SCA/8150/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8150 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= HEIR OF DECEASED KABABHAI KARSANBHAI BHUVA - Petitioner Versus PASCHIM GUJARAT VIJ CO - Respondent ========================================================= Appearance : MR CL SONI for Petitioner. MS LILU K BHAYA for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 01/09/2008 ORAL JUDGMENT 1. Rule. Ms.Lilu Bhaya, learned advocate waives service of notice of Rule on behalf of respondent. With the consent of learned advocates appearing for the respective parties, SCA/8150/2008 2/10 JUDGMENT the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, petitioner- original plaintiff-applicant has prayed for an appropriate writ, order or direction, quashing and setting aside the order passed by the learned Principal Senior Civil Judge, Gondal below Exh.1 dated 23.1.2008 passed in Special Civil Execution No.11 of 2006 by not directing the respondent to reconnect the electricity supply of Consumer No. 33814/00810/7 and Consumer No.33814/01211/9. 3. As per the petitioner-plaintiff, father of the petitioner, now deceased Kababhai Karshanbhai Bhuva had filed Special Civil Suit No.41 of 1999 in the court of learned Joint Civil Judge (S.D.), Gondal against GEB – now respondent herein for declaration and permanent injunction alleging that the plaintiff got three electric connections being Consumer No.33814/01212/7, Consumer No. 33814/00810/7 and Consumer No.33814/01211/9 for SCA/8150/2008 3/10 JUDGMENT agriculture purpose. That on 16.3.1999 the officers of the respondent checked the installation, and it was found that, so far as one electric connection is concerned, against sanctioned 6 HP, the plaintiff was using 10 HP and other electric connections were used by the plaintiff for the purpose other than the agriculture purpose i.e. supplying water to the Railway. A Rojkam was prepared and all the aforesaid three connections were disconnected. Subsequently, the GEB-original defendant issued three bills, one for Rs.1,22,073.40ps/-, second for Rs.1,75,246.83ps/- and third for Rs.1,22,073.40ps/-, totaling Rs.4,19,363.63ps/-. The original plaintiff therefore prayed for a declaration that the plaintiff is entitled to power supply, and till the Hon'ble Court fixes the responsibility of the plaintiff as regards the bill, the defendant is not entitled to disconnect the power supply. The petitioner also prayed for mandatory injunction. The learned trial court allowed the suit partly by holding SCA/8150/2008 4/10 JUDGMENT that the plaintiff has not committed theft of energy in respect of any of the connection by supplying water to the railway. However, the learned trial court came to the conclusion that the plaintiff utilised 10 HP Motors against 6HP Connection No.33814/01212/7, and therefore, while partly allowing the suit, the learned trial court ordered that the respondent-defendant should issue bill as per condition 35 of GEB Conditions of Supply and Miscellaneous Charges for additional 4HP, and the learned trial court further ordered that, on payment of the supplimentary bill amount, the respondent should reconnect the electric supply of the plaintiff. The petitioner-plaintiff thereafter filed Execution Application being Special Civil Execution No.11 of 2006 in the court of learned Principal Senior Civil Judge, Gondal on 19.9.2006 for execution of the aforesaid decree. During the pendency of the aforesaid execution application, the respondent reconnected the supply in respect of 6HP Connection SCA/8150/2008 5/10 JUDGMENT No.33814/01212/7 on 5.11.2007. It was the case on behalf of the petitioner-plaintiff that as per the decree, the respondent was also required to reconnect the other two electricity connections. However, the learned Executing Court did not accept the said submission and came to the conclusion that the order in the suit is for one connection only, and as the respondent had reconnected the supply in respect of 6 HP Connection No.33814/01212/7, disposed of the execution application by impugned order dated 23.1.2008 holding that the decree has been satisfied. 3.1 Being aggrieved and dissatisfied with the order passed by the learned Executing Court passed below Exh.1 in aforesaid Special Civil Execution No.11 of 2006 disposing of the said execution application holding that on reconnection of one electric connection, the decree has been satisfied, the petitioner- plaintiff judgment creditor has preferred present SCA/8150/2008 6/10 JUDGMENT petition under Article 227 of the Constitution of India. 3. Shri C.L.Soni, learned advocate appearing on behalf of the petitioner has vehemently submitted that the learned trial court has materially erred in disposing of the execution application by holding that on reconnection of one electric connection of Connection No.33814/01212/7, the decree has been satisfied. It is submitted that the suit was for three electric connections and the decree is also for all the three connections and the learned trial court while decreeing the suit directed the respondent-original defendant to reconnect the electric connection on payment of electricity bill to be issued as per the judgment and decree i.e. additional 4 HP bill and therefore the respondents were required to reconnect all the three connections. Therefore, it is requested to allow the present application. 4. Ms.Lilu Bhaya, learned advocate appearing on SCA/8150/2008 7/10 JUDGMENT behalf of the respondent has submitted that to the best of her information against the impugned judgment and decree an appeal has been preferred. Ms.Bhaya, learned advocate appearing on behalf of the respondent has tried to support the impugned order, however, she is not successful. 5. Having heard the learned advocates appearing on behalf of the respective parties and considering the dispute in the suit and the decree passed by the learned trial court which was sought to be executed by Special Civil Execution No.11 of 2006, it appears that in the suit the dispute was with respect to all the three electricity connections i.e. Consumer No.33814/01212/7, Consumer No. 33814/00810/7 and Consumer No.33814/01211/9. So far as one electricity connection the dispute was that though the sanctioned load was 6 HP instead the plaintiff used 10 HP Motor and the other dispute was that, so far as other two electric connections are concerned, though the same was SCA/8150/2008 8/10 JUDGMENT for agriculture purpose, the plaintiff was supplying water to the railway through pipeline. While passing the judgment and decree, the learned trial court held that it is not proved that the plaintiff has used two electric connections for supplying water to the railway. So far as third connection is concerned, the learned trial court directed the GEB to issue a supplementary bill for additional 4 HP power, and on such payment, the learned trial court directed the respondent to reconnect the electricity supply. Thus, when the dispute was with respect to all the three connections on payment of supplementary bill for 4 HP, the respondent was required to reconnect all the three electric connections. Therefore, the learned trial court has committed an error in holding that on reconnection of Consumer No.33814/01212/7, the decree is satisfied. Unless and until the respondent reconnects the supply in respect of all the three connections, it cannot be said that the decree has been SCA/8150/2008 9/10 JUDGMENT satisfied. Therefore, the learned trial court has committed an error in disposing of the execution petition by holding that the decree is satisfied. 6. So far as contention on behalf of the respondent that against the judgment and decree, an appeal is preferred, the learned advocate appearing on behalf of the respondent is not in a position to substantiate the same by producing the documentary evidence and appeal memo etc. Even before the Executing Court also it was not pleaded by the respondent that any appeal has been preferred against the judgment and decree. Even the learned advocate appearing for the respondent in not in a position to submit whether any stay has been granted against the judgment and decree or not. 7. Under the circumstances and for the reasons stated above, the petition succeeds. The impugned order passed by the learned Executing Court passed below Exh.1 in Special Civil SCA/8150/2008 10/10 JUDGMENT Execution No.11 of 2006 is quashed and set aside and the respondent-original defendant is directed to reconnect the supply in respect of other two connections being Consumer No. 33814/00810/7 and Consumer No.33814/01211/9 at the earliest, and only on such reconnection, the decree is said to have been satisfied. Such reconnection shall be done within a period of four weeks from today. 8. Rule is made absolute accordingly to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. ( M.R. SHAH, J. ) syed/