May Corporation vs Gujarat Urga Vikas Nigam Ltd. and Another

K.A. Puj, J.—Special Civil Application No. 12430/02 is filed by the petitioner, praying for quashing and setting aside the order and judgment passed by the Appellate Committee on 9.1.2002 and forwarded by the Chief Engineer on 30.1.2002, whereby the appeal filed by the petitioner was partly allowed and the Respondent Board/Electricity Company was directed to revise the supplementary bill by taking factor-H at 160x24 hours and Factor-C at 0.53 keeping Factor-M unchanged. Since the petitioner has made the full payment as per the statement made by the learned Counsel appearing for the petitioner, Rule was issued on 27.9.2004.

Special Civil Application No. 16513/03 is filed by the petitioner, praying for quashing and setting aside the impugned decision dated 3.10.2003, rendered by the Appellate Committee in Appeal No. A-74/2003. The petitioner has also prayed for quashing and setting aside the revised supplementary bill and further prayed for the refund of Rs. 51,34,293 (Fifty One Lacs Thirty Four Thousand Two Hundred Ninety Three) with commercial rate of interest. This Court has passed the detailed order on 28.11.2003. In this petition the Court has directed the petitioner to pay the remaining amount to the Respondent Board/Electricity Company on or before 12.12.2003 and till that date there would not be any formal disconnection of any electricity supply. The Court has also clarified that on failure, on the part of the petitioner in paying the remaining amount of the supplementary bill, it would be open to the Respondent Board/Electricity Company to take appropriate steps for recovery of the amount as well as disconnection of the electricity supply. The petitioner was also directed to pay the regular bill that may be received by the petitioner for the consumption of electricity supply. Since the petitioner has made the payment of the supplementary bill, Rule was issued by this Court on 11.10.2004.

In Special Civil Application No. 12430/02, the case of the petitioner is that the petitioner is a consumer and is having electric connection bearing Consumer and Category No. HTP-1, HT-10128 and the contract load of the petitioner is 350 HP. The electrical installation of the petitioner was checked by the Junior Engineer, Vigilance, on 22nd May, 2001 during night time at about 1 A.M. During the checking, 2 pairs of PVC rods each of 2.5 meter long were found from the generator room with 2 rods connected in a pair by insulated copper wire. The checking authority, therefore, alleged theft of power. Necessary checking sheet was prepared and joint inspection report was also prepared. The power connection was, therefore, disconnected. Thereafter, Respondent Board/Electricity Company has issued a supplementary bill amounting to Rs. 63,58,772.70. The petitioner deposited 15% of the said supplementary bill and the power connection was restored.

Being aggrieved by the said supplementary bill, the petitioner filed an appeal before the Appellate Committee. The said appeal was numbered as Appeal No. A-77/2001. The petitioner has also submitted detailed written submissions. The Appellate committee after hearing the petitioner, partly allowed the appeal. Though, the petitioner has in great detail, pointed out that there was no reason for issuance of the additional supplementary bill, the Appellate Committee has not considered certain vital points resulting into only partly allowing the appeal.

Being aggrieved by this order of the Appellate Committee, the above petition was filed before this Court.

