R.S.A. No. 3634 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3634 of 2007 (O&M) Date of decision: 12.1.2009 S.D.O. UHBVNL, City Sub Division Panipat and others ....Appellants Versus M/s Sehjad Trading Company Panipat ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. R.A. Sheoran, Advocate, for the appellants. Mr. S.K. Sharma, Advocate, for respondent No. 1. ***** VINOD K. SHARMA, J (ORAL) C.M. No. 10149-C of 2007 This is an application under Section 5 of the Limitation Act for condoning the delay of 34 days in filing the appeal. It has been averred in the application that the judgment and decree dated 10.5.2007 was prepared by the copying agency on 15.5.2007. However, the appellant being a government agency, had to take permission from the higher authorities, which was, in fact, obtained but due to lapse on the part of the concerned clerk, file was put up on wrong shelf, which resulted in delay of 34 days in filing the present appeal. Notice of the application was given. R.S.A. No. 3634 of 2007 (O&M) -2- Learned counsel appearing on behalf of the respondent conceds that the delay of 34 days in filing the appeal be condoned. In view of the stand taken by the learned counsel for the respondent and also keeping in view that the condonation of delay would only entitle the appellants to get matter adjudicated on merit, this application is allowed and delay of 34 days is condoned. R.S.A. No. 3634 of 2007 This regular second appeal is directed against the judgment and decree dated 10.5.2007 passed by the learned lower appellate Court decreeing the suit of the plaintiff for declaration with a consequential relief of mandatory injunction. The respondent/plaintiff brought a suit for declaration and mandatory injunction on the ground that it was a consumer of meter account No. W3/882 installed at the premises of the plaintiff and the regular payment was being made towards consumption charges. The plaintiff is said to be proprietorship firm. Defendants claimed that the premises of the plaintiff-firm were checked on 25.2.2003 and the meter was removed and checked by A.E.C.M. & T Lab, Karnal. On the basis of report of the lab, a demand of Rs.1,52,110/- was raised against the plaintiff-firm. The plaintiff sought relief of declaration primarily on the plea that checking of the meter was not done in his presence and also that the demand raised was in violation of principle of natural justice and contrary to the statutory provisions of law as no notice before imposing the penalty was issued to the plaintiff/respondent. Though the learned trial Court dismissed the suit, judgment R.S.A. No. 3634 of 2007 (O&M) -3- and decree has been reversed by the learned lower appellate Court by observing as under: - “The claim of the defendant that the meter was removed in the presence of the Inspecting Team and the plaintiff and it was converted into a sealed parcel at the spot so as to rule out the possibility of its tampering at any stage till the time it was examined in the Lab and signatures of the plaintiff and members of the Inspecting Team were also obtained on the sealed parcel is falsified even from their own evidence. It is borne out from the statement of DW1- Ajmer Singh that the meter was not removed in the presence of the Inspecting Team, rather it was removed by a Junior Engineer after the inspecting Team left the spot and said Junior Engineer has not been examined to prove that it was removed in the presence of the plaintiff and was converted into a sealed parcel and the signatures of the plaintiff were obtained on the parcel so as to rule out the possibility of its being tampered with till the time it was examined in the Lab. It supports the claim of the plaintiff that the meter was not converted into any sealed parcel when removed from the spot. Therefore, it cannot be said that till the time, the meter was examined in the Lab, it remained in safe custody and had not been tempered with and as such, the report of R.S.A. No. 3634 of 2007 (O&M) -4- M&T Lab cannot be read to the disadvantage of the plaintiff. Moreover, if it is assumed to be true that till the time the meter was examined in the Lab, it remained safe and intact and on examination, seals affixed on it were found fake/duplicate which by itself is not sufficient to make it a case of theft and unless it is further proved that by tampering with the seals, the plaintiff had made some alterations in the mechanism of the meter to abstract the energy unauthorisedly. As per Sales Circular No. 27/97 of the department, it was mandatory for the SDO concerned to afford the plaintiff an opportunity of personal hearing before imposing the penalty. Relevant provisions of said Sales Circular read as under:- Penalty imposed on the basis of raid conducted by the Vigilance Agency. It is also a regular feature in the Board that Vigilance Party of the Board conducts raid on the premises of the consumers and on the basis of their reports, consumers are charged penalties etc. for unauthorized extension of load of electricity or theft of energy. The competent authority of the Board has issued detailed instructions of the R.S.A. No. 3634 of 2007 (O&M) -5- procedure to be followed in such cases but it has been observed that penalties are imposed on the consumers without following the prescribed procedure. The requirement of law is that proper prescribed procedure is to be followed and before imposing penalty on the consumer notice is required to be issued to the consumer. It should be ensured that a clear seven days is given to the consumer before imposing penalty in such cases.” For said reason also, the impugned order is liable to be set aside. On the same ground, the order imposing penalty was set-aside by the State Consumer Dispute Redressal Commission, Haryana in case titled Naresh Kumar Gupta Rice & General Mills Vs. H.S.E.B. & Ors. 1994 LJR 338 . ” Learned counsel appearing on behalf of the appellants vehemently contends that the learned lower appellate Court was not justified in reversing the judgment of learned trial Court, which was passed on appreciation of evidence. There is no force in this contention. The learned lower appellate Court was right in holding that the demand raised was not justified being in violation of statutory provisions of law as well as in violation of principle of natural justice as admittedly, no notice was R.S.A. No. 3634 of 2007 (O&M) -6- issued to the plaintiff/respondent before imposing penalty. The learned lower appellate Court also rightly came to the conclusion, that the stand of the defendants that meter was removed in presence of the plaintiff by inspecting team stood belied, in view of evidence led in support of case set up. The finding recorded by the learned lower appellate Court is, thus, based on appreciation of evidence. No substantial question of law arises for consideration by this Court in this regular second appeal. Dismissed. (Vinod K. Sharma) Judge January 12, 2009 R.S.