Gujarat High Court
Shah Faizal A Bhaijamal Nawaz Ice ... vs Madhya Gujarat Vij Co Ltd on 22 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3494 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/FIRST APPEAL NO. 3494 of 2022
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SHAH FAIZAL A BHAIJAMAL NAWAZ ICE FACTORY
Versus
MADHYA GUJARAT VIJ CO LTD & ANR.
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Appearance:
MR KM PANERI(6121) for the Appellant(s) No. 1
MR.NIRMISHKUMAR A PRAJAPATI(9770) for the Appellant(s) No. 1
MR JIGAR M PATEL(3841) for the Defendant(s) No. 1
RULE NOT RECD BACK for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 22/07/2025
ORAL ORDER
1. This Appeal is filed by the appellant under Section 96 of the
Code of Civil Procedure, 1908 (for short, hereinafter
referred to as `the Code') challenging the judgment and
decree dated 15.6.2022 passed by the learned Principal
District Judge, Panchmahals @ Godhra in Special Civil Suit
(Electricity) No.1 of 2006, whereby, the suit of the original
plaintiff was dismissed.
2. Heard learned advocate Mr. K. M. Paneri for the appellant
and learned advocate Mr. Jigar M. Patel for the respondent
No.1. Rule could not be served upon respondent No.2.
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Perused the record.
3. The short facts arising from the record are as under:
4. The appellant filed a suit against the respondent for
challenging the supplementary bill dated 17.5.2006 which
was issued towards the theft of electricity. The case of the
plaintiff in the paint is that an ice factory in the name and
style of Nawaz Ice Factory is situated at Hayat Ni Wadi,
Godhra. He was having the facility of 30 HP Industrial
Electricity connection by consumer No.01001/51198/0. The
vigilance squad of the respondent visited the ice factory in
December 2005 and March 2006, but no irregularities were
found. After the death of the appellant's father, plaintiff's
mother, who was an elected Member of Nagar Palika, was
undergoing iddat period and the plaintiff was at Dahod for
his engineering exams. Ex-parte checking on 16.5.2006
was conducted at the ice factory of the plaintiff and
thereafter a supplementary bill of Rs.7,56,401/- was issued
on 17.5.2006. The summons were served upon the
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respondent who appeared and filed Written Statement at
Exh.11. The learned trial Court upon pleadings, framed
issues vide Exh.15. The plaintiff examined himself at
exhibit 53 and produced documentary evidence, notice
Exh.54, original supplementary bill Exh.55, checking report
Exh.56 and the certified copy of the deposition recorded in
Special Civil Suit (Electric) No.7 of 2009. Respondent
examined witness Ramanbhai Bapujibhai Malivad at exhibit
82 and also produced laboratory testing report at exhibit
83, MRI data at Exh.89, checking report exhibit 102,
Rojkam of laboratory testing exhibit 103, FIR registered
against the plaintiff at exhibit 106. After considering the
evidence on record, learned Principal District Judge
dismissed the suit with cost. Being aggrieved and
dissatisfied with the impugned judgment and degree, the
appellant - original plaintiff has filed the present first
appeal.
5. Learned advocate for the appellant has mainly harped
upon the issue that on the date of checking i.e. on
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16.05.2006, neither mother of plaintiff nor plaintiff were
present at the place of factory and in absence of the
plaintiff, the checking was conducted and, thereafter, a
supplementary bill to the tune of Rs.7,56,401.25 Paisa
came to be issued. It is contended that when the squad
visited plaintiff's factory in the month of 2005, Officer of
the respondent did not find any material against the
plaintiff. It is contended that the Officers of the respondent
noted down in their record that no irregularities are found
during the inspection. Even in the month of March 2006,
when the Officers of the respondent inspected the factory
premises, no tampering with the meter was found. But
after the death of plaintiff's father, when the mother of
plaintiff was observing Iddat period and the plaintiff was
busy in the exams conducted at Dahod, again on 16-05-
2006, the Officers of the respondent visited the factory
premises and on the very next day, the supplementary bill
came to be issued.
6. Learned advocate for the appellant submitted that the
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challenge in the first appeal is only limited to the question
of the power of the respondent to issue a supplementary
bill for more than six months. A reliance has been placed
upon Gujarat Electricity Regulatory Commission (Electricity
Supply Code and Related Matters) Regulations, 2005.
