Judgment:
1. As common questions of facts and law are involved in both the above referred Special Civil Applications, they are disposed of by this common judgment and order.
2. The Petitioner of Special Civil Application No. 8373 of 2006 has prayed for the following reliefs:
“7.(a) Admit this Special Civil Applications
(b) Allow this Special Civil Application by issuing an appropriate writ, order or direction quashing and setting aside the impugned communication at Annexure-A as the same is unjust, improper, illegal and Unconstitutional and in clear violation of principles of fairness, equity and accordingly the same may be quashed and set aside.
7(B)(1) this Hon'ble Court may be pleased to allow this Special Civil Application by issuing appropriate writ order or direction to the respondent for adjustment of additional amount charged by respondent on account of not accepting prayer of the petitioner for extension of load at the first instance in the facts and circumstances of the present case.
(c) Pending admission, hearing and till final disposal of this petition, this Hon'ble Court may be pleased to grant stay as to execution, implementation and operation of the impugned communication at Annexure-A in he interest of justice.
(d) Grant such other and further relief(s) as deemed just and proper in the facts and circumstances of the case and in the interest of justice.”
3. The facts relevant for the purpose of deciding the above two referred writ petitions can be summarized as under.
4. The Petitioner is a partnership firm engaged in the business of food products. The Petition has been preferred through one of its partners. The firm carries on its business at Plot No.305 situated at GIDC, Veraval, District Junagadh. This particular plot was originally allotted and was run by one Divya Marine Foods Private Limited. The electricity meter connection was also in the name of Divya Marine Foods Private Limited bearing Electric HT connection No. 21429. The present Petitioner purchased the entire plant from Divya Marine Foods Private Limited by way of a registered sale deed. After the plant was purchased, the Petitioner requested the Respondent Board to transfer the electric meter in the name of Keshodwala Foods, that is the partnership firm. By letter dated 5.11.2003, the Respondent Board granted its approval for change of the name. However, the approval was granted subject to deposit of Rs.16,94,400/- towards payment of short fall of security deposit.
It deserves to be noted that this amount had nothing to do with the present Petitioner. This amount was due and recoverable from its earlier occupier and owner, i.e. Divya Marine Foods Private Limited. However, the record reveals that the said amount was deposited by the Petitioner. On 13.11.2003, an application was given to the Respondent Board for extension of load from 300 KVA to 475 KVA. This request was not acceded to by the Respondent Board on the premise that the Respondent Board has to recover a sum of Rs.35,66,572.34p raised through a supplementary bill issued to the earlier owner i.e. Divya Marine Foods Private Limited
5. The record further reveals that the amount of Rs.35,66,572.34p sought to be recovered by the Respondent Board through a supplementary bill issued in the name of Divya Marine Foods Private Limited, became a subject matter of challenge in Special Civil Suit No. 178 of 2001 filed in the Court of learned Civil Judge (SD), Veraval for declaration and permanent injunction. It appears that as the Respondent Board issued supplementary bill and sought recovery of the amount from Divya Marine Foods Private Limited, Civil Suit came to be preferred challenging the said supplementary bill. In the said Civil Suit, injunction was also prayed for below Exh.5 restraining the Respondent Board from disconnecting the electric supply. While deciding Exh.5, the learned Civil Judge (SD), Veraval partly allowed Exh.5. The operative part of the order passed by the learned Civil Judge (SD), Veraval below Exh.5 in Special Civil Suit No.178 of 2001 reads as under:
“The application Exh.5 is hereby partly allowed.
The defendant is hereby restrained to disconnect the Electric H.T. Connection No.21249 of the plaintiff on the ground of non-payment of disputed bill till the final disposal of the present suit or till the decision of the Electrical Inspector, whichever is occurred earlier, if the defendant prefers to prefer the dispute to the Electrical Inspector subject to following condition:
(1) The Defendant Board is entitled to assess and recover the consumption of energy for the past 6 months period prior to the date of 12.09.2001 and the Plaintiff shall deposit the said amount with the defendant within the 7 days of the receipt of such supplementary bill for the period of 6 months to be issued by the Defendant Board as per this Condition, failing to which the defendant board shall be entitled to disconnect the disputed connection of the Plaintiff. Alternatively, the defendant is also at liberty to refer to the dispute to the Electrical Inspector.
(2) The Plaintiff shall have to give a Security before this Court that if he fails to prove his case on merits for the rest of the amount i.e. for the amount of Bill exceeding Six Months to be given as per above Condition No.1, he will pay the entire amount of the suit bill deducting the amount paid under the Condition No.(1) as directed above alongwith the interest at the commercial rate.”
6. It appears from the record that in the Civil Suit, the main issue which was raised was with regard to the slow running of the meter. To be precise, whether the meter was running slow on account of some technical or mechanical defect or not. Accordingly, as per Section 26 Clause 6 of the Indian Electricity Act, 1910 (“the Electricity Act” for short), the divisional office of the Respondent at Veraval referred the meter to the Electrical Inspector, Rajkot to decide the issue as per the provisions of Section 26 Clause 6 of the Electricity Act. On 4.3.2002, the Electrical Inspector, under Section 26 of the Electricity Act, decided the issue and held that the bill is to be raised for shortfall of 94,8745 units as a result of slow running of the meter. According to the Electrical Inspector, the meter was running slow and therefore supplementary bill came to be issued for 94,874 units. Aggrieved by this order passed by the Electrical Inspector under the provisions of Section 26 of the Electricity Act, the Respondent Board preferred Appeal No. 22 of 2002 under Section 36 Clause 2 of the Electricity Act on 23.9.2002. The said Appeal also came to be dismissed confirming the order passed by the Electrical Inspector. This order passed by the appellate authority dismissing the Appeal under Section 36 Clause 2 of the Electricity Act was made subject matter of challenge in Special Civil Application No.817 of 2003.
