Gujarat High Court

Paschim Gujarat Vij Co. Ltd vs Samanvay Trust School on 5 February, 2024

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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      C/SCA/19823/2017                            ORDER DATED: 05/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 19823 of 2017

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                        PASCHIM GUJARAT VIJ CO. LTD
                                  Versus
                     SAMANVAY TRUST SCHOOL & 1 other(s)
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
ANKIT N MEHTA(7302) for the Respondent(s) No. 1
MR ROHAN RAVAL, AGP for the Respondent(s) No. 2
MR JAY M THANKI(11703) for the Respondent(s) No. 1
MR. HARDIK B KORADIYA(9955) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 05/02/2024

                                ORAL ORDER

1. Heard Mr. Dipak R. Dave, the learned advocate appearing

for the writ-applicant.

2. Mr. Dave, the learned advocate submitted that the writ-

applicant herein is aggrieved by the order dated 2.6.2017

passed by the respondent No.2 Appellate Authority allowing

the Appeal preferred by the respondent No.1.

2.1 Mr. Dave, the learned advocate also submitted that the

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impugned order passed by the respondent No.1 is without

taking into consideration the documents produced by the writ-

applicant herein on record i.e. the inspection report on the

date when the inspection was undertaken dated 27.6.2016.

3. This Court has considered the documents that are

produced on record. This Court has also perused the impugned

order dated 2.6.2017 passed by the respondent No.2 herein

allowing the Appeal filed by the respondent No.1.

4. It is apposite to refer to Sections 126(1) and 126(1B) of

the Electricity Act, 2003, which read 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

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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 service of such provisional assessment order upon him:

4 [******] 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 1 "(iv) for the purpose other than for which the usage of electricity was authorised; or

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

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5. The aforesaid is considered by the competent authority

wherein the findings read thus :-

"(i) Appellant has deposited 50 % of the final assessment bill and paid appeal fee of Rs 2500. The appeal is filed within 30 days from the date of the final assessment order. The final assessment order is not made with the consent of the Appellant.

(ii) The final assessment order is made under Section 126 of the Electricity Act, 2003 and so the appeal is made under Section 127 of the Electricity Act, 2003.

(iii) The seals provided on the MMB are found in safe condition.

The wiring of the Meter is not checked considering MMB seal condition and there is no dispute regarding the accuracy of the Meter.

(iv) Any representative of the Respondent has not noticed any irregularities or connected cable for unauthorized or theft of power during checking or earlier visits to the premises.

(v) MRI data of the meter shows some current failure and voltage failure counts with some zero readings during the night but the same cannot be considered as sufficient evidence of unauthorized use of power or theft as except zero current, meter algorithm shows failure count when absolute difference in value of current and voltage between two phases is less than specified limit. Also, zero consumption is not proof of direct use of power except some circumstantial evidence is provided by the Respondent Company.

(vi) The Section 126 (6) (B) of the Electricity Act 2003 provides specific condition necessary for consideration of unauthorized use of

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power. The Respondent had failed to mention which condition is applicable in the present case to take action under Section 126.

(vii) Section 126 (1) of the Electricity Act 2003, specifically mentioned that equipments, gadgets, machines, devices found connected, used or after inspection from the records; the unauthorized use of power should be determined. The Respondent had failed to show any connected device or equipment at the time of inspection and did not produced sufficient evidence from the record for unauthorized use of power.

(viii) The bill is issued with calculation as per power theft, in place of formula mentioned in GERC Electricity Supply Code & Related Matters Regulations Notification No.4 of 2015."

6. Considering the aforesaid findings recorded by the

Appellate Authority in the opinion of this Court, the said

findings are without taking into consideration the documents

that were produced by the writ-applicant herein i.e. inspection

report dated 27.6.2016 and panchnama drawn in presence of

the private respondent No.1 dated 27.6.2016.

7. When the matter was taken up for hearing, the learned

advocate appearing for the private respondent chose not to

appear. Neither any request to adjourn the matter or pass over

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