Gujarat High Court
Bj Textile vs Superintending Engineer (Appellate) & on 1 February, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/10336/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10336 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowedYes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy ofNo
the judgment ?
4 Whether this case involves a substantial question ofNo
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BJ TEXTILE....Petitioner(s)
Versus
SUPERINTENDING ENGINEER (APPELLATE) & 1....Respondent(s)
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Petitioner(s) No. 1
MS LILU K BHAYA, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 01/02/2016
ORAL JUDGMENT
The challenge in this petition is addressed to order of the Appellate Committee in Appeal No. SZ 02 (19) dated 04.09.2003, which in its Page 1 of 6 HC-NIC Page 1 of 6 Created On Sun Feb 07 00:25:48 IST 2016 C/SCA/10336/2004 JUDGMENT relevant part reads as under, "We have considered the contentions of the parties and perused the record. On perusal of the record, it appears that no-doubt, while filling of the Proforma-15, the officers filling-up the said proforma has stated that the seal was affixed on the MMB but there is nothing in the said proforma that the officers concerned had checked all the meter body seals at that time and then applied the MMB seal. Therefore, in our opinion, mere production of proforma-15 would hardly be of a help to the appellant. In the instant case, the fact remains that the meter which was removed from the premises of the appellant was checked in the laboratory and therein irregularities mentioned here in above in the submission of the DE of the Respondent Board were found. These irregularities are of very serious in nature and the appellant's representative has no explanation whatsoever for the same. In the instant case, the matter does not end here. As submitted by Shri Trivedi, the consumption prior to the date of checking was of 10407 units whereas the consumption recorded after the date of checking was of 25364 units. This aspect clearly go to suggest that theft has taken place and since the appellant is unable to explain this type of abnormal rise in consumption, considering the documentary evidence produced by the Respondent Board, we have no hesitation in holding that the Respondent Board has succeeded in establishing its case of theft of electrical energy and therefore, we hold accordingly. However, considering the normal practice of the Respondent Board, the following relaxation is given:-
1. Staggered days : 13 days (@ 50%)
2. Holidays : 05 days Total : 18 days The net chargeable days shall be 184-18=166 days.
(II) There shall not be any change in other parameters of the ABCD formula.
The Respondent Board shall revise the supplementary bill in terms of the above direction and recover the balance amount from the appellant.
ORDER Appeal is partly allowed."
2. It is against the aforesaid order partly allowing the appeal of the petitioner consumer, he has has sought to invoke the jurisdiction of this court under Article 226 of the Constitution.
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C/SCA/10336/2004 JUDGMENT
2.1 No interim relief was granted by this court when the Rule was issued on 19.10.2004 as the petitioner had made full payment of the supplementary bill in question.
3. The petitioner, engaged in powerlooms business, was a consumer of respondent electricity company having consumer No. 05112/08283/1 at Udhna. The case of the petitioner, as pleaded in the petition, is inter alia that on 27.06.1995, electric meter at the place of the petitioner was installed and put in the metal box. Proforma-15 was issued by respondent-Gujarat Electricity Board (erstwhile) and the seal was supplied to the meter. It appears that thereafter on 26.09.2001, the checking squad inspected the installation of the petitioner. At that time, it was recorded that the meter was old and therefore running slow. New meter was replaced on 31.01.2002. The meter which came to be removed was sent to the laboratory. The Laboratory inspection report dated 09.02.2002 revealed the acts of tampering on the part of the consumer, which, however, the petitioner assailed to be false. The supplementary bill for Rs. 2,10,588/- was issued. The petitioner questioned the legality of the said supplementary bill by approaching the Appellate Committee by filing appeal. The appeal of the petitioner culminated into the impugned order.
4. Learned advocate for the petitioner Mr. Apurva Jani for learned advocate Mr. Ashish Dagli harped that Metal Meter Box (MMB) which was installed in the year 1995 was in proper condition. When the meter was changed in the year 2001 on the ground that it was old, the said box was intact. He relied on the reports prepared by the team of the respondent on 27.6.1995 and 26.1.2001. Seeking support therefrom in his submissions that the MMB was at no point of time broken or tampered with and the box was intact, it was his submission that once that Page 3 of 6 HC-NIC Page 3 of 6 Created On Sun Feb 07 00:25:48 IST 2016 C/SCA/10336/2004 JUDGMENT was the position, namely that the MMB was in proper condition, there was no possibility of tempering. He submitted that even assuming without accepting that particles and instruments inside the meter were tempered with, the same could be only prior to the year 1995. Learned advocate for the petitioner submitted that therefore findings about the tempering of the meter in the laboratory report and the confirmation thereof by the Appellate Committee, were erroneous and in the facts of the case, such conclusion could not have been reached.
