JUDGMENT ABHILASHA KUMARI, J. 1. By filing these petitions, the petitioners have challenged the legality and validity of the impugned orders dated 23-5-2000, passed by the Appellate Committee of the Gujarat Electricity Board in Appeal No.SZ-410/08/26 dated 23-5-2000) 0520/05275 and Appeal No.SZ-410/10/26 dated 23-5-2000), whereby the said appeals of the petitioners against the supplementary bills issued by respondent No.2 on the basis of ABCD Formula have been partly-allowed. 2. As identical questions of fact and law arise in these petitions, they have been heard and decided together by a common judgment, on the basis of common submissions advanced by learned counsel for the respective parties. 3. For the sake of convenience, the facts, as obtaining in Special Civil Application No.9670 of 2000, shall be noticed. 4. The petitioner is a consumer of the erstwhile Gujarat Electricity Board, now Gujarat Urja Vikas Nigam Ltd, (‘GUVNL’ for short). It has an electrical installation bearing Consumer No.05201/05275/4 at Pandesara, Surat (I) Division under LTP-1 category with a connected load of 10 HP. On 22.02.1999, the electrical installation of the petitioner was checked by officers of GUVNL. During the checking, it was found that the petitioner was using power supply directly. The electricity supply was, therefore, disconnected by the Officer of GUVNL and the meter was removed, packed, sealed and sent for laboratory inspection. A Checking Report to this effect was prepared and a Supplementary Bill of Rs.2,03,121.94 Paisa was served to the petitioner, towards theft of energy. The petitioner paid Rs.30,468/-on 24.03.1999 and the electricity connection was reconnected on the same day. A further amount of Rs.30,000/-was paid by the petitioner on 04.05.1999, after which the petitioner preferred an appeal against the said Supplementary Bill before the Appellate Committee. After hearing the parties and considering the record, the Appellate Committee was of the view that as the power supply was made direct by the petitioner, there was a theft of electricity. The Appellate Committee also found that two Twisting Machines were in the process of being installed but, as per GUVNL the said machines were actually working, though the foundation work was still going on, therefore, the load should be taken as 10 HP and not 2 HP. The Appellate Committee partly-allowed the appeals and directed the GUVNL to revise the Supplementary Bill. The Appellate Committee partly-allowed the appeals and directed the GUVNL to revise the Supplementary Bill. Aggrieved by the finding that the load was to be taken at 10 HP and not 2 HP, the petitioner has approached this Court by way of the present petitions. 5. Mr.Ketan D. Shah, learned advocate for the petitioner, has submitted that it is clear from the checking sheet dated 22.02.1999 that at the time of checking, the installation of the Twisting Machines was still going on. Until and unless the Twisting Machines are not fully installed, they cannot be made operational. The Appellate Committee ought to have considered the submission of the petitioner that the connected load was only 2 HP and not 10 HP. In spite of the fact that it is stated in the checking sheet that the installation of the said machines was being carried out at the time of checking, the Appellate Committee has relied upon the oral submission of the GUVNL that the said machines were working, which is not correct, as per the record. 5.1 It is next submitted that in a similar case, the High Court has passed an order dated 14.07.2004 in Special Civil Application No.903 of 2003, wherein it has considered the aspect that the installation of the machinery was going on, and has quashed and set aside the impugned order, directing the respondent authority to revise the Bill by issuing a fresh calculation considering the load factor as 2 HP instead of 10 HP. It is submitted that this order has attained finality as the respondent GUVNL has not preferred any appeal against it, as per the knowledge of the petitioner. The petitioner’s case being identical in all respects, similar relief ought to be granted to the petitioner. 5.2 It is further submitted that the Appellate Committee, in another case being Appeal No.SZ/11/13 dated 07.11.2000, has granted relaxation to the appellant therein, on identical facts, by holding that the load of 8 HP of the Twisting Machine should not be considered as the connected load on the date of checking and the connected load for the purpose of calculation of the Supplementary Bill should be considered as 2 HP. 5.3 It is submitted that when the Appellate Committee has given a similar benefit, on identical facts, in another case of the proprietor of the petitioner firm, there is no reason why the same treatment ought not to be meted out to the present petitioner, as well. 5.4 No submissions have been advanced by the learned advocate for the petitioner regarding the aspect of theft of electrical energy. However, learned advocate for the petitioner submits that the petitioner denies the same. 6. The petition has been opposed by Ms. Maya Desai, learned advocate for the respondents. She has taken the Court through the contents of the affidavit-in- reply filed on behalf of the respondent GUVNL and the joint checking sheet dated 22.02.1999 in respect of four electrical installations of the proprietor of the petitioner firm, two of which are before this Court. It is submitted that the petitioner has four concerns and is in the textile business. Until and unless these Twisting Machines are installed, the factory will not run. GUVNL has made a submission before the Appellate Committee that the Twisting Machines were found to be actually working, though the foundation work was nearing completion, and the Appellate Committee has taken note of this fact. The connected load has, therefore, been rightly calculated as 10 HP, instead of 2 HP. 6.1 Referring to the order of this Court dated 14.07.2004, passed in Special Civil Application No.903 of 2003, it is submitted that certain facts may not have been brought to the notice of the Court before the passing of the said order; therefore, it does not mean that similar orders can be passed in the present cases. 