Dakshin Haryana Bijli Vitran Nigam vs Mahabir Singh

Paramjeet Singh, J.

C.M. No. 6879-C of 2014

Having heard learned counsel for the appellants and for the reasons indicated in the Civil Misc. application, the same is allowed. Delay of 12 days in filing the appeal is condoned.

RSA No. 2896 of 2014 (O & M)

Instant regular second appeal has been preferred by the appellants-defendants against the judgment and decree dated 31.07.2013 passed by learned Civil Judge (Junior Division), Gurgaon whereby suit filed by the respondent/plaintiff for declaration, permanent injunction and mandatory injunction has been decreed, as well as, against the judgment and decree dated 01.02.2014 passed by learned District Judge, Gurgaon whereby appeal preferred by the appellants/defendants has been dismissed.

For convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of first instance.

The detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, brief facts relevant for disposal of this second appeal are that plaintiff filed a suit for declaration, permanent injunction and mandatory injunction on the grounds that plaintiff is having electricity connection in the LT/Small/Power category of connection bearing A/c No. JSP-15 with sanctioned load of 9.9 K.W. The meter installed at the premises of the plaintiff had burnt. It was pleaded that plaintiff was directed by the defendants to arrange and supply new meter as meter was not available in the store of the defendants. Plaintiff purchased the meter and supplied the same to the defendants. Meter testing fee was deposited vide receipt dated 20.01.2011. Bill of Rs. 13,935/- was deposited and no amount was due after January, 2011. The meter supplied by the plaintiff had not been installed at the premises of the plaintiff. Defendant issued assessment order dated 17.02.2011 for a sum of Rs. 1,49,360/- as assessment charges and another sum of Rs. 3 lacs as compounding amount. It was further pleaded that separate letter of compounding had also been issued and plaintiff was intimated that on 16.02.2011, a team of the Nigam had checked the premises of the plaintiff and found that direct supply was being taken by the plaintiff and as such, electricity connection of the plaintiff was permanently disconnected on 23.07.2010. It was further pleaded that statement of SDO is contradictory to the effect that total amount of Rs. 13,935/- had been got deposited by the SDO from the plaintiff vide receipt and RCO fee of Rs. 250/- was also got deposited on 20.01.2011 and connection should have been restored immediately after 20.01.2011 and before 16.2.2011 i.e. the date of impugned checking. The SDO did not recommend the connection despite these facts and demanded illegal gratification. Defendants threatened the plaintiff that he would be implicated in some other case.

Upon notice, defendants appeared and filed written statement taking various preliminary objections. It has been alleged that plaintiff was committing theft of energy and as such, proceedings under Sections 135/151 of the Electricity Act, 2003 have been initiated by lodging a criminal complaint and as such, Civil Court has got no jurisdiction. It has been further alleged that electricity connection of the plaintiff was permanently disconnected on account of non payment of electricity bills dated 23.07.2010. The premises of the plaintiff had been checked by the Staff of the Nigam on 16.2.2011 and plaintiff was found using direct supply from LT line of the Nigam by providing 4/C black colour cable of 16 mm and being a clear cut case of theft of electricity, a notice for assessment of loss of Rs. 1,49,369/- was served and an offer for compounding of offence subject to deposit of Rs. 3 lacs was also served upon the plaintiff. The plaintiff was present at the time of checking but he refused to sign the checking report and the total connected load at the time of checking was found to be 14.128 K.W.

On the basis of the pleadings of the parties, the Court of first instance framed the following issues:-

Whether the plaintiff is entitled to the relief of declaration as alleged? OPP

Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP

Whether the plaintiff has no locus standi to file the present suit? OPP

Whether the plaintiff has not come to the Court with clean hands and has suppressed the true and material facts from the Court? OPD

Whether the civil Court has no jurisdiction to try and entertain the present suit? OPD

Relief.

The Court of first instance, after perusal of the evidence led by the parties, decreed the suit vide judgment and decree dated 31.07.2013. Against that, defendants preferred an appeal, which has been dismissed by the lower appellate Court vide judgment and decree dated 01.02.2014. Hence, this second appeal.

I have heard learned counsel for the appellants and perused the record.

Learned counsel for the appellants has submitted that the following substantial questions of law formulated in para no. 10 of grounds of appeal, arise for consideration in this second appeal:-

i) Whether the jurisdiction of the civil Court is barred u/s. 145 of the Electricity Act, 2003?

ii) Whether the appellants are entitled to the amount from the plaintiff on the basis of checking report and instructions of the Nigam for theft of electricity?

iii) Whether the demand of penalty amount for the theft of electricity is legal?

iv) Whether the findings recorded by the learned Courts below are perverse and against law, against facts, law and evidence on record?

Learned counsel for the appellants vehemently contended that the findings recorded by both the Courts below are against law and facts on record. Learned counsel further contended that both the Courts below have misread the evidence and findings of both the Courts below are based on surmises and conjectures.

I have considered the contentions raised by learned counsel for the appellants and perused the record.

