Gujarat High Court
Parasmani Proteins vs Paschim Gujarat Vij Co Ltd on 27 September, 2013
Author: S.G.Shah
Bench: S.G.Shah
PARASMANI PROTEINS....Petitioner(s)V/SPASCHIM GUJARAT VIJ CO LTD C/SCA/6053/2004 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 6053 of 2004 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH ================================================================ 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 ?
================================================================ PARASMANI PROTEINS....Petitioner(s) Versus PASCHIM GUJARAT VIJ CO LTD & 1....Respondent(s) ================================================================ Appearance:
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 MS LILU K BHAYA, ADVOCATE for the Respondent(s) No. 1 - 2 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.G.SHAH Date : 27/09/2013 CAV JUDGEMNT Petitioner, a consumer of the electricity, has preferred this petition under Articles 14 and 226 of the Constitution of India with reference to decision/order dated 5.4.2004 by the Appellate Committee constituted under the statute for adjudicating the disputes between the consumer of electricity and Electricity Company regarding irregularity in consumption of electricity.
Heard learned advocate Mr.S.P.Majmudar for the petitioner and Ms.L.K.Bhaya, learned advocate for the respondents.
Initially, the respondent No.1 was Board when the petition was filed, but thereafter, it was bifurcated in several companies and, therefore, at present it is a electricity generating and supplying company.
The incident of irregularities and checking of electricity consumption and reading of such consumption by meter was dated 2.2.2004. When the Competent and Authorised Officers of the Board had checked the electric connection of the petitioner, it was found that the meter was not recording the electric consumption, if it was kept in horizontal position and that at the relevant time, meter was in horizontal position. On further checking, it was found that if meter was kept in proper vertical manner then and then it was recording the consumption of electricity. It is not disputed that such checking was done in presence of the representative of the consumer and he has also signed such checking report on the same day. Therefore, such report is the basic evidence regarding the consumption and recording of electricity at the place of the petitioner. For such reason of not producing proper legible documents on record, practically, petition is required to be dismissed for default or non-prosecution. However, to avoid such step, after couple of years, the entire matter has been heard on merits and decided on its own merits.
Unfortunately, in all such cases, it is found that either of the party has never bothered to file proper legible typed version of such report and, therefore, it is always difficult to read such report. Though such fact was disclosed at the time of hearing and though legible typed copy was required to be filed on record, it becomes clear that a uncertified typed copy is supplied by the petitioner.
In Column No.2 of such report, at Annexure-A, which is dated 2.2.2004, it is specifically written that meter is not running in a simple condition. This is what is written in the typed copy of Annexure-A. Whereas, in original Annexure-A, probably what is stated is different i.e. meter is running when it is in straight vertical condition, but it is not running when it is kept in horizontal position.
The Checking Squad has also examined the equipments either being used or installed for utilization at the place of the petitioner and calculated the total consumption of electricity in horsepower (HP), which is recorded in Column 6 of such report as 117 HP, considering different principles of equipments with different capacity of HP.
However, the report by the Checking Squad as endorsed in Column 8 onwards in such report categorically states that the petitioner has consumed the electricity unauthorisedly by tampering with the activity of the meter. For the purpose, it is stated in the report that the petitioner has removed the board on which the meter was fixed at the place in such a manner that for some time meter can be kept horizontally on its side so as to stop the recording of electricity consumption during such period, and to record some consumption for some time, meter was kept in straight vertical condition. Thereby, it is stated that by stopping the meter reading for some time, within billing cycle, theft of electricity was done by the petitioner. In such column, it is specifically and in detail explained that how the meter was disturbed vertically and horizontally i.e. how it has been kept horizontally from vertical position so as to avoid the reading of the electricity consumption and how m-seal was used twice at the given place. Because of such situation of tampering with the condition of the meter, the Checking Squad has sealed the meter for further checking in the laboratory by preparing said checking report in presence of the petitioner, who in turn has signed said report. Therefore, unless said report is negatived by appropriate procedure and evidence, it would go against the petitioner so far as activity of the meter installed at his place is concerned.
