ORAL JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. This intra-court appeal filed by Dakshin Gujarat Vij Company Limited against the judgment and order dated 12.04.2019 is pending since the year 2022. Pertinent is to note that soon after presentation of the appeal in the year 2022, it was adjourned on the request of the learned advocate for the appellant, and thereafter, it has not been taken up. There is no interim order operating in favor of the appellant.

2. The writ petition was filed by the appellant challenging the order dated 20.10.2015 passed by the Electrical Inspector and Appellate Authority, Surat in Appeal No.3/2015-16, whereby the final assessment order dated 07.07.2015 passed under Section 126 of the Electricity Act, 2003 (hereinafter referred to as ‘the Act’ 2003’) was set aside.

3. The case of the appellant before the writ court was that the respondent No.1 therein was a consumer of electricity having an electricity connection for residential use with contracted load of 1 KW in House No.1/153 situated in Bhandari Vad, New Mugdalla Road, Surat. The provisional and final assessment bills were raised on the basis of a report of the inspection team conducted on 12.06.2015, with the allegations that the electricity from the meter installed in the residential premises of respondent No.1, was being used for construction activities in an adjoining plot to the house of the consumer. In other words, the consumer of the electricity was using electricity for the purposes other than those authorized by the distribution company. The case of the original petitioner / appellant herein before the writ court was that the respondent consumer had indulged in unauthorized use of electricity, as per Explanation (b)(iv) of Section 126 of the Act’ 2003.

4. Ms. Lilu K. Bhaya, learned advocate appearing for the appellant would vehemently argue that for the use of electricity by the consumer namely, respondent No.1 for the purposes other than for which it was authorized, a clear case of unauthorized use under Explanation (b)(iv) of Section 126 of the Act’ 2003, is made out.

5. The submission is that the learned Single Judge has committed an error in referring to Clause 3.5 of the Supply Code, while holding that, in case, of increase in load for any activity, the electricity company could have resorted to the provisions, in case applied for by the consumer, by classifying the consumer in a particular category.

6. Considering the submissions made by the learned Counsel for the appellant, taking note of the reasoning given by the learned Single Judge in the judgment impugned, pertinent is to note that present is not a case where the consumer had indulged in any unauthorized means for using electricity, for the purpose of construction of a building in an open plot, adjacent to his residential premises.

7. A perusal of Clause 3.5 of the Supply Code, extracted in the judgment impugned indicates that it was open for the appellant to ask the consumer to apply for change of tariff / category in which he has been granted electricity connection, instead of treating it as a case of unathorized use of electricity and in case of any such application, after assessment of tariff with effect from the date of use, the computation towards tariff other than use of tariff applicable to the concerned category and for the actual use of electricity could have been assessed / levied.

8. It is most important to notice that the final assessment bill of the year 2015 was quashed in the statutory appeal filed before the Electrical Inspector and Appellate Authority, in the year 2015 itself. There was no interim order before the writ court nor there is any interim order in the present appeal.

9. With the passage of time i.e. over a period of 10 years, it appears to us that constructions on the plot in question must have been completed and the owner must have applied for an electricity connection in the newly constructed premises, which wa