Regulation No.6.1.8 is reproduced hereunder:
"6.1.8 In the event of the meter being tested by the
Distribution Licensee, either on his own or upon a request by a
consumer and being found to be beyond the limits of accuracy
as prescribed in the Rules in force, the amount of the bill for a
period of three months immediately preceding the date of
inspection of the meter in case of domestic and agricultural
services and for a period of six months immediately preceding
the date of inspection of the meter for all other categories of
services, shall be estimated in accordance with the result of
the test. Any evidence provided by consumer about conditions
of working and/or occupancy of the concerned premises during
the said period(s), which might have had a bearing on energy
consumption, may be considered."
7. Per contra, learned advocate for the respondent has
contended that the present case is a case of theft of
electricity and, therefore, Chapter 7 of the Regulations,
2005 are relevant. Regulation 6, more particularly,
regulation No.6.1.8 which has been relied upon by learned
advocate for the appellant are not relevant so far as the
present case is concerned. He has referred Section 154(5)
of the Electricity Act, 2003 which is reproduced hereunder:
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"154(5) The Special Court shall determine the civil liability
against a consumer or a person in terms of money for theft of
energy which shall not be less than an amount equivalent to
two times of the tariff rate applicable for a period of twelve
months preceding the date of detection of theft of energy or
the exact period of theft if determined whichever is less and
the amount of civil liability so determined shall be recovered
as if it were a decree of civil court."
8. The aforesaid provision mandates that the special court
shall determine the civil liability against a consumer or a
person in terms of money for theft of electricity which shall
not be less than an amount equivalent to two times of the
tariff rate applicable for a period of 12 months preceding
the date of detection of theft of energy or the exact period
of theft if determined whichever is less.
9. Learned advocate for the respondent has placed on record
a notification dated 14.12.2005 of the Regulations 2005.
He has placed reliance upon Regulation No.7 which
pertains to unauthorized use of electricity, more
particularly known as Chapter 7 of the Electricity Act.
Attention has been drawn with regard to Section 7.6.5 of
the Supply Code which indicates that the assessment for
the theft of electricity shall be made in accordance with
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Section 7.2. Section 7.2 deals with investigation and
provisional assessment. Reliance has been placed upon
Section 7.2.2 of the unamended Supply Code which is
reproduced hereunder.
"7.2. Investigation and Provisional Assessment:
7.2.2. If the assessing Officer reaches to the conclusion that
unauthorized use of electricity has taken place, it shall be
presumed that such unauthorized use of electricity was
continuing for a period of three months immediately preceding
the date of inspection in case of domestic and agricultural
services and for a period of six months immediately preceding
the date of inspection for all other categories of services,
unless the onus is rebutted by the person, occupier or
possessor of such premises or place."
10. As per the aforesaid clause, when the Assessing Officer
reaches to the conclusion that unauthorized use of
electricity has been taken place, a presumption would be
drawn that the unauthorized use of electricity was
continuing for a period of 3 months immediately preceding
the date of inspection in the case of domestic and
agricultural activities and for a period of 6 months
immediately preceding the date of inspection for all other
categories of services.
11. Upon finding the anomaly in Section 154(5) of the
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Electricity Act and the Regulation 6.1.8 of Supply Code
was amended by notification dated 14.12.2005. Learned
advocate for the respondent has placed on record a copy
of notification dated 14.12.2005 and referred the amended
Section 7.6.5, which is reproduced hereunder:
"7.6. Theft of Electricity
7.6.5 The assessment for the theft of electricity shall
be made in accordance with Section 7.2."
12. It is submitted that after the amendment, supply code has
remained in consistence with sub Section (5) of Section
154 of the Electricity Act. In the present case, the
inspection was carried out in the year 2006 which is after
the amendment in the supply code. It is further contended
that the factory of the appellant would fall under the other
categories of services and therefore the respondent has an
authority and power to issue a supplementary bill for
unauthorized use of electricity immediately preceding the
date of inspection which would be 12 months. It is further
contended that the question which has been raised by the
appellant before this Court was never raised before the
learned trial Court and there was no contention raised in
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the plaint with regard to the implementation of Regulation
No.6.1.8. It is submitted that learned Trial Court has rightly
dismissed the suit and there is no reason to interfere in the
decision of the learned trial Court. No other submissions
are made except the above.
13. I have considered the submissions canvassed by the
learned advocates for the respective parties and perused
the paper book. The question which has been raised by the
learned advocate for the appellant for quashing and setting
aside the impugned judgment and decree is solely on the
ground that clause No.6.1.8 of the Supply Code of Gujarat
Electricity Regulations, 2005 which provides that where the
meter is running slow, amount of bill can be claimed for a
period of 3 months immediately preceding the date of
inspection of the meter in case of domestic and agricultural
services and for a period of six months immediately
preceding the date of inspection of the meter for all other
categories of services. Undisputedly, the factory premises
of the appellant falls within the other categories.
