@JUDGMENTTAG-ORDER
M.R. Shah, J.
1. By way of this petition under Article 226 of the Constitution of India, the petitioner-State Bank of Saurashtra has prayed for an appropriate writ, order or direction declaring that the action of the respondent-Electricity Company, the then Electricity Board, for recovering the amount of Rs. 1,06,633/- as well as the order of the appellate authority passed in Appeal No. SZ/23/23 so far as it partly disallowed the appeal of the petitioner-Bank, as illegal, null and void. The facts leading to the present Special Civil Application in a nutshell are as under;
1.1. It is the case on behalf of the petitioner-bank that for the purpose of installation of site ATM of the petitioner-bank, the petitioner-bank had taken the premises on lease situated at G-8, Western Plaza, Adajan Road, Surat. The said premises was taken on lease from one Smt. Nishaben Patel and the possession of the said premises was taken on 22/02/2004. It is also the case on behalf of the petitioner that the ATM machine was installed on 22/04/2004 with two air conditioners run on 3 phase connection. According to the petitioner-bank, on 04/06/2004, 3 phase connection was provided and old meter of single phase connection was sealed and taken to GEB office for laboratory testing on the very same day, i.e. 04/06/2004. At that time, the Electricity Company found that the meter was tampered with and there was theft of electricity and, therefore, the Electricity Company/Board issued supplementary bill of Rs. 1,72,913/- for the theft of electricity for last six months as per the condition of supply of electricity, more particularly, condition No. 34.
1.2. Feeling aggrieved and dissatisfied with the supplementary bill of Rs. 1,72,913/-, the petitioner-bank preferred appeal before the appellate committee of the Electricity Board and by the impugned order, the appellate committee has partly allowed the said appeal and has reduced the supplementary bill from Rs. 1,72,913/- to Rs. 1,06,633/-.
1.3. Feeling aggrieved and dissatisfied with the impugned order passed by the appellate committee of the Electricity Board in partly allowing the appeal and reducing the supplementary bill to Rs. 1,06,633/- only and in not allowing the appeal fully, the petitioner-bank has preferred the present Special Civil Application under Article 226 of the Constitution of India.
2. Shri Pranav Desai, learned advocate appearing on behalf of the petitioner-bank has vehemently submitted that the appellate committee has materially erred in reducing the supplementary bill to Rs. 1,06,633/- only. It is submitted by Shri Desai, learned advocate appearing on behalf of the petitioner-bank that the petitioner-bank had taken the premises on lease on 22/02/2004 and thereafter applied for 3 phase connection, which was received on 04/06/2004 and on that day itself, the old meter was taken by the respondent. It is submitted that therefore there is no question of the petitioner-bank being saddled with any alleged liability for the alleged tampering of the electricity.
2.1. It is further submitted by Shri Desai, learned advocate appearing on behalf of the petitioner-bank that as such the petitioner-bank was only served with the copy of the supplementary bill without the copy of the supplementary schedule on the same day for the amount mentioned in the supplementary bill and in absence of such necessary details, the impugned supplementary bill deserves to be quashed and set aside and as such ought to have been set aside by the appellate committee. It is further submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that in the instant case, the supply was only for the use of ATM, which can only be used by 3 phase connection, which was granted on 04/06/2004 and the earlier single phase meter was sealed and removed and, therefore, there was no case of misuse and/or tampering with the meter. Making the above submissions, it is requested to allow the present Special Civil Application.
3. The present petition is opposed by Shri Dave, learned advocate appearing on behalf of the respondent-Board. It is vehemently submitted that the respondent-Board issued the supplementary bill in accordance with the provisions of the statute, more particularly, condition of supply of electricity, more particularly condition No. 34 of the supply of electricity. It is submitted that as per condition No. 34, the electricity Board/Company was authorized to issue supplementary bill for the theft of electricity for the last six months from the date of detection of malpractice and it is submitted that therefore despite the fact that the petitioner-bank might have been in possession of the premises on and from 24/02/2004, the electricity-Company could recover the amount under the supplementary bill for theft of electricity for the last six months from the date on which the defect was found and/or malpractice was detected. It is submitted that the petitioner-bank may recover the amount of theft of electricity for the period for which they were not in possession from the erstwhile owner and/or owner of the premises in question. It is submitted that so far as the respondent-electricity Company is concerned, the electricity Company can recover the entire amount of last six months from the person in occupation and possession at the time of detection and/or testing of the meter. It is submitted that as such the appellate committee had already given some relief/part relief to the petitioner-bank and the supplementary bill of Rs. 1,72,913/- is as such being reduced to Rs. 1,06,633/-. Making the above submissions, it is requested to dismiss the present Special Civil Application.
4. Having heard the learned advocates appearing on behalf of the respective parties and considering the facts narrated hereinabove and considering the fact that the petitioner-bank occupied the premises in question in which the electricity meter was installed on 22/02/2014, it is not appreciable how the respondent-electricity Company can recover the amount towards theft of electricity for the period prior to the petitioner-bank occupied the premises in question and, therefore, the petitioner could not have been saddled with the liability to make the payment towards the theft of electricity for the period prior to 22/02/2004. Nobody can be punished when he/it was not in occupation and possession of the premises in question. At this stage, it is required to be noted that recovery of the amount towards the theft of electricity under condition No. 34 is available for a period of last six months and it is a statutory presumption, provided the concerned person was in occupation and possession of the premises. Under the circumstances, the impugned recovery of theft of electricity for the period prior to 22/02/2004 from the petitioner is not justified and the same cannot be sustained and the same deserves to be quashed and set aside. However, it will always be open for the respondent-Board to recover the amount towards theft of electricity for the period prior to 22/02/2004 from the person who was in actual possession and occupation of the premises in question, if permissible under the law now. In view of the above and for the reasons stated hereinabove, the present petition succeeds in part and the impugned judgment and order passed in Appeal No. SZ/23/23 is modified to the extent and it is held that petitioner-Bank is liable to pay the theft of electricity as per the decision of the appellate committee for the period after 22/02/2004 only and if any amount in excess is recovered by the respondent from the petitioner-bank, the same shall be returned to the petitioner and/or shall be adjusted in the subsequent bill. Rule is made absolute accordingly. No order as to costs.
