Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 333

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Vineet Kothari, B.N. Karia, JJ.
Dakshin Gujarat Vij Company Ltd. and Ors. – Appellants
Versus
Shree Ambeshwar Paper Mills Ltd. and Ors. – Respondents
R/Letters Patent Appeal No. 97 of 2003 & 123 of 2018 In R/Special Civil Application No. 11276 of 2001 & 14289 of 2016
Decided On : 07-06-2021

Advocates:
Advocate Appeared:
For the Appellant : Ms Lilu K Bhaya
For the Respondent: Mr Ketan D Shah, Mr Pathik M Acharya

Point of law: Electricity - Disputed factual aspects cannot be and should not be gone into in the extraordinary writ jurisdiction under Section 226 of the Constitution of India. We are therefore of the opinion that filing of the Letters Patent Appeal by both the parties in this matter was rather misconceived and they ought to have resolved their dispute at the appropriate forums at the relevant point of time itself.

Headnote:
Code of Criminal Procedure,1973 - section 308 - Electricity Act - Sub-section (5) and (6) of Sections 42, 140 and 150 - Criminal offence of theft of power - whether any other material was available for coming to conclusion about connected load, is also required to be stated in the order - Appellate Committee has brushed aside argument of petitioner by observing time of preparing the checking sheet, no protest was made nor was stated before officers of the checking squad connected load is wrongly noted in the checking sheet - Aforesaid aspect may be one of the considerations, but other arguments advanced by petitioner in connection are also required to be taken into account. Ultimately, the Appellate Committee may not agree with submissions, but arguments canvassed by the petitioner in behalf are required to be taken into account, and also fact, whether any other material was available for coming to the conclusion about connected load, is also required to be stated in order - Documents submitted by petitioner are also not considered in detail and those documents are also not taken into consideration by observing they are irrelevant.
Finding of the Court : Ombudsman shall have the powers to incur expenditure on behalf of the office - Order to exercise such power Ombudsman shall draw up an annual budget or its office in consultation with Commission and shall exercise its powers of expenditure within such approved budget - Budget shall have the provisions or administrative expenditure of Ombudsman - Commission shall sanction the required amount out of the Fund - Commission shall, however, supervise the utilization of such amount and shall issue such instructions, from time to time, as it may deem reasonable and necessary - Representation shall be in writing, duly signed by the Complainant or his authorized representative, including facsimile or email mode, and shall contain name and address of the Complainant, the facts giving rise to Grievance supported by documents, if any, and may specify relief sought from the Ombudsman - procedure to be followed by Ombudsman in aforesaid Chapter-III of Regulation 29 will be complied with by the said authority in consonance with aforesaid directions by Court and within time limit prescribed and these regulations will not be permitted to override or go beyond the aforesaid time frame fixed by Court.
Result: Appeals are disposed of

JUDGMENT :

VINEET KOTHARI, J.

1. Letters Patent Appeal No.97 of 2003 arising out of Special Civil Application No.11276 of 2001 has been filed by Dakshin Gujarat Vij Company Limited against M/s. Ambeshwar Paper Mills Limited (now in liquidation) in the Bombay High Court whose Official Liquidator is represented by Mr.Pathik Acharya, learned advocate and the connected Letters Patent Appeal No.123 of 2018 arising out of Special Civil Application No.14289 of 2016 has been filed by M/s. Agro Pack Limited which claims to have purchased part of the land over which the Papers Mill setup by Respondent M/ s.Ambeshwar Paper Mills Limited was located, though no such Sale Deed or Conveyance Deed in its favour has been placed on record.

2. The earlier Special Civil Application No.11276 of 2001 was disposed of by the learned Single Judge of this Court (Coram: P.B. Majmudar, J.) vide order dated 23.09.2002.

3. While dealing with writ petition filed by M/s. Ambeshwar Paper Mills Limited, the learned Single Judge inter alia observed that the order passed by the Appellate Authority of Power Supply Company was laconic and did not deal with all the contentions raised by the Petitioner-Company M/s. Ambeshwar Paper Mills Limited and therefore, the matter was remanded back to the Appellate Committee, while confirming the findings of theft of power committed by the Petitioner M/ s. Ambeshwar Paper Mills Limited.

4. The following observations of the learned Single Judge are quoted below for ready reference:

“So far as the connected load part is concerned, the Appellate Committee has brushed aside the argument of the petitioner by observing that at the time of preparing the checking sheet, no protest was made nor was stated before the officers of the checking squad that the connected load is wrongly noted in the checking sheet. In my view, the aforesaid aspect may be one of the considerations, but other arguments advanced by the petitioner in this connection are also required to be taken into account. Ultimately, the Appellate Committee may not agree with the submissions, but the arguments canvassed by the petitioner in this behalf are required to be taken into account, and also the fact, whether any other material was available for coming to the conclusion about connected load, is also required to be stated in the order. Documents submitted by the petitioner are also not considered in detail and those documents are also not taken into consideration by observing that they are irrelevant. In my view, the Appellate Committee has not considered, in detail, the submissions made by the petitioner in its written submissions as regards M X H X C factor. It is, no doubt, true that the Board has tried to justify the decision by submitting the said aspect on merits, but, as observed earlier, ultimately, it is for the Appellate Committee to consider the said aspect in more detail, as, ultimately, the Board, which is assigned with wide powers while deciding the rights of the parties, has to give finding of fact after considering the totality of the evidence.

Under these circumstances, it is clear that documents submitted by the petitioner are very casually dealt with, without giving detailed reasons about the same by the Appellate Committee. In view of the aforesaid aspects of the matter, and considering the fact that the petitioner has submitted detailed arguments before the Appellate Committee, in my view, the matter is required to be sent back to the Appellate Committee for the purpose of considering the question about the chargeable days for the purpose of supplementary bill and for the purpose of considering M X H X C factor again, in the light of the evidence on record. The Appellate Committee is free to take its own decision in this connection is free to take its own decision in this connection after hearing both the sides. However, the Appellate Committee may deal with all the submissions of the petitioner in connection with the aforesaid three factors as well as t

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