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Gujarat High Court · body

2020 DIGILAW 161 (GUJ)

Deputy Engineer (O and M) v. Manishbhai Bhagwanbhai Patel

2020-01-27

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : A.J. SHASTRI, J. 1. The appellant – original petitioner, has filed the present Letters Patent Appeal under clause 15 of the Letters Patent, aggrieved by judgment and order dated 19.09.2019 passed by the learned Single Judge in Special Civil Application No. 8548 of 2019. 2. The background of fact leading to this litigation is that respondent no. 1 in origin is a consumer of the petitioner under N.R.G.P., for industrial purpose with a contract load of 26.5 KW. On an application of respondent no. 1 regarding the burnt meter on 23.04.2018, the electricity connection was checked and during the checking, it was noticed by the petitioner – authority, that display voltage showed VI-249.23 volt, V2-251.42 volt and V3-237.04 volt, whereas ampere was found to be A1-30.08, A2-0.81 and A3-39.96. Thus, there was a negligible ampere found in one phase and the officers found that the meter ran slow by 33.86%, on checking with accused-check. A checking sheet was prepared on 23.04.2018 and based upon it, the meter was replaced on 24.04.2018 and sent to the laboratory for checking on 03.07.2018. 3. As per the case of the appellant – authority, the laboratory inspection has revealed certain discrepancies, due to which, MRI data was retrieved. The manufacturer of the meter was contacted and MRI Data was taken on 06.07.2018. As per the MRI report in the meter of ‘Y’ phase ‘CT’ opened on 01.01.2018 with a reading 210876.1 KHW, which revealed slowness from 01.01.2018 to 24.04.2018. Based upon such analysis, since the meter was running slower by 33.86%, a supplementary bill to the extent of Rs.1,15,000.93 paise came to be issued. 4. Respondent no. 1 issued an average bill for April billed in May, 2018 on 17.04.2018 with the faulty status, with reading as indicated. However, as per the laboratory inspection reading on 24.04.2018 in the MRI report the data was found to be 247949. The consumption to the extent of 16760 KWH units was recorded during the said period, whereas, respondent no. 1 was billed for 7660 KWH units. Hence, an amount of Rs.57,148/- for 9100 units was debited from the account of respondent no. 1. 5. Aggrieved by the said issuance of bill, respondent no. 1 approached the Consumer Grievance Redressal Forum through a compliant on 01.10.2018. After hearing the parties, the bill was found to be just and proper, the compliant filed by respondent no. Hence, an amount of Rs.57,148/- for 9100 units was debited from the account of respondent no. 1. 5. Aggrieved by the said issuance of bill, respondent no. 1 approached the Consumer Grievance Redressal Forum through a compliant on 01.10.2018. After hearing the parties, the bill was found to be just and proper, the compliant filed by respondent no. 1 was disposed of on 09.10.2018. 6. It is the case of the appellant – authority that aggrieved by the said decision, respondent no. 1 approached respondent no. 2 i.e. Electricity Ombudsman, State of Gujarat, by way of appeal. The appeal was registered as Case No. 109 of 2018. After hearing the parties at length, and examining the discrepancies in controversy, respondent no. 2, has found that close scrutiny of MRI Data and analysis, shows that the meter does not appear to be slow by 33.86% constantly. Hence, the appellant authority was directed to issue a bill to respondent no. 1 for 1791 units. It is this reasoned order, passed by respondent no. 2 – authority, dated 23.01.2019 that has been challenged by the appellant – authority, by way of aforesaid writ petition. 7. The learned Single Judge took up the hearing bipartite of the petition. After hearing at length and examining the details and circumstances prevalent on the record, it was found that no case is made out by the appellant – authority, to interfere with the order passed by respondent no.2. Resultantly, in exercise of extra ordinary jurisdiction under Article 227 of the Constitution of India, the petition came to be dismissed. It is this order passed by the learned Single Judge that has been made the subject matter of appeal before us. 8. We have heard Ms. Lilu K. Bhaya, learned counsel appearing on behalf of the appellant – authority, and Shri Vatsal Parikh, learned counsel appearing for the contesting respondent no. 1. With the consent of the both the learned counsels, the matter has been taken up for its final disposal. 9. Ms. Bhaya, learned counsel for the appellant has vehemently contended that the learned Single Judge ought to have minutely examined the relevant material, namely, the Checking Sheet as well as MRI report. These clearly indicate that there has been slowness in the meter. 9. Ms. Bhaya, learned counsel for the appellant has vehemently contended that the learned Single Judge ought to have minutely examined the relevant material, namely, the Checking Sheet as well as MRI report. These clearly indicate that there has been slowness in the meter. When experts have already evaluated that the position of the meter is that of having slower by 33.86%, interference with such a conclusion, based upon scientific analysis, could not have been made by respondent no. 2 authority. This aspect, ought to have been taken into consideration by the learned Single Judge. Ms. Bhaya, learned counsel, has further contended that details have been provided regarding the circumstances under which the MRI analysis has indicated slowness of the meter. Therefore, the details of circumstances visible on record, ought not to have been left unnoticed by respondent no. 2 in coming to the conclusion. The order passed by respondent no. 2 being perverse to the record, ought to have been set at naught in writ jurisdiction, which is well within the scope of judicial review. Ms. Bhaya, learned counsel, has further contended that the only issue to be gone into was that of comparing the figures for the period commencing from 01.01.2018 to 24.04.2018, which indicates slowness for 114 days and not for 10 days 12 hours and 19 minutes. The calculation derived by respondent no. 2 in dealing with the appeal of respondent no. 1, is outside the purview of his jurisdiction. Therefore, since this material aspect has not been considered by the learned Single Judge, the order in question deserves to be quashed and set aside. 