Gujarat High Court
(Gujarat Electrictiy Board) ... vs Navyug Alloys Pvt. Ltd on 21 April, 2023
Bench: A.S. Supehia
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1295 of 2003
With
R/FIRST APPEAL NO. 2286 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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 ?
==========================================================
(GUJARAT ELECTRICTIY BOARD) MADHYA GUJARAT VIJ COMPANY
LTD & 1 other(s)
Versus
NAVYUG ALLOYS PVT. LTD.
==========================================================
Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1,2
MR. KULDEEP D VAIDYA(7045) for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 21/04/2023
CAV JUDGMENT
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. These first appeals emanate from the judgment and
decree dated 01.04.2003 passed by the Civil Judge, Senior
Division, Godhra in Special Civil Suit No.96 of 1998, by which
the learned Judge has allowed the suit of the respondent-
plaintiff.
2. The captioned First Appeal No.1295 of 2003 is filed by the
original-defendant-GEB (Gujarat Electricity Board) (now
Madhya Gujarat Vij Company Ltd. - MGVCL) for allowing the
Special Civil Suit, whereas First Appeal No.2286 of 2003 is filed
by the original plaintiff, to the extent of refusing to grant
interest @ 18% on the deposit amount.
BRIEF FACTS:
3. The respondent herein installed Meter-A for obtaining a
high-tension power for production of 1800 Degree Celsius
temperature and, accordingly, an electricity supply was made
to the respondent-plaintiff by the appellant-GEB. The
respondent also got installed Meter-B for the purpose of usage
of factory lights and Meter-C for the purpose of usage of the
office lights.
4. A checking at the premises of the respondent was carried
out on 28.11.1996 and it was found that the respondent has
tempered with the installation of B-Phase and CT's mains and
load wire was shortened. It was found that a gap was created
in the door of Metal Meter Box and from there, 58 inch long
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
insulated copper wire has been peeled off from both sides, and
if a wire from outside is hooked and was found to be touching
the bottom of B-Phase and CT Main and load wire's insulation.
Accordingly, checking-sheets were prepared and signed by the
representative of the respondent under protest and a Joint
Inspection Report was prepared on 28.11.1996 (Exh.55). In
view of the tampering found with the insulation of R-Phase and
the main wire and also on the load wire which was peeled off
with external substance, the officers of the appellant-GEB,
accordingly checked the revolution of the disc by attaching
external wires, upon which, it was found that the revolution of
the disc which had to take 2.66 seconds for completing one
round was taking 3.66 seconds. It was found that there was
less consumption recorded to the extent of 27.32%.
Accordingly, the supplementary bill was issued to the
respondent as per the regulations of supply and the formula
adopted by the appellant-Board. The supplementary bill was
issued for Rs.61,69,113.60 paisa on 29.11.1996 and
considering the 'C' Factor and the working of the units of the
respondent in three shifts, such bill was prepared. The
respondent, being aggrieved by the said bill, appealed before
the Appellate Committee, which, by order dated 20.07.1998
passed below Exh.60, considered the modus operandi and held
that it was a case of theft of electricity. The Appellate
Committee, accordingly, recalculated the units as per their
regulations and the respondent was issued revised bill of
Rs.23,79,156/- and since the respondent had already paid
Rs.6,17,000/-, it was called upon to pay the remaining amount
of Rs.17,62,156/-. Being aggrieved, the respondent instituted
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
Special Civil Suit No.96 of 1998, challenging the said bill.
5. After examining the oral as well as the documentary
evidence, the Trial Court allowed the suit filed by the
respondent and declared the action of the appellant-Board as
illegal. The order passed by the Appellate Committee dated
20.07.1998 was also held to be illegal and as a consequence
thereof, it was declared that the respondent was not liable to
pay the revised bill of Rs.23,79,156/-. Being aggrieved, the
appellant-Board has filed the present first appeals.
SUBMISSIONS ON BEHALF OF THE MGVCL:
6. Learned advocate Ms.Lilu K. Bhaya appearing for the
appellant-GEB has submitted that the court below has fallen in
error in allowing the suit filed by the respondent since the
documentary as well as the oral evidence, which has been
established on record, has not been appropriately dealt with.
She has submitted that the Executive Engineer
Mr.V.G.Prajapati, who has been examined at Exh.83 and was
part of the checking squad at the relevant point of time, has
specifically deposed that he had gone for checking at the
premises of the respondent and in presence of the
representative of the respondent, it was noticed that the
M.M.B. Doors, though were closed, there is a gap of 7 inch,
through which the insulated wires were found to be peeled off
and when the external wires were connected, the meter had
started running slow. It is submitted that the representative of
the respondent was called upon, and in his presence, the extra
additional wires were used and it was shown to him that due to
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
connection of the external wires on the insulated portion which
was peeled off, the meter had started running slow. Thus, she
has submitted that once the evidence is established that
insulation of the wires were peeled off, it can be presumed that
there was theft of electricity. She has further submitted that
Shri V.T.Bhalanda, Executive Engineer, was examined below
Exh.85 and he has confirmed that on the basis of checking-
sheet, Joint Inspector Report, a bill of Rs.61,69,113.60 was
issued to the respondent, and the Appellate Committee has
reduced the said bill to Rs.23,79,156/-.
