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Article 226 in The Constitution Of India 1949
The Electricity (Supply) Act, 1948
Section 49 in The Electricity (Supply) Act, 1948
Municipal Corporation Of Delhi vs Ajanta Iron & Steel Co. (Pvt.) Ltd on 28 February, 1990
Express Hotels Private Limited vs State Of Gujarat & Anr on 2 May, 1989

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Gujarat High Court
Banuma Polytex Ltd. vs Gujarat Electricity Board And ... on 21 March, 1995
Equivalent citations: (1996) 1 GLR 57
Author: N Mathur
Bench: N Mathur

JUDGMENT

N.N. Mathur, J.

1. Rule.

2. Mr. Tushar Mehta, waives service of Rule for the respondents. In view of the fact of the case and urgency in the matter, Rule is taken up for final hearing.

3. The petitioner by way of Spl. C.A. under Article 226 of the Constitution of India, seeks to challenge the supplementary bill dated 18-1-1995 for Rs. 42,96,035.80 paise issued by respondent-Electricity Board in respect of petitioner's unit at Karannagar. The petitioner further seeks declaration that the action of the respondent-Gujarat Electricity Board in disconnecting the electric power supply to the petitioner's unit at Karannagar is illegal and malafide and further direct the respondents to forthwith reconnect the supply of electricity to the said unit.

The facts culled out from the pleadings of the parties are that the petitioner company is engaged in manufacture of Polyester Texturised Yarn. The major part of the company's product is exported. The sale turn-over for the year 1993-94 was to the tune of Rs. 17.39 crores. The unposted turn-over during the current year upto March, 1995 is expected to be over Rs. 20 crores. The petitioner is being supplied electric energy by the respondent Gujarat State Electricity Board. The contract demand for the Karannagar Unit is 475 KVA. The monthly average bill for Karannagar unit for the consumption is of Rs. 2 lakhs.

4. On 17-1-1995, a F.I.R. was lodged at Police Station, Kadi by one D.B. Singh, Manager of the petitioner company stating that he was informed by one Shri L.C. Pande, Senior Supervisor that in the morning at about 4.30 hrs. Ex. Supervisor Lakhansing had entered in the factory from behind jumping from the Varandah and attempted to break the meter of electricity installed in the factory. He tried to chase him alongwith Mangalsing but he jumped over the varandah on the back side and ran away. The meter box and the seal were found broken. It was also stated that Lakhansing was working as Supervisor in the factory since last l 1/2 years and as he was causing loss to the factory he was removed from the service a day before. Petitioner-company also sent written information to respondent No. 2 - Executive Engineer, Gujarat Electricity Board, Kadi. On 18-1-1995, a team of officers of the Gujarat Electricity Board, visited the factory premises. They found the meter working properly and MD meter seal and the terminal block seal were found intact. The electronic meter installed in parallel was found intact.

5. The petitioner has also narrated earlier incident perhaps in order to show malafide on the part of the respondent. It is alleged that on 22-4-1994, two people from Gujarat Electricity Board, Kadi, scaled the back wall of the factory and checked the installation claiming that the theft of energy was being committed. Consequently, supplementary bill for Rs. 42.12 lakhs was raised and the power supply was disconnected by Gujarat Electricity Board. On suit filed by the petitioner, the 3rd Joint Civil Judge (Senior Division), Mehsana, by order dated 18-5-1994 directed the petitioner to deposit Rs. 7 lakhs and the respondent Gujarat Electricity Board was directed to reconnect the power supply. Aggrieved by the said order, the Gujarat Electricity Board preferred Appeal against the order before this Court wherein the petitioner was further asked to deposit additional amount Rs. 3 lakhs and the Board was directed to reconnect the power supply. Said Appeal From Order is still pending before this Court. The supply was restored on 23-6-1994. The Board replaced the mechanical meter on their own. In August 1994, the petitioner company received two anonymous letters threatening to damage the electrical installation. The matter was reported to the police as well as to the Board. In September, 1994, the computerised electronic meter was installed in parallel to the existing mechanical meter. The joint inspection report dated 18-1-1995 is placed on record as Annexure 'D'.

6. The petitioner is having another unit at GIDC Estate, Kadi. It is also stated by the petitioner that on 13-1-1995, the officers of the Gujarat Electricity Board visited Kadi unit and examined the installation there. The seals placed outside the meter box were intact and the meters were working normally. However, they informed the petitioner that internal seals though intact were not normal and they would take the meter for further investigation. On 16-1-1995, in the investigation carried out by the Gujarat Electricity Board Laboratory at Kadi', it was again confirmed that the outside seal was all right and the meter was running normally. However, it was indicated that the inside seal appeared to be tampered. On this ground, they disconnected the power supply of the Kadi unit and raised supplementary bill dated 6-1-1995 for Rs. 18,12,113.26 paise. The petitioner has challenged the said supplementary bill by Special Civil Application No. 820 of 1995, which is also being disposed of today by a separate order.

