RSA No.900 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.900 of 2008 (O&M) Date of decision: 19.1.2009 UHBVNL and others ......Appellants Versus Brijesh Kumar Garg ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Chand Ram Ola, Advocate for the appellants. Mr. C.B. Goel, Advocate with Mr.Nitin Jain, Advocate for the respondent. * * * Rakesh Kumar Garg, J. This is defendants' second appeal challenging the judgment and decrees of the Courts below dismissing the suit of the plaintiff- respondent was decreed for a declaration that the impugned notice dated 19.10.2002 issued by the defendants imposing a penalty of Rs.69,657.30 paise was illegal, null and void and the amount deposited by the plaintiff- respondent towards the said penalty be adjusted in his future bills. Brief facts of the present case are that the premises of the plaintiff-respondent was being supplied electricity through meter bearing account No.RB-II-1251 with a sanctioned load of 14.053 KW. The meter of the plaintiff-respondent was checked by the M&T staff on 19.8.2002. The checking report was prepared on the spot and copy thereof was supplied to the plaintiff's representative. The meter was checked in M & T lab and the same was found running slow by 85.83%. Later on, a notice was issued to the plaintiff-respondent on 19.10.2002 imposing a penalty of Rs.69,657.30 paise. The plaintiff-respondent filed the present suit for declaration RSA No.900 of 2008 (O&M) 2 with consequential relief of permanent and mandatory injunction impugning the notice dated 19.10.2002 and restraining the appellants from effecting recovery of the impugned penalty and further for issuance of mandatory injunction for directing the defendant-appellants to refund the amount on the ground that the plaintiff-respondent was not given any opportunity to get his metering equipment examined in his presence and was also not given any notice before assessing and imposing any penalty. The Courts below after relying upon the circulars issued by the appellant-Board, have held that an opportunity had to be provided to the consumer to get his metering equipment examined in his presence and the consumer is also required to be notified before assessing any penalty and accordingly, decreed the suit of the plaintiff-respondent. Feeling aggrieved against the aforesaid judgment and decrees of the Courts below, the appellants have filed the instant appeal. Learned counsel for the appellants has vehemently argued that the penalty imposed upon the plaintiff-respondent was illegal on the basis of checking report which was supplied in the present case to a representative of the plaintiff-respondent and which was duly verified by the officers of the Department and therefore, there is no illegality in the issuance of impugned notice dated 19.10.2002 and the judgment and decrees of the Courts below are liable to be set aside and the suit of the plaintiff-respondent is liable to be dismissed. On the other hand, learned counsel appearing on behalf of the respondent has argued that the Courts below on appreciation of evidence have recorded a concurrent finding of fact that the appellants have failed to prove on record that the plaintiff-respondent was granted an opportunity to get his metering equipment examined in his presence and thus, there is no illegality in the impugned judgment and decrees and no substantial RSA No.900 of 2008 (O&M) 3 question of law arises in this appeal and the same is liable to be dismissed. I have heard learned counsel for the parties and perused the record. While dismissing the appeal, the Lower Appellate Court has observed as under: “A perusal of sale circular No.27 of 1996 and sale circular No.31 of 1998 reveals that an opportunity had to be provided to the consumer to get this metering equipment examined in his presence and the consumer is also required to be notified before assessing any penalty. The sale circulars are based on sound principle of natural justice that no one can be condemned unheard and the executive authorities of the State and its agencies are bound to act in accordance with the administrative/executive instructions which regulate them. In M/s Trupati Industries v. Punjab State Electricity Board 2000 (1) RCR (Civil) 681 it has been held that a notice has to be given to the consumers about the date and time of testing of his meter. As discussed earlier in the present case, the appellants have failed to prove on record that the plaintiff was informed about the date, time and place of testing of his meter in M&T Lab Karnal. Therefore, the report of M&T Lab Karnal on the basis of which impugned notice has been issued cannot be considered against the plaintiff. Further the plaintiff was not heard before assessing the amount of penalty. No opportunity of show cause notice was given to him before imposing penalty on him. In RSA No.900 of 2008 (O&M) 4 these circumstances in the facts and circumstances of the present case the appellants have not complied with the principle of natural justice and fair play and the impugned notice dated 17.10.2002 cannot be said to be legal and valid.” From the aforesaid observations of the Lower Appellate Court, it is clearly made out that as per the circulars issued by the appellants, an opportunity has to be provided to the consumer to get his metering equipment examined in his presence and the same was also required to be notified before assessing any penalty. In M/s Trupati Industries's case (supra), it has been held that a notice has to be given to the consumer about the date and time of testing of his meter. Counsel for the appellants could not dispute the finding of the Courts below that the appellants have failed to prove on record that an opportunity was granted to the plaintiff-respondent to get his metering equipment examined in his presence. Therefore, the report of M&T Lab, Karnal on the basis of which impugned notice was issued, cannot be taken into consideration against the plaintiff-respondent for imposing penalty. It is also not disputed that the plaintiff-respondent was not heard before assessing the amount of penalty and no opportunity of show cause notice was given to him. Thus, for the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. January 19, 2009 (RAKESH KUMAR GARG) ps JUDGE