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Gujarat High Court · body

2017 DIGILAW 1933 (GUJ)

Executive Engineer, PGVCL v. Om Industries

2017-12-28

RAJESH H.SHUKLA

body2017
JUDGMENT : RAJESH H. SHUKLA, J. 1. The present petition is filed by the petitioner-Paschim Gujarat Vij Company Limited under Articles 226 and 227 of the Constitution of India as well as under the Indian Electricity Act challenging the order passed by the Electricity Ombudsman, Gujarat State, Ahmedabad in Case No. 116 of 2014 dated 4.9.2014 on the ground stated in the memo of petition. 2. Heard learned Advocate Ms. Lilu K. Bhaya for the Petitioner-PGVCL and learned Advocate Shri Harnish V. Darji for the Respondent. 3. Learned Advocate Ms. Bhaya for the Petitioner-PGVCL submitted that if there is any dispute, the matter has to go to Consumer Forum under Section 42(5) of the Electricity Act. She further submitted that if the consumer is aggrieved, then, he may file an appeal before the Electricity Ombudsman under Section 42(6) of the Electricity Act. She submitted that the impugned order is passed by the Electricity Ombudsman without appreciation of the relevant facts and material and therefore the present petition has been filed. 4. Learned Advocate Ms. Lilu K. Bhaya submitted that the petitioner is a licensee Company and the Respondent herein has been granted supply for 77 kv initially. Thereafter in June 2013, he had entered into a contract for extension of load to 100 kv from 77 kv. Learned Advocate Ms. Bhaya referred to the papers and submitted that during the inspection it was found that the meter is running slow for which inspection sheet was prepared in presence of the representative of the respondent. She submitted that as it is stated, the meter was running slow and therefore the MRI was done. Therefore the meter was sent for laboratory testing, and in the laboratory test, it has been found that there is no continuity resulting in slowness of the meter. She therefore submitted that the testing of the meter and the report with the device would make it possible to find out as to the period for which the meter is not properly functioning or it is slow and does not record properly. Learned Advocate Ms. She therefore submitted that the testing of the meter and the report with the device would make it possible to find out as to the period for which the meter is not properly functioning or it is slow and does not record properly. Learned Advocate Ms. Bhaya submitted that it is for this actual period as per the Condition No. 26 of the Supply Code the assessment is sought to be made which has been challenged and the Electricity Ombudsman has not accepted the bill made on the assessment made technically and made observations and given the findings about the excess billing which has lead to the present petition. 5. Learned Advocate Ms. Bhaya submitted that there is no question of any penalty as it is not a case of theft but it is a case of slowness of meter, and therefore, the assessment for which the actual consumption for a period of 478 days has been made, which has not been properly recorded. Learned Advocate Ms. Bhaya has referred to and relied upon the judgment of the Hon'ble Division Bench of the High Court in LPA No. 110/2014 dated 11.9.2014. She has also referred to the Supply Code and pointedly referred to Condition No. 6.1.8 which reads as under: “In the event of the meter being tested by the Distribution Licensee, either on his own or upon a request by a consumer and being found to be beyond the limits of accuracy as prescribed in the Rules in force, the amount of the bill for a period of three months immediately preceding the date of inspection of the meter in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection of the meter for all other categories of services, shall be estimated in accordance with the result of the test. Any evidence provided by consumer about conditions of working and/or occupancy of the concerned premises during the said periods, which might have had a bearing on energy consumption, may be considered.” Learned Advocate Ms. Any evidence provided by consumer about conditions of working and/or occupancy of the concerned premises during the said periods, which might have had a bearing on energy consumption, may be considered.” Learned Advocate Ms. Bhaya therefore submitted that though it provides for the period of six months, but as it is clearly stated that: “..............Any evidence provided by consumer about conditions of working and/or occupancy of the concerned premises during the said periods, which might have had a bearing on energy consumption, may be considered.” Therefore, it would mean that the assessment could be made and it is not confined to only six months which has not been appreciated. 6. Learned Advocate Shri Harnish V. Darji for the Respondent submitted that the petition is not maintainable and has also submitted that the slowness of the meter is a technical aspect which could have been appreciated by the Electricity Ombudsman and therefore as observed in the order of the Electricity Ombudsman specifically making observation that it is an excess billing, this court may not exercise the discretionary jurisdiction under Article 226 and 227 of the Constitution of India. 