GUJARAT ELECTRICITY BOARD vs BABABHAI DOSBHAI MANSURI

THIS appeal has been filed by Gujarat Electricity Board and its Executive Engineer who were Opponents in the complaint filed by the Respondent For the sake of convenience we will address the parties as complainant and Opposite Party. The complainant was having an electrical connection for running his flour mill allegedly from the year 1965. It appears that the consumer number is 408 having sanctioned load of 10 H.P. It appears that on 18.10.88 his supply has been disconnected on the alleged ground that the complainant was committing theft. there were, exchange of notices and after waiting for little longer time the complainant made a complaint before the District Forum in October, 1990.

THE opposite party has filed its version and admitted that the complainant was their consumer. But according to the opposite party the complainant has right to get supply on observing the rules and regulations made by the Company. THE complainant has, according to the Board committed theft and hence his energy was disconnected on 18.10.88 after checking was made. THE complainant was further given ABCD bill and since the bill was not paid by him the opposite party has not restored the supply. THE District Forum has observed that the Deputy Engineer was member of the checking squad which visited the Illol village and the building of the complainant where the flour mill is situated. While checking the meter and the apparatus the Deputy Engineer came to the conclusion that the complainant had tampered with the meter seals and he had therefore a suspicion (hat the complainant had committed pilferage and theft. In order to prove these facts, according to the District Forum, the Deputy Engineer has tried to make a panchnama on paper which has been produced at Exh.14/2. Reading the panchnama the District Forum came to the conclusion that while executing the panchnama the first step required to be taken is to call two panches, inform what they are supposed to do, their names and addresses are to be noted. THE expert will reveal all aspects of the matter and will note down the observation of the panches and thereafter their signatures are taken. Whereas in the instant panchnama on Exh. 14/2 name of the panches have not been mentioned. After whole panchnama was recorded the panches refused to sign the same and, therefore, they are relying upon this panchnama not as a panchnama but as a ''rojkam'' i.e.'' the procedure adopted by a Deputy Engineer. THE District Forum observed that the Deputy Engineer had merely taken signatures of the Board employees only which has resulted into fiasco of the panchnama. Even though the panchnama was recorded their names and description have not been written. THE Board has not produced the affidavit of the employees of the Board in support of its case. THErefore the District Forum came to the conclusion that the panchnama was one-sided, arbitrary and illegal. THE Deputy Engineer could have made this panchnama next day bay calling other panches. THE District Forum has, therefore, believed the case of the complainant and passed the order for restoration of electrical energy with Rs. 100/- as token damages and Rs. 100/- towards cost. The following questions arise for our consideration. 1 When the inspection squad visits the local premises of a consumer and finds that Unseals have been tampered and suspicion arises as to whether the consumer has tampered with the seals with the intention to commit theft what procedure should be adopted? 2. If the panches are not ready to sign the panchnama what should be done? 3. Whether the Board has a right lo disconnect the supply if the officer finds that the seals are tampered with?

Whether the Board is able to prove that the seals were tampered with?

WHETHER the Board has a right to disconnect and/or refuse restoration in the aforesaid circumstances. 4. We know that there is large scale theft which one can ascertain from the figures of line losses. Therefore it cannot be ruled out that there is no theft of electrical energy with the result that honest consumers are required to pay more charges. We therefore do not rule out the possibility of theft.

We are also of the opinion that merely because there was no panchnama obtained in the instant case the District Forum cannot jump to the conclusion that the suspicion of the Deputy Engineer was wrong.

However it may not be forgotten that a mere allegation cannot take the place of evidence. In a country where there is a rule of law prevails and particularly when you are taking a step to interfere with the rights of the opposite party, not only the rule of law but also the prudence requires that before such a drastic step is taken there should be sufficient material before the Board to disconnect the supply which was the livelihood of a poor person. The evidence regarding the testing of the meter seals does not establish that there was a theft. The Board had all the materials with it viz. past bills, experts and the persons who had actually sealed the meter. Even if the Court comes to the conclusion that there was some theft the Court has to justify that the ABCD bill given was based upon the valid assumption. How that bill has been made, we do not know. We had adjourned this matter once to enable Mr. Lakhani, the learned Advocate of the Board to produce the past bills and the bills for 6 months period prior to the theft. We could have compared these bills and could have found out as to whether the electricity consumption of the complainant during last six months was much below the normal consumption. It can be an indication regarding the theft. Again, the Deputy Engineer could have been examined. An affidavit has been filed by the Deputy Engineer wherein he has stated only that the complainant was found committing theft of energy and, therefore, the Board has prepared the ABCD bill and since the payment was not made the energy was disconnected. To our opinion this affidavit does not throw any light as to how the Deputy Engineer came to the conclusion that the complainant was committing theft of energy. Assuming for the sake of argument that the two seals were found to be hollow unless it is explained by the Deputy Engineer that it was possible for the consumer to commit theft of electricity on account of these two seals having found to be hollow, it is not possible to jump to the conclusion that he was committing theft. There is also an evidence on record of the representative of the complainant that two seals were hollow but nobody has stated anywhere that merely these two seals were hollows, it can be said that the complainant has committed theft. The evidence to our opinion is not sufficient to come to that conclusion. Since we are not in a position to take a firm view whether there was a theft or not, we are of the opinion that the case should be remanded to the District Forum. But till it is proved that the complainant has committed a theft, it is neither just nor equitable to deprive the complainant from the use of electricity. We therefore are of the opinion that the Board should restore the electrical energy of the complainant by taking further protection so that he cannot commit any theft and till the complainant makes the payment the Board may not disconnect the energy.

WE have no advantage of the arguments of the learned Advocate of the Board since he has not remained present yesterday and also today. Further there is a defect so far the ABCD bill is concerned. The ABCD bill given to the complainant for payment estimates the consumption at 9185 units and deducting the units already recorded which are 2731, the Board has considered 6454 as theft of electricity. This again is based upon 171 days (Nos. of hours of past six months) 24 which comes to 4104 hours and contracted load 10 H.P. We are unable to understand as to how this estimate of units has been arrived at. This bill has not been explained by the Deputy Engineer in his affidavit. There is no enough material even for the consumer to understand how the assumption has been made. Therefore the only solution to this problem is to remand the matter for fresh hearing after giving opportunity to both the parties to produce proper evidence. We are of the opinion that the Board should restore the energy but we cannot compel the Board to do the same. In case the Board does not restore the energy the complainant will be entitled to damages which he suffers on account of non restoration of energy for which also, the complainant can produce evidence before the District Forum.

WE would have directed the Board to restore the connection but we find that on account of limited scope of Section 14, we have not thought it fit to give such direction. So far the cross appeal and CMA No. 6/92 is concerned, since we have remanded the matter to . the District Forum, the question of cross appeal does not arise. The complainant can agitate the same before the District Forum. ORDER The appeal is allowed. The findings of the District Forum is set aside and the matter is remanded to the District Forum to decide in accordance with law after giving opportunity to both parties to produce evidence. Since the appeal is allowed and remanded the complainant can agitate his grievance of compensation. Civil application is disposed of accordingly. WE hope that the Board will restore the energy supply unconditionally to avoid future complications. Appeal allowed, Complaint remanded.