Deputy Engineer (O&M) - Dakshin ... vs Dilipkumar P Mistry
2023 Latest Caselaw 402 Guj

    C/SCA/7187/2013                               CAV JUDGMENT DATED: 13/01/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 7187 of 2013
                                    With
              CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
               In R/SPECIAL CIVIL APPLICATION NO. 7187 of 2013



FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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 (O&M) - DAKSHIN GUJARAT VIJ COMPANY LIMITED Versus DILIPKUMAR P MISTRY & 1 other(s) ========================================================== Appearance:

MS LILU K BHAYA(1705) for the Petitioner(s) No. 1 MS DHARITRI PANCHOLI, ASST GOVERNMENT PLEADER for the

MR VATSAL TRIVEDI FOR MR YOGESH G DEV(5700) for the

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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 13/01/2023

CAV JUDGMENT

C/SCA/7187/2013 CAV JUDGMENT DATED: 13/01/2023

1. This petition, under Articles 226 & 227 of the

Constitution, has been filed by the Electricity Company

challenging the order dated 16.03.2010 passed by the

Appellate Authority and the Electrical Inspector, Surat in

Appeal No. 11-2009-10.

2. Facts in brief would indicate that on 08.04.2009, the

connection of the respondent no.1 was checked in his

presence and it was found that between RI & BI phase

main door copper link was provided from inside as shown

in the checking sheet. It is the case of the petitioner that

it is a serious irregularity amounting to theft of

electricity. The checking sheet was signed by the

consumer. On 09.04.2009, a provisional bill was issued

under Section 126 of the Electricity Act, 2003. On

16.04.2009, the respondent no. 1 filed objections in the

provisional bill. It is the case of the petitioner that on

19.05.2009, the meter was sent for laboratory inspection

and the laboratory report specifically mentioned that on

terminal block back side, a phase copper link was

C/SCA/7187/2013 CAV JUDGMENT DATED: 13/01/2023

inserted and the meter has been bypassed. This

laboratory report therefore would categorically come to

suggest that the respondent no. 1 had indulged in theft of

electricity. The respondent no. 1 approached the

consumer forum who by order dated 18.07.2009 directed

the electricity company to issue a fresh bill. Accordingly

a fresh provisional bill was issued on 17.08.2009. In this

provisional bill too the petitioner raised objections on

25.08.2009. The final bill was issued of Rs.4,25,950.99. It

was a subject matter of challenge before the Electrical

Inspector and the appeal has been allowed.

3. This order is assailed by the petitioner - electricity

company through the submissions of Ms. Lilu Bhaya,

learned advocate for the petitioner which are as under:

(a) This is a clear case of theft of electricity as can be

seen from the checking sheet wherein it was found that

from inside a copper link had been inserted thereby

tampering with the meter wiring. The final bill on

C/SCA/7187/2013 CAV JUDGMENT DATED: 13/01/2023

07.12.2009 was a bill therefore to be considered as one

issued in a case falling under Section 135 of the

Electricity Act and not Section 126.

(b) The Electrical Inspector has by treating the case

under Section 126 made an inadvertent mistake and

assumed jurisdiction though the modus operandi as per

the laboratory report and the checking sheet suggested

unauthorized use of electricity which was however a

dishonest intention and fell squarely under Section 135 of

the Act. Once it was not a case under Section 126 of the

Act, the finding of the appellate authority that the final

bill not having issued within 30 days was an incorrect

finding.

(c) It was specifically a case of theft of electricity and

therefore the Electrical Inspector had no authority to

entertain the appeal when the bill was issued under

Section 135 of the Act and merely because though

evidently theft is written on the bill it cannot be treated

C/SCA/7187/2013 CAV JUDGMENT DATED: 13/01/2023

under Section 126 of the Act.

(d) This is a case where a permanent arrangement was

made to see that correct consumption is not recorded in

the meter while providing link between RI and BI phase.

The bill having been quashed as not being issued within

the stipulated time of 30 days as provided under Section

126 is a finding without authority of law and the

Electrical Inspector has travelled beyond jurisdiction

when it was not a case of unauthorized use of electricity

but a case of tampering with the meter falling under

Section 135 of the Act.

3.1 In support of her submissions, Ms. Bhaya would rely

on the decision of the Apex Court in the case of

Executive Engineer and Another vs. M/s. Sri

Seetaram Rice Mill [AIR 2012 SC (Civil) 489] to

suggest that the Electrical Inspector failed to appreciate

the distinctions between Sections 126 and 135 of the Act.

She would rely on paragraphs no. 15 to 17 of the

C/SCA/7187/2013 CAV JUDGMENT DATED: 13/01/2023

decision. Also a decision of this court rendered in Special

Civil Application No. 18064 of 2006 with Special

Civil Application No. 20522 of 2006 dated

07.09.2016 has been relied upon by Ms. Bhaya.

