Regular Second Appeal No. 346 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 346 of 2011 Date of decision : February 24, 2011 M/s Ujjal Rice Sheller ....Appellant versus Punjab State Power Corporation Ltd. and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. H.K. Brinda, Advocate, for the appellant L.N. Mittal, J. (Oral) Plaintiff M/s Ujjal Rice Sheller has filed the instant second appeal. The plaintiff runs seasonal rice sheller. It was granted connection by the defendants/respondents in the year 2006-07. The plaintiff, however, noticed that the meter was recording excess consumption. The plaintiff gave application dated 26.2.2007 to rectify the same. The sheller was running at that time. However, defendants did not do the needful. After the season was over, supply of electricity to the premises of the plaintiff was disconnected on 28.3.2007. Some officials of the defendants visited the premises of the plaintiff on 9.5.2007. They Regular Second Appeal No. 346 of 2011 -2- reported that red phase of the meter was not working. On its basis defendant no. 2 Assistant Executive Engineer issued impugned letter dated 28.5.2007 requiring plaintiff to deposit ` 2,86,082/- being 33% in excess of the consumption actually recorded by the meter during the last six months. The said demand was challenged in the suit being illegal etc. Direction to redress grievance of the plaintiff made in letter dated 26.2.2007 was also sought. Defendants resisted the suit and inter alia, pleaded that suit is not maintainable in view of section 145 of the Electricity Act, 2003 (in short, the Act). The plaintiff did not file appeal before the competent authority under the provisions of the Act. Red terminal of the meter of the plaintiff was found missing at the time of checking on 9.5.2007. The meter was again got checked on 14.5.2007 by summoning Mobile Testing Service. As per finding of the said testing, assessment of load was calculated correctly and impugned demand was made by making calculation and assessment as per circulars of the Electricity Board. The impugned demand was justified by the defendants and was pleaded to be legal and valid. Various other pleas were also raised. Learned Civil Judge (Senior Division), Rupnagar vide judgment and decree dated 21.11.2009 decreed the plaintiff's suit declaring that impugned demand made by the defendants vide letter 28.5.2007 is illegal, unlawful, arbitrary and against rules and regulations. Accordingly, defendants were restrained from implementing the said letter. However, first appeal preferred by the defendants has been allowed by learned District Regular Second Appeal No. 346 of 2011 -3- Judge, Rupnagar vide judgment and decree dated 22.12.2010 holding that jurisdiction of civil suit is barred by section 145 of the Act. Consequently, suit filed by the plaintiff has been dismissed but liberty has been given to the plaintiff to file appeal before appropriate authority or appellate authority of the Electricity Board for challenging the impugned letter and the period spent in prosecuting the instant civil suit may be excluded. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that meter of the plaintiff was checked on 9.5.2007 whereas electricity supply to the plaintiff's premises had been disconnected on 28.3.2007. It was also pointed out that according to data download (DDL) of the plaintiff's electronic meter, red phase of the meter stopped working since 4.5.2007 i.e. long after the electricity supply had been disconnected on 28.3.2007 and therefore, the question of theft of electricity by the plaintiff did not arise. It was accordingly argued that plaintiff's case, therefore, does not fall within the purview of section 126 of the Act and consequently jurisdiction of civil court is not barred by section 145 of the Act. Reliance in support of this contention has also been placed on judgment of this Court in Dakshin Haryana Bill Vitran Nigam Limited, Punchkula and others versus Poonam Vashisth, 2009(2) RCR (Civil) 677. I have carefully considered the aforesaid contentions. Sections Regular Second Appeal No. 346 of 2011 -4- 126 and 145 of the Act are reproduced hereinunder:- “126. Assessment.- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. (2) The order of provisional assessment shall be served upon the 58 person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. (3) The person, on whom a notice has been served under subsection (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person. (4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him: (5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorized use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place. (6) The assessment under this section shall be made at a rate equal to one-and-half times the tariff rates applicable for the relevant category of services specified in sub-section (5). Regular Second Appeal No. 346 of 2011 -5- 145. Civil Court not to have jurisdiction.- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.” In the instant case, admittedly the premises of the plaintiff were checked on 9.5.2007. The defendants' version is that on the basis of said checking as well as subsequent testing by Mobile Testing Service on 14.5.2007, calculation and assessment of load and electricity charges was made and the impugned demand was raised. Consequently, it cannot be said that case of the plaintiff is not covered by section 126 of the Act. It is true that electricity supply to the premises of the plaintiff already stood disconnected before checking was done on 9.5.2007. However, if the defendants found that during the preceding six months, the meter did not record correct consumption on account of missing of red phase of the meter, the defendants made assessment accordingly and raised demand. The same would clearly fall within the purview of section 126 of the Act and consequently, jurisdiction of civil court is barred by section 145 of the Act. Judgment in the case of DHBVNL vs Poonam Vashisth (supra) is not applicable to the facts of the instant case although some observations made in the said judgment are favourable to the contention raised by counsel for the appellant. In that case, however, checking had been done on 6.11.1997 and demand had been raised vide letter dated 26.4.2002 and by then the Act Regular Second Appeal No. 346 of 2011 -6- (the present Electricity Act, 2003) had not even come into force. Moreover, in that case some Arbitrator had also been appointed and Arbitrator had passed order after hearing both the parties. Consequently, facts in the reported case were entirely different. Lower appellate court has referred to different judgments to arrive at the conclusion that jurisdiction of the civil court is barred by section 145 of the Act. Even otherwise on combined readings of sections 126 and 145 of the Act and taking into consideration the facts of the instant case, it is apparent that jurisdiction of civil court is barred by section 145 of the Act. Consequently, the said finding of the lower appellate court does not warrant interference in the instant second appeal. No substantial question of law arises for determination in this second appeal. It may be added that the lower appellate court has already given liberty to the plaintiff to challenge the impugned demand by filing appeal under the provisions of the Act. For the reasons recorded hereinbefore, I find no merit in the instant second appeal which is accordingly dismissed in limine. If the plaintiff files appeal before the competent authority under the provisions of the Act within two months from today, the appeal shall be decided on merits, in accordance with law and shall not be dismissed as time barred. ( L.N. Mittal ) February 24, 2011 Judge 'dalbir'