RSA No.1825 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1825 of 2008 Date of Decision: July 09, 2009 Hari Kishan ...........Appellant Versus Sub Divisional Officer and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.B.S.Tewatia,Advocate for the Appellant. ** Sabina, J. Hari Kishan-plaintiff filed a suit for declaration to the effect that notice No.32 of Rs. 1,15,370 payable upto 10.7.1998 in respect of connection No. FCI-583 is illegal, unlawful, null and void and further the letter dated 10.6.1998 regarding penalty of Rs. 1,08,900/- is also liable to be withdrawn. The Additional Civil Judge, Senior Division, Faridabad decreed the suit of the plaintiff with costs. Aggrieved by the same, defendants preferred an appeal. The said appeal was allowed by the Additional District Judge Faridabad vide judgment and decree dated 20.11.2007. Hence, the present appeal. The case of the parties, as noticed by the learned Additional Distinct Judge in paras 2 and 3 of its judgment reads as under:- “ 2. In brief, the case of the plaintiff/respondent is that he has electric connection in the name of Birender Bharti, owner of shed No.217, Hirdey Ram Colony, Mujessar, Faridabad. Though, RSA No.1825 of 2008 2 plaintiff has been paying the bill to the defendants regularly without any delay as the plaintiff was tenant under the owner and using the electricity bearing meter account No. PCI-582. It is alleged that the defendants have conducted a raid in the premises of the plaintiff on 12.6.98 in his absence. It is alleged that the raiding team has dis-connected not only the electricity connection of the plaintiff but has also removed their electricity meter. They were rubbing the paint and striking it with a screw driver as well as using iron blade on the lower part of the electric meter when he visited at the spot. Test report was prepared by the raiding team and charged the plaintiff with overloading of electricity against sanctioned load. They also lodged a criminal case of theft of electricity against him in Police station, Mujessar on 17.6.98. The defendants i.e. the raiding team has imposed a fine and penalty of Rs.1,08,900/- on the plaintiff by including the penalty for the last six months. However, out of this total fine and penalty, the plaintiff paid 50% of the amount to the defendants vide Receipt No.351 dated 17.6.98. It is alleged that in fact, the report of the team was false and concocted which in fact was conducted on the complaint of Line Man/Meter Reader as they have refused to pay a bribe of Rs. 50,000/- as demanded by him from the plaintiff. It is alleged that the load used by the plaintiff is shown in the test report as 25.938 KW against the sanctioned load of 19.610 KW. Though actually, he was using at that time only 12.131 KW. It is also alleged in the test report that there was a hole in the lower part of the meter through which by putting a small bamboo stick, RSA No.1825 of 2008 3 the meter can be stopped or slow down. In fact, this hole was made by the members of the party itself with the help of a screw driver and a blade. It is further alleged that the plaintiff has purchased a hydraulic machine on 4.6.98 and when the said electricity raid was conducted, it was not in a position to function as it is yet to be installed and thus, there is no question of using more than the sanctioned load of electricity by him. The plaintiff has also deposited 50% of the penalty and on his application for restoration of the connection on payment of Rs.250/- as restoration fees. It is alleged that the defendants have imposed the penalty and fine on the plaintiff for the last six months as shown in the bill but at the same time in the latest bill, the penalty is shown for the last seven months also. Though they have no such right to claim the same from him. The notice/bill No.32 for Rs.1,15,370/- payable upto 10.7.98 regarding electricity connection No.PCI-583 in the premises of the plaintiff is illegal, null and void and liable to be withdrawn or set aside by the defendants. Similarly, their letter No. 6661 dated 15.6.98 regarding penalty of Rs.1,08,900/- is illegal, null and void and not binding on the plaintiff and is thus, also liable to be withdrawn. It is further alleged that the defendants illegally and forcibly wants to dis-connect the electric connection of the plaintiff and to recover the amount in question for Rs.3000/- approximately from the plaintiff and thus, defendants have no right title and interest to do so. The plaintiff asked the defendants several times not to disconnect his electric connection and not to recover the amount RSA No.1825 of 2008 4 in question from the plaintiff but they have finally refused to admit his claim on 1.7.98. Hence, the cause of action. Thus, the plaintiff filed the suit for declaration that the impugned notice/bill no.32 for Rs.1,15,370/- payable upto 10.7.98 bearing connection No. PCI-583 is illegal, null and void and is liable to be withdrawn. Similarly, their letter No.6661 dated 15.6.98 regarding penalty of Rs.1,08,900/- is also illegal, null and void and not binding on the plaintiff and is liable to be withdrawn. He also sought a decree for permanent injunction restraining the defendants from recovering the amount of Rs.3000/- from the plaintiff and from dis-connecting the electric connection. 