Regular Second Appeal No. 536 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 536 of 2011 (O&M) Date of decision : March 21, 2011 Dakshin Haryana Bijli Vitran Nigam Ltd. and another ....Appellants versus Sarla Gupta ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Mohnish Kumar, Advocate for Mr. Sudhir Kumar Hooda, Advocate, for the appellants L.N. Mittal, J. (Oral) CM No. 1429.C of 2011 This is application for condonation of delay of 212 days in filing the appeal. Heard. Very vague and general averments have been made in the application to seek condonation of long delay of 7 months in filing the appeal. It has been stated that after obtaining certified copies of judgment and decree of the lower appellate court, the case was processed for taking decision regarding filing of appeal and was then sent to Legal Regular Second Appeal No. 536 of 2011 (O&M) -2- Remembrancer at Panchkula to take final decision in the matter. However, it is not even mentioned in the application as to who processed the case initially and when and by whom case was sent to Legal Remembrancer for taking final decision in the matter. It is further alleged that the case was examined by the authorities at different levels and competent authority decided to file the appeal and advised accordingly. Again it is not mentioned as to which competent authority (probably Legal Remembrancer) took the final decision and when. It is further alleged that lot of time was spent in typing the documents, preparation of the appeal and signing the documents from the competent authority. Again these are very vague and general averments. Moreover, typing and signing of documents would not consume lot of time. The paper book runs into 49 pages. Paper book of 49 pages would not have taken even one day much less several days and months in typing. It is, thus, apparent that on the ground of procedural delay, being statutory body, the appellants want to take the benefit by seeking condonation of long delay of 7 months in filing the appeal without even making proper averments. Consequently, the application is found to be meritless and is, therefore, dismissed. RSA No. 536 of 2011 Since application for condonation of delay in filing the appeal has been dismissed, the appeal is liable to dismissal as time barred. However, even on merits, the appellants cannot succeed. Defendants Dakshin Haryana Bijli Vitran Nigam Ltd. and its Sub Divisional Officer, who were successful in the trial court but have been Regular Second Appeal No. 536 of 2011 (O&M) -3- unsuccessful in the lower appellate court have filed the instant second appeal. Respondent – plaintiff Sarla Gupta filed suit alleging that on 4.5.2006, some officers of the defendants checked the plaintiff's premises in the presence of plaintiff's son and found nothing objectionable. However, plaintiff's son demanded copy of the checking report. Thereupon, the checking party demanded bribe money and on refusal to meet the demand, false checking report was prepared. Thereupon, impugned memo dated 9.5.2006 was served on the plaintiff by the defendants requiring the plaintiff to deposit penalty of Rs 1,07,168/- to avoid criminal action. On her complaint to defendant no. 2, penalty amount was reduced to Rs 86,220/- which plaintiff had to deposit on 12.5.2006 under compulsion. In the suit the plaintiff challenged the aforesaid penalty including the checking report alleging the same to be illegal, arbitrary, imaginary and against the provisions of the Electricity Act, 2003 (in short, the Act). The plaintiff also sought mandatory injunction regarding refund of penalty amount deposited by her along with interest. The defendants broadly denied the plaint allegations. It was pleaded that plaintiff was found committing theft of electricity energy by bye-passing the meter. Connected load for domestic purpose on first floor was found to be 4.655 and on ground floor for non-domestic purpose was found to be 6.760. Consequently, proceedings under section 135 of the Act were initiated. Offer under section 152 of the Act for compounding the offence on deposit of Rs 86,220/- was made to the plaintiff, after deducting Regular Second Appeal No. 536 of 2011 (O&M) -4- ACD charges of Rs 21,000/-. The plaintiff accordingly deposited the disputed penalty amount and assured to remove the excess load. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Gurgaon vide judgment and decree dated 14.5.2009 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned District Judge, Gurgaon vide judgment and decree dated 16.3.2010 and thereby suit filed by the plaintiff has been decreed holding the checking report and imposition of penalty to be illegal, arbitrary and against the provisions of the Act and principles of natural justice. Plaintiff has been held entitled to refund/adjustment of the penalty amount of Rs 86,220/- deposited by her along with interest @ 12% per annum from the date of demand till recovery. Feeling aggrieved, the defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants contended that the plaintiff was found committing theft of electricity energy and also there was excess load and therefore, penalty was rightly imposed. The contention cannot be accepted. Plaintiff herself appeared in the witness box as PW1 and examined her son Sudhir Gupta PW2. Both of them have stated according to plaintiff's version that there was no theft of electricity energy nor there was excess load. The said evidence stands unrebutted. Defendants did not dare to lead any evidence. No official of the checking party has appeared Regular Second Appeal No. 536 of 2011 (O&M) -5- as witness to depose that the plaintiff was committing theft of energy or that there was excess load. Consequently, defendants' version in this behalf stands completely un-substantiated. Plaintiff's evidence in support of plaintiff's case stands completely unrebutted. Adverse presumption also arises against the defendants for not leading any evidence particularly for not examining any official of the checking party. In addition to the aforesaid, provisions of the Act have also been infringed with impunity by the defendants. Section 126 of the Act provides for provisional assessment of the electricity charges recoverable from the consumer found indulging in un-authorised use of electricity. In the instant case, however, no such provisional assessment was made. After provisional assessment, the consumer is entitled to file objection before the Assessing Officer who also has to afford reasonable opportunity of hearing to the consumer before passing final order of assessment. In the instant case, however, no such opportunity was either afforded to the plaintiff – consumer. Section 126 also provides period of seven days for deposit of the amount but in the instant case period of three days only was given to the plaintiff. Thus, provisions of section 126 of the Act have been violated. Moreover, under threat of criminal action, the plaintiff was forced to deposit the disputed amount of penalty. It was threatened that FIR would be lodged if the plaintiff did not deposit the amount. In this way, the plaintiff was also deprived of her right to file appeal under section 127 of the Act against the assessment of the electricity charges. It is, thus, apparent that defendants have miserably failed to Regular Second Appeal No. 536 of 2011 (O&M) -6- prove that the plaintiff was committing theft of electricity energy or there was excess load. In addition to it, provisions of the Act have also been infringed with impunity by the defendants and principles of natural justice have also not been complied with. The suit of the plaintiff has, therefore, been rightly decreed by the lower appellate court. The contention that the plaintiff was committing theft of electricity and there was excess load remains completely unsubstantiated as there is not even an iota of evidence on record in support of the said plea. For the reasons aforesaid, I find no merit in the instant second appeal which is completely frivolous and misconceived. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) March 21, 2011 Judge 'dalbir'