Gujarat High Court
Mansukhbhai J Makwana vs Madhya Gujarat Vit Co.Ltd on 23 August, 2013
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
MANSUKHBHAI J MAKWANA....Petitioner(s)V/SMADHYA GUJARAT VIT CO.LTD. C/SCA/2303/2004 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2303 of 2004 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 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 ?
================================================================ MANSUKHBHAI J MAKWANA....Petitioner(s) Versus MADHYA GUJARAT VIT CO.LTD.
& 1....Respondent(s) ================================================================ Appearance:
MS SUDHA R GANGWAR, ADVOCATE for the Petitioner(s) No. 1 MR SN SINHA, ADVOCATE for the Respondent(s) No. 2 MS SHRADDHA TRIVEDI, ADVOCATE for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2 ================================================================ CORAM:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :23/08/2013 CAV JUDGEMENT
1.. This petition under Article-227 of the Constitution of India is at the instance of a consumer of the Gujarat Electricity Board running a Small Scale Industry at Dhandhuka in the name and style of Dalvadi Spin Coat and is directed against an order dated 7/7/2003 passed by the Appellate Committee of the Gujarat Electricity Board in Appeal No.A-31/2003 by which the Appellate Committee partly allowed the Appeal filed by the petitioner herein directing the respondent Board to revise the supplementary bill by checking the ratio of load factor and diversity factor i.e. C/B as 0.25 and factor D as 152 x 24 hours keeping connected load parameters i.e. factor A unchanged.
2.. Being dissatisfied with the order passed by the Appellate Committee of the GEB the petitioner has come-up with this petition under Article-227 of the Constitution of India.
3.. The facts giving rise to this petition may be summarized as under :
3.1 The petitioner is running a Small Scale Industry at Dhandhuka in the name and style of Dalvadi Spin Coat. He is a consumer of the Gujarat Electricity Board and its Consumer and Category Number is 27305/00473/1 LTP-1 with a contract load of 75 HP.
3.2 On 9/10/2002 the Deputy Engineer, In-charge Squad, Sabarmati visited the unit of the petitioner and inspected the electrical installation. At that time the connected load was found at 66.75 HP against the contract load of 75 HP. During their checking the MMB Seal and all the four meter body seals were found tampered with and refitted. A gap between the meter cover and the glass was also found. The Inspecting squad, therefore, came to the conclusion that there was tampering with the MMB seal and the meter body seals including the meter mechanism and thereby the petitioner had dishonestly abstracted electric energy. The electric connection of the petitioner was disconnected. The MMB Seals, terminal cover seal and the meter were removed, wrapped and sealed for further inspection in the laboratory.
3.3 The necessary checking sheet was prepared to that effect duly signed by the checking authorities. Since the representative of the petitioner refused to sign the checking sheet, the authorities prepared a Rojkam stating details of the irregularities and such Rojkam was signed by the checking authorities.
3.4 The MMB seal, terminal cover seal and the meter were thereafter inspected in the laboratory on 1/1/2003 in the presence of the representative of the petitioner and the irregularities which were noticed at the time of checking were confirmed. It was found that the MMB Seal was tampered with and all the seals were refitted. The pressure coil of Y and B phase was also found burnt and some scratches were also noticed on the meter disc.
3.5 The necessary laboratory inspection report was prepared to that effect and it was signed by the representative of the petitioner.
Thereafter, a case was registered against the petitioner for the theft of electrical energy and a supplementary bill amounting to Rs.13,31,325/93ps. was issued to the petitioner according to the rules and regulations of the respondent Board.
4.. The petitioner thereafter deposited Rs.1,75,490/- on 25/10/2002 being 15% amount of the supplementary bill and further Rs.8,956/- on 20/1/2003 being additional 5% of the amount of supplementary bill. The electric connection of the petitioner was reconnected on 8/11/2002. The petitioner thereafter preferred an Appeal before the Appellate Committee of the Board challenging the issuance of the supplementary bill.
5.. The Appellate Committee, after taking into consideration all the relevant aspects of the matter, thought fit to partly allow the appeal and directed the Board to revise the supplementary bill by taking ratio of the load factor and the diversity factor i.e. C/B as 0.25 and factor D as 152 x 24 hours keeping connected load parameters i.e. factor A unchanged.
