Gujarat High Court
Deputy Engineer (O&M) vs Sarvodaya Hotel & Restaurant & on 12 September, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/10731/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10731 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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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 No
India or any order made thereunder ?
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DEPUTY ENGINEER (O&M)....Petitioner(s)
Versus
SARVODAYA HOTEL & RESTAURANT & 1....Respondent(s)
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Appearance:
MS LILU K BHAYA, ADVOCATE for the Petitioner(s) No. 1
MS DIVYANGNA JHALA, AGP for the Respondent(s) No. 2
MR EE SAIYED FOR MRS MUMTAZ SAIYED, ADVOCATE for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 12/09/2017
ORAL JUDGMENT
The petition filed by the electricity company is directed against order of the Assistant Electrical Inspector-cum-Appellate Authority, Mehsana Page 1 of 6 HC-NIC Page 1 of 6 Created On Sat Sep 16 14:34:05 IST 2017 C/SCA/10731/2007 JUDGMENT dated 14th July, 2006 in Appeal No.08 of 2005. Thereby the Appellate Authority canceleld the supplementary bill given respondent - consumer for Rs.69,977/- requiring the petitioner to refund the one-third amount paid at the time of preferring Appeal.
2. The respondent was consumer of the petitioner company and had electricity connection with contracted load of 14 HP. The installation of the respondent was checked on 30th June, 2005 by the checking squad. What was found by the checking squad was that mal-practice was committed and electricity was unauthorisedly consumed with extension of load. A checking-sheet was prepared. The representative of the respondent - consumer signed the checking-sheet without any protest.
3. A provisional bill for Rs.72,423/- was issued to the respondent - consumer under Section 126 of the Electricity Act, 2003. The respondent was allowed to raise his objection. Thereafter final bill dated 02nd August, 2005 was issued by Rs.69,977/-. Aggrieved consumer preferred Appeal before the Assistant Electrical Inspector-cum-Appellate Authority under Section 127 of the Act by paying one-third amount of the bill.
3.1 It appears that earlier the petitioner filed Special Civil Application No.1634 of 2006 which was disposed of by this Court as per order dated 10th April, 2006. It would not be out of place to extract the relevant part of the reasoning which weighed with Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Sep 16 14:34:05 IST 2017 C/SCA/10731/2007 JUDGMENT this Court to notice an error apparent on the face of the order of the Appellate Authority and remanded the case for decision afresh.
"I. On perusal of the facts of the case, it appears that there is an error apparent on the face of the record in an order passed by the Appellate Authority to the effect that when the meter of the respondent was checked, detailed checking sheet was prepared on 30th June, 2005 wherein several points have been recorded including the fact that additional load of electricity was connection by the respondent. The contracted load is less than the connected load. Thus, the respondent was liable to make the payment of additional bill. This additional load communicated has also been admitted by the respondent. There is a signature of the respondent in the checking sheet which is at Annexure -A to the memo of petition. Meter was also running slowly at 7.07% and thus there was no need for the respondent to re-calculate the additional connected load. In fact, the respondent had admitted at the time of checking of the meter, the fact that respondent had connected additional instruments so that there was additional connected load than the contracted load. Thus, admitted position of the fact on the part of the respondent has not been properly appreciated by the Appellate Authority while passing the impugned order. The disputed fact ought to have been properly appreciated by the Appellate Authority.
II After signing the document at Annexure A by the respondent on 30th June, 2005, there was no letter of protest given by respondent to petitioner. The statement of fact made by respondent was never retracted. Never ever before,it has been pointed out by the respondent that the said checking sheet was singed by the respondent under coercion or threat or under compulsion.
The details of Annexure-A.. has been admitted by the respondent. Thus, the facts never permits the Appellate Authority to re-calculate the connected load. What is admitted by respondent for more than reasonable period ought not to have been allowed the Appellate Authority to upset in an appeal while passing the impugned order.
III. Respondent has never contended that there is no signature of the respondent on the checking sheet. When the signature is an admitted fact, the additional connected load is also admitted fact. Without any reason the appellate authority ought not to have come to the conclusion that there was no additional Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Sep 16 14:34:05 IST 2017 C/SCA/10731/2007 JUDGMENT connected load.