Mr. Viral Shah, learned advocate appearing for Mr. K.D. Shah for the petitioner has submitted that there is nothing on record to show that the petitioner has committed theft of energy, in any manner whatsoever. He has further submitted that as per the rules the ''Burden of Proof'' lies on the shoulder of the Respondent Board/Electricity Company and the Respondent Board/Electricity Company has miserably failed to establish the case of theft of electrical energy. He has further submitted that merely because some PVC pipes were lying at the premises, it cannot lead to a conclusion that the petitioner was abstracting power directly. He has further submitted that pipes were kept for using the same for grounding or for discharging the transformer. The officers of the board have visited the installation of the petitioner on 21.10.2000 and 5.5.2001 i.e. just before 15 days of the night checking of the instant case. At that time no irregularities were found and therefore, the period prior to the above dates cannot be taken into consideration at all. He has further submitted that the checking authorities have not checked the insulation properties of the PVC pipes and whether they worked on high voltage like 22 KV system. Moreover the said hollow pipes were found far away from the metering system and therefore, it cannot be said that the same were used for abstracting power. He has further submitted that looking to the load factor, the highest consumption and load factor is 0.43. The Appellate Committee is, therefore, not justified in taking the load factor at 0.53. He has further submitted that there were more than 26 staggering holidays. The Appellate committee however, has held that only 13 staggering holidays were there. Even the public holidays were also not taken into consideration by the Appellate Committee. There were many power interruptions during the period, which was also ignored by the Appellate Committee. He has further submitted that the order passed by the Appellate committee, deserves to be quashed and set aside and the excess payment made by the petitioner is required to be refunded.

Ms. Lilu K. Bhaya, learned Counsel appearing for the Respondent Board/Electricity Company, has submitted that the Appellate Committee has taken into consideration all the aspects of the matter and whatever relief that can be granted in favour of the petitioner, was granted. The Appellate Committee has discussed at great length all aspects of the matter and arrived at a just and proper conclusion, which can not be disturbed by this Court, while exercising its writ jurisdiction under Article 226 of the Constitution of India. She has further submitted that the Appellate Committee has considered the nature of theft committed and the evidence to that effect found during the course of checking was also taken into consideration. The Appellate Committee has taken into consideration all the submissions and arguments made on behalf of the petitioner and has given its own finding on all these issues. After considering the nature of the unit, use of power by the petitioner and even on mathematical calculation, on the basis of the consumption previously recorded, the Appellate Committee has decided the load factor-C at 0.53. The Appellate Committee has also taken into consideration the fact of closure of the unit for certain number of days. Though there are 26 staggering days during the chargeable period, looking to the situation and location of the unit and use of electrical energy by the petitioner during night time even on staggering days, the Appellate Committee has given the benefit of 13 days i.e.? of 26 staggering days. The H-factor was taken i.e. chargeable days was taken at 160x24 hours in place of 170x24 hours taken in the supplementary bill. She has, therefore, submitted that this being purely a technical subject and the Appellate Committee has taken a just and proper view in the matter, the petition deserves to be dismissed.

Having heard the learned Counsels appearing for the parties and having gone through the Memo of Special Civil Application, as well as the impugned order passed by the Appellate Committee, the Court is of the view that no case is made out by the petitioner to interfere with the order, passed by the Appellate Committee. It is an admitted position that the electrical installation with contract load of 350 KVA was checked by the officers of the Respondent Board/Electricity Company on 21/22.05.2001 at mid night. It is also an admitted position that the employee of the petitioner was present at the time of checking. Necessary checking sheet and even joint checking report stating the irregularities found in the installation, were prepared at the time of checking and the same were signed by the representative of the petitioner without any protest. During the course of checking there were several irregularities and evidence of theft were found by the raiding party. The irregularities stated in the checking report unequivocally proved that the theft of electrical energy was committed by the petitioner. The petitioner was found to have dishonestly abstracting or consuming the electrical energy without being recorded in the meter. 4 PVC pipes were recovered from the generator room and those pipes were arranged in 2 separate pairs, in such a manner as they could be used for abstracting energy dishonestly. Simply because previous checking was carried out on 21.10.2000 and 5.5.2001 it was not enough to absolve the petitioner from the charge of theft of electrical energy. Earlier checkings were made during day time whereas, the checking in question was made during night time. In absence of any evidence, it cannot be presumed that the checking report was prepared only with a view to create a false case against the petitioner. The Court, therefore, does not find any substance in interfering with the decision of the Appellate Committee, recording its finding that there was sufficient and reliable evidence by which it could easily and safely be inferred that the petitioner was abstracting the electrical energy without being recorded in the meter. The aspect of connected load was also duly considered by the Appellate committee. The connected load at the time of checking was found at 568 HP. Though, the petitioner has contended that the load factor to be taken at 0.43 for the purpose of calculation of the supplementary bill, considering the facts and circumstances of the case and particularly the nature of the unit, use of power and even on mathematical calculation on the basis of the consumption previously recorded, the Appellate Committee has rightly taken the load factor at 0.53.