5.1 The relevant findings of the Committee are reproduced herein below:
Admittedly the electrical installation of the appellant was checked by the Dy. Engineer, I/c Squad, Sabarmati on 9.10.2002 and at that time the connected load was found at 66.75 HP against the contract load of 75 HP. It is also admitted that necessary checking sheet and even Rojkam stating the details of the checking were prepared at that time and they were signed by the checking authorities. It is specifically stated in the checking sheet and even in the Rojkam that the MMB seal was found tampered with and a gap between the meter body cover and glass was also found and all the 4 meter body seals were found refitted and some adhesive substance was also found on those seals. It is also stated in the checking sheet and even in the Rojkam that all the 4 meter body seals were opened and refitted. It is also stated therein that the MMB seal and the terminal cover seal and meter were removed, wrapped and taken for further inspection in the laboratory. Now, there is no reason for us not to rely on the checking sheet and even the Rojkam. No doubt, both the checking sheet and Rojkam do not bear signature of the representative of the appellant even though it is stated therein that the brother of the appellant was present at the time of checking. But it is specifically stated therein that the brother of the appellant who was present at the time of checking refused to sign the checking sheet and as a result Rojkam was prepared. So when the brother of the appellant who was present at the time of checking refused to sign the checking sheet, it is highly improbable to expect the signature of the representative of the appellant on the checking sheet. So, it can not be said that the checking sheet and Rojkam are not reliable merely because it does not bear the signature of the representative of the appellant. Now it is admitted that the MMB seal, terminal cover seal and meter were inspected in the laboratory on 1.1.2003 in the presence of the representative of the appellant and necessary laboratory inspection report was prepared at that time. It is specifically stated in that laboratory inspection report that the MMB seal was found tampered with and there were scratches on the teeth of the male part of the seal. It is also stated in that laboratory inspection report that all the 4 meter body seals were found tampered with, opened and refitted. The laboratory inspection report also shows that the pressure coil of Y and B phase was found burnt during internal inspection of the meter. Thus, the laboratory inspection report clearly supports the irregularities found at the time of checking. The laboratory inspection report is signed by the representative of the appellant without any protest. It is also not challenged before us on any material ground. So there is no reason for us not to rely that laboratory inspection report and so considering such facts and circumstances of this case, we are of the opinion that there is sufficient evidence to show that the appellant has dishonestly abstracted electric energy by tampering with the MMB seal, meter body seal and even the meter mechanism. So, in our view, the case of theft of electric energy is clearly established against the appellant.
There is no dispute with regard to the connected load, which is taken as 66.75 HP at the time of checking. Now it appears that the chargeable days are taken as 183 in the Sp. bill. The appellant contended that the chargeable days taken as 183 in the Sp. bill are taken on very higher side and he requested to revise those chargeable days.
The first contention of the appellant on this point is that his unit was kept closed for 30 days on account of weekly staggering off days and he requested to give a benefit of those 30 weekly off days. Admittedly the unit of the appellant remains closed once a week on account of weekly off days. So, it is clear that the appellant is entitled to get the benefit of weekly off days, which come to 26 during the chargeable period. Now the appellant has contended that his unit remained closed for 15 days on account of public holidays and 5 days on account of power interruption. But it is pertinent to note that there is no evidence on record to substantiate this aspect of the contention of the appellant. So it cannot be believed that the unit of the appellant was closed for 15 days on account of public holidays and for 5 days on account of power interruption. Power interruption, which was during the chargeable period, is negligible and hence it cannot be taken into consideration. The unit of the appellant is a unit, which manufactures print from cotton. No Diwali holidays fall during the chargeable period. So, it is just and proper to give a benefit of 3 days to the appellant on account of public holidays. Now the appellant has contended that his unit remained closed for 28 days on account of strike of the employees and he requested to give a benefit of those days. In this connection, the appellant relied on xerox copies of the letter of Dhandhuka-Bhal Ginning-spinning Majdoor Sangh and the letter written to the D.E., Dhandhuka by him and compromise pursis dated 18/5/2002. The letter dated 8.4.2002 of the Dhandhuka Bhal shows that notice is given to the unit of the appellant to pay up the arrears of the salary of employees within 15 days and if it is not done then they would proceed on strike dated 22.4.2002. This letter dated 8.4.2002 is a notice and it is of no use to show that the employees were actually on strike. Now the letter dated 23.4.2002 written by the appellant to the Dy. Engineer shows that the production process was kept closed because of strike of the employees. Even if we believe that the production of unit was stopped as per that letter, it cannot be inferred that use of electric energy was completely stopped during that period. So, in our view, that letter dated 23.4.2002 of the appellant is also of no use to him on this point. The compromise pursis dated 18.5.2002 also does not render any help to the appellant on this point. So, considering such factors and circumstances we are of the opinion that it is not just and proper to give any benefit of any to the appellant on account of strike. Now the appellant contended that his unit was kept closed for 30 days for the maintenance of the machinery. But there is no reliable evidence to show that the unit was kept closed on any day in the maintenance of the machinery. The xerox copies of the papers of Mafatlal Engineering of Ahmedabad on which the appellant relied on, in this connection, are of no use to the appellant on this point. So for want of evidence we do not find it just and proper to give any benefit to the appellant on account of maintenance of this machinery. Now the appellant contended that his unit remained closed on account of death of his father. Xerox copy of the death certificate produced by the appellant shows that father of the appellant Jesingbhai died on 3.6.2002. If this is the position, then it cannot be denied that the unit of appellant might have remained closed on the date of death of father of the appellant and even on that day religious ceremony might have been performed. We are, therefore, of the opinion that it is just and proper to give a benefit of 2 days to the appellant on account of death of his father. So, in our view, the net chargeable days come to 152 after deducting 26 weekly off days, 3 public holidays and 2 days on account of death of his father. Hence factor D requires to be revised as 152 x 24 hours accordingly.
6. Being dissatisfied, the petitioner has come-up with this petition.
7. On 20/9/2004 the learned Single Judge of this Court admitted the petition by issuing rule. The learned Single Judge further ordered that the power connection of the petitioner would not be disconnected on a condition that the petitioner shall deposit the amount of supplementary bill, including the delayed payment charges, if any, in three equal monthly installments.
8.. Ms. Gangwar, the learned Advocate appearing for the petitioner very vehemently submitted that the Committee failed to consider many relevant aspects brought to its notice by her client. Ms. Gangwar submitted that the Committee ought not to have believed the version of the respondent authorities without there being any cogent and convincing evidence in that regard. According to her the checking sheet and the Rojkam do not bear the signature of the petitioner or his representative and, therefore, the Committee ought not to have relied upon the same.
9. Ms.Gangwar submitted that her client was able to demonstrate that there were 30 weekly staggering holidays. However, in spite of such a fact, the Appellate Committee believed only 26 days. Ms.Gangwar also submitted that the Committee failed to consider an important question of fact that the Unit remained closed for 28 days. The employees had gone on a strike and vide letter dated 23/4/2002 the petitioner had informed to the Dy. Engineer that the Unit has been closed.
In such circumstances, according to Ms.Gangwar, the order passed by the Appellate Committee deserves to be set aside and the petition deserves to be allowed accordingly.
10.. Mr. S.N.Sinha, the learned Advocate appearing for the respondent Board very assiduously submitted that no error, not to speak of any error of law could be said to have been committed by the Appellate Committee of the Board in passing the order impugned warranting any interference at the hands of this Court in exercise of its supervisory jurisdiction under Article-227 of the Constitution of India. Mr.Sinha submitted that all the relevant aspects of the matter were duly considered by the appellate committee and accordingly the appellate committee thought fit to partly allow the appeal.
Mr.Sinha, in such circumstances, submits that there being no merit in this petition, the same deserves to be rejected with costs.
11. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that falls for my consideration in this petition is whether the appellate committee of the Board committed any error in passing the order impugned.
12. Before proceeding further, I am quite alive to the scope of interference at the instance of a High Court in a proceeding under Article 227 of the Constitution of India, as repeated and reiterated by the Supreme Court in the case of Estralla Rubber Vs. Dass Estate (P) Ltd. reported in (2001) 8 SCC 97, wherein it was observed as follows:-
The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.
13. In one of the recent pronouncements of the Supreme Court in the case of Jai Singh and others Vs. Municipal Corporation of Delhi reported in (2010) 9 SCC 385, the Supreme Court in paragraph 15 observed as follows:-
"15.
.... we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It can not be exercised like a bull in a china shop , to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice."
14. The following facts emerge from the materials on record:-
i) The petitioner is a consumer of the Gujarat Electricity Board with a contract load of 75 HP.
ii) The unit of the petitioner was inspected by the authorities on 9/10/1982 and at that point of time it was found that MMB Seal and all the four meter body seals were tampered with and refitted. A gap between the meter cover and glass was also found.
iii) The MMB Seal, terminal cover seal and the meter were removed and were sent for further inspection in the laboratory.
iv) The laboratory report reveals that MMB seal was found tampered and all the other seals were found refitted. The pressure coil of Y and B phase was also found burnt with few scratches on the meter disc.
v) The necessary laboratory inspection report was prepared to that effect duly signed by the representative of the petitioner.
15.. In light of the above, I do not find any reason to interfere with the findings of fact arrived at by the Appellate Committee on the aspect of tampering with the meter in exercise of my supervisory jurisdiction under Article-227 of the Constitution of India. I am not hearing the appeal against the decision of the Appellate Committee of the Board. The scope of inquiry in such a matter is a limited one. The judicial review under Article-226 or 227 cannot be converted into an appeal. The judicial review is directed, not against the decision, but is confined to the examination of the decision making process. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the Court.
16. It is a settled law that even if it is reasonably possible to form two opinions from the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article-227 of the Constitution, also the jurisdiction is not available to be exercised for indulging in reappreciation or evaluation of the evidence or correcting the errors in drawing inferences like a Court of Appeal.
17. In view of the foregoing reasons, I do not find any merit in this petition and the same is accordingly rejected. However, in the facts and circumstances of the case, there shall be no order as to costs.
(J.B.PARDIWALA, J.) Mohandas Page 12 of 12