4.1 By placing reliance on decision of this court in Modern Terry Towels Ltd. v. Gujarat Electricity Board & Ors [2003 (4) GLH 3122], it was submitted by learned advocate for the petitioner that onus to show dishonest consumption of electricity was on the electricity company; and the said onus was not discharged. By pressing into service another decision of this court in Oxford Industries Limited vs. Dakshin Gujarat Vij Company Limited in Special Civil Application NO. 7654 of 2002 decided on 18.10.2012, learned advocate for the petitioner sought to buttress his contention that once MMB seal was found to be in proper condition, the tempering inside could not occur.
4.2 On the other hand learned advocate Ms. Lillu Bhaya for the respondent electricity company supported the impugned order by submitting that it case was a clear-cut case of tempering. As regards the decision of Modern Terry Towels Ltd. (supra), she submitted that the same was carried in the LPA 156 of 2003 and the Letters Patent Bench by passing the order dated 4.4.2014 has directed that the said decision would not be treated as a precedent.
5. Learned advocate for the electricity company took the court Page 4 of 6 HC-NIC Page 4 of 6 Created On Sun Feb 07 00:25:48 IST 2016 C/SCA/10336/2004 JUDGMENT through the laboratory testing report dated 31.01.2002 06.02.2002 and 08.02.2002. The reports unmistakably recorded that outer glass of the box was removed and re-fitted and terminal block was brunt. Upon opening the seal, sealing patterns were noticed not to be in usual pattern. The sealing holes found to be tempered with. It recorded that sealing must have been opened and re-applied repeatedly. Also the teeth of the female part of the inside meter were found to be in broken condition. In addition to all these, there were scratches on the counter drum and on the figures mentioned thereat. The aforesaid facts that the Metal Meter Box was opened and reopened, fitted and re-fitted by removing and reinserting the glass and the inside tempering was done, the act of tempering was clearly evidenced, as above. In other words, there was a clever and successful attempt to break the meter and tempering it without touching outer Metal Meter Box making a show that the same was intact. The submission of the petitioner's learned advocate that since the Metal Meter Box remained in proper condition in the year 1995 and also thereafter, no case of tampering could have been made out, was thus grossly misconceived and entirely misdirected and the fallacy in his submission indeed stood explained by the content of the laboratory testing report.
5.1 Learned advocate for the petitioner submitted that the application of formula instead of taking the connected load, the contracted load was mentioned. Even otherwise, such contention was not raised before the Appellate Committee. Hence, the said contention is not allowed and not accepted.
5.2 Decision of this court in Oxford Industries Limited (supra) stands true on its own facts and does not apply to the present case. As far Page 5 of 6 HC-NIC Page 5 of 6 Created On Sun Feb 07 00:25:48 IST 2016 C/SCA/10336/2004 JUDGMENT as the decision in Modern Terry Towels Ltd. (supra) is concerned, in view of the order passed by the Letters Patent Bench, it is stripped off for its precedential value. The petitioner could not have relied on the same. In any view, even if the burden to prove the dishonest consumption and tempering is on the company, in view of the aforesaid facts revealed, the said burden stands discharged completely and satisfactorily by the respondent company.
6. Equally significant, rather clinching, is the aspect about the pattern of the consumption by the petitioner consumer. The consumption prior to the date of checking was 10407 units whereas during the post check period, it was increased to 25364 units. The phenomenal and abnormal rise in the consumption level was not explained. Learned advocate for the petitioner, when asked, was entirely at his receiving end and was unable to come out of the said aspect clearly reflecting on the extraction energy by using unfair means.
7. No merit whatsoever noticed in the case of the petitioner. Hence, the petition is dismissed. Rule is discharged. No order as to costs.
(N.V.ANJARIA, J.) cmjoshi Page 6 of 6 HC-NIC Page 6 of 6 Created On Sun Feb 07 00:25:48 IST 2016