SCA/1274220/2008 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12742 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================================= 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 ? ========================================================= SANJAY ISPAT PVT LTD & 1 - Petitioner(s) Versus CHAIRMAN & 1 - Respondent(s) ========================================================= Appearance : MR BHARAT T RAO for Petitioner(s) : 1 - 2. DS AFF.NOT FILED (N) for Respondent(s) : 1 - 2. MS LILU K BHAYA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 29/12/2008 ORAL JUDGMENT 1. This petition invokes extraordinary jurisdiction of this Court under Article 226 of the Constitution of India by challenging issuance of supplementary bill issued by the respondent-PGVCL for theft, as the same is arbitrary, illegal, without jurisdiction and it is only based on conjectures and surmises and the SCA/1274220/2008 2/13 JUDGMENT respondent has not supplied MRI data for the reasons stated in the memo of the petition and, therefore, the impugned action deserves to be quashed and set aside. It is prayed that; (A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction which the Hon'ble Court may deem fit by quashing and setting aside the supplementary bill issued by the respondent PGVCL for theft as the same is arbitrary, illegal, without jurisdiction and it is only based on conjectures and surmises and therefore the respondent is not supplying M.R.I. data for the reasons stated in the Memo of Petition; OR IN THE ALTERNATIVE; (B) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction which the Hon'ble Court may deem fit directing the respondents and their servants and agents to prepare the bill of the petitioner being H.T. Consumer No.25887 after considering the M.R.I. Data and keeping in mind the GERC Notification dated 14.12.2005 bearing no.GERC/TECH-I/227/2005 for the reasons stated in the Memo of Petition and in the interest of justice. (C) To issue a writ of mandamus or a writ in the nature of mandamus or any other SCA/1274220/2008 3/13 JUDGMENT appropriate writ, order or direction, which the Hon'ble Court may deem fit by referring the matter to the Chief Commissioner of Electricity, Gujarat State or any retired person retired from the highest post of Chief Commissioner of Electricity for his independent opinion with regard to recording of consumption of electricity in the meter if small pin is found in the cable which connects the CTPT with meter because as per the say of the petitioner it does not effect on the record of consumption of electricity in the meter if at all any foreign substance is found and further because of the latest technology adopted by respondent viz. Meter Reading Instrument – M.R.I. Data for the reasons stated in the Memo of Petition and in the interest of justice. (D) Pending admission, hearing and final disposal of the above Special Civil Application to direct the officers of the respondent to revise the bill under Sec.135 issued on 10.09.2008 as per GERC Notification dated 14.12.2005 which is binding to the respondent company as well as consumer under the provisions of The Electricity Act, 2003 so that the petitioner can deposit under protest the amount of the bill and then take further legal action in the matter for the reasons stated in the Memo of Petition and in the interest of justice. SCA/1274220/2008 4/13 JUDGMENT 41(DD) Pending admission, hearing and final disposal of the petition, Your Lordships may be pleased to direct the respondents to reconnect the power supply of the petitioner being HT Consumer No.25887 forthwith.” 2. It is the case of the petitioner that the petitioner is engaged in the business of manufacturing of 6 mm M.S.Bars and factory is set up at Veraval Industrial area having electric connection of 400 KVA for its rolling mills in the year 1995 having consumer No.HT-25887. Since inception of the rolling mills, the petitioner-company has paid the electricity bills regularly and at no point of time, any case of theft or unauthorised use of electricity was ever found against the company. It is further stated that the factory being rolling mill, engaged in manual hot rolling process, the company cannot run for more than one shift in a day because of constant requirement of maintaining temperature of a particular level. It is also the case of the petitioner that every consumption of the petitioner's unit is in the range of 3000-3500 units per day. On 28.06.2008, the meter had recorded 16,910 units, which is much higher than the normal recording of the above average consumption. A request in writing was made to the Jurisdictional Executive Engineer to check the electrical installation, meter components etc. and reminder was also sent on 07.07.2008. On 12.07.2008, the officers of the electricity company visited the factory and checked all installations SCA/1274220/2008 5/13 JUDGMENT attached with the meter and found installation and meter intact and in order. The meter was also tested. Again, upon a request, it was found by the officers of the electricity company that the meter accuracy was tested with HT/LT accucheck and the result found within permissible limit. Since the meter had shown excessive reading again on 02.08.2008 and 03.08.2008 than the normal average consumption to the tune of 66,910 units, a complaint was preferred in writing reiterating the above incident to kindly check the connection and remainder was sent on 07.08.2008, even to replace the meter also. On 09.08.2008, 10.08.2008 and 11.08.2008, the meter again recorded 1000 units excess and, on that day, the company was closed and instructions were passed on to the employees to check the record and the meter reading at every two hours and the meter accordingly recorded 1000 units when the mill was closed in the early morning. The periodical checking indicated unprecedented high consumption at every two hours and, therefore, on 12.08.2008, the officers of the Electricity Company visited the premises of the petitioner and tested the meter and entire installation including cables etc. vide checking sheet No.HTR/1265 dated 12.08.2008 in the presence of representative of the petitioner- company. The