RSA No.1640 of 2009 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on December 02,2009. Mahender Pal -- Appellant vs. Sub Divisional Officer and others --Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Rajinder Goyal,Advocate, for the appellant. Rakesh Kumar Jain, J: (Oral) The plaintiff is in second appeal in a suit for declaration and mandatory injunction in which he has lost before both the Courts below. Briefly stated, the plaintiff has alleged that he has an electric connection No. SP 1-177 at his shop and has been paying rent regularly. On 14.2.2006, the employees of the defendants checked electric meter installed in his shop and found the seals and wires intact. The meter was, however, removed on the pretext that it was running slow and would be sent for checking to M& T Laboratory, Karnal. The checking report was prepared on 17.2.2006 and two memos were sent to the plaintiff imposing a penalty of Rs.2,40,000/- and the electric connection was disconnected. It is alleged that every-thing has been done at his back without giving him an opportunity of hearing and the meter was removed without there being any fault that it was RSA No.1640 of 2009 2 running slow. The report of M& T Laboratory, Karnal was also alleged to be false and manipulated. In the written statement, it is alleged by the defendants that the plaintiff has suppressed material facts from the Court. On 14.2.2006, premises of the plaintiff was inspected by Vigilance Party led by AEE/ADE Ashwani Kumar Garg and the meter was checked in his presence which was found running slow. In order to check the genuineness of seals etc, the meter was taken into custody and sent to M& T Laboratory, Karnal, for checking its accuracy. The checking report was prepared at the spot in the presence of the plaintiff who had signed it regarding his presence but did not not raise any objection at that time. It was found during checking of the meter that in the push fix MCV locks were broken. cover was already opened, the meter body and the cover of seals were found tampered as the lace wire was cut and reinserted into seals and reaffixed with some adhesive. The plaintiff was thus alleged to be guilty of extracting electric energy illegally and dishonestly for which penalty to the tune of Rs. 2,40,000/- was imposed upon him. Replication was filed in which it was alleged that Gajender Kumar, Virender Kumar and Manoj Kumar are residents of Pundri who had filed ejectment petition of the shop in question which is pending before the Apex Court. Manoj Kumar (one of the defendants) was S.D.O in the UHBVN Department and is posted at Guhla, who had influenced the electricity department to raid the shop of the plaintiff, therefore, raid was motivated. On the pleadings of the parties, following issues were framed :- 1. Whether the checking report No. 2681 dated 14.2.2006 and memo No. RSA No.1640 of 2009 3 216 dated 17.2.2006 are illegal, null and void ? OPP 2. If Ist issue is proved, whether the plaintiff is entitled for injunction sought in the present suit ?OPP 3. Whether the plaintiff has no locus standi for filing the present suit ? OPD 4. Whether the suit is not maintainable ? OPD 5.Whether the plaintiff has not come with clean hands in the Court ? OPD 6.Whether the plaintiff has no cause of action for filing the present suit ? OPD 7.Relief: The plaintiff examined himself as PW-1 and tendered in evidence certified copy of order of Hon'ble Supreme Court as Ex. P-1/2 and copy of attesting report Ex.P-2. The defendants examined Sewa Singh as DW- 1, Inder Singh as DW-2, Virender Singh as DW-3, Ashok Garg as DW-4. and tendered in evidence checking report as Ex D-1, copy of notice to the plaintiff regarding checking of his meter dated 15.2.2006 as Ex. D-2, copy of taking the meter for checking dated 15.2.2006 as Ex. D-3, copy of report of M & T Lab as Ex. D-4 , copy of notice of penalty dated 17.2.2006 as Ex. D-5, and copy of FIR lodged on 23.2.2006 as Ex. D-6. The suit was dismissed and in the appeal preferred by the plaintiff, the only argument raised was that the entire action of the respondents/Board is contrary to their own documents. It was argued that as per checking report Ex. D1, premises of the plaintiff was checked on 14.2.2006 in which the checking party had noticed that “Meter appears to be slow. Meter be replaced immediately and sent to M & T Laboratory, Karnal , to check its accuracy and genuineness of seals”. In note II of the checking report, it was mentioned that “Connection is being used for oil expeller so C- RSA No.1640 of 2009 4 T meter be provided as per Nigam instructions” The S.D.O had issued notice dated 15.2.2006 Ex. D-2 to the plaintiff for testing of the report in which it was specifically mentioned that the meter was replaced as it was found running slow and was packed in the presence of the plaintiff. Notice also reveals that in case, the plaintiff desires to be present at M&T Laboratory, Karnal, he can do so. Notice also bears the signatures of the plaintiff. It is argued before the Court below by learned counsel for the appellant that the reasoning adopted in the checking report did not correspond with the test report because this test report Exs D-4/ Ex.D-7 is silent regarding the accuracy of the meter which was detected at the time of checking of the meter in the premises of the plaintiff. Thus, it was argued that the report of M&T Laboratory, cannot be taken into consideration and the version given in the test report is bound to be disbelieved because there is no report