RAJESH H. SHUKLA, J.

1. The present petition is filed by the petitioner-Paschim Gujarat Vij Company Limited under Articles 226 and 227 of the Constitution of India as well as under the Indian Electricity Act challenging the order passed by the Electricity Ombudsman, Gujarat State, Ahmedabad in Case No. 116 of 2014 dated 4.9.2014 on the ground stated in the memo of petition.

2. Heard learned Advocate Ms. Lilu K. Bhaya for the Petitioner-PGVCL and learned Advocate Shri Harnish V. Darji for the Respondent.

3. Learned Advocate Ms. Bhaya for the Petitioner-PGVCL submitted that if there is any dispute, the matter has to go to Consumer Forum under Section 42(5) of the Electricity Act. She further submitted that if the consumer is aggrieved, then, he may file an appeal before the Electricity Ombudsman under Section 42(6) of the Electricity Act. She submitted that the impugned order is passed by the Electricity Ombudsman without appreciation of the relevant facts and material and therefore the present petition has been filed.

4. Learned Advocate Ms. Lilu K. Bhaya submitted that the petitioner is a licensee Company and the Respondent herein has been granted supply for 77 kv initially. Thereafter in June 2013, he had entered into a contract for extension of load to 100 kv from 77 kv. Learned Advocate Ms. Bhaya referred to the papers and submitted that during the inspection it was found that the meter is running slow for which inspection sheet was prepared in presence of the representative of the respondent. She submitted that as it is stated, the meter was running slow and therefore the MRI was done. Therefore the meter was sent for laboratory testing, and in the laboratory test, it has been found that there is no continuity resulting in slowness of the meter. She therefore submitted that the testing of the meter and the report with the device would make it possible to find out as to the period for which the meter is not properly functioning or it is slow and does not record properly. Learned Advocate Ms. Bhaya submitted that it is for this actual period as per the Condition No. 26 of the Supply Code the assessment is sought to be made which has been challenged and the Electricity Ombudsman has not accepted the bill made on the assessment made technically and made observations and given the findings about the excess billing which has lead to the present petition.

5. Learned Advocate Ms. Bhaya submitted that there is no question of any penalty as it is not a case of theft but it is a case of slowness of meter, and therefore, the assessment for which the actual consumption for a period of 478 days has been made, which has not been properly recorded. Learned Advocate Ms. Bhaya has referred to and relied upon the judgment of the Hon'ble Division Bench of the High Court in LPA No. 110/2014 dated 11.9.2014. She has also referred to the Supply Code and pointedly referred to Condition No. 6.1.8 which reads as under:

“In the event of the meter being tested by the Distribution Licensee, either on his own or upon a request by a consumer and being found to be beyond the limits of accuracy as prescribed in the Rules in force, the amount of the bill for a period of three months immediately preceding the date of inspection of the meter in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection of the meter for all other categories of services, shall be estimated in accordance with the result of the test. Any evidence provided by consumer about conditions of working and/or occupancy of the concerned premises during the said periods, which might have had a bearing on energy consumption, may be considered.”

Learned Advocate Ms. Bhaya therefore submitted that though it provides for the period of six months, but as it is clearly stated that:

“..............Any evidence provided by consumer about conditions of working and/or occupancy of the concerned premises during the said periods, which mig