Punjab-Haryana High Court
Punnu Ram vs Dhbvnl And Ors on 13 November, 2014
RSA-2435-2013 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA-2435-2013
Date of decision: 13.11.2014
Punnu Ram
..... Appellant
Versus
Dakshin Haryana Bijli Vitran Nigam Ltd. and another
..... Respondents
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
PRESENT: Mr. RS Sharma, Advocate for the appellant.
R.P. NAGRATH, J.
This Regular Second Appeal (RSA) is directed against the judgment of lower Appellate Court accepting the appeal filed by defendant-respondents, and dismissing the suit of appellant for permanent injunction. The appellant is consumer of electricity connection bearing account No. ASID-0348 installed in his premises at village Ahlisadar, Tehsil and District Fatehabad. The respondents issued him the notices dated 30.1.2011 demanding a sum of ` 34,734/- on account of loss to Nigam and ` 20,000/- towards compounding of offence vide memo Nos. 225 and 226 on the basis of checking report dated 29.1.2011. These notices were challenged on the ground that the appellant was not indulging in theft of energy by taping 2/c incoming PVC. The checking RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -2- was not done in the presence of appellant and memo of seizure has not been provided to the appellant. It was the duty of the defendant- respondents to keep the meter intact. Even appellant's meter has not been got checked from any laboratory. The main contention was that before issuing the notice, the appellant was not afforded opportunity of hearing nor detail of the amount calculated by the respondents was sent. Even the checking staff was not entitled to enter the premises of the appellant without the proper authority. No independent witness was even associated by the checking staff.
2. The respondents in the written statement pleaded that premises of the appellant were checked on 29.1.2011 and he was found committing theft of electricity by direct supply from 2/c incoming PVC. The appellant refused the officials to remove the meter and rather snatched the PVC thus both meter and PVC could not be taken into custody. The respondents also prepared checking report and took photographs of the site. The appellant even refused to append his signatures on the checking report.
3. Learned trial Court framed the following issues from the pleadings of the parties:-
"(i) Whether the memos No. 225 and 226 dated 31.01.2011 issued by the defendants on the basis of checking dated 29.01.2011 are wrong, against law and facts, illegal, null and void, arbitrary, against the principles of natural justice, without affording opportunity of being heard and liable RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -3- to be set aside on the grounds mentioned in para 3 of the plaint? OPP
(ii) If issue No. 1 is decided in favour of plaintiff then whether the plaintiff is entitled to consequential relief of injunction as prayed for?
OPP
(iii) Whether the Civil Court has no jurisdiction to entertain and try the suit? OPD
(iv) Relief."
4. On discussion of the evidence and provisions of the Electricity Act, 2003 (for short 'the Act'), the learned trial Court observed as under:-
"15. Now coming to the facts of the present case. Herein, the impugned notices Ex. P1 and Ex. P2 were issued by the department not under Section 126 of the Act. The same were rather issued by the department under Section 135 of the Act, thereby implying that it was seeking to recover the amount not under the provisions of Section 126 rather under Section 135 of the Act. So, assessment of the amount was not within the domain of defendants. Rather, it was within the exclusive domain of Special Court as contemplated in section 154 (5) of the Act. Viewed from this perspective, the impugned notices are not tenable in the eyes of law and the defendants are not entitled to RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -4- recover the amount stipulated in the notices by arrest and detention of the plaintiff. That being the position, the plaintiff is entitled to the injunction prayed for.
16. At the same time I would like to point out that the consequential relief prayed by the plaintiff cannot be granted to him because by way of injunction no person can be restrained from pursuing the legal remedy available to them under law. Therefore, the relief to reconnect the electric connection of the plaintiff cannot be granted to him.
