SCA/703519/1996 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7035 of 1996 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 ========================================================= HIMSON KNITTING INDUSTRIES LIMITED - Petitioner(s) Versus EXECUTIVE ENGINEER (INDUSTRIES) & 2 - Respondent(s) ========================================================= Appearance : MS KJ BRAHMBHATT for Petitioner(s) : 1, DELETED for Respondent(s) : 1 - 2. MR HS MUNSHAW for Respondent(s) : 3, MS LILU K BHAYA for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 21/11/2008 ORAL JUDGMENT 1 This petition has been preferred challenging the additional bills issued for the period from October, 1995 to April, 1996 and subsequent communications dated 21.08.1996 and 06.09.1996 seeking recovery of SCA/703519/1996 2/8 JUDGMENT an amount of Rs.4,54,685.49 ps. 2 The facts which are not in dispute are that the petitioner, a limited Company, is carrying on manufacturing activities at Surat. The petitioner entered into a contract demand for supply of power of 250 KVA by obtaining a high tension connection for the manufacturing unit. There is no dispute as to the fact that the petitioner has been otherwise paying the bills raised by the respondent authority regularly and without any default. The controversy arises on the basis of a visit by the checking squad on 15.3.1996, when the checking squad found that the meter installed at the factory premises was not running at the speed at which it should run considering the power supplied. In the remarks column the checking squad recorded as under : “15. Remarks: From the voltages measured as above it is confirm that one P.T.voltages is not coming to TTB and Meter. Due to this the Meter is moving slow by 47.51% as celculted above. The bill for above slowness to be issued as per Boards Rules”. SCA/703519/1996 3/8 JUDGMENT Admittedly, thereafter on 18.04.1996 the defective CTPT (Current Transformer Potential Transformer) was replaced as recorded in the test sheet of even date. Thereafter, admittedly the supplemental bills were issued by the respondent authority. 3 The learned Advocate for the petitioner has assailed the supplemental bills primarily on the ground that the CTPT unit is an instrument installed by the respondent authority and belongs to the respondent authority. That it is the obligation of the respondent authority to maintain the same in a proper working condition and if the instrument is found to be defective the petitioner cannot be penalised for the same by calling upon the petitioner to pay a sum specified in the additional bills. It was further submitted that under Provisions of section 26 (1) and 26(6) of the Indian Electricity Act, 1910 meter is installed by the respondent authority, the meter belongs to the respondent authority and if the meter is found to be defective SCA/703519/1996 4/8 JUDGMENT and any difference or dispute arises the matter is required to be referred to Electrical Inspector. That the respondent authority having failed to do so cannot be permitted to raise the supplemental bills. It was further submitted that even otherwise as provided by sub-section 26(6) of the Act the supplemental bills cannot exceed a period of six months and in the present case the petitioner has been billed for the entire months of October,1995 and April, 1996, thus resulting in a larger period for which the supplemental bills are issued. In support of the submissions made, reliance has been placed on Apex Court decision in the case of Bombay Electric Supply and Transport Undertaking Vs. Laffans (I) Pvt. Ltd.,AIR 2005 SC 2486 to submit that whether the meter is correct or not is an issue which is required to be decided only by the Electrical Inspector and none else. That if such necessary exercise is not carried out the petitioner cannot be saddled with additional liability. 4 On behalf of the respondent authority the learned Advocate has placed reliance on the Affidavit-in-Reply dated 22.01.2008 to submit that SCA/703519/1996 5/8 JUDGMENT this was not a case of theft but a case where the power supply had been consumed by the consumer because the meter was running slow due to non-passing of current in one phase only for the purpose of recording consumption. The petitioner had rightly been called upon to pay the differential amount by way of additional bill considering the fact that the petitioner had consumed the power. It was submitted that it was not the case of the petitioner that the petitioner had not received the contracted load and that the petitioner had not consumed the same. It was therefore submitted that the petitioner had rightly been called upon to discharge the liability of paying sum for the power consumed. Referring to the details available in the assessment sheet (pg.40) it was submitted that the petitioner had not been billed for a larger period except from the date of checking and upto the date when the CTPT had been replaced. 5 It is necessary to take on record that for understanding and appreciating the technical details of the controversy, the Court had called upon the learned Advocate for the respondent authority to SCA/703519/1996 6/8 JUDGMENT place complete details on record and for assisting the Court keep a technical person present. The Court notes and appreciates the assistance rendered by Shri Rajiv K. Purohit, Deputy Engineer, who has remained present and assisted the Court. 6. In so far as the contention regarding applicability of section 26(6) of the Act is concerned, suffice it to state that the said contention is misconceived and has no nexus with the controversy in question. As can be seen from the checking sheet dated 15.3.1996 all the columns relating to the functioning of the meter and the state of the meter are filled up, and in none of the columns it is the case of the respondent that either the meter was defective, or was tampered with, or was not correct in any manner. Therefore, the said contention does not merit acceptance in absence of any controversy as to the operation of the Meter. 7. The case of the respondent authority primarily is only to the effect that one of the phases which travels from the secondary located in the CTPT did SCA/703519/1996 7/8 JUDGMENT not pass the current to the meter for the purpose of recording in the meter and hence, the meter was found to be running slow by 47.57%. That in so far as the supply of power to the factory was concerned, through the primary in the CTPT, there was no fault and thus the consumer had received and consumed the power to the extent of contracted load. 8. In the circumstances, the contention that the instrument installed by and belonging to the respondent authority ought to have been maintained properly by the respondent has to be considered. Judicial cognizance can be taken of the fact that in case of High Tension electric power supply, by repeated usage the machinery or part thereof requires replacement from time to time and the present seems to be a case falling within such category. The respondent has not stated that the said phase was not functional because of any tampering or for any other reason at the behest of the petitioner. Therefore, to state that if the machinery had developed a defect the petitioner cannot be billed for the said period in the set of present SCA/703519/1996 8/8 JUDGMENT circumstances, cannot be accepted, in light of the fact that the unit of the petitioner company has functioned and there is no grievance made that the petitioner had not been supplied with the contracted load of power. 9. The grievance regarding the billing period also would not survive in light of the details in the assessment sheet appearing as annexure to the Affidavit-in-Reply. 10. In the circumstances, on none of the grounds pleaded or urged at the time of hearing can the petitioner succeed. The petition is accordingly rejected. Rule discharged. There shall be no order as to costs. Interim relief operating during pendency of the petition would not survive considering the fact that it is an accepted position that the amount of additional bills had been paid-up by the petitioner. Sd/- (D.A. Mehta, J.) M.M.BHATT