10. Ms. Bhaya, learned counsel for the appellant, has further strenuously submitted that the scope of extraordinary jurisdiction is not so limited that if any finding is perverse, it cannot be considered and examined here. The learned Single Judge appears to have treated this petition as petition under Article 227 of the Constitution of India. Hence, the learned Single Judge has thought it fit not to interfere with the analysis of the authority who passed the order, mainly on the ground that since the issue is technical, no further examination is to be undertaken. That being the fallacy, the impugned order is not sustainable in the eyes of law. 11. Hence, the learned Single Judge has thought it fit not to interfere with the analysis of the authority who passed the order, mainly on the ground that since the issue is technical, no further examination is to be undertaken. That being the fallacy, the impugned order is not sustainable in the eyes of law. 11. As against this, Shri Vatsal Parikh, learned counsel for the contesting respondent, has vehemently contended that there is no perversity of any nature reflected in the order passed by respondent no. 2. Since the Ombudsman Authority has examined the issue at great length it has correctly analyzed the MRI report vis-a-vis, the laboratory checking of the meter in question, which has been compared with the Checking Sheet. When the detailed analysis was undertaken, there was hardly any reason for the appellant to re-agitate the issue since the Ombudsman Authority i.e. respondent no. 2 has granted effective and adequate opportunity to represent the case. Since there is no new material or better submission with regard to better facts coming out from the stand of the appellant authority, interference by the learned Single Judge is correct, Hence, in the absence of any illegality or material irregularity of any nature, the order in question does not call for any interference. 12. Having heard the learned counsel appearing for the respective parties and having gone through the material on record, a bare look at the order passed by respondent no. 2, on perusal, clearly indicates that the Ombudsman Authority had correctly analyzed the MRI report and the Data of the meter in question dated 06.01.2019. They have evaluated the contents thereof at length and then arrived at a conclusion based on critical analysis of the said report. Since the said order is passed with cogent reasons and examination of facts at length, we deem it proper not to find any fault with the order of the learned Single Judge since, the learned Single Judge has also examined the contents and the relevant observations made by respondent no. 2 and then passed a reasoned order, after granting full opportunity to the parties concerned. We are not inclined to substitute our view in any form. 13. The learned Single Judge has also observed at length and has examined the contents of the impugned challenge in the main petition and the relevant observations contained in para 10, 11, and 12. 2 and then passed a reasoned order, after granting full opportunity to the parties concerned. We are not inclined to substitute our view in any form. 13. The learned Single Judge has also observed at length and has examined the contents of the impugned challenge in the main petition and the relevant observations contained in para 10, 11, and 12. We found that the said observations are just and proper and we are in complete agreement with the view taken by the learned Single Judge. We deem it proper to reproduce the relevant observations at this stage. “10. Taking into consideration the rival submissions made by learned advocates appearing on behalf of both the sides, facts that meter was running slow by 33.86% and the units, recorded in the meter as well as in the MRI data, are not in dispute. The only dispute which is raised by the petitioner is that the slowness of running of meter should be for 114 days and not for 10 days 12 hours and 19 minutes as calculated by the respondent No.1 on the basis of MRI report from 01.01.2018 to 24.04.2018. It was therefore, prayed to hold that the Ombudsman has committed an error by reducing bill of Rs.1,15,000/- by not considering the MRI report for counting slowness of running of meter for 114 days. 11. On perusal of the impugned judgment and order passed by the respondent No.2-Ombudsman, as the findings are of technical nature, the findings given by Ombudsman in paragraph No.4.5 of the impugned order, cannot be substituted as per submissions of the petitioner. The petitioner has also not submitted any further expert opinion about calculation of the units to show that the meter was not continuously running slow and there was no “make events/break event”. The petitioner has also not submitted any further expert opinion about calculation of the units to show that the meter was not continuously running slow and there was no “make events/break event”. Therefore, as per the MRI report from 01.01.2018 to 24.04.2018, there were 23 counts showing meter running slow whose total comes to 10 days, 12 hours and 19 minutes for which, the Ombudsman has concluded that as the meter was running slow, electricity consumption which was recorded as 3500 units ought to have been 5291 Units, and therefore, reduced the bill to difference of units which ought to have been recorded by considering slowness of meter by 33.86% and Units recorded as per the MRI data, therefore, the petitioner was rightly directed to issue bill for 1791 units, instead of considering 114 days as continuous period for running meter slow for issuing bill of Rs.1,15,000/-. 12. In view of the foregoing reasons, there is not infirmity in the impugned order passed by respondent No.2 calling for any interference while exercising powers under Article 227 of the Constitution of India. The petition therefore, being devoid of any merit, is accordingly summarily dismissed. No orders as to cost. Notice is discharged.” 14. From the aforesaid circumstances and in view of the fact that the extra ordinary jurisdiction under Article 227 of the Constitution of India has been properly exercised by the learned Single Judge and in absence of any better material or submission, we are not inclined to disturb the view taken by the learned Single Judge. We are benefited by the observations of the Apex Court about the said scope while dealing with Letters Patent Appeal contained in para 5 of the decision in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company reported in (2016) 3 SCC 340 , we see no reason to interfere with the findings of the learned Single Judge. Thus, the appeal lacks merit, we hereby dismiss the same. 15. Since the main appeal is dismissed, the connected civil application also stands dismissed.