Chief Engineer Uttar Gujarat Vij ... vs Gujarat Microwax Ltd.
2021 Latest Caselaw 5600 Guj

      C/LPA/618/2013                                             JUDGMENT DATED: 08/06/2021


                       CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s)
                                             Versus
                                     GUJARAT MICROWAX LTD.


              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/LETTERS PATENT APPEAL NO. 618 of 2013

               In R/SPECIAL CIVIL APPLICATION NO. 6164 of 2004


FOR APPROVAL AND SIGNATURE:

HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================
1     Whether Reporters of Local Papers may be allowed                                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                                          No

3     Whether their Lordships wish to see the fair copy                                No
      of the judgment ?

4     Whether this case involves a substantial question                                No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
     CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD., Deputy Engineer &
                      Executive Engineer (O&M)
                               Versus
                     GUJARAT MICROWAX LTD.
==========================================================
Appearance:
MS LILU K BHAYA(1705) for the Appellants(s) No. 1,2,3
MR BHARAT T RAO(697) for the Respondent(s) No. 1
==========================================================
 CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
        and
        HONOURABLE MR. JUSTICE B.N. KARIA

                                      Date : 08/06/2021

                                     ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE B.N. KARIA)

1. Being aggrieved with the judgment and order dated 31st

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

January, 2013 passed by the learned Single Judge in Special Civil

Application No. 6164 of 2004 partly allowing the petition and

directing the petitioners to charge the bill as per approved formula

from 14th August, 1998 till 21st August, 1998 and to recalculate the

amount and refund the amount, if the amount is deposited or

recovered or in alternate, to give adjustment in the subsequent bills of

the Respondent within a period of two months from passing of the

order, the Appellants-original respondents (UGVC Ltd.) have

preferred this Letters Patent Appeal under Clause 15 of The Letters

Patent.

2. The facts leading to the present Letters Patent Appeal, in

nutshell are as under :-

2.1 The Petitioner is private Limited Company under the

provisions of Companies Act, 1956 and Petitioner-Company is

engaged in the manufacture of Microcrystalline Cellulose Powder at

its factory situated at Survey No. 291/1 & 2, Nandasan, Taluka

Kalol, Dist. Mehsana. The Petitioner is a consumer of Respondent-

Gujarat Electricity Board having contracted load of 325 KVA and

its consumer number is HT 19654. The Petitioner-Company entered

into Lease Agreement with M/s. Shaili Polymers Pvt.Ltd. (for short

"SPPL") for lease of 6076 sq. mtrs. of land of Petitioner's ownership

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

in the said premises at annual rent of Rs. 5,000/- .

2.2 The said SPPL is also a consumer of Respondent -Gujarat

Electricity Board in the LTP category, having connected load of 125

HP. On 14.8.1998, the Petitioner's Unit was checked by the Checking

Squad of the Respondent-Board and everything was found upto the

standard. On 17th August, 1998, the cable of GEB, which supplies

power to SPPL, was burnt and SPPL informed the GEB in writing

about the same and requested the Board to replace the same

forthwith as SPPL is a continuous industry and without power, SPPL

would suffer loss of lacs of rupees. SPPL requested the Petitioner

to supply to SPPL on temporary basis so that no further loss can be

caused.

2.3 Considering the request and hardship faced by the tenant i.e.

SPPL, Petitioner showed its readiness to supply 20 KW power to

SPPL on temporary basis and intimated the GEB by letter dated 17th

August, 1998 that the Petitioner will supply power to SPPL because

of the reasons stated in the letter. Again, on 21st August, 1998,

Inspection Team of GEB came and inspected the premises of the

Petitioner and after inspection, inspection note was prepared alleging

that the Petitioner has unauthorisedly supplied electric energy to

SPPL and therefore, electric connection of the Petitioner was

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

disconnected and the Respondent -Board had issued bill to the

Petitioner for Rs. 4,74,262/- for committing breach of the conditions

of electric energy by resale of energy.