It seems that before that, in the month of March, 2001, the meter installed at the premise of the petitioner was not recording the electric consumption and, therefore, the same was replaced with other meter on 6.3.2001 with proper documentation, which is also attached with Annexure-A. Therefore, it becomes clear that if meter was installed properly in presence of petitioner and technical persons, and if it was found in improper manner on 2.2.2004, then it is for the petitioner to explain that how meter was dealt with and if it is in proper condition or if it can be changed horizontally and vertically so as to avoid the reading of consumption, then it is the duty of the petitioner to convey the Electricity Company to recheck the meter and to make it in order so as to avoid any allegation regarding any unauthorized utilization or theft of electricity by the Company.
It seems that after checking on 2.2.2004, as late as on 5.4.2004, petitioner has submitted written argument before the Appellate Committee, which is constituted under the statute to resolve said issue. It is contended in written argument, almost after three months, that the possibility of converting the condition of meter from vertical to horizontal and vice-versa and non-recording of electric consumption after such change in position is not correct. For such submission, petitioner has put forward an argument that if it is so when the meter was changed in March, 2001 and checked in May, 2002, the Officers must have confirmed such position and that in check-sheet dated 2.2.2004 itself, they have taken objection that meter is not become non-functional only on changing its condition from either vertical or horizontal.
In addition to such denial of factual details, which is recorded in the Inspection Report dated 2.2.2004, the petitioner has also argued about the number of days to be counted for supplementary bill by stating that there were public holidays and Diwali holidays and there was staggering and thereby their factory could not run for 67 days. It is also stated that during the months of May, June and July, their factory was not functional because of boiler testing and repairing. It is also stated that even load of 117 HP was never utilized and, therefore, the calculation of load is not proper.
However, in paragraph 5 of such written arguments, petitioner has categorically stated that after consideration of such defence by him, the total unit would not be more than 9077 and, therefore, requested to consider the calculation of supplementary bill accordingly. Similarly, instead of 117 HP, it is submitted that practically there was less than 100 HP utilization and hence calculation should be done accordingly. It is also submitted that their business is seasonal and, therefore, their mill was not functional throughout the year and in all three shifts at all time. It is also submitted that only because of non-reading of electric consumption by meter, would not amount to theft of electricity, which should be proved by proper evidence.
The Appellate Committee by its judgment and order dated 19.4.2004, which is challenged in the present petition, has considered all the aspects of the dispute between the parties and all the issues raised by the petitioner in its written argument dated 5.4.2004 in said Appeal No.A-17/2004. The Appellate Committee has discussed all the issues and came to the conclusion that there is no justifiable reason to give benefit of 30 days of July 2003 to the appellant on the ground of closure of production in absence of production report, but appellant is entitled to get the benefit of 20 days on account of weekly staggering and 5 days on account of public holidays. Thereby, the Appellate Committee has reduced number of days for calculating supplementary bill from 184 chargeable days to 153 chargeable days and, therefore, Factor-D was revised as 153 x 24 accordingly. In the formula of calculation of supplementary bill, the Appellate Committee has also considered the interruption of power for nearly 76 hours during the period of calculation with load factor as well as shifts. However, when Appellate Committee has found from the consumption statement that the consumption has considerably increased after rectification of the meter, and even thereafter the Appellate Committee had calculated the load factor and diversity factor on the basis of the consumption, the ratio of load factor and diversity factor i.e. Factors C & D would be more than what has been taken in supplementary bill and, therefore, the Appellate Committee did not find any reason to revise the load factor and diversity factor i.e. Factors C & D in the formula for calculation of supplementary bill. Therefore, Appellate Committee has partly allowed the appeal by directing the Board to revise the bill by changing and thereby taking chargeable days i.e. Factor D as 153 x 24 instead of 184 x 24. I have perused the entire order and judgment by the Appellate Committee wherein Appellate Committee has taken care of all the issues raised by the petitioner, even the calculation of load factor is also properly explained that it was not 97.5 HP only but it was 117 HP.
Surprisingly, in all such cases, we find that after getting the supplementary bill, the consumer generally come forward with a story that in fact they had already conveyed the Company that their unit is closed for couple of days. Such story is also found in present case in form of Annexure-D, but such annexure is self-endorsed by the petitioner. It does not confirm that whether it was actually submitted in the office of the Electricity Company, since there is no acknowledgment and determination of such issue by the Appellate Committee that even if such meter is received by the Company, it does not show that production was completely closed and that there was no use of power at all. Similar is the situation so far as period for which boiler was under repairing. It is certain that even during repairing, for testing purpose, it is to be run and, therefore, it cannot be said that there was no consumption of electricity at all during those days.