meter was found O.K. and all the parameters were tested and the same were found within permissible limits and the seals applied on the meter also intact and request was made to replace the whole meter and new meter came to be installed. The separate checking list was prepared. Thereafter, a letter was written by the petitioner-company that on account of excessive recording of power consumption SCA/1274220/2008 6/13 JUDGMENT by the electrical meter installed at the petitioner's premises, the entire dispute was to be settled, considering the excessive consumption shown and recorded in the meter. However, after replacing the meter, the consumption remained same i.e. in the range of 3000 to 3500 units. On 08.09.2008, the Electricity Company sent meter to the laboratory and the meter was opened in the presence of the petitioner's representative. Even, at that point of time also, on opening of the meter, it was found O.K. including seals. However, the officers of the electricity company alleged that by cutting the wire shown, it was shown that one pin in the armor wire, connecting from C.T.P.T. unit to the meter, which came to be objected by the petitioner. However, the supplementary bill was prepared on the basis of the case made out of theft and on 09.09.2008, the respondent-company had disconnected the power supply and bill of Rs.1,12,47,099.52 ps. issued on 10.09.2008. 3. Mr.Joshi, learned counsel appearing for the petitioner, has vehemently contended that the respondent-electricity company has prepared the supplementary bill, contrary to the procedure laid down in the Electricity Supply Code and Related matters details of conditions thereof framed by the Gujarat State Electricity Regulatory Commission on 31.03.2005 and notification dated 14.12.2005 by which, earlier regulations namely Sections 7.6.5 of the erstwhile Act, came to be substituted by the amendment which provide the amendment of preparing the assessment under the Section. Accordingly, SCA/1274220/2008 7/13 JUDGMENT Mr.Joshi, learned counsel appearing for the petitioner, submitted that the assessment under the section shall be applicable for a period of 12 months preceding the date of detection of the theft or the exact period of the theft whichever is less. It also provides that the meter reading instrument data (MRI) should be considered wherever available and the actual period from the date of previous checking of installation to date of detection of theft. None of the above procedures or criteria and requirement under the amended regulation are violated by the Electricity Company while preparing the impugned bill and again such unreasonable arbitrary exercise of powers de hors guidelines contained in the above regulation, this Court can exercise powers under Article 226 of the Constitution of India. Mr.Joshi, learned counsel appearing for the petitioner further contended that the stand taken by the respondent-electricity company by filing various affidavit-in-reply indicate inconsistent stand taken by the company inasmuch as initially, it was contended that no MRI data is necessary while, later on, it was conceded by the company that the MRI data though available, may not be relevant. All the above factors will entail good sufficient reasons for this Court that prima facie the electricity company has failed to adhere to the requirement envisaged by the above guidelines and even, subsequently, availability of the MRI data indicate no tempering which is fortified by the letter issued by the L & T company which reveal the tamper logic followed by L & T meters supplied to PGVCL, respondent-Company, Rajkot SCA/1274220/2008 8/13 JUDGMENT and what could be said to be a tempering. 4. Learned counsel appearing for the petitioner also submitted that when the basic premise of preparing supplementary bill is illegal and the factors to be considered by the electricity company have been given go by, apparently a case of theft is made out by the electricity company for which defences may be available which can be considered by the Special Court but what is to be taken note by this Court is the manner and method in which absolutely arbitrary exercise is undertaken by the electricity company by which the operation of the manufacturing activity of the petitioner-company has come to a grinding halt which resulted into huge financial loss. So far as the availability of the remedy under the Act is concerned, it is submitted that on the face of the record, it is revealed that the respondent-company has exercised powers contrary to the provisions of the Act, Regulations made therein and on the basis of availability of MRI data. The claim of the petitioner stands connected to the extent of at least manufacturing by directing the respondents to prepare supplementary bill after taking into consideration the relevant amendment and regulations as relied on. 5. Upon issuance of notice by this Court, the respondent-company has filed affidavit-in-reply and preliminary objection is raised by learned counsel Ms.Bhaya, appearing for the respondent – Company with regard to admission of this petition while exercising power under Article 226 of the Constitution of India. In view of the availability of the Special Court SCA/1274220/2008 9/13 JUDGMENT constituted in exercise of powers under Section 154 of the Electricity Act, 2003, in a case under Section 135 of Theft of Electricity when particularly as per the laboratory report, it is found that the petitioner has tampered with the cable connected with the meter by inserting pin and that was found in the presence of the representatives of the petitioner- company, prima facie no case is made out to interfere with by exercising powers under Article 226 of the Constitution of India. It is further contended by the learned counsel for the respondent that even looking to the MRI data, it is clear that on 23.06.2008, there is staggering as such there should not be any consumption or minimum consumption but instead of that the petitioner-company has managed to manipulate in G-7 card by writing 225 units whereas actually, units which were consumed on that day, looking to the M.R.I. data, were 1885. So, not only the cable was tampered