Gujarat High Court

Dakshin Gujarat Vij Company ... vs Manubhai Devabhai Aahir on 1 December, 2022

Bench: Biren Vaishnav

    C/SCA/12608/2017                               JUDGMENT DATED: 01/12/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 12608 of 2017


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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                   DAKSHIN GUJARAT VIJ COMPANY LIMITED
                                 Versus
                    MANUBHAI DEVABHAI AAHIR & 1 other(s)
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MS. SHRUNJAL SHAH, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 01/12/2022

                             ORAL JUDGMENT

1 Rule returnable forthwith. Ms.Shrunjal Shah,

learned Assistant Government Pleader,waives service of

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notice of rule on behalf of the State- respondent No.2.

Though served, nobody appears for private respondent

No.1.

2 Facts in brief would indicate that the respondent

No.1 was a consumer having an industrial connection

with contract load of 22 kw. When an inspection was

carried out by the Checking Squad on 04.08.2009, it was

found that the petitioner had given part of his connection

to one adjacent premises of one Bhagubhai Devabhai

Ahir. Having found such supply of electricity connection

being unauthorized use of electricity, the respondent

No.1 was so assessed in accordance with the provisions of

Sec.126 of the Electricity Act and a provisional bill was

issued on 27.08.2009. After following the procedure as

envisaged under the section, the assessment was finalized

and a final bill was issued on 10.07.2012. Aggrieved by

such final bill, the respondent No.1, preferred an appeal

before the Electrical Inspector.

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2.1 Assailing the order of the Electrical Inspector in

part, Mr.Dipak Dave, learned counsel for the petitioner,

would submit that the order allowing the appeal of the

respondent No.1 is without assigning any reasons and on

that ground alone it should be set aside.

2.2 Mr.Dipak Dave, learned counsel, would also argue

on merits and submit that it is a clear case as recorded in

the Checking Sheet of supplying electricity across the

boundary which was an unauthorized use of electricity as

it amounted to resale of energy. It was even so admitted

by the respondent No.1 in his representation made to the

authorities.

2.3 Mr.Dave, learned counsel, would further submit that

reliance by the Appellate Authority on Regulation No.

6.4.8 and 7.5.1 of the Gujarat Electricity Regulatory

Commission (GERC), Electricity Supply Code and Related

Matters Regulations, Notification NO. 11 of 2005 is

misplaced. In his submission, these regulations will not

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apply to the assessment made under section 126 of the

Electricity Act and the order impugned therefore

deserves to be set aside. Reliance was placed on a

decision of the Division Bench of this Court rendered in

the case of Paschim Gujarat Vij Co. Ltd vs. Paras

Ship Breakers Ltd., reported in 2010 (3) GLR 1917 in

support of his submissions.

3 Ms.Shrunjal Shah, learned Assistant Government

Pleader for respondent No.2, would defend the order and

submit that the calculation sheet making the provisional

assessment was done on 04.08.2009 and the final

assessment was done on 10.07.2012, admittedly beyond a

period of 30 days which was essentially a failure to

comply with the time schedule under Sub-section 3 of

Section 126 of the Act.

4 Perusing the order of the Appellate Authority, one

fails to see the reason as to how the Appellate Authority

has dealt with the issue. After recording the submissions

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of the respondent and that of the petitioner herein, the

regulation in question has been quoted and the final bill

has been set aside. This Court would have otherwise been

tempted to set aside the order and remand the matter for

fresh consideration before the authorities to pass fresh

reasoned order. However, five years have gone by and no

useful purpose will be served on doing so because even

otherwise on merits, the following facts indicate that

undisputedly there was a theft of electricity.