After the decision of the Appellate Committee, as discussed herein above, petitioner has requested the Appellate Committee to revise their order by their letter dated Nil of May, 2004. Unfortunately, though petitioner has filed his written argument and representation on 5.4.2004 before the Appellate Committee and though the Appellate Committee has conveyed its decision on 19.4.2004 to the petitioner, the petitioner has repeatedly stated in the petition that decision of the Appellate Committee is dated 5.4.2004, against which such review is filed. However, since Appellate Authority is a statutory authority and since there is no jurisdiction or provision for the Appellate Authority to revise its order, the Appellate Authority has not considered such letter for reviewing its order. Being aggrieved by such judgment and order dated 19.4.2004 and non-consideration of request to review such order by the respondents, petitioner has filed this petition in the year 2004 wherein by an order dated 18.5.2004, initially notice was issued for a limited purpose that why application at Annexure-G should not be considered by the respondents. However, thereafter, by an order dated 30.7.2004, rule was issued and by order dated 20.9.2004, interim relief was granted for reconnection of electricity supply on the condition that the petitioner shall make the payment of supplementary bill in six equal monthly installment and shall also pay the daily payment charges, if any.
Since there is no disclosure on record regarding compliance of such interim relief, it is to be believed that said order was complied with. Thereby, the fact remains that the petitioner has been benefited by making the payment of supplementary bill in six monthly installment and getting electricity connection.
The respondents have filed their affidavit-in-reply in 2004 itself, wherein it is specifically explained about misconduct on the part of the petitioner so far as handling the meter in question is concerned. It is further disclosed in such affidavit on oath that the consumption statement shows the consumption of 1430 units during the month of July, which was against the submission of the petitioner that factory was closed during the month of July, 2003. It is also stated that the consumption of electricity for the month of June, 2003 was 1530 units and for the month of May, 2003 it was 1600 units. The petitioner has not filed affidavit-in-rejoinder to negativate such factual details or to produce original bills for six months to show that these figures are not correct and, therefore, there is no reason to believe such statement. If such figures are believed, then it is certain that there was consumption of electricity even in the month of July, 2003 and hence petitioner is not entitled to get benefit of deduction of 30 days while calculating supplementary bill.
It is also stated in affidavit-in-reply that consumption of electricity has been increased after checking on 2.2.2004 and after installing new meter and, therefore, the issues raised by the petitioner to revise and reduce the supplementary bill were not taken into consideration by the Appellate Committee.
However, it is clear that though initially supplementary bill was for Rs.16,53,809.45, after the directions by the Appellate Committee to revise the Factor D , the final bill comes to Rs.12,96,656.65. It is also contended in the reply that practically while issuing the notice, the Hon ble Court has restricted the scope of this petition only to the aspect that why review application at Annexure-G should not be considered. It is contended that in view of condition No.34 of the conditions and miscellaneous charges for supply of electrical energy after issuance of the supplementary bill for theft of electrical energy, the Appellate Committee is reviewing the decision of the Board and, therefore, there is no provision for second review. It is also submitted that petitioner has not made out any ground for review since all the contentions raised by the petitioner were taken care by the Appellate Committee.
In view of above discussion, the fact which clearly transpires is to the effect that the condition of meter on the date of checking was not proper and though the petitioner has tried to endorse their report itself that meter is recording the electric consumption, the fact remains that condition of meter was believed to be changed from vertical to horizontal and vice-versa and if during such change, meter is not recording the consumption coupled with the fact that in the month of July, 2003, there was consumption of electricity and after installing new meter, the consumption has increased, certainly there is unauthorised utilization of electrical energy by the petitioner. However, in any case, this is purely a technical issue and if petitioner fails to prove otherwise, then there is no reason to disbelieve the checking report and determination by the Appellate Committee.
