Gujarat High Court
Digvijaysinh Narendrasingh ... vs Paschim Gujarat Vij Company ... on 29 April, 2023
Bench: Vaibhavi D. Nanavati
C/SCA/12351/2021 ORDER DATED: 29/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12351 of 2021
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DIGVIJAYSINH NARENDRASINGH JADEJA
Versus
PASCHIM GUJARAT VIJ COMPANY LIMITED
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Appearance:
HARSH K RAVAL(9068) for the Petitioner(s) No. 1
MR DIPEN K DAVE(3296) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 29/04/2023
ORAL ORDER
1. By way of present writ-application filed under Article 226
of the Constitution of India the writ-applicant herein has
prayed for direction to quash and set aside the supplementary
bill dated 9.7.2021 issued by the respondent for Consumer
No.88603/05602/1.
2. Heard Mr. Harsh Raval, the learned advocate appearing
for the writ-applicant herein and Mr. Dipak Dave, the learned
advocate appearing for the respondent.
3. This Court by order dated 28.10.2021 passed the
following order :-
"Mr. Dipen K. Dave, learned advocate appearing for the
C/SCA/12351/2021 ORDER DATED: 29/04/2023
petitioner, at the outset, states that the petitioner is ready and
willing to deposit Rs.12,50,000/- within a period of one week
and it is urged that let the electricity connection be restored.
It is also submitted that such deposit will be without prejudice
to the rights and contentions of the petitioner and subject to
the order that may be passed in the captioned writ petition.
2. Mr. Dipak R. Dave, learned advocate appearing for the
respondent no.1 states that without prejudice to the rights and
contentions of the respondent, and upon deposit of the amount
by the petitioner along with the requisite re-connection
charges, the electricity connection will the restored.
3. In view of the aforesaid, let the petitioner deposit an
amount of Rs.12,50,000/- within a period of ten days from
today along with requisite re-connection charges. Upon deposit
by the petitioner, the respondent is directed to restore the
electricity connection within 48 years.
4. Needless to say that the aforesaid arrangement is without
prejudice to the rights and contentions of the respective
parties.
5. Let the matter appear on 25.11.2021.
6. Direct service is permitted."
C/SCA/12351/2021 ORDER DATED: 29/04/2023
4. The learned advocate appearing for the writ-applicant
submitted that the writ-applicant herein has deposited
Rs.12,50,000/- in due compliance of the order dated
28.10.2021.
5. Briefly stated that the petitioner is the owner of Party
Plots wherein the respondent authority provides the electricity
and issue electricity bill. The writ-applicant was in receipt of
connection of 65 Kilo Watt connection being consumer No.
88603/05602/1 for limited purpose and the writ-applicant
herein is using and regularly paying all the electricity bills
timely.
5.1 The officers of the respondent authority inspected the
meter on 21.01.2021 and on reading of the meter the
respondent authority issued the bill on 21.01.2021. On
28.01.2021 the respondent authority changed the meter stating
that it is a normal procedure and the meter was replaced and
old meter was sealed.
5.2 The respondent informed the writ-applicant on 07.07.2021
to the Meter testing Laboratory and the representative of the
writ-applicant who does not have any technical background
was present and the allegation of theft was alleged against the
C/SCA/12351/2021 ORDER DATED: 29/04/2023
writ-applicant herein as there was some tempering with
internal wiring of the meter. It is the case of the writ-applicant
herein that there was no tempering with exterior of the meter.
5.3 Mr. Harsh Raval, the learned advocate appearing for the
writ-applicant herein submitted that the Supplementary Bill
which was issued by the respondent authority was without
affording any opportunity of hearing and the same is in
contravention of the settled principles of law. The writ-
applicant herein also made a representation to the Respondent
on 19.07.2021 to offer an opportunity of hearing to assess the
civil liability. The said representation is duly produced at
Annexure-D.
5.4 The writ-applicant also filed the Special Civil Suit No. 48
of 2021 before the Principal Sr. Civil Judge, Rajkot to quash
the Supplementary Bill dated 09.07.2021 wherein Application
for interim relief below Exhibit 5 came to be filed which came
to be rejected. The writ-applicant made an offer to pay 50%
amount of supplementary bill reserving his rights open,
however, the respondent authority refused to accede to the
request of the writ-applicant.
5.5 Being aggrieved by the same, the writ-applicant herein
has approached this Court by filing the present writ-application
C/SCA/12351/2021 ORDER DATED: 29/04/2023
for the prayers as prayed for in paragraph-6 which read thus :-
"(A) Be pleased to issue an appropriate writ, order or direction
by quashing and setting aside the supplementary bill dated
09.07.2021 as well as the order dated 31.07.2021 issued by
Respondent for Consumer No. 88603/05602/1 in the interest of
justice.
(B)Pending, admission, hearing and final disposal of the
petition, be pleased to direct the Respondent to reconnect the
electricity connection for Consumer No. 88603/05602/1.
(C) To grant any other and further reliefs that may be deemed
fit and proper and in the interest of Justice."
6. Mr. Harsh K. Raval, the learned advocate appearing for
the writ-applicant vehemently submitted that the respondent
herein is required to grant opportunity to the writ-applicant
herein as per Rule 26 read with Rule 7.6 and 7.7 of the
Regulation, 2015 which provides for opportunity of hearing as
far as assessment of civil liability is concerned. Placing reliance
on the aforesaid submission it was submitted that admittedly
the impugned supplementary bill dated 9.7.2021 is issued
without opportunity of hearing being given to the writ-
applicant herein.
C/SCA/12351/2021 ORDER DATED: 29/04/2023
7. Mr. Dipak R. Dave, the learned advocate appearing for
the respondent was not in position to controvert the
submissions advanced by the learned advocate appearing for
the writ-applicant considering the settled position of.
