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2018 DIGILAW 921 (GUJ)

Saurashtra Paperand Board Mills Ltd. v. Paschim Gujarat Vij Co. Ltd.

2018-07-27

K.M.THAKER

body2018
JUDGMENT K.M. THAKER, J. 1. This petition was listed on 20.7.2018. Mr. R.P.Raval, learned advocate appeared for HL Patel Advocates for the petitioner. Learned advocate for the respondent was not present on 20.7.2018. After making submissions at length, Mr. Raval, learned advocate for the petitioner sought time to take instructions as to whether the petitioner would prefer to approach the appellate authority against the revised bill or wants to prosecute the petition. So as to enable learned advocate for the petitioner to take instruction, time was granted and vide order dated 20.7.2018, the Court adjourned the proceedings to today. The said order dated 20.7.2018 reads thus: Learned advocate for the respondent has filed sick-note. Learned advocate for the petitioner also needs time to take instruction. Therefore, hearing is adjourned. S.O. to 27/7/2018. 1.1 It appears learned advocate is not conveyed clear and specific instructions. Therefore, he would submit to pass appropriate order in light of submissions already urged by him. 1.2 Learned advocate for the respondent was not present on 20.7.2018. Today also, learned advocate for the respondent is not present. On 20.7.2018, it was submitted that learned advocate for the respondent had filed sick note. Today, though learned advocate for the respondent has not filed leave note or sick note, she is not present. 2. In present petition, the petitioner has prayed, inter alia, that: (9b) Declare and set aside the order Dt. 24/12/03 of Appellate Committee, GEB. (c) To order GEB to pay back the amount of money [Rs.12,64,000.00] wrongly taken from us along with 9% interest from 03/01/2004. (d) To remand back the matter to Appellate Committed for re consideration. 3. So far as factual background is concerned, it has emerged from the record that the petitioner is a consumer of respondent No.1 electricity company. In pursuance of the request by the petitioner, the respondent No.1 has granted HT connection. 3.1 It appears that subsequently, within the premise of the petitioner company, another undertaking came to be established namely, Saurashtra Specialities Pvt. Ltd. It is not in dispute that said Saurashtra Specialities Pvt. Ltd. is an associate sister company of present petitioner. It is not in dispute that the unit of the said other undertaking (Saurashtra Specialities Pvt. Ltd.) is established within the precincts of petitioner company. It is not in dispute that the unit of the said other undertaking (Saurashtra Specialities Pvt. Ltd.) is established within the precincts of petitioner company. 3.2 The petitioner company, however, claims that it is an associate company and that it is, of course, incorporated and registered as a separate legal entity i.e. as a private limited company, whereas the petitioner is public limited company. Under the circumstances, the fact that the said other undertaking is a separate and distinct legal entity is not in dispute. 3.3 It is also not in dispute that the said other undertaking i.e. Saurashtra Specialities Pvt. Ltd. had, at the relevant point of time, when the dispute arose in or around December 2003, had not applied for separate connection and it was not a separate and independent consumer of the respondent electricity company. 3.4 The petitioner would further claim that the said other undertaking occupies the premise on lease basis and it is tenant of the petitioner company. 3.5 According to the petitioner, since the said other undertaking is its tenant, it was not necessary for the said other undertaking (Saurashtra Specialities Pvt. Ltd.) to apply for separate connection. 3.6 It is not in dispute that the petitioner supplied electricity/power to the said undertaking and the petitioner would claim that the said undertaking i.e. Saurashtra Specialities Pvt. Ltd. used electricity (petitioner's HT connection) as its tenant. 3.7 In this background, a checking squad of the respondent company visited the premises in question. The checking squad noticed aforesaid arrangement. The said arrangement was reported to the competent authority/company. According to the respondent company, the said arrangement amounted impermissible sale of electricity. Therefore, the respondent company issued notice/supplementary bill. 3.8 Feeling aggrieved by the said notice/supplementary bill by the respondent company, present petitioner filed appeal before the appellate authority. The appellate authority heard the parties and decided the appeal (Appeal No.A/118/2003) vide order dated 24.12.2003. By the said order, the appellate authority held that though the action and conduct of the petitioner (and said other undertaking) may not amount to sell/supply of electricity by the petitioner, however, it would, prima facie, amount to contravention of service condition and may fall within purview of malpractice. 3.9 With the said observation, the appellate authority permitted the respondent company to issue supplementary bill. Thereafter, the respondent company issued another supplementary bill in January 2004 (i.e. supplementary bill dated 3.1.2004). 3.9 With the said observation, the appellate authority permitted the respondent company to issue supplementary bill. Thereafter, the respondent company issued another supplementary bill in January 2004 (i.e. supplementary bill dated 3.1.2004). It is claimed that the said supplementary bill is issued on the premise that the petitioner committed contravention of supply condition and/or malpractice. 3.10 Feeling aggrieved by the said order of the appellate authority and the supplementary bill, the petitioner has taken out this petition. 4. Mr. Raval, learned advocate for the petitioner submitted that the conclusion and findings recorded by appellate authority are beyond the scope of notice and the petitioner was not put to notice about alleged malpractice and that therefore, the impugned order is unsustainable. He would also submit that the respondent company has issued the supplementary bill in view of impugned order and not taken into account the facts and the amount which is demanded is determined arbitrarily, without any base and justification and the load allegedly used by the said other undertaking (Saurashtra Specialities Pvt. Ltd.) is incorrect. The petitioner would also contend that the base for the supplementary bill and for determination of the amount of other supplementary bill issued in January 2004 are not informed to the petitioner and that therefore, the supplementary bill should be set aside. Learned advocate for the petitioner would submit that the observations with regard to impugned order that there was 106 HP load is incorrect, inasmuch as only 76 HP load was used. It is also submitted that though the motor of 30 HP was not installed, the said 30HP load was wrongly taken into account as total connected load and the respondent electricity company has committed mistake in proceeding on the premise that the connected load was 106 HP whereas connected load was 76 HP. However, the appellate authority failed to take into account the said aspect and the respondent company ignored the said facts while issuing other supplementary bill which came to be issued after appellate authority passed impugned order. According to the petitioner, the order by appropriate authority is incorrect and should be set aside. 5. I have considered the contentions raised by the petitioner as well as the material available on record and impugned order. 6. Two relevant aspects which emerge from present petition are: (a) the petitioner has alternative remedy viz. According to the petitioner, the order by appropriate authority is incorrect and should be set aside. 5. I have considered the contentions raised by the petitioner as well as the material available on record and impugned order. 6. Two relevant aspects which emerge from present petition are: (a) the petitioner has alternative remedy viz. before appellate authority; and (b) the petitioner's grievance against the supplementary bill involves several disputed questions including technical aspects which could be effectively determined by the appellate authority. In that view of the matter, the petition does not deserve to be entertained and the petitioner should approach the appellate authority against the supplementary bill. 7. At the outset, it is relevant to take into account the observations by the appellate authority in the impugned order. The authority has recorded and observed that: Suffice to note at the outset that there is no dispute that the appellant is a consumer of the respondent Board having HT electrical installation with 400 KVA contract demand in his unit at Navagam, Rajkot. It is also not in dispute that the said electrical installation was checked by the Dy. Engr. HT i/c Squad, Rajkot on 15/12/2003 and at that time, the representative of the appellant was present and the connected load was found at 919 HP in the unit of the appellant. It is also not in dispute that necessary checking sheet and even Rojkam were prepared at that time and they were signed by the representative of the appellant without any protest. Now, it is specifically stated in the checking sheet bearing no.1554 and even in the Rojkam that the appellant was unauthorisedly supplying electrical energy of 106 HP load to one M/s. Saurashtra Specialities Pvt. Ltd. without permission of Board. Thus, checking sheet and Rojkam clearly show that there was unauthorized extension of loan of 106 HP to the another unit.... Now, it is the contention of the appellant that SSPL. unit, to which the said power was supplied by the appellant, is a tenant of the appellant and as such the case of re sale of power does not stand at all as provided in sub clause no.2 of clause no.24 of conditions. Now, in support of this, the appellant relied on the zerox copy of the Lease Deed Agreement dtd. Now, in support of this, the appellant relied on the zerox copy of the Lease Deed Agreement dtd. 1/8/03, it is clear from that Agreement that a portion of a land belonging to M/s. Saurashtra Paper & Board Mill Pvt. Ltd. is leased to M/s. Saurashtra Specialities Pvt. Ltd. for a period of six months at the appellant. This aspect of the case of the appellant is not even controverted by the respondent Boad. ... As it is specifically stated in the Rojkam that the unit to which the power was supplied is a unit constructed on the premises leased by the appellant as per the information given by the representative of the appellant. So, it cannot be denied that there is a relation of landlord and tenant between the appellant and SSPL. Clause no.24 of the conditions provides inter alia that the consumer is not permitted to supply a Pert or whole of the energy to any other person unless and unit he hokis a suitable license for distribution and sale of energy granted by the State Government or there is a special permission or contract granted by the Board. This clause no.24 clearly provides that the consumer is prohibited from supplying a part of energy to another person until and until he obtains necessary license or permission from State Government or from the Board. Now, Note no.2 of that Clause no.24 of the 'Conditions' also provide for supply of power by landlord to his tenant interalia can not be considered as unauthorized supply of energy. So, if we consider the provision of Note no.2 of Clause no.24 of the 'Conditions'. So, from this point of view, we are of the opinion that the case of re sale of energy of the appellant dos not stand at all and it cannot be d4enied that the appellant is wrongly booked for re sale of electrical energy. ... Now, the details of the malpractice in form of detenition are given in clause no.33 of the 'conditions'. It is provided in clause no.33(a) of the conditions that if a controvention in the consumer of any or the provisions of any act or rules, or rules, or of any rules or if there is contravention of any of the provisions of the Board's conditions & Misc. It is provided in clause no.33(a) of the conditions that if a controvention in the consumer of any or the provisions of any act or rules, or rules, or of any rules or if there is contravention of any of the provisions of the Board's conditions & Misc. charges for supply of electrical energy or of any other law governing the supply by the Board, it amounts to malpractice it is also clear that some cases of malpractice are enumerated in that promission vide sub clause no.(a) to (e). ... It is very clear that the condition no.31 of the Conditions prohibits the prejudicist use of supply of electrical energy by the consumer. It is provided in sub clause (e) of the Clause no.31 that the energy supplied by the Board to the consumer can be utilized only within the compact area of the factory not inrverted by any area belonging to any other authority and society for the purpose of the industry for which the supply is given for its industrial activities. Thus, sub clause (c) of clause 31 of the 'Conditions' makes it very clear that the energy required to be used within the compact area of factory and only for the purpose of industry for which the supply is taken by the consumer. 8. From the said observations, it comes out that the petitioner's apprehension for not approaching the appellate authority against the supplementary bill issued in 2004 is unjustified. It is apparent from plain reading of the order that the observations which are recorded by the appellate authority have been recorded so as to distinguish the case of the re sale of electricity vis-a-vis the case of breach of supply condition or malpractice and to justify its conclusion (that the original supplementary bill issued by the electricity company on the premise that the petitioner indulged into re sale of energy was unjustified). Thus, if the petitioner prefers appeal against the supplementary bill issued in 2004 then the said observations would not hold the appellate authority from independently and objectively considering the petitioner's appeal against fresh supplementary bill issued by the respondent electricity company and the said observations would not influence the appellate authority while deciding petitioner's appeal against fresh supplementary bill issued in 2004 and it would certainly not stand in way of the petitioner in taking out appropriate appeal proceedings before the appellate authority against the supplementary bill issued in 2004. Thus, merely because said observation are recorded, they neither render the order nor the bill as invalid. Further, in view of the fact that the supplementary bill against which the petitioner filed the appeal is already set aside by the appellate authority. In that view of the matter, the petitioner succeeded in the appeal so far as the first/original supplementary bill is concerned. The appellate authority has set aside said bill. Therefore, so far as the said first/original supplementary bill is concerned, the appeal succeeded. Therefore, there is no cause of action so far as that part of appellate authority's is concerned. Now, so far as the subsequent bill is concerned, that is not challenged in present petition. Of course, the petitioner has claimed refund of the amount paid by the petitioner in response to that bill/notice. The said claim can be considered only if the said subsequent bill of 2004 is concerned, the petitioner has remedy of appeal. Besides this, the said bill and petitioner's objection against said bill raise and involve several technical issues and disputed factual aspects which can be appreciated by appellate committee (which comprise technical experts). The petitioner does not want to avail said remedy only on account of its baseless and unjustified and ill founded apprehension and doubts. A petition preferred only on account of such apprehension and doubt does not deserve to be entertained. The petitioner should, instead of avoiding said remedy, should avail said remedy. 9. Mr. Raval learned advocate for the petitioner attempted to also submit that even the said supplementary bill is (according to the petitioner), not issued on the premise that the company committed malpractice. The petitioner should, instead of avoiding said remedy, should avail said remedy. 9. Mr. Raval learned advocate for the petitioner attempted to also submit that even the said supplementary bill is (according to the petitioner), not issued on the premise that the company committed malpractice. The said submission by learned advocate for the petitioner also makes it clear that the petitioner's objections and contentions against bill involve disputed facts and technical issues and that therefore, the appropriate remedy for the petitioner herein is to approach the appellate authority, more particularly because the petitioner's contention that at the relevant time the connected load was not 106 HP but connected load was 76 HP and the other contention that the electric motor of 30HP was not connected and it could not have been included in determining the connected loan as well as the contention that the consumption of electricity by said other establishment and/or supply of electricity by present petitioner, cannot be termed as malpractice when the supply is made to the tenant, are the issues which can be raised before and can be effectively determined by the appellate authority. 10. For the reasons mentioned above, this Court is of the view that since the petitioner has alternative remedy and the grievance of the petitioner involves not only several disputed facts but also certain technical aspects related to contract, connected load, use of energy, etc. proper remedy for adjudication of the petitioner's grievance is before the appellate authority and the petition, for the said reason, does not deserve to be entertained. The petitioner should, therefore, be relegated to the appropriate authority. 11. As mentioned above, the petitioner's apprehension with regard to the observations in the order are unjustified and ill founded. Nonetheless, so as to allay the petitioner's apprehension, it is clarified that when the petitioner files appeal against the supplementary bill issued in 2004, the concerned authority will hear and decide the said appeal and all contentions which may be raised by the petitioner, independently and on the basis of material which may be placed on record by present petitioner and without being influenced by any observation in the order dated 24.12.2003. It is also clarified that said order will not stand in way of the petitioner to challenge the supplementary bill dated 3.1.2004 and the authority will decide the appeal on its own merits and in accordance the relevant provisions including supply condition but without considering the order dated 24.12.2003 and without being influenced by the said order. With said clarification, the petitioner is relegated to alternative remedy with clarification that this Court has disposed of the petition only on said limited ground viz. that the alternative remedy is available to the petitioner and the subject matter of the petition involves disputed issues of facts and technical aspects. The petition stands disposed. Orders accordingly. Rule is discharged. Adinterim/interim relief, if any, stands vacated.