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SCA/2147/2010 5/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2147 of 2010
WITH
SPECIAL
CIVIL APPLICATION No. 2153 of 2010
===================================
SHUBKARI
TEXTILES THRO.BHAVNABEN D JIVANI - Petitioner
Versus
DAKSHIN
GUJARAT VIJ CO LTD & 1 - Respondents
===================================
Appearance
:
MR
RUTVIJ S OZA for Petitioner.
MS LILU K BHAYA for Respondent No.1.
MS MANISHA NARSINGHANI, AGP for Respondent No. 2.
===================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 13/04/2010
COMMON ORAL ORDER
Since
common issue is involved in both these petitions, the same are being
disposed of by this common order.
Special
Civil Application No.2417 is filed by the petitioner under Article
226 of the Constitution of India challenging the order passed by the
Electrical Inspector and the Appellate Authority, Surat on
29.07.2009 in Appeal No.3/2009-10 whereby the supplementary bill of
Rs.1,07,972.37/- raised by the respondent Electricity Company was
reduced to Rs.20,164.65 and the respondent Company was directed to
issue revised supplementary bill which shall be directed to be paid
by the petitioner within 30 days from the date of receipt of the
said bill.
Similarly,
in Special Civil Application No.2153 of 2010, the petitioner has
challenged the order passed by the Electrical Inspector and the
Appellate Authority, Surat on 29.07.2009 in Appeal No.2/2009-10
whereby the supplementary bill of Rs.1,54,866.33/- raised by the
respondent Electricity Company was reduced to Rs.26,866.07 and the
respondent Company was directed to issue revised supplementary bill
which shall be directed to be paid by the petitioner within 30 days
from the date of receipt of the said bill.
In
both the petitions, notice was issued by this Court on 25.02.2010.
The
petitioners case in both these petitions was that the Electrical
installation of the petitioners was checked by the Officers of the
respondent No.1 and the provisional bill was issued against the
petitioners, inter alia,
asking that the petitioners were utilising the electricity for
lighting purpose illegally. Accordingly, provisional bill was
issued for the aforesaid amount in case of both the petitioners.
The petitioners filed objections against the said provisional bills
and thereafter final supplementary bills were issued. The
petitioners being aggrieved by the said final supplementary bills,
preferred appeals before the Electrical Inspector. At the time of
filing of the appeals, the petitioners have deposited 50% of the
supplementary bills with the respondents. Thereafter, the appeals
came to be decided by the Electrical Inspector and substantial
relief was granted. Pursuant to the order of the Electrical
Inspector, the petitioners are entitled to the refund and hence, in
the present petitions, the petitioners have not only challenged the
retention of the amount by the Electrical Inspector but have also
asked for the refund to which the petitioners are entitled as a
result of the order of the Electrical Inspector.
Mr. Rutvij S. Oza, learned advocate appearing for the
petitioners in both the matters has submitted that the electrical
Inspector has not dealt with each and every contention raised by the
petitioners. The Appellate Authority has not considered the fact
that the petitioners have already paid as per the industrial rate,
but the distribution licensees i.e. respondent No.1 is not following
the Electricity Supply Code, more particularly, Clause 3.5 which
provides for re-classification of consumer. For the purpose of
supply as mentioned in the distribution service agreement has
changed, then distribution licensee to follow the procedure as per
the Supply Code. The Electrical Inspector to the extent of the
relief granted has rightly considered the relevant provisions and
hence, apart from deletion of the amounts retained by him, relief
granted by him should be given effect to and the petitioners should
have been granted refund as directed by the Electrical Inspector.
Ms.
Lilu K. Bhaya, learned advocate appearing for the respondent
Company, on the other hand, has submitted that this very issue has
come up before this Court in Special Civil Application No.5076 of
2009 and other cognate matters wherein this Court has observed that
the Appellate Authority, taking a generous view in the
matter, passed an order to the effect that even for the lighting
load, respondent No.1 has already paid at the industrial rate and
therefore, only the difference between the industrial rate and the
commercial rate be charged. This
is nothing but giving premium to a dishonest person, who is
admittedly unauthorisedly using power meant for industrial purpose
for lighting purpose, which can be said to be ‘unauthorised usage’
which is not permitted under the law. Once guilt is established,
there was no reason to interfere with the quantum of punishment/
bill. This Court has also considered the provisions contained in
Clause 7.2.3 in the Supply Code which deals with unauthorized use of
electricity and it was observed that as the power meant for
industrial purpose is used for lighting purpose, the tariff rate
applicable to the use of electricity for the lighting purpose will
be applicable. On the basis of the above judgments, Ms. Bhaya has
submitted that the Electrical Inspector has wrongly granted the
relief to the petitioners. Even otherwise, the said orders of the
Electrical Inspector was challenged by the Electricity Company in
Special Civil Application Nos.3369 and 3370 of 2010 which have
already been admitted by this Court and rule is made returnable on
16.06.2010. In this view of the matter, she has submitted that no
direction be issued to the respondent Company for grant of refund of
the excess amount paid by the petitioners at the time of filing of
the appeal.
Having
heard learned advocates appearing for the parties and having
considered the rival submissions, the Court is of the view that the
issue raised by the petitioners is squarely covered against the
petitioners by the decision of this Court and the facts being
identical, there is no question of taking any different view in the
matter. In this view of the matter, there is no question of
quashing and setting aside the order passed by the Electrical
Inspector qua the amount of supplementary bills retained by the
Electrical Inspector. As far as the relief granted by the
Electrical Inspector is concerned, as a result of which the
petitioners are entitled to refund is concerned, since the
Electricity Company has filed petitions before this Court and are
admitted and fixed for final hearing on 16.06.2010, there is no
question of granting any relief at this stage. Even otherwise,
those two petitions are actually taken up for final hearing today
after preponing the same and to avoid any further complication in
the matter, the Court has stayed the order of the Electrical
Inspector to the extent of granting relief to the petitioners in the
supplementary bills raised by the respondent Electricity Company.
In
the above view of the matter, there is no question of granting any
relief at this stage. It is always open for the petitioners to
stake their claim at the time when the petitions filed by the
respondent Company are dismissed by this Court.
Both
these petitions are accordingly dismissed. Notice discharged
without any order as to costs.
Sd/-
[K. A. PUJ, J.]
Savariya
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