(iv) The conclusion arrived at by the appellate authority is patently erroneous and that too without assigning any reasons."
3.2 This Court accordingly set aside the earlier order then passed dated 26th September, 2005 by the Appellate Authority. It was in light of the aforesaid observations that case was remitted back, which culminated into the impugned order.
4. Heard learned advocate Ms.Lilu Bhaya for the petitioner - Electricity Company and learned advocate Mr.E.E. Saiyed for the respondent.
5. The checking-sheet dated 30th June, 2005 is on record. It could not be disputed and nor it is disputable that the contracted load was 14 HP whereas connected load found at the installation of the respondent - consumer was 19.48 HP. It implied that to the extent of 5.48 HP, electricity was unauthorisedly consumed. It was detected that meter was connected to several instruments and appliances and it was round to be running slow by 7.07%. The load testing was done by accu-check meter. Checking-sheet also provided the details of the appliances connected with the meter and the total Horse Power consumption. They were - (i) Water Motor (1X2 HP = 1492 W); (ii) Grinder (1X1 HP = 746W); (iii) Water Cooler (1X1500W = 1500W); (iv) Deep Fridge (vertical) (1X1500W = 1500W); (v) Deep Fridge (horizontal) (1X1000W = 1000W); (vi) Deep Fridge (small) (1X180W = 180W); (vii) Fridge (1X225W = 225W);
(viii) Exhaust Fan (1X180W = 180W); (ix) Hand Mixture (1X110W = 110W); (x) A.C. (1X2200W = 2200W [2T]) and Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Sep 16 14:34:05 IST 2017 C/SCA/10731/2007 JUDGMENT
(xi) A.C. (3X1800W = 5400W [1 1/2T]).
5.1 Looking to the impugned order, the Appellate Authority repeated its errors committed while passing the earlier order. Although the Appellate Authority noticed and noted the details recorded in the checking-sheet, it proceeded only on the basis of the case of the consumer. There was no reason not to accept the contents and details of the checking-sheet. It was mentioned that air conditioners were used and the electricity was consumed for air conditioners along with other appliances mentioned above. However, the Appellate Authority readily accepted the say of the consumer that air conditioners were not used. The Appellate Authority again accepted the case that only 13.85 HP load was connected. When the checking-sheet had recorded about the appliances and the total load of electricity which was 19.48 HP, there was no basis whatsoever for the Appellate Authority to record that the consumer could be said to have connected 13.85 HP load only.
5.2 The above finding was evidently presumptuous. It was not only presumptuous, the same was quite contrary to the actual data recorded in the checking-sheet which could not have been doubted only on the ground that Rojkam was not done, more particularly when the representative of the consumer signed the checking-sheet without protest, thereby accepting the contents. The findings recorded by the Appellate Authority were based on and were guided by conjectures and surmises.
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C/SCA/10731/2007 JUDGMENT
6. Apart all the above aspects, this Court
while remanded the case as per the earlier order dated 10th April, 2006 passed in Special Civil Application No.1634 of 2006, recorded unequivocal finding that when the meter was checked, contracted load was less than the connected load and the respondent was liable to make payment of additional bill. It was stated that the Appellate Authority failed to appreciate this aspect. It was also stated that the facts did not permit the Appellate Authority to recalculate the connected load and there was no reason for the Appellate Authority to upset the order. It was also taken note that there was signature of the representative of the respondent in the checking- sheet. The Court observed that the conclusion arrived at by the Appellate Authority was patently erroneous.
6.1 In this background, there was no scope for the Appellate Authority but to appreciate the facts emerging from the checking-sheet in its right perspective. Even after remittance of the matter for fresh consideration, the order passed by the Appellate Authority booked same errors in repeat.
7. The order has to be set aside. Petition is allowed. Order dated 14th July, 2006 in Appeal No.08 of 2005 by Assistant Electrical Inspector-cum-Appellate Authority, Mehsana, is hereby set aside. Rule is made absolute.
(N.V.ANJARIA, J.) Anup Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Sep 16 14:34:05 IST 2017