Chairman,Geb vs Jagjit Textile Dy. & ...
2023 Latest Caselaw 4199 Guj

     C/FA/2671/1996                               JUDGMENT DATED: 08/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2671 of 1996


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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 ?

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                     CHAIRMAN,GEB & 2 other(s)
                               Versus
    JAGJIT TEXTILE DY. & PRIN.WORKTHRO' MANGALLAL G.PARTNER
==========================================================
Appearance:
MR PREMAL R JOSHI(1327) for the Appellant(s) No. 1,2,3
ADITYA R PARIKH(8769) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 08/06/2023

                             ORAL JUDGMENT

1.Heard learned advocate Mr. Premal R.Joshi for

the appellants and larned advocate Mr. Aditya

R. Parikh for the respondent.

C/FA/2671/1996 JUDGMENT DATED: 08/06/2023

2.The appellants have preferred this appeal

being aggrieved and dissatisfied with the

judgment and order dated 11.04.1996 passed by

the Civil Judge(SD), Gondal in Special Civil

Suit No.169/1993.

3.The respondent - original plaintiff was

having Textile and Dying Printing Industry at

Jetpur for printing Sarees. The appellant-

Gujarat Electricity Board (GEB) supplied

industrial electric connection of 120 H.P

under Consumer No. 33201/00035/3 of the

respondent plaintiff.

4.On 27.08.1993 an inspection was carried out

by the officers of the GEB at the factory of

the respondent plaintiff. It is the case of

the GEB that during the course of inspection,

it was observed that there was tampering of

the meter and therefore, meter was removed

C/FA/2671/1996 JUDGMENT DATED: 08/06/2023

and sent to Dhoraji laboratory for testing

purpose. Thereafter bill for theft of

electricity of Rs.3,80,548.47 ps. was issued

on 28.08.1993 which is produced at Exh.39.

5.The respondent plaintiff therefore, filed

Special Civil Suit No.169/1993 before the

Court of Civil Judge (Senior Division) at

Gondal challenging the issuance of the said

bill.

6.The appellant GEB filed written statement at

Exh.30 denying the averments made in the

plaint and further contended that meter of

the respondent plaintiff was checked and it

was found moving slow at 74.74% and some

solution was found on the seal of Metal Meter

Box. Two seals on the Metal Meter Box were

also found to be tampered with and therefore,

it was case of theft of electricity and meter

was removed from the factory of the

C/FA/2671/1996 JUDGMENT DATED: 08/06/2023

respondent plaintiff. In the testing report

submitted by Dhoraji laboratory, it was found

that ends of CT wire were turned and there

was also some change in Y phase of CT and

thereby meter was tampered with. It was

further contended that aforesaid proceeding

of testing and removal of meter was made in

presence of one Nishitbhai Maganbhai Patel

who was power of attorney holder of

respondent firm.

7.After considering the rival contentions of

the parties, the learned Judge framed the

following issues:

"1. Whether the plaintiff proves that though it did not commit power theft, Checking Officer of the defendant while checking its meter on 27.08.93 falsely alleged power theft and falsely issued supplementary bill of Rs.3,80,548.47 ps. and disconnected plaintiff's electric connection?

2.Whether defendants prove that plaintiff had committed theft of

C/FA/2671/1996 JUDGMENT DATED: 08/06/2023

electricity?

3.Whether plaintiff is entitled to get the declaration that impugned bill is illegal, arbitrary, null, void and not enforceable?

4. Whether the plaintiff is entitled for permanent injunction restraining defendants from disconnecting plaintiff's electric connection?

5. What order and what decree?"

8.Learned Judge by answering issue nos. 1, 3

and 4 in the affirmative and issue no. 2 in

the negative allowed the suit filed by the

respondent plaintiff by decreeing the suit

declaring that bill at Exh.39 of

Rs.3,80,548.47 is illegal and not recoverable

by the appellant - GEB - original defendant

and further directed not to disconnect the

electric connection provided by the appellant

GEB.

9.Learned advocate Mr. Premal Joshi for the

appellant-GEB submitted that the learned

C/FA/2671/1996 JUDGMENT DATED: 08/06/2023

Judge has committed an error by not

considering the test report submitted by

Dhoraji laboratory at Exh.67 wherein it is

categorically found during the testing of the

meter that there was tampering by changing

wires in CT. He also invited the attention of

the Court to the diagram drawn in the said

laboratory report to submit that learned

Judge has ignored this vital evidence.

10. Learned advocate Mr. Joshi also referred

to and relied upon Exh.65 which is an

inspection report wherein it is observed

during the course of inspection that seals

applied on meter were containing some

solution and even the paper seals were

different than the usual seals applied by

GEB. It was submitted that the learned Judge

without considering such vital evidence has

come to the erroneous conclusion that because

four seals were found to be okay on the Metal

C/FA/2671/1996 JUDGMENT DATED: 08/06/2023

box meter in the laboratory test report but

findings given by laboratory test report that

there was tampering of the meter was ignored.

