RSA No.1998 of 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1998 of 2010 (O&M). Decided on: April 18, 2011. Ashok Kumar. .. Appellant VERSUS Uttar Haryana Bijli Vitran Nigam Ltd., and others. .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.Munish Mittal, Advocate, for the appellant. Mr.Mohnish Sharma, Advocate, for Mr.Narender Hooda, Advocate, for the respondents. M.M.S. BEDI, J (ORAL). The plaintiff-appellant has challenged the judgment of reversal passed by the lower appellate Court setting aside the judgment and decree passed by the trial Court, passed in favour of . . . 1 RSA No.1998 of 2010 (O&M) the plaintiff-appellant. The plaintiff had challenged the notice dated 28.08.2006, imposing a penalty of ` 22,200/- on the ground that the meter installed in his house which was purchased by him on 16.04.2006, was found to be running slow by 60 per cent on the basis of an inspection conducted on 17.08.2006. The plaintiff claims that he had not been given any opportunity before assessment of the impugned penalty and the meter was never sent to the Electrical Inspector. The trial Court had decreed the suit of the plaintiff- appellant declaring that the notice dated 18.08.2006, was illegal, null and void and a direction was given to the defendants-respondents to adjust the amount of ` 22,200/- in the future Bills of the plaintiff- appellant. The lower appellate Court reversed the judgment on the ground that the plaintiff-appellant being guilty of having committed theft of energy and having used unauthorized extension of load of 4.760 killowatt against sanctioned load of 2.00 killwatt and the meter on being checked was found running 60 per cent slow, the plaintiff- appellant was not entitled to the declaration. The plaintiff-appellant aggrieved by the judgment of reversal has filed this appeal claiming that the lower appellate Court has not appreciated the Instruction Nos.115 and 116 of the Sales Manual of the Electricity Board. Counsel for the appellant has placed reliance on Punjab State Electricity Board and another Vs. Firm New Era . . . 2 RSA No.1998 of 2010 (O&M) Printing Mills, Batala Road, Amritsar, 2009 (2) RCR (Civil) 801, to contend that in case of inaccurate meters, consumer is entitled to get the meter checked from Electrical Inspector besides an opportunity of being heard. In the said case, a meter installed at the premises of consumer was found to be inaccurate and on the basis of said report, the Board had raised a demand. It was held that the demand was not justified as before making assessment, no opportunity was given to the consumer. Relying upon Section 26 (6) of the Indian Electricity Act and the above instructions, it was held that where any meter is found not correct, the said meter should be referred, upon an application of the either party to the Electrical Inspector. The following substantial questions of law arise in the present case: - 1. Whether the judgment of lower appellate Court setting aside the well reasoned judgment of trial Court without appreciation of the statement of DW.8 Girdhar, X-en, admitting that the meter was checked with a clip on meter and not by Electrical Inspector, suffers from the vice of perversity? 2. Whether the lower appellate Court has ignored the legal provisions of Section 26 (6) of the Indian Electricity Act and the Instructions 115 & 116 of the Sales Manual Regulation while setting aside the judgment of the trial Court? . . . 3 RSA No.1998 of 2010 (O&M) After hearing the counsel for the appellant as well as the counsel for the respondents and going through the judgment passed by the lower appellate Court, I am of the considered opinion that it is an admitted fact that the penalty has been imposed upon the plaintiff-appellant on the basis of Inspection Report dated 17.08.2006, that the meter working at the residence of the plaintiff- appellant which was purchased by him on 16.04.2006, was found to be slow by 60 per cent. The meter admittedly was not sent to the Electrical Inspector as none of the parties seem to have filed any application as required under Instruction No.116 of the Sales Manual but the fact remains that before making the assessment, no opportunity was given to the plaintiff-appellant, a consumer of the electricity to explain that he had purchased the house along with electric connection on 16.04.2006 whereas the inspection has been conducted on 17.08.2006. Since penalty imposed is a violation of the provisions of Section 26 (6) of the Indian Electricity Act, the imposition of penalty vide notice dated 28.08.2006, is not sustainable. The statement of DW.1 A.K.Garg, XEN, Central Store Division, UHBVNL, Rohtak, which has been noticed in the judgment of the lower appellate Court, establishes that the meter was never got checked form the Electrical Inspector. In view of above circumstances, the judgment of the lower appellate Court is not based upon any cogent reasons, as such, it can be said to be perverse. The appeal is allowed. The judgment of the lower . . . 4 RSA No.1998 of 2010 (O&M) appellate Court is hereby set aside whereas the judgment of the trial Court is upheld. The amount of ` 22,200/- already deposited by the plaintiff-appellant will be adjusted in the future Bills. Parties to bear their own costs. Decree sheet be prepared. (M.M.S.BEDI) JUDGE April 18, 2011. rka . . . 5