Gujarat High Court
Shah Faizal A Bhaijamal Nawaz Ice ... vs Madhya Gujarat Vij Co Ltd on 22 July, 2025
NEUTRAL CITATION
C/FA/3494/2022 ORDER DATED: 22/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3494 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/FIRST APPEAL NO. 3494 of 2022
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SHAH FAIZAL A BHAIJAMAL NAWAZ ICE FACTORY
Versus
MADHYA GUJARAT VIJ CO LTD & ANR.
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Appearance:
MR KM PANERI(6121) for the Appellant(s) No. 1
MR.NIRMISHKUMAR A PRAJAPATI(9770) for the Appellant(s) No. 1
MR JIGAR M PATEL(3841) for the Defendant(s) No. 1
RULE NOT RECD BACK for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 22/07/2025
ORAL ORDER
1. This Appeal is filed by the appellant under Section 96 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as `the Code') challenging the judgment and decree dated 15.6.2022 passed by the learned Principal District Judge, Panchmahals @ Godhra in Special Civil Suit (Electricity) No.1 of 2006, whereby, the suit of the original plaintiff was dismissed.
2. Heard learned advocate Mr. K. M. Paneri for the appellant and learned advocate Mr. Jigar M. Patel for the respondent No.1. Rule could not be served upon respondent No.2. Page 1 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025
NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined Perused the record.
3. The short facts arising from the record are as under:
4. The appellant filed a suit against the respondent for challenging the supplementary bill dated 17.5.2006 which was issued towards the theft of electricity. The case of the plaintiff in the paint is that an ice factory in the name and style of Nawaz Ice Factory is situated at Hayat Ni Wadi, Godhra. He was having the facility of 30 HP Industrial Electricity connection by consumer No.01001/51198/0. The vigilance squad of the respondent visited the ice factory in December 2005 and March 2006, but no irregularities were found. After the death of the appellant's father, plaintiff's mother, who was an elected Member of Nagar Palika, was undergoing iddat period and the plaintiff was at Dahod for his engineering exams. Ex-parte checking on 16.5.2006 was conducted at the ice factory of the plaintiff and thereafter a supplementary bill of Rs.7,56,401/- was issued on 17.5.2006. The summons were served upon the Page 2 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025 NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined respondent who appeared and filed Written Statement at Exh.11. The learned trial Court upon pleadings, framed issues vide Exh.15. The plaintiff examined himself at exhibit 53 and produced documentary evidence, notice Exh.54, original supplementary bill Exh.55, checking report Exh.56 and the certified copy of the deposition recorded in Special Civil Suit (Electric) No.7 of 2009. Respondent examined witness Ramanbhai Bapujibhai Malivad at exhibit 82 and also produced laboratory testing report at exhibit 83, MRI data at Exh.89, checking report exhibit 102, Rojkam of laboratory testing exhibit 103, FIR registered against the plaintiff at exhibit 106. After considering the evidence on record, learned Principal District Judge dismissed the suit with cost. Being aggrieved and dissatisfied with the impugned judgment and degree, the appellant - original plaintiff has filed the present first appeal.
5. Learned advocate for the appellant has mainly harped upon the issue that on the date of checking i.e. on Page 3 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025 NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined 16.05.2006, neither mother of plaintiff nor plaintiff were present at the place of factory and in absence of the plaintiff, the checking was conducted and, thereafter, a supplementary bill to the tune of Rs.7,56,401.25 Paisa came to be issued. It is contended that when the squad visited plaintiff's factory in the month of 2005, Officer of the respondent did not find any material against the plaintiff. It is contended that the Officers of the respondent noted down in their record that no irregularities are found during the inspection. Even in the month of March 2006, when the Officers of the respondent inspected the factory premises, no tampering with the meter was found. But after the death of plaintiff's father, when the mother of plaintiff was observing Iddat period and the plaintiff was busy in the exams conducted at Dahod, again on 16-05- 2006, the Officers of the respondent visited the factory premises and on the very next day, the supplementary bill came to be issued.
