Gujarat Minerals Grinding Industries vs Madhya Gujarat Vij Company Limited

Rajesh H. Shukla, J.—The present petition has been filed by the petitioner under Articles 14, 19 and 226 of the Constitution of India and under the provisions of the Indian Electricity Act, 1910 and also under the provisions of the Electricity (Supply) Act, 1948 for the prayers inter alia that appropriate writ and direction may be issued for quashing and setting aside the impugned order dated 21st July, 1999 at Annexure-A passed by the appellate committee and also to quash and set aside the supplementary bill declaring it to be illegal. Heard learned counsel, Shri Ketan Shah for the petitioner and learned counsel, Shri Hemang Raval for learned counsel, Shri A.D. Oza for the respondent.

Learned counsel, Shri Ketan Shah for the petitioner has referred to the papers including the order at Annexure-A and submitted that the appellate committee has passed an order without appreciating the contentions raised by the petitioner and has come to a conclusion about the theft of energy on the basis of the laboratory test report showing that the seals are tampered. However, he referred to the papers and submitted that the petitioner is having high tension connection and the petitioner himself had clearly pointed out about the meter. He submitted that the objections were raised by the petitioner by communications dated 04.12.1998, 22.012.1998 and 28.12.1998. He referred to the laboratory test report produced on record at Annexure-H and submitted that as it is recorded, the objection has been raised at the time of meter testing and it was also specifically stated that the electric testing of the meter is not made, which is load testing for the purpose of examining whether the excess load has been extracted. He has also referred to other papers and submitted that even the laboratory test report does not indicate as to how it is manipulated for the purpose of any benefit. Learned counsel, Shri Shah referred to Annexure-D, which is an appeal before the appellate committee and submitted that in detail, the petitioner has shown consumption pattern and it would reveal that there is no such attempt to reduce the bill by unauthorized extraction of the energy. He submitted that if there was any such intention to get benefit, the amount of bill would not have remained almost constant. He pointedly referred to the table to support his submission. He has therefore submitted that the present petition may be allowed as the appellate committee has failed to consider the relevant aspects and the contentions raised. In support of his submission, he has referred to and relied upon the judgment of the Hon''ble Apex Court in case of Punjab State Electricity Board and Another Vs. Ashwani Kumar, and emphasized the observations made in para No. 9.

Learned counsel, Shri Rawal referred to the papers and submitted that as could be seen from the laboratory test report as well as the order of the appellate committee, admittedly the seals have been tampered with. He read the order as well as the laboratory test to emphasize about tampering with the meter. He therefore submitted that it would clearly make out a case of theft energy. He has also referred to the Annexure-E which is a rojkam. He therefore submitted that the petitioner has not said as to why anybody should play mischief with his meter.

In rejoinder, learned counsel, Shri Shah submitted that the petitioner is the only person with high tension connection and, therefore, his meter would be outside, whereas there are other industries with law tension and, therefore, their meters are inside the premises. He further submitted that the people of the area had objection and even they had also filed Public Interest Litigation. Learned counsel, Shri Shah submitted that in fact, the application was given immediately by the petitioner to the Vigilance Cell produced at Annexure-G and therefore, it cannot be said that it is an afterthought to make out any ground. He has also referred to Annexure-G. He has tried to explain that there is no method or malpractice because seals are about to tamper and the presumption is made but it could be done by somebody as the meter was outside. He again stated that in the facts of the case when the people around the area had grievance, someone would have played mischief, for which, he cannot saddle with the liability.

In view of these rival submissions, it is required to be considered, the present petition can be entertained or not.

From the facts as it transpires, there is no doubt that the laboratory test report has recorded that there is tampering with the seals. However, it is also not specifically pointed out as to the method, by which, unauthorized load is extracted. The petitioner had raised objection and demanded for the load testing of the meter, which is not carried out. Further the consumption pattern also do not suggest much variation. Therefore if there was an intention of theft of energy for any change or connection then after the detection, consumption pattern could have shown difference or the variance, which is not found in the present case. Further the laboratory test report is to be accepted at the face value, it does not refer to any method or any malpractice for the purpose of extraction of energy. On the other hand, there is a specific case of the petitioner that since the meter is outside and people around the area had grievance, somebody could have played mischief. Public Interest Litigation is also said to have been filed before the court, which supports the contention raised by the petitioner. It is in this background, the fact that the seals are not in order by itself may not be sufficient to come to a conclusion about the theft of energy unless there is prima facie material suggesting such theft of energy. Further the theory of theft of energy even if same is presumed, once the seal is found to be tampered with, a probable and plausible explanation which has been offered by the petitioner is also required to be considered.

Therefore when the powers are vested with the authority, it has to be exercised in a reasonable manner, which justifies such exercise of power. The court is conscious that normally in exercise of discretion under Article 226 of the Constitution of India, the Court would be slow and since these are the technical aspects, the court may not go into much detail. However at the same time, the Court is under an obligation to exercise judicial review of the action or decision or decision making process to find out whether the decision making process is just, proper and reasonable. In the facts of the case therefore, the decision which has been arrived at cannot be said to be just and reasonable in the facts of the case and the conclusion which has been arrived at cannot be sustained. Therefore, the present petition deserves to be allowed. In the circumstances, the present petition stands allowed in terms of Para No. 7(A). The impugned order passed by the appellate committee at Annexure-A dated 21st July, 1999 is hereby quashed and set aside. The supplementary bill issued based on presumption about the theft of energy is also hereby quashed and set aside. Rule is made absolute to the aforesaid extent.