Kanaiyalal Laxmishankar Bhatt vs Appellate Authority & Anr

Hemant M. Prachchhak, J

With the consent of the learned counsel appearing for the respective parties, the petition has been taken up for final hearing today.

By way of present petition under Articles 226 & 227 of the Constitution of India read with the provisions of the Electricity Act, 2003 (hereinafter be referred to as "the Act"), petitioner has prayed for the following reliefs :

"(A) To Admit this Special Civil Application.

(B) To quash and set aside the Judgment and Order passed by Learned Electricity Officer under Section 127 of the Electricity Act, 2003 in Appeal No.-06/2008-09.

(C) Any other relief which may be deemed fit be given."

Brief facts giving rise to the present petition are that, on 19.07.2008, an officer of the respondent No.2 - PGVCL came to the residential premises of the petitioner and changed the old meter of the petitioner and took the old meter for checking and also filled up the checking sheet. That, as per the checking sheet dated 29.07.2008, there was some tampering in MMB sea of the meter, but as far as the body seals of the meter were concerned, there was no tampering in those seals and other any part of the meter. That, the respondent had marked in his checking sheet that there was no tampering in body seals of the meter of the petitioner and therefore, it was evident that the petitioner had not tampered with the meter and was not involved in unauthorized use of electricity or theft of the Electricity Supply. That, on 07.08.2008, the respondent had served notice to the petitioner calling upon the petitioner to pay the amount of Rs. 1,24,793.16, within seven days of receipt of that notice. That, the petitioner had given reply to the notice of the respondent on 13.08.2008 and submitted that, as per the checking sheet of the respondent on 29.07.2008, there was tampering on MMB seals of the meter but, there was no tempering on the Body seals of the meter and any other part of the meter and therefore, no unauthorized use of electricity or theft of electric supply was possible even as per his checking sheet. That, thereafter, the respondent had written a letter to the petitioner on 22.08.2008 raising bill of Rs. 1,16,417.93, stating therein that, the petitioner would have to pay that bill within 30 days of receipt of this letter, and the petitioner can file appeal under section 127 of the Electricity Act, 2003 within 30 days, but the petitioner would have to deposit 1/2 amount of the total bill of the respondent. That, therefore, the petitioner deposited the amount of Rs. 58,210 before the respondent on 22.08.2008 and filed Appeal under Section 127 of the Electricity Act, 2003 before the Appellate Authority on 22.08.2009 being Appeal No. 6 of 2008-09. That, vide impugned judgment and order dated 27.02.2009, the Electricity Officer, Rajkot directed the petitioner to pay the bill of 6388 units with double rates.

Being aggrieved and dissatisfies with the impugned Judgment and order dated 27.02.2009, passed by the Electricity Inspector, Rajkot in Appeal No.6 of 2008-09 under Section 127 of the Act, the petitioner has preferred this petition.

Heard Mr. Mrugen Purohit, learned counsel appearing on behalf of the petitioner, Mr. Vaibhav Sharma, learned Assistant Government Pleader, appearing on behalf of the respondent No.1 and Mr. Viral J. Dave, learned counsel appearing on behalf of the respondent No.2 -PGVCL.

Learned counsel Mr. Purohit has submitted that the petitioner is a consumer and he is having residential connection at his premises and the alleged unauthorized use of electricity by the petitioner is without there being any cogent and material evidence, for which, the respondent No.2 has issued supplementary bill, which is illegal and erroneous, however, during the course of hearing, learned counsel Mr. Purohit has submitted that at the time of filing of appeal before the Appellate Authority, the petitioner had already deposited 50% of the bill issued against him and now, the petitioner is ready and willing to pay the remaining 50% amount of the supplementary bill issued by the respondent No.2. So far as the levy of interest and penal charges are concerned, learned counsel Mr. Purohit has urged the same may not be imposed upon the petitioner as neither there was any iota of evidence that the petitioner has misused the electric power nor there was any case of theft of electric power was registered against the petitioner under Section 135 of the Act and no material was found by the respondent and therefore, the impugned order passed by the Appellate Authority be quashed and set aside and the present petition be allowed.

On the other hand, learned counsel Mr. Dave has emphasized upon the affidavit-in-reply filed on behalf of the respondent No.2 and submitted that unauthorized use of electricity by the petitioner was detected and therefore, the respondent No.2 has rightly issued supplementary bill as there was no case of Section 135 of the Act since there was no tampering with the meter was found, however, since the consumption of electricity of more units by the petitioner was established from the record, and under such circumstances, the respondent No.2 was unable to consider the case of the petitioner. He has further submitted that even there is no AMNESTY Scheme is right now available to the petitioner and therefore, he is not entitled for the benefits under the AMNESTY Scheme. Learned counsel Mr. Dave has therefore, urged that appropriate orders may be passed.

I have heard the learned counsel appearing for the respective parties and perused the material placed on record. It is an admitted fact that there was no any material with regard to tampering or any unauthorized use was found and only because of the fact that more units were consumed by the petitioner, on the basis of that, the respondents have calculated the usage of electricity and on the basis of the same, supplementary bill under Section 126 of the Act was issued. From the bare perusal of the affidavit-in-reply, the fact remains that there was no tampering in Body Seals of the meter was found and it is admitted by the respondents that no case of even theft of electricity power under Section 135 of the Act was registered against the petitioner and therefore, under such circumstances, since the petitioner is a residential consumer and in past, no case is registered against the petitioner with regard to unauthorized use of electricity, the willingness of the petitioner to pay remaining 50% of the supplementary bill is required to be considered.

In the result, the present petition is partly allowed. The impugned Judgment and order dated 27.02.2009, passed by the Electricity Inspector, Rajkot in Appeal No.6 of 2008-09 is hereby modified. The petitioner is directed to deposit remaining 50% amount of the supplementary bill issued by the respondent No.2 without any penal charges and interest, within a period of 8 weeks from the date of receipt of writ of this Order. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.

9.1 However, it is observed that in the facts and circumstances of the case, the present order is passed and it should not be set as precedent in any other matter.

Direct service is permitted.