regarding slow running of the meter, emanating from the report of the M& T Laboratory Ex.D4/Ex.D7. The aforesaid argument was considered by the Court below and it was observed as under:- “It is quite apparent from the record that appellant– plaintiff was present at the time when his premises was checked on 14.2.2006 and checking report Ex.D1 was prepared in his presence. The signatures of the appellant – plaintiff on the checking report establishes this fact. Likewise, when notice (Ex.D2) was issued to the appellant–plaintiff by the respondents–defendants board, he was granted an opportunity to come present at Karnal at the time when the meter was to be tested by M & T laboratory. He choose not to appear. Had the RSA No.1640 of 2009 5 appellant–plaintiff appeared there, he could have raised an objection there and then to furnish report regarding accuracy of the meter. Although, there is no provision for making the consumer present at the time of testing of the Meter by M & T laboratory, yet the respondents – defendants in its wisdom chooses it appropriate to issue notice to the appellant – plaintiff thereby making him aware of the fact that he can come present at the time of testing of the meter by M & T laboratory, Karnal. The report of M & T Laboratory Ex.D4 (also Ex.D7) is explicit in itself. It is a very comprehensive report. It even substantiates that the official of the laboratory kept on waiting for the consumer on 16.2.2006 till 11.55 AM. The report is clear to the fact that both meter body cover seals of firm found tampered i.e. its lace wire is cut, re-inserted into seals and re-fixed with some adhesive. The signs of screw driver like tools are also found visible in the meter body cover. On the basis of this report, an action against appellant – plaintiff was recommended and as a part of the action, appellant – plaintiff has been imposed a penalty of Rs.2,40,000/-. This documentary evidence led by the respondents is duly supported by the oral testimony. Inder Singh Junior Engineer, M & T Laboratory, appeared in the witness box as DW-2 and he tendered into evidence his duly sworn affidavit as Ex.DW2/A. He has duly proved the condition of the meter and has deposed that meter was found installed in the Push Fix MCB whose locks were found broken and cover was already RSA No.1640 of 2009 6 opened. Thus, he has substantially proved the report of M & T laboratory dated 16.2.2006 which is Ex.D4 (also Ex.D7). Like wise Sewa Singh, Commercial Assistant, Sub division No.1 UHBVN Pundri has appeared in the witness box as DW-1 and tendered his duly sworn affidavit as Ex.DW1/A. He has duly proved notice dated 15.2.2006 Ex.D2 which was issued to the appellant – plaintiff. He has also proved a fact that plaintiff was informed regarding testing of the meter in M & T Laboratory Karnal at 9 AM on 16.2.2006 and if the plaintiff choose to come present at the time of checking, he can do so. Thereafter, this witness has proved that as per report dated 16.2.2006 of M & T Laboratory, Karnal, both meter body seals were found tampered with and lace wire was found cut and re-inserted into the seals and re-fixed with some adhesive. There were signs of screw driver. So as per the testimony of this witness, through sales circulars No.2 of 2005 a penalty of Rs.2,40,000/- was assessed by the defendant at the rate of Rs.20,000/- per K.Ws, so a notice of assessment of Rs.2,40,000/- was eventually served upon plaintiff vide memo No.216 dated 17.2.2006 which bears the signature of SDO Sandeep Kumar and his signatures were duly identified by this witness. Virender Kumar, Executive Engineer appeared in the witness box as DW-3 and he has furnished his duly sworn affidavit as Ex.DW3/A wherein he has also corroborated the entire version given by other two official witnesses. Likewise A.K. Garg, Executive Engineer, Operation Division UHBVN RSA No.1640 of 2009 7 Jhajhar has also appeared in the witness box as DW 4 and has tendered his duly sworn affidavit as Ex. DW-4/A. He has proved the fact of checking of the premises of the appellant – plaintiff on 14.2.2006 by Vigilance staff of the Nigam. He has proved presence of the appellant – plaintiff at the time of checking. He has proved that it was observed that meter was running slow. He has proved that plaintiff also signed on the checking report without raising any objection. He has thus, proved that the checking report was totally legal and as per factual position at the spot. All the official witnesses were elaborately cross examined and plaintiff has not been able to elucidate any material in cross examination in order to render the whole exercise carried out by the defendants to the null and void. Still aggrieved against the concurrent finding of fact of both the Courts below, the plaintiff/appellant has come up in this second appeal in which neither any substantial question of law has been raised nor any substantial question of law has been formulated for the purpose of adjudication by this Court. The questions that have been raised before this Court have already been answered by the Courts below and they pertain to the factual position involved in this appeal. Hence, keeping in view the facts and totality of the circumstances in to consideration, I do not find any ground to interfere in RSA No.1640 of 2009 8 the judgments and decrees of the Courts below which are based upon finding of fact. Hence, the present appeal is hereby dismissed in limine though without any order as to costs. December 02,2009 (Rakesh Kumar Jain) RR Judge