5 The checking sheet which is produced on record

indicates that there was an admission on the part of the

respondent No.1 that of the sanctioned part, part of it

was extended by a cable or a wire across the boundary

into the plot of one Bhagubhai Devabhai Ahir in his

representation made to the authorities, the respondent

No.1 had clearly admitted of this extended supply of

electricity by a cable across the boundary. In the decision

of the Division Bench in the case of Paras Ship

Breakers (supra), the Division Bench was considering a

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question whether a consumer, who on its own, without

any permission from the electricity company, by joining

extension wires had used electricity connection for

another plot and whether such use could be said to be

unauthorized use of electricity. After noticing the relevant

statutory provisions, including Section 2(51) and Section

2(70) and Section 126 of the Electricity Act, the Court

held thus:

"10. It can thus be seen that Section 126 of the Act provides for a mechanism to deal with unauthorized use of the electricity. Term unauthorized use of electricity has also been explained in clause(b) of the explanation which includes use of electricity by any artificial means or by means unauthorized by the concerned person or authority or the licensee, or used through tampering of meters, or used for the purpose other than for which electricity was authorized. Sub-clause(v) of clause(b) of the explanation in clear terms provides that any use of electricity for the premises or areas other than those for which the supply of electricity was authorized shall also be considered unauthorized use of electricity.

10.1 Thus the use of electricity in many ways not authorized by Electricity Company is categorised as unauthorized use of electricity.

In view of sub-clause(v) of clause(b), there is no doubt in our mind that in the present case, consumer must be stated to have made unauthorized use of electricity. Admittedly, the premises of plot no.2/B or 4 were not the premises or area on which electricity supply

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was authorized. Undisputedly, as is apparent from the application of the consumer for obtaining electricity supply, the plot on which such connection was to be granted and was to be used has been clearly specified. When the consumer on its own will without specific permission from the Electricity Company, extended the connection by joining wires and used the same for running its factories, on plot no. 2/B or 4, the consumer clearly made unauthorized use of electricity. We are conscious that sub-clause(v) of clause(b) to the explanation under Section 126 was added by the amending Act No. 26/2007 with effect from 15.6.2007. In all cases arising subsequent to said date therefore, by virtue of said clause, our task has become quite simple.

10.2 Question is even before the said sub- clause was added, whether legal position as obtaining from the then existing statutory provisions would render such a use unauthorized use of electricity. Clause(b) to the explanation uses the words unauthorised use of electricity means and not means and includes.

10.3 In case of S. Sundaram Pillai, etc. v. V. R. Pattabiraman reported in AIR 1985 Supreme Court 582, the Apex Court discussed the impact of an explanation in a statutory provision and held and observed as under :

45. We have now to consider as to what is the impact of the Explanation on the proviso which deals with the question of wilful default. Before, however, we embark on an enquiry into this difficult and delicate question, we must appreciate the intent, purpose and legal effect of an Explanation. It is now well settled that an Explanation added to a statutory provision is not a substantive provision in any sense

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of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision. Sarathi in 'Interpretation of Statutes' while dwelling on the various aspects of an Explanation observes as follows:

"(a) The object of an explanation is to understand the Act in the light of the explanation.

(b) It does not ordinarily enlarge the scope of the original A section which it explains, but only makes the meaning clear beyond dispute."

46. Swarup in 'Legislation and Interpretation' very aptly sums up the scope and effect of an Explanation thus:

"Sometimes an explanation is appended to stress upon a particular thing which ordinarily would not appear clearly from the provisions of the section. The proper function of an explanation is to make plain or elucidate what is enacted in the substantive provision and not to add or substract from it. Thus an explanation does not either restrict or extend the enacting part; it does not enlarge or narrow down the scope of the original section that it is supposed to explain .. The Explanation must be interpreted according to its own tenor; that it is meant to explain and not vice versa."

52. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is-

(a) to explain the meaning and intendment of the Act itself,

(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so a- to make it

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consisten with the dominant object which it seems to subserve,

(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and

(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.