3.The defendants in their written statement have taken the preliminary objections that the suit is not maintainable in the present form. The plaintiff is estopped from filing the present suit on his own act and conduct. He has no cause of action and that he has not come to the Court with clean hands. The plaintiff has also failed to avail the proper remedy available with him before the department in appeal before the competent authority. Moreover, the suit is bad for mis-joinder and non-joinder of the necessary parties. The defendants by denying the claim of the plaintiff have alleged that infact the electric connection No.PCI-583 was checked on 12.6.98 and found connected load of 25.938 KW against sanctioned load on 19.610 KW beside a small hole found in the meter cover just below the disc of meter to which a small stick or film could be inserted to stop the disc so as not to record the consumption of energy when needed to deprive the legitimate RSA No.1825 of 2008 5 revenue of the defendants with their malafide intention. It is a case of theft of energy. A notice was served on Sh.Birender Bharti and imposed a penalty of Rs.2,01,036/- under the rules and regulations, out of which only 50% amount has been paid by the plaintiff in compliance of their notice to secure restoration of supply. The inspection team has conducted the checking as per rules and regulations and dis-connected the electric connection by taking into possession the impugned meter and have validly lodged a criminal case against him. It is denied that the penalty imposed on the plaintiff is wrong and illegal. However, it is as per rules and regulations, terms and conditions of electric supply. It is also denied that they have prepared a concocted report of checking and falsely claimed the bill by way of penalty etc. from the consumer. The remarks of the checking report was found duly attested by the plaintiff in whose presence the meter was checked, sealed and taken into custody by the investigation team. It is further alleged that relief regarding the machine in question has already been given to the plaintiff by the Appellate Authority i.e. XEN (Op) Faridabad on producing necessary documentary proof by the plaintiff. Even penalty was reduced proportionately in respect of un-authorised load. A valid amount of balance is outstanding against the plaintiff but he failed to deposit. However, they have validly shown it in the subsequent bills. The action of the defendants is valid and in accordance with their rules and regulations. The suit of the plaintiff is false and frivolous and is liable to be dismissed. They are not entitled to any RSA No.1825 of 2008 6 relief claimed by them. On the pleadings of the parties, the following issues were framed by the trial Court :- “1. Whether the bill No.32 of Rs.1,15,370/- and letter no. 6661 dated 15.6.98 regarding payment of Rs.1,08,900/- are illegal, null and void?OPP 2. Whether the plaintiff is estopped from filing the present suit by his own act and conduct ?OPD 3. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that this appeal deserves dismissal. The case of the plaintiff is that the raid was conducted by the department in his absence and on receiving the information, he reached the spot. Checking report was prepared and notice was issued to the plaintiff after obtaining his signatures. The learned Additional District Judge in its judgment observed that although the plaintiff had taken the plea that all the proceedings had been taken in his absence but he had admitted his writing and signatures at two places of the checking report( Exhibit PW1/A). During cross-examination, he also admitted that the copy of the checking report was given to him at the spot by admitting it correct as it had been prepared at the spot. He also admitted that the details of machine given in Exhibit PW1/A were correct although he denied that the load was correctly shown in the report. Plaintiff admitted that the checking report had been prepared at the spot. The department had no enmity against him. He had filed an appeal against the penalty imposed by the Superintending Engineer/Xen Operation of Electricity Department and the load for RSA No.1825 of 2008 7 hydraulic machine was corrected. The appeal filed by the plaintiff was decided vide Exhibit D3 by deleting the load on his new hydraulic machine. It has further been observed that although the plaintiff had filed an appeal before the Superintending Engineer/Xen (Operation) but he has not challenged the remaining checking report or assessment thereof which has been challenged by way of the suit. No complaint was lodged with regard to the alleged hole in the lower part of the meter. The learned Additional District Judge further observed that in rebuttal Netram Chauhan, Junior Engineer appeared in the witness box as DW1 and deposed that on 12.6.1998, the meter in question was checked and it was found that there was a hole in the meter with the help of which consumer was committing theft of electricity. The said fact was admitted by the plaintiff by making a writing on the checking report. A copy of the checking report was given to the plaintiff and notice was also served on him. Penalty was imposed on the plaintiff as per rules and regulations. After appreciating the entire evidence on record, the learned Additional District Judge observed that the raid was conducted on 12.6.1998 in the presence of Vikram Singh PW4 younger brother of the plaintiff by the department. A writing was also made on the report by Vikram Singh. The cutting admitting hole in the meter is also duly signed by the plaintiff. The only objection that was raised by the plaintiff before the competent authority against the report was that the load had been added qua his newly purchased hydraulic machine but the same was deleted vide order Exhibit D3 in appeal and the load was decreased. Admittedly, the plaintiff had deposited 50% of the amount of penalty vide receipt dated 15.6.1998 and it was held that the department/defendants were entitled to receive the balance amount of penalty. Learned counsel for the RSA No.1825 of 2008 8 appellant has failed to point out any error in the finding of the learned Additional District Judge while allowing the appeal and consequently decreeing the suit of the plaintiff. Thus, the premises of the plaintiff were raided by the department and he was found to be committing theft of electricity with the help of a hole in the meter. Checking report is duly signed by the plaintiff and he had filed an appeal challenging the checking report on the ground that his newly purchased hydraulic machine had been wrongly included while determining load. However, the said mistake was corrected in appeal by the competent authority. Thus, the learned Additional District Judge had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, this appeal is dismissed. ( Sabina ) Judge July 09, 2009 arya