IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 12521 of 2005 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA :
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 ?
======================================================= AONE ICE FACTORY Petitioner(s) Versus GUJARAT URJA VIKAS NIGAM LIMITED & 1 Respondent(s) ======================================================= Appearance:
MR BHARAT T RAO for the Petitioner(s) No. 1 MS LILU K BHAYA for the Respondent(s) No. 1 2 ======================================================= CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 21/10/2013 ORAL JUDGMENT
1. The present petition has been filed by the petitioner under Articles 14, 19 and 226 of the Constitution of India as well as under the conditions and misc. charges for supply of electrical energy framed by the Gujarat Electricity Board under the provisions of the Indian Electricity Act, 1910 for the prayer inter alia quashing and setting aside the impugned order passed by the appellate committee in Appeal No.B 45/2005 at AnnexureB dated 01.04.2005 regarding the supplementary bill and also for the stay of operation of the order and further consequential reliefs as prayed.
2. Heard learned counsel, Shri B.T. Rao for the petitioner and learned counsel, Ms.Lilu Bhaya for the respondents.
3. Learned counsel, Shri Rao has referred to the papers and also the impugned order of the appellate committee and submitted that the appellate committee has failed to consider the contentions raised by the petitioner on merits and has passed the impugned order without assigning any specific reason for believing the case of the respondent regarding theft of energy. Learned counsel, Shri Rao submitted that checkingsheet was signed under the protest and it has not been appreciated that the petitioner had immediately thereafter informed the respondent with regard to the connected load and, therefore, no case of theft was made out. He submitted that the Appellate Committee was required to give independent finding on the basis of the material and evidence on record and could not have bluntly accepted the laboratory test report. He pointedly referred to the order of the appellate committee and submitted that the appellate committee without any discussion or reason accepted the finding of the laboratory report. Learned counsel, Shri Rao submitted that the appellate committee of the respondent is a quasijudicial authority and has to be fair and impartial. Learned counsel, Shri Rao further submitted that only with a view to see that the case for the theft is made out, in the laboratory test report it is stated that the seal of the meter did not match with master seal and the presumption has been made about the theft of energy. He submitted that therefore the present petition may be allowed. Alternatively, it was submitted that the matter may be remanded back. He has also submitted that there is an error with regard to the actual calculation regarding the consumption of units and the payment made and the petitioner is required to be given credit for 20945 units. Learned counsel, Shri Rao has also referred to the chart or statement, which prescribes manner and method of calculation by adopting proper load factor or diversity factory.
4. Learned counsel, Ms.Bhaya referred to the papers including the checkingsheet produced at Annexure B and emphasized that the connected load at the time of checking was 129 HP whereas contract load is 124 HP. She has also referred to the joint laboratory test produced at AnnexureC and submitted that seals were duplicate and it has been specifically stated about the modus operandi about the method applied. Learned counsel, Ms.Bhaya submitted that it has been recorded in the laboratory test report that at the first glance, it could be made out that seals were duplicate as well as they were totally different. He submitted that even make of duplicate seal that it is of Maruti is also recorded. She further submitted that the case of theft of energy is therefore made out and the appellate committee has also examined the same and passed impugned order, which is just and proper.
5. In rejoinder, learned counsel, Shri Rao referred to the impugned order to emphasize the submission about the reasoning part of the order. He submitted that he has only reproduced what has been stated in the laboratory test report.
6. In view of these rival submissions, it is required to be considered whether the present petition can be entertained or not.
7. From the facts including the laboratory test report and the impugned order, which refers to the laboratory test report, the submissions made by learned counsel, Shri Rao that no case for theft of energy is made out is misconceived. The laboratory test report has dealt with the aspect of tampering with the meter in detail with specific observations with regard to the duplicate seal and also the tampering. As the laboratory test report is normally based on examination and analysis of technical aspect, same is considered by the appellate committee. Therefore, it cannot be said that the appellate committee has merely accepted what is stated in the laboratory report. In fact the impugned order passed by the appellate committee refers to the aspect of theft with a specific discussion with regard to the seal and there is a discussion with reference to the laboratory report, which cannot be said to be erroneous. Further the appellate committee naturally has to refer to the laboratory report and could rely upon such report for the technical aspects and has clearly recorded that seals were duplicate when it was compared with the original seal. It has been specifically observed, “During laboratory inspection it has been further found that the meter was lying loose from the affixing screws. Also when all 4meter body seals were inspected in the laboratory, they were found duplicate as the monogram and the wiring were of different size, different shape and different pattern and hence the inspecting officers came to the conclusion that all 4 numbers of meter body seals also duplicate.” It is required to be mentioned at this stage that laboratory test report clearly refers to the mark of duplicate seal also as rightly pointed out by learned counsel for the respondents. Moreover as recorded in the impugned order, admittedly the contract load was 124HP and connected load at the time of checking was 129HP. Further as could be seen from the statement with regard to the method of calculation, the appellate committee has also referred to these aspects both load factor and diversity factor, which does not call for any interference.
8. It is well accepted that in such matters while exercising discretion under Article 226 of the Constitution of India, the Court would be slow and conscious and would exercise the discretion only in the interest of justice when there is a violation of either statutory provision or Rules of natural justice or whether the decision making process is found to be unreasonable. In the facts of the case, when the case for tampering with the meter and theft of energy is normally made out with use of duplicate seal, it is made clear from the laboratory report, which has been relied upon by the appellate committee, it does not call for any interference in exercise of discretion under Article 226 of the Constitution of India.
9. Therefore, the present petition deserves to be dismissed and accordingly stands dismissed. Rule is discharged. Interim relief, if any, stands vacated.
(RAJESH H.SHUKLA, J.) Gautam