2.4 Being aggrieved by the said Bill, the Petitioner filed Special

Civil Application No. 6951 of 1998 before this Court. This Court

was pleased to pass interim order on 29th August, 1998 and the

Petitioner was asked to deposit Rs. 50,000/- with cost and Board was

further directed to restore power connection to the Petitioner's unit

forthwith. After lapse of more than two years, the Respondent-Board

issued a revised Bill dated 20.6.2000 for Rs.17,42,344/- for the cost to

the Petitioner on the ground that the Audit Department of the

Government of Gujarat has raised objection and there was mistake

on the part of the officers of Respondent-Board in calculating the

amount of Bill issued in August, 1998. The said Bill was also

objected by the Petitioner by its letter dated 27th June, 2000. Special

Civil Application preferred by the petitioner was pending before this

Court since 1998.

2.5 Thereafter, request was made by the Petitioner to withdraw the

said petition on 12.1.2004 and the Petitioner was permitted to file

Appeal before the Appellate Committee on condition that the

Petitioner shall deposit Rs.4,35,585/-. The Petitioner approached the

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

Appellate Committee and preferred Appeal No. A-10/2004. After

withdrawing the aforesaid writ petition, the Petitioner had deposited

sum of Rs. 4,35,585/- with the Respondent -Board before the Appeal

was heard by the Appellate Committee. The Appellate Committee

dismissed the Appeal of the petitioner vide order dated 5th April,

1994. The said order was challenged by the present Petitioner by

preferring Special Civil Application No. 6164 of 2004. It was allowed

to extent that chargeability of the revise bills as per the approved

formula was from 14th August, 1998 till 21st August, 1998 and

recalculate the amount and refund the amount, if the amount is

deposited or recovered from the Petitioner or in alternative, the

Respondent-Electricity Company may give adjustment in the

subsequent bill of the petitioner.

3 Ms. Lilu Bhaya, learned Advocate appearing for the

Appellants-Board has vehemently submitted that learned Single

Judge has erred in quashing and setting aside the supplementary bill

as well as directing to issue fresh supplementary bill for the period

between 14th August, 1998 till 28th August, 1998. She has further

submitted that petition of the respondent was never received by the

Appellants-Board and it was specifically stated in the affidavit-in-

reply that no such letter was received by the Appellate Committee as

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

there is no endorsement of any officer or copy produced by the

respondent, therefore, this letter cannot be looked into.

3.1 She has further submitted that it was clearly found on

inspection by the checking squad that on 21st August, 1998,

Petitioner was found reselling electricity by laying underground

cables. She has further submitted that there was nothing on record

that SPPL was having any urgency of temporary electric connection.

She has further submitted that it is not the case of theft of the

electricity but it was case of malpractice committed by the petitioner.

The entire formula of calculating bill for re-sale of electricity and

theft of electricity is different on condition of supply of electricity.

3.2 She further submits that if earlier irregularity was not

mentioned in the case of the petitioner but the checking can be for

different purpose. There was no error committed by the Appellate

Committee while confirming the supplementary bill. Condition Nos.

34 and 35 of the Appellants-Board was wrongly interpreted by

learned Single Judge and appreciated that condition No. 34 is

pertaining to theft case and not malpractice. For malpractice

condition No.35 is applicable.

3.3 Learned Counsel for the Appellants-Board in support of her

arguments has relied upon the judgments of this Court (1) Letters

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

Patent Appeal No. 96 of 2014 in Special Civil Application No.8520

of 2004 and allied matters (2) Letters Patent Appeal No. 110 of 2014

in Special Civil Application No. 6300 of 2004 (3) Letters Patent

Appeal No. 528 of 2014 in Special Civil Application No. 15804 of

2003. Lastly, learned Counsel for the Appellants-Board requested to

allow the present Letters Patent Appeal by quashing and setting aside

the judgment and order dated 31st January, 2013 passed by the

learned Single Judge in Special Civil Application No. 6164 of 2004.

4. From the other-side, Mr. Bharat Rao, learned Advocate

appearing for the Respondent while opposing the submissions made

by learned advocate for the Appellants-Company, supported findings

of the learned Single Judge vide judgment and order dated 31st

January, 2013 passed in Special Civil Application No. 6164 of 2004.

