RSA No.415 of 2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.415 of 2006 (O&M) Date of decision: 12.5.2010 HVPNL and others ......Appellant(s) Versus Aakash Tubes Pvt. Ltd. Jind Road, Narwana ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Rajeev Godara, Advocate for the appellants. Mr. S.K. Garg Narwana, Advocate for the respondents. Rakesh Kumar Garg, J. (Oral) CM No.5567-C of 2010 Application is allowed subject to all just exceptions and the documents Annexure P-1 to P-6 are taken on record in support of the application for condonation of delay. CM No.837-C of 2006 Mr. Arun Kumar, The Managing Director, Uttar Haryana Bijli Vitran Nigam Limited, is present in Court. In the affidavit filed on behalf of the Executive Engineer, UHBVNL, Narwana filed today, it has been explained that under the regulations, an Executive Engineer is entitled to pursue the litigation on behalf of the Corporation. It has been further asserted in the affidavit that letter dated 26.5.2005 granting approval for filing this appeal by the Legal Remembrancer, Haryana was not received either in the office of Executive Engineer, Operation Division, UHBVNL, Narwana or in the office of SDO, Operation Sub Division, UHBVNL, Narwana There is delay of 99 days in filing this appeal. Notice of this RSA No.415 of 2006 (O&M) 2 application was given to the respondents. Reply has been filed on their behalf. After hearing learned counsel for the parties, delay of 99 days in filing this appeal is condoned. CM stands disposed of. RSA No.415 of 2006 (O&M) This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal filed by the plaintiff-respondent against the judgment and decree of the trial Court was decreed restraining the appellants from recovering the amount in question i.e Rs.234060.60 paise. Brief facts of the case are that the respondent is a consumer of the appellants having electric connection No.LS-15 and was paying the electricity bills regularly. The appellants issued a bill amounting to Rs.2,34,060.60 raising the demand without issuing any show cause notice. According to the plaintiff-respondent, the meter was regularly checked and the reading was also taken every month. However, on 9.5.1998, it was pointed out that one of the phase of the meter was not working and the appellants charged a sum of Rs.49897.20 on that account whereas now the appellants were trying to recover the amount of Rs.234060.60 paise from the respondent without any right. Thus, the necessity arose to file the present suit. The suit was contested by the appellants by raising various preliminary objections in the written statement, including that the Civil Court had no jurisdiction to entertain the present suit. On merits, it was admitted that electricity connection was installed in the premises of the plaintiff-respondent in April, 1996 and it was further submitted that on 9.5.1998 the meter in question was checked by M&P staff, Bhiwani and it was found that one phase of the meter of the respondent-firm was found RSA No.415 of 2006 (O&M) 3 dead and thus, 33% less consumption was found. The amount of Rs.49897.20 paid by the plaintiff was found illegal and on the basis of an objection raised by the Audit, a sum of Rs.234060-60 paise was worked out for the last preceding 6 months for less consumption of 33% and thus, the bill raised was correct on the account of the defective meter. Thus, dismissal of the suit was prayed for. From the pleadings of the parties, the trial Court framed the following issues: “1. Whether the electricity bill with due dated 27/28.3.2k regarding electricity connection No.LS-15 is highly excessive, unrecoverable amount of Rs.234060.60, illegal, arbitrary, on the ground mentioned in the plaint? OPP 2. Whether the plaintiff is entitled to relief of permanent injunction as alleged in the plaint? OPP 3. Whether the amount being recovered from the plaintiff is legal? OPD 4. Whether the civil Court at Narwana has no jurisdiction to try and entertain the present suit? OPD 5. Relief.” After hearing learned counsel for the parties, the trial Court decided all the issues in favour of the appellants and resultantly, the suit of the plaintiff was dismissed. It is relevant to point out at this stage that though the appellants had not led any evidence on the issue of jurisdiction and had not raised any worthwhile argument, yet the trial Court decided the aforesaid issues holding that jurisdiction of the Civil Court was barred on the basis of notification dated 17.1.1998 relied upon by the appellants, which reads as RSA No.415 of 2006 (O&M) 4 under: “Provided that no court shall take cognizance of any matter pertaining to the payment of charges due from any person to a licensee in respect of the supply of energy to him or make the recovery thereof unless- (i) he has exhausted all the remedies available tohim under the terms and conditions governing the supply of energy to him and (ii) he had deposited forty per cent of the amount outstanding against him, with the licensee.” Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff-respondent filed an appeal before the Lower Appellate Court which was accepted by the Additional District Judge, Jind vide impugned judgment and decree dated 24.6.2005. While accepting the appeal, the Lower Appellate Court under issue Nos.1 and 2 held that no notice was served upon the plaintiff-respondent for charging the amount of Rs.234060.60 on account of defective meter. It was further found that no defect was found in the meter by the staff of the appellant-Department who was regularly checking the meter and the amount cannot be charged on Audit objection as they were not competent to determine the amount. It was further found by the Lower Appellate Court that at the time of alleged inspection of the meter, the plaintiff-respondent was not present and no proper opportunity was given to him besides observing that there is no dispute that the meter was not tampered by the plaintiff-respondent. Thus, keeping in view the aforesaid finding on issues No.1 and 2, finding under issues no.3 and 4 were also reversed in favour of the plaintiff-respondent and the suit was decreed. Not satisfied from the aforesaid judgment and decree of the Lower Appellate Court, the defendants have filed the instant appeal RSA No.415 of 2006 (O&M) 5 challenging the impugned decree raising the following substantial questions of law said to be arising in this appeal: “(a) Whether prior notice is required for deciding the period of assessment once checking and defect in the meter is admitted? (b) Whether it was the duty of the plaintiff to represent before the higher authorities after receiving the bill? (c ) Whether the plaintiff was to avail the other remedies available to him as per notification dated 17.1.1998?” In support of this appeal, learned counsel for the appellants has vehemently argued that once the defect in the meter was admitted, no notice was required for assessment at the time of raising the demand. It was further argued by the learned counsel for the appellants that as per notification dated 17.1.1998 as reproduced in the foregoing paragraph, the plaintiff-respondent failed to exhaust the other remedies available to him before filing the suit and no finding has been recorded by the Lower Appellate Court in this regard. Learned counsel has further argued that admittedly, one phase of the meter in question was not working and according to the respondent's own case, they had deposited a sum of Rs.49,857/- as assessed by the S.D.O which was illegal and therefore, there was nothing wrong in raising the demand on the basis of audit objection. On the basis of the aforesaid argument, learned counsel for the appellants has submitted that the substantial questions of law as raised by him do arise in this appeal and the same is liable to be accepted and therefore, the impugned judgment and decree liable to be set aside. I have heard learned counsel for the appellants and perused the impugned judgment and decree. RSA No.415 of 2006 (O&M) 6 The facts of this case are not in dispute. While making inspection on 9.5.1998, one phase of meter in question was found to be defective by the inspection staff though no tampering by the plaintiff- respondent was found. It is also not in dispute that earlier a sum of Rs.49,857/- was deposited by the plaintiff-respondent as the penalty imposed by the appellants. Admittedly, the impugned demand of Rs.2,34,060.60P has been made by the appellant-Department, on the basis of an audit objection. There is nothing on record to prove that the aforesaid demand raised by the appellant is in consonance with the rules/regulations framed by the appellants, neither any such rule/regulation has been pleaded or relied upon by the appellants to justify the demand raised. Moreover, no notice had been given to the plaintiff-respondent before raising the aforesaid demand to enable him to submit any such objection/defence. Thus, the demand raised by the appellants is arbitrary and in violation of the principles of natural justice and is not sustainable at law. It is well settled that the jurisdiction of the Civil Court is much wider and the same cannot be ousted wherever the action of the opposite party is found to be illegal. Moreover, in the present case, the notification relied upon by the appellants does not impose any bar upon the plaintiff- respondent from approaching the Civil Court for any illegal demand raised by the appellants. No substantial question of law arises in this appeal. Thus, I find no merit in this appeal. Dismissed. May 12, 2010 (RAKESH KUMAR GARG) ps JUDGE