Executive Engineer(O & M) vs Mangal Rubber Products Pvt Ltd
2023 Latest Caselaw 5573 Guj

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 10091 of 2010

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                     EXECUTIVE ENGINEER(O & M)
                              Versus
             MANGAL RUBBER PRODUCTS PVT LTD & 1 other(s)
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Appearance:
MS LILU K BHAYA(1705) for the Petitioner(s) No. 1
MR ADIL R MIRZA(2488) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 03/08/2023

                              ORAL ORDER

1. By way of present writ-application the writ-applicant

herein has challenged the judgment and order dated 27.1.2010

passed in Appeal No.02/1009-1010 vide Order No.NAMVN/TPS/

APPEAL/627 27-1-2010/2010 and prayed for direction to

confirm to pay amount of Rs.6,14,215.78 ps.

2. Heard Ms. Lilu Bhaya, the learned advocate appearing for

the writ-applicant and Mr. Adil Mirza, the learned advocate

appearing for the respondent No.1.

3. The respondent No.1 applied for H.T. Connection with

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contract demand of 180 KV. Checking was carried out by the

Squad on 29.1.2009. The said checking was carried out in the

presence of representative of the respondent No.1 who was

having authority to use power supply in Plot No.308 as per the

site plan and A-1 form and application submitted at the time

of applying and availing H. T. Power supply. It was found

during the said checking that the respondent No.1 was using

the electricity illegally and unauthorisedly in adjacent plot

Nos.309 and 310. The extension of such power boundary

amounts to unauthorised use of electricity under Section 126(B)

(V). In view thereof, the respondent No.1 was issued

provisional bill to the tune of Rs.6,14,215.78 ps by

communication dated 31.1.2009. The said bill came to be

finalized on 1.5.2009 to the tune of Rs.6,14,215.78 ps.

4. Being aggrieved by issuance of the said final bill, the

respondent No.1 filed Appeal before the respondent No.2 and

deposited 50% of the said bill. The respondent No.2 allowed

the said appeal by judgment and order dated 27.1.2010 which

is duly produced at Annexure-D whereby the appeal filed by

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the respondent No.1 herein came to be allowed and it was

directed to the writ-applicant herein to refund the amount of

Rs.3,07,108.00 deposited by the respondent No.1 herein. The

said order reads thus :-

"ORDER

I, the undersigned Shri J.N.Patel Appellate Authority and I/c Deputy Chief Electricity Inspector, South Zone, Vadodara by virtue of the power vested upon me under Section- 127 of the Electricity Act, 2003 as well as the Notification No.GU 2007- 133-E.L..A. 1103-9539-K, dated 01/09/2007 of Urja and Petrochemicals Department Gandhinagar, hereby pass order that the bill bearing amount Rs.614214.78/- for 4833 Units issued by the Appellant to the Respondent may be cancelled. The respondent shall return 50% bill amount at Rs.3071008/- to the Appellant and this office may be immediately informed of the process followed.

    No.NAMVAN/TPS/                    Deputy Chief Electricity
    APPEAL/628/27-1-2010
    office of     the Deputy                      Inspector
    Chief            Electricity
    Inspector, (South Zone),          (South Zone), Vadodara
    Block-C,          Narmada
    Bhavan, Room No.322,
    3rd Floor, Jail Road,
    Vadodara,
    Phone            No.(0265)
    2436270"







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5. Being aggrieved by the impugned order dated 27.1.2010

passed by the Appellate Authority i.e. respondent No.2 herein,

the writ-applicant herein approached this Court challenging the

said order.

6. Notice came to be issued on 1.9.2010. While issuing

notice, by way of ad-interim relief the said order dated

27.1.2010 came to be stayed.

7. Ms. Lilu Bhaya, the learned advocate appearing for the

writ-applicant herein submitted that the order impugned is

required to be interfered with mainly on the ground that the

said order is an unreasoned order. The contentions raised by

the respective parties are not dealt with while passing the

impugned order. Though the submissions advanced by the

writ-applicant were considered by the respondent No2, the

Appellate Authority failed to consider that it was found at the

time of checking on 29.1.2009 that the consumer was having

authority to use power supply in plot No.308 as per the site

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plan and A-1 form and application submitted at the time of

applying and availing HP power supply by the respondent

No.1.

7.1 It was submitted that while applying for H. T. Power

supply the respondent No.1 had shown the map of the

boundary of plot No.308 where it required H.T. Power supply.

The respondent No.1 was using power supply in adjacent plot

Nos.309 and 310. In view of the aforesaid, the electric

connection was used by the respondent No.1 herein in the

plots other than granted.