The subject of unauthorised consumption or theft of electricity and checking of meter and electric consumption at the relevant time and supplementary bill by the Electricity Company has been repeatedly dragged upto the Apex Court in different cases with different facts, circumstances and references. However, all such cases are to be looked into with reference to the real facts and evidence of each case. In view of such fact, there cannot be a straightway formula since all such cases are based on the issue that there was unauthorised consumption or theft of electric energy at the relevant point of time. Since electric energy is not a tangible property and virtually the concept of power which always gets changed on its utilization and though it can be stored practically after unauthorised utilization and theft, practically, either user or consumer does not know the unauthorised use or he knows that he is using electricity unauthorisedly. In such case, the knowledge of using electricity unauthorisedly would result into theft of electric energy. Therefore, practically, there would be a difference between the knowledge and mensrea regarding unauthorised consumption of electricity at the given place. There may be such unauthorised consumption of electricity, which would in turn result into financial benefit to the user. In any case, because such unauthorised consumption cannot be caught at the relevant time, the only means to identify the unauthorised consumption is by way of checking the actual reading of consumption and comparing the previous consumption with the consumption to be recorded under the supervision and with condition in which meter was properly installed and allowed to record the proper consumption.
In all such cases, all such practical issues cannot be dealt with properly in such petitions under Article 226 of the Constitution. Considering all reported cases till date, if some consumer is of the opinion that there is no other proper remedy, it is for them to find out the proper remedy either from the statute book or by proper representation to the competent legislature making authorities. I have reason to say so because some of the reported judgments, confirms that if consumer has any grievance against the Electricity Company, then, Forum and Commission under the Consumer Protection Act has to take appropriate decision in accordance with law whereas some reported cases states that the Electricity Act, 2003 is a self contained code so far as such disputes are concerned and thereby Consumer Court has no jurisdiction to deal with such issues. The fact remains that the consumption of electricity is being recorded at the end of the consumer and, therefore, if the consumer is vigilant about his own consumption and recording of such consumption by proper meter, nobody could allege or complain about unauthorised consumption or theft of electricity. If at all consumer has any grievance against the proprietariness of the consumption of electricity or the meter in question, generally it would be appropriate for them to agitate such issue in accordance with law. Since provision like Section 26(6) of the Indian Electricity Act, 2010 could not be found in the Indian Electricity Act, 2003, it would be for the competent authority to take care of such situation. However, so far as present petition is concerned, since it is under Article 226 of the Constitution, it would be difficult for this Court to enter into such factual and technical evidence by determining that what is what at the relevant time. Similarly, it would be difficult for this Court to sit as a Appellate Authority against the order of the Appellate Tribunal, which is constituted as per the statute and when it is constituted with members of different faculty like legal and technical. If we refer the different decisions as cited by both the sides, its outcome would be to the effect that unless there is prima facie evidence on record to show that the Appellate Committee has failed to consider the particular aspect in deciding the appeal, it would be difficult for the Court to change such decision which is otherwise supported by factual details and taken by technical as well as judicial Member of the Committee. Therefore, instead of discussing all the judgments referred at Bar at length or reproducing some paragraphs from all such judgments, it would be enough to recollect all such cited cases (1) AIR 1998 SC 1715, (2) 1996(1) GLR 97 , (3) 1995(2) GLR 1158 & (4) (1988)2 SCC 415 with its gist in following manner.
23.1 As pleaded by respondents, the Apex Court has held that the Appellate Committee is a quasi judicial body and, therefore, there is no question of inherent powers to review its own decision. The respondents have also pleaded and submitted that jurisdiction of the Hon ble High Court under Article 226 is of supervisory nature and that High Court does not sit or act as a Appellate Court against the decision of statutory Appellate Authorities - 1999(3) GLR 2554 , AIR 1966 SC 1449, 1983 SCC 402 and 1991 SCC 414.
23.2 1995(2) GCD 762 Bahuma Polytex Ltd. Vs. Gujarat Electricity Board & Anr. wherein it was confirmed that when there are number of questions of disputed facts with complicated technical questions, petition under Article 226 of the Constitution is not an appropriate remedy to determine the disputed questions of fact involved technical considerations.
23.3 2011(3) GLR 2447 Rajendra R.Sheth, Deputy Engineer Vs. Matariya Textiles wherein the Division Bench of this Court has held that once unauthorised use is confirmed, the learned Single Judge has erred in coming to the conclusion that it was a bonafide mistake on the part of the consumer since there was no such material before the learned Single Judge. Therefore, the Division Bench has confirmed the supplementary bill explaining the provision of Section 126 of the Electricity Act, 2003. The Division Bench has also confirmed the judgment reported in 2006(2) GLH 375 between Torrent Power AEC Ltd. Vs. Gayatri Intermediates Pvt. Ltd.
