Deputy Engineer, Madhya Gujarat ... vs Marut Haresh Shah
2023 Latest Caselaw 1397 Guj

    C/SCA/7979/2021                            JUDGMENT DATED: 09/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 7979 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 7993 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 7994 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 7997 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 8011 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 8013 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 7998 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 7999 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 8000 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 7980 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 7982 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 8015 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

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 ?

==========================================================
       DEPUTY ENGINEER, MADHYA GUJARAT VIJ COMPANY LTD.
                            Versus


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    C/SCA/7979/2021                             JUDGMENT DATED: 09/02/2023




                        MARUT HARESH SHAH
==========================================================
Appearance:
MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1
MS RUMI M GANDHI(3472) for the Petitioner(s) No. 1
MR.JAY B. TRIVEDI, AGP for the Respondent(s) No. 2
MR RATHIN P RAVAL(5013) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                           Date : 09/02/2023

                      COMMON ORAL JUDGMENT

1. Heard Mr.Chinmay Gandhi learned advocate for

the petitioners and Mr.Rathin Raval learned

advocate for respondent no.1 and Mr.Jay Trivedi

learned AGP for the respondent State.

2. By way of these petitions under Articles 226 and

227 of the Constitution of India, the petitioner-

Madhya Gujarat Vij Company Limited has

challenged the orders passed by the Appellate

Authority in their respective appeals, by which,

the appeals of the consumers filed under Section

127 of the Indian Electricity Act 2003 have been

allowed.

C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023

3. For the purposes of this judgement, facts of

Special Civil Application No.7979 of 2021 are

being considered.

4. The respondent was a consumer of electricity.

The officers of the electricity company visited the

premises on 07.02.2020. A checking was done

and an endorsement was made in the checking

sheet that the consumers were using the

electricity for commercial purposes. Taking as a

case of unauthorized case of electricity invoking

provisions of Section 126 of the Act, the

provisional bill was issued on 12.02.2020 along

with the copy of the checking sheet. It is the

case of the petitioner company that the

consumer refused to accept the sheet. On an

objection being lodged by the consumer on

28.02.2020, its reply was given on 03.03.2020. A

final bill of assessment under the provisions of

C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023

Section 126 was issued on 18.03.2020. The

respondent on 30.05.2020 after payment of 50%

of the bill in question, filed an appeal. After

hearing the parties at length, the Appellate

Authority allowed the appeal of the respondents.

5. Mr.Chinmay Gandhi learned counsel for the

electricity company would assail the order of the

Appellate Authority on the following grounds:

5.1 Mr.Gandhi would submit that admittedly

there was change of use from RGPE to NRGP

which was recorded in the checking sheet when

the officers of the electricity visited the premises

on 07.02.2020. He would invite the Court's

attention to indicate that it was admittedly the

change of user from residential purposes to

commercial purposes. The respondent consumer

had refused to sign the checking sheet. After the

C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023

consumer lodged his objection on 28.02.2020

and after a response to the consumer on

03.03.2020, a final bill was issued on 18.03.2020.

Admittedly the appeal was filed on 15.06.2020

beyond the period of 30 days which is a

maximum limit prescribed under Section 127 of

the Electricity Act.

5.2 The second ground of challenge to the order

is that the finding of the Appellate Authority that

there was no change of usage, is contrary to the

evidence on record and merely by taking into

consideration evidence of the property tax, the

authority could not have disbelieved the stand of

the petitioner when admittedly there was

evidence to show that the respondent was using

residential connections for commercial purposes.

In support of his submissions, he would rely on a

snapshot/screenshot of an apartment/building

C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023

which was named as Shreeji Service Apartment

which was used as a hotel premises in the name

of OYO Hotels. Therefore on two grounds; firstly

when admittedly there was an unauthorized use

of electricity and secondly, the appeal was filed

beyond the time, the order of the Appellate

Authority deserves to be quashed and set aside.

6. Mr.Rathin Raval learned counsel appearing for

the respondent no.2 would support the order and

submit that the finding of the Appellate Authority

on non-compliance of the provisions of Section

126(3) and 126(4) of the Act was a finding

arrived at by the Appellate Authority in

consonance with such provisions. The

regulations referred to in the order indicated

that the copy of the inspection report in

accordance with Clause 7.29 of the Electricity

Supply Code was not issued once the respondent

C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023

had refused to sign the checking sheet and

therefore the order of the Appellate Authority

does not deserve to be interfered with.

