IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 11276 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgment? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? --------------------------------------------------------- AMBESHWAR PAPER MILLS LTD. Versus GUJARAT ELECTRICITY BOARD -------------------------------------------------------------- Appearance: MR TUSHAR MEHTA for the Petitioner. MS LILU K BHAYA for the Respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 23/09/2002 C.A.V. JUDGMENT 1. By filing this petition under Article 226 of the Constitution of India, the petitioner-Company has challenged the order dated 25th October, 2001, passed by the Appellate Committee of the Gujarat Electricity Board, respondent No.1 herein, in Appeal No.A-82/2001. By the impugned order, the Appellate Committee has partly allowed the Appeal of the present petitioner and the said order of the Appellate Committee is the subject matter of challenge in this petition. 2. The petitioner is a Limited Company and is a high tension consumer of the Gujarat Electricity Board, having its contract demand of 2000 KVA. On 2.5.2001, on behalf of the respondents, a Trivecto meter was installed at the electricity installation of the petitioner. The electricity installation of the petitioner was thereafter checked by the Industrial Checking Squad, which is specially constituted by the Board for the purpose of detection of theft and pilferage of electricity energy. Initially, the checking squad of the Board inspected the premises of the petitioner-Company and at that time, no irregularity was found. On 9.9.2001, in the early morning, at about 5.00 a.m., the Vigilance Checking Squad of the respondent-Board checked the electricity installation of the petitioner-Company. A detailed inspection was carried out at that time. Subsequently, on 13th September, 2001, the Executive Engineer, (Industrial Division), respondent No.2, disconnected the electricity supply and removed the meter and prepared a Panchnama and, subsequently, supplementary bill for a sum of Rs.9,70,80,525.35 ps. was served to the Company. The petitioner thereafter preferred an appeal before the Appellate Committee. The Appellate Committee, after hearing the petitioner as well as the Officers of the Board, partly allowed the said appeal of the petitioner. So far as the theft of electricity energy is concerned, the Appellate Committee found that the petitioner has committed such theft / pilferage of electricity energy. However, the Appellate Committee reduced the amount to Rs.3,56,58,263.05 Ps. Initially, at the time when the petitioner was served with a supplementary bill of Rs.9,70,80,525.35 ps., the petitioner challenged the said bill by way of filing a civil suit, being Special Civil Suit No.214 of 2001, for a declaration that the action of the Board in issuing the said bill is illegal and null and void. The petitioner also prayed for an interim injunction against disconnection. The trial court rejected the application Exhibit 5 by its order dated 9th October, 2001. At the time of deciding the application for interim injunction at Exhibit 5, the trial court held that there was no prima facie case at all in favour of the plaintiff and that the balance of convenience was also not in favour of the plaintiff. Subsequently, in view of the order of the Appellate Committee, which was passed on 25th October, 2001, the said suit was withdrawn and, ultimately, the order of the Appellate Committee is challenged in the present Special Civil Application. 3. The petitioner has challenged the aforesaid order of the Appellate Committee on various grounds and has annexed voluminous documentary evidence along with the petition. It is contended on behalf of the petitioner that the order of the appellate Committee, by which it is found that the petitioner is guilty of theft of electricity energy is not in accordance with law and that there is no reliable evidence for coming to the conclusion that the petitioner is guilty of committing theft of electricity energy. In order to substantiate the aforesaid contention, heavy reliance is placed on the earlier inspection carried out by the Officers of the Board, as, on the earlier occasion, during inspection, nothing objectionable was found. So far as the finding about theft is concerned, it is submitted by the petitioner that it is a case of "No Evidence" worth the name. Accordingly, it is prayed that the finding of fact about theft is perverse and is required to be set aside by this Court. It is also the say of the petitioner that the finding of theft is arrived at without getting the meter tested in any laboratory, either before alleging theft or at the time of raising the supplementary bill. It is, alternatively, submitted that assuming that the allegation of theft is proved, then also, the computation of amount arrived at by the Appellate Committee is not correct and statutory formula is not taken into account for calculating the quantum. It is also, therefore, argued that the said computation is illegal, and, as such, the petitioner is not required to pay any additional amount. On behalf of the petitioner, it is also further submitted that within a period of six months, the electricity connection of the petitioner was checked by the Inspecting Squad and at that time, everything was found to be in order. In that view of the matter, for the period, during which the electricity connection was found to be in order, no revised bill could have been issued. It is submitted that simply because during the last six months, no supplementary bill is issued to the petitioner, is no ground for sending supplementary bill for the aforesaid period of six months, especially when at the time of earlier checking, everything was found to be in order. The Constitutional validity of