7. In Special Civil Application No. 817 of 2003, the challenge by Paschim Gujarat Vij Company Limited is to the two orders passed by Electrical Inspector and the appellate authority respectively. In Special Civil Application No. 817 of 2003 preferred by the Respondent Board, the main challenge is on the ground that Section 26 of the Electricity Act would not be applicable because it is not a case of running of the meter slowly, but it is a case of theft of energy, and therefore, the Electrical Inspector could not have adjudicated the issued under Section 26 of the Electricity Act. This petition was also admitted and was ordered to be heard along with Special Civil Application No. 8373 of 2006.
8. Primafacie it appears that the Petitioner of Special Civil Application No. 8373 of 2006, who is requesting for extension of the load has deposited the amount with the Respondent Board almost proportionate to 94,874 units. The Petitioner of Special Civil Application No. 8373 of 2006 is now the owner of Plot No.305 and is running the plant, which originally was being managed and run by Divya Marine Foods Private Limited. Divya Marine Foods Private Limited has already preferred Special Civil Suit No.178 of 2001 in the Court of learned Civil Judge (SD) at Veraval, which is now being pursued by Keshodwala Foods, and the Respondent Board is now compelling Keshodwala Foods to withdraw the Suit as a condition precedent for seeking extension of the load from 300 KVA to 475 KVA. It is manifest from communication dated 17.11.2004 (Annexure-A) that the demand for additional load of 175 KVA has not been entertained due to pending outstanding arrears in HT connection No. 21249. It is also apparent from communication dated 2.1.2006 that the head office of the Respondent Board approved for name transfer on the condition of making payment of shortfall of security of Rs.16,94,000/- alongwith REG charge Rs.4000/- for approval of HT agreement. It is not disputed that the amount has been deposited by the Petitioner – Keshodwala Foods.
9. The question which needs to be now addressed is as to whether the Respondent Board is justified in not providing extension of the load from 300 KVA to 475 KVA solely on the premise that Special Civil Suit has been preferred by the erstwhile owner - Divya Marine Foods Private Limited challenging the supplementary bill raised by the Respondent Board to the tune of Rs.35,66,572.34p. So far as the issue with regard to the supplementary bill is concerned, the Electrical Inspector has already adjudicated this issue under Section 26 of the Electricity Act and has in its report stated that the amount equivalent to 94000 units and odd can be recovered and that amount has already been deposited. In our opinion, the Respondent Board is not justified in asking the Petitioner of Special Civil Application No. 8373 of 2006, I.e. Keshodwala Foods to withdraw Civil Suit No.178 of 2001, because if the said Suit is withdrawn, then the entire liability of payment of Rs.35,66,572.34 raised by the Respondent Board by way of a supplementary bill would fall on the shoulders of Keshodwala Foods. Whether it is a case of theft or whether it is a simple case of slow running of a meter, is yet to be adjudicated finally by the competent Civil Court in Special Civil Suit No.178 of 2001. Whether Section 26 of the Electricity Act would be applicable in the present case or not, will also be finally decided in the Suit. In our view, as the amount more than the amount equivalent to 94000 and odd units has already been deposited with the Respondent Board, the Petitioner – Keshodwala Foods is entitled to extension of additional load of 175 KVA subject to the final disposal of Special Civil Suit No.178 of 2001.
10. In this view of the matter, the communication dated 17.11.2004 (Annexure-A to the Petition) is hereby quashed and set aside. The Respondent Board is directed to provide additional load of 175 KVA as prayed for by the Petitioner – Keshodwala Foods in its application dated 13.11.2003 (Annexure-E to the Petition). Rule is mad absolute to the aforesaid extent. No order as to costs.
11. Now, so far as Special Civil Application No. 817 of 2003 is concerned, the same has been preferred by Gujarat Electricity Board, now replaced as Paschim Gujarat Vij Company Limited, challenging the two orders passed by Respondent Nos.2 and 3 therein. In this petition, the main challenge is to the invocation of Section 26 of the Electricity Act. According to the Board, the provisions of Section 26 Clause 6 of the Electricity Act would not be applicable and Respondent No.2 – Electrical Inspector has no jurisdiction to decide the issue when there is no defect in the meter, but slowness of the meter is due to wrong wire, faulty wire or defective wire. We cannot ignore the fact that the Electrical Inspector carried out the necessary inspection under Section 26 of the Electricity Act and this was done pursuant to the order passed by the learned Civil Judge below Exh.5 dated 9.11.2001. We have already reproduced the operative part of the order passed by the learned Civil Judge below Exh.5, on the basis of which, the matter was referred to the Electrical Inspector. We also cannot ignore the fact that the findings recorded by the Electrical Inspector are further confirmed by the appellate authority. We have gone through both the orders, which do not warrant any interference at this stage. However, we clarify that, as the Civil Suit is pending, it will be open for the Electricity Board to take up all contentions available in law and which shall be dealt with accordingly by the competent Civil Court hearing the Civil Suit.
12. In this view of the matter, we are not inclined to disturb the two orders, which are subject matter of challenge, and therefore, Special Civil Application No. 817 of 2003 is rejected with clarification that the contentions as regards the applicability of Section 26 of the Electricity Act, and all other legal contentions, can be raised at the time of final adjudication of Special Civil Suit No.178 of 2001 pending in the court of learned Civil Judge (SD), Veraval. Rule is discharged. No order as to costs.