10.4 In case of M/s. Keshavji Ravji and Co. etc., etc., v. Commissioner of Income-tax, reported in AIR 1991Supreme Court 1806, the Apex Court observed as under :

...An 'Explanation', generally speaking, is intended to explain the meaning of certain phrases and expressions contained in a statutory provision. There is no general theory as to the effect and intendment of an Explanation except that the purposes and intendment of the 'Explanation' are determined by own words. An Explanation, depending on its language, might supply or take away something from the contents of a provision. It is also true that an Explanation may--this is what Sri Ramachandran suggests in this case--be introduced by way of abundant--caution in order to clear any mental cobwebs surrounding the meaning of a statutory provision spun by interpretative errors and

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to place what the legislature considers to be the true meaning beyond controversy or doubt.

Hypothetically, that such can be the possible purpose of an 'Explanation' cannot be doubted.

10.5 Coming back to the question on hand, we find that Section 126 of the Act seeks to curb unauthorized use of electricity by any person. Such consumption through unauthorized use is charged at double the normal tariff. Explanation(b) to Section 126 even prior to addition of sub-clause(v) therein included variety of uses of electricity not authorized by the Company in the term unauthorized use of electricity. Considering the scheme of Section 126 and the object sought to be achieved, it can be clearly seen that the explanation finds place not by way of a substantive provision but merely to explain or clarify or remove ambiguities if any, in the statutory provision and to provide an additional support to the dominant object of the Section. By providing explanation(b) to Section 126, the legislature did not intend to limit in any manner the import of the term unauthorized use of electricity' used in Section 126. Seen from this angle, it becomes clear that addition of sub-clause(v) in the explanation clause(b) to Section 126 of the Act was only a declaratory or clarificatory amendment in nature and would apply to and cover all cases whether arising before or after the said sub- clause(v) was introduced.

10.6 Quite apart from the above conclusion that we have reached we are of the opinion that case of the consumer would also fall under sub-clause(iv) of Clause(b) of the explanation namely for the purpose other than for which the usage of electricity was authorised-

From the original application filed by the consumer for grant of electricity connection, it can be seen

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that in item no.13 to a question Whether supply is asked for (i) expansion or (ii) extension of the existing industry or (iii) for altogether anew industry in the State, the consumer had stated New Industry. The exact location (namely plot no.5) where the factory of the consumer was situated was also indicated along with the said application. Thus the purpose for which electricity connection was demanded and granted was for setting up a new industry in plot no.5. Any other use would be covered also under Sub-clause(iv) of clause(b) of the explanation namely for the purpose other than for which the usage of electricity was authorised.

10. On this basis, we are of the view that this is a clear case of unauthorized use of electricity covered under Section 126 of the Act. We may recall that the erstwhile consumers namely Khodiyar Rolling Mills and Paras Ship Breakers who had factories situated in plot no. 2/B and 4 respectively had defaulted in paying their electricity bills. Their electricity connections were therefore, disconnected. In ordinary circumstances, by virtue of agreement between the parties, particularly, if those consumers had sold their plots to some other entities through private negotiations, the Electricity Company would have resisted granting any new electric connection on such premise without the past dues being paid up in toto either by the previous owner or by the new purchaser. If we were to accept the contention of the consumer that all that the consumer has done is an innocuous extension of electricity connection in a neighboring plot, use of which is being enjoyed by the same consumer for which the consumer also pays the full electricity charges, we would be negating and totally bypassing the right of the Electricity Company to seek full recovery of its past dues of electricity before granting new electrical connection on the same premises.

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11. We also cannot lose sight of the fact that the Electricity Companies have to manage their affairs on the basis of estimated demand of electricity. Such estimation can be made only on the basis of particular load authorized to the consumer. Permitting such extensions without any restrictions would result into as has happened in the present case, drawing of electricity in excess of authorised load. Such rampant use would effectively destroy all the estimates of the company. Electricity Company cannot operate under rampant overdrawal of authorized load.

12. Contention that there was acquiesce on behalf of the Electricity Company needs to be noted only for rejection. Admittedly, there was no permission or authorization by the Company to the consumer to extend the electrical connection. On the contrary, premises of the consumer were raided repeatedly and supplementary bills were raised. This is certainly not a case of acquiesce.

