SCAO/8980200/1982 6/ 6 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8980 of 2008 ========================================================= RITABEN A THAKER - Petitioner(s) Versus WESTERN GUJARAT ELECTRICITY CO LTD - Respondent(s) ========================================================= Appearance : MR KIRIT I PATEL for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR DIPAK R DAVE for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 13/08/2008 ORAL ORDER
Heard
Mr.Patel, learned Counsel for the petitioner and Mr.Dave, learned
Counsel appearing for the respondent Electricity Company.
Prima
facie it appears that it is absurd on the part of the Electricity
Company to charge for electricity on the alleged ground of theft
during the period when it is an admitted position that the premise
was closed and the petitioner was out of the country and there was
no unit consumed during that period.
However,
Mr.Dave, learned Counsel for the respondent Electricity Company
contended that as per the Electricity Code, irrespective of the said
position, the Company has to charge in theft cases when the meter
was found tampered and the petitioner has to pay. He also submitted
that as per the decision of the Division Bench of this Court in case
of Torrent Power AEC Ltd. v. Gayatri Intermediates Pvt. Ltd.,
reported in 2006(2) GLH, 375, the petitioner has alternative
remedy of approaching before the Special Court on the aspect of
quantum and, therefore, this Court may not entertain the petition
and may relegate the petitioner to approach before the Special
Court.
Two
peculiar circumstances exist in the present case; one is that the
petitioner is a British National, which is reflected from the copy
of the passport and had visited only on 28.8.2007. The case of the
petitioner is that when the petitioner had purchased the property,
the meter was outside the house and for ten years she was out of
country. The aforesaid is supported by the calculation of the
Electricity Company, which shows that up to the bill of
August-September, 2007 ‘zero’ unit was consumed. The actual
consumption appears to have started from October-November, 2007 even
as per the record of the Electricity Company and the inspection has
taken place on 29.4.2008. Therefore, at best, the Electricity
Company could charge for the period from October, 2007 to 29th
April, 2008 during which the consumption has continued with the
alleged tampering the meter. Prima facie it appears that the action
of the Electricity Company would be wholly without jurisdiction if
the period during which the premise was closed and there was ‘zero’
consumption and the person concerned was not even occupying the
premise is to be included.
Existence
of the alternative remedy in normal circumstances is to be
considered by way of a self-imposed restriction while exercising the
power under Article 226 of the Constitution of India. However, such
would not operate as a bar to the constitutional jurisdiction of
this Court under Article 226 of the Constitution of India. If the
stand of the Electricity Company is to maintain the charges
irrespective of the fact that the premise was closed of the person
concerned or none was occupying the premise, that too, in a
residential house, such absurdity deserves to be considered in writ
jurisdiction, which Special Court may not be in a position to
examine as against the Electricity Code. It further appears that
the stand on the part of the Electricity is that the bill is as per
Clause 7.6.5 of the Supply Code, whose validity can be examined, if
required, by this Court only in writ jurisdiction and such may not
be possible for the Special Court. Therefore, in view of these
peculiar circumstances, the matter deserves consideration.
Hence,
Rule.
The
learned Counsel appearing for both the sides are heard on the
aspects of interim order.
The
consumption shown in the bills from October 2007 to May 2008 is in
all 788 units for the period during which the petitioner occupied
the house. If the matter is considered on the bonafide, the
petitioner had moved the Electricity Company for addition of the
load since she wanted to get extra load for washing machine and air
conditioner.
Therefore,
keeping in view the peculiar facts and circumstances and more
particularly the aforesaid aspects that the actual units consumed
during the proceeding period is only 788 units, by interim order, it
is directed that the Electricity Company shall charge 1.5 times the
regular tariff over the actual units consumed of 788 units. The
fresh calculation shall be made accordingly and the petitioner shall
be intimated within a period of one month from today. After such
intimation the payment thereof shall be made by the petitioner,
subject to the outcome of the present proceedings with the
Electricity Company within two weeks therefrom and the petitioner
shall further continue to pay the regular electricity bills for the
consumption of the electricity until further orders.
Subject
to the aforesaid conditions, any action pursuant to the alleged
incident by the Electricity Company shall remain stayed, including
the notice based thereon at Annexure ‘A’ dated 15.5.2008. It is
also observed that upon the compliance of the aforesaid condition,
the electricity supply shall not be disconnected by the Electricity
Company.
13.8.2008 (Jayant Patel, J.) vinod