RSA No.1828 of 2010 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1828 of 2010 Date of decision: July 04, 2011. Dakshin Haryana Bijli Vitran Nigam Ltd. & Ors. ... Appellant(s) v. Sat Narayan Aggarwal ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri K.S. Malik, Advocate, for the appellant(s). Shri Pankaj Maini, Advocate, for the respondent. Kanwaljit Singh Ahluwalia , J. (Oral): Present regular second appeal has been filed by the defendants- Nigam to the suit. The respondent-plaintiff instituted a suit for permanent injunction praying that the appellants be restrained from raising demand of Rs.2,31,875/- and furthermore, they be directed not to disconnect the electric connection. Briefly stated, the case as set out by the respondent-plaintiff shows that he had obtained an electric connection from the appellant- defendants in the year 2001 and had been making the payment till 5.4.2004. In the second week of June, 2004, bill No.1237 dated 5.6.2004 was received by the respondent-plaintiff in which sundry charges amounting to Rs.2,31,875/- were levied on account of objections raised by the Accounts Branch of the Nigam. According to the plaintiff-respondent, this demand RSA No.1828 of 2010 -: 2 :- was illegal. In the written statement filed, it was stated that the unit in which the electric connection has been obtained by the respondent-plaintiff is in an unauthorized colony, therefore, as per Government instructions, Rs.25/- per square yard are to be payable by the consumer. The trial court after conclusion of the pleadings of the parties, framed the following issues:- 1. Whether the demand of Rs.2,31,875/- is illegal, null and void and plaintiff is entitled to relief of permanent injunction restraining the defendants from disconnecting electric supply on the basis of impugned demand? OPP 2. Whether the plaintiff is entitled to mandatory injunction directing the defendants to send periodical bills to the plaintiff on the basis of actual consumption? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form? OPD 4. Whether the plaintiff has not come to the court with clean hands? OPD 5. Whether the civil court has got no jurisdiction to try and entertain the present suit? OPD 6. Relief. The trial court returned a finding that the plaintiff has failed to prove that the unit in which the electric connection has been installed is in an authorized colony and thus dismissed the suit with costs. The lower appellate court after appreciation of the evidence, came to the conclusion that it has been duly proved by the consumer that the area in which the unit RSA No.1828 of 2010 -: 3 :- is being run by the respondent-plaintiff is in an authorized colony. It accepted the appeal and set aside the judgment and decree of the learned lower court. The court further held that the demand raised by the appellant- defendants is barred by limitation. The Court relied upon Section 56 of the Indian Electricity Act to hold that no such charges are recoverable after a period of two years from the date the same became due. It will be apposite to reproduce the following findings given by the lower appellate court:- “... According to the appellant, his premises is situated within the industrial area which has been approved by District Town Planner and Industrial Department Haryana and kept reliance upon the site plan Ex.P3 which has been proved by the appellant while examining Fakir Chand, the official from the office of District Town Planner, Hisar. According to him site plan Ex.P3 is pertained to the Sector 11 Hisar. Ashok Jain Assistant Director Industrial Safety and Health Hisar has been examined as PW2. According to him previous unit M/s Panna Lal Oil and General Mills Limited to whom appellant succeeded had been sanctioned by Chief Inspector of Factory, Haryana Chandigarh vide letter Ex.P2. Sale deed Ex.P1 has not been questioned by the respondents. The court below wrongly observed that the premises of the appellant are situated in an unauthorized colony whereas from duly proved site plan Ex.P3, by PW3 coupled with the statement of Fakir Chand PW2. From sale deed Ex.P1 and circular Ex.P2 it is very much clear that the premises of the appellant are situated in the industrial area which has already been proved by competent authority. Appellant had been paying House-tax, this fact is clear from the receipts Ex.P8 and Ex.P9. Onus shifted upon the respondent to prove that the premises of appellant are not situated within the improved industrial area. They instead of disproving the version of the appellant, rather, RSA No.1828 of 2010 -: 4 :- admitted the version of the appellant. Krishan Sarup SDO of the respondent when appeared into witness box as DW1, in his cross examination, stated he was not aware where the premises of the appellants were situated. He admitted he was not in possession of any record to say whether the premises of the appellant was situated in unauthorized or authorized area. He admitted that when the respondent released the electricity then prior to it officials of the respondents inspected the site. ...” In the grounds of appeal, following questions have been formulated as substantial questions of law:- 1. Whether the suit of the plaintiff for permanent injunction without seeking declaration is not maintainable? 2. Whether the jurisdiction of the civil court is barred under Section 145 of the Indian Electricity Act, 2003? 3. Whether the officials appellants are entitled to recover the amount as development charges for releasing the elctric connection in unauthorized colony as per sale circular while the plaintiff failed to prove that his premises is situated in authorized colony of the Government? 4. Whether a bona fide mistake committed by Nigam not charging development charges while releasing electric connection can be rectified later on coming to know the same at the time of audit? 5. Whether the findings of the learned District Judge are against the evidence and law? Learned counsel for the appellants has failed to justify as to how the amount could be demanded from the consumer after the period of two years from the date it became due. The finding returned by the trial RSA No.1828 of 2010 -: 5 :- court that in view of Section 56 of the Act, the amount could not be demanded, could not be dislodged by counsel for the appellants. Furthermore, regarding the fact, whether the locality where the electric connection was installed is located in an authorized colony, the lower appellate court has returned a finding after appreciating the evidence on record. This Court in second appeal will refrain from re-appreciating and re-appraisal of the evidence. Shri K.S. Malik, Counsel appearing for the appellants, has laid much emphasis on the fact that the suit for permanent injunction was not maintainable without seeking declaration to the effect that the demand of Rs.2,31,875/- was illegal. Suffice it to say that it was specifically pleaded in the plaint that appellants are not entitled to recover the amount as the unit is situated in the colony which is duly recognized and it was also specifically stated that the demand made by the appellants is illegal. This fact has been considered by the lower appellate court holding that it was time barred. On facts, no substantial question of law as projected arises. Therefore, no interference is warranted. Hence, the present appeal is dismissed. [Kanwaljit Singh Ahluwalia] July 04, 2011. Judge kadyan