RSA No.3098 of 2009 1 IN THE HIGH OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3098 of 2009 (O&M) Date of Decision: 24.08.2010 Mohinder Kumar Rajpal & Anr. ..Appellants Vs. Uttari Haryana Bijli Vitran Nigam Ltd. & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Vikram Singh, Advocate, for the appellants. Mr.Sudhir Kumar, Advocate, for Mr.Narender Hooda, Advocate, for the respondents. --- Vinod K.Sharma,J. (Oral) CM No.6057-C of 2010 For the reasons stated in the application, civil misc. is allowed. Order dated 17.05.2010 is recalled. Revision petition is restored to its original number. RSA No.3098 of 2009 This regular second appeal is directed against the judgment and decree dated 22.07.2009, passed by the learned courts below vide which suit filed by the plaintiffs/appellants for declaration with a consequential RSA No.3098 of 2009 2 relief of permanent injunction stands dismissed. The plaintiffs/appellants filed a suit for declaration with a consequential relief of permanent injunction, to challenge the notice dated 5.9.2005 issued by the respondents for clubbing their electric connections. In the notice issued it was stated that in case units are not clubbed, electric connection to plaintiff No.1 and the company plaintiff No.2 will be disconnected. Notice issued was challenged to be against the provisions of law, and sales manuals of the defendants/respondents. The suit was contested by the defendants/respondents by taking preliminary objection to its maintainability, suppression of true facts, estoppel, and jurisdiction of civil court. On merit, it was admitted that electric connection No.MS-78 and MS-79 were provided at the premises of the plaintiffs. The case of the defendants/respondents was that as per circular No.24/84, 27/89, 10/93 and 14/2005, where two or more connections are in the same name, and in the same premises, were to be clubbed. The connections being in the same premises, one in the name of husband, and second in the name of wife were required to be clubbed, as per sale circulars. Other averments on merits were denied. On the pleadings of the parties, the learned trial court framed the following issues:- 1. Whether the notice dated 5.9.2005 served vide memo No.1646/48 issued by the defendants is illegal, null and RSA No.3098 of 2009 3 void? OPP 2. Whether the jurisdiction of the civil court is barred? OPD 3. Whether this suit is not maintainable?OPD 4. Relief. One of the plaintiffs in support of his case examined himself as PW 1 and Bima as PW 2, and closed the evidence. The respondents/defendants examined Palvinder Singh SDO as DW 1 and tendered notice Ex.D.1, photo copy of certificates Ex.D.2 and D.3 and rough site plan Ex.D.4, as well as circulars Ex.D.5 to Ex.D.8 by way of documentary evidence. Learned trial court on issue No.1 held, that the stand of the plaintiffs/appellants, was that as both the connections are in the name of different persons, therefore, they should not be clubbed. Whereas, by placing reliance on the circulars Ex.D.5, Ex.D.6 and Ex.D.7, defendants contended, that as the connections were in the same premises were to be clubbed, as per rules circulated. Learned trial court by placing reliance on the sale circulars No.24/84 Ex.D.5, 27/89 Ex.D.6 and 10/93 Ex.D.7 held, that where two or more connections were existing in the same premises, they were to be clubbed. The learned trial court further held, that registration certificates issued by the Industrial Department i.e. Ex.D.1 and Ex.D.2, showed that both the units were situated on the same premises having common boundary wall, these were required to be clubbed, and decided issue No.1 against the RSA No.3098 of 2009 4 plaintiffs/appellants. Issue Nos. 2 and 3 were decided against the defendants as not pressed. Consequently suit was dismissed. In appeal findings recorded by the learned trial court were affirmed, and the appeal was also dismissed. Mr.Vikram Singh, learned counsel appearing on behalf of the plaintiffs/appellants contended, that following substantial question of law arises for consideration by this court. 1. Whether the judgment and decree passed by the learned courts below is the outcome of misreading of documentary evidence thus, perverse? In support of the substantial question of law learned counsel for the appellant referred to the sale circulars, on which reliance was placed by the defendants/respondents for clubbing the connections, and contended, that clubbing could only be done, if the two connections were in the same name, in the same premises. Connections in the name of both the plaintiffs, were in the different names, therefore, could not be clubbed. On consideration I find force in the contention raised by the learned counsel for the plaintiffs/appellants. Sale circular No.24/88 Ex.D.5 reads as under:- “ Please refer to this office memo No.183/SS/IR-60 (90) dated 20.9.84 and subsequent Sales Circular No.21/84 issued RSA No.3098 of 2009 5 vide memo No.ch.73/SS/126 dated 3.10.84 on the subject cited above where in it has been desired that a consolidated certificate for your circle of superintendence was required to be submitted by 15th September, 1983 confirming that the clubbing of loads has been carried out in your circle as per these instructions. It is progratted to state that such confirmation has not been received from all the Circles. The Board in its meeting held on 22.10.84 has decided that the clubbing of meters be done so that the consumers are not able to circumvent the laws and cause revenue loss to the Board by having two meters at one premises. Subject to the production of any of the following certificates by the concerned department on or before 1.11.84 only one meter would be allowed: (a) Certificate of Industries Department. (b) Sales Tax certificate (an application for certificate not to be entertained) (3) Income Tax certificate, if any, showing that two units at one premises are really two independent units. Only then the consumer would be eligible to have separate meters. It is, therefore, once again to impress upon you that the instructions already issued and the above decision of the Board are meticulously complied with an the requisite certificate is RSA No.3098 of 2009 6 now furnished by 30th of November, 1984, positively. You are further directed to submit a statement showing the total nos of connections and also the number of connections detected as working on more than one meter in the same premises for industrial category of consumers, for the information of the Board. In case Some difficulty is being experienced by the field officers in clubbing of the load on account of system constrains, the individual cases should be referred to this office for detaining specific approval for relaxation. Sale Circular No.10/939 Ex.D.7 reads as under: “ Please refer to this office sales Circular No.24/84 issued vide memo no.Ch.79/SS-126 dated 14.11.84 and sales circular no.27/89 issued vide memo No.Ch.131/SS-126 dated 27.7.89 on the above subject. References are still being received from certain field officers seeking clarifications regarding permitting more than one unit in a premises. It is to be reiterated that existing instructions are quite clear on the subject. The idea is that the consumers are not allowed to circumvent the law and split the loads and cause revenue loss to the Board. The instructions need to be following in true spirit they are issued. It should be RSA No.3098 of 2009 7 ensured that the supply of the two conniptions allowed in a premises should not inter-mingle with each other and adequate steps could be ensured for that.” Whereas sale circular No.14/2005 Ex.D.8 reads as under: “ Please refer to Sales Circular No.27/89 dated 27.7.1989 and S.C.10/93 dated 29.3.1993 wherein it was communicated that clubbing of load in the same premises should be done in order to prevent circumvention of the laws and loss of revenue to the Nigam by the Industrial Consumers. Instances have also come to the notice of the Nigam that a large number of such connections especially under the NDS category are still running in the same premises and have not been clubbed. The Nigam has now decided that immediate action be taken for clubbing two or more NDS connections in the same name which exist in a premises and are contributing towards same type of business/commercial activity for which one month notice be issued to all such consumers. It should be clearly intimated to such consumers that in the event of their failure to do so their connections are liable to be disconnected. The idea is that the consumers are not allowed to circumvent the law and split the load; and cause revenue loss to the Nigam. RSA No.3098 of 2009 8 Further all the SDOs/JEs in-charge of the sub-office should note that in the event of detection of any such connections in their area, which have not been clubbed and regularized, action will be taken against them. This should be brought to the notice of all concerned for strict and meticulous compliance.” Reading of the above sale circulars show, that it is only in case that both the connections are in favour of same consumer, and in the same premises then only these could be clubbed. Sale Circular Ex.D.5 referred to above clearly provides, that if the income tax certificate showing the two units at one premises are really proved to be independent units, then the consumer is entitled to have separate meters, as per circular Ex.D.7 it is provided that instructions were clear and unambiguous which did not need any clarification. Similarly in Ex.D.8 instructions have been issued for implementing the decision, i.e. Ex.D.5 referred to above. Reading of the above three circulars, on which reliance was placed, show that it is only in case two connections in the same premises and are in the name of same persons, then only these can be clubbed, not in case two separate units are running on the same premises. One of the units being run in the premises is a proprietary concern, whereas other unit is of a company registered under the Companies Act. It is well settled law, that a company registered under the RSA No.3098 of 2009 9 Companies Act, has its own independent legal identity which has independent of share holders and the Directors. Merely because plaintiff No.1 also happens to be the Director of plaintiff No.2, it cannot be said that the connections are in the same names, so as to invoke the sale circulars Ex.D.5. Judgment and decree passed by the learned courts below, therefore, is outcome of misreading of documentary evidence and therefore, perverse. Substantial question of law raised, is answered in favour of the appellants and against the defendants/respondents. Consequently, this appeal is allowed. Judgment and decree passed by the learned courts below are set aside, and the suit filed by the plaintiffs/appellants is decreed, but with no order as to costs. (Vinod K.Sharma) 24.08.2010 Judge rp