7. Learned Advocate Shri Darji submitted that the assessment is made for 478 days based on MRI and inspection though the premises or the factory was not working. He submitted that as per the conditions of Supply Code particularly Condition No. 6.1.8, which is a statutory condition or the regulations made in exercise of the legislative powers, the billing cannot be made in excess of three months for agriculture etc and for commercial or such use cannot be made in excess of six months. He pointedly referred to Condition No. 6.1.8 and submitted that in fact it clearly provides that the liberty is reserved to the consumer in such billing. He submitted that such provision is made in favour of the consumer and the consumer can still satisfy on the basis of material and evidence that if there is no justification for making the bill for assessment of six months, then it can be considered based on the material and evidence. He therefore submitted that the licensee company cannot make the assessment dehors such conditions of Supply Code providing for maximum period of six months. He therefore submitted that the licensee company cannot make the assessment dehors such conditions of Supply Code providing for maximum period of six months. Learned Advocate Shri Darji submitted that the emphasis on the words in Condition No. 6.1.8 has to be read in consonance with the entire condition number 6.1.8 and it clearly provides for six months only. He therefore submitted that the Electricity Ombudsman has considered the relevant material and the present petition may not be entertained. 8. Learned Advocate Shri Darji submitted that the legislature has provided for the specific time for such assessment in a given case and it has also consciously made a different time for different categories of consumers. He also referred to Condition No. 7.2.2 of the Supply Code and submitted that if it is read with Condition No. 6.1.8, it is evident that even in case of unauthorized use of electricity, the assessment cannot exceed or go beyond six months. He therefore submitted that if in case of unauthorized use of electricity it could be confined to only six months. There is no justification for making the assessment for more than six months when the meter is running slow without any fault on part of the consumer like the petitioner. 9. In rejoinder, learned Advocate Ms. Lilu K. Bhaya submitted that Condition No. 6.1.8 provide for the period of six months in the absence of any material or the base. However, if there is any further material, then the assessment could be made accordingly and therefore the present petition may be allowed. Learned Advocate Ms. Bhaya referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2012) 2 SCC 108 in case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) and Another vs. Sri Seetaram Rice Mill. 10. In view of the rival submissions, it is required to be considered whether the present petition deserves consideration. 11. The submission made by learned Advocate Ms. Lilu K. Bhaya for the Petitioner – PGVCL that if there is any dispute between the ‘consumer and consumer’, the matter may go to the consumer forum, and if there is a dispute between the ‘Consumer and the Licensee’ it can be decided by the Electricity Ombudsman in an Appeal under Section 42(5) of the Electricity Act and accordingly it has been decided. Therefore, the moot question, which is required to be considered is whether the order passed by the Ombudsman in Case No. 116 of 2014 calls for any interference in exercise of discretion under Article 226 and 227 of the Constitution of India, which is effectively under Article 227, or whether the order is without authority, jurisdiction or perverse which would call for interference in exercise of discretion under Article 226 and 227 of the Constitution of India. 12. The petition is filed by the licensee mainly emphasizing Clause 6.1.8 of the Supply Code. It is not in dispute that it is not a case of theft of energy or any kind of irregularity where the licensee can have recourse under Section 135. As it is evident from the record that the meter was not recording the correct consumption and in the inspection as per the inspection sheet, it is found to be running slow and not accordingly a correct consumption. Therefore, it has been clear that it is not a case of unauthorized use but is the slowness of the meter or not recording it properly. Therefore, if the issue is only with regard to the assessment order and, when the appellate authority, on appreciation of material and evidence has modified the bill or the assessment, the reliance is placed by learned Advocate Ms. Lilu K. Bhaya that though it is not a case of unauthorized use of energy or any malpractice, but as the meter has been running slow and not recording the consumption properly, the bill has been made as per Clause 6.1.8 of the Supply Code. Clause 6.1.8 of the Electricity Supply Code provide: “In the event of the meter being tested by the Distribution Licensee, either on his own or upon a request by a consumer and being found to be beyond the limits of accuracy as prescribed in the Rules in force, the amount of the bill for a period of three months immediately preceding the date of inspection of the meter in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection of the meter for all other categories of services, shall be estimated in accordance with the result of the test. Any evidence provided by consumer about conditions of working and/or occupancy of the concerned premises during the said periods, which might have had a bearing on energy consumption, may be considered.” 