7. Learned advocate Ms.Bhaya has submitted that the Trial
Court has discarded the entire evidence by observing that
merely because there was a gap of 7 inch in the Metal Meter
Box, the same would not amount to theft of electricity and only
because the officer has admitted peeling off wire or the
insulation, the same would not amount to any irregularity
committed by the respondent. She has further submitted that
the Trial Court has also fallen in error by observing that since
one day prior to the actual inspection was undertaken on
28.11.1996, a meter reading was done by the officer of the
appellant-Board and at that time since no illegality was found
to be committed with the meter, the action of the appellant of
coming to the conclusion of theft being committed by the
respondent is not justifiable and as such, the Trial Court has
misdirected itself in allowing the suit of the respondent. In
support of her submission, learned advocate Ms. Bhaya has
placed reliance on certain decisions viz. ( i) judgment dated
24.12.2014 passed in Letters Patent Appeal No.96 of 2014 and
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
allied matters; (ii) judgment dated 11.09.2014 passed in
Letters Patent Appeal No.110 of 2014; and ( iii) judgment
rendered by the Supreme Court in the case of J.M.D Alloys Ltd.
vs. Bihar State Electricity Board & Ors., (2003) 5 SCC 226.
Thus, it is urged that the impugned order dated 01.04.2003
may be quashed and set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT:
8. In response to the aforesaid submissions, learned
advocate Mr.Viral K.Shah appearing for the respondent has
contended that the impugned judgment and order does not
require any interference as the same is precisely passed after
appreciating the oral as well as the documentary evidence.
While placing reliance on the deposition of the Executive
Engineer recorded below Exh.17 and Exh.83, he has submitted
that it is nowhere proved that theft of electricity is committed
by the respondent. Learned advocate Mr.Shah has further
submitted that, in fact, on 27.11.1996, when the meter reading
was done, nothing was found to be tampered with the meter
and on 28.11.1996, when the inspection was carried out, a
case has been made out against the respondent that he has
committed theft by slowing down the meter. Learned advocate
Mr. Shah has further submitted that even if it is assumed that
the insulation of the wires was not there, the same would not
in fact amount to theft of electricity. It is submitted that it was
entirely the responsibility of the officer of the appellant-Board
to see that after the meter reading is done, the meter box
should be closed appropriately. It is submitted that the
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
evidence of the officers of the appellant-Board itself reveals
that when the meter reading was done, nothing objectionable
was found and, hence, in wake of any evidence relating to the
theft of electricity, the court below has allowed the suit filed by
the respondent against the action of the Appellate Committee
in imposing the supplementary bill of Rs.23,79,156/-. Thus, it is
submitted that the first appeal may not be entertained.
9. Learned Advocate Mr.Shah has further submitted that the
captioned First Appeal No.2286 of 2003 filed by the respondent
claiming interest may be allowed since the trial court, after
allowing the suit filed by the respondent did not allow interest
on the amount of deposit which the respondent-plaintiff had
deposited. It is submitted that once the suit has been decreed
in his favour, the interest on the deposited amount was
required to be allowed. Thus, it is submitted that the
judgement and decree may be modified to that extent.
ANALYSIS AND CONCLUSION:
10. From the pleadings and the evidence which is
established from the record it is not in dispute that the
inspection of the meter, which was installed at the premises of
the respondent was carried out on 28.11.1996. by the
checking squad of the appellant-GEB. The inspection report
was prepared on 28.11.1996 below Exh.55. A perusal of the
inspection report below Exh.55 reveals that insulation of R-
Phase CT Main wire and the insulation of the load wire on the
bottom side was found to be peeled off with the help of some
external substance. The door of the Metal Meter Box, from
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
which the insulated copper wire was installed, was found to
have a gap of 7 inch. The Panchnama also establishes the said
fact.
11. The Inspection Report has been prepared in presence of
the representative of the respondent, who has also put his
signature on such report. The Inspection Report specifically
reveals that from the metal box, if an external wire is hooked
into the same, the meter would start running slow. The
relevant portion with regard is incorporated as under;
"After the doors of the aforesaid iron box were closed, a
white colour plastic seal made of Satyam bearing No.H00
3040 has been affixed on the middle part of the loop of the
box. Seal wire and said seal keeping in as it is condition,
doors of iron box can be pulled lightly down wards and
during that time, between the box, at below part, space
asmuch as about 7 inch can be made. On observing through
the glass of the iron box, facts bearing as above,
illegible.....illegible..wiring of the test terminal block included
is seen clearly at its lower part. Ends of the wires, passing
through the Amand(SIC) cable, enter. Out of that, insulation
of second and third wires, towards downwards and right
hand side, has been cut. And on counting from right side,
lower part insulation of the fifth wire and upper part
insulation of the sixth wire have been cut. As insulations of
these wires have been cut, its copper wire appears clearly.
