RSA NO. 2528 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2528 of 2005 Decided on : 07-05-2009 Haryana State Electricity Board (now UHBVNL) through its Sub Divisional Officer, Sub Division, Nagura, Tehsil and District Jind. ....Appellant VERSUS Shri Bhagwan and another ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Ravi Verma, Advocate for the appellant Mr. Amit Kumar Jain, Advocate for the respondent no.1. MAHESH GROVER, J This appeal by the defendants is directed against the judgment of the learned First Appellate Court dated 18.1.2005. The plaintiff-respondent no.1 filed a suit assailing notices No. 229 dated 21.05.1997 and 505 dated 02.07.1997 which were issued to him asking him to deposit penalty of Rs.15,265.35 paisa on account of illegal connection from which he was drawing electricity to operate his saw machine. It is the pleaded case of the plaintiff that he had applied for connection to operate saw machine with diesel engine on 12.4.1996 and he completed the necessary formalities and deposited an amount of Rs. 1800/- as security. In the month of February, 1997 some officials from the office of appellant came to his premises and informed him that if he deposits RSA NO. 2528 of 2005 2 Rs.3000/- in the office of defendant no.2 then electric connection to his saw machine can be issued in 2-3 days. Accordingly he paid them Rs.3000/- and requested them to deposit the same in the name of plaintiff so as to enable him to get the electric connection. Thereafter within 2-3 days one electric pole was fixed and electric meter was installed by fixing with a cable in the saw machine in the premises of the plaintiff. The supply of electricity started soon thereafter. Thereafter on 22.3.1997 without any intimation or notice the electricity supply was disconnected. The plaintiff-respondent no.1 visited the office of the appellants for restoration of the connection and its supply but the same was not done and notices dated 21.5.1997 and 02.07.1997 were issued to him in which it was stated that on checking, the electricity connection in the saw machine of the plaintiff was found to be illegal and he was asked to deposit a sum of Rs.15265.35. He pleaded that notice was illegal. The appellant-defendants contested the suit and pleaded that some of the officials had colluded with the plaintiff and obtained illegal gratification to supply electricity to the plaintiff-respondent no.1. In their record no electricity connection is existing in the name of the plaintiff and no meter connection of the same. Since the connection was illegal, the notices were pleaded to be valid. It was further pleaded that the officials of the Department who were involved in the grant of illegal connection were proceeded against under Section 379 IPC and Section 39, 39-A, 44, 45 of the Electricity Act and Section 7 of the P.C. Act. It was further the case of the appellant that there was theft of electricity and consequently the notices were perfectly valid. Parties went to trial of the following issues:- RSA NO. 2528 of 2005 3 1. Whether the show cause notice no.229 dated 21.5.97 and no. 505 dated 2.7.97 issued by defendant no.2 to the plaintiff as per which plaintiff has been directed to pay a sum of Rs.15265.35 are illegal, null and void and are liable to be cancelled and set aside?OPP 2. Whether the plaintiff is liable to pay the electricity consumption charges of 544.5 units only, if so its effect?OPP 3. Whether the defendants have illegally disconnected the electricity connection of the plaintiff's ara machine?OPP 4. Whether the defendants are liable to restore the electricity connection of the plaintiff's ara machine?OPP 5. Whether the suit is not maintainable in the present form?OPD 6. Whether the civil court has no jurisdiction to try and decide the present suit?OPD 7. Relief. Learned Trial Court dismissed the suit of the plaintiff- respondent and in appeal, the findings were reversed by learned First Appellate Court which has resulted in filing of the instant regular second appeal. It has been contended by the learned counsel for the appellant that the findings recorded by the learned First Appellate Court are erroneous and deserves to be set aside. It is the contended case of the appellant that their officials had accepted illegal gratification to grant connection to the plaintiff-respondent no.1 and since no meter and no connection was existing in the record of the appellant, at best it could be termed to be theft of RSA NO. 2528 of 2005 4 electricity. Issuance of notices was pleaded to be valid but learned First Appellate Court ignored all these aspects of the matter while recording findings in favour of the plaintiff-respondent no.1. On the other hand, learned counsel for the respondent no.1 drawn the attention of this Court to the testimony of PW3 who is an official of the appellant who specifically stated that the billing had started in February 1997 and he also stated that on 22.11.1996 the test report had been submitted by the consumer. For the purposes of reference relevant extract of the testimony of PW3 is as follows:- “As per record dated 17.2.1999 the connection and billing were started. In this connection I have brought the report of SDO. In this case the test report was submitted by the consumer on 22.11.1996” He thus pleaded that in view of this categoric admission by the official of the appellant, the contention of the learned counsel for the appellant that the formalities had not been completed and there was no proper connection is totally erroneous. At the time of the admission of the appeal, the following questions of law were formulated by this Court:- 1. Whether in the facts and circumstances of the case, the first appellate Court was right in reversing the judgment and decree of the trial Court? 2. Whether in the facts and circumstances of the case, the judgment and decree of the first Appellate Court is based on misreading and misappreciation of evidence and thus legally unsustainable? RSA NO. 2528 of 2005 5 After hearing learned counsel for the parties and perusing the impugned judgment and record, I am of the considered opinion that it cannot be said that the learned First Appellate Court was not right in reversing the judgment and that there was mis-reading of the evidence by it The plaintiff-respondent no.1 case was that he had deposited the requisite amount for grant of the connection and also paid the amount which was demanded of him. The electric connection was given to him thereafter. The testimony of PW3 and the extract of which has been reproduced above reveals that it is the case of the officials of the appellant themselves that the billing had started in 1997 and this report was given by the Sub Divisional Officer, their own official. That apart it is also the case of this witness that the original record has been lost. In this view of the matter, it was for the appellant to produce by way of secondary evidence, necessary and cogent evidence, from where their plea could be tested. So far as plaintiff-respondent no.1 is concerned he had adequately proved his case by producing aforesaid witness PW3 that the necessary formalities had been completed and the billing was started by the appellant. He cannot be made to pay for the fault of the appellant even if it is accepted that there was acceptance of illegal gratification. Appellant has not produced any record to substantiate their plea for the reasons best known to them. Their original record also went missing. In this view of the matter, the plaintiff-respondent no.1 cannot be penalized for the mis-doings of the officials of the appellant or the laxity on their part. Aforesaid questions of law are answered to state that there is no mis-reading of the evidence and that the findings recorded by learned First RSA NO. 2528 of 2005 6 Appellate Court reversing the judgment and decree of the learned Trial Court, are correct. Dismissed May 07 , 2009 (Mahesh Grover) rekha Judge