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2014 DIGILAW 578 (GUJ)

STAR MOSAIC TILES v. PASCHIM GUJARAT VIJ CO. LTD

2014-04-25

R.M.CHHAYA

body2014
JUDGMENT : (1) By way of the present petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 13.06.2006 passed by the appellate committee in Appeal No.22161 at Annexure-C to the petition) as well as the supplementary bill dated 11.05.2005 (at Annexure-A to the petition). (2) The facts of the case are that the petitioner is a manufacturing unit having its factory at Shapar Veraval, Dist. Rajkot. That the petitioner is consumer of the respondent Electricity Company having consumer and category No.81901010600 IND. That the petitioner is manufacturing mosaic, terrezo, marble and galicha tiles. That the officers of the respondent Electricity Company visited the factory premises of the petitioner on 24.09.2004 for checking of the electric installations of the petitioner, a checking sheet was prepared and it was found that the petitioner has tampered with the meter mechanism. That the meter was removed and was sent for laboratory inspection. (3) Record further indicates that the respondent Electricity Company issued a supplementary bill of Rs.1,14,134.63. Being aggrieved by the same the petitioner preferred the aforesaid appeal before the appellate committee of the respondent Electricity Company, which came to be dismissed by the impugned order. Hence, the present petition. (4) It may be noted that while admitting the petition, this Court passed the following order on 12.09.2005: “1. RULE. By way of interim relief, it is directed that the respondent Board will not disconnect the power connection of the petitioner on the following conditions: [a] The petitioner shall pay the outstanding dues in respect of the supplementary bill, reconnection charges and delay payment charges, if any, in six equal monthly installments. [b] The first installment will be paid on or before 1st October, 2005. [c] If any default is committed in making the payment stated above, it will be open for the respondent Board to disconnect the power supply without any further orders of this Court. [d] The petitioner shall pay the monthly consumption bills regularly. [e] The petitioner shall file an undertaking in these proceedings to the above extent within a period of 15 days from today. Direct Service is permitted.” (5) Heard Ms.Sudha R. Gangwar, learned advocate for the petitioner, and Ms.Rohini Acharya, learned advocate for the respondent Electricity Company. [d] The petitioner shall pay the monthly consumption bills regularly. [e] The petitioner shall file an undertaking in these proceedings to the above extent within a period of 15 days from today. Direct Service is permitted.” (5) Heard Ms.Sudha R. Gangwar, learned advocate for the petitioner, and Ms.Rohini Acharya, learned advocate for the respondent Electricity Company. (6) Learned advocate for the petitioner has taken this Court to the factual matrix arising out of the present petition and has drawn attention of this Court of the grounds which are raised in the petition, more particularly Ground Nos.4.2, 4.3, 4.4, 4.6, 4.7, 4.8, 4.9, 4.10 and 4.11. It is submitted that even though the factory of the petitioner remains open only for 6 hrs. in a day, while issuing the disputed bill the respondent Electricity Company has calculated as if the factory has worked for 24 hrs. Placing reliance upon Ground No.4.3, it is contended that the meter was found slow running due to “B” Phase of Pressure Coil opened inside the meter and that cannot be done by the petitioner. It is further submitted that the laboratory report does not indicate that MMB Seals were tampered with and therefore the respondent Electricity Company has not even prima facie proved that the meter was tampered with. It is submitted that the appellate authority has not given any benefit of staggering days, public holidays as well as power interruptions. It is also contended that diversity factor has also been wrongly calculated. It is further contended that there is very less consumption between the period from and after change of meter. Lastly it is contended that considering the consumption pattern it is not established that the petitioner unit is functioning throughout the day. It is therefore submitted that the petition be allowed and the impugned order as well as supplementary bill deserve to be quashed and set aside. (7) Per contra, learned advocate for the respondents has supported the impugned order and has relied upon the affidavit in reply, which is filed in the present proceedings. It is contended that before the appellate authority only two points were raised, as is indicative from the impugned order. It is further contended that the record of the case, more particularly checking sheet as well as the laboratory report clearly indicates that it is a clear cut case of theft. It is contended that before the appellate authority only two points were raised, as is indicative from the impugned order. It is further contended that the record of the case, more particularly checking sheet as well as the laboratory report clearly indicates that it is a clear cut case of theft. It is submitted that not having raised certain points before the appellate authority the petitioner may not be permitted to raise such points in a petition under Article 226 of the Constitution of India for the first time. It is also contended that the contentions which are raised by the petitioner are disputed questions of fact for which the petitioner may institute a civil suit. It is therefore submitted that the petition deserves to be dismissed. No other or further submissions are made by the learned counsel for the parties. (8) On perusal of the impugned order it transpires that the representative of the petitioner was present before the appellate authority and has raised two points which are enumerated in Ground Nos.4.2 and 4.3 of the petition. No other contentions were raised before the appellate authority, as can be seen from the impugned order. The affidavit-in-reply, which is filed by the respondent Electricity Company is not controverted by the petitioner, more particularly as mentioned in Paragraph Nos.3 to 5 thereof it transpires that the laboratory inspection was done in presence of the partner of the petitioner and the laboratory report clearly indicates that there was tampering. Record further indicates that the meter in the petitioner's installation was changed and replaced on 24.09.2004 by static meter and in the laboratory inspection, which was carried out on 06.10.2004 it was found that there were tampering i.e. all the four body seals of the old meter were tampered with by cutting at the seal wire and turning in of the wire under the cap of the male part, the locking teeth of the male part and refitting. It is further found that Pressure Coil of 'B' Phase was found open inside the meter resulting in the meter going slow by 35.40% On technical examination of the same it was discovered during the laboratory inspection that gear ratio of the meter was changed from normal of 80 revolution per KWH to 160 revolution per KWH, as a result of which recording of electric consumed is half. Considering such evidence while coming to the conclusion that the petitioner has committed theft of electric energy by tampering with the meter the appellate committee has recorded that on perusal of the documents on record it transpires that one number Metal Meter Box PVC seal found in tampered condition. Four numbers meter body PVC seals found in tampered condition. “B” Phase Pressure Coil found to have been opened inside the meter. Meter found slow. Gear Ratio found changed from 80 to 160 KWH. Such finding of fact arrived at by the appellate committee cannot be reevaluated by this Court in its jurisdiction under Article 226 of the Constitution of India. Relying upon the decision in the case of Mansukhbhai J. Makwana Vs. Madhya Gujarat Vij Company Limited, 2013 Law Suit (Guj.) 1139 the petition deserves to be dismissed. (9) In addition to this it also needs to be noted that the other grounds which are sought to be raised in the petition were not raised before the appellate authority, as can be seen from the impugned order. This Court is not sitting in an appeal against the order passed by the appellate committee. It is clearly established that the petitioner has committed theft of electric energy by tampering with the meter. In light of the aforesaid, no benefit of staggering or public holidays as well as power interruptions can be granted by this Court in the present petition. In the facts and circumstances of the case the findings of fact arrived at by the appellate authority do not warrant any interference by this Court by way of judicial review under Article 226 of the Constitution of India. (10) Hence, the petition deserves to be dismissed and is hereby dismissed. RULE discharged. There shall be no order as to costs.