7. Mr. M.G. Chaudhary, Executive Engineer (O and M) working at the Division office of the Gujarat Electricity Board at Kadi, District Mehsana, has filed counter-affidavit controverting the allegations made in the petition. With respect to the filing of the FIR regarding incident of 17-1-1995, it is stated that the story of ex-employee tampering with the installation is a cooked up story by the petitioner only to hide large scale theft committed by it, knowingly and willingly and with a view to escape from the consequence which was bound to follow at the detection of theft. The further say of the respondents is that on 13-1-1995, another factory premises of the petitioner at GIDC Estate, Kadi, was raided and large scale illegality was detected by a checking squad. The petitioner was apprehending that another factory may also be checked and therefore concocted the story including lodging of F.I.R. and information to G.E.B. It is further stated that there is contradiction in the version given by the petitioner before the police as well as before the Board and the facts stated in the memo of petition before this Court. On 17-1-1995, the respondent received communication as stated by the petitioner. Thus, the officers of the Board visited the factory premises on 18-1-1995 and prepared the report which has been placed on record by the petitioner as Annexure 'D'. It is also stated that the report clearly shows that this is clearly a case of theft of electricity and no outer seals and body seals were found to be in existence and the dial on which the consumption is recorded there were scratching marks. This suggests that having removed the upper portion of the meter manually, the petitioner was changing recording of the meter. The Gujarat Electricity Board has also offered to demonstrate the modus operandi of the petitioner in committing the theft of electricity by producing electricity meter, which will show that without touching the seal which was found to be intact, theft can be committed.

8. Mr. R.P. Bhatt, learned Senior Counsel for the petitioner contends that the supplementary bill raised for Rs. 42,96,035.80 paise and the disconnection of power supply is arbitrary, malafide and illegal. Since September 1994 both the mechanical as well as electronic meters were running in parallel and were recording identical readings and all the relevant seals and meters were intact. Even on 18-1-1995 both the meters were showing identical readings. Thereafter, there was no scope to pilferage of the energy. It is further contended that the average monthly consumption of the power of the petitioner at Karannagar unit is only to the tune of Rs. 2 lakhs and as such subject supplementary bill on its very face is highly inflated. It is further contended that before disconnection no notice whatsoever was given to the petitioner and therefore, there is violation of principles of natural justice. He placed reliance on the decision of the Supreme Court (Municipal Corpn. of Delhi v. M/s. Ajanta Iron and Steel Co. Pvt. Ltd.). The next contention of the Learned Counsel for the petitioner is that if power supply is not restored, serious prejudice and loss would be caused to the petitioner inasmuch as the petitioner will not be able to fulfil its export commitments as well as supply order on hand from the domestic market.

9. Mr. Tushar Mehta, Learned Counsel for the respondent-GEB, has raised preliminary objections with respect to the maintainability of the present Special Civil Application. It is contended that as to whether the theft of electricity is committed or not is essentially a question of fact which can be properly adjudicated by the Appellate Committee of the Gujarat Electricity Board. It is stated that the Gujarat Electricity Board is a Board constituted under Section 5 of the Electricity (Supply) Act, 1948. As per statutory provision of Section 49 of the Electricity (Supply) Act, 1948, the Board is entitled to prescribe terms and conditions subject to which the Board may supply electricity. The Board has in exercise of statutory powers prescribed such terms and conditions which is also part of the contract between the Board and the Consumer. Condition No. 34 provides that an officer of the Board has reason to believe that the consumer who is committing theft of the electricity, the Board is entitled to discontinue the supply of the electricity and can serve supplementary bill in accordance with the formula prescribed in the said condition. Said statutory condition also provides that if the consumer is aggrieved by the action of the Board, the consumer can prefer Appeal before the Appellate Committee of the Board after depositing the amount as per the said formula. Mr. Tushar Mehta, Learned Counsel for the respondents-GEB, states that said condition No. 34 has been held to be constitutionally valid in the case of Patel Purshottamdas Vanmalidas v. Gujarat Electricity Board, reported in AIR 1987 Gujarat 188: [1987 (1) GLR 637]. Mr. Mehta has also brought to my notice the unreported decision of this Court in case of Bajrang Castings Private Ltd. v. Gujarat Electricity Board, wherein C.K. Thakker, J. held that in view of the alternative remedy by way of appeal the petition under Article 226 of the Constitution of India is not maintainable.

10. Mr. Bhatt, learned Senior Counsel, submits that alternative remedy will not come in way to grant the relief where the action complained of is in disregard to the principles of natural justice. Advancing the contention, it is submitted that the electricity was disconnected without prior notice, even prior to raising of the supplementary bill. He further submits that looking to the personal malafides on the part of the respondents, it is a fit case in which the petitioner be not relegated to alternate remedy.