7.2 It was submitted that the bill in question came to be

issued for one year. The Appellate Authority erred in coming

to the conclusion that as per the Electricity Amendment Act

Sub-Clause (1) of Clause-11 of Section 1 of the Gazette of India

Extraordinary Page No.3 for the premises or area other than

those for which supply of electricity authorized is also booked

under Section 126 of the Electricity Act, 2003. It was also

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submitted that the Appellate Authority erred in coming to the

conclusion that the respondent No.1 is the owner of all the

three plots.

7.3 In view of above submissions Ms. Bhaya, the learned

advocate appearing for the writ-applicant placed reliance on

AIR 2010 (NOC) 975 and Letters Patent Appeal No.1368 of

2018 judgment dated 16.7.2021. Placing reliance on the

aforesaid ratio, it was submitted that the writ-applicant herein

applied for release of electricity connection for Plot No.308. In

absence of application qua adjacent plot Nos.309 and 310

usage of electricity by the respondent No.1 herein amounts to

unauthorised usage.

7.4 Reliance was placed on calculation-sheet which indicates that as per PGVCL norms the usage of electricity in plot Nos.308, 309 and 310 amounts to unauthorised use. The aforesaid calculation is placed on page-12 and 13 dated 29.1.2009.

7.5 It was submitted that the final bill which was issued by the writ-applicant herein amounting to Rs.6,14,215.78 ps. is

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just and proper and, therefore, the order passed by the Appellate Authority is required to be interfered with.

8. Per contra, Mr. Adil Mirza, the learned advocate appearing for the respondent No.1 submitted that the respondent No.1 herein has been duly granted permission for construction by the GIDC for consolidated plots. The said permission is duly produced at page-50 Annexure-R/1. Pursuant to the construction permission by communication dated 14.6.1989 reference was also made for permission granted by GIDC for allotment of consolidated plots duly produced at page-52.

8.1 It was submitted that the respondent No.1 deposited water tax for consolidated plots No.308, 309 and 310, receipts are duly produced on record. Placing reliance on the same it was submitted that the respondent No.1 herein was granted permission for allotment and building in Plots No.308, 309 and 310 consolidated and, therefore, the order passed by the Appellate Authority requires no interference.

8.2 It was submitted that though the application seeking release of electricity at page-39 is for the Plot No.308, the same has been considered as granted for Plots No.309 and 310, considering the permission granted by the GIDC. Placing

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reliance on the same it was submitted that no interference is called for in the order passed by the Appellate Authority.

9. Undisputed facts arising for adjudication of the present

writ-application are that the respondent No.1 is having H.T.

Connection with contract demand of 180 KV for Plot No.308.

The same is evident from Annexure-E wherein Clause (5) of

the same states that, address of the place where power supply

is required : Plot No.308, GIDC, Gundlav, Valsad. On

inspection of the same premises by the writ-applicant authority

it was noticed that the respondent No.1 herein has extended

the usage for electricity beyond what was applied for by the

respondent No.1 herein and supplied by the writ-applicant

herein. In view thereof, the writ-applicant issued

supplementary bill which came to be finalised on 1.5.2009 to

the tun of Rs.6,14,215.78 ps.

9.1 At this stage, it is apposite to refer to checking sheet

which is duly produced by the writ-applicant herein which

reads thus :-

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9.2 It appears that the Appellate Authority while considering

the submissions advanced by the respective parties has failed

to consider the grievance, while passing the order impugned at

pages-33 to 38 and allowed the said appeal and quashed the

said bill issued by the writ-applicant herein taking into

consideration Section 127 of the Electricity Act, 2003 and

Notification No.G.U.2007-133-E.L.A 1103-9539-K.

9.3 At this stage, it is apposite to refer to the position of

law:-

(a) Letters Patent Appeal No.1368 of 2018 judgment dated

16.7.2021, paragraphs 13 to 25 read thus :-

"13. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the learned Single Judge committed any error in passing the impugned order.

14 The following facts are not in dispute:

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[a] The electric connection was provided by the appellants to run a factory of packaging material on the Shed No.15B.

[b] The Shed No.19 purchased by the writ applicant, later in point of time, has no electric connection. [c] The wall between the Shed No.15B and Shed No.19 came to be demolished and both the Sheds were made one composite structure. However, on record, there are two Sheds i.e. Nos.15B and 19 respectively. [d] At the time of inspection, it was noticed that the electricity was being used in the Shed No.19 along with the Shed No.15B.

15. Bearing in mind the aforesaid, we may now look into the relevant provisions of the conditions of supply of electrical energy. The term "consumer", as defined under the conditions, reads thus:

"Consumer" means the owner or occupiers of the premises which are for the time being connected for a supply of electrical energy with the Board's distribution system and includes intending consumer."

