C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7979 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7993 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7994 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7997 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8011 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8013 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7998 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7999 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8000 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7980 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7982 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8015 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DEPUTY ENGINEER, MADHYA GUJARAT VIJ COMPANY LTD.
Versus
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C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023
MARUT HARESH SHAH
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Appearance:
MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1
MS RUMI M GANDHI(3472) for the Petitioner(s) No. 1
MR.JAY B. TRIVEDI, AGP for the Respondent(s) No. 2
MR RATHIN P RAVAL(5013) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 09/02/2023
COMMON ORAL JUDGMENT
1. Heard Mr.Chinmay Gandhi learned advocate for the petitioners and Mr.Rathin Raval learned advocate for respondent no.1 and Mr.Jay Trivedi learned AGP for the respondent State.
2. By way of these petitions under Articles 226 and 227 of the Constitution of India, the petitioner- Madhya Gujarat Vij Company Limited has challenged the orders passed by the Appellate Authority in their respective appeals, by which, the appeals of the consumers filed under Section 127 of the Indian Electricity Act 2003 have been allowed.
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3. For the purposes of this judgement, facts of Special Civil Application No.7979 of 2021 are being considered.
4. The respondent was a consumer of electricity. The officers of the electricity company visited the premises on 07.02.2020. A checking was done and an endorsement was made in the checking sheet that the consumers were using the electricity for commercial purposes. Taking as a case of unauthorized case of electricity invoking provisions of Section 126 of the Act, the provisional bill was issued on 12.02.2020 along with the copy of the checking sheet. It is the case of the petitioner company that the consumer refused to accept the sheet. On an objection being lodged by the consumer on 28.02.2020, its reply was given on 03.03.2020. A final bill of assessment under the provisions of Page 3 of 13 Downloaded on : Fri Feb 10 20:49:50 IST 2023 C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023 Section 126 was issued on 18.03.2020. The respondent on 30.05.2020 after payment of 50% of the bill in question, filed an appeal. After hearing the parties at length, the Appellate Authority allowed the appeal of the respondents.
5. Mr.Chinmay Gandhi learned counsel for the electricity company would assail the order of the Appellate Authority on the following grounds: 5.1 Mr.Gandhi would submit that admittedly there was change of use from RGPE to NRGP which was recorded in the checking sheet when the officers of the electricity visited the premises on 07.02.2020. He would invite the Court's attention to indicate that it was admittedly the change of user from residential purposes to commercial purposes. The respondent consumer had refused to sign the checking sheet. After the Page 4 of 13 Downloaded on : Fri Feb 10 20:49:50 IST 2023 C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023 consumer lodged his objection on 28.02.2020 and after a response to the consumer on 03.03.2020, a final bill was issued on 18.03.2020. Admittedly the appeal was filed on 15.06.2020 beyond the period of 30 days which is a maximum limit prescribed under Section 127 of the Electricity Act.
5.2 The second ground of challenge to the order is that the finding of the Appellate Authority that there was no change of usage, is contrary to the evidence on record and merely by taking into consideration evidence of the property tax, the authority could not have disbelieved the stand of the petitioner when admittedly there was evidence to show that the respondent was using residential connections for commercial purposes. In support of his submissions, he would rely on a snapshot/screenshot of an apartment/building Page 5 of 13 Downloaded on : Fri Feb 10 20:49:50 IST 2023 C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023 which was named as Shreeji Service Apartment which was used as a hotel premises in the name of OYO Hotels. Therefore on two grounds; firstly when admittedly there was an unauthorized use of electricity and secondly, the appeal was filed beyond the time, the order of the Appellate Authority deserves to be quashed and set aside.
6. Mr.Rathin Raval learned counsel appearing for the respondent no.2 would support the order and submit that the finding of the Appellate Authority on non-compliance of the provisions of Section 126(3) and 126(4) of the Act was a finding arrived at by the Appellate Authority in consonance with such provisions. The regulations referred to in the order indicated that the copy of the inspection report in accordance with Clause 7.29 of the Electricity Supply Code was not issued once the respondent Page 6 of 13 Downloaded on : Fri Feb 10 20:49:50 IST 2023 C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023 had refused to sign the checking sheet and therefore the order of the Appellate Authority does not deserve to be interfered with.