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14. Whether in the present case, regulation 6.1.8 of Gujarat
Electricity Regulatory Commission (Electricity Supply Code
and Related Matters) Regulations, 2005 is applicable or not
is a question to be answered. Regulation 6 deals with the
metering and power supply charges (bills) meters where
the meters are found either defective or required to be
replaced upon request of either the consumer or upon
inquiry made by the Officers of the Electricity Company. On
reading the entire regulation No.6, the cases where the
consumer is found to be in unauthorized usage of
electricity power has not been mentioned.
15. For the unauthorized use of electricity, the relevant
provision is Section 7, sub-section (5) of Section 154 of the
Electricity Act gives power to Special Court regarding civil
liability against a consumer for theft of energy, which shall
not be less than an amount equivalent to two times of the
tariff rate applicable for a period of 12 months preceding
the date of detection of theft of energy or the exact period
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of theft, if determined, whichever is less. The unamended
regulation 7.2.2 was for determination of the cases where
unauthorized use of electricity has taken place and the
unauthorized use of electricity was noticed or found for a
period of six months immediately preceding the date of
inspection for all other categories of services.
16. The afore-stated regulation stipulates that in the event of
the meter being tested by the Distribution Licensee, either
on his own or upon a request by a consumer and being
found to be beyond the limits of accuracy as prescribed in
the Rules in force, the amount of the bill for a period of
three months immediately preceding the date of inspection
of the meter in case of domestic and agricultural services
and for a period of six months immediately preceding the
date of inspection of the meter for all other categories of
services, shall be estimated in accordance with the result
of the test. It is further contended that on the ground of
suspicion regarding meter seal, the electric connection of
the appellant was discontinued by respondent. No other
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submissions are made except the above.
17. If the amended section 7.6.5 is considered, it indicates that
the assessment under such amended Section shall be
applicable for a period of 12 months preceding the date of
detection of theft or the exact period of theft, whichever is
less. Section 6 of Supply Code is applicable to metering
and power supply charges (bills) meters.
18. Learned advocate for the appellant could not point out as
to how Section 6 of the Supply Code is applicable to the
facts of present case. It is apparently clear on scrutinizing
Sections 6 and 7 of the Supply Code that both the
provisions are operating in different sphere and on the
facts which have emerged on record, it is an undisputed
fact that the question in the suit was pertaining to a
supplementary bill which was issued by the respondent on
finding unauthorized use of power.
19. A contention has been raised by the plaintiff in the plaint
that the inspection was carried out in absence of plaintiff
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and his mother. However, if the inspection report is
perused, which is placed on record, it is found that the
mother of the plaintiff has signed the same. When the
plaintiff is asserting an allegation that the inspection was
done in his absence, heavy burden lies upon the plaintiff to
discharge the same. On the factual aspect of the signature,
only mother of plaintiff can depose. In the cross-
examination, the plaintiff has conveniently avoided a
specific question and replied that he does not know
whether his mother was present or not. The plaintiff in the
cross-examination has not sticked to his version that the
inspection was done in absence of his mother and his
mother has not signed. Moreover, the plaintiff has not
examined his mother, Sophiaben, whose signature is found
on the inspection report. Section 7.2.2 of the Supply Code
also speaks that the conclusion can be arrived at that
unauthorized use of electricity has taken place, unless the
onus is rebutted by the person, occupier or possessor of
such premises or place. On considering the evidence on
record, the plaintiff has also failed to rebut the conclusion
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of unauthorized use of electricity when the rebuttal onus
has not been duly discharged by the plaintiff, the
conclusion which has been arrived at by the respondent
holds ground.
20. As discussed above, supplementary bill issued by
respondent was in consonance with the amended
Regulation No.7.6.5, which contemplates demand for the
unauthorized use of power for a period of 12 months
preceding the date of detection of the theft. In my view,
learned trial Court has rightly and properly interpreted the
evidence and arrived at a conclusion that plaintiff has
failed to prove his case and dismissed the suit. As no
contrary material is found after scrutinizing the material
available on record, I do not find any reason to interfere in
the findings of fact and the conclusion arrived thereafter.
21. Under the circumstances, the appeal lacks merit and
deserves to be dismissed and accordingly, it is dismissed.
Record and proceedings, if any, be sent back to the
concerned Tribunal, forthwith. Interim Relief, if any, stands
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vacated forthwith. No order as to costs.
22. In view of dismissal of the main matter, connected Civil
Application will no longer survive and the same stands
disposed of accordingly.
(D. M. DESAI,J)
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