13. The Supply Code is a statutory regulation framed in exercise of the powers under the Electricity Act and, as rightly submitted, it has the statutory force. However, as per Clause 6.1.8, where the meter is tested by the licensee, the bill for a period of three months immediately preceding the inspection could be raised in case of domestic and agriculture service and for a period of six months immediately preceding the date of inspection for other categories. Meaning thereby, it has been considered while framing such regulation providing for the limit in such cases where the meter is not recording accurately. Therefore, an upper cap has been provided that up to what period the bill could be raised where the meter is not recording correctly. In spite of this specific Supply Code made in exercise of statutory power by the licensee, learned Advocate for the petitioner licensee has tried to emphasize on the words; ‘shall be estimated in accordance with the result of the test’. If Clause 6.1.8 is read together, it does not leave any doubt that the clause itself stipulates the period for which the bill could be made where the meter is not recording correctly or accurately in spite of two different categories of the consumers. Thus, the words ‘shall be estimated in accordance with the result of the test’ has to be read with the entire clause 6.1.8 and cannot be read out of context or in isolation. If for the purpose of this calculation for a period of three or six months it has to be estimated in accordance with the result of the test, meaning thereby, if the test result of the meter suggest that it is not accurate, then in that case, as stated above, the assessment could be made for the stipulated period of either three months or six months for different categories of consumers. The submission made by learned Advocate Ms. Lilu K. Bhaya that the later part of the words ‘shall be estimated in accordance with the result of the test’ would leave a scope for assessment beyond the stipulated period on the basis of the result of the test. In other words, learned Advocate Ms. The submission made by learned Advocate Ms. Lilu K. Bhaya that the later part of the words ‘shall be estimated in accordance with the result of the test’ would leave a scope for assessment beyond the stipulated period on the basis of the result of the test. In other words, learned Advocate Ms. Lilu K. Bhaya has tried to submit that normally it could be for a period of three and six months but in a given case on the basis of the test report it could be for the higher period. This argument itself is self-contradictory inasmuch as the assessment for a period of three or six months as recorded in Clause 6.1.8 itself suggest and stipulates the upper limit for which such assessment could be made for the bill where the meter is not recording accurately and the estimate could be made for the aforesaid period of either three months or six months depending upon the category of the services and the consumers. Had there been any doubt, it would have been specifically provided using the language more specific and clear that it may be open for the licensee to make the assessment beyond the prescribed period in a given situation. Therefore, reading Clause 6.1.8 as well as the words which have been emphasized by learned Advocate Ms. Lilu K. Bhaya does not justify the assessment beyond the period prescribed in Clause 6.1.8. Therefore, the submissions which have been made with much emphasis are misconceived. In fact, Clause 6.1.8 has to be read with Clause 6.1.10 which referred to the forum or the Ombudsman and it provides that if the meter is found incorrect, the amount of bill shall be estimated as per Clause 6.1.8. 14. Moreover, the submission made by learned Advocate Shri Darji referring to Section 7 and Clause 7.1 which provide for unauthorized use of electricity clearly suggest that even in case of unauthorized use of electricity the assessment is made for a limited period as per Clause 7.2.2. 14. Moreover, the submission made by learned Advocate Shri Darji referring to Section 7 and Clause 7.1 which provide for unauthorized use of electricity clearly suggest that even in case of unauthorized use of electricity the assessment is made for a limited period as per Clause 7.2.2. which reads: “If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorized use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.” 15. Thus, even if the Assessing Officer reaches to the conclusion that the unauthorized use of the electricity has taken place, it provide that the Assessing Officer may presume that such use of electricity was for a period of three months in case of domestic and agriculture and for a period of six months for all other categories. Therefore, even in case of unauthorized use of the electricity suggesting some kind of malpractice, the upper cap or the time schedule has been provided for making the assessment for the bill prescribing that it cannot be beyond the prescribed period of three months or six months depending upon the category or the consumer. Therefore, when there is unauthorized use, there is a specific upper time limit for which the assessment could be made and for a genuine mistake of slowness of the meter for which the consumer is not at fault, it cannot be argued that the assessment could be made for a period higher than what is specifically provided in Clause 6.1.8 on the same line resorting to the words, ‘shall be estimated in accordance with the result of the test’. The submissions therefore are thoroughly misconceived and cannot be accepted. 