R.S.A. No. 2592 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2592 of 2008 Date of Decision: 8.12.2008 M/s. National Ice Factory and another ...Appellants. Versus Haryana State Electricity Board now Uttar Haryana Bijli Vitran Nigam Ltd. and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Ashwani Talwar, Advocate for the appellants. AJAY KUMAR MITTAL, J. Being unsuccessful before the courts below, the plaintiffs have approached this Court by way of present regular second appeal against the judgment and decree dated 19.3.2008 passed by the first appellate court affirming that of the trial court dated 22.2.2006 whereby the suit of the plaintiffs for declaration, was dismissed. Put succinctly, the facts of the case are that plaintiff No.1 was running the business of manufacturing Ice and plaintiff No.2 was its sole proprietor. The electric meter bearing No. MS-61 in the name of plaintiff No.1 was installed in the factory premises. It was pleaded that although the electric connection was a power connection but the factory was seasonal and worked only during summer season. It was further R.S.A. No. 2592 of 2008 -2- pleaded that vide notice No. 2369 dated 7.11.1997, the plaintiffs were informed that a sum of Rs.2,97,355/- had been levied upon them to be deposited within a period of 30 days and that to restore the connection of the electric supply, 50% of the said amount was to be deposited. Simultaneously, the defendants got lodged FIR No. 327 dated 7.11.1997 against the proprietor of the factory, namely, Shri Jyoti Ram at Police Station Mahesh Nagar, Ambala Cantt. Thereafter, Suresh Kumar, Incharge of the plaintiff-firm approached this Court vide Criminal Misc. No. 27283-M of 1997 and he was granted ad-interim anticipatory bail on an undertaking given by him that a sum of Rs.1,50,000/- shall be deposited within three days from the date of passing of the order and balance amount of Rs.1,47,000/- shall be deposited within next ten days. As undertaken before this Court, the penalty amount was deposited by the plaintiffs on two different dates i.e. Rs.1,50,000/- on 5.12.1997 and Rs.1,47,000/- on 8.12.1997. According to the plaintiffs, the impugned notices issued by defendant No.3 were illegal, null and void and without jurisdiction as in the months of October and November, 1997, there was no consumption of the electricity for want of business. It was also pleaded that the plaintiffs filed an appeal before the Executive Engineer, Haryana State Electricity Board, Ambala Cantt. against the notice dated 7.11.1997. The plaintiffs approached the defendants many times to get their electric connection restored and for refund of the penalty amount but to no effect and that gave rise to the filing of the suit for a decree for declaration to the effect that notice No.2369 dated 7.11.1997 issued by defendant No.3 levying a penalty of Rs.2,97,355/- along with notice No. 2657 dated 23.12.1997 declining R.S.A. No. 2592 of 2008 -3- reconnection were illegal, null and void and without jurisdiction, and as a consequential relief a decree for mandatory injunction directing the defendants to restore the electricity connection was sought. Upon notice, the defendants filed a joint written statement raising various preliminary objections and admitting the installation of connection No. MS-61 in the name of plaintiff No.1. It was pleaded that the connection of the plaintiffs was disconnected as per terms and conditions of the Electricity (Supply) Act, 1948 (for short, “the Act”) as the plaintiff-firm was found indulging in theft of the electricity energy. It was further pleaded that the plaintiffs were liable to pay a sum of Rs.2,97,355/- which had been assessed correctly as per the instructions issued by the Board in that regard. According to the defendants the connection could not be restored to the plaintiff as the action had been taken as per Sales Circular No. 4/01 dated 12.4.1991 vide which the Board exercised its powers as conferred by Section 49 of the Act. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. On the pleadings of the parties, the trial court framed various issues and on appreciation of the oral as well as the documentary evidence led by the parties held that the plaintiff had failed to establish that the impugned notices dated 7.11.1997 and 23.11.1997, were illegal, null and void. It was further held that the demand raised by the defendants was legal. Accordingly, the trial court vide judgment and decree dated 22.2.2006 dismissed the suit of the plaintiffs. Feeling aggrieved, the plaintiffs took the matter in appeal and the lower appellate court vide judgment and decree dated 19.3.2008 affirmed the R.S.A. No. 2592 of 2008 -4- findings recorded by the trial court and dismissed the appeal. I have heard the learned counsel for the appellants. No illegality or perversity could be pointed out by the learned counsel for the appellants in the findings recorded by the trial court and affirmed by the appellate court. Further, no misreading or misappreciation of the evidence available on record has been shown by the learned counsel for the appellants warranting interference by this court in the regular second appeal. The courts below had recorded a finding of fact that the plaintiffs were habitual offenders and three times prior to 7.11.1997 , they were imposed penalty by the defendants for theft of electricity. Further, while relying on the checking reports, Ex.P19 and Ex.D4, the courts below had recorded that at the time of checking, the signatures of Suresh Kumar, who was looking after the affairs of the factory, were taken below the writing in Hindi who acknowledged that at the time of checking, the meter was found lying on the table and he also agreed to pay the penalty to be levied for the theft of electric energy. No question of law, much less a substantial question of law arises in this appeal. In view of the above, there is no merit in this appeal and the same is hereby dismissed. There shall, however, be no order as to costs. December 8, 2008 (AJAY KUMAR MITTAL) gbs JUDGE