16. The term "installation", as defined under the conditions, reads thus:

"Installation" means the whole of the electric wires, fittings, motors and apparatus erected and wired by or on behalf of the

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consumer on one and the same set of premises."

17 The terms "connected load", as defined under the conditions, reads thus:

"Connected load" shall mean the sum of the rated capacities of all the energy consuming devices on the consumers apparatus which can be operated simultaneously with the exemption of the equipments which are listed below:

For Residential Consumer Mixer Grinder Juicer Sewing Machines Hot Iron For Commercial Consumers Equipments kept for demonstration purpose only."

18. The application for supply" is provided under clause 2 of the conditions. The same reads thus: "Application for a supply" pr am additional supply of electrical energy must be made on the form affected hereto (Annexure A) copies of which are obtainable free of cost at any office of the Board. The application must be signed by the consumer."

19 Clause 24 is about "Unauthorised Supply of Energy". The same reads thus:

"24. Unauthorised Supply of Energy: The consumer shall not supply a part of whole of the energy purchased by him from the

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Board to any other persons unless, (1) he holds a suitable sanction or licence for distribution and sale of energy granted by the State Government, or (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 so supplying energy unauthorisedly at any time, his supply shall be disconnected without serving notice."

20 Clause 33(A) is about "malpractice and theft of energy". The same reads thus:

"33 (A) Malpractice and Theft of Energy Malpractice Malpractice shall mean contravention by the consumer of any of the provision of the I.E. Act, 1910, Electricity (Supply) Act, 1948 or Indian Electricity Rules, 1956 or of any other law governing the supply and use of Electricity and the rules framed thereunder as also the contravention of any of the provision of the Board's "Condition and Miscellaneous Charges for Supply of Electrical Energy" or any of the terms and conditions of the contract governing the supply of electricity by the Board to the consumer and shall in particular include the following cases:

(a) The supply of electricity by a consumer to any other person whose supply has been disconnected by the Board for any reason.

(b) Exceeding the contracted load by a consumer without the specific permission of the Board.

(c) Unauthorised addition, alteration and/or extension to the consumer's electrical installation without the permission of the Board.

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(d) Using supply by a consumer from the service which has been disconnected by the Board for any reason.

(e) Supply of energy to any other person without the permission of the Board."

21 Clause 34 is about "payment for energy dishonestly used or abstracted or maliciously wasted or diverted". The same reads thus:

"34. Payment for energy dishonestly used or abstracted or maliciously wasted or diverted.

Where it is established to the satisfaction or 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 period and in the manner specified hereinbelow 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.

Provided that the value of the electricity energy so assessed to have been abstracted, used, consumed, wasted or diverted shall be subject to review by the Appellate Authority on the representation/appeal being filed by the consumer in the manner stated hereinbelow.

Provided further that in the case of a consumer detected to have committed or to have been committing pilferage of energy in addition to his liability to pay the amount towards the value of

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the electrical energy assessed to have been pilfered as computed in the manner specified hereinbelow (subject of course to the appeal to the Appellate Authority in regard to the quantum of energy so assessed), the power supply to such consumer shall be disconnected and shall be kept disconnected for a period of 30 days from the date of disconnection of power supply on the ground of pilferage of energy subject to review by the Review Committee of the Board or until a minimum amount specified hereinbelow is paid against the energy so assessed, whichever is later and the authority of such disconnection may be be exercised by the Board at any time, but generally as soon as possible, after the detection of pilferage of energy. Subject to provisions of the second proviso hereinabove, when a consumer on first occasion is found wasting, directly using / abstracting / consuming energy dishonestly or maliciously, is aggrieved by the assessment made by the Board's Officer in respect of the monthly quantum of energy deemed to have been consumed and/or the period considered therefor, he shall pay an amount equivalent to 15% of the value of the energy so assessed before the supply is reconnected. The another 15% of the amount of the supplementary bill shall be payable within 30 days of reconnection. Board shall process the party / consumer's appeal on payment of 15% amount. However, hearing shall be take only after receipt of second installment. However, if the consumer on second or subsequent occasion is found wasting, directly using / abstracting / consuming energy dishonestly or maliciously he shall have to pay full amount of the energy so assessed before the supply is reconnected."

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22 Clause 35 provides for "disconnection for malpractice and compensation thereof". The same reads thus: "Disconnection for malpractice and compensation thereof Where any consumer is detected for 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 a the discretion of the Board if the consumer compensates the Board in the manner prescribed thereunder qualified for reconnection by removing the cause of disconnection and takes such other actions as may be directed by the Board in this context."