The Court of first instance, after appreciation of evidence, recorded findings of fact which read as under:-

As per instruction no. 4.14 (Ex. PW/1) in case where dead stop, burnt meters or in-accurate meters found at the premises of the consumers, the adjustment of the consumer''s account shall be carried out for a period not exceeding six months immediately preceding the date of testing of the meter or the date of removal of such a meter for the purpose of test. Further, it is also mentioned therein that it becomes mandatory on the part of the Field Officer to conduct regular checking of the meters and all the dead stop/burnt and inaccurate meters found must be replaced within a period of six months from the date these are found defective failing which the responsibility for loss of revenue of the Nigam for a period beyond six months will rest with the concerned field officers. In the present case, no such procedure was adopted by the defendants despite written requests of the plaintiff

Perusal of Ex. PW1/6 shows that the assessment has been issued to the plaintiff on 17.2.2011 on the basis of checking report Ex. D1. Perusal of Ex. D1 shows that the checking was conducted by Sh. Subhash Deshwal, SDO. He appeared as DW1 and categorically denied his cross-examination that he was not present at the time when the checking was conducted. He has also denied that the checking report was presented to him in the office which makes it amply clear that he was not a party to the checking team, making it doubtful whether the checking was ever conducted in the premises of the plaintiff. He has also admitted that the order of assessment (Ex. PW1/6) has been issued by him which is also against sales circular No. D-43-2007. As per this sale circular, XEN Operation is empowered to issue the orders of Assessment. From the testimony of DW1, it is clear that checking report cannot be relied it. It also leads to an inference that the orders of assessment issued by the defendant is illegal and arbitrary. Since the SDO was actually admittedly not present at the time of checking yet he has signed the checking report, this makes the checking report is a false document.

Further, no photographs taken at the time of checking have been produced by the defendants neither any video recording of the same has been produced which is a clear violation of the instructions issued by their department. The instructions under 11 (9,10,11) as contained in Sales Circular no. D-43/2007 can be reproduced:-

9). The inspecting officers/officials, shall take along themselves the digital camera/video or any other recording device with preferably having the facility with date and time stamp for recording the complete events during the checking of premises. While inspecting and checking the premises, the raiding party or the inspecting team shall record the whole event after reaching the premises and up to leaving the premises through video camera/digital camera. The authorized inspecting officer shall keep one CD with him and hand over one CD to Assessing Officer.

The evidence of dishonest abstraction or artificial means should be photographed and seized and taken into custody and memorandum of seizure should be prepared at the spot.

The signatures of the consumer or his representative and other persons on the site, if available, should be taken on the checking report and memorandum of seizure should be prepared at the spot. In case of refusal by consumer, it should be recorded in the checking report and the same should be pasted at a conspicuous place in/outside the premises, and a photograph be taken. Further the copies of checking report and memorandum of seizure be sent through registered post to the consumer.

Failure to prepare the seizure of the meter is a clear violation of the instruction in sales circular no. D-43-2007. It is also obligatory upon the electricity department to paste a copy of checking report inside or outside the premises of the plaintiff and to supply a copy of seizure memo to the plaintiff. However, in the present case none of these instructions have been complied by the department. Under these circumstances, it is clear that the checking report makes the order of assessment issued by the department dated 17.2.2011 is a sham document and is illegal and arbitrary and therefore, these issues are decided in favour of the plaintiff and against the defendants.

The said findings have also been affirmed by the lower appellate Court.

The lower appellate Court with regard to jurisdiction of civil court after referring to judgment of Hon''ble Delhi High Court in M/s. Bharat Auto Care vs. Punjab State Electricity Board, 2012 (5) RCR (Civil) 64, judgment of this Court in U.H.B.V.N. and Others Vs. Vinod Kumar, , judgment of Hon''ble Gujarat High Court in Ahmedabad Electricity Company Limited Vs. Ramesh D. Devnani, and judgment of Hon''ble Supreme Court in Punjab State Electricity Board and Another Vs. Ashwani Kumar, , has held as under:-

However, similar matter has also gone before Hon''ble Orissa High Court in case Raghunath Jena and Others Vs. Adkikanda Panda, wherein law was laid down that as per Section 9 of Code of Civil Procedure, 1908 even if jurisdiction of civil court is excluded, civil courts have to examine into cases where the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

Similarly the Hon''ble Supreme Court of India in case Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board and others, 2011(1) Civil Court Cases 001 wherein at the time of checking no prior intimation was given and even responsible officer was not present at the time of checking and copy of checking report was not given to the appellant and there was non compliance of statutory provisions of law and Hon''ble Supreme Court laid down the law that for non compliance of statutory requirement of law or the principles of natural justice have been violated, such a demand raised on the basis of said checking is null and void.

Quite identical are the facts of the case in hand. In this case DW1 Subhash Deshwal, Sub Divisional Officer, was the most responsible officer and he was not present at the time of checking and the procedure required under the law has not been followed. Learned trial Judge has rightly held that on the basis of checking report, plaintiff cannot be held liable.

In view of above, civil court has certainly jurisdiction to decide such like matter where the procedure laid down under the law has not been followed and principles of natural justice have been violated.

In this case, DW1--Subhash Deshwal, SDO had even denied the alleged checking by him. Since checking has been denied, the very foundation of the assessment is not sustainable. Accordingly, assessment order is illegal.

Concurrent findings of fact have been recorded by both the Courts below. Learned counsel for the appellants could not show that the said findings are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record. Consequently, said findings of fact do not warrant interference in second appeal. No question of law, much-less substantial question of law, as alleged, arises for adjudication in this second appeal.

No other point has been urged.

Dismissed in limine.