Condition No.34 is also challenged by the petitioner on various grounds. The petitioner has also challenged the order of the Appellate Committee on the ground that various documents in connection with the connected load was not taken into account and that the Appellate Committee has not considered the various documentary evidence produced by the petitioner which was in connection with the connected load and under these circumstances, the order of the Appellate Committee is required to be set aside. On these and other grounds canvassed at the time of hearing of the petition, the petitioner has challenged the order of the Appellate Committee, by which the Appellate Committee has confirmed the finding of theft and passed an order of issuing revised supplementary bill to the extent of Rs.3,56,58,263.05 Ps. 4. The petition is resisted by the Board on various grounds. On behalf of the Board, it is submitted that so far as the question about theft is concerned, a detailed checking was carried out on the relevant day and that inspection by special squad was carried out, as, in order to find out the theft of electricity energy, a scientific investigation and inspection was required to be carried out, as, looking to the nature of theft, it is clear that a sophisticated device was utilised by the petitioner-consumer and during the minute checking from all angles, it was noticed that, in a particular manner, the petitioner was committing theft of electricity energy. This aspect about the nature of theft of electricity energy or pilferage of energy is tried to be demonstrated by the Board by placing reliance on certain special type of mechanism adopted by the petitioner, to which I will refer later on. 5. On behalf of the Board, it is submitted that since the petitioner has already withdrawn the civil suit, this petition is not maintainable. It is also submitted that, on an earlier occasion, there was no thorough checking and considering the way in which the theft of energy is committed by the petitioner, it was not possible to find out the same by merely looking at the meter, etc. In the argument of Ms. Bhaya, when a detailed investigation was made on the relevant day, the method of committing theft of energy was noticed by the Board. It is submitted that the finding about electricity theft is a finding of fact, based on rational material on record and, therefore, the same is not required to be interfered with by this Court in a petition filed under Article 226 of the Constitution of India. On behalf of the Board, it is submitted that under the Rules and Condition No.34, the Board is entitled to conduct checking for a period of last six months, as it can be presumed that during the six months, the consumer might have committed such type of illegalities. It is submitted that during the last six months, no supplementary bill was issued to the petitioner and, therefore, it was open for the Board to issue supplementary bill for a period of six months. It is submitted that Condition No.34 is rational and the same cannot be attacked on the ground that the same is arbitrary, or unreasonable, in any manner. She had also further argued that the petitioner had never seriously contended the theft aspect before the appellate committee nor the same is highlighted even in the appeal memo and mainly the matter was argued before the appellate committee regarding the computation of M x H x C factor. For that purpose, Ms.Bhaya has also relied upon the written submissions submitted by the petitioner at the time of hearing of the appeal before the Appellate Committee. On behalf of the Board, it is also further submitted that the Appellate Committee has given considerable relief to the petitioner and the quantum of bill is substantially reduced and that the Committee has considered all the necessary evidence on record for fixing the quantum of supplementary bill. It is also submitted that the petitioner, in fact, had agreed to pay the amount as per the order of the Appellate Committee and, therefore, also this petition is not required to be entertained. However, so far as the last submission about the so-called agreement on the part of the petitioner to pay the amount as per the order of the Appellate Committee is concerned, Mr.Mehta has pointed out that the petitioner had asked for instalments for paying the said amount. However, the petitioner had clearly mentioned to the authority that it will pay the said amount subject to its rights and contentions to take appropriate proceedings challenging the order in question. 6. On 5.12.2001, this Court (Coram : Ravi R. Tripathi, J.), at the time of admitting the matter, directed the Board not to disconnect the electricity supply without prior permission of this Court, if the same is not disconnected by then. On 11.1.2002, this Court (Coram : M.S. Shah, J.) has passed the following order :- " ... ... ... Having heard the learned counsel for the parties for some time, the further hearing of the petition is adjourned to 4th March, 2002. In the meantime, rejoinder affidavit, if any, shall be filed on or before 28.1.2002. Sur-rejoinder, if any, shall be filed on or before 18.2.2002. Ad interim relief granted earlier shall continue till 4.3.2002 subject to the following modification :- The petitioner shall pay the respondent - Board without prejudice to its rights and contentions in this petition, a sum of Rs.60 lacs in three fortnightly installments of Rs.20 lacs each, that is to say, the first installment of Rs.20 lacs shall be paid on or before 31.1.2002, the second instalment on or before 15.2.2002 and the third installment on or before 28.2.2002. The Court may take up the petition for hearing on 4.3.2002 for final disposal. ... ... ...." 7. It is not in dispute that, subsequently, the petitioner has already paid the aforesaid amount, as ordered by this Court on the aforesaid date. On 9th May, 2002, at the time of adjourning this matter, I had also directed the petitioner to deposit additional amount of Rs.40,00,000/- and the petitioner has also subsequently deposited the aforesaid amount. By this time, the petitioner has deposited, approximately, Rs.2/- crores. 8. The matter was argued by the Advocates on both the sides at great length and they have relied upon various documents and there is voluminous documentary evidence on record. Both the Counsels have also given summary of their submissions in writing. 9. The principal question which is required to be considered in this petition is whether the decision of the Board, to the effect that the petitioner has committed theft of electricity energy, is just and proper in the facts and circumstances of the case, and if that be so, whether the appellate authority was justified in passing an order of issuance of revised bill to the tune of Rs.3,56,58,263.05 Ps. 10. So far as the first question about theft of electricity energy is concerned, it is required to be found out as to on what material the authority of the Board has come to the conclusion about the said aspect of electricity theft. On behalf of the petitioner, it is submitted by Mr.Mehta that there is no evidence for coming to the conclusion that the theft of electricity is committed by the petitioner. It is submitted by Mr.Mehta that the finding about theft is based on surmises and conjectures. It is submitted that it cannot be said that the petitioner has dishonestly used or abstracted or maliciously wasted or diverted energy. It is submitted that the allegation of theft is a serious allegation and, therefore, the same is required to be examined in greater detail. It is also argued that the Appellate Committee has also not enquired whether the meter is tested or not. 11. At this stage, it is required to be found out as to what irregularities were alleged to have been noticed by the Checking Squad, comprising of the Vigilance Staff of the Head Office, on the relevant day, i.e. 9.9.2001. The Officers collected the meter data with the help of lap-top computer. Data and shift-wise plant operation log sheet, which also records electrical maintenance and failure in each shift, were collected after due certification by the In-charge Assistant Engineer. Duly signed system-wise summary was also submitted by the In-charge Engineer of the Company. Ultimately, the same was subjected to some further scrutiny and it was found that theft of electricity energy was committed by the consumer. Accordingly, the consumer was booked for theft of electricity energy and subsequently, connection was disconnected on 13.9.2001. The MRI data was available and from the study of the same, it was clear that the consumer has committed theft. The Appellate Committee has also considered the question of theft in detail and it was found that in view of external diversion, created through 'C' shaped hooks provided on the R & B Phase on CTPT wires, an imbalanced condition was recorded and when disturbance is created in both the phases simultaneously, imbalanced condition was not recorded. It is also found that the appellant has carried out maintenance of HT line, CTPT Units, jumpers, bindings, etc. of their own, which they were not supposed to do and the same is the responsibility of the Board. The Board found that the connected load was of 5278.71 H.P. and the relevant data was taken from the laptop computer. Inspection of CTPT was also done through Windows and details regarding running of machine with all the three shifts were collected and that the checking sheet was signed by the representative of the Company without any protest. It was found that joint inspection was also carried out on 9.9.2001 at 9.00 a.m. and data was collected from the laptop computer. In the report, it was found that on both R & B Phases, on CTPT, 'C' shaped hooks were observed. On 'R' Phase, distance between 'C' shaped hooks was 2 ft. and on 'B' Phase, 6 ft. The GEB personnel have collected the data, indicating running of machines in all the three shifts and after making Panchnama, the electricity connection was disconnected on 13.9.2001. It is found from the record that from the very next date of installation of new meter, i.e. from 3.5.2001, total 26 events of current imbalance have been recorded upto 30.7.2001. At some instances, even though plant was running in full swing, meter has recorded higher imbalance of current. It is found that this is impossible for the plant of such a huge capacity of load. It is also found that on certain events, when the plants were running on full load capacity, maximum demand recorded in the meter is substantially lower than average actual consumption. After considering the G-7 Card, the Appellate Committee found that even though 12.8.2001 and 15.8.2001 were recorded as public holidays, on going through the record, it is found that the plants were running in full capacity in all the three shifts on both these days. Even load graph indicates very low reading. It is also found that the readings entered in the G-7 Card are manipulated. As observed earlier, the contention of the Board is that this is a very sophisticated type of device adopted by the petitioner and, therefore, a scientific investigation and inspection was required by the Board to find out whether proper electricity consumption is recorded. 12. Considering the reasoning of the appellate committee on this aspect, as well as considering the documentary evidence and considering the argument of Ms.Bhaya, I am of the opinion that the finding of fact recorded by the Appellate Committee, by which the consumer is found to have committed an act of theft of electricity energy, cannot be said to be an illegal finding in any manner. It cannot be said that there is absolutely no evidence worth the name for coming to the conclusion about the theft of electricity energy. It is, no doubt, true that on an earlier occasion, some inspections were carried out by the Board through its local Officers, but, as rightly pointed out by Ms. Bhaya, at that time, such rigorous test was not carried out, as, looking to the nature of device adopted by the Petitioner, it was impossible for the Officers, who carried out the inspection at the earlier stage, to find out the nature of device adopted by the petitioner for the purpose of committing theft of electricity energy. Looking to the nature of device adopted by the petitioner, it was impossible for the inspecting party by mere glance at the meter to find out the theft of electricity energy. Merely looking at the meter or by checking the meter, it is not possible to find out the theft of electricity energy in view of the device adopted by the petitioner. This is not a case wherein theft is alleged on the ground of playing mischief with the meter in any manner. Under these circumstances, it is not possible for me to accept the say of Mr.Mehta that the finding of fact about theft is based on "No Evidence" or that the same is perverse. Ms.Bhaya amply demonstrated as to how the device was adopted by the petitioner to see that appropriate consumption is not recorded and as to how G-7 Cards are manipulated and that by resorting to the device of some external diversion created through 'C' shaped hooks provided on R & B Phase on CTPT wires, the consumer was committing theft of electricity energy. The Board has ultimately been able to find out this type of device adopted by the petitioner by putting in great labour. Even if during checking, nothing objectionable was found with respect to the meter in question, CTPT Unit and their seals, it is clear that a clever device was adopted by the petitioner so far as 'C' shaped hooks provided on overhead conductors of R & B Phase are concerned. Mr.Mehta, however, has relied upon various case law on the ground that in case the finding is based on "No Evidence", this Court can interfere with such finding of fact and that if the Tribunal has committed a manifest error by misconstruing the documentary evidence or any other material on record, or if it has reached a conclusion, which no reasonable man would reach, or if any relevant material is overlooked, this Court would be justified in interfering with the finding of the inferior Tribunal. So far as the proposition of law canvassed by Mr.Mehta is concerned, there cannot be any dispute at all. However, in the instant case, in my view, it cannot be said that the finding arrived at by the appellate committee is absolutely based on "No Evidence". Even on the basis of circumstances, such finding can be arrived at by the domestic Tribunal or Authority. As pointed out earlier, in the instant case, there is a very sophisticated technological device, and the manner and method which is adopted by the petitioner is such that it could not have been noticed during the earlier inspection and thereafter, considering the necessary circumstances and after considering the matter from various angles for the purpose of finding out the theft of electricity energy, in my view, the finding arrived at by the authority can never be said to be arbitrary in any manner. Even if there is some evidence for coming to such a conclusion, this Court will not disturb such finding. 13. Mr.Mehta has, however, relied on the judgment of the Apex Court in M.P.E.B. and others v. Smt. Basantibai, AIR 1988 SC 71. However, the said decision was in connection with faulty meter. The Supreme Court, after considering the provisions of Section 26(6) of the Electricity Act, came to the conclusion that whether a meter is correct or faulty is a question which is required to be decided by the Electrical Inspector. But, so far as the present case is concerned, the matter required to be considered is whether by a particular device, the petitioner has committed theft of electricity energy. This is not a case in which any defect is found in the meter in any manner. In my view, the Board was justified in raising the presumption of theft against the consumer on the basis of the material available on record. After technical scrutiny and study of the installation as well as the record submitted by the petitioner, if the authority has come to the conclusion that there was a conclusive evidence that theft of electricity energy was committed by the consumer and when the said decision is based on rational material, the finding of theft is not required to be interfered with by this Court. Even if that part of the evidence is required to be re-appreciated as if I am deciding an appeal, then also, it is not possible for me to take a different view than the one taken by the Appellate Committee of the Board. The argument of Mr.Mehta that the petitioner has not committed theft of electricity energy cannot be accepted and hence, the same is rejected. 14. In fact, the Officers of the Board has taken great labour and pains in finding out the aforesaid device adopted by the petitioner and great labour has been put in by the Officers of the Board, who visited the factory on the relevant day, i.e., on 9.9.2001. The petitioner has adopted a very clever device by adjusting the plant's unit in different days with a view to see that by such adjustment, such theft may not be noticed by the authority. I find considerable substance in the argument of Ms. Bhaya that the petitioner has tried to adjust the plant's units in such a manner that by such adjustment, one may not be able to notice that the petitioner has actually committed theft of electricity energy. 15. Even in his appeal memo submitted before the Board, the petitioner has