1. Leave to correct the title of respondent no.1 as “now Dakshin Gujarat Vij Company Ltd., through Deputy Engineer, SubDivision Pandesara, District Surat”.
2. The present petition has been preferred by the petitioner for challenging the legality and validity of the order passed by the appellate committee and the revised bill issued pursuant thereto by the respondent Electricity Board, now Dakshin Gujarat Vij Company Ltd.
3. The short facts are that the petitioner was having electricity connection of consumer category no.05204/01010/6. On 22.06.2002, the officers of the respondent Board visited the unit of the petitioner and inspected the electrical installment and it was found that the seals of the meter body were not at place where they were supposed to be, but they were lying down. Thereafter, the report was made and the meter was sent for laboratory testing. As per the report dated 08.07.2002 (AnnexureB), it was found that the seals were broken on account of rusting and there was no tampering in the seal nor any mark on the female part of the seal was found. It was also found that the reverse lock was not working. Otherwise, everything of the meter was found in OK condition. In the meantime, supplementary bill was issued of Rs.3,29,291.57 ps. The petitioner preferred appeal before the appellate committee and the appellate committee as per the impugned order dated 26.11.2002, rejected the contention of theft of electricity but partly considered the aspect of chargeability on Factor D and accordingly allowed the appeal preferred against which the petitioner has approached before this Court by way of the present petition.
4. I have heard Ms.Sudha Gangwar, learned counsel appearing for the petitioner and Mr.Sinha, learned counsel appearing for the the then Electricity Board, now Dakshin Gujarat Vij Company Ltd. as per the amendment granted.
5. The inspection report is at AnnexureA and as per the inspection report, it was found that the seal was in broken condition and therefore, the meter box was open and both the seals of the meter body were lying inside the box. If the aforesaid aspect is considered with the laboratory report, it is found in the laboratory report at Annexure B that the seal wires were broken on account of rusting. It was also found that when both the original seals were examined with monogram on the female part of the seal, no marks were found. Everything was found OK in the meter and except that the reverse lock was not working. If the seals have fallen down on account of rusting of the seal wire, it cannot be said that there was any tampering unless any marks were found of tampering in the laboratory report. The laboratory report shows that no marks were found when the seals were examined from inside. Such if considered by the normal prudence, it would show that the seals on account of the rusting of the wire had fallen down and they were also found inside the meter box. Had it been a case where any marks were found on the female part of the seal, for tampering or otherwise, the matter may stand on different footing. Therefore, it appears that the findings recorded by the appellate committee that MMB seal wire was found broken and the seal was kept hanging on MMB and therefore, the tampering was made is perverse to the evidence of the laboratory report.
6. It is true that the reverse lock was not in working condition but merely because reverse lock was not in working condition one could not presume that the meter was reversed or the reading of the meter was reversed. To reach to that conclusion, one may have to compare the consumption of electricity in normal course for finding whether any reverse reading is made or not. The Laboratory report shows that the meter was completely found in OK condition and there was no tampering whatsoever. No exercise is undertaken by the appellate committee that in what manner the finding could be arrived at that the petitionerappellant therein might have extracted electricity. Even the finding of using the word “might have” conveys contrary meaning than that of a definite conclusion of “theft or otherwise”. Therefore, under these peculiar circumstances, it appears that the finding arrived at for theft of electricity by the appellate committee is perverse to the record and if the report of the laboratory is considered which is an expert body, it shows that it is on account of rusting of the wires, the seals were broken and had fallen and were found inside the meter box. No basis whatsoever is found for coming to the conclusion that nonworking of the reverse lock is by way of misuse of the meter or otherwise.
7. Therefore, it appears that the finding being perverse to the record, i.e., contrary to the record and no material available for taking the basis of nonfunctioning of the reverse lock, it can be said that the appellate committee has committed error apparent on the face of record which may call for interference of this Court under Article 226 or 227 of the Constitution.
8. Mr.Sinha, learned counsel appearing for the respondent relied upon the decision of the Apex Court in the case of J.M.D. Alloys Ltd. and Ors.
v. Bihar State Electricity Board and others reported at 2003(5) SCC 226 and contended that this Court would not sit in appeal against the decision of the appellate committee where a fact finding inquiry is undertaken and therefore, he submitted that when the body of expert has found the case of theft of electricity, no interference may be made by this Court under Article 226 of the Constitution.
9. It may be recorded that even in the said decision upon which the reliance has been placed by Mr. Sinha, the Apex Court at paragraph 16 had found that the Chief Engineer has taken into consideration the relevant factors and the finding recorded by him were clearly borne out from the material available before him. (Emphasis supplied). It was also found by the Apex Court that the order passed by him (Chief Engineer) cannot be said as unreasonable or perverse in any manner. Therefore, the Apex Court found that the view taken by the High Court under Article 226 of the Constitution calls for no interference.
10. As observed earlier, it is not a matter where the findings recorded is borne out from the material available nor it can be said that the order is not perverse. On the contrary, as observed by earlier, the finding is contrary to the record so far as seals are concerned and the finding is without their being any material so far as nonfunctioning of the reverse lock is concerned. Under the circumstances, it can be said that the order is perverse. Therefore, the said decision is of no help.
11. The matter could have been considered for remanding the matter to the appellate committee. However, Mr.Sinha, learned counsel appearing for respondent Electricity Company submitted that after the enactment of new Electricity Act of 2003, the appellate committee is no more functioning. Under these circumstances, I find that no useful purpose would be served in remanding the matter more particularly when as per the laboratory report, the position is clear for detachment of the seal on account of rusting of the seal wires and no material is produced even before this Court for coming to the conclusion that nonfunctioning of the reverse lock is misused or otherwise.
12. In view of the aforesaid observations and discussions, the impugned decision of the appellate committee and the revised bill pursuant thereto are quashed and set aside.
13. It has been stated by the learned counsel for the petitioner that the full amount has been deposited pursuant to the impugned order passed by this Court. If the amount is already deposited, the same shall be refunded or in alternative, credit will be given to the petitioner in the electricity bill in accordance with law within a period of one month from the receipt of the order of this Court.
14. Petition is allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) *bjoy