He has further submitted that on 14th August, 1998, manufacturing

unit of the petitioner was inspected including electric connection by

the officers of the Appellants-Board and checking sheet was

prepared. That, nothing adverse was found at the time of checking

of the petitioner unit by the officers of the Appellants-Board. He has

further submitted that manufacturing Unit of SPPL was also

checked by the officers of the Appellants -Board on 12th August,

1998 and report was also prepared. However, no adverse was found

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

and it was up to standard.

4.1 He has further submitted that again on 17th August, 1998,

there was power supply failure in SPPL due to damage of cable

which carries the electrical energy from the Board's main

Distribution line of the power to the premises of SPPL. It was

intimated to the Appellants-Board by the said unit that cable was

burnt and it should be repaired. The cable which restart the supply

of the the electric energy to SPPL forthwith by the Appellants-

Board. It was also stated in the letter that since nature of business of

SPPL is such that it requires continuous supply of electric energy,

therefore, Appellants-Board would replace the cable forthwith, as

SPPL was required continuous supply of electric energy for its tissue

culture plant, as there was power failure due to damage of cable.

4.2 He has further submitted that the Petitioner was requested by

the said unit to arrange temporary power connection undertaken

from its unit to save its tissues culture plants. The Petitioner being

landlord of SPPL expressed its willingness to supply electricity to

SPPL from its unit on temporary basis. He further submits that the

Appellants-Board was intimated by the SPPL that Board may take

time to replace the damaged cable. It has requested by the Petitioner

to supply electricity of SPPL on a temporary basis. The petitioner

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

has expressed its willingness to supply the power to SPPL, on

temporary arrangement.

4.3 That, the letter was written by the Petitioner on 17th August,

1998 to save the life of tissue culture plants of SPPL which requires

constant and continuous supply of electricity for its survival. On a

request being made by the SPPL, the petitioner has given electric

connection of 20 KW to SPPL. That, on 21st August, 1998, the

Vigilance officer of Govt. of Gujarat, Department of Industries

visited the factory of the petitioner along with his team of officers

and prepared a joint report. As per report, there was a breach of

condition No. 35-B of the "Condition and Misc. charges for supply of

electrical energy".

4.4 He has further submitted that initially bill of Rs.4,74, 262/-

was issued for a period of March 1998 to August, 1998 by the

Petitioner-Board. The said bill was challenged by the Petitioner in

Special Civil Application No. 5951 of 1998 before this Court,

wherein, Interim Order dated 29th August, 1998 was passed directing

the petitioner to deposit Rs.50,000/- by way of interim arrangement.

The said bill was final bill. It was never stated that it was ad-hoc bill.

Thereafter, after lapse of more than two years from 17th June, 2000,

the Petitioner received supplementary bill of Rs.17,42,344/- on the

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

ground that the Audit Department has raised objection and there was

mistake in the calculation made by the officers of the Appellants-

Board. As there was dire need of the additional power to SPPL,

Petitioner had agreed to supply. He further submits that Special Civil

Application No. 6951 of 1998 preferred by the petitioner was later on

withdrawn by the petitioner with a view to approach the Learned

Appellate Committee.

4.5 Thereafter, the Petitioner preferred Appeal No. A-10/2004

before the Appellate Committee challenging the Bill of Rs.

17,34,344/- and the same was heard on 5.4.2004. The Appellate

Committee, without considering the documentary evidence produced

by the Petitioner and contrary to the provisions of the 'Conditions

and Miscellaneous Charges for supply of Electrical Energy' and also

contrary to the provisions of Indian Electricity Act, 1910,

mechanically dismissed the Appeal of the Petitioner on 5.4.2004.

Clause 24 of the 'Conditions and Miscellaneous Charges for Supply

of Electrical Energy' permits the landlord to supply the power to its

tenant and it would not be considered unauthorized supply of

energy .

5. Clause 24 of the condition referred by the Appellants-Board

pertains to unauthorized supply of Energy. He has further submitted

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

that SPPL is tenant of the petitioner and action of giving power

supply for temporary period by the landlord to a tenant does not

amount to any unauthorized sale of electricity to any other person.