7. Considering the facts on hand and taking the dates as set out in Special Civil Application No.7979 of 2021 indicates that the provisional bill was issued on 12.02.2020, after the objection of the consumer on 28.02.2020 on filing of the reply, to that objection by the electricity company, the final bill was issued on 18.03.2020. Taking the date for the provisional bill as 12.02.2020 and that of the final bill as 18.03.2020, the finding of the Appellate Authority that there was violation of the provisions of Section 126(3) of the Act needs to be considered. Section 126 of the Electricity Act deals with the assessment when there is unauthorized use of electricity in accordance Page 7 of 13 Downloaded on : Fri Feb 10 20:49:50 IST 2023 C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023 with sub-sections (2) and (3). The said sub- sections are reproduced hereunder:
Section 126: (Assessment): ---
...
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
[(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.] The above indicates that the person on whom the provisional assessment order is served, may file his objections, if any. On such objections being filed and after giving an opportunity to such person, a final order of assessment has to be Page 8 of 13 Downloaded on : Fri Feb 10 20:49:50 IST 2023 C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023 made within 30 days from the date of service of such order of provisional assessment. Merely because the objections of the consumer were filed on 28.02.2020, to which, the company responded on 03.03.2020, would not ipso-facto extend the period of time within which the order of assessment had to be made in compliance with sub-section (3) of Section 126 thereof. Admittedly the order was passed beyond the period of 30 days i.e. on 18.03.2020, whereas, the provisional bill was of 12.02.2020. The order of the Appellate Authority on this count therefore cannot be interfered with.
8. That brings the Court to the question of whether there was unauthorized use of electricity on the part of the respondents. The case of the company was that a checking sheet was issued on 07.02.2020, wherein, a report was made that Page 9 of 13 Downloaded on : Fri Feb 10 20:49:50 IST 2023 C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023 the Shreeji Flat Apartment building was using the electricity connections as Shreeji Service Apartments and there was therefore a change of user. This, in the perception of the electricity company was unauthorized use of electricity and therefore would fall within the provisions of Section 126(6)(4) of the Act. Examining the provisions of Section 126 read together with the Electricity Supply Code, 2015, specially clauses 7.29 and 7.46 thereof which were reproduced by the order of the Appellate Authority and are, for the benefit of the order, read as under:
"7.29 The report shall be signed by the Authorized Officer / Accessing officer, each member of the inspection team and by the consumer fails to sing the report, then the same has to be recorded in the inspection report and the report must be handed over to the consumer or his / her representative at site immediately under proper receipt. In case of refusal by the consumer or his / her representative to either accept or give a receipt, a copy of inspection report shall be Page 10 of 13 Downloaded on : Fri Feb 10 20:49:50 IST 2023 C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023 pasted at a conspicuous place in / outside the premises and photographed simultaneously the report shall be sent to the consumer under Registered Post / Speed Post on the same day or the next day of the inspection.
...
7.46 Reclassification of consumer category: If it is found that a consumer has been classified in a particular category erroneously or any order of reduction or enhancement of Contract Demand has been obtained, the Distribution Licensee may reclassify him under appropriate Category offer issuing notice (With minimum notice period of thirty days) to him to execute a fresh Agreement on the basis of the altered reclassification or modified contract demand."
The above clauses indicate that on evidence it was found that the electricity connections in all the separate apartments were on separate establishment and the flat was even assessed for the purposes of property tax as residential premises. There was therefore not a case where there was a change of use inasmuch as the Page 11 of 13 Downloaded on : Fri Feb 10 20:49:50 IST 2023 C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023 connection was for the residential purposes and there was no evidence in the perception of the Appellate Authority to indicate that the use was commercial.
9. Insofar as the action of the Electricity Company and the contention that the respondent had refused to accept the checking sheet, the Appellate Authority placed reliance on the provisions of Clause 7.29 which categorically provide for that in the event the consumer objects to sign a report, the same should be handed over or be pasted at a conspicuous place. The Appellate Authority on facts found breach of this supply code.
10. The order of the Appellate Authority having discussed these provisions and in light of the facts before it cannot be faulted to hold the Page 12 of 13 Downloaded on : Fri Feb 10 20:49:50 IST 2023 C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023 breach of such provisions. As far as the delay in filing the appeal is concerned, perusal of the order of the Appellate Authority would indicate that it was not the contention of the company before the Appellate Authority that the appeal was time barred. Even accepting the submission of the learned counsel that it was the question of law that had to be decided by this Court and that it was open for the petitioner to raise it, judicial notice is taken of the fact that during March 2020 to May 2020, there was the period of lock-
down and even the Supreme Court had recognized the concept of relaxation in the prescription of limitation.
11. For these reasons, there is no merit in these petitions. The petitions are dismissed.
(BIREN VAISHNAV, J) ANKIT SHAH Page 13 of 13 Downloaded on : Fri Feb 10 20:49:50 IST 2023