R.S.A. No. 4703 of 2003 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4703 of 2003 (O&M) Date of decision: 24.04.2009 Sub Divisional Officer, (Operation Sub Division) DHBVN Ltd, Adampur and others ....appellants versus Subhash Chander ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. R.K. Singla, Advocate, for the appellants. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 23.7.2003 passed by the learned lower appellate Court, vide which the suit filed by the plaintiff/respondent seeking permanent injunction against the defendant/appellants, from recovering the penalty amount, stands decreed. The plaintiff brought a suit on the plea that electric connection No. P 147/8P, installed at his atta chakki, has been provided by the Haryana Electricity Board. The electricity meter was installed and checked on 15.4.1997. As per the report, the meter was found to be not working on one phase, and in view of the report, the plaintiff was being billed on average basis. The plaintiff regularly paid the bill, as demanded. The plaintiff thereafter requested the appellant/defendants to R.S.A. No. 4703 of 2003 (O&M) -2- replace the meter. However, the request was not accepted, and instead, the meter was again checked on 24.10.1997. After checking, a paper seal was fixed on the meter, with the assurance to the plaintiff that the faulty meter will be replaced within a short period. Instead of replacing the meter, the official demanded bribe, on refusal, the premises were again inspected on 10.11.1997, and report was made that two seals (H&P) were found broken and third round seal was found tampered with. It was reported that the meter did not move at one phase. However, the paper seal fixed on 27.10.1997 was found intact. On the basis of report, penalty of Rs.47,011/- was imposed, and was prosecuted on the criminal side for theft of electricity. The suit was contested, wherein number of objections were taken. However, on merit, it was reiterated that the penalty has been rightly imposed, as the plaintiff/respondent was found committing theft of electricity. On the basis of evidence, the learned trial Court was pleased to dismissed the suit, primarily on the ground, that though the plaintiff had alleged mala fide against the official of the appellant/defendants, however, he led no evidence in support thereof. Therefore, the learned trial Court found that as the plaintiff had failed to prove the mala fide of the official, thus not entitled to injunction, and dismissed the suit. The plaintiff/respondent preferred an appeal. The learned lower appellate Court reversed the findings of learned trial Court by observing: - “As per report Ex. P1 the meter was already found not R.S.A. No. 4703 of 2003 (O&M) -3- moving on single phase. It was declared to be defective and accordingly, replacement was ordered. However, instead of directing the replacement of defective meter. SDO (Operation Sub Division) Adampur again inspected to premises of the plaintiff on 27.10.97 and found two M&T seals broken and the third was suspected to be tampered with and also the meter was not found working on single phase. However, on 27.10.97 no case of theft of electric energy was lodged by the SDO (Operation Sub Division) Adampur. The meter was also not removed and taken into possession by the SDO (Operation Sub Division) Adampur. On the other hand, he placed paper seal on the electricity meter. However, no reporting about the theft of electricity to the higher authorities by SDO (Operation Sub Division) Adampur to take action on the basis of the inspection conducted on 27.10.97 is not satisfactorily explained by learned law officer. This shows that the SDO (Operation Sub Division) Adampur was acting with dishonest intention in conducting inspection on 27.10.97 and preparing a forged letter dated 27.10.97 Ex D.4. Moreover, the report Ex. P.3/D2 prepared on the basis of inspection conducted on 10.11.97 cannot be believed because the meter was already found not moving on single phase as per earlier report dated 15.4.1997 Ex. D1. After conducting the first inspection on 15.4.97 the meter was not replaced by the electricity board but bill on the basis of average was sent to the plaintiff and it was accordingly paid by him. Two of the M&T seals were found broken and the third seal suspected to have been tampered with at the time of second inspection on 27.10.97. On 27.10.97 also the meter was not taken into custody and replaced by SDO (Operation Sub Division) Adampur when the meter was already found defective. When the electricity board had R.S.A. No. 4703 of 2003 (O&M) -4- already sending the bill on average basis after first report dated 15.4.97 Ex. P.1, there was no question of making second