23.4 In AIR1966 SC 849 Jagarnath Singh Vs. B.S. Ramaswamy, three Judges bench of Apex Court has dealt with the issue and held that the existence of the unauthorised means for abstraction is prima facie evidence of dishonest abstraction by some person. The special rule of evidence goes no further. Whoever abstracts or consumes or uses electrical energy, dishonestly commits a statutory theft, which may be proved by direct or circumstantial evidence. However, direct evidence of the theft is rarely forthcoming. It may be by tampering with the meter and causing it to record less than the units actually passing through it, the consumer may take the unrecorded energy are unauthorised by the contract with the electrical company, the unauthorised taking is an abstraction and the crippled meter is an artificial means for abstraction.
23.5 In (2004) 10 SCC 635 State of West Bengal Vs. Rupa Ice Factory (P) Ltd. again three Judges Bench of the Apex Court has confirmed that Section 26 of the Electricity Act, 1910 is not applicable in case of tampering or pilferage of electricity.
23.6 In (2004)5 SCC 551 Corporation of Andhra Pradesh Vs. Ch.Prabhakar it is held that proceedings under Article 226 are not a substitute for an appeal.
23.7 In (2003)5 SCC 226 J.M.D. Alloys Ltd. Vs. Bihar SEB wherein three Judges of the Apex Court confirmed the method of calculation of supplementary bill refusing to reduce the maximum period of 180 days. As against that petitioner has relied upon some unreported judgments of this Court in following cases in the matter of Special Civil Application No.6164 of 2004 -
Gujarat Microwax Ltd. Vs. Chief Engineer Uttar Gujarat Vij Co.Ltd. & Ors. and Special Civil Application No.16975 of 2003 Sheth Salt Works Vs. Dakshin Gujarat Vij Co.Ltd.
However, on careful perusal of such cases, it has become crystal clear that in both such unreported cases, learned Single Judge has given some benefit to the petitioner for the simple reason that some time before the checking of electric meter of the consumer, the connection was checked by the Officers of the Electricity Company and there was report that meter was functioning properly, thereby, consumption of electricity was recorded properly. Because of such reason, the learned Single Judge has directed the respondents to reduce the number of days for calculating supplementary bill. However, so far as judgment dated 31.1.2013 in Special Civil Application No.6164 of 2004 is concerned, learned advocate for the respondent has pointed out that they have preferred Letters Patent Appeal No.618 of 2013 against such judgment, which is pending admission. That it can be said that unless stay is granted against said judgment, it remains in the field, but at the same time, it cannot be ignored that such decisions are sub judice and, therefore, it would not be proper to discuss such judgments.
23.8 In Letters Patent No.1683 of 2010, the Division Bench of this Court has on 05.12.2012, while dealing with the similar issue, categorically held and decided that, cases were highly disputed questions of fact are required to be answered for the purpose of deciding that whether the supplementary bill reflected the real consumption by the consumer, where parties are also free to bring the experts in the witness box, such disputed question should not be decided simply on the basis of affidavit. Therefore, though the Court has considered the pendency of Civil Suit filed by the Electricity Company, the Division Bench has ultimately confirmed the order of dismissal of writ application not on merits, but on the ground of involvement of disputed questions of fact, thereby, allowing both the parties to raise all other contentions and defence before the Civil Court. Therefore, at the most, similar observation as made by the Division Bench in such unreported case that this Court has not gone into the merits of the dispute and while disposing of the suit, the learned Civil Court shall not be influenced by the fact that the writ application has been dismissed, may be followed.
24. In view of above facts, circumstances and legal position, it would be difficult to come to the conclusion that Appellate Authority has committed any error or mistake in calculating the supplementary bill or in deciding the appeal as per the impugned judgment.
25. For the foregoing reasons, the impugned orders cannot be quashed and set-aside, which will result into dismissal of present petition. Accordingly, the petition is dismissed with an observation that if petitioner files Civil Suit in accordance with law to challenge the decision on facts by the respondents, the Civil Court shall not be influenced by the fact that this writ petition has been dismissed and shall decide the issue raised before it in accordance with law and on merits.
(S.G.SHAH, J.) binoy Page 15 of 15