Learned Single Judge has rightly and properly considered the

contention raised by the respondent and after referring Clause 34 and

35, came to the conclusion that order of the Appellate Committee

was not legal and proper and therefore, it was quashed and set aside.

He has further argued that there was no patent error committed by

learned Single Judge in the order dated 31st January, 2013, this

Letters Patent Appeal may not be considered by this Court. Hence, it

was requested by him to dismiss the present Letters Patent Appeal.

6. We have heard learned Advocates for the respective parties

and considered the provision of Electricity Act as well as relevant

provision of the 'Conditions and Miscellaneous Charges For supply

of Electrical Energy' framed by the Appellants -Board. For the sake

of convenience and bravity, we would like to refer relevant provisions

of Clause 24, 34 and 35 of 'Conditions & Misc. Charges for supply of

electrical Energy' which reads as under:-

Clause 24 Unauthorized Supply of Energy:

The consumer shall not supply a part or whole of the energy purchased by him from the Board to any other persons unless

-

1. He holds a suitable sanction or license for distribution

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

and sale of energy granted by the State Government ,

2. There is special contract or permission granted by the Board permitting the consumer to supply energy in accordance with such permission. If a consumer is detected to supplying energy unauthorized at any time, his supply shall be disconnected without serving notice"

Note:-

(1) The unauthorized supply of energy shall mean the supply of energy by a consumer to any other person from energy drawn from the Board irrespective of whether supply is charged in any form or not.

(2) However, the supply of power by a landlord to his tenants or by any establishment to its employees and or to the premises used for the welfare/amenities of employees shall not be considered as unauthorized supply of energy.

Relevant portion of provision 34 provides as under:

"34. Payment of energy dishonestly used or abstracted or maliciously wasted or diverted. Where it is established to the satisfaction of Board's officer that a consumer has dishonestly abstracted used, consumed or maliciously caused energy to be wasted, or diverted, the value of the electrical energy thus abstracted, used, consumed, wasted or diverted shall be assessed by such officer for the past six months period or the actual period from the date of commencement of supply, whichever is less, in the manner specified herein below and the value of energy so assessed shall be collected by including the same in the next bill or by a separate bill. Such amount shall always be deemed to be the arrears of electricity dues for all purposes.

Condition No.35 also provides in the same manner and for ready reference, the same is reproduced as under:

35. Disconnection for malpractice and compensation therefor Where any consumer is detected in the commission of any malpractice with reference to his use of electrical energy, the Board may, without prejudice to its other rights, cause consumer's supply to be disconnected forthwith. The supply may be restored at the discretion of the Board if the

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

consumer, compensates the Board in the manner prescribed here under and takes such other action as may be directed by the Board in this context. (Note:-This authority of the Board shall be exercised by an officer not below the rank of the Junior Engineer of the Board.) The consumer shall be required to pay the Board before reconnection of power supply an amount towards compensation as mentioned below which shall be applicable for the past six month's period including the month during which malpractice is detected limited to actual period since the commencement of supply if it is less. (Emphasis supplied)

7. It is undisputed fact that on 14th August, 1998 electric

connection of the petitioner Unit was inspected by the officers of the

Appellants-Board and no conceal cable was found for supply of

power unit of the Petitioner's factory. In the same way, factory of

SPPL was also inspected by the Inspection Team of the Board on

12th August, 1998, at that time also, nothing untoward was found.

Again on 21st August, 1998, the Vigilance Officer of Government of

Gujarat, Department of Industries visited the unit of the Petitioner

and prepared joint report concluding that there was breach of

Condition No.35-B framed by the Appellants-Board and hence,

electrical connection of the Petitioner was disconnected and

supplementary bill was prepared to the tune of Rs. 4,74,262/-. It

appears from the record that the Petitioner challenged the aforesaid

bill by preferring Special Civil Application No. 5951 of 1998 before

this Court with a prayer to issue a writ of certiorari and mandamus

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

or any other appropriate writ, order or direction quashing and setting

aside the decision/action taken by the Appellants-Board dated 21st

August, 1998 of disconnecting power supply of the Petitioner and

restoring the power supply to the Petitioner. Interim relief was also

prayed by the petitioner wherein, this Court was pleased to pass

Interim Order on a condition that the Petitioner to deposit with the

Appellants-Board a sum of Rs.50,000/ by way of interim arrangement

and depositing the said amount, the Appellants-Board shall

reconnect of power supply to the petitioner.