7. Considering the facts on hand and taking the

dates as set out in Special Civil Application

No.7979 of 2021 indicates that the provisional

bill was issued on 12.02.2020, after the objection

of the consumer on 28.02.2020 on filing of the

reply, to that objection by the electricity

company, the final bill was issued on 18.03.2020.

Taking the date for the provisional bill as

12.02.2020 and that of the final bill as

18.03.2020, the finding of the Appellate

Authority that there was violation of the

provisions of Section 126(3) of the Act needs to

be considered. Section 126 of the Electricity Act

deals with the assessment when there is

unauthorized use of electricity in accordance

C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023

with sub-sections (2) and (3). The said sub-

sections are reproduced hereunder:

Section 126: (Assessment): ---

...

(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.

[(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.]

The above indicates that the person on whom the

provisional assessment order is served, may file

his objections, if any. On such objections being

filed and after giving an opportunity to such

person, a final order of assessment has to be

C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023

made within 30 days from the date of service of

such order of provisional assessment. Merely

because the objections of the consumer were

filed on 28.02.2020, to which, the company

responded on 03.03.2020, would not ipso-facto

extend the period of time within which the order

of assessment had to be made in compliance with

sub-section (3) of Section 126 thereof.

Admittedly the order was passed beyond the

period of 30 days i.e. on 18.03.2020, whereas,

the provisional bill was of 12.02.2020. The order

of the Appellate Authority on this count therefore

cannot be interfered with.

8. That brings the Court to the question of whether

there was unauthorized use of electricity on the

part of the respondents. The case of the

company was that a checking sheet was issued

on 07.02.2020, wherein, a report was made that

C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023

the Shreeji Flat Apartment building was using

the electricity connections as Shreeji Service

Apartments and there was therefore a change of

user. This, in the perception of the electricity

company was unauthorized use of electricity and

therefore would fall within the provisions of

Section 126(6)(4) of the Act. Examining the

provisions of Section 126 read together with the

Electricity Supply Code, 2015, specially clauses

7.29 and 7.46 thereof which were reproduced by

the order of the Appellate Authority and are, for

the benefit of the order, read as under:

"7.29 The report shall be signed by the Authorized Officer / Accessing officer, each member of the inspection team and by the consumer fails to sing the report, then the same has to be recorded in the inspection report and the report must be handed over to the consumer or his / her representative at site immediately under proper receipt. In case of refusal by the consumer or his / her representative to either accept or give a receipt, a copy of inspection report shall be

C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023

pasted at a conspicuous place in / outside the premises and photographed simultaneously the report shall be sent to the consumer under Registered Post / Speed Post on the same day or the next day of the inspection.

...

7.46 Reclassification of consumer category: If it is found that a consumer has been classified in a particular category erroneously or any order of reduction or enhancement of Contract Demand has been obtained, the Distribution Licensee may reclassify him under appropriate Category offer issuing notice (With minimum notice period of thirty days) to him to execute a fresh Agreement on the basis of the altered reclassification or modified contract demand."

The above clauses indicate that on evidence it

was found that the electricity connections in all

the separate apartments were on separate

establishment and the flat was even assessed for

the purposes of property tax as residential

premises. There was therefore not a case where

there was a change of use inasmuch as the

C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023

connection was for the residential purposes and

there was no evidence in the perception of the

Appellate Authority to indicate that the use was

commercial.

9. Insofar as the action of the Electricity Company

and the contention that the respondent had

refused to accept the checking sheet, the

Appellate Authority placed reliance on the

provisions of Clause 7.29 which categorically

provide for that in the event the consumer

objects to sign a report, the same should be

handed over or be pasted at a conspicuous place.

The Appellate Authority on facts found breach of

this supply code.

10. The order of the Appellate Authority having

discussed these provisions and in light of the

facts before it cannot be faulted to hold the

C/SCA/7979/2021 JUDGMENT DATED: 09/02/2023

breach of such provisions. As far as the delay in

filing the appeal is concerned, perusal of the

order of the Appellate Authority would indicate

that it was not the contention of the company

before the Appellate Authority that the appeal

was time barred. Even accepting the submission

of the learned counsel that it was the question of

law that had to be decided by this Court and that

it was open for the petitioner to raise it, judicial

notice is taken of the fact that during March

2020 to May 2020, there was the period of lock-

down and even the Supreme Court had

recognized the concept of relaxation in the

prescription of limitation.

11. For these reasons, there is no merit in these

petitions. The petitions are dismissed.

(BIREN VAISHNAV, J) ANKIT SHAH