Gujarat High Court
Pashchim Gujarat Vij Company Ltd vs Rajesh D Vora on 9 January, 2023
Bench: Nirzar S. Desai
C/FA/2636/1996 JUDGMENT DATED: 09/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2636 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
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 ?
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PASHCHIM GUJARAT VIJ COMPANY LTD
Versus
RAJESH D VORA
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Appearance:
MR RC JANI(357) for the Appellant(s) No. 1
MS LILU K BHAYA(1705) for the Appellant(s) No. 1
MR YOGI K GADHIA(5913) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 09/01/2023
ORAL JUDGMENT
1. By way of this First Appeal, the appellant Paschim
Gujarat Vij Company Limited, which at the time of filing
of this First Appeal was known as GEB, has challenged
the judgment dated 30.5.1996 passed by the learned 2nd
C/FA/2636/1996 JUDGMENT DATED: 09/01/2023
Joint Civil Judge (SD), Surendranagar in Special Civil Suit
No. 57/1991, whereby the learned Civil Judge (SD),
Surendranagar has passed an order and held that the
Bills issued to the present defendant (original Plaintiff)
dated 29.3.1990, one bill of Rs. 3,06,684-94 ps and the
another bill is for Rs.3,24,469-08 ps., total amounting to
Rs.6,31,354-02 ps were held to be arbitrary and illegal
and held that the defendant (present appellant) were not
entitled to recover the aforesaid amount pursuant to the
said bills and further directed the present appellant not to
disconnect the electricity connection of the present
defendant, to enforce the payment of the aforesaid two
bills. The aforesaid judgment is under challenge by way of
this First Appeal. For the sake of convenience, the parties
are addressed to as per their original position i.e. plaintiff
and defendant.
2. The present appellant is the original defendant and
the present respondent is the original plaintiff in Special
Civil Suit No. 57/91. The present respondent was plaintiff
in the said Suit, had preferred the suit being aggrieved by
the issuance of two supplementary bills amounting to
total of Rs.6,31,354-02 ps on the ground of alleged theft.
Both the bills were issued on 29.3.1990 and one bill was
of Rs. 3,06,684-94 ps and the another bill is for
Rs.3,24,469-08 ps., total amounting to Rs.6,31,354-02 ps.
Before the trial Court, it was the case of the present
C/FA/2636/1996 JUDGMENT DATED: 09/01/2023
respondent- original plaintiff that they are having a
factory which manufactures ball-bearing which is situated
in G.I.D.C area of Wadhwan City and they were carrying
out the business in the name and style of SRS Bearing
Industries.
3. The plaintiff obtained two electric connections from
the defendant each of 115 H.P. in the month of January,
1989 or thereabout. On 20.12.89, the defendant's officers
visited the plaintiff's factory for checking of the plaintiff's
meters installed in plaintiff's factory premises. The
defendant's officers found that both the meters were
distorted (in vernacular it is stated as 'Chhundayelu"),
which would indicate that the meters were tampered with
and accordingly the Officers opined to take further action
after receipt of the laboratory test report of both the
meters, as they suspected power-theft and took away
both the meters for the purpose of laboratory test. On
11.4.90, the meters were tested in the laboratory and as
per the report, there was no tampering either with the
seals of the meters or with wires of the meters. Though
the Laboratory report was in favour of the plaintiff, the
defendant issued two supplementary bills dated
29.3.1990 demanding the alleged amount stated in the
foregoing paragraph, totaling to Rs. 6,31,354-02 ps on
the ground of electricity theft, and therefore, the plaintiff
preferred Special Civil Suit challenging the aforesaid two
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supplementary bills.
4. The trial Court, after recording the evidence, passed
an order in favour of the plaintiff holding both the
supplementary bills dated 29.3.1990 as arbitrary and
illegal and held that the defendant is not entitled to
recover the amount as claimed by the two supplementary
bills and further directed the defendant not to recover the
amount of two supplementary bills from the plaintiff.
Being aggrieved by the same, the original defendant
Electricity Company has preferred this First Appeal
before this Court.
5. On 23.4.1998, the appeal was admitted and once
R&P were received and paper-book was ready, the appeal
was listed for final hearing.
6. The matter was listed for final hearing today and
hence, heard learned advocate Ms. Lilu Bhaya for the
appellant (original defendant) and learned advocate Mr.
Gadhia for the respondent (original plaintiff).
