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2015 DIGILAW 1250 (GUJ)

Paschim Gujarat VIJ Com. Ltd. v. Raj Brass Parts

2015-12-04

N.V.ANJARIA

body2015
JUDGMENT : N.V. Anjaria, J. Heard learned advocate Mr. D. R. Dave for the petitioner company and learned advocate Mr. R. C. Kakkad for respondent No.1. Learned Assistant Government Pleader Mr. Jaimin Gandhi appeared for respondent No.2. 2. The petitioner-Paschim Gujarat Vij Company Limited has brought under challenge by filing the present petition under Article 226 of the Constitution, order dated 30th November, 2012 passed by Electrical Inspector-the appellate authority, whereby the said authority set aside the final assessment of the bill for Rs.1,10,745.40 ps. issued to the respondent consumer by the petitioner company for unauthorised consumption of electricity. 3. Respondent No.1 was having an electric connection for commercial purpose and it was registered as Customer No. 87102/03171/8. It appears that on 17th April, 2010, the checking squad of the petitioner company carried out checking of the electric connection at the place of the meter. The checking report dated 17th April, 2010 was prepared, which is produced on record (Annexure-B). The report inter alia recorded that Metal Meter Box (MMB) seal of the meter of respondent No.1 was found to have been tempered; the sealed wire of the meter was in broken condition and further that the seal was seen hanging with the help of piece of wire. It was stated that the seal was in a doubtful condition. The meter was seized. 3.1. On 19th April, 2010, the petitioner company issued supplementary bill for Rs.11,07,115.40 ps. on the ground that customer had used the electricity unauthorisedly. The meter was simultaneously sent to the testing laboratory. As per the report of the testing laboratory (Annexure-D), which recorded rojkam, it was found that (i) MMB seal was tempered with, (ii) on piercing the seal, the sealing system was noticed to be proper, (iii) on the screw fitted on terminal block of the meter, there were clear marks of scratches created by some outer material, (iv) it was further recorded that there was a tinkering of and tempering with the outer wiring. These procedures culminated into issuance of final bill under section 126 of the Electricity Act, 2003 of the amount of Rs.1,10,745.40 ps. 4. It was submitted on behalf of the petitioner that checking report and the laboratory testing report were clearly indicative of act of tempering. Both the report, submitted learned advocate for the petitioner, matched in their findings. These procedures culminated into issuance of final bill under section 126 of the Electricity Act, 2003 of the amount of Rs.1,10,745.40 ps. 4. It was submitted on behalf of the petitioner that checking report and the laboratory testing report were clearly indicative of act of tempering. Both the report, submitted learned advocate for the petitioner, matched in their findings. He submitted that the same ought to have been accepted by the appellant authority and there was no reason to take a different view. He submitted that the reasoning supplied by the appellate authority, more particularly when it stated that mere marks of scratches on the screws could not lead to conclusion of unauthorised use of electricity, was perverse. He relied on a decision of Division Bench of this Court in Jayesh C. Dhangar, Deputy Engineer (O and M) v. Chandravatiben Maheshbhai being LPA No. 525 of 2010 decided on 16th August, 2011, to submit that in cases of unauthorised use of electricity, mens rea was not a necessary element. The another decision pressed into service was also of Division Bench of this court in Paschim Gujarat Vij Company Limited v. Paras Ship Breakers Ltd. being LPA No. 367 of 2010 decided on 28th April, 2010, from which learned advocate highlighted the term unauthorised use of electricity. 4.1. On the other hand learned advocate for the respondent No.1, supported the impugned order. According to him, setting aside of the final bill by the appellant authority was proper in the facts of the case. He stressed the aspect that no material variation was noticed in the consumption level before and after the change of meter. He submitted that the scratches on the screw could be for any reason, and without any supporting material it could not be said that it was a human act, much less by or at the behest of respondent No.1. He further submitted that even the body seal was found to be proper in the laboratory report. As per the submission of learned advocate for respondent No.1, on the basis of contents of checking report or the laboratory report, the conclusion could not have been drawn that respondent No.1 had unauthorisedly used the electricity and the meter was tampered with. 5. As per the submission of learned advocate for respondent No.1, on the basis of contents of checking report or the laboratory report, the conclusion could not have been drawn that respondent No.1 had unauthorisedly used the electricity and the meter was tampered with. 5. Having considered the facts emerging from the records and the submissions put forth by both the sides, it emerged that in the checking report dated 17th April, 2010, what was noticed and recorded, was confirmed when the matter was sent to the laboratory for testing. It was found and confirmed in the laboratory testing that there was a tampering with the MMB seal. Further the seal wire was broken. The seal was found to be hanging with the help of piece of wire. It was clearly seen that there were scratches on the screw. All these circumstances only lead to conclusion that there was a tempering with the meter. It is not a case where simple scratches on the screw were noticed, for which the submission of learned advocate for respondent No.1 that they were due to natural cause, could be countenanced. That the MMB seal of the meter was found to have been tempered with coupled with the fact that the sealed wire of the meter was broken and further that the seal was found to be hanging with the help of piece of wire, are the indicative aspects and adequate circumstances from which it could be established that the meter was tempered with and there was unquthorised use of electricity. These findings are factual and are based on expert testing. The contention of respondent No.1 that there was no change in the consumption of electricity turned teethless once the tempering is clearly established. The pattern of billing or the pattern of consumption alone cannot be criteria when on facts, the electric meter and wires were found to be broken and tampered with. 5.1. In Paras Ship Brerakers Ltd. (supra), the contention that as there was no financial loss and the consumer had been paying total electricity charges for all along in the past and therefore the company was not justified in issuing supplementary bill for unauthorised use, was negatived. It was held that once unauthorised use could be established on facts, the attendant aspects cannot be brought into play to successfully dispute liability to pay the charges for unauthorised use of electricity. It was held that once unauthorised use could be established on facts, the attendant aspects cannot be brought into play to successfully dispute liability to pay the charges for unauthorised use of electricity. In Jayesh C. Dhangar (supra), this court explained that under section 126 read with section 50 of the Electricity Act, 2003, unauthorised use of electricity includes use of electricity by any artificial means or by means unauthorised by the person concerned or the electricity used with tempering of the meter or used for the purpose other than for which electricity was authorisied. It laid down the principle that in such circumstances, when the use was found to be unauthorised by any of such means, mens rea or guilty mind is not necessary to be established. 6. In the checking and thereafter in the testing, the meter was found to be tempered with. The testing report and the laboratory report recorded similarly on the aspects of tampering and about broken wires. They pointed out strong and cogent circumstances to suggest and show that there was tempering with the meter and there was an unauthorised use of electricity. The impugned order of the appellate authority ignored material and vital aspects of testing reports. The reasoning supplied by the appellate authority disregards the vital aspects and therefore it is perverse and the order is rendered bad with material irregularity. Therefore, the order deserves to be set at naught. 7. Accordingly, the petition is allowed. The impugned order dated 30th November, 2012 passed by the appellate authority-cum-the Electrical Inspector is set aside. Rule is made absolute. Petition Allowed.