State Consumer Disputes Redressal Commission
Pspcl Nawanshahr & Another vs Bharat Bhushan on 13 October, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR -37 A, CHANDIGARH
First Appeal No.186 of 2022
Date of Institution : 10.03.2022
Reserved on : 13.09.2023
Date of Decision : 13.10.2023
1. PSPCL Nawanshahr, City Urban, Garshankar Road,
Nawanshahr, District SBS Nagar, through its SDO.
2. PSPCL Nawanshahr, Garshankar Road, Nawanshahr, District
SBS Nagar, through its XEN.
........Appellants/Opposite Parties
Versus
Bharat Bhushan son of Om Parkash, resident of Pandora Mohalla,
Tehsil Nawanshahr, District SBS Nagar.
.....Respondent/Complainant
Appeal under Section 41 of Consumer
Protection Act, 2019 against the order
dated 03.12.2021 passed by the District
Consumer Disputes Redressal
Commission, SBS Nagar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Present:-
For the appellants : Sh. N.S. Bhardwaj, Advocate For the respondent : Sh. Arjun Kundra, Advocate
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The appellants/opposite parties i.e. PSPCL Nawanshahr & another, through their XEN have filed the present appeal under 2 First Appeal No.186 of 2022 Section 41 of the Consumer Protection Act, 2019 (in short the 'Act') being aggrieved by the impugned order dated 03.12.2021 passed by the District Consumer Disputes Redressal Commission, SBS Nagar (hereinafter referred as the "District Commission"), whereby the complaint filed by the respondent-complainant had been partly allowed.
2. Briefly, the facts of the case as made out by the complainant-Bharat Bhushan before the District Commission are that he was the user/owner of one electric connection account bearing No.3000420051 (DS) SL-3.960 installed at his residence. The complainant had been paying the electricity charges but subsequently he was shocked to receive a notice No.1456 dated 09.10.2020 whereby an amount of Rs.2,10,876/- was demanded as additional charges. The complainant had inquired about the same from the OPs and it was disclosed by them that the amount so demanded was on account of some energy charges, taxes and other charges commencing w.e.f. 29.10.2015 till 13.08.2020. As per the version of the complainant, the OPs had claimed the energy charges for the period of last five years. The OPs had threatened the complainant to disconnect the electricity connection in case the amount so raised was not paid. However, the complainant had deposited an amount of Rs.50,000/- on 30.01.2021 under protest so that the electricity connection be not disconnected.
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3. The complaint was filed with the prayer that the OPs be directed to withdraw the demand of Rs.2,10,876/- as demanded vide notice dated 09.10.2020 towards energy charges, fixed charges, rental and other charges. Further it was prayed for issuance of direction to OP to adjust an amount of Rs.50,000/- which had been recovered from him and also to pay Rs.15,000/- as compensation and Rs.15,000/- towards litigation expenses.
4. In the complaint notice was issued to the OP who appeared through counsel and raised certain preliminary objections stating therein that the complaint was not maintainable and allegations made in the complaint were false and frivolous. There was no cause of action to the complainant to file complaint. The complainant had not approached the District Commission with clean hands and without having any locus standi. The other averments made in the complaint were denied. However on merits, the connection issued by the OPs to the complainant and the sanctioned load was admitted but the other averments made in the complaint were denied.
5. By considering the averments made in the complaint and the reply thereof filed by the OPs, the complaint was partly allowed vide order dated 03.12.2021. The relevant portion of said order as mentioned in para No.10 and 11 is reproduced as under :-
"10. The OPs should issue electricity bills to complainant as per his consumption consumed by him. The complainant approached office of OPs various times in this regard but OPs 4 First Appeal No.186 of 2022 failed to do so. It is bounden duty of the OPs to issue the electricity bills to complainant as per his actual consumption, but this practice was not done by OPs, which is against the rules of PSPCL & Electricity Supply Instruction Manual. She requested OPs many times in this regard but OPs failed to do so. Moreover, the OPs have failed to produce on record any ME Lab Report for justifying its contention of sending excessive demand for 5 years (1688 days). It means that the OPs have slept for the said period of 5 years (1688 days) and suddenly OPs awaken up and raised demand for the said period of 1688 days which is not justifiable. As such, an adverse inference drawn against OPs and the OPs are liable for the relief claimed as prayed by complainant in this complaint.
11. In view of above facts and circumstances of the case, we partly allow the complaint of the complainant and OPs are directed to set aside the demand of Rs.2,10,876/- raised vide notice No.1456 dated 09.10.2020. The amount deposited by complainant, if any, out of disputed amount, with them be adjusted in future consumption bills."
6. The appellants/OPs being aggrieved by the said order have filed the appeal before this Commission by raising a number of grounds.
7. There was a delay of 46 days in filing of the appeal. M.A. No.361 of 2022 was filed for condonation of delay which was supported by an affidavit. The delay was condoned vide order dated 22.03.2022 and said M.A. was disposed off.
8. Mr. N.S. Bhardwaj Advocate, learned counsel for the appellants