authority failed to consider the contents of the laboratory inspection report suggesting tampering with the Page 1 of 3 Downloaded on : Wed Jul 10 06:04:20 IST 2019 C/LPA/2168/2017 ORDER meter.The laboratory testing report was cogent evident to be tenable in law. The findings thereof could not have been discarded or disregarded by the Appellate Authority.
5.2 Not only that the Appellate Authority overlooked the material evidence in the nature of laboratory inspection report, the Appellate Authority proceeded on the basis that the reading of the meter for the past six months was zero and therefore, it was concluded that the meter was showing no consumption. It was noticed by the Appellate Authority that the meter reading was 138008 units and that the same number of units were recorded in March. The meter was removed 21.04.2005 and the reading at that time was 154796 units. Therefore, it was concluded that the consumption between 24.03.2005 and 21.04.2005 was different which came to 26788 units. According to the Appellate Authority, the consumer was liable to pay for the said difference of 26788 units. The Appellate Authority calculated the rate applicable with reference to the said number of units, setting aside the supplementary bill issued by the electricity company which was for average consumption of 256046 units on the basis of the period of past six months.
5.3 The Appellate Authority adopted its own method for calculating 26778 units and substituting the said bill for the said units. This was done by the Appellate Authority by disregarding the statutory formula and the method of calculation provided for in Section 125(5) of the Act read with Regulation 7.2 of the Electricity Supply Act. For setting aside the bill given by the electricity company and substituting its own bill, the Appellate Authority departed from the statutory formula required to be applied in the facts of the case. The Appellate Authority misdirected itself for reason that the meter was not showing any consumption during particular period. 5.4 The meter was a tampered meter as clearly found in the laboratory test report. Therefore, zero consumption was not at all reliable, but could be the result of tampering as the meter functioning was controlled by tampering. The electricity was consumed by adopting a modus operandi by tampering. Merely because the electricity consumption was not reflected in the running of the meter, it could not have been a ready conclusion that there was no actual consumption of electricity.
5.5 Learned advocate for the electricity company could contend on the basis of the facts on record that the Appellate Authority failed to appreciate that in the month of September, 2004, the units were observed to be 138008 and in October, 2004 as well as in November, 2004, the same number of units were shown to have been consumed. In November, 2004, the factory of the consumer was closed because of which reading of the meter could not be taken and the preaverage units 7200 were taken. Similar was the position in December, 2004 and 7200 units were taken as average, Page 2 of 3 Downloaded on : Wed Jul 10 06:04:20 IST 2019 C/LPA/2168/2017 ORDER followed by the same average units in the month of January, 2005. The bill was issued on the basis of such average consumption. The Appellate Authority disrecorded that when the reading was done on 24.03.2005 for the month of March, 2005, the meter was showing 138008 units and on the date of removal of the meter, that is, 21.04.2005, the reading was 154796 units showing that there was consumption of 26788 units."
Argument canvassed by Mr. Virat Popat, learned advocate for the appellant is that unit was closed and there was no production, and therefore, chance of consuming electricity was NIL. When there was no supply of energy, there was no possibility for tampering with any meter and that no opportunity was given for the same.
We find no substance in the above argument, the letters patent appeal is, therefore, dismissed. Consequently, connected civil application stands disposed of.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) A.M. PIRZADA Page 3 of 3 Downloaded on : Wed Jul 10 06:04:20 IST 2019