16. The another facet of submission which have been made with reference to the laboratory report and the MRI are also misconceived. The submissions therefore are thoroughly misconceived and cannot be accepted. 16. The another facet of submission which have been made with reference to the laboratory report and the MRI are also misconceived. The submission that due to technology of the MRI it could be traced as to the definite period or the duration for which such meter was not recording accurately, and therefore, the assessment could be made, is misconceived and if such an argument is accepted, it would amount to negating the statutory regulations of Supply Code framed in exercise of powers under the Electricity Act. 17. It is well settled that while interpreting the statute or the legislature, it has to be read as a whole as well as in the context and background of the facts for which such provision is made. It is well accepted the text of the legislature has to be read in the context of the issue. Therefore, a word or a few words here or there cannot be picked up and read in isolation as sought to be canvassed. Therefore, the submission that the period of three months or six months would be applicable only in absence of any other evidence is misconceived. While interpreting the provision, the word or the language has to be read and interpreted in simple and natural way and the meaning has to be gathered without any external aid. The court while interpreting the same cannot read or add to such provision when the simple language and the reading of the provision like in Supply Code makes the position clear. As rightly submitted by learned Advocate Shri Darji, it is also required to be stated that the legislature has specifically provided for different time limits and has also provided only qua the consumers to contend that even if the assumption could be made for the period prescribed on the basis of material and evidence to be satisfied with by the authority. In fact it has been made to enable the consumer that he can on the basis of some material and evidence even satisfy the authority or the licensee that such assumption even for the prescribed period of three or six months may not be made as a rule of thumb, if there is a material suggesting otherwise. In fact it has been made to enable the consumer that he can on the basis of some material and evidence even satisfy the authority or the licensee that such assumption even for the prescribed period of three or six months may not be made as a rule of thumb, if there is a material suggesting otherwise. For example, if the unit has been closed with sufficient material, then, even the assumption as provided in Clause 6.1.8 may be examined by the authority. It is required to be stated that in the Electricity Act of 2010 similar kind of statutory provision under Section 126 of the Electricity Act was made and Section 126 referred to unauthorized use of electricity which would enable the licensee to make the assessment for a period during which such unauthorized use of electricity may have taken place. Again even in that statutory provision like Section 126 of the Electricity Act the period was prescribed. Not only that when it was a case of not any unauthorized use or suggesting any malpractice, but only a defective meter, it has been provided that it has to be referred to the Electrical Inspector and the licensee has no right or jurisdiction to make the assessment. 18. Be that as it may, even the judgment of the Hon'ble Apex Court in case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) and Another vs. Sri Seetaram Rice Mill (supra) referred to and relied upon by learned Advocate Ms. Lilu K. Bhaya would not support her contention. The issue with regard to the jurisdiction for assessment and the demand could be better examined and assessed by the authority based on material and evidence. 19. The Hon'ble Apex Court in a judgment in case of (Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) and Another vs. Sri Seetaram Rice Mill (supra) has clearly observed referring to the judgment of the Hon'ble Apex Court in case of Balram Kumawat vs. Union of India, (2003) 7 SCC 628 : “The Contextual reading is a well-known proposition of interpretation of stature. The clauses of a statue should be construed with reference to the context vis-a-vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject-matter. The rule of ex visceribus actus should be resorted to in a situation of this nature.” 20. The clauses of a statue should be construed with reference to the context vis-a-vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject-matter. The rule of ex visceribus actus should be resorted to in a situation of this nature.” 20. Moreover, the moot question is whether this court in exercise of discretionary jurisdiction under Article 226 or 227 would be justified to disturb the order passed by the Electricity Ombudsman in exercise of statutory power under the Electricity Act under the concept of judicial review. The Hon'ble Apex Court in a judgment in case of State of U.P. vs. Maharaja Dharmander Prasad Singh, (1989) 2 SCC 505 : AIR 1989 SC 997 has observed: “However, judicial review under Article 226 cannot be converted into an appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision-making process. Chief Constable of the North Wales Police v. Evans refers to the merits-legality distinction in judicial review. Lord Hailsham said: "The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court." Lord Brightman observed: “... Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.... Further, the Hon'ble Apex Court in a judgment in case of Apparel Export Promotion Council vs. A.K. Chopra, (1999) 1 SCC 759 has observed: “Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority.” 21. Moreover, as observed and it has been a settled law that the High Court would normally not interfere in exercise of discretionary jurisdiction under Article 226 and 227 when the statutory remedy is provided and the authority has considered based on material and evidence. Therefore, the scope of exercise of discretion in such cases would be limited and would not disturb the findings and conclusion of the appellate authority unless it can be said to be perverse and/or without jurisdiction and authority. 22. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in (2012) 2 SCC 108 in case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) and Another vs. Sri Seetaram Rice Mill. The Hon'ble Apex Court has referred to the aspect of unauthorized use referring to Section 126 and also the statutory provisions which include Section 127 of the Electricity Act referring to the powers of the appellate authority. It has been observed in this very judgment: “53. It is a settled canon of law that the High Court would not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The courts, including this Court, have taken the view that the statutory remedy, if provided under a specific law, would impliedly oust the jurisdiction of the Civil Courts. The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can entertain writ or appropriate proceedings despite availability of an alternative remedy. This jurisdiction, the High Court would exercise with some circumspection in exceptional cases, particularly, where the cases involve a pure question of law or vires of an Act are challenged. This class of cases we are mentioning by way of illustration and should not be understood to be an exhaustive exposition of law which, in our opinion, is neither practical nor possible to state with precision. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the Courts. This class of cases we are mentioning by way of illustration and should not be understood to be an exhaustive exposition of law which, in our opinion, is neither practical nor possible to state with precision. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the Courts. It will normally depend upon the facts and circumstances of a given case.” It is further observed: “We are of the considered view that interest of administration of justice shall be better sub-served if the cases of the present kind are heard by the courts only where it involves primary questions of jurisdiction or the matters which goes to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act. However, it should only be for the specialized Tribunal or the appellate authorities to examine the merits of assessment or even factual matrix of the case.” 23. Moreover, the reliance placed on Clause 6.1.8 of the Supply Code of the Gujarat Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations 2005 is required to be considered. It has been specifically provided that where the meter is running slow, the amount of bill could be for a period of three months preceding the inspection for the domestic consumer and it could be for a period of six months preceding the date of inspection for other categories. In spite of such provisions, which have also been considered by the Electricity Ombudsman while considering the grievance of the Respondent on the basis of material, it does not call for any interference. It has been specifically observed that the licensee has not followed Clause 5.9.2 of the Supply Code and therefore has modified the bill and the charges, which has been challenged in the present petition. Therefore, in spite of the statutory provision and the scheme of the Act providing for the Electricity Ombudsman, it is considered on the basis of the relevant data and material which cannot be said to be without any authority or jurisdiction which would call for any interference in exercise of discretion under Article 226 and 227 of the Constitution of India. 24. 24. As stated above, reference can be made to the judgment of the Hon'ble Apex Court reported in (2012) 2 SCC 108 in case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) and Another vs. Sri Seetaram Rice Mill, where referring to the underlying object and reason, the Hon'ble Apex Court has also considered the scope of exercising the discretionary jurisdiction under Article 226 and 227 of the Constitution of India with the powers or the discretionary exercise by the authority under the Act who are better suited to address the issue involved. 25. Therefore, when the legislature has clearly provided for the specific duration for which the assessment could be made as per the Supply Code which is also a statutory regulation, there is no justification to disturb the findings given by the Electricity Ombudsman and the present petition filed by the Petitioner-Electricity Company cannot be entertained and deserves to be dismissed and accordingly stands dismissed. Rule is discharged. Petition dismissed.