Gujarat High Court
Dharmesh M Kapadia vs Dakshin Gujarat Vij Co. Ltd. Notice To Be ... on 9 April, 2018
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/15985/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15985 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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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 or any
order made thereunder ?
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DHARMESH M KAPADIA
Versus
DAKSHIN GUJARAT VIJ CO. LTD. NOTICE TO BE SERVED THROUGH -
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Appearance:
MS MEGHA JANI(1028) for the PETITIONER(s) No. 1
MS MAYA S DESAI(285) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 9/04/2018
ORAL JUDGMENT
1. The present petition is filed by the petitioner under Articles 14 and 226 of the Constitution of India as well as under the Indian Electricity Act 2003 read with the Conditions of Supply of Page 1 of 8 C/SCA/15985/2004 JUDGMENT Electricity of Energy for the prayer that appropriate writ, order or direction may be issued for quashing and setting aside the order passed by the Appellate Committee of the Respondent Board dated 25.8.2004 in Appeal No. SZ-26/29 and also the electric bill dated 29.5.2004 as well as the supplementary bill dated 4.11.2004 on the grounds stated in the memo of petition.
The facts of the case briefly summarized are as follows.
2. The petitioner is doing the business of twisting of yarn in the premises mentioned in the title of the petition. It is the case of the petitioner that the petitioner is a consumer of the Respondent Board and was having the low-tension connection for the load of 10 hp. However, for such planning for expansion of the activities, the petitioner made an application dated 16.12.2002 requesting for additional load of 10 hp. The petitioner had purchased TFO Machines. Erection of such machine was started in January 2004 and was completed in February 2004. After the erection of the machines, a test report was carried out by the Respondent Board and the installed capacity is also mentioned. However, the engineers of the Respondent Board visited the premises of the petitioner on 20.5.2004 and inspected the premises and come to the conclusion that the connected load as per Accu-Check Test was 30 hp instead of contracted 20 hp which has led to issuance of Page 2 of 8 C/SCA/15985/2004 JUDGMENT supplementary bill of Rs.2,17,420/- which has been challenged by way of Appeal before the appellate authority. However, the appellate authority partly allowed the appeal and passed the order which has been assailed in the present petition on the grounds as stated in the memo of petition.
3. It is contended inter alia that the Accu-Check test is the sole basis for raising the supplementary bill and in the Accu-Check test the connected load was found to be 30 hp. However, the Accu-Check test do not indicate the connected load as it is for measuring the accuracy of the meter, and therefore, the sole reliance with such test is erroneous. It is also contended that the appellate authority has failed to appreciate that the load of the motors were 3 hp as per the bills and the certificate of the manufacturer, and therefore, the appellate committee erred in holding that the connected load was higher in spite of the conclusion that the documents submitted by the petitioner were genuine and in order. It is also contended that the appellate committee failed to appreciate that the petitioner - consumer had also raised a dispute under Section 26(6) of the Electricity Act 1910 about the genuineness of the Accu-Check test.
4. Heard learned Advocate Ms. Megha Jani for the petitioner and learned Advocate Ms. Maya Desai for the Respondent.
5. Learned Advocate Ms. Megha Jani referred to the checking report Page 3 of 8 C/SCA/15985/2004 JUDGMENT at Annexure-E and submitted that it was with regard to the low- tension given and not the other aspect. She submitted that as stated that the motor of Remi make with 3 hp were connected and still the same has been considered as 5 hp. She submitted that therefore it was protested as recorded and still the appellate authority has considered that it was not protested. Learned Advocate Ms. Megha Jani also referred to the checking sheet at page 22 with details and again submitted that as stated, there is no malpractice and on the backside the endorsement has been made which has not been appreciated. Learned Advocate Ms. Megha Jani also referred to the appeal memo as well as the order passed by the appellate authority. Learned Advocate Ms. Megha Jani also referred to the impugned order and submitted that the observations and the conclusion by the appellate authority is erroneous and still the say of the petitioner has been accepted and the appeal has been allowed partly. She also submitted that the authority has also not doubted the genuineness of the petitioner and therefore the present petition may be allowed.
