Punjab-Haryana High Court
Uttar Haryana Bijli Vitran Nigam ... vs Raj Pal Khanna on 14 October, 2021
140
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-924-2021 (O&M)
CM-4382-C-2021
Date of Decision: 14.10.2021
UTTAR HARYANA BIJLI VITRAN NIGAM LTD. AND ANR.
...Appellants
Versus
RAJ PAL KHANNA
...Respondent
CORAM: HON'BLE MR. JUSTICE ARUN MONGA
Present : Mr. D.R. Singla, Advocate
for the appellants.
(Presence marked through video conference).
ARUN MONGA, J. (ORAL)
For convenience, parties herein are addressed as per recitals
before the trial Court.
2. Having suffered concurrent adverse findings by the two Courts
below, the defendants are in second appeal before this Court assailing the
trial Court judgment and decree dated 17.02.2017, as upheld by learned First
Appellate Court vide its judgment and decree dated 13.12.2019.
3. Briefly stated, facts as noticed by Courts below are that
plaintiff-respondentinstituted a suit for mandatory injunction on the
averments that he is the user of electricity connection bearing A/c No.MD-
22/2536, which is in the name of one Sita Ram. He has been regularly
paying the electricity charges. He received a Memo dated 12.02.2016
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allegedly committing offence of theft under Section 135 of Electricity Act,
vide which he was asked to deposit an amount of Rs.85,158/- as assessment
charges. Thereafter, another memo dated 12.02.2016 was issued for
compounding the offence, vide which, he was asked to deposit an amount of
Rs.8,000/- as compounding fee. No theft of electricity was declared when
the meter was removed. Per plaintiff, once the meter itself is removed by the
service provider from the site, no case of theft of energy can be fastened on
the consumer, unless substantiated by cogent evidence. Even the procedure
under Section 126 of the Electricity Act was allegedly not followed in the
present case.Upon notice, the defendants appeared and filed their written
statement, stating therein, that at the time of checking, the accuracy of meter
was found slow by 70%. On internal examination, two additional
resistanceswere found on the original plate connected with the CT's
secondary wire of the meter and the meter was, therefore, removed.
4. Based on the rival pleadings, following issues were framed:
1. Whether the plaintiff is entitled to the decree for declaration
as prayed for? OPP
2. Whether the plaintiff is entitled to a decree with
consequential relief of mandatory injunction as prayed for?
OPP
3. Whether the plaintiff is not having any locus standi to file
and maintain the present suit? OPD
4. Whether the suit is not maintainable? OPD
5. Whether the plaintiff is estopped from filing the present suit
by his own act and conduct? OPD
6. Whether the plaintiff has not come to the court with clean
hands? OPD
7. Whether the Civil court is not having any jurisdiction to try
and entertain the present suit? OPD
8. Whether the suit has not been filed in accordance with
amended provisions of CPC? OPD
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9. Relief.
5. The parties adduced their oral as well as documentary evidence
in support of their pleadings and to discharge their respective onus as per the
issues, ibid.
6. On appraisal of evidence vis-a-vis pleadings, trial Court
decided issue No.1 partly in favour of both the parties and issues No.2 to 8
have been decided in favour of the plaintiff and against the defendants.
7. First Appellate Court dismissed the appeal. Hence Regular
Second Appeal before this court.
8. I have heard the learned counsel and perused the judgments of
both the Courts below. To my mind, judgments under challenge have been
rendered after due and correct appreciation of evidence adduced by the
respective parties. Learned First Appellate Court while re-appreciating the
cogent evidence gave valid reasons as below :-
"18. There is provision mentioned in Section 126 of the Electricity Act,
which provides procedure for the assessment of the amount from the
consumer. It is not the case of the appellants-defendants that the
plaintiff was found to be abstracting the electricity energy by
unauthorized means. So, there was no case of electricity theft by the
plaintiff. In the present case, M&T report Ex.D4 is on the file, which
goes to show this fact that the working of the meter is within limit.
However, despite this fact, the instructions for dealing with the cases
of theft of electricity vide sale circular No.U-15/2014 have not been
complied with. It is worthwhile to mention here that section 126 of the
Indian Electricity Act, 2003 provides that any theft of electricity energy
shall be communicated in the shape of order of provisional assessment
to the person who may be aggrieved. So, the learned lower court has
rightly observed that the requirement of Section 126 for the assessment
of amount for theft of electricity has not been complied with by the
defendants. Further, the learned lower court has rightly observed that
the defendants are not entitled for the recovery of assessment vide
impugned notice Ex.P2. However, there is no illegality in service of
notice under section 135 of Electricity Act. Ex.P3, as the same was
issued for the compounding fee, which is permissible under the
provisions of Electricity Act. The learned lower court has rightly
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observed that the impugned notice Ex.P2 dated 12.02.2016 for the
recovery of Rs.85,158/- is declared as illegal, null and void and not
binding upon the plaintiff. However, the notice Ex.P3 for compounding
fee was validly served upon the plaintiff. So, the findings of the learned
lower court on issue No.1 is well reasoned and justified and the same
is hereby ordered to be affirmed. "
9. There seems no perversity or illegality in the concurrent
findings of facts returned by the Courts below. No interference is thus called
for to disturb the said concurrent findings. No fresh ground worthy of
interference in the appellate jurisdiction of this Court is made out.
10. Furthermore, no question of law, much less substantial, a sine
qua non for entertaining regular second appeal, is involved herein, so as to
exercise appellate jurisdiction under Section 41 of the Punjab Courts Act
read with Section 100 of Civil Procedure Code, 1908.
11. In view of my discussion above and the reasons aforesaid, this
appeal is dismissed, being bereft of any merit. Resultantly, both the
impugned judgments and decrees passed by learned Courts below are
upheld.
12. Pending application/s, if any, shall also stand disposed of.
13. No order as to costs.
October 14, 2021 (ARUN MONGA)
gurpreet JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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