inspection on 27.10.97 and third inspection on 10.11.1997. Moreover, no action was taken on the basis of second inspection conducted on 27.10.97. However, action was taken against the plaintiff/appellant on the basis of facts which were already found and detected in the first report on 15.4.97. Moreover, as per my discussion above, the meter was not removed and sent to the laboratory for testing after first inspection on 15.4.97, after second inspection on 27.10.97 and after third inspection on 10.11.1997. Hence, the report dated 10.11.97 Ex. P3/D.2 cannot be believed to be true that the meter was tampered with for abstracting electric energy. On the other hand, it show that the SDO (Operation Sub Division) Adampur was acting with dishonest and malafide intention. It is also not out of context to point out that the plaintiff Subhash was also acquitted in a criminal case bearing F.I.R. NO. 499 dated 14.11.1997 under Section 379 IPC read with Section 39 of the Electricity Board. P.S. Adampur vide judgment dated 13.10.2001. The case in hand is actually the case of defective meter and not the case of committing theft of the electtic energy by tampering with the meter. Hence, the defendant/respondent electricity board have wrongly imposed a penalty of Rs.47011/- upon the plaintiff. The electric connection of the appellant/plaintiff was disconnected but on the orders of the court on payment of 20% of the imposed penalty, the connection of the plaintiff was restored. However, as per my discussion above, plaintiff/appellant Subhash is entitled to make payment of the electricity charges on average basis from the date of first inspection i.e. 15.4.97 till the new meter was installed at his premises on the orders of the court. R.S.A. No. 4703 of 2003 (O&M) -5- However, from the date of installation of the new meter thereby replacing the defective meter, plaintiff/appellant shall pay the bill as per actual consumption. The plaintiff/appellant Subhash shall also be entitled to adjust the amount already deposited by him against 20% of the imposed penalty of Rs.47011/-. Hence, issue No.1 is decided accordingly hereby setting aside the finding of the learned trial court." The learned counsel for the appellants contends that this appeal raises the following substantial questions of law: - “1. Whether the plaintiff/respondent was stopped by his own conduct from challenging the imposition of penalty, as the inspection was conducted in his presence? 2. Whether the civil Court had the jurisdiction to entertain and try the suit filed by the plaintiff/respondent? In support of the substantial questions of law, the learned counsel for the appellants contends that once the inspection was carried out in the presence of the plaintiff/respondent, he had no locus standi to challenge the same by filing a suit after the penalty amount was paid. The contention of the learned counsel for the appellants, therefore, is that the suit filed by the plaintiff/respondent was liable to be dismissed on the principle of estoppel. On consideration, I find no force in the contention raised by the learned counsel for the appellants. It may be noticed that the only bar to the plaintiff/respondent was to challenge the inspection carried out in his presence, but there was no estoppel against him to challenge the imposition of penalty, on the plea that as per the inspection report, no R.S.A. No. 4703 of 2003 (O&M) -6- fault was found against him. The learned lower appellate Court has rightly observed that first inspection was held on 15.4.1997, when it was found that the meter was not working. However, instead of replacing the meter, the plaintiff/respondent was billed on average basis. In the second report, same defect was found and paper seal was put on the meter. When on 27.10.1997, the paper seal was found intact, the learned lower appellate Court rightly held that it could not be said that there was change of circumstances, or allegations of theft could be levelled. In criminal proceedings also, respondent stands acquitted. Furthermore, it is not disputed that the meter was not sent to the laboratory for testing, to find out whether it was tampered or there was theft. The basic evidence to prove theft was not produced. The learned lower appellate Court was right in coming to the conclusion that the imposition of penalty was totally arbitrary and contrary to law. The second substantial question of law raised deserve to be answered against the appellants in view of the law laid down by this Court in M/s Ranbaxi Laboratories Ltd. Vs. Punjab State Electricity Board, Patiala, 2004 PLR 101, holding that civil Court has the jurisdiction. No merit. Dismissed. (Vinod K. Sharma) Judge April 24, 2009 R.S.