23 Annexure : A attached to the conditions provides for the 'Form of application for supply of electricity". The relevant part reads thus:

"ANNEXURE 'A' FORM OF APPLICATION FOR SUPPLY OF ELECTRICITY TO, THE GUJARAT ELECTRICITY BOARD

1. I/we hereby request you to supply electrical energy to the premises owned/occupied by me/us hereinafter described.

2. I/We hereby agree to take supply and pay for the said energy, service connection and other dues including the deposit of such security as may be demanded in accordance with the rates and conditions of supply of the Board in force from time to time and

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further declare and agree to take supply of energy for the under- mentioned purpose for my/our bonafide use for a period not less than two years from the date of commencement of the supply or and in the case of reconnection of supply (where the initial period of agreement is completed) after a period of six months from the ...(illegible).. or not less than one year from date of reconnection.

3. I/We also undertake to receive supply within three months from the date the Board intimate that it is ready to give supply to our premises failing which I/We undertake to pay the Board the minimum charge as may be applicable.

4. This requisition is for

(a) a new service (b) a re-connection (c) an alteration to my existing installation (d) a temporary service (e) a change of name from Shri .....

5. Describing of the premises:

House No. Land survey No. Street Town/village District Owner's name owner's address"

24. Having regard to the aforesaid provisions, we are of the view that Ms. Bhaya is right in her submission that the learned Single Judge committed an error in taking the

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view that the case is one of mere expansion of the factory upon purchase of the adjoining Shed by demolishing the partition and the same would not amount to violation of the conditions of supply of electrical energy as framed by the Gujarat Electricity Board referred to above.

25 We shall first concentrate on the fact that the electrical installation is in the Shed No.15B. 'Installation' means the whole of electric wires, fittings, motors, on one and the same set of premises. The writ applicant, as a consumer, could be said to be the owner or occupier of the premises, which are connected for a supply of electrical energy with the Board's distribution system. Malpractice, as explained in condition No.33(A) referred to above, would include unauthorized addition, later on, and / or extension to the consumer electrical installation without permission of the Board. The case of the appellants is that so far as the Shed No.19 is concerned, there is no electrical connection and it being a separate premises or rather a different premises, the extension of electrical connection from the Shed No.15B to Shed No.19 would amount to unauthorized addition falling within the ambit of malpractice and theft of energy."

9.4 It is apposite to refer to Section 126 of the Electricity

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Act, 2003 which reads thus :-

SECTION 126 : Assessment

(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

1 "(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.";

(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of

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service of such provisional assessment order upon him:

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1 "(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.";

(6) The assessment under this section shall be made at a rate equal to 9 [twice] the tariff applicable for the relevant category of services specified in sub-section (5).

Explanation.-For the purposes of this section,-

(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;

(b) "unauthorised use of electricity" means the usage of electricity-

(i) by any artificial means; or

(ii) by a means not authorised by the concerned person or authority or licensee; or

(iii) through a tampered meter; or

(iv) for the purpose other than for which the usage of electricity was authorised; or

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(v) for the premises or areas other than those for which the supply of electricity was authorised.".

10. Considering the aforesaid position of law and Section 126

of the Electricity Act, 2003, as per Section 50 of the Electricity

Act the applicant is required to apply for supply of electricity

in Form A-1 under Section 50 of the Act. The writ-applicant

herein applied for H.T. supply of electricity for Plot No.308

duly produced at Annexure-E page-39 at page-40 column No.5

qua Plot No.308, GIDC, Gundlav, Valsad. In view thereof, any

use with regard to Plot Nos.309 and 310, in the opinion of

this Court, fall within the ambit of unauthorised use of

electricity. It is also relevant to consider the fact that the

electricity company is required to consider the application as it

is. When the application seeking electricity connection in

question was for Plot No.308 as stated above, the same was

considered by the writ-applicant authority. The usage for Plot

Nos.309 and 310 was never forming part of the said

application. The contention of the respondent No.1 that the

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bills are being raised for consolidated plots, the building use

permission, allotment and taxes are being paid by the

respondent No.1 herein cumulatively for Plot Nos.308, 309 and

310. In the opinion of this Court, it emerges that the

respondent No.1 never applied for release of electricity

connection qua Plot Nos.309 and 310. For the said reason, it

was not expected from the writ-applicant herein to issue

electricity bill for consolidated plots in absence of any such

application by the respondent No.1 consumer. Considering the

aforesaid and the position of law as referred above exercising

extraordinary jurisdiction under Article 226 of the Constitution

of India, the order impugned dated 27.1.2010 passed in

Appeal No.02/1009-1010 vide Order

No.NAMVN/TPS/APPEAL/627 27-1-2010/2010 is required to be

interfered with. The same is hereby quashed and set aside.

11. In view of aforesaid, the present writ-application stands

allowed.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED