SCA/1871/2000 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.1871 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- =================================================== 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 =================================================== D B SANGHROUKA M/s. SHIV INDUSTRIES - Petitioner(s) Versus GUJARAT ELECTRICITY BOARD & 1 - Respondent(s) =================================================== Appearance : MS SUDHA R GANGWAR for Petitioner(s) : 1, RULE SERVED for Respondent(s) : 1, MR AD OZA for Respondent(s) : 2, =================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 18/11/2008 ORAL JUDGMENT (1) This petition has been preferred under Article 226 of the Constitution of India praying for the following reliefs: SCA/1871/2000 2/10 JUDGMENT (a) issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the appellate judgment at Annexure-A in so far as it is against the petitioner and also quash and set aside the impugned revised bill at Annexure-B and further direct the respondents to refund the amount already paid by the petitioner with commercial interest at the rate of 24% per annum; (b) pending hearing and final disposal of this petition direct the respondents, their agents and/or servants not to disconnect the power supply to the petitioner; (c) grant such other and further reliefs as the Hon'ble Court may deem fit in the facts and circumstances of the case. (d) allow this petition with costs. (2) The petitioner is a unit consuming electrical power supplied by respondent-Board with a contracted load of 250 KVA. On 13.08.1998 the electrical installation of the petitioner's industries was checked by officers of the respondent-Board. The meter was removed and inspected in the laboratory on 31.08.1988. A SCA/1871/2000 3/10 JUDGMENT finding was recorded to the effect that electrical energy was used by the petitioner by tampering with the mechanism of the meter and accordingly a supplementary bill was issued. Being dissatisfied with such a supplementary bill the petitioner filed an appeal before the Appellate Committee of the respondent-Board. The appeal was heard on 22.09.1999 and the Appellate Committee partly allowed the appeal reducing the supplementary bill to a sum of Rs.15,84,659.92. (3) The petitioner approached this Court by way of Special Civil Application No.9610 of 1999 which came to be withdrawn by the petitioner as recorded in order dated 06.12.1999 as the petitioner wanted to file a review application before the Appellate Committee. The Court permitted withdrawal of the petition with a direction that in the event the review application is filed the same shall be decided by the Appellate Committee within a period of four weeks from the date of receipt of the SCA/1871/2000 4/10 JUDGMENT review application after granting opportunity of hearing of the petitioner. (4) Accordingly the petitioner approached the Appellate Committee with a review application which was registered as review application H- 90/99. Vide impugned order dated 18.02.2000 the review application has been rejected. The said order of review application is under challenge in the present proceedings. (5) Learned advocate for the petitioner has referred to the following points as appearing in Paragraph No.5 of the petition to urge that the said points have not been considered by the Appellate Committee while deciding the review application: “5.1 The petitioner says and submits that prima facie there is no evidence to show that the petitioner has tampered with the meter. The seal wire is not broken. There are no scratches of other evidence on the meter box to suggest tampering. SCA/1871/2000 5/10 JUDGMENT 5.2 The petitioner states and submits that the meter was inspected on 13.8.1998 and 17.8.1998 and the MMB seals and the meter body seals were found in order. Therefore the question of tampering with the MMB seals and meter body seals does not arise at all. 5.3 The petitioner states and submits that in another unit of the same nature the daily consumption of energy of the plant of the unit is 2222 units and for the period of six months it will work out to 399960 only. On the contrary according to the Board it was taken at 417499 which is quite illegal and arbitrary. 5.4 That the appellate committee failed to appreciate that the connected load for the purpose of preparing the special bill ought to have been taken as 155 KVA. 5.5 That the appellate committee grossly erred in allowing only 14 days in respect of holidays. In fact the plant had remained closed for 33 days. 5.6 The petitioner says and submits that at many times the power was not available and the contention in respect of the same has not been taken into SCA/1871/2000 6/10 JUDGMENT consideration by the appellate committee.” (6) Furthermore, it was urged that the petitioner had been exonerated by a competent Court after a full-fledged trial in criminal proceedings holding that the petitioner had not committed theft of power. (7) On behalf of the respondent authority, learned advocate submitted that on merits the issue had already come up once and the petition having been withdrawn by the petitioner, there was no question of going into the said aspect of the matter. That in fact on the same subject matter, as held by this Court in the case of Punit Vidyalaya Primary School Vali Mandal Vs. State of Gujarat & Ors., 1999(1) G.L.H. 499, this petition was not maintainable against an order made on review application. It was further submitted that ad-interim relief had been granted conditionally and the order by which the petition had been admitted, namely, order dated 16.08.2001, incorporated SCA/1871/2000 7/10 JUDGMENT various conditions for continuing the ad- interim relief. Condition No.(vi) specifically referred to a case of two consecutive defaults and permitted the respondent to discontinue the electricity supply without any further orders from the Court, after giving ten days' advance notice to the petitioner. That in fact after having paid two installments, as directed by the Court, the petitioner had defaulted, the Board had issued notice as per Condition No.(vi) of the interim order, and had discontinued the supply permanently with the consent of the petitioner. (8) Having heard the learned advocates it is apparent that the petition had been admitted vide order dated 16.08.2001 by imposing certain conditions on the petitioner. As stated by the learned advocate for the respondent-Board the petitioner has failed to comply with the said conditions and in fact the electric supply had been discontinued. The petitioner, therefore, cannot seek equity. Be SCA/1871/2000 8/10 JUDGMENT that as it may, as the petition has been argued at length on merits, the contentions are dealt with hereinafter. (9) As the review application was not available on record, the learned advocate for the petitioner has been permitted to tender a copy of the same. On going through the said review application it is apparent that the first ground on which the review has been preferred is acquittal of the petitioner in criminal proceedings. The second ground onwards issues are raised on merits of the controversy and the basis for computation of a revised supplementary bill. In so far as the merits of the issue are concerned, it is apparent that the Appellate Committee had already rendered a decision, partly allowing the appeal of the petitioner, the same had been challenged before this Court earlier by way of a petition being Special Civil Application No.9610 of 1999, and the same had been withdrawn as recorded in order dated 04.12.1999. Therefore, SCA/1871/2000 9/10 JUDGMENT in the present proceedings, the Appellate Committee was justified in stating that no case was made out for re-discussing the merits of the supplementary bill considering the fact that the same had already been considered by the Appellate Committee while passing the first order on 22.09.1999. (10) In so far as the acquittal in criminal proceedings is concerned, it is apparent that the order dated 23.12.1999, on which the petitioner is placing reliance, has not exonerated the petitioner on the ground that no theft of power had been committed but the petitioner has been acquitted on a technical ground, namely, failure of the prosecution to establish the nexus and status of Shri Dilipkumar Babulal Sanghrajka with M/s. Shiv Industries, the Unit which was held to be the defaulting unit. In the circumstances, the judgment rendered in Criminal Case No.6293 of 1998 cannot give any assistance to the SCA/1871/2000 10/10 JUDGMENT petitioner as rightly held by the Appellate Committee. (11) In the circumstances, no case is made out for interference in the order made by the Appellate Committee and the consequential supplementary bill issued to the petitioner. The petition is accordingly rejected. RULE discharged. There shall be no order as to costs. Sd/- [D. A. MEHTA, J] *** B h a v e s h *