17. It has come on the file that the amount of ` 34,734/- has been deposited vide electricity bill Ex. P3 with the defendants-Nigam at the instance of Court and reconnection has been given to the plaintiff. Since the impugned notices have been held to be not tenable in the eyes of law and defendants are not entitled to recover the amount stipulated in the notices, therefore, the amount is liable to be given back to the plaintiff. However, since the plaintiff was found to be using the electric energy in violation of terms and conditions of supply, the defendant-Nigam would be within its rights to disconnect the electric supply of the plaintiff as envisaged under Section 147 of the Act. Hence, issues No. 1 and 2 are decided in RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -5- favour of plaintiff against defendants to the extent stated above."
(emphasis supplied) On appeal filed by the defendant-respondents, the lower Appellate Court, set aside the judgment and decree passed by the trial Court and dismissed the suit of the plaintiff-appellant.
5. Learned counsel for the appellant has proposed the following substantial questions of law:-
"(i) Whether the findings having been recorded by the 1st Appellate Court on misreading and misrepresentation of pleadings and evidence both, involve a substantial question of law or not?
(ii) Whether the judgment and decree of the 1st Appellate Court is required to be set aside and reversed on account of being perverse and unsustainable in the eyes of law and more particularly when it is found that the findings recorded therein are based on perfunctory and superficial approach.
(iii) Whether the judgment and decree of 1st Appellate Court is not self contradictory having patient and obvious defects therein?
(iv) Whether the judgment and decree of the 1st Appellate Court can be termed as findings of the RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -6- facts or not?
(v) Whether to accept the appeal and set aside the order of Ld. Trial Court, by way of ignoring the admission made by Ex. D2 (Photograph) can be sustained in the eyes of law?
(vi) Whether the oral evidence of the checking team is admissible regard the snatching of PVC cable and meter both?
(vii) Whether to accept the appeal, by without seeing the findings given by Ld. Trial Court on the same issues, can be sustained in eyes of law?
(viii) Whether the appellant was present at the time of alleged checking?
(ix) Whether non-joining any independent witness during checking is correct?
(x) Whether the notices under Section 135 of Electricity Act 2003 deprives the appellant from filing the objection or appeal against the provisional assessment notice?
(xi) Whether the checking report and notice are illegal, null and void?"
6. I have heard learned counsel for the appellant and perused the judgments passed by both the Courts below and also the paper-book.
7. The bone of contention of learned counsel for the appellant was that provisional assessment was in fact required to be made strictly in RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -7- terms of Section 126 of the Act before raising the demand. Section 126 of the Act reads as under:-
"126. Assessment. -(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by an other person benefitted by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.
RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -8- (4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him.
(5) If the assessing officer reached to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized used of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.
(6) The assessment under this section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5).
Explanation. - For the purposes of this section,-
(a) "assessing officer" means an officer of the State Government or Board or licensee, as the case may be, designated as such by the State Government;
(b) "unauthorized used of electricity" means the usage of electricity-
RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -9-
(i) by any artificial means; or
(ii) by a means not authorized by the
concerned person or authority or
licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the
usage of electricity was authorized; or
(v) for the premises or areas other than those for which the supply of electricity was authorized."
8. It is apparent that the appellant was being proceeded against for the theft of energy by direct supply as the notice was issued to the plaintiff-appellant under Section 135 of the Act providing the punishment for theft of energy. I am of the view that the appellant by filing suit for injunction just about 3-4 days after the issuance of the memos has been successful in his attempt to prevent the criminal proceedings which could be lawfully initiated against him.
