RSA No. 3906 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3906 of 2008(O&M) Decided on : 04-02-2009 Subhash Chand ....Appellant VERSUS Dakshini Haryana Bijli Vitran Nigam Limited and another ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Paramjit Singh Goraya, Advocate for the appellant MAHESH GROVER, J This appeal by the plaintiff is directed against the judgments of the learned Trial Court dated 16.11.2004 and the First Appellate Court dated 15.12.2007. The premises of the appellant were checked on 23.1.2001 and the meter in the said premises was found to be tampered with. The plaintiff- appellant filed a suit for declaration and injunction seeking a decree to the effect that notice dated 24.1.2001 issued by respondent no.2 and the consequent order dated 8.3.2001 passed by respondent no.1 in the appeal is illegal, null and void and not binding on the appellant. The order is liable to be set aside as it raises a demand of Rs. 91,783/- alongwith interest at the rate of 18 % per annum upon the appellant arbitrarily. It was pleaded by him that his electricity connection bearing no. ASP 141 is situated in his premises from which he is carrying out his business of oil expeller at Mall Godown road, Palwal and he has been RSA No. 3906 of 2008 (O&M) 2 regularly paying electricity consumption charges. On 23.1.2001 the premises were checked and notice bearing no. 163 dated 24.1.2001 was issued to him and respondent no.2 demanded a sum of Rs. 91783/- as penalty for the alleged fake seals. It was pleaded that this notice is without jurisdiction and was issued by respondent no.2 in an illegal manner. The plaintiff-appellant further pleaded that he had filed an appeal against notice which was issued to him on 24.1.2001 before respondent no.1 and the Appellate Authority without hearing him and without consideration of his contention passed an order on 8th March, 2001 reiterating the demand which was made upon him earlier. The respondents who contested the suit took up the plea that the premises were checked by the authorised persons on 23.1.2001 and found yellow phase of the meter connected in a reverse manner into the meter i.e. incoming connected without going to the terminal and outgoing lead connected with incoming terminal. The seals were also found fake. A case of theft was accordingly detected. The checking report was also prepared at the spot and copy was given to the plaintiff-appellant at the spot. Penalty of Rs. 91,783/- was imposed vide letter no. 163 dated 24.1.2001. A representation was made by the plaintiff-appellant to the Superintending Engineer, Faridabad who checked and verified all the papers and establisehd the theft. Notice of the penalty was, therefore, pleaded to be genuine and valid. It was also pleaded that after hearing the appellant the order was passed. The parties went to trial on the following issues:- 1. Whether notice dated 24.1.2001 bearing its no. 163 demanding a sum of Rs.91,783/- as penalty from the plaintiff and order dated 8.3.2001 passed by defendant no.1 are RSA No. 3906 of 2008 (O&M) 3 illegal, null and void ineffective, arbitary, without jurisdiction and against the natural justice and law and are not binding upon the plaintiff and are liable to be set aside as alleged? OPP. 2. Whether the plaintiff is entitled to mandatory injunction as alleged? OPP. 3. Whether plaintiff has no locus standi and cause of action to file the present suit? OPD. 4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD. 5. Whether suit is not maintainable in the present form? OPD. 6. Relief. The learned Trial Court came to the conclusion that the premises had been checked in the presence of the appellant and therefore concluded that the demand had been validly raised. It was also held that due notice was given to the appellant before passing of the order on 8th March, 2001. The suit was accordingly dismissed. The contention of the respondents was also noticed approvingly that no notice was required to be given if the person is found indulging in theft. In appeal, the findings of the learned Trial Court were affirmed. In Regular Second Appeal before this Court preferred against the aforesaid judgments of the learned Trial Court and the First Appellate Court, learned counsel for the appellant contended that no notice was given to the appellant before passing of the order on 8th March, 2001. It was also contended that on 23.1.2001, the premises were checked and on 24.1.2001 itself the notice was issued imposing penalty which does not give any RSA No. 3906 of 2008 (O&M) 4 details. It was contended that since the time gap between 23rd January, 2001 and 24th January, 2001 was so brief, the principles of natural justice have been violated. Reliance was placed on Division Bench judgment of this Court rendered in case titled as 'M/s Tirupati Industries versus Punjab State Electricity Board & Ors' 2000 (2) CCC 377. I have heard learned counsel for the appellant and have perused the impugned judgments. It has been noticed by both the Courts below that the meter in the premises of the appellant was checked by the staff of the respondents on 23.1.2001 in the presence of the appellant, which on checking was found to be having fake seals and even the wires had been tampered with so as to obtain a reverse connection in order to avoid the connection with the terminals so as to evade the correct reading. The checking report Ex. D.W1/A was prepared at the spot in the presence of the appellant which was duly signed by him. The report was also handed over to him and a note had been written on the checking report which was to the following effect:- “Yellow phase of the meter inversely connected in the meter i.e. Incoming lead connected with outgoing terminal and outgoing lead connected with incoming terminal. Meter terminal seal found fake.” Learned counsel for the appellant has not been able to counter this aspect of the matter which makes it clear that he was made aware of the material against him. Thereafter, the appellant preferred an appeal against the demand which was raised vide notice dated 24.1.2001 and the same was determined on 8th March, 2001 by giving an adequate opportunity to the appellant. Annexure P-4 is an order which has been passed to that effect. RSA No. 3906 of 2008 (O&M) 5 No evidence was produced before the learned Trial Court in support of the plea which has been raised by the appellant or even to off set the allegations which were made by the respondents in the notice regarding theft of electricity. In this view of the matter, the contentions raised by the learned counsel for the appellant are hollow. The judgment cited by the learned counsel for the appellant is also not applicable to the facts of the case for the reason that in that case the premises were checked in the absence of the consumer and, therefore, the observations of the Court in the aforesaid judgment flow from the premise that principles of natural justice stood violated. It was in these circumstances that the other incidental factors weighed with the Courts such as checking of the meter in the laboratory etc. In the instant case, the appellant was made aware of all the material against him in the checking report which was made in his presence. He failed to put any material on record in support of the plea that he was not indulging in the theft of electricity. In view of the aforesaid discussion, the concurrent consistent findings of facts recorded by both the Courts below do not warrant any interference. No substantial question of law has been shown to have arisen for the consideration of this Court. Moreover, the appeal is also barred by delay of 25 days in refiling and 39 days in filing the appeal, which has not been explained satisfactorily. Therefore, the appeal being totally devoid of any merit is hereby dismissed. February 4, 2009 (Mahesh Grover) rekha Judge