Gujarat High Court
Amit Textiles vs Gujaratelectricity Board & 3 on 14 August, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/1538/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1538 of 2005
In SPECIAL CIVIL APPLICATION NO. 16922 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
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 ?
5 Whether it is to be circulated to the civil judge ?
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AMIT TEXTILES....Appellant(s)
Versus
GUJARATELECTRICITY BOARD & 3....Respondent(s)
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Appearance:
MR ZUBIN F BHARDA, ADVOCATE for the Appellant(s) No. 1
MS LILU K BHAYA, ADVOCATE for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1 , 3
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Page 1 of 6
C/LPA/1538/2005 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 14/08/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of this appeal, the appellant has challenged the order of learned Single Judge dated 5.4.2005 in Special Civil Application No. 16922 of 2004 whereby the petition was dismissed.
2. Learned counsel for the appellant has tried to take us through the document and the reply filed before the appellate authority as well as the order of the appellate authority and contended that the so-called excess load of 39.96 H.P. is not properly considered by the authority inasmuch as the instruments which were purchased in the month of May, 2003 and the so-called checking was done in the month of 20.7.2003 and therefore the same is done within six weeks which is contrary to evidence in view of the decision of Hon'ble Supreme Court in the case of PUNJAB STATE ELECTRICITY BOARD AND ANOTHER VS. ASHWANI KUMAR reported in (1997) 5 SCC 120, particularly, paragraph No. 9, which reads as under:
"When the provision for appeal by way of review has been provided by the statutory instructions, and the parties are directed to avail of the remedy, the authorities are enjoined to consider all the objections raised by the consumer and to pass, after consideration, a reasoned order in that behalf, so that the aggrieved Page 2 of 6 C/LPA/1538/2005 JUDGMENT consumer, if not satisfied with the order passed by the Board/appellate authority, can avail of the remedy available under Article 226 of the Constitution of India. Therefore, by necessary implication, the appropriate competent authority should hear the parties, consider their objections and pass the reasoned order, either accepting or negativing the claim."
He has also relied on the decision of this Court in the case of AMBESHWAR PAPER MILLS LTD. VS. GUJARAT ELECTRICITY BOARD reported in 2002(3) GLH 441, particularly, paragraph No. 16, which reads as under:
"Considering the reasoning of the Apex Court as well as of the Division Bench of this Court in my view, condition No. 34 cannot be held as arbitrary, discriminatory or ultra vires simply because by amendment it is provided that the assessment of energy will be for the actual period from the date of the previous installation checking (and resulted into supplementary bill) within six months' period of the date of detection under consideration and upto the date of detection. Even otherwise, I am of the opinion that if a consumer is able to satisfy the authority that at the time of previous installation checking, the Checking Squad found everything in order and no electricity theft was noticed in any manner, then, naturally, the said aspect is required to be taken into account by the Board irrespective of whether the same resulted into a supplementary bill. In short, ultimately, if it is established that no irregularity or theft of energy was found at all in any manner on the previous occasion during the earlier is required to be issued subsequent to Page 3 of 6 C/LPA/1538/2005 JUDGMENT the date of the previous installation checking irrespective of whether it resulted into supplementary bill. Even after issuance of supplementary bill if the consumer is able to establish even before the Appellate Committee that the so-called theft is committed only from a particular date, naturally, if the Appellate Committee, after examining the merits of such contention, comes to the conclusion that even though the supplementary bill is issued for six months, the consumer has committed theft only from a particular date, which may not cover the entire period of six months, naturally, the Appellate Committee can give appropriate relief at the time of determining the quantum of amount, which the consumer is required to pay. It cannot be said that if the previous checking is done in a proper manner and subsequently after that checking if any illegality or theft of energy is noticed on same set of facts on which, previously, the consumer was not found to have committed theft, naturally, he will get the benefit of the same, even though he is not subjected to supplementary bill, naturally because he has not committed theft at that time. It, however, depends on the facts and circumstances of the case and the nature of installation checking at the relevant time and at a subsequent time......"
3. In view of above, learned counsel for the appellant has submitted that the view taken by the appellate authority on page No. 55 which is reproduced hereinbelow, is not proper. In that view of the matter, the orders of the appellate authority and learned Single Judge are required to be interfered with.
Page 4 of 6C/LPA/1538/2005 JUDGMENT "It is fact that the unit of the appellant was ckecked on 20.7.2003 and the total connected load was found as 139.96 HP against the contract load of 100 HP. The details of the connected load were also clearly indicated in the checking sheet which was signed by the representative of the appellant without any protest. Thus, the contention raised by the appellant regarding wrong calculation in connected load does not stand at all. The fact that the appellant was running the industry and going on adding the load without any prior intimation or without submitting any test report is clearly established in this case. As such, none of the contention of the appellant can be accepted and the appeal is hereby dismissed."
4. Learned advocate Ms. Bhaya for the respondent has submitted that these contentions were neither raised before the appellate authority nor before learned Single Judge. They are raised for the first time before this Court. Therefore, the appeal deserves to be dismissed.
5. We have heard learned advocate Mr. Bharda for the appellant and learned advocate Ms. Bhaya for the respondent. The contentions raised by learned counsel for the appellant are not accepted inasmuch they were not raised either before the appellate authority or learned Single Judge. In that view of the matter, we are in complete agreement with the view taken by learned Single Judge. In that view of the matter, the appeal deserves to be dismissed and the same is dismissed accordingly.
(K.S. JHAVERI, J.)
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C/LPA/1538/2005 JUDGMENT
(A.G.URAIZEE,J)
(pkn)
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