but even G-7 card was also manipulated by the petitioner which is clear from the M.R.I. data. It is further submitted that on 02.08.2008 and 03.08.2008, the meter had shown excessive reading since the meter had recorded only 2970 units, whereas the petitioner has manipulated in G-7 card by writing 66,910 units with a view to create evidence that there is abnormal rise in the recording of consumption. The above tampering and manipulation in G-7 card was done, according to the learned counsel for the respondent, so as to misguide the electricity company, with the above abnormal consumption. Various further factors have been dealt with in detail with SCA/1274220/2008 10/13 JUDGMENT regard to calculation done by the respondent – company as per MxHxC formula and load factor. It is submitted that so far as the guideline framed under Section 50 of the GERC'S Supply Code is concerned, it is submitted that admittedly, from the laboratory report which is on record, it is clear that tampering was not with the meter but it was a tampering with cable and a foreign substance (pin) was found in the cable and it was inserted in such a manner that it was shortened the main and load of “R” phase current circuit, as observed on page 82 of the laboratory report. By the above modus operandi, the correct consumption was not recorded in the meter and some of the part of the current was to be bypassed. The above tampering of the cable and G-7 Card, according to the learned counsel for the respondent, has remained undisputed and preparation of the supplementary bill is in accordance with the guidelines and amendment of the Regulation by Notification dated 15.12.2005. It is also submitted that Section 135 of the Electricity Act, 2003 is pertaining to theft of electricity, Section 136 is for theft of electric lines and materials, Section 155 deals with Special Courts, Section 153 is for Constitution of Special Courts and Section 154 provides for procedure and power of Special Courts. In view of the above clear remedies available to the petitioners and prima facie, it is revealed from the record that tampering with the cable which has substantially affected consumption of electricity, attracts the provisions of Section 135 and, therefore, no case is made out to exercise the powers SCA/1274220/2008 11/13 JUDGMENT under Article 226 of the Constitution of India. 6. Learned counsel appearing for the respective parties have also referred to various pleadings in the form of rejoinder and affidavit-in-reply to indicate relevance of MRI data and to what extent it has appeared on recording of consumption of electricity and preparation of the supplementary bill also adverse to such details in view of the following conclusions. 7. Considering the facts and submissions of the learned counsel appearing for the parties, on perusal of the record of the case, laboratory report and the checking-sheet prepared, I am of the opinion that the petitioner has tampered with the cable by inserting foreign object (Pin) so that electricity consumption is not recorded correctly and to misguide G-7 Card is tempered. The above fact is revealed in the presence of the representative of the company and the whole process is videographed by the officers of the laboratory of the electricity company. There is no reason to disbelieve the above fact of tampering by the petitioner-company. 8. So far as the following guidelines, criteria or the procedure, as amended vide Notification dated 15.12.2005 in exercise of powers under Section 50 of the Electricity Act are concerned, it is evidently made clear by the respondent-company that the company has followed the above procedure. Not only that but on oath, it is said that the relevant MRI data was supplied and was considered by the electricity company and the formula applied is in accordance with SCA/1274220/2008 12/13 JUDGMENT the regulations of the Code. What is found from the record is the method adopted by the petitioner of tampering with the cable by inserting foreign object (Pin) which has resulted into recording of consumption of electricity in the form of units, which may not appear apparently any damage or tampering with the seal of the meter or C.T.P.T. or anything inside the meter. Not only that but to show excessive consumption of units even G-7 card was manipulated and tampered by not showing correct units. If tampering of the cable with foreign object is seen in juxtaposition to manipulation of tampering with G-7 card, prima facie, it is revealed a case of theft by keeping the meter and its parts intact and, therefore, exercise of powers under Section 135 by the Electricity Company cannot be said to be, in any manner, illegal, arbitrary, unreasonable or depriving the petitioner of any right. 9. So far as constitution of Special Court is concerned, as required under Section 153 and procedure to be followed by such Court under Section 154 of the Electricity Act, such Courts are in existence and all the defences raised in support of not tampering, if true, can be raised by the petitioner before the Special Courts and the factual disputes with regard to MRI data, whether correctly relied on in preparation of the supplementary bill is to be looked into by the Special Court alongwith the other relevant materials on which, the case of the respondent-company for theft of electricity is based. When foreign object is inserted for tampering the cable, whether such tampering has bearing of MRI data SCA/1274220/2008 13/13 JUDGMENT can be looked into after producing relevant materials before the competent and Special Court and this Court will not indulge into any exercise. 10. With regard to letter addressed by the L & T company, it only reveals the factors to be considered and not and the tampering and recording of units by the meters supplied by the L & T company. On the sole basis of such letter, which is not admitted by the respondent while filing additional reply, the Court cannot examine such issue in case of a theft of electricity, where evidence of any nature will be examined by the Special Court. 11. As no case is made out, this petition is rejected with cost of Rs.10,000/-. Notice is discharged. (ANANT S. DAVE, J.) Hitesh