11. I have considered the rival contentions and in my opinion, the preliminary objection raised by the Respondent-GEB, deserves to be upheld. Before arriving at the conclusion to uphold the preliminary objection, I have carefully gone through the inspection report dated 18-1-1995. I have also permitted the demonstration of the meter in presence of all persons concerned in order to appreciate the allegations and the contents of the report. On the meter there is a glass shield over the dial and it is secured by affixing seals. The seal on glass shield is intact, but four sealing screws on the meter body are not available. It is shown to me that without disturbing the seal affixed on the glass shield, the upper portion of the meter can be manually removed, in case body seals and outer seals are broken and with the help of small screw-driver needles can be moved adjusting to show less consumption of electricity. Thus, I am not impressed with the contention that as seal on glass shield is intact, there are no chances of tampering with the meter. The presence of scratching marks on the dial is of evidentiary value. Suffice it to say that prima facie, operation of such modus operandi in committing the theft of electricity cannot be ruled out. Whether such modus operandi was adopted or not in the present case is purely a question of fact, which can be better appreciated by the Appellate Committee consisting of technical experts. Similarly, I am not impressed with the contention that a prompt F.I.R. was lodged regarding the alleged incident of ex-employee Lakhan Singh attempting to break the meter and subsequently confessing the guilt. I am also not impressed with the allegation that false case has been foisted against him, because officers of the Board demanded illegal gratification by calling the Director of the Company at his residence and demand having been not accepted. The petitioner has not disclosed the name of that officer who made demand of the illegal gratification. Petitioner would have done service to GEB and the society by disclosing the name of such corrupt officer, instead of making vague allegations. Presence of such corrupt officers cannot be ruled out, at the same time hypothesis that petitioner might be earlier managing with such corrupt officers for years for securing conserative Bills, and for reasons best known to them, subsequently the arrangement might have broken cannot be ruled out. Thus, such allegations are matter of investigation and be entertained in a petition under Article 226 of the Constitution. The modus operandi, filing of false F.I.R., immediate confession of Lakhan Singh in line with the case of the petitioner, coupled with admitted fact that meter seals were found missing may form chain of circumstances leading to inference of the guilt of theft of electricity. Even single circumstance like missing of seals may be considered sufficient. It is for the appropriate authority entrusted with the task of investigation of such facts to deal with and determine the issues, on appreciation of evidence with their experience and the technical knowledge in the field.

12. In the present Special Civil Application, number of disputed questions of facts are involved. Firstly, as to whether version given by the petitioner is correct or concocted as stated by the respondent. Secondly, whether or not, the petitioner has tampered with the meter. Thirdly, whether the electronic meter which is installed in the series to the tampered meter has recorded consumption which is recorded by tampered meter. It may be stated that the say of the respondent with respect to the electronic meter is that it was installed on experimental basis at several instrumental units having high tension power since the Board wants to observe the utility of such meters from the view point of the theft of energy. It is also stated that the meter works out the electronic circuit and if any consumer gets a design, he can prepare remote control device easily and if the circuit is same in all the electronic meter, the same remote control can be used by all the consumers where such electronic meters are installed. It is also submitted that such remote control can be made for expense of Rs. 500/- or so. Thus, there are not only disputed questions of fact but also complicated technical questions involved in the present Special Civil Application. It is settled law that petition under Article 226 of the Constitution is not an appropriate remedy to determine the disputed questions of fact involved technical considerations. Moreover, in view of alternative remedy provided under the conditions of supply of approaching the Appellate Committee of the respondent-Board for ventilating the grievances, the petitioner is required to be relegated to the said remedy.

13. So far as the contention that the action of disconnection of electric supply without notice is concerned, it has no force. Petitioner has placed reliance on the decision of the Apex Court in Municipal Corporation, Delhi v. Ajanta Iron and Steel Co. Pvt. Ltd., . In that case, notice was found to be condition precedent in view of condition No. 36 between Delhi Electric Supply Co. and the consumer with regard to supply of electricity. However, in the present case, there is no requirement of notice under condition No. 34 which is a part of contract between petitioner and respondent-GEB. Condition No. 34 reads as follows:

34. Payment of energy dishonestly used or abstracted or maliciously wasted or diverted:

Where it is established to the satisfaction of Board's officer that a consumer has dishonestly abstracted, used, consumed or maliciously caused energy to be wasted, or diverted, the value of the electrical energy thus abstracted, used, consumed, wasted or diverted shall be assessed by such officer for the past six months' period or the actual period from the date of commencement of supply, whichever is less, in the manner specified hereinbelow and the value of energy so assessed shall be collected by including the same in the next bill or by a separate bill. Such amount shall always be deemed to be the arrears of electricity dues for all purposes:

Provided that the value of the electricity energy so assessed to have been abstracted, used, consumed, wasted or diverted shall be subject to review by the Appellate Authority on the representation/appeal being filed by the consumer in the manner stated hereinbelow:

Provided further that in the case of a consumer detected to have committed or to have been committing pilferage of energy, in addition to his liability to pay the amount towards the value of the electrical energy assessed to have been pilferred as computed in the manner specified hereinbelow (subject of course to the appeal to the Appellate Authority in regard to the quantum of energy so assessed, the power supply to such consumer shall be disconnected and shall be kept disconnected for a period of 30 days from the date of disconnection of power supply on the ground of pilferage of energy subject to review by the Review Committee at the Head Office of the Board or until minimum amount specified hereinbelow is paid against the energy so assessed, whichever is later and the authority of such disconnection may be exercised by the Board at any time, but generally as soon as possible, after the detection of pilferage of energy.

Subject to provisions of the second proviso hereinabove, when a consumer on first occasion is found wasting directly using/abstracting/consuming energy dishonestly or maliciously, is aggrieved by the assessment made by the Board's officer in respect of the monthly quantum of energy deemed to have been consumed and/or the period considered therefore, he shall pay an amount equivalent to 30% of the value of the energy so assessed before the supply is reconnected. However, the consumer on second or subsequent occasion is found wasting, directly using/ abstracting/consuming energy dishonestly or maliciously he shall have to pay full amount of the energy so assessed before the supply is reconnected. Such consumer can represent his case if he so desires within 30 days from the date of receipt of the assessment order or from the date of reconnection of power supply whichever is late, but in no case later than 90 days from the date of receipt of the assessment order before the Appellate Authority appointed by the Board at its head Office who, after giving an opportunity to the consumer of being heard and producing all written and oral evidences in support of his representation and will decide the appeal and the decision of the Appellate Authority in the appeal shall be final and binding upon the consumer and he shall then pay the balance amount within 30 days from the date of communication of the order of the Appellate Authority failing which his supply is liable to be disconnected without any further notice.

Section 49 of the Electricity (Supply) Act, 1948 empowers the Board to prescribe terms and conditions, subject to which the Board may supply electricity. The terms of conditions which is part of the contract between the Board and the consumer, does not provide for service of notice, before disconnection, as in the case of Supreme Court in Ajanta Iron and Steel (supra). I am fortified in my view from the unreported judgment of this Court in Bajrang Casting Pvt. Ltd. (supra). Considering the Supreme Court judgment in M/s. Ajanta Iron and Steel Company Pvt. Ltd. (supra) this Court observed, thus: Regarding the decision of the Hon'ble Supreme Court in case of M/s. Ajanta Iron and Steel Company's case (supra), I am of the view that the ratio laid down in that decision would not govern the present case. In this case, there is a contract between the parties. Condition No. 34 is a part of such contract which does not provide forissuance of the notice. Constitutional validity of the said Condition No. 34 was also challenged before this Court and the Division Bench of this Court in Parshottamdas Vanmalidas Patel's case (supra) upheld the Constitutional validity thereof. In view of the above referred decision of the Division Bench of this Court, it is not open to the petitioners to contend that since the action is taken without issuance of notice, it was violative of the principles of natural justice and hence bad. Regarding other clauses, particularly Clause 12(C) and Clause 14(B), I am of the view that they are not relevant to the questions at issue. Clause 12(C) provides for the notice when the licence is to be terminated while Clause 14(B) states for the testing by the Board. The relevant condition is Condition No. 34 only and in view of the Division Bench judgment, it was not obligatory on the part of the respondent-Board to issue notice before talcing any action.

14. Thus, M/s. Ajanta Iron and Steel case (supra) also does not advance the case of the petitioner. I may further add without comment on and without prejudice to petitioner that, electricity theft has become rampant evil in the country. Electricity is a main raw material in industrial production and as such the cost of the electric consumption may be some time even more than the total investment of the industrial unit. In Bajrang Castings Pvt. Ltd. (supra) the contention that petitioner was a small scale unit with total investment of one crore, could not have electric consumption to the tune of Rs. 1.40 crore, did not impress this Court. In fact, grievance of fair play coming from the mouth of persons alleged to be indulging in the electricity theft appears as if Terrorist talking of Human rights.

15. It is made clear that observations made in this order will not have any reflection on the merits of the petitioner's case, as on facts it considered appropriate that petitioner is relegated to remedy of appeal under condition No. 34 or to say it is not considered a fit case to exercise power of this Court under Article 226 of the Constitution of India.

16. In view of the aforesaid discussions, this Special Civil Application is dismissed with costs which is quantified at Rs. 10,000/-. Rule is discharged.