GOPAL FIBERS PVT LTD v. DAKSHIN GUJARAT VEEJ COMPANY LIMITED & 1

CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 04/12/2008 ORAL JUDGMENT

1. The petition has been preferred challenging order dated 2.3.2000 made by the appellate committee of Gujarat Electricity Board, as it then existed, and SCA/8220/2000 JUDGMENT consequential supplemental revised bill issued by the respondent authority.

2. According to the petitioner, on 15.7.1999 surprise checking had been conducted by the Vigilance Squad of the respondent authority and electrical installations at the factory premises of the petitioner were found to be in order. Subsequently, on 13.9.1999 when the premises of the petitioner were once again examined by the checking squad it was found that there was tampering with R&B Phases of CTPT Unit resulting in the consumed current not being correctly recorded in the meter. Accordingly, a case for theft was made out and the petitioner was issued a supplementary bill for an amount of Rs.23,65,873.46 paise.

3. The petitioner challenged the said supplementary bill before the appellate committee who vide order dated 2.3.2000 upheld the charge of theft of electric power but granted partial reduction after considering the number of days of staggering, public holidays, etc. Thus in effect the total number of SCA/8220/2000 JUDGMENT chargeable days was reduced and the supplementary bill was revised for an amount of Rs.11,52,542.68 paise.

4. The principal grievance ventilated on behalf of the petitioner is that the petitioner is not responsible for any tampering of the installations and the petitioner has not committed any theft. That the statement of the Manager of the factory which was recorded by the checking squad was of a person who was not having knowledge about electrical installations and its working. As regards quantum, it is contended that if at the time of checking on

15.7.1999 no illegality had been found, the petitioner could be, at the most, billed only for the period after 15.7.1999 or only for the period between

15.7.1999 and 13.9.1999 instead of being billed for a period of six months computed backwards from

13.9.1999. Learned advocate for the petitioner has contended that the respondent authority has wrongly fastened the charge of theft on the petitioner when at the time of checking the responsible person of the petitioner company was not present and the Manger of SCA/8220/2000 JUDGMENT the factory was not a technical person. That in the circumstances, any statement made by the Manager cannot be held against the petitioner. Alternatively it was pleaded that the consumption pattern of the past period ought to have been considered by the respondent authority which would reveal that the consumption was same all throughout indicating that there was no theft of power. In relation to the quantum of the supplementary bill, it was contended that the appellate committee had failed to consider that, at the most, the petitioner could be billed only for the period between 15.7.1999 to 13.9.1999 and the bill for a period of six months computed backwards from the date of checking i.e., 13.9.1999 was not warranted. It was further submitted that the appellate committee had failed to consider the fact that the petitioner was using Diesel Generating Set and, therefore, there was correspondingly less consumption of power. Lastly it was submitted that if the earlier contention to the effect that the petitioner should be billed for a period of two months only is accepted the petitioner was ready and willing to restrict the claim regarding the number of SCA/8220/2000 JUDGMENT weekly staggering off-days only for the period of August and September.

5. On behalf of the respondent authority learned Senior Advocate Shri Pandya submitted that the case made out by the respondent authority regarding theft of power stood established considering the device that was used by the petitioner for extracting the current to ensure that consumption of the current was not correctly reflected by the meter. In so far as the alternative contention regarding the period of billing, it was submitted that as per conditions of service, particularly condition No. 34 (2), the respondent authority was entitled to raise bill for a period of six months prior to the point of time when the illegality was found. That in the facts of the case the aspect regarding the period between

15.7.1999 to 13.9.1999 was not even urged before the appellate authority though the same was raised in the memorandum of appeal and hence the petitioner cannot be permitted to reagitate the issue which had been given up by the petitioner before the appellate authority. SCA/8220/2000 JUDGMENT

6. As can be seen from the record, Annexure C is the checking sheet which was prepared by the checking squad on the date of inspection i.e., 13.9.1999. However, as the remarks column is not legible, the Court has requested the learned counsel for the respondent authority for furnishing a legible copy of the said sheet. On going through the same it is found that on the day of checking the squad has noted that the consumer has affixed a conductor link between the incoming and outgoing R&B Phases by placing a link between the bushing of the metal studs so as to ensure that the ampere is recorded less in the meter. When the matter was carried before the appellate committee, the appellate committee has found that the checking report was prepared in presence of Mr.Sharma, the Manager of the factory, and the same has been signed by Mr. Sharma. The finding in this regard as recorded by the appellate committee reads as under: “This report states that there was a CTPT unit mounted on DP structure and the aluminum links were provided between incoming and outgoing wires fixed on bushings of R&B phase, with the result that the current will directly go from supply line to load by-passing the CTPT unit and SCA/8220/2000 JUDGMENT hence the actual consumption of electrical energy was not fully recorded in the meter. This evidence, in our opinion, is sufficient to show that the appellant has dishonestly abstracted electrical energy by tempering with R&B phase wiring.” It is in light of the aforesaid finding of fact that the order of the appellate committee is required to be upheld on the count of theft of power having been committed by the petitioner. The device to illegally extract power was found attached to the electrical installation at the premises of the factory of the petitioner, and that too on the rear side of the building. If the petitioner wants to contend that the petitioner is not responsible for the same the burden is on the petitioner to establish the same. The petitioner has failed to discharge the burden.

7. In relation to the alternative plea regarding the computation having not been correctly made by not considering the contention raised in paragraph 5 of the written submissions that the petitioner should be billed only for a period of two months, though, prima facie, it may appear that the said ground has not been dealt with by the appellate committee, when one considers the statement made in paragraph 7 of the SCA/8220/2000 JUDGMENT written submissions it becomes clear that the petitioner has raised two alternative contentions and ultimately given up the first one relying only on the alternative contention as regards the number of days of staggering for which credit should be given. It is well settled that when various grounds are raised by an aggrieved party before an authority, unless and until it is shown that a particular ground was specifically pleaded, no fault can be found with the authority if a ground, though taken but not pleaded, is not dealt with in the order under challenge. Hence the contention on behalf of the petitioner that the said ground was not dealt with by the appellate committee cannot be upheld.

8. At this stage, the learned advocate for the petitioner submitted that he would give up the plea for credit of the days of staggering relatable for the months of April, May, June and July if the other contention for being billed for a period of two months is accepted. The petitioner cannot be permitted at this state to reagitate an issue which, as noted herein-above, was taken in the written submissions and not pleaded at the time of hearing on SCA/8220/2000 JUDGMENT

2.3.2000.

9. In relation to remainder part of the computation, suffice it to state that the appellate committee has considered each and every plea raised before it and granted proper relief in this regard. There is no legal infirmity in the computation part of the order of the appellate committee which would require this Court to intervene.

10. In the circumstances, for the reasons stated hereinbefore, the petition is rejected. Rule is discharged. There shall be no order as to costs. (D.A. Mehta, J.) ... (karan)