SCA/9431/1999 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9431 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- ====================================== 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== JAY JALARAM (LINCH) OWNERS ASSOCIATION - Petitioner(s) Versus GUJARAT ELECTRICITY BOARD & 1 - Respondent(s) ====================================== Appearance : MR HARDIK B. KALMEKH FOR MRTUSHAR MEHTA for Petitioner(s) : 1, RULE SERVED for Respondent(s) : 1, MS SHAHEEN PATHAN FOR MS RV ACHARYA for Respondent(s) : 2. MR VT ACHARYA for Respondent(s) : 2. ====================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 28/01/2008 ORAL JUDGMENT 1 This petition has been preferred praying for the following reliefs : SCA/9431/1999 2/8 JUDGMENT “7 The petitioner, therefore, prays that :- (A) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction may kindly be granted quashing and setting aside the order dated 18th September 1999 passed by the Appellate Committee of the Gujarat Electricity Board in Appeal No. B-322/99 (Annexure- A)”. 2 The petitioner, a Non Trading Corporation is running a Club and Resort on the land owned by the petitioner at village Linch, District Mehsana. The respondent Board has granted electrical connection with 125HP of electricity supply for running the said resort. 3 A surprise inspection took place on 12.11.1998 and the checking squad found something doubtful qua the meter installed at the premises and therefore the checking squad removed the meter for being tested in the laboratory. After the meter was tested on 31.03.1999 the petitioner was served with supplemental bill for a sum of Rs. 5,81,452.15 ps. for theft of electric power. The petitioner carried the matter in appeal before the Appellate Committee who accepted the stand of the respondent Board in principle that theft of electric SCA/9431/1999 3/8 JUDGMENT power had been committed, but the Appellate Committee found that on the basis of consumption pattern diversity factor which was taken at 1.00 in the supplemental bill was required to be reduced to 0.73. Thus the supplemental bill was revised to a sum of Rs.2,29,451.97 ps. 4 The challenge made in the order of the Appellate Authority is founded principally on the ground that the meter had been inspected on 22.04.1998 and hence, supplemental bill issued as on 12.11.1998 could not have taken into consideration the prior period in excess of six months from 12.11.1998. The learned Advocate for the petitioner in this connection has placed reliance on the following averments : “(a) The petitioner states and submits that the Appellate Committee has committed a serious error in not considering the fact that the meter was previously checked on 22nd April 1999 and no abnormality was found during the checking. The checking on the basis of which the impugned bill was sent was 12th November 1998. While calculating the bill for past six months, the respondents ought to have calculated the bill with effect from 22nd April 1998. The Appellate SCA/9431/1999 4/8 JUDGMENT Committee has rejected the said contention on the ground that the meter was not inspected in the Laboratory after checking on 22nd April 1998 and therefore the said checking is not reliable. It is respectfully submitted that the Appellate Committee has committed a serious error in considering the said contention. It is not the case of the Board that the meter was tempered with or was defective. The case of the Board on the basis of which allegation of theft is made is tempering with the seals of the meter body and therefore testing of the meter in the Laboratory is irrelevant. The tempering with the seals on the meter body is something which could be easily detected during personal inspection of the inspecting squad at the installation of the consumer, and to ascertain as to whether the seals are tempered with or nor, it is not necessary to get the meter tested in the Meter Testing Laboratory. When indisputably there is no defect or mal-practice alleged with respect to the meter, the said contention ought not to have been rejected on the ground that the meter was not tested in the Meter Testing Laboratory. (b) The petitioner states and submits that the SCA/9431/1999 5/8 JUDGMENT Appellate Committee has committed a serious error in not properly construing the report of the Meter Testing Laboratory. It is submitted that a perusal of the report shows that the Laboratory has itself said in no uncertain terms that nothing is found in the meter or any of its parts, nor any scratches are found on parameter in the meter like wiring, reverse lock, pivot barring, pressure coils, current coils etc. are found to be perfectly in order. Merely because the outer body of the meter was alleged to be tempered with, the allegation of theft can not be sustained merely on surmises, conjectures and presumptions when such presumption can not be corroborated with the actual condition of the meter. There is no satisfaction recorded by the officers of the Board as to how and in what manner either theft is capable of being committed, or appears to have been committed, or is committed. The only conclusion arrived at by the officers of the Board is based on an unwarranted and unsustainable presumption that since the seals are found to be tempered with, theft must have been committed though there is a specific finding recorded that nothing is found to indicate that theft is committed”. SCA/9431/1999 6/8 JUDGMENT 5 The learned Advocate for the respondent Board has also been heard. Reliance has been placed on the Affidavit-in-Reply dated 15th September 2004. Referring to paragraph Nos. 5 & 6 of the Affidavit-in-Reply, it was contended that though the meter was inspected on 22.5.1998 but as the meter had not been checked in the Laboratory, the technical aspect could not be found from a bare inspection of the meter which can be detected only in the inspection carried out in the Laboratory by technical experts. Secondly, it was contended that the petitioner was a habitual defaulter and had already been booked for similar offence by issuance of supplemental bills in September 1997 as well as in July 2002 for theft of electrical energy. 6 Having heard the learned Advocates appearing for the respective parties it is apparent that no interference is warranted. In a petition under Article 226 of the Constitution, the Court is primarily concerned with the decision making process and not the conclusion itself. Though there is discrepancy in the mention of date as to the earlier checking of the meter : according to the petitioner it was 22.4.1998, SCA/9431/1999 7/8 JUDGMENT while according to the impugned order of the Appellate Authority the date appeared to be 22.5.1998, that discrepancy by itself would not have any material bearing. If the date stated by the learned Advocate for the petitioner, as averred in the petition is accepted as correct, the supplemental bill has been issued only for a period of last six months which would expire on 12.05.1998, and hence, the said aspect would have no relevance. In the event checking took place on 22.05.1998, the Appellate Authority has recorded a finding that as the meter had not been examined in the Laboratory there was no possibility to locate the irregularity at that time. There is no material to displace the said finding recorded by the Appellate Authority which is comprised of technical members . 7 In fact when the entire order is read, it becomes apparent that the impugned order has been passed after granting an opportunity of hearing to the petitioner and permitting the petitioner to raise all the issues of facts and law. The impugned order also records and deals with the contentions raised by the petitioner. Whatever relief was due the Appellate Authority has granted appropriate relief in the quantum. SCA/9431/1999 8/8 JUDGMENT 8 In the aforesaid fact situation, merely because a different view on the same set of facts and circumstances might have been possible, that would be no ground for intervention in an order made by the Appellate Body. It is not possible to record any finding as to the impugned order being perverse. In absence of any legal infirmity in the impugned order no interference is warranted. 9 Accordingly, the petition is rejected. Rule discharged. There shall be no order as to costs. Sd/- (D.A. Mehta, J) M.M.BHATT