Gujarat High Court
Bhagwati Ice & Cold Storage vs Gujarat Urja Vikas Nigam Ltd on 2 February, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/15665/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15665 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
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 ? No
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BHAGWATI ICE & COLD STORAGE....Petitioner(s)
Versus
GUJARAT URJA VIKAS NIGAM LTD., & 1....Respondent(s)
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Appearance:
MS SUDHA R GANGWAR, ADVOCATE for the Petitioner(s) No. 1
MR SP HASURKAR, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 02/02/2015
ORAL JUDGMENT
1. This petition under Article 226 of the Page 1 of 12 C/SCA/15665/2004 JUDGMENT Constitution of India, has been preferred with a prayer to quash and set aside the order dated 09.09.2004, passed by the Appellate Committee of the respondentElectricity Company, whereby the appeal of the petitioner against the Supplementary Bill issued to it, has been partlyallowed and the said bill has been directed to be revised, by taking the ratio of load factor and diversity factor at 0.3 in place of 0.4, for the chargeable period of December, 2002 and January, 2003, and 0.75 in place of 0.8 for the remaining chargeable period keeping the connected load factor 'A' and chargeable factor 'D' unchanged.
2. The brief facts of the case, as garnered from the material on record, are as follows:
2.1 The petitioner is a Proprietorship Firm manufacturing ice and is a consumer of the respondent Electricity Company. There was a blast in the meter of the electrical installation on the premises of the petitioner. The petitioner informed the Deputy Engineer of the local office of the respondent Electricity Company, by a letter dated 04.09.2003, Page 2 of 12 C/SCA/15665/2004 JUDGMENT that the meter was not working. Pursuant thereto, the Deputy Engineer (O&M), Chorwad, went to the site on 04.09.2003 and checked the electrical installation of the petitioner in the presence of a representative of the petitioner. The connected load was taken and found to be 90.5 Horse Power (HP). During the checking, it was found that the door of the Metal Meter Box (MMB) was lifted on one side on the lower part and a smell of burning was coming from the MMB. The meter was, therefore, removed and replaced. The old meter with the MMB was wrapped and sealed and taken for further inspection in the laboratory. The necessary Checking Sheet and Rojkam were prepared to that effect and were signed by a representative of the petitioner. Proforma No.15 was also filled in for the replacement of the meter. The MMB and meter were thereafter inspected in the laboratory at Jamnagar, on 09.02.2004. At the time of the inspection in the Laboratory, a representative of the petitioner was present. During the laboratory inspection, the MMB seal, terminal cover seal and MMB lock were found to be tampered with and the R and Y Phase PT wire was found removed from the terminal block. The upper portion of the meter cover between Page 3 of 12 C/SCA/15665/2004 JUDGMENT the meter body and the cover was found lifted and there was a black dot on the display glass window of the meter. The necessary Laboratory Inspection Report was prepared to that effect, which was signed by a representative of the petitioner. The Officers of the respondentElectricity Company came to the conclusion, on the strength of the Laboratory Inspection Report, that there was tampering with the MMB seal, MMB lock and terminal cover seal of the meter. In addition thereto, it was concluded that there was tampering with the wiring of the terminal block and, thereby, the petitioner had dishonestly extracted electrical energy. The connection of the petitioner was disconnected on 14.02.2004, and the petitioner was booked for theft of electrical energy. A Supplementary Bill of Rs.13,70,711.27 Paisa was issued to the petitioner as per the Rules of the respondent Electricity Company. The petitioner did not deposit any amount towards the Supplementary Bill. Its connection was, therefore, not reconnected. The petitioner preferred an appeal before the Appellate Committee to challenge the Supplementary Bill of theft without paying the amount of the Supplementary Bill Page 4 of 12 C/SCA/15665/2004 JUDGMENT and without reconnection.
2.2 On 12.09.2005, this Court issued Rule in the petition and granted adinterim relief on condition that the petitioner shall pay the outstanding dues in respect of the Supplementary Bill, along with necessary reconnection charges and delayed payment charges, if any, in six equal monthly installments.
The first installment was to be paid on, or before, 01.10.2005. It is further stated in the said order that if any default is committed on the part of the petitioner in making the payment as mentioned above, it would be open for the Electricity Company to disconnect the power connection of the petitioner without any further orders.
2.3 Ms. Sudha R. Gangwar, learned advocate for the petitioner, submits that she has no instructions regarding whether the amount of the Supplementary Bill has been paid by installments by the petitioner, or not.
2.4 Being aggrieved by the order dated 09.09.2004, passed by the Appellate Committee, the petitioner has approached this Court by way of the present petition. Page 5 of 12
C/SCA/15665/2004 JUDGMENT
3. Though a number of grounds have been stated in the Memorandum of the Petition and appear to have been urged before the Appellate Committee, Ms.Sudha R. Gangwar, learned advocate for the petitioner, has confined her submissions before this Court to only the following ground:
(1) It is submitted by Ms. Sudha R. Gangwar, learned advocate for the petitioner, that the findings of the Appellate Committee are based upon the Laboratory Inspection Report, which clearly states that during inspection, it was found that the door of MMB was found lifted from the lower side and the smell of burning was coming outside the MMB. Admittedly, the meter, MMB seal and terminal cover seal were found to be tampered with. However, there is no finding to the effect that the alleged tampering on the external side of the meter would have any effect on its internal working. Only the outside meter cover bears marks of alleged tampering, but from this finding it cannot be assumed that there was any effect on the registration of energy in the meter, or that the meter would run slow because of it.
Page 6 of 12
C/SCA/15665/2004 JUDGMENT 3.1 No other submissions have been advanced by the learned advocate for the petitioner.
4. Mr.S.P. Hasurkar, learned advocate for the respondentElectricity Company, has submitted that it is specifically stated in the Laboratory Inspection Report that the MMB seal and terminal cover seal were found to be tampered with and the MMB seal was found to have been refitted. It is clearly stated in the said Report that wires of the R and Y Phases were removed from the terminal block and there was black ash on the display glass window and on the cable. That it is clear from the Laboratory Inspection Report that there was tampering with the meter. The tampering is not only with regard to the MMB seal, MMB lock and terminal cover seal, but is also with regard to R and Y Phase PT wires, which would definitely have an effect on the accurate registration of energy. It cannot, therefore, be said that the meter was only tampered with externally and not internally, as the manner in which the R and Y Phase PT wires were removed constitutes sufficient tampering to ensure the recording of inaccurate meter readings. It is further Page 7 of 12 C/SCA/15665/2004 JUDGMENT submitted that the Laboratory Inspection Report has been signed, without protest, by the representative of the petitioner. The findings arrived at by the Appellate Committee are based upon the findings on the Laboratory Inspection Report which has been prepared by experts in the field. This Court would not, therefore, interfere with the findings on fact, based upon material on record, arrived at by the Appellate Committee. Hence, the petition may be dismissed.
5. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.
6. The only point for determination that now arises before this Court is regarding the findings of the Appellate Committee, as rendered in the impugned order, based upon the Laboratory Inspection Report dated 09.02.2004. Before the Appellate Committee, the petitioner had raised other contentions, such as, its representative was made to sign the Laboratory Inspection Report under pressure and that the seasonal Page 8 of 12 C/SCA/15665/2004 JUDGMENT benefit was not given to the petitioner. However, before this Court, the above submissions have not been pressed and the learned advocate for the petitioner has confined herself only to the findings of the Appellate committee, based on the Laboratory Inspection Report, to the effect that the petitioner has committed a theft of electrical energy.
7. In the impugned order, the Appellate Committee has stated as below:
"...It is specifically stated in the checking sheet and even in the local Rojkam that the door of the MMB was found lifted from one lower side and a smell of burning was coming out from the MMB. It is also stated in the checking sheet that the connected load was found at 90.5 HP. It is also specifically stated in the checking sheet and even in the Rojkam that the MMB with the meter was removed, wrapped and sealed and was taken for further inspection in the laboratory. There is no dispute with regard to the aspect of the case. Now it is admittedly clear that the meter and the MMB seal and terminal cover seal were inspected in the laboratory at Jamnagar on 9.2.2004 in the presence of the representative of the appellant. It is also clear that necessary laboratory inspection report was prepared at that Page 9 of 12 C/SCA/15665/2004 JUDGMENT time and it was signed by the representative of the appellant. It is specifically stated in the laboratory inspection report that the MMB seal and terminal cover seal were found tampered with and MMB lock was found refitted. It is also stated in that laboratory inspection report that the wires of R and Y phase PT wire removed from the terminal block and there was a black ash on the display glass window and even on the cable. Thus, the laboratory inspection report clearly shows that there was a tampering with the MMB seal, MMB lock, terminal cover seal and even R and Y phase PT wires. There is no reason for us not to rely on this laboratory inspection report, which is signed by the representative of the appellant without any protest...."
"... However, it is very clear from the checking sheet, local Rojkam and particularly from the laboratory inspection report that there is sufficient evidence to establish that there was tampering with the MMB seal, MMB lock, terminal cover seal and R and Y phase PT wires of the terminal block. If this is so, then it can not be denied that an attempt was made to abstract the electrical energy without being it fully recorded in the meter. So, in our view, the case of theft of electrical energy is established against the appellant."
8. From the above findings, it can clearly be seen Page 10 of 12 C/SCA/15665/2004 JUDGMENT that not only were the MMB seal and terminal cover seal of the meter found to be tampered with, but the MMB lock was also found to be refitted. In addition thereto, the R and Y Phases PT wires were also tampered with. The tampering with the wires would definitely have an effect on the accuracy of the recording of energy in the meter; therefore, the submission of the learned advocate for the petitioner that only the external part of the meter was tampered with and not the internal, is without any substance.
9. There is no material on record to indicate that the Laboratory Inspection Report is erroneous. The said Report has been prepared by experts in the field and the petitioner has not placed any material on record to undermine its veracity. The findings of the Appellate Committee, based on the Laboratory Inspection Report, are findings of fact based upon cogent material on record. It is a settled position of law that this Court, while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India, may not interfere with findings of fact, unless and until they are proved to Page 11 of 12 C/SCA/15665/2004 JUDGMENT be perverse or illegal. The learned advocate for the petitioner has not succeeded in showing any perversity or illegality in the said findings.
10. The impugned order passed by the Appellate Committee is a wellreasoned one. It cannot be said, after perusing the same, that it suffers from any legal defect, so as to warrant the interference of this Court.
11. For the aforesaid reasons, the petition fails and is rejected. Rule is discharged. The interim relief, if any, stands vacated. There shall be no orders as to costs.
12. The petitioner shall pay the full amount of the Supplementary Bill to the respondentElectricity Company, if not already paid, within a period of two weeks from the date of the receipt of a copy of this judgment.
(SMT. ABHILASHA KUMARI, J.) piyush Page 12 of 12