In view of the above discussion, the Court does not find any infirmity in the order passed by the Appellate Committee. Even otherwise, the controversy raised by the petitioner in this petition centers round the disputed question of facts which cannot be gone into by this Court, while exercising its writ jurisdiction under Article 226 of the Constitution of India.

The petition is, therefore, dismissed. Rule discharged without any order as to costs.

So far as, the S.C.A. No. 16513/03 is concerned, on 10th April, 2003 officers of the Respondent Board/Electricity Company have taken M.R.I. (Meter Reading Instrument) data from the static meter installed at the petitioner''s installation. After having taken the said data, some officers of the Respondent Board/Electricity Company visited the electricity installation of the petitioner on 18th April, 2003 at midnight i.e. 2.30 A.M. At that time one Mr. Farukh Haji working as Supervisor in the petitioner''s unit was present. He was neither an Electrical Engineer nor he has anything to do with the electrical installation of the petitioner''s unit. He was in fact a Packing Supervisor whose function was to supervise the packing of cloth. The officers of the Respondent Board/Electricity Company prepared proceedings in the hand writing while the said supervisor was sitting in corner of the installation. It is alleged that the said supervisor has refused to sign however, the officers of the Respondent Board/Electricity Company threatened that he would be arrested if he did not sign the said proceedings. Ultimately, the said Packing Supervisor having no knowledge of technical expertise in electrical installation, signed the proceedings on 18th April, 2003.

Thereafter, the officer of the Respondent Board/Electricity Company disconnected the electricity supply of the petitioner''s unit on 18th April, 2003 and the meter cable along with the meter box were removed, wrapped and taken away for the purpose of laboratory inspection. On the basis of the above proceedings the petitioner was thereafter, served with the supplementary bill of Rs. 1,02,68,585.40ps and was asked to deposit 50% of the amount if the petitioner wanted the reconnection of the supply. The petitioner, therefore, deposited Rs. 51,34,293/- on 28th May, 2003 and thereafter electricity connection was reconnected.

Being aggrieved by this bill the petitioner preferred appeal before the Appellate Committee. Petitioner has also filed detailed written submissions. Though demanded, one important document going to the root of controversy which is the basis for forming an opinion that there was dishonest abstraction of energy was not supplied to the petitioner. It is further submitted that in absence of M.R.I. report no findings could have been recorded with respect to the alleged theft of electricity. The Appellate Committee has, however, passed an order on 3.10.2003, partly allowing the appeal and directed the Respondent Board/Electricity Company to revise the supplementary bill by taking factor-H as 165x24 hours, factor-C as 0.6, keeping factor-M unchanged. It is this order which is under challenge in S.C.A. No. 16513/03.