6. Learned advocate for the appellant submitted that the Page 4 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025 NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined challenge in the first appeal is only limited to the question of the power of the respondent to issue a supplementary bill for more than six months. A reliance has been placed upon Gujarat Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations, 2005. Regulation No.6.1.8 is reproduced hereunder:
"6.1.8 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 period(s), which might have had a bearing on energy consumption, may be considered."
7. Per contra, learned advocate for the respondent has contended that the present case is a case of theft of electricity and, therefore, Chapter 7 of the Regulations, 2005 are relevant. Regulation 6, more particularly, regulation No.6.1.8 which has been relied upon by learned advocate for the appellant are not relevant so far as the present case is concerned. He has referred Section 154(5) of the Electricity Act, 2003 which is reproduced hereunder: Page 5 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025
NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined "154(5) The Special Court shall determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court."
8. The aforesaid provision mandates that the special court shall determine the civil liability against a consumer or a person in terms of money for theft of electricity which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less.
9. Learned advocate for the respondent has placed on record a notification dated 14.12.2005 of the Regulations 2005. He has placed reliance upon Regulation No.7 which pertains to unauthorized use of electricity, more particularly known as Chapter 7 of the Electricity Act. Attention has been drawn with regard to Section 7.6.5 of the Supply Code which indicates that the assessment for the theft of electricity shall be made in accordance with Page 6 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025 NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined Section 7.2. Section 7.2 deals with investigation and provisional assessment. Reliance has been placed upon Section 7.2.2 of the unamended Supply Code which is reproduced hereunder.
"7.2. Investigation and Provisional Assessment:
7.2.2. If the assessing Officer reaches to the conclusion that unauthorized 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."
10. As per the aforesaid clause, when the Assessing Officer reaches to the conclusion that unauthorized use of electricity has been taken place, a presumption would be drawn that the unauthorized use of electricity was continuing for a period of 3 months immediately preceding the date of inspection in the case of domestic and agricultural activities and for a period of 6 months immediately preceding the date of inspection for all other categories of services.
11. Upon finding the anomaly in Section 154(5) of the Page 7 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025 NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined Electricity Act and the Regulation 6.1.8 of Supply Code was amended by notification dated 14.12.2005. Learned advocate for the respondent has placed on record a copy of notification dated 14.12.2005 and referred the amended Section 7.6.5, which is reproduced hereunder:
"7.6. Theft of Electricity 7.6.5 The assessment for the theft of electricity shall be made in accordance with Section 7.2."
12. It is submitted that after the amendment, supply code has remained in consistence with sub Section (5) of Section 154 of the Electricity Act. In the present case, the inspection was carried out in the year 2006 which is after the amendment in the supply code. It is further contended that the factory of the appellant would fall under the other categories of services and therefore the respondent has an authority and power to issue a supplementary bill for unauthorized use of electricity immediately preceding the date of inspection which would be 12 months. It is further contended that the question which has been raised by the appellant before this Court was never raised before the learned trial Court and there was no contention raised in Page 8 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025 NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined the plaint with regard to the implementation of Regulation No.6.1.8. It is submitted that learned Trial Court has rightly dismissed the suit and there is no reason to interfere in the decision of the learned trial Court. No other submissions are made except the above.
13. I have considered the submissions canvassed by the learned advocates for the respective parties and perused the paper book. The question which has been raised by the learned advocate for the appellant for quashing and setting aside the impugned judgment and decree is solely on the ground that clause No.6.1.8 of the Supply Code of Gujarat Electricity Regulations, 2005 which provides that where the meter is running slow, amount of bill can be claimed for a period of 3 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. Undisputedly, the factory premises of the appellant falls within the other categories. Page 9 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025
NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined
14. Whether in the present case, regulation 6.1.8 of Gujarat Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations, 2005 is applicable or not is a question to be answered. Regulation 6 deals with the metering and power supply charges (bills) meters where the meters are found either defective or required to be replaced upon request of either the consumer or upon inquiry made by the Officers of the Electricity Company. On reading the entire regulation No.6, the cases where the consumer is found to be in unauthorized usage of electricity power has not been mentioned.
15. For the unauthorized use of electricity, the relevant provision is Section 7, sub-section (5) of Section 154 of the Electricity Act gives power to Special Court regarding civil liability against a consumer for theft of energy, which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of theft of energy or the exact period Page 10 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025 NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined of theft, if determined, whichever is less. The unamended regulation 7.2.2 was for determination of the cases where unauthorized use of electricity has taken place and the unauthorized use of electricity was noticed or found for a period of six months immediately preceding the date of inspection for all other categories of services.
16. The afore-stated regulation stipulates that 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. It is further contended that on the ground of suspicion regarding meter seal, the electric connection of the appellant was discontinued by respondent. No other Page 11 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025 NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined submissions are made except the above.
17. If the amended section 7.6.5 is considered, it indicates that the assessment under such amended Section shall be applicable for a period of 12 months preceding the date of detection of theft or the exact period of theft, whichever is less. Section 6 of Supply Code is applicable to metering and power supply charges (bills) meters.
18. Learned advocate for the appellant could not point out as to how Section 6 of the Supply Code is applicable to the facts of present case. It is apparently clear on scrutinizing Sections 6 and 7 of the Supply Code that both the provisions are operating in different sphere and on the facts which have emerged on record, it is an undisputed fact that the question in the suit was pertaining to a supplementary bill which was issued by the respondent on finding unauthorized use of power.
19. A contention has been raised by the plaintiff in the plaint that the inspection was carried out in absence of plaintiff Page 12 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025 NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined and his mother. However, if the inspection report is perused, which is placed on record, it is found that the mother of the plaintiff has signed the same. When the plaintiff is asserting an allegation that the inspection was done in his absence, heavy burden lies upon the plaintiff to discharge the same. On the factual aspect of the signature, only mother of plaintiff can depose. In the cross- examination, the plaintiff has conveniently avoided a specific question and replied that he does not know whether his mother was present or not. The plaintiff in the cross-examination has not sticked to his version that the inspection was done in absence of his mother and his mother has not signed. Moreover, the plaintiff has not examined his mother, Sophiaben, whose signature is found on the inspection report. Section 7.2.2 of the Supply Code also speaks that the conclusion can be arrived at that unauthorized use of electricity has taken place, unless the onus is rebutted by the person, occupier or possessor of such premises or place. On considering the evidence on record, the plaintiff has also failed to rebut the conclusion Page 13 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025 NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined of unauthorized use of electricity when the rebuttal onus has not been duly discharged by the plaintiff, the conclusion which has been arrived at by the respondent holds ground.
20. As discussed above, supplementary bill issued by respondent was in consonance with the amended Regulation No.7.6.5, which contemplates demand for the unauthorized use of power for a period of 12 months preceding the date of detection of the theft. In my view, learned trial Court has rightly and properly interpreted the evidence and arrived at a conclusion that plaintiff has failed to prove his case and dismissed the suit. As no contrary material is found after scrutinizing the material available on record, I do not find any reason to interfere in the findings of fact and the conclusion arrived thereafter.
21. Under the circumstances, the appeal lacks merit and deserves to be dismissed and accordingly, it is dismissed. Record and proceedings, if any, be sent back to the concerned Tribunal, forthwith. Interim Relief, if any, stands Page 14 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025 NEUTRAL CITATION C/FA/3494/2022 ORDER DATED: 22/07/2025 undefined vacated forthwith. No order as to costs.
22. In view of dismissal of the main matter, connected Civil Application will no longer survive and the same stands disposed of accordingly.
(D. M. DESAI,J) vk Page 15 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:25:40 IST 2025