9. Mandeep Singh, Junior Engineer of the respondents was examined as DW-1 who proved the checking report Ex. D-1 as well as the photographs and the evidence of checking of the connection has been accepted by both the Courts below. Therefore the respondents were competent to issue notice under Section 135 of the Act. Learned lower Appellate Court observed as under:-
"11. ........in case of The Executive Engineer and another Vs. M/s Sri Seetaram Rice Mill, 2012 (3) RCR RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -10- (Civil) 633, it was held by the Hon'ble Apex Court of the Land that the provisions of sections 126 and 135 of the Act of 2003 are distinct and different in nature and which operate in different fields and have no common premise in law. Section 135 of the Act of 2003 relates to the offences and penalities. Then, section 126 of the Act of 2003 would be applicable to the case where there is no theft of power but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the expression 'un-
authorized use of electricity'. Since, the plaintiff was found committing theft of power so, the defendants were competent to issue impugned notices under Section 135 of the Act of 2003 and the validity of the same can't be challenged by way of suit. Thus, the findings recorded to the contrary are hereby ordered to be reverse and the suit filed in this regard is not maintainable."
10. It would be appropriate to refer to sub-section 1A of Section 135 of the Act, which reads as under:-
"(1A) Without prejudice to the provisions of the Act, the licensee or supplier, as the case may be, may upon detection of such theft of electricity, immediately disconnect the supply of electricity: RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -11-
Provided that only such officer of the licensee or supplier, as authorized for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorized shall disconnect the supply line of electricity:
Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hours from the time of such disconnection:
Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment;
(2) Any officer of the licensee or supplier as the case may be, authorized in this behalf by the State Government may --
(a) enter, inspect, break open and search any place or premises in which he has reason to RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -12- believe that electricity has been, is being, or is likely to be, used un-authorizedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, is being, or is likely to be, used for unauthorized use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence. (3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -13- (4) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act."
11. Section 152 of the Act deals with composition of offences. It reads as under:-
"152. Compounding of offences. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Appropriate Government or any officer authorized by it in this behalf may accept from any consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act, a sum of money by way of compounding of the offence as specified in the Table below:
TABLE Nature of Service Rate at which the sum of money for Compounding to be collected per Kilowatt (KW)/Horse Power(HP) or part thereof for Low Tension (LT) supply and per Kilo Volt Ampere(KVA) of contracted demand for High Tension (HT) (1) (2)
1. Industrial Service twenty thousand rupees;
2. Commercial Service ten thousand rupees;
3. Agricultural Service two thousand rupees;
4. Other Services Four thousand rupees: RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -14-
Provided that the Appropriate Government may, by notification in the Official Gazette, amend the rates specified in the Table above.
(2) On payment of the sum of money in accordance with sub-section (1), any person in custody in connection with that offence shall be set at liberty and no proceedings shall be instituted or continued against such consumer or person in any criminal court.
(3) The acceptance of the sum of money for compounding an offence in accordance with sub-
section (1) by the Appropriate Government or an officer authorized in this behalf empowered in this behalf shall be deemed to amount to an acquittal within the meaning of section 300 of the Code of Criminal Procedure, 1973 (2 of 1974).
(4) The Compounding of an offence under sub-
section (1) shall be allowed only once for any person or consumer."
12. In view of the aforesaid provision the action of the respondents could not be possibly challenged in an injunction suit unless the action was attacked on the ground of malafides. The appellant could have defended the proposed action on criminal prosecution being launched without payment of the amount pursuant to the notice and could contend that he is not prepared to compound the offence, but he has RISHU KATARIA 2014.12.04 17:04 I attest to the accuracy and authenticity of this document RSA-2435-2013 -15- thwarted criminal proceedings by seeking stay of action and got the connection restored during pendency of the suit on payment of certain amount which relief was ultimately declined by the trial Court also. The trial Court declined the relief of injunction ultimately from restraining the defendants from disconnecting the electricity connection and against that finding, the appellant did not file appeal before the lower Appellate Court. If that be so, there was no question of granting any injunction to the appellant with regard to the notices for which the respondents were competent to issue.
13. I am of the view that lower Appellate Court has not committed any such illegality, for rasing any substantial question of law particularly in the facts and circumstances of the case. No merit. Dismissed.
November 13, 2014 ( R.P. NAGRATH )
rishu JUDGE
RISHU KATARIA
2014.12.04 17:04
I attest to the accuracy and
authenticity of this document