7. Learned advocate Ms. Bhaya submitted that the trial
Court has committed a gross error by not taking into
consideration the fact that both the meters were
distorted. She submitted that the trial Court failed to
appreciated the fact that theft can be committed by
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various modus-operandi and, therefore, supplementary
bills based on A, B, C,D Formula were rightly issued in
favour of the plaintiff for electricity theft. She further
submitted that it was the duty of the plaintiff to prove
that during that period there was no electricity
consumption. Checking sheet being a valid document, the
trial Court ought to have considered the checking sheet
and would have passed an order taking into consideration
the contents of the checking sheet rather that relying
upon the Laboratory Report alone, as checking sheet
being the first piece of evidence at the time when
inspection had taken place and there are various modus-
operandi to commit electricity theft. The trial Court was
required to take the same into consideration and,
therefore, the findings based upon the Laboratory report
is erroneous. She further submitted that the trial Court
has failed to appreciate the fact that even after the
meters were sent for laboratory test, the consumption on
the part of the plaintiff was very high. However, the
aforesaid aspect was ignored by the trial Court and,
therefore, the impugned order is required to be quashed
and set-aside.
8. Learned advocate Mr. Gadhia appearing for the
respondent-original plaintiff has vehemently opposed the
contention raised by learned advocate Ms. Bhaya and
drew the attention of this Court to the findings of the trial
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Court while the trial Court has categorically held that as
per the Laboratory report, there was no tampering with
the meters and meters were in proper condition. He
submitted that the trial Court has also taken note of the
fact that in the month of January, February, April, June,
August, October, 1989, the production in the plaintiff's
Company was Nil. The aforesaid conclusion was arrived
at by the trial Court on the basis of statement showing
production by of the unit submitted to the Central Excise
for the said period. By drawing attention to the aforesaid
evidence, learned advocate Mr. Gadhia stated that when
there was no production in the Company and there was
no question of electricity theft and, therefore, even
supplementary bills issued on the basis of the ABCD
Formula on the perception of electricity theft is
misconceived and therefore, it is rightly declared
arbitrary and illegal by the learned trial Court.
9. Mr. Gadhia also pointed out from the judgment of
the trial Court as well as from the evidence that the
Officer of the Electricity Company had admitted that he
was not present at the time when the checking sheet was
filled. By drawing attention of this Court to the aforesaid
aspect, he submitted that the trial Court has rightly held
in favour of the plaintiff and declared the supplementary
bills dated 29.3.1990 as arbitrary and illegal and held
that the defendants are not entitled to recover the
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aforesaid amount and further directions were issued to
the defendant not to disconnect the electricity of the
plaintiff. Except the above referred to submissions, no
other submissions were made by the parties nor any
decision of this Court or of the Supreme Court was cited
by the parties.
10. I have heard learned advocate for the parties and
perused the R&P. From the R&P as well it transpires that
even at the time when the testing report was submitted, it
is stated in the test report that the seal on the matters
seems to be distorted which leaves the possibility that it
may have been distorted, it may not have distorted. There
was no definite evidence or observation even at the time
of submission. Further, on perusal of the Laboratory
report also, in respect of both the meters, it is
categorically observed in the report that the seals of the
meters are not broken, seal wires are also intact and,
therefore, there is no possibility of tampering with the
meter or seal or there is any attempt of electricity theft is
committed in respect of the meter No. 6001552, and in
respect of another meter, being meter No. 10014926 also
the laboratory report states that the seals are intact,
sealed wires are also intact and there is no tampering
with the meters. The Laboratory report also stated that
when the meters were examined by opening three types
of screws, none of the internal parts of the meter is either
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burnt and the meter disc are working in proper condition.
11. When the Laboratory report, examination of the
meters and its internal part specifically certifies that the
meters were working in proper condition and there was
no tampering and when the entire case of the defendant
is based on the tampering of the meters, this Court is of
the view that the trial Court has not committed any error.
Further, though a theory of other modus-operandi is
canvassed before this Court, there is no evidence to show
that the meters were tampered with or by any other
modes or method, the meters were tampered and
electricity theft was committed. Further, in both the
Laboratory reports, in respect of meter No. 6001552,
which is having seal No. 131532, 131531, 131530 and
131529 and another meter having meter No. 10014926
having Seal No. 131565, 131566 and 131567 are intact
and has the report is absolutely clear and unambiguous in
respect of each meter and seals, there is no question of
drawing any adverse inference against the plaintiff.
12. Further, the trial Court has also considered the fact
that the plaintiff has produced the Certificate and
documentary evidence in respect of production submitted
before the Central Excise which substantiate that there
was no production by the plaintiff in the month of
January, February, April, June, August, October, 1989 and
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when there is not production, there would not be any
possibility of electricity theft.
13. In view of the aforesaid, I see no reason to interfere
with the judgment dated 30.5.1996 passed by the learned
2nd Joint Civil Judge (SD) , Surendranagar in Special Civil
Suit No. 57/1991.
14. In view of the aforesaid discussion, the present
Appeal is required to be dismissed and the same is
dismissed accordingly. R&P to be sent back.
(NIRZAR S. DESAI,J)
SAJ GEORGE