7.1 When the petition was pending before this Court, after lapse of

more than two years, another revised bill dated 17th June, 2000 was

received by the Petitioner from the Appellants-Board to the tune of

Rs. 17,42,344/- on the ground that the Audit Department has raised

objection as there was a mistake in calculation made by the officers

of the Board. Therefore, another bill of Rs. 17,42,344/- was issued.

The Petitioner also objected the said supplementary bill by writing a

letter dated 27th June, 2000 as Petitioner-Unit has dire need of

additional power. This Court permitted the petitioner to withdraw

the petition being Special Civil Application No. 6951 of 1998 with a

view to approach the Appellate Committee vide order dated 12th

January, 2004 with a direction that the Petitioner shall file the

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

Appeal before the Appellate authority of the Board within 10 days

from the date of the order and the Appellate Committee shall hear

and decide the Appeal as early as possible and till the Appellate

Committee decides the Appeal, Ad-interim relief granted on

29.8.1998 was ordered to be continued.

7.2 Thereafter, the Petitioner approached the Appellate Committee

by preferring Appeal No. A-10/2004 challenging the bill of

Rs.17,34,344/- and after considering the evidence on record and

hearing the parties, Appellate Committee dismissed the Appeal

preferred by the petitioner vide order dated 5.4.2004. It appears from

the order of the Appellate Committee that the Respondent in

support of his contention relied on the abstract of Condition No. 24

of Supply of Electric Energy showing that power was supplied to

M/s. Shaili Polymers only for 4 days on humanitarian ground

without charging and payment, as there was no monetary loss to

GEB at all and that supply was done under intimation to the Board.

Letter dated 17th August, 1998 produced by the Respondent at

Annexure "C" and "B" were not considered by the Appellate

Committee as well as relationship of the landlord and tenant.

7.3 Appellate Committee found that Respondent has

unauthorizedly supplied electrical energy to another Company

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

namely M/s. Shaili Polymers without permission of the Appellants-

Board and therefore, it was resell of electric energy. It appears from

the record that lease deed was executed on 30th April, 1991 between

Gujarat Mircrowaxes Ltd. a company incorporated under the

Companies Act, 1956, who happens to be lessor and Shaili Polymere

Private Ltd. a company incorporated under the Companies Act,

1956, as lessee. On 14.8.1998, during the Inspection of

manufacturing unit of the Respondent by the Officers of the

Appellants-Company, no conceal cable was found for supply of

power at the unit of the Petitioner to the unit of SPPL. Therefore,

that unit of SPPL was also inspected by the Inspection Team i.e. on

12th August, 1998. At that time also, nothing untoward was found.

Again after one week i.e. on 21st August, 1998, Officers of the

Government of Gujarat, Department of Industry visited the unit of

the petitioner along with his team and prepared joint report

considering that there was breach of the condition No. 35-B. The

electric connection of the Petitioner was disconnected and

supplementary bill was issued to the tune of Rs. 4,74,262/- .

7.4 Special Civil Application No. 5951 of 1998 was preferred by the

petitioner before this Court wherein, interim relief was granted.

Meanwhile, after lapse of two years, the petitioner received another

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

supplementary bill on 17th June, 2000 from the Appellants- Board to

the tune of Rs. 17,42,344/. The Petitioner was dire need of electric

power. He withdrawn Special Civil Application No. 5951 of 1998

with a view to approach Appellate Committee. Appellate Committee

dismissed the Appeal preferred by the present respondent challenging

the bill of Rs. 17,34,344/- vide its order dated 5th April, 2004. The

relation of the petitioner with the SPPL being landlord and tenant

were not accepted.

