Research › Search › Judgment

Gujarat High Court · body

2009 DIGILAW 263 (GUJ)

Himanshu J. Navdiwala v. Managing Director

2009-04-09

K.A.PUJ

body2009
Judgment K.A.Puj, J.—Leave to amend as per the Draft Amendment. 2. Heard Ms. Megha Jani, the learned Advocate for the petitioner and Ms. L.K. Bhaya, the learned Advocate appearing for the respondent Electricity Company on Caveat. Perused the documents and after having heard the learned advocates and after having considered the documents produced before the Court as well as the legal position, the Court is of the view that the relief prayed for in the present petition cannot be granted. The petition is accordingly dismissed. Detailed reasons would be given later on. 3. Both these petitions were heard together on 9.4.2009 and they were dismissed on the same day. However, detailed reasons for dismissal of the said petitions could not be given for paucity of time. These reasons are, therefore, recorded hereunder; 4. Since the common issue is involved in both the petitions, the same are being disposed of by this common judgment and order. The facts are taken from Special Civil Application No. 3462 of 2009 for the sake of convenience. 5. The petitioner of Special Civil Application No. 3462 of 2009 is a businessman and running a textile unit at Plot No. 2204, GIDC, Sachin Surat. The petitioner has HT connection from Dakshin Gujarat Vij Company Ltd., (DGVCL). The consumer number of the petitioner is 12306/07161/6. Likewise the petitioner of Special Civil Application No. 3463 of 2009 is also a businessman and he is having HT connection from Dakshin Gujarat Vij Company Ltd., and his consumer number is 12306/07341/4. 6. The officers of DGVCL have visited the factory premises on 16.12.2008 and demanded illegal gratification of Rs. 7 lacs and threatened that failure to make such payment would make the petitioner liable to face a false case of theft. The officers of DGVCL have again come to the premises of the factory on 1.1.2009 and while entering the premises they did not reveal their identity and forcibly entered the premises. A complaint came to be filed against the petitioner being CR No. II-32 of 2009 at South Zone Police Station, Surat under Section 135(1) and 150 of the Electricity Act. 7. The petitioners have filed an application on 12.1.2009 under the Right to Information Act. In response to the said application, DGVCL gave a copy of the rojkam, calculation sheet, supplementary bill dated 2.1.2009 and notice dated 2.1.2009 issued under Regulation 50 of the Regulations to the petitioners. 7. The petitioners have filed an application on 12.1.2009 under the Right to Information Act. In response to the said application, DGVCL gave a copy of the rojkam, calculation sheet, supplementary bill dated 2.1.2009 and notice dated 2.1.2009 issued under Regulation 50 of the Regulations to the petitioners. Since the Information Officer did not give the information as sought for, the petitioners filed Appeal before the Appellate Authority. The Appellate Authority did not give any decision for a long time. The petitioners, therefore, filed further Appeal No. 1078/08-09 before the Gujarat Information Commission. The Commission vide its order dated 27.3.2009 directed the Appellate Authority to hear the petitioners and the Respondents No. 1 and 2 in the Appeal and decide the same within three weeks from the date of receipt of the order of the Commission. It is also mentioned in the order that the Appellate Authority had also violated provisions of Section 19(1)(c) under which the First Appeal was required to be decided within 45 days from the date of receipt. 8. Ms. Megha Jani, learned Advocate appearing for the petitioners submits that the petitioners have been wrongly implicated in the theft case. The entire case is made out with mala fide intention so as to frame the petitioners in a wrong case. The petitioners have not tampered with the meter and have not committed theft of electricity. The tampering of the meter as recorded in the rojkam is done by or at the behest of the Officers of the DGVCL. She has further submitted that the manner in which the entire case is built up and the treatment meted out to the petitioners clearly establishes prejudice, mala fide and illegal action on the part of the officers of the DGVCL to the petitioners. The officers of the DGVCL have violated the guidelines issued by the DGVCL while issuing supplementary bill in the theft case. She has further submitted that vide Circular dated 23.6.2008 issued by the Gujarat Urja Vikas Nigam Ltd., in a case of breakage of meter body seal or missing of meter body seal, question of assessment can be decided only on the basis of findings arrived at after the meter is tested in the laboratory in the presence of consumer concerned or his authorised representative. It further lays down that if appropriate evidence of theft of electricity is found during laboratory testing of the meter, consumer be booked under Section 135, his power supply be disconnected immediately and FIR should be lodged. She has further submitted that the petitioners’ case is of missing meter body seal. Still the officers of DGVCL have proceeded to raise supplementary bill and have filed complaint before laboratory testing is carried out. She has further submitted that in the past, there have been instances where laboratory of DGVCL declared theft without concrete evidence to the same. She has further submitted that recently DGVCL was required to withdraw theft bill raised on one Tapi Polymers of Rs. 4,93,137.70 on the basis of the fact that laboratory had declared theft without concrete evidence. She has further submitted that the petitioners have been continuously communicating to DGVCL that FSL investigation should be carried out and that the meter should not be tested by DGVCL at its own laboratory. The petitioners have been given notices dated 13.1.2009, 21.1.2009, 29.1.2009, 13.3.2009 and 31.3.2009 calling upon them to remain present for laboratory testing of the meter. The petitioners have replied vide letters dated 15.1.2009, 22.1.2009, 3.2.2009 and 13.3.2009 requesting that the meter should be sent for FSL investigation and for technical laboratory test by ERDA at Vadodara. The petitioners have been repeatedly requesting DGVCL for forensic analysis of the meter and for analysis of the meter by ERDA, DGVCL, however for obvious reasons, it has not accepted the aforesaid genuine and bona fide request of the petitioners. It is, therefore, contended that the petitioners have no alternative but to approach this Court invoking its writ jurisdiction for an appropriate direction to the respondents. 