8. At this stage, it is apposite to refer to the decision dated
26.7.2018 passed in the Letters Patent Appeal No.616 of 2018
in the case of Jayshree Talkies vs. Paschim Gujarat Vij Co.
Ltd., paragraphs 23 to 26 read thus :-
"[23] As much as Section 126 of the Electricity Act of 2003
deals with malpractice other than the cases falling in the
category under Section 135, procedure is prescribed under
Section 126 of the Electricity Act of 2003. Section 135 of the
Electricity Act deals with offences and penalties, as such, it
has not indicated the manner and method of assessment of
civil liability in cases of theft of energy. Electricity Supply
Code is notified by the statutory functionary under Section 50
of the Electricity Act of 2003. It is expected that the
respondent authorities to follow such Code before making the
assessment. It is true that there is no express provision for
granting opportunity, but from a reading of Regulation 7.6.5
issued by the Gujarat Electricity Regulatory Commission, it is
clear that at the stage of assessment of civil liability, notice is
required to be given for the consumer to give opportunity to
produce evidence by the consumer to show cause why liability
C/SCA/12351/2021 ORDER DATED: 29/04/2023
is not fastened for a period of 12 months preceding date of
detection of theft. As much as, said Regulation empowers the
assessment to be made for a period of 12 months preceding
the date of detection of theft or exact period of theft
whichever is less. In the Regulation 7.6.5(a), it is specifically
prescribed that exact period can be arrived at by following
guidelines or any other evidence which may be provided by
the consumer. When the consumer is given opportunity to
produce evidence to show that theft period cannot be
extended to 12 months, he can produce such evidence which
is with him to plead for lesser period. Such production of
evidence will arise only if the consumer is given opportunity
but not otherwise.
[24] From a reading of Regulation 7.6.5 of the Regulations of
2005, it is clear that it is inbuilt, in the regulation itself to
provide opportunity to the consumer before supplementary bill
is raised. In case of theft of energy, respondent authorities
cannot unilaterally assess loss of energy for a maximum period
of 12 months in all cases without giving any opportunity.
Further it is clear that civil liability determined is subject to
orders of the Special Court under Section 154(5) of the
Electricity Act. If any amount is deposited by the consumer
which is excess of civil liability to be determined by the
Special Court, such amount is required to be refunded to the
consumer under Section 154(6) of the Electricity Act of 2003.
C/SCA/12351/2021 ORDER DATED: 29/04/2023
[25] In view of aforesaid provision of Regulation 7.6.5 of the
Regulation of 2005 which is issued in exercise of section 50 of
the Electricity Act of 2003 read with Section 154(5) and 154(6)
of the Electricity Act of 2003, it makes clear that in cases of
theft of energy, initial assessment power is conferred on the
authorities subject to provision under Section 154(5) and
154(6) of the Electricity Act of 2003. Initial assessment is to
be made by the authorities by following Regulation 7.6.5 of
the Regulations of 2005 notified by the Gujarat Electricity
Regulatory Commission. In that view of the matter, we are of
the view that aforesaid two judgments relied by the learned
Counsel for the respondent would not render any assistance in
support of their plea that in the cases of theft of energy, for
assessing civil liability, no opportunity need be given to the
consumer. Said contention of learned Counsel for the
respondent is required to be rejected and accordingly, it is
rejected.
[26] As much as, we are of the view that before issuing
supplementary bill, no procedure is followed in this case as
referred above, the appeal is required to be allowed by setting
aside the supplementary bill for an amount of Rs.17,18,384.43
ps.. Accordingly, supplementary bill for an amount of
Rs.17,18,384.43 ps. (Annexure -- D in Special Civil
Application No.10600 of 2008) is hereby quashed and set aside
and the matter is remanded to competent authority to take
fresh decision by giving opportunity to the appellant as
C/SCA/12351/2021 ORDER DATED: 29/04/2023
contemplated under Regulation 7.6.5 of the Regulations of
2005."
9. Regulation No.7.6.5 which is substituted by amended
Regulations of 2005 provides for opportunity to consumer
before raising supplementary bill, which reads thus :
"7.6.5
(a) The Assessment under this section shall be made at the rate
equal to two times of the tariff rates applicable subject to
pending adjudication by the competent court.
The assessment under this section shall be applicable for a
period of 12 months preceding the date of detection of the
theft or the exact period of the theft whichever is less.
The exact period may be arrived at by following guidelines or
any combination thereof or any other evidence which may be
provided by the consumer.
(i) Meter reading instrument (MRI) data should be
considered wherever available.
(ii) Actual period from the date of commencement of
supply to the date of detection of theft.
(iii) Actual period from the date of replacement of
component of metering system in which the evidence is
detected to the date of detection of theft.
(iv) The actual period from the date of
previous checking of installation to date of detection of
C/SCA/12351/2021 ORDER DATED: 29/04/2023
theft.
(b) The assessment shall be worked out in the
manner prescribed in Annexure B of the principal
regulations for assessment of Theft as well."
10. Considering the facts of the present case, the bill in
question i.e. supplementary bill dated 9.7.2021 issued by the
respondent for Consumer No.88603/05602/1 issued without
granting opportunity of hearing which is against the provisions
of law and settled position of law. The impugned
supplementary bill dated 9.7.2021 issued by the respondent
authority is hereby quashed and set aside on the aforesaid
short ground. The said exercise be undertaken after granting
opportunity of hearing to the writ-applicant herein.
11. With the aforesaid directions, the present writ-application
stands disposed of.
12. This Court has otherwise not opined on the merits of the
matter.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