6.2 It is next submitted that the Appellate Committee may have given relaxation in the case of Rajesh Twisting Machines, however, the facts of that case may be different, therefore, it is not necessary to apply the same standard to the petitioner. 6.3 That the petitioner is guilty of theft of electricity by making direct use of electricity, therefore, the impugned order passed by the Appellate Committee is just and proper. 6.4 That the petitioner has five units and in all the said units, the petitioner was using electricity directly as is evident from the joint inspection report, therefore, no benefit can be granted to the petitioner by reducing the connected load as the petitioner is a dishonest consumer. 6.4 That the petitioner has five units and in all the said units, the petitioner was using electricity directly as is evident from the joint inspection report, therefore, no benefit can be granted to the petitioner by reducing the connected load as the petitioner is a dishonest consumer. 6.5 Learned advocate for the respondent has taken the Court through the document regarding the consumption of the petitioner by submitting that from April, 1997 to March, 1999, zero consumption is recorded. Therefore, it is proved that the petitioner was taking electricity supply directly and was thus committing theft of electricity. 7. In rejoinder, Mr.Ketan D. Shah, learned advocate for the petitioner has submitted that the scope of the petition cannot be enlarged beyond the impugned order by the learned advocate for the respondents, by disclosing material that does not find mention in the impugned order of the Appellate Committee. The consumption report is not the basis on which the Appellate Committee has passed the impugned order. Therefore, zero consumption recorded from April, 1997 to March, 1999, is not relevant. It is further submitted that the bill is to be prepared as per the ABCD formula as per condition No.34(1) of the Conditions and Miscellaneous Charges for Supply of Electrical Energy for the last six months, therefore, the record of the past ten years is not material. 8. This Court has heard learned counsel for the respective parties, at length, perused the averments made in the petitions, contents of the impugned orders and the original file produced by the learned advocate for the respondent GUVNL. 9. The findings of the Appellate Committee in both the cases in hand are that there is a theft of electrical energy by the petitioners. When checking took place on 22.02.1999, it was found that the petitioners were using energy directly by by-passing the meter. Insofar as this aspect is concerned, though it is denied by the learned advocate for the petitioner, however, no material in support of such denial has been produced, nor have any convincing submissions been advanced. On perusal of the checking sheet, it is found that this aspect is clearly recorded therein, therefore, insofar as the aspect of theft of electrical energy is concerned, there is material on record to support this finding. There remains no justifiable reason to upset the findings of the Appellate Committee in this regard. 10. On perusal of the checking sheet, it is found that this aspect is clearly recorded therein, therefore, insofar as the aspect of theft of electrical energy is concerned, there is material on record to support this finding. There remains no justifiable reason to upset the findings of the Appellate Committee in this regard. 10. The second aspect that is required to be considered is, whether at the time of checking, the connected load ought to have been considered as 10 HP, as per the case of the respondent GUVNL, or 2 HP, as per the case of the petitioner. A perusal of the checking sheet from the original record goes to show that in column No.10 thereof, it is stated that when the checking was taking place, the installation of the Twisting Machines was going on. It is not recorded on the above grounds, it is submitted that the petitions be rejected that the installation of the Twisting Machines was completed, or that the machines were in a working condition and were, actually, in operation. In the impugned order, the Appellate Committee has recorded the contentions advanced by the Officer of the GUVNL to the following effect: “But the DE who has checked this unit has submitted that the machines were actually working and the foundation work was nearing completion and therefore, it cannot be said that the twisting machines were not working and foundation work was nearing completion and therefore, it cannot be said that the twisting machines were not working and load was of 2 HP as contended.” 11. The oral contention of the respondent GUVNL has been accepted by the Appellate Committee whereas the finding in the checking sheet, to the effect that the installation of the machines was still going on, has not been accepted. There is no mention in the checking sheet that the machines were actually working. Had that been the position, nothing would have prevented the checking officer from stating so in the checking sheet. The Twisting Machines are run by electricity and until and unless they are fully installed, it cannot be presumed that they have actually commenced working. 12. In an identical case, in the case of Natwar Twisting Works Vs. Had that been the position, nothing would have prevented the checking officer from stating so in the checking sheet. The Twisting Machines are run by electricity and until and unless they are fully installed, it cannot be presumed that they have actually commenced working. 