9. Ms. Lilu Bhaya, learned Advocate appearing for the respondents on caveat, on the other hand has submitted that the petitioners have suppressed material facts from this Court and hence no equitable relief can be granted in favour of the petitioners. She has further submitted that none of these two petitions are maintainable before this Court as all cases of this nature should go to the special Court. She has further submitted that several disputed questions of facts are involved in these petitions and hence Court should not entertain these petitions. She has further submitted that none of these two petitions are maintainable before this Court as all cases of this nature should go to the special Court. She has further submitted that several disputed questions of facts are involved in these petitions and hence Court should not entertain these petitions. In support of her submission she relied on the decision of this Court in the case of Bahuman Polytex Ltd. vs. Gujarat Electricity Board & Anr., reported in 1995 (2) GCD 762 (Guj.). She also relied on this decision for the proposition that grievance of fair play from the mouth of persons alleged to be indulged in theft of electricity is as good as terrorist talking of human rights. She has further submitted that in the past there are serious allegations of theft against the petitioners and the petitioners have paid the amount of supplementary bill. As per the provisions contained in Sections 153 and 154 of the Electricity Act, 2003, no petition should be entertained by this Court as every offence punishable under Section 135 to 139 shall be triable only by the special Court within whose jurisdiction such offence has been committed. The special Court is vested with the powers of Court of Sessions and against the decision of the special Court there is a provision of Appeal, Revision as well as Review under Sections 156 and 157 of the Act. 10. Ms. Bhaya relied on the decision of this Court in the case of Torrent Power AEC Ltd. vs. Gayatri Intermediates Pvt. Ltd. reported in 2006 (2) GLH 375 , wherein after undertaking the inquiry as amended in Dhulabhai vs. State of MP, AIR 1969 SC 78 , this Court held that the Electricity Act, 2003 read with the Central Government order dated 8.6.2005 and the State Electricity Supply Code framed under Section 50 of the Act as amended with effect from 14.12.2005 and the Statutory Regulations framed under the other provisions of the Act constitute a complete self-contained code in respect of criminal as well as civil liability in cases of theft of electricity and also in respect of the civil liability for unauthorised use of electricity. Hence although there is no specific reference in Section 145 of the Act for exclusion of Civil Court to entertain any proceeding in respect of any matter which the Special Court is empowered by the Act to determine or any assessment (other than assessment under Section 126) which the licensee is empowered under the Act to determine, this Court was of the view that any dispute about the civil liability in theft cases is impliedly excluded from the jurisdiction of Civil Court. 11. Ms. Bhaya further relied on the decision of this Court in the case of Sanjay Ispat Pvt. Ltd. vs. Chairman (Special Civil Application No. 12742 of 2008 decided on 29.12.2008) wherein it is held that the tampering with the cable which has substantially affected consumption of electricity, attracts the provisions of Section 135 and, therefore, no case is made out to exercise the powers under Article 226 of the Constitution of India. This Court further observed in this case that so far as constitution of Special Court is concerned, as required under Section 153 and procedure to be followed by such Court under Section 154 of the Electricity Act, such Courts are in existence and all the defences raised in support of non-tampering, if true, can be raised by the petitioner before the Special Courts and the factual disputes with regard to MRI data, whether correctly relied on in preparation of the supplementary bill is to be looked into by the Special Court alongwith the other relevant materials on which, the case of the respondent-company for theft of electricity is based. The Court further observed that when foreign object is inserted for tampering the cable, whether such tampering has any hearing of MRI data can be looked into after producing relevant materials before the competent and Special Court and this Court will not indulge into any exercise. 12. Ms. Bhaya has further submitted that the petitioners have kept back the inspection sheet wherein serious allegations were made. 12. Ms. Bhaya has further submitted that the petitioners have kept back the inspection sheet wherein serious allegations were made. In similar situation, this Court has taken very serious view of the matter and dismissed the petition filed by Shayona Beverages vs. Madhya Gujarat Vij Company Ltd., (Special Civil Application No. 10014 of 2006 decided on 1.7.2006) wherein it is observed that the fact that inspection sheet is kept back by the petitioner is nothing but a calculated step to see that the Court is not posted with the true and correct facts. This amounts to criminal contempt as he has suppressed material fact for obtaining a favourable order. In view of the fact that on demand, the inspection sheet is made available, strict view was not taken. However, the petition was dismissed with a cost of Rs. 15,000/-. 13. In view of the above submission, Ms. Bhaya has submitted that the request made by the petitioners in the present petitions for checking in the laboratory is nothing but an dishonest attempt on the part of the petitioners as such there is no such provisions under the Act or rule framed thereunder. The respondent Company is having a laboratory fully equipped for the purpose of testing and/or checking the meter and there is no reason to doubt or dispute the outcome of such checking or testing. She has, therefore, submitted that considering the past conduct of the petitioners as well as the principles laid down by the Courts in various judgments, the petitions should be dismissed with cost. 14. Having heard the learned counsels appearing for the parties and having considered their rival submissions in light of the documents produced before the Court and also the statutory provisions contained in the Act and the decided case law on the subject, this Court is of the view that the prayers made in the present petitions cannot and should not be granted. The only prayer made in the present petitions is that the petitioners’ meters should be tested by Forensic Science Laboratory. The Court, therefore, while considering this prayer takes note of certain salient facts which came to its knowledge only recently. No case is made out by the petitioner which prompts this Court to grant any relief. The only prayer made in the present petitions is that the petitioners’ meters should be tested by Forensic Science Laboratory. The Court, therefore, while considering this prayer takes note of certain salient facts which came to its knowledge only recently. No case is made out by the petitioner which prompts this Court to grant any relief. The petitioner has simply stated in the petitions that he has been wrongly implicated in a theft case, and that the entire case was made out with a mala fide intention so as to frame the petitioner in a wrong case, and that the petitioner has not tempered with the meter and has not committed theft of electricity. The petitioner has also alleged that the tempering with the meter as recorded in the Rojkam was done by or at the behest of the officers of DGVCL. An attempt was made to justify it by recording of conversation. As against this, Rojkam reveals that the petitioner has threatened the officers of GUVNL, abused them and beaten them up with fists and sticks and their mobile phone was also snatched away. The police complaint was also lodged and in the presence of the police party, the remaining work was carried out. If the petitioner of this type comes up before the Court without disclosing such facts, the Court may straightway refuse to exercise its equitable jurisdiction in favour of such petitioner and the observations made by this Court in Bahuman Polytex Ltd’s case (Supra) to the effect that grievance of fair play from the mouth of persons alleged to be indulged in theft of electricity is as good as terrorist talking of human rights, clearly apply to the present case. 15. There is also much force in the submission of Ms. Bhaya that since the petitioner is alleged to have been indulged in theft of electricity his case is required to be tried by the Special Court. 15. There is also much force in the submission of Ms. Bhaya that since the petitioner is alleged to have been indulged in theft of electricity his case is required to be tried by the Special Court. Section 135 of the Electricity Act deals with theft of electricity and Section 139 deals with negligently breaking or damaging works, Section 153 of the Act deals with Constitution of Special Courts which says that the State Government may for the purposes of speedy trial of offences referred to in Sections 135 to 139 by Notification in the Official Gazette as many Special Courts as may be necessary for such area or areas, as may be specified in the Notification. Special Courts are already established by the State Government. The procedure and power of Special Court are discussed in Section 154 of the Act. The Special Court is also empowered to determine the Civil liability against a consumer or a person in terms of money for theft of energy. Section 145 of the Act specifically bars the jurisdiction of the Civil Court. While dealing with all these provisions, this Court in Torrent Powers’ case (Supra) held that although there is no specific reference in Section 145 of the Act for exclusion of Civil Court to entertain any proceeding in respect of any matter which the Special Court is empowered by the Act to determine or any assessment (other than assessment under Section 126) which the licensee is empowered under the Act to determine, any dispute about the civil liability in theft cases is impliedly excluded from the jurisdiction of Civil Court. In this view of the matter, there is no question of entertaining any of these two petitions. 16. Looking to the facts and circumstances of the case and considering the past track record of the petitioners, the Court is of the view that filing of the present petitions before this Court and prayers made therein are nothing but is an attempt to cause delay or to drag on the litigations. No case is made out before this Court which requires this Court to refer the matters to the Forensic Science Laboratory for checking. Even otherwise, the Court agrees with the submission of Ms. No case is made out before this Court which requires this Court to refer the matters to the Forensic Science Laboratory for checking. Even otherwise, the Court agrees with the submission of Ms. Bhaya that the respondent Company is having a laboratory full equipped for the purpose of testing and/or checking the meter and there is no reason to doubt or dispute the outcome of such checking or testing. 17. For the foregoing reasons, the Court holds that there is no substance or merits in these petitions and hence they are summarily dismissed.