Mr. Viral Shah, learned advocate appearing for Mr. K.D. Shah for the petitioner has submitted that the Appellate Committee has committed serious error in law in recording the finding of fact without supplying a copy of the M.R.I. Report, which is a basic document which could not have permitted the petitioner to point out the fact before the Appellate Committee. Considering the data recorded in the M.R.I. Report there could not have been any theft or pilferage of electrical energy in any manner. He has further submitted that the impugned order passed by the Appellate Committee is required to be quashed and set aside on the ground that the petitioner was not given an opportunity to persuade the Appellate Committee regarding there being no theft of electricity as the most important document going to the root of the matter, was not supplied to the petitioner, though demanded specifically nor the said report was taken into consideration by the Appellate Committee while recording a finding of fact against the petitioner. He has further submitted that the Appellate Committee has proceeded to record a finding of theft based on the alleged report dated 18th April, 2003, purported to have been signed by the Manager of the petitioner. The petitioner had placed on record an affidavit of the said Manager before the Appellate Committee in which he has clearly pointed out that he was not a Manager of the petitioner and he was only asked to sign the proceedings drawn by sitting in one corner in the factory. He has further submitted that though the affidavit was produced on record of the Appellate Committee and was relied upon during the course of arguments, the same was not mentioned in the order. On the contrary the finding was recorded by the Appellate committee that the petitioner''s representative himself has admitted the theft of electricity. He has further submitted that the Appellate Committee has not observed rules of natural justice and/or fair play. He has lastly submitted that the order passed by the Appellate Committee is vulnerable, being an unreasoned order without dealing with the contentions raised by the petitioner and is based upon the findings of fact recorded without supplying of the documents which are absolutely irrelevant for arriving at a finding of theft. He has farther submitted that the impugned order passed by the Appellate Committee deserves to be quashed and set aside.

Ms. Lilu K. Bhaya, learned advocate appearing for the Respondent Board/Electricity Company, on the other hand, supported the order passed by the Appellate Committee and submitted that the Appellate Committee has granted partial relief after considering the facts and circumstances of the case. She has further submitted that the Appellate Committee has considered all the aspects of the matter and arrived at a just and appropriate conclusion after proper appreciation of facts and evidence on record and hence no interference is called for, while exercising the writ jurisdiction of this Court under Article 226 of the Constitution of India.

Having heard the learned advocates appearing for the parties and having considered their rival submissions in light of the averments made by the petitioner and impugned order passed by the Appellate Committee, the Court is of the view that the Appellate Committee has taken into consideration all the aspects of the matter and arrived at a just and fair conclusion and there is no need to interfere in the said order. In this case also there are certain admitted facts, the Junior Engineer, Vigilance of the Respondent Board/Electricity Company has checked the petitioner''s installation on 18.4.2003. The laboratory inspection report clearly shows that on testing the meter, cable and the attached magnate were found. The petitioner had made a permanent arrangement by using magnate which could decrease the recording of consumed electricity in the meter. Thus, the said report confirms the finding that the theft was made by the petitioner. The statement recorded on 18.4.2003 at the time of checking, was also very material. There was an installation of static meter of a make of 1 & T. The meter cable was also connected to it and at the distance of few meters, from the MMB, extra substance was attached to the cable with the use of PVC Tag. During the course of checking, the magnate was removed and the result was taken on the display. It was admitted during the course of checking that the petitioner used to play mischief with the meter by attaching a magnate with the cable. The petitioner was consuming more energy then what was actually being recorded in the meter. The statement further indicates that a permanent arrangement was made by attaching magnate with the cable and there by committing pilferage of the energy. The Appellate Committee has, therefore, rightly come to the conclusion that on the basis of this evidence there was no need for further confirmation of the fact that pilferage or theft was committed by the petitioner. After establishing the issue regarding theft, the Appellate Committee has considered the issue of connected load i.e. factor-M, during the course of checking it was found 747.2 KVA. Here also the Appellate Committee has taken 13 staggering days, looking to the unit being dyeing, textile and working even during night time. Considering the Diwali holidays and public holidays the Appellate Committee has given the benefit of 5 days and hence after giving deduction of 18 days, out of 183 gross chargeable days, 165 gross chargeable days were considered. The Appellate Committee has also decided the factor-C by considering connected load, nature of the industry, working hours of the unit and the modus operandi of supply as well as consumption patern and accordingly it was taken as 0.6.

In view of the above discussion, the Court is of the view that there is no infirmity in the order passed by the appellate Committee. The petitioner has also failed to point out any worthwhile defect in the order passed by the Appellate Committee. The petition, is, therefore dismissed.

Rule is discharged without any order as to costs.