On conducting examination of these wires according to the
wiring of the meter, insulation of main wire of C.T. of B-
phase and insulation of wires of load and upper part of main
wire of C.T. and lower part insulation of load wire have been
cut. On observing carefully, it clearly appears that insulation
of these wires seems have been peeled of intentionally with a
(illegible) substance. The condition is as mentioned in the
schedule-A enclosed herewith.
Insulation on the wires which has been peeled off, the said
wires, main wire of C.T. B-phase and C.T. between load to
shot and to shot C.T. of R-phase(between main and load),
respectively seems clearly to have been done.
On carefully observing KWH of the circle of the meter, at
present power consumption on current installations, this
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
circle takes 2.66 seconds to complete one cycle. Now
keeping the Seal No. N003040 on the meter box in as it is
condition, by giving pressure with hands from the lower part
of the iron box, making space between doors and meter box,
by making a loop by peeling off from both ends of insulated
copper wire admeasuring 58 inch long, entering through the
said space, lower part of T.T.B. from where insulation of B-
phase and C.T. of main and load has been peeled off, on
touching at the said place, spinning disc of KWH now takes
3.66 one revolution i.e. the meter records less consumption
in proportion to the power consumption on the installation.
On calculating consumption of time of spinning disc of KWH
of the meter as above, in meter less consumption asmuch as
2-66-3.66/ 3.66=(-27.32) is recorded. Thus, the customer has
committed irregularity with malice intention has committed
electric theft by peeling off the wires of C.T. in such a
manner that the seal on the meter box remains in it is
original condition."
12. Thus, as per the Joint Inspection Report and the contents
of the Panchnama, the modus operandi of the respondent
appears to slow the meter by inserting the external wires on
the peeled off insulated portion of the wires from the gap of 7
inch in the metal meter box. The respondent was unable to
explain anything with regard to the said gap of 7 inch in the
meter box which is made of metal. It is also not explained that
how the insulation of so many wires were peeled off. In
presence of the representative of the respondent, it has been
established that when the external wires are being touched
upon such insulation, revolving of the meter gets reduced
from 3.66 seconds to 2.66 seconds. Accordingly, after
adopting the formula of the appellant-Board it was found that
there was less consumption recorded to the extent of 27.32%.
The supplementary bill, on the basis of Joint Inspection Report,
was prepared of Rs.61,69,113.60, however, on appeal filed by
the respondent, the Appellate Committee reduced the bill to
the extent of Rs.23,79,156/- On perusal of the impugned
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
judgment and order passed by the lower court, it is revealed
that the Trial Court is impressed upon the submission of the
respondent that merely there was a gap of 7 inch in the metal
meter box, the same would not amount to theft of electricity.
The Trial Court, while considering the evidence of the officer
Mr. Prajapati recorded below Exh.83 and Shri Vasudev
Thavrdas Govind recorded below Exh.85 has concluded that
theft of electricity cannot be established only because there is
a gap of 7 inch in the meter box and the insulation of the wire
has been peeled off. The Trial Court has discarded the
evidence of Inspection Report and Panchnama by picking holes
in the deposition of the said officers. A perusal of Exhs.83 and
85 will reveal that depositions of the officers do not in any
manner dilute the spot inspection report and Panchnama. The
Trial Court also impressed upon the fact that once there was
nothing recorded one day prior to the inspection when the
meter reading was done, the inspection which was undertaken
on the very next day noticing the gap in the meter box as well
as peeling off the wire, cannot be believed and it cannot be
held that the consumer has tampered with the meter box. In
the considered opinion of this Court, the Trial Court has
misdirected itself in making such observations and allowing
the suit of the respondent.
13. The aforenoted facts of tampering with the meter box
and the peeling off the insulation of the wires are not denied.
Once, the appellant-defendant with reliable evidence has
established the tampering with the wire and Metal meter box,
the burden was on the respondent to prove or establish that
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
such abnormality with the meter box and the wires has existed
from the beginning of the installation of the meter box and was
not responsible for such tempering. The defendant was
required to establish that he has not committed any such
irregularity of tampering with the meter box. It is also not
established from the evidence that the peeling off so many
wires within the meter box was a natural phenomena and was
existing from the very day when the meter was installed. The
Trial Court is also impressed upon the deposition of witness
Valjibhai recorded below Exh.83, who has narrated that it was
the responsibility of the Deputy Engineer to close down the
meter box, and by placing reliance on such deposition and the
fact that at the time of meter reading which was done one day
prior to the inspection, when nothing was found with regard to
tampering with the meter box, it cannot be believed that just
within a period of one day, the position of the meter box can
be changed.