12. In an identical case, in the case of Natwar Twisting Works Vs. Gujarat Electricity Board, in Special Civil Application No.903 of 2003 dated 14.07.2004, this Court (Coram: D.N. Patel, J.) has set aside the Supplementary Bill issued by the respondent GUVNL, calculating the connected load to be 10 HP, instead of 2 HP. In that case, as well, the Twisting Machines were in the process of being installed. The joint checking sheet produced by the GUVNL shows that the proprietor of the petitioner and of Natwar Twisting Machine is the same and the matter is identical in nature to the present two petitions. No material has been brought before this Court by the respondent GUVNL to show that the said judgment has not attained finality. The relevant extract of that judgment, which fully covers the case of the petitioners, is reproduced hereinbelow: “6. Looking to the aforesaid facts and circumstances, it appears that the appellate committee of the respondent has not properly appreciated the fact that when the installation of the machinery is going on, the HP for that machinery cannot be taken into consideration for applying formula A x B x C x D. Thus, the calculation of Factor A will be reduced to the extent to which there shall be reduction in HP so far as twisting machine is concerned. The said reduction is already reflected in the order of the appellate committee in a comparable case of Rajesh Twisting Works and the relevant portion has been referred to hereinabove. Similar treatment, so far as aforesaid limited facts are concerned, ought to have been given to the petitioner also. Once the installation of machinery is going on, as per the checking report prepared by the officers of the respondent authority which is produced at Annexure "B" to the petition, especially column no. 10 thereto, the Hps of twisting machine of which installation was going on, should not have been calculated by the respondent authority while calculating factor A. The learned counsel for the petitioner has not argued on any other point except the above point. 10 thereto, the Hps of twisting machine of which installation was going on, should not have been calculated by the respondent authority while calculating factor A. The learned counsel for the petitioner has not argued on any other point except the above point. So far as rest factors, B, C and D are concerned, as there are no arguments, I am not going into the details of factors B, C and D in the formula A x B x C X D. But as narrated hereinabove, comparing the case of petitioner with that of Rajesh Twisting Works, Pandora, Surat alongwith the order passed in comparable case, by the appellate committee, the relevant portion of which is reproduced hereinabove, in my view, there is an error in the order passed by the appellate committee for not giving effect to the reduction in the Factor A. The facts of Rajesh Twisting Works, so far as " installation of twisting machine" is concerned, are exactly similar to the facts of the case of the petitioner. 7. Therefore, in view of the above facts and circumstances, this petition deserves to be allowed. The impugned bill issued by the respondent authority is hereby quashed and set aside. The respondent authorities are hereby directed to revise the bill of the petitioner by issuing a fresh calculation so far as factor A i.e. load factor is concerned, considering 2 HP instead of 10 HP. It is submitted by the learned counsel for the petitioner at this stage that the petitioner has already paid the whole amount towards the special/additional bill issued by the respondent authority. It is hoped that after considering the aforesaid direction, if the new bill is reduced, the amount already paid by the petitioner, will be given set off, in accordance with law. Rule made absolute to the above extent with no order as to costs. Direct service permitted.” As the said judgment has not been challenged by GUVNL, it cannot be submitted on its behalf that certain facts were not brought out before the court before its passing. 13. It may be noted that the joint checking sheet pertains to four concerns of the present petitioner, wherein one Natwar Twisting Machine has been decided by the High Court by the above-quoted order. 13. It may be noted that the joint checking sheet pertains to four concerns of the present petitioner, wherein one Natwar Twisting Machine has been decided by the High Court by the above-quoted order. In the second case of Rajesh Twisting Machine, the Appellate Committee has itself given the benefit of calculation of 2 HP instead of 10 HP in identical circumstances. It is not understood by this Court why a different stand is being taken by the respondent GUVNL in the present cases, which are identical in all respects. 14. In view of the fact that the cases before this Court are identical to the case decided by the High Court in Special Civil Application No.903 of 2003 and as the Appellate Committee has itself given a similar benefit to the petitioner concerning the unit of Rajesh Twisting Machine, this Court considers it just and proper to pass the following order: The finding of the Appellate Committee, insofar as theft of electricity is concerned, is not disturbed. However, insofar as the calculation of the connected load at 10 HP is concerned, the impugned orders dated 23.05.2000 are quashed and set aside. The respondent authorities are directed to revise the bills of the petitioners by issuing a fresh calculation so far as the load factor is concerned, by considering 2 HP, instead of 10 HP. If, after such calculation, the bills are reduced, the amount already paid by the petitioners shall be adjusted, in accordance with law. In case the amount paid by the petitioners is in excess, such excess amount shall be refunded to the petitioners with interest at the rate of 8% per annum from the date of the receipt of the amount. 15. The petitions are allowed in the above terms. Rule is made absolute accordingly in both petitions. There shall be no orders as to costs.