7.5 It is clearly established by the petitioner by producing lease

deed dated 30th April, 1991 showing part of the land i.e. 6076.75 mtrs

was given to SPPL. Condition No. 24(2) states that landlord who

supplied power to his tenants would not considered as unauthorized

supply of energy. The supplementary bill of Rs. 17,42,344/- was not

prepared as per Condition No. 34. Condition No.34 pertains to

Payment of energy dishonestly used or abstracted or maliciously

wasted or diverted. Learned Single Judge has considered the

judgement of this Court passed in Special Civil Application No.16975

of 2003 and Special Civil Application No. 15804 of 2003, wherein, it

has observed as under :-

"10. It may be recorded that the above referred case was also pertaining to theft case and not pertaining to malpractice. In both the above referred decisions, this

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

Court took the view that if on the earlier occasion, the premises of the connection holder was inspected and everything was found OK and thereafter, if theft is detected, the Board or the Electricity Boardwould be entitled to recover additional charges but such charges shall be from the date of last inspection till the theft had detected and not prior to last inspection during which everything was found in OK conditions. The another distinguishing aspect is that in the later case of Special Civil Application No.15804 of 2003 there was amendment in the conditions; whereby, it was additionally provided that earlier inspection should have resulted in supplementary bill.

11. After having taken into consideration the above referred legal position, the facts of the present case are now to be examined. It is not the case of the respondent-Board nor it is found by the Appellate Committee that when the premises of the petitioner- Boardwas examined on 14th August, 1998, any objectionable thing was found nor it is even the case of the respondent-Electricity Boardnor it is found by the Appellate Boardthat when the premises of the Tenant Boardwas examined on 12th August, 1998, any objectionable thing was found. This would mean that upto 14th August, 1998, everything was found in OK condition by the officers of the respondent the then Board (now Electricity Company).

15. Whereas, Ms.Bhaya, learned counsel appearing for the respondent contended that once the load is found to have been unauthorizedly connected with 3rd party, which would include Tenant Company, in the present case, it is re-sale of the electricity power irrespective of fact that petitioner-Boardhas received any consideration or not. It was, therefore, submitted that once unauthorized electric power is supplied for chargeability, connected load is to be taken into consideration and not the actual load supplied even if it is so connected, load is to be taken into consideration."

8. Learned Advocate for the Appellants-Board has relied upon

the the following judgments:-

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

(1) Hyderabad Vanaspathi Ltd. Vs. A.P.State Electricity Board

and Ors. reported in (1998) 4 SCC 470.

(2) Kailash Plastic Processors Vs. Gujarat Electricity Board and

Anr. rendered in Letters Patent Appeal No. 110 of 2014.

(3) Ambeshwar Paper Mills Ltd. Vs. Gujarat Electricity Board

reported in 2002(3) GLH 441.

In the above cited judgment relied upon by learned advocate

for the Appellants-Board, the question involved was for

determination as to whether supplementary bill for the pilferage of

electricity should be prepared for the period of 90 days or for a

period of 180 days prior to date of checking which was made. In our

case also the issue in question is also rightly decided by learned Single

Judge in Special Civil Application No. 6164 of 2004 and hence, the

judgments relied upon by the learned advocate for the Appellants-

Board would not helpful to the Appellants-Board, considering the

facts of the case.

9. Learned Single Judge has also observed that in earlier

calculation of the bill neither FCI charges or demand charges were

considered nor included as per applied formula. There was

substantial difference and there was no reason to hold that the

method applied for revised bill was correct in any manner. No

C/LPA/618/2013 JUDGMENT DATED: 08/06/2021

CHIEF ENGINEER UTTAR GUJARAT VIJ CO. LTD. & 2 other(s) Versus GUJARAT MICROWAX LTD.

material was produced to the notice of the Court to show that the

charges were not to be calculated on contracted load or that FCI

charges or demand charges were not recoverable or that formula

applied was improper. The judgment and order passed by the learned

Single Judge cannot be said to be illegal or perverse.

10. Therefore, we are of the considered view that there is no

substance in the arguments advanced by learned Advocate for the

Appellants-Board to interfere in the judgment and order as no error

is committed. Hence, this Letters Patent Appeal deserves to be

dismissed and dismissed accordingly.

(DR. VINEET KOTHARI,J)

(B.N. KARIA, J) BEENA SHAH