14. It appears that the Trial Court, while making the
aforenoted observations, has tried to step into the shoes of the
experts who had undertaken the necessary exercise to
demonstrate that by inserting the external wire in the meter
box and the same, after having been connected to the wires,
of which insulation was peeled off, the meter has started
running slow. The officers of the Board, who were the experts
in the field, had demonstrated to the representative of the
respondent about the slowness of the meter by adopting
necessary procedure. There was no occasion for the appellant-
Board to act in mala fide manner and the burden was upon the
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
respondent to demonstrate that how the gap of 7 inch has
occurred in the metal meter box and the insulation of the wires
which are below the meter have been missing. The Trial Court
has, in fact, tried to throw the entire burden upon the officers
of the appellant-Board by observing that it was the
responsibility of the officer of the appellant-Board, i.e. the
Deputy Executive Engineer to close down the meter box
appropriately. Taking clue from the deposition of witness
Valjibhai at Exh.83, the Trial Court has believed that when no
wires were found to be joined on the insulation part when the
checking was carried out, it can be presumed that no theft of
electricity has been committed by the respondent. The Trial
Court appears to be oblivious of the fact that theft of electricity
has been committed in a very clandestine and distinct manner
which was not visible at the time when the meter reading was
done. It is only after the entire meter is closely examined, the
modus operandi of the consumer can be detected. Such
illegalities and tempering are committed on a minuscule scale
so that it may not be detected. A wrongdoer will always be
assuring that the theft of electricity is committed in such a
manner which cannot be detected by a naked eye and, he
would not leave any ostensible evidence in this regard. Once it
is established that the wires which are installed in the meter
are tampered and are found in an unnatural condition which
was not at the time when the meter was installed, and the
meter box is also not in the original condition, and any gap is
found in the meter and the wires can be accessed from such
gap, it has to be presumed that the consumer has committed
theft by ingenuity which would be very difficult to detect. Such
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
exercise has to be left conclusively and exclusively within the
domain of the experts. Merely because one day prior to the
inspection, a meter reading was done and no irregularity was
noticed on that day, the same would not ipso facto absolve
the respondent from the liability of prohibited or unwarranted
happenings with the meter box and the wires. The exercise of
undertaking the meter reading falls in different realm than the
inspection of the entire meter including the meter box and the
connection of the wires as well as the condition of the wires. A
meter reader may not notice the illegality or tampering
committed with the instrument of a meter box and he might
simply or hurriedly note the meter reading. It is not in the
official duty of a meter reader to record the tampering done
with the wires or the meter box, and it can only be
appropriately done by the checking squad or the experts, who
are appointed by the appellant-Board in order to establish the
theft of electricity. Thus, the trial court merely on ipse dixit
without appreciating the evidence in its true perspective has
decreed the suit in the favour of the respondent-plaintiff.
15. The Appellate Committee, in its report, has exhaustively
dealt with the issue of the modus operandi adopted by the
respondent in committing the theft. The report of the
Appellate Committee below Exh.60 reveals that the committee
has also specifically undertaken necessary exercise by
examining the records with regard to the supply and
consumption of electricity from the sub-station for the period in
question and after undertaking necessary calculation has
determined the amount in the supplementary bill.
C/FA/1295/2003 CAV JUDGMENT DATED: 21/04/2023
16. This Court cannot delve into the formula adopted by the
Appellate Committee and the determination of the units of the
electricity, and the discretion has to be left solely on the
officers of the appellant-Board and the Committee. The Court
can only interfere if it is demonstrated that the officers, who
have undertaken the necessary exercise of inspection and the
Appellate Committee has adopted a procedure which is not in
line with the principles of natural justice and which shakes to
the conscience of the Court or the entire exercise is de hors
the provisions of rules and regulations of the Board.
17. Under these circumstances, in our opinion, the court
below has exceeded its jurisdiction and has committed a
patent error by setting aside the order of the appellant-Board.
18. In the result, First Appeal No.1295 of 2003 filed by the
appellant-Board succeeds. The impugned judgment and order
passed by the Civil Judge, Senior Division, Godhra dated
01.04.2003 in Special Civil Suit No.96 of 1998 is hereby
quashed and set aside. The order passed by the appellant-
Board is hereby ordered to be restored.
19. As a sequel, the First Appeal No.2286 of 2003 filed by the
consumer-original plaintiff stands dismissed. No order as to
costs.
(A. S. SUPEHIA, J)
(DIVYESH A. JOSHI,J)
VAHID
