SCA/2828/2000 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.2828 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 =================================================== BOLAV TEXTILE INDUSTRIES PVT LTD - Petitioner(s) Versus GUJARAT ELECTRICITY BOARD & 1 - Respondent(s) =================================================== Appearance : MR VIRAL K SHAH for the Petitioner MR SP HASURKAR for Respondent(s) : 1 - 2. =================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 04/12/2008 ORAL JUDGMENT (1) This petition has been preferred challenging order dated 24.12.1999 made by the Appellate Committee of respondent No.1-Board and revised supplementary bill dated 28.01.2000 issued by the respondent-Board pursuant to the order of the Appellate Committee. SCA/2828/2000 2/8 JUDGMENT (2) The petitioner, a consumer of the respondent- Board, contracted for a load of 90 H.P. with a connected load of 83.5 H.P. On 23.01.1999 a checking squad of the respondent-Board visited the premises of the petitioner and after checking the installation prepared a checking report of even date. Though the petitioner had made various averments regarding illegal gratification having been sought for by the officials of the checking squad, in light of the view that the Court is inclined to adopt it is not necessary to enter into the said aspect of the matter. Suffice it to state that the said averments are disputed by the respondent authority. (3) A supplementary bill came to be issued against which the petitioner preferred an appeal before the statutory Appellate Committee of the respondent-Board. Along with the memorandum of appeal the petitioner had placed on record, before the Appellate Committee, SCA/2828/2000 3/8 JUDGMENT affidavit of one Shri Prabhunathsing Shivshankarsing, the Accounts Manager of the petitioner, in support of the contention that signature of the said gentleman was obtained by the checking authority under coercion. However, the Appellate Authority did not consider the said affidavit and based on the kabulatnama, recorded at the time of checking as well as inspection report of the laboratory which tested the meter on 23.08.1999, came to the conclusion that an inference was possible to come to the conclusion that the petitioner had committed theft of electrical power. However, in relation to the computation of supplementary bill partial relief was granted by the Appellate Committee. (4) The learned advocate for the petitioner has reiterated the grievance ventilated before the Appellate Committee while the learned advocate for the respondents has placed reliance on the affidavit-in-reply as well as the kabulatnama SCA/2828/2000 4/8 JUDGMENT recorded by the checking squad to support the order of the Appellate Committee. (5) The impugned order made by the Appellate Committee cannot be sustained as the same apparently suffers from vice of perversity. The position in law is well-settled that when an authority exercising quasi-judicial powers omits to consider a relevant piece of evidence the order is vitiated and it is not possible thereafter to determine as to which part of the order can be upheld and which part of the order is bad in law because it is not possible to segregate to what extent mind of the authority was influenced by ignoring the relevant evidence. (6) It is not in dispute, in facts of the case, that Shri Prabhunathsing Shivshankarsing, the Accounts Manager of the petitioner, was present when the checking squad inspected the premises. The kabulatnama of 23.01.1999 was recorded by the checking authority. It is the SCA/2828/2000 5/8 JUDGMENT say of the petitioner that the authorized person of the petitioner was not present when the checking took place and Shri Prabhunathsing Shivshankarsing was not empowered to sign any document on behalf of the petitioner or concede to any position. That in fact immediately on the next day i.e. 24.01.1999 a telegraphic complaint was lodged by the petitioner followed up by affidavit dated 25.01.1999 of the person who had signed kabulatnama. The affidavit has been discarded by the Appellate Committee on the specious plea that the affidavit cannot be relied upon as it was made on 25.01.1999 i.e. two days after date of checking. The Appellate Committee lost sight of the fact that immediately on the next day viz. 24.01.1999 the petitioner had lodged a complaint. However, even if that aspect of the complaint regarding seeking of illegal gratification is not considered the affidavit made on the immediately following day cannot be stated to be so belated so as to be discarded at the SCA/2828/2000 6/8 JUDGMENT threshold. Once the petitioner was relying on a piece of evidence, in the form of affidavit of the person who had signed kabulatnama to dispute the kabulatnama, it was incumbent upon the Appellate Committee to have considered the affidavit as a relevant piece of evidence. If the Appellate Committee was of the opinion that the affidavit and the contents thereof could not be stated to be correct the Appellate Committee was bound to examine the deponent of the affidavit and only after such cross-examination and evaluation of the contents of the affidavit and the statement of the deponent could the affidavit have been brushed aside, if the statement made subsequently could lead to such inference. Without such an exercise the affidavit could not have been ignored as laid down by the Supreme Court in the case of Mehta Parikh and Co. Vs. Commissioner of Income-tax, [1956] 30 ITR 181 (S.C.), which has been applied and followed by this Court in the case of Glass Lines Equipments Co. Ltd. Vs. Commissioner of SCA/2828/2000 7/8 JUDGMENT Income-tax, [2002] 253 ITR 454 (Guj.) (7) In the aforesaid set of circumstances, it is apparent that the reliance upon the kabulatnama, discarding of evidence in the form of affidavit filed by the signatory to the kabulatnama, has vitiated the order and the order cannot be upheld. In the circumstances, the order dated 24.12.1999 is quashed and set aside, similarly the revised supplementary bill dated 28.01.2000 is also quashed and set aside. (8) The appeal of the petitioner shall stand restored to file of the Appellate Committee for deciding the appeal afresh in accordance with law. Respondent No.1-Board is directed to constitute an Appellate Committee for this purposes considering the fact that during pendency of the petition the law has undergone change and no Appellate Committee exists as of today. In the event any payment has been made pursuant to the revised supplementary bill SCA/2828/2000 8/8 JUDGMENT dated 28.01.2000, and if ultimately the petitioner succeeds before the Appellate Committee, the petitioner shall be granted credit towards payment of such revised supplementary bill dated 28.01.2000 only. (9) The petition is allowed accordingly in the aforesaid terms. Rule made absolute. There shall be no order as to costs. Sd/- [D. A. MEHTA, J] *** B h a v e s h *