6. In reply, learned Advocate Ms. Maya Desai referred to the affidavit-in-reply and other papers including the checking sheet. She submitted that it is a case of unauthorized extraction of load. She also referred to Conditions of Supply and submitted that the Page 4 of 8 C/SCA/15985/2004 JUDGMENT Condition No. 33 (A) (B) would apply in such case of malpractice. She also emphasized that it is a case of unauthorized extension of load as instead of 20 hp it is 28.60 hp.
7. In rejoinder, learned Advocate Ms. Megha Jani referred to the rejoinder to explain that the impugned order had certified that the motor was of 3 hp and therefore if the same has been considered, it would not be a case of extension of load. She emphasized that it is not a case of mala fide and the genuineness is not doubted. She therefore submitted that the present petition may be allowed though referring to the Conditions of Supply it has been canvassed as a malpractice.
8. In view of the rival submissions, it is required to be considered whether the present petition deserve consideration.
9. As could be seen from the background of the facts, it is not a case of theft of energy and the genuineness of the petitioner is not doubted. Even at the time of test report, the endorsement has been made protesting about the recording by the officers of the Respondent Board. In spite of that the appellate authority has made the observations; it is not protested which is erroneous and contrary to the record.
10.Therefore, having regard to the Conditions of Supply it has been referred. The Conditions of Supply particularly Condition No. Page 5 of 8 C/SCA/15985/2004 JUDGMENT 33(A)(C) referred to;
"Unauthorised addition, alteration and / or extension to the consumer's electrical installation without the permission of the Board."
Therefore, as per the Respondent Board, it would be covered under the malpractice and not under the theft of energy.
11.In order to appreciate that whether without the permission the installation has been made or the extension of load has been made, it is required to be stated that the petitioner had started installation of the motor or the additional machines and thereafter an intimation was given to the Respondent Board and it was examined. Therefore, the bona fide of the petitioner is not doubted and it cannot be stated that there was any intention to extend the load without any permission unauthorizedly. However, at the time of checking the capacity, the machine has been recorded as 5 hp though the certificate of manufacture is 3 hp. It appears that this has led to the confusion inasmuch as if the three machines with this difference is considered, the issue of so-called extension of the load would not arise as it would have remained within the contracted load of 20 hp.
It is in these circumstances, the submission made by learned Advocate Ms. Megha Jani are required to be accepted that as a Page 6 of 8 C/SCA/15985/2004 JUDGMENT consumer, the petitioner has produced the certificate of manufacturer and had intimated after the installation of machine, for which no fault could be attributed to the petitioner.
12.Again as provided in Section 26 regarding the recording of the meter, in such an eventuality, the procedure is required to be followed. As contended by learned Advocate Ms. Megha Jani, the issue had been raised and it was pending before the Electricity Inspector, and therefore, the Respondent would not have jumped to any conclusion regarding malpractice or unauthorized extension without allowing the Electrical Inspector to make the assessment on due verification. It would have perhaps cleared such doubts.
13.It is in these circumstances, therefore, the order passed by the appellate authority, which has accepted the contention or the say of the petitioner and allowed the appeal partly but has failed to appreciate the core issue, though, normally the court would have declined to exercise the jurisdiction under Articles 226 / 227 of the Constitution of India, to disturb the finding arrived at by the appellate authority. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Surya Dev Rai v. Ram Chander Rai and Ors. reported in (2003) 6 SCC 675.
14.However, as discussed above, it appears that the appellate authority has made the observations contrary to the record and has Page 7 of 8 C/SCA/15985/2004 JUDGMENT misdirected in not appreciating the fact that the issue was joined with regard to the capacity of the machine and inference could not have been made solely on the basis of the Accu- Test.
15.Therefore, in view of the discussions made herein above, the present petition deserve to be allowed and accordingly stands allowed. Prayer in terms of paragraph 11 (A) and 11 (B) is granted. The impugned order passed by the Appellate Committee
- Gujarat Electricity Board in Appeal No. SZ-26/29 dated 25.8.2004 and the supplementary bill dated 29.5.2004 for Rs.2,17,420.50 p. as well as the intimation dated 4.11.2004 regarding revised supplementary bill for Rs.1,32,297.75 p. are hereby quashed and set aside. Rule is made absolute.
(RAJESH H.SHUKLA, J) J.N.W Page 8 of 8