4. Mr. Vatsal Trivedi, learned advocate appearing for

Ms. Yogesh Dev, learned counsel for the respondent

would support the order based on the appreciation made

by the appellate authority on the dates so suggested. He

would submit that no fault can be found with the order of

the appellate authority. He would rely on the affidavit-in-

reply filed by the respondent and submit that having once

approached the consumer forum and merely because of

he having signed the checking sheet does not make the

respondent no. 1 admitting the fact that there was theft

of electricity. All throughout as is evident from the

checking sheet and the bills issued by the petitioner

company, it was the company's case that the issue of bills

was by invoking Section 126 of the Act.

C/SCA/7187/2013 CAV JUDGMENT DATED: 13/01/2023

5. Ms. Dharitri Pancholi, learned AGP appearing for

respondent no. 2 - appellate authority would submit that

the appellate authority has given sound and cogent for

entertaining and allowing the appeal of respondent no. 1

and therefore no fault can be found with the order

impugned.

6. Having considered the submissions made by the

learned counsels for the respective parties and on perusal

of the checking sheet issued by the authority and also an

original copy of the checking sheet having been tendered,

it is clear that it was the case of the petitioner -

electricity company that a foreign body was inserted in

the meter and as per the checking sheet it was a case of

theft. Even the laboratory report dated 19.05.2009

indicates that it was an arrangement which was made to

bypass electricity and a theft of electricity was made.

However, what is evident from the assessment bills

including that of final assessment made by the electricity

company, it was a case according to the company that the

C/SCA/7187/2013 CAV JUDGMENT DATED: 13/01/2023

bills were issued for unauthorized use of electricity under

Section 126 of the Act.

6.1 At this point, therefore, what is evident is that

despite a contention being raised by the learned counsel

for the petitioner that it was a theft under Section 135 of

the Act, the company itself had issued bills and had

defended their case by projecting it to be a case of

unauthorized use of electricity under Section 126 of the

Act. Having done so, it is now improper for the petitioner

company to resile from its stand and contend that based

on the checking sheet and the laboratory report, the

Electrical Inspector had no authority to entertain the

appeal under Section 126 of the Act. The bills issued

under Section 126 of the Act clearly provide that the case

of the petitioner company itself was that the assessment

was for unauthorized use under Section 126 of the Act.

7. It is in the background of these undisputed facts that

emerge, the dates would become relevant. It was on

C/SCA/7187/2013 CAV JUDGMENT DATED: 13/01/2023

08.04.2009 that the inspection was carried out. The first

provisional bill was issued on 09.04.2009 to which the

petitioner raised objections. A laboratory inspection was

carried out on 19.05.2009. The petitioner approached the

consumer forum which passed an order on 18.07.2009.

This prompted the electricity company to issue a fresh

provisional bill on 17.08.2009. Merely because a

provisional bill was issued on 17.08.2009 it would not

extend the time for handing out a final assessment on

behalf of the electricity company. It is evident from the

facts and the dates that though the bill was issued on

17.08.2009 and to which the petitioner had lodged

objections immediately thereafter on 25.08.2009, the final

bill was issued only four months thereafter on

07.12.2009. Evidently and admittedly this issuance of

final bill was not within the period of 30 days as provided

in Section 126 of the Act. No fault can be found in the

appellate authority's finding therefore that the bill having

been issued in contravention of provisions of Section 126

of the Act ought to be interfered with and quashed and

C/SCA/7187/2013 CAV JUDGMENT DATED: 13/01/2023

set aside.

8. Accordingly even on account of the sole reason that

the bill having been issued beyond a period of 30 days is

sufficient enough to uphold the order of the Electrical

Inspector because admittedly the bill was issued beyond

a period of 30 days.

9. As far as the submission of Ms. Bhaya, learned

counsel for the petitioner in the case of M/s. Sri

Seetaram Rice Mill (supra) is concerned, there can be

no dispute on this legal aspect of the case where, if a case

were to fall under Section 135 of the Act the question of

mens rea would be evident. Here is a case where the

electricity company itself has invoked the provisions of

Section 126 of the Act and issued a bill for unauthorized

use of electricity and therefore it cannot be submitted by

the company now that it was a case of theft under Section

135 when the authority itself had assessed the case under

Section 126 of the Act.

C/SCA/7187/2013 CAV JUDGMENT DATED: 13/01/2023

10. For the aforesaid reasons, petition is dismissed.

Rule is discharged. In view of the dismissal of the

petition, the court has not gone into the aspect of non-

payment of regular bills by respondent no. 1 pending the

petition. No orders on the Civil Application and the same

is disposed of accordingly.

(BIREN VAISHNAV, J) DIVYA