R.S.A.No. 3681 of 2008 (O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3681 of 2008 (O&M) Date of Decision:September 03, 2009 Mehar Singh ---Appellant versus Uttar Haryana Bijli Vitran Nigam Limited and another ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.O.P.Gupta,Advocate, for the appellant Mr.Monish Sharma, Advocate, for Mr. Narender Hooda, Advocate, for respondents No. 1 and 2 *** SABINA J. Plaintiff –Mehar Singh had filed a suit for declaration along with consequential relief of mandatory injunction. Civil Judge ( Junior Division), Panchkula vide judgment and decree dated 7.3.2008 dismissed the suit of the plaintiff. Aggrieved by the same, plaintiff preferred an appeal and the same was dismissed by Additional District Judge, Panchkula vide judgment and decree dated 17.10.2008. Hence, the present appeal by the R.S.A.No. 3681 of 2008 (O&M) {2} plaintiff. The facts of the case as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment read as under:- “Briefly stated, the plaintiff-appellant averred that he had been regularly paying the electricity bills with respect to his electric meter bearing Account No. B-02-18 installed in his poultry farm situated at Bhagwanpur, Tehsil and District Panchkula but the defendant No. 2 issued a notice dated 25.3.2002 imposing the penalty of Rs. 74,960/- upon the plaintiff wrongly, illegally and without any basis. After the imposition of the aforesaid penalty of Rs. 74,960/-, the defendants also disconnected the electric supply of the poultry farm of the plaintiff. Earlier also, the premises of the plaintiff were inspected by the Vigilance Department of the defendants on 16.1.2001, wherein it was found by the Vigilance Department that the Serial No. 2 lace wire had got broken due to its being rusty pursuant to which the replacement of the meter had been recommended. However, even during the checking in question, made by the employees of the defendants on 23.3.2002, on the basis of which the impugned notice dated 25.3.2002 was issued, between the period about 229 units of the electricity had been consumed. Therefore, the report made by the checking party of the defendants dated 25.3.2002 was wrong, illegal, null and void etc. Besides, when the premises of the plaintiff were raided on 23.3.2002, neither the plaintiff was present nor any R.S.A.No. 3681 of 2008 (O&M) {3} other person from the locality was joined by the raiding party as the only servant of the plaintiff was present at that time. Therefore, the plaintiff requested the defendants several times, that the impugned notice being wrong, illegal, null and void etc. be set aside and the impugned recovery be quashed but to no avail. In the end, the plaintiff prayed that a decree for declaration to the effect that the notice dated 25.3.2002 issued buy the defendants was liable to be set aside being wrong, illegal, null and void and ab initio, be passed in favour of the plaintiff and against the defendants. As a consequential relief, the plaintiff also prayed for a decree for mandatory injunction directing the defendants to restore the electric supply relating to the meter bearing account No. B-2-18 of the poultry farm of the plaintiff. 3. The defendants in their written statement while taking the preliminary objections with respect to maintainability, the plaintiff having not come to the court with clean hands and cause of action etc. controverted all the material assertions of the plaintiff and contended specifically that on 23.3.2002 the electric connection of the plaintiff was checked by the checking party of the defendants head by Shri R.K.Bhardwaj, AEE City Sub division, UHBNL, Panchkula in the presence of the plaintiff's representative and it was fund that the three face meter of the plaintiff bearing S,. No. 6683591 depicting the reading of 199910.6 was tilted and dead with the electricity supply running. Therefore, as per the rules of the R.S.A.No. 3681 of 2008 (O&M) {4} defendants Nigam, a notice dated 25.3.2002 qua the theft of the energy amounting to Rs. 74, 960/- was sent to the plaintiff for depositing the said amount within the time of the notice. The notice was received by the plaintiff on 25.3.2002 itself but the plaintiff did not deposit the requisite amount in time due to which the FIR qua theft or electricity dated 27.3.2002 had to be lodged against the plaintiff. The electric supply of the plaintiff was disconnected on 26.3.2002 vide CDO No. 32/7037 dated 23.2.2002. However, vide receipt dated 5.4.2002, the plaintiff deposited the amount of Rs. 38000/- on the orders of the Civil court, Panchkula dated 3.4.2002 and the electric supply to him was restored on 9.4.2002 vide SJO No. 97/968 of 5.4.2002. Since the electric meter of the plaintiff was found tilted and dead during the checking on 23.3.2002 and the report prepared on the spot in that regard by the checking party was correct, so vide impugned notice the penalty of Rs. 74,960/- had been rightly imposed upon the plaintiff which the plaintiff was accordingly liable to deposit and as such, no cause of action arises in his favour. In the end, the defendants prayed that the suit of the plaintiff be dismissed.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether notice dated 23.5.2001 issued by the defendants is illegal, null and void? OPP (2)If issued No. 1 is proved whether the plaintiff is entitled for R.S.A.No. 3681 of 2008 (O&M) {5} decree of mandatory injunction on the grounds mentioned in the plaint? OPP (3)Whether the suit is not maintainable in the preset form? OPP (4)Whether the plaintiff has no locus standi and cause of action to file the suit?OPD (5)Whether the plaintiff has concealed the true and material facts from the court? OPD (6)Whether the connection in the name of M/s Mehar Poultry Farm, VIII, Bhagwanpur having A/C No. B-2-18 is an industrial connection? OPD (7)Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. Plaintiff-appellant was running a poultry form in the premises in question where the electric connection bearing No. B-2-18 was installed. The premises of the appellant was checked on 23.3.2002 and a report Ex. D-1 was prepared. As per the same, the meter installed was tilted intentionally and dead stop (theft case) and supply was found to be running. Since it was a theft case, the connection was disconnected. A penalty of Rs. 74,960/- was imposed on the plaintiff. Hence, the plaintiff filed the suit. Parties led their evidence in support of their case before the trial court. However, from the checking report Ex. D-1, it was evident that at the time of checking it was found that the electric meter, in question was found to be “tilted” and “dead stop”. Since, the plaintiff had committed the theft of electricity, his electric connection was disconnected at the the time of R.S.A.No. 3681 of 2008 (O&M) {6} checking. Servant of the plaintiff was present in the premises of the plaintiff and he thumb marked the checking report. There was nothing on record to suggest that the officials of the department, who were performing their official duty, had made false checking report against the plaintiff because of some bias or enmity against the him The case of the plaintiff further was that the meter in question had not been tampered with and it was evident from the earlier entries that the consumption of the meter in question was as per the earlier entries. However, the plaintiff had failed to prove on record the earlier electricity bills to substantiate his plea that the consumption for the relevant period was in consonance with the previous years. The meter in question, was also sent to the laboratory for testing. As per the checking report, placed on record as Annexure A-3 (Ex. D-1), it was observed as under:- “The checking party observed that the meter is without wooden board on which the meter was actually fixed at site. However, the accuracy of the meter got disturbed in the titled position. This in in continuation of earlier report on dated 10.12.03. the meter is again packed and sealed in a cardboard box under the signature of Sh. Tara Chand, J.E.-I, 'OP' S/Divn. Barwala, Sh. Bhagat Ram J.E. And J.E. M & T Lab, Dkt.” Learned counsel for the appellant during the course of arguments has submitted that the appellant had been discharged in the criminal proceedings vide order dated 6.1.2009 passed by Chief Judicial Magistrate, Panchkula and hence, the suit of the plaintiff was liable to be decreed. However, there is no force in the submission made by learned counsel for the appellant that the decision given in the criminal case is not R.S.A.No. 3681 of 2008 (O&M) {7} binding on the civil court. In the civil proceedings, the defendant had been successful in establishing that the appellant had committed theft of electricity. In these circumstances, both the courts below had rightly dismissed the suit of the plaintiff as the plaintiff had failed to establish his case that he had not committed the theft of electricity. There is no illegality or infirmity in the orders passed by the courts below which call for interference by this Court. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE September 03, 2009 PARAMJIT