13. With respect to the order dated 5.6.2008 by the Electrical Inspector, we find that by notification dated 1.9.2007, the Government superseded its earlier notification dated 10.1.2005 and in case of appeals involving amount of above Rs. 10 lakhs, designated Deputy Chief Electrical Inspector as the Appellate Authority. In view of the said notification, the Electrical Inspector lost the pecuniary jurisdiction to entertain the appeal which was admittedly involving stakes of more than Rs. 10 lakh. This in our view was a procedural change and would apply to all pending appeals. Electrical Inspector therefore, ought not to have heard Appeal No. 11/2007 of the consumer on merits thereafter. In fact, the Electricity Company raised its written objections in this regard. Such objection was however turned down by the Electrical Inspector by order dated 8.4.2008 observing that the said

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Government notification would not apply to appeals which were already filed previously. We find that the Electrical Inspector committed a serious error in proceeding with the appeal even after he was divested of pecuniary jurisdiction to decide the same. Contention of the counsel for the consumer was that the said order dated 8.4.2008 not having been challenged by the Electricity Company, said issue cannot be raised in the present proceedings. Said contention cannot be accepted. Firstly, order dated 8.4.2008, was an interlocutory order and eventually merged in the final order disposing of the appeal. Secondly, the issue goes to the root of the matter namely, to the very jurisdiction of the appellate authority to decide the appeal. On this additional ground also the appellate order is required to be quashed. Ordinarily, we would have permitted the consumer to approach the appropriate Appellate Authority. However, in view of our conclusion in this order, issue of unauthorized use of electricity gets finally decided in this litigation. No useful purpose would therefore, be served in remanding the appeal for fresh consideration.

14. We may recall that in Special Civil Application No. 16707/2007, the consumer has challenged order dated 19.2.2007 passed by the Electrical Inspector. Same order to the extent it is adverse to the Company has been challenged in Special Civil Application No.6665/2008. We find that the Electrical Inspector, having accepted the case of unauthorized use of electricity by the consumer, interfered with the disputed bill on other grounds which were not tenable. The Electrical Inspector relied on the meter installed by the consumer on its furnace to hold that such consumption should be excluded from consideration of unauthorized consumption.

We find that the approach of the Electrical Inspector was wholly incorrect. It is undisputed

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that the meter installed on the furnace was purchased by the consumer and was not supplied by the Company. Reading recorded by such a meter cannot form the basis for segregating the consumption of electricity. The Company in its petition has taken following ground in this respect :

(e) The Learned Appellate Authority has failed to appreciate that only the energy meter(TVM) installed by the petitioner is considered to be standard apparatus to measure energy because this apparatus is checked from time to time in the premises of the consumers by the officials of the petitioner. No other meter present in the premises of the consumer is taken in consideration except meter installed by the petitioner because the meter installed other than the petitioner are purchased and installed by the consumer themselves for getting various benefits like electricity duty exemption, D.G. Set, Office Lighting, recording, factory lighting recording, etc. The reading of furnace meter considered by the learned Appellate Authority is totally misleading since the said furnace meter is not tested or sealed by the petitioner. The respondent no.1 had failed to produce any sealing certificate in respect of the said furnace meter.

No reply has been filed refuting the averments. Even otherwise factual aspects are not in dispute. We uphold the said objection, conclude that interference by the Electrical Inspector in this case was uncalled for. The order is therefore, quashed."

5.1 These circumstances would, therefore, evidently

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indicate that the respondent No.1 was unauthorizedly

using electricity and the assessment of the final bill was

accordingly made. Reliance placed on the regulations

would indicate that the regulations would not be

applicable to a case when the assessment is made for

unauthorized use of electricity.

5.2 Mr.Dipak Dave's submission that these are

regulations which have to be read in light with the

provisions of Sec.56 of the Electricity Act, 2003, needs to

be accepted.