11. It was submitted that the findings

arrived at by the learned Judge with regard

to not providing an opportunity to the

authorised person of the respondent firm is

not true inasmuch as Nishitbhai Patel who has

signed the inspection report as well as the

laboratory test report as witness, was power

of attorney holder of respondent no.1 firm

and therefore, such findings arrived at by

the learned Judge are contrary to the

evidence on record.

12. It was further submitted that facts

emerging from record that there was no change

in consumption of electricity after change of

meter cannot be criteria for holding that

there was no theft of electricity. It was

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submitted that there is a finding given by

the testing laboratory that the meter was

running slow because of tampering and change

of wire inside meter which proves that there

was theft of electricity and the bill issued

by GEB applying ABCD formula was just and

proper and learned Judge ought to have

dismissed the suit.

13. On the other hand, learned advocate Mr.

Aditya Parikh appearing for the respondent

consumer submitted that the impugned judgment

and order is passed on the basis of evidence

to the effect that there were four seals on

the meter and the same were found to be okay

which was also admitted by the witness of

GEB, Jamnadasbhai Ramjibhai, Deputy Executive

Engineer at Exh.70.

14. It was submitted that testing

laboratory report is falsified by GEB's own

C/FA/2671/1996 JUDGMENT DATED: 08/06/2023

witness and therefore, the learned Judge has

rightly come to the conclusion that there is

no fault on part of the respondent plaintiff

for alleged theft of electricity.

15. It was further submitted that learned

Judge has rightly come to the conclusion that

Nishitkumar Maganlal PW-1 who was power of

attorney holder of respondent firm was not

authorised as consumer and therefore, the

entire exercise undertaken by GEB for

inspection and testing of the meter is liable

to be quashed and set aside.

16. Having heard the learned advocates for

the respective parties and having considered

the oral and documentary evidence before the

Court below, it is not in dispute that the

evidence of Jamnadas Ramjibhai at Exh.70 is

required to be considered going to the root

of the matter to the effect that four seals

C/FA/2671/1996 JUDGMENT DATED: 08/06/2023

on the meter were found to be in order which

is also stated in the laboratory report at

Exh.67.

17. Learned Judge has considered in detail

the various events which have taken place

during the course of inspection and after

considering the inspection report at Exh.65,

statement of representative of consumer

Nishitkumar at Exh.66 and report of Dhoraji

laboratory at Exh. 67 vis-a-vis the evidence

of Jamnadas Ramjibhai at Exh,70 has rightly

come to the conclusion that when the seals on

the meter were found to be in order then the

respondent plaintiff cannot be saddled with

liability of the slow moving meter on the

allegation of theft of electricity. Learned

Judge has also relied upon the undisputed

fact that in order to change the ends of CT

wires, it is necessary to open the terminal

block of the meter and in order to open

C/FA/2671/1996 JUDGMENT DATED: 08/06/2023

terminal block of the meter, it is necessary

to break the rosy colour plastic seal

no.24098. However such seal is found to be

okay in the laboratory test report at Exh.67,

therefore, it cannot be believed that the

respondent plaintiff had changed the ends of

CT wires to slow down the meter.

18. It was further observed and held in the

impugned order that after installation of the

new meter, amount of bill should be 75% more

as alleged, if the allegation of GEB is

believed, however, on the basis of comparison

of bills produced at Exh. 41 to 47 with

electricity bill at Exh. 48 to 62, clearly

shows there was no rise in the bill amount by

75% even after installation of new meter.

Considering such aspects and evidence on

record, the learned Judge has decreed the

suit by holding that the bills at Exh.39 of

Rs.3,80,548.47 is illegal and such amount is

C/FA/2671/1996 JUDGMENT DATED: 08/06/2023

not recoverable from the respondent

plaintiff.

19. Reliance was also placed on Circular No.

471 of GEB dated 18.10.1990 and Circular

No.470 with regard to wrong connection found

in sealed metal meter box and circular no.

473 which pertains to correctness and

slowness of the meter without mal practise.

Considering such circulars, it was rightly

held by the learned Judge that there is no

evidence led by the appellant-GEB with regard

to tampering with the meter as the seals on

the meter were found to be in order. On

perusal of all the three circulars,

reference is required to be made to Electric

Inspector but the same was not done.

20. The appellant GEB has thus failed to

prove its case of slow meter and theft of

electricity in view of the fact that in the

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testing laboratory report it is categorically

stated that the four seals on the meter were

found to be okay.

21. In view of above findings of fact

arrived at by the learned Judge in the

impugned judgment and order on the basis of

oral and documentary evidence led by both the

sides, no interference is required to be made

by this Court in the impugned judgment and

order as the impugned order cannot be said to

be contrary to the evidence on record or

perverse in any manner whatsoever.

22. The appeal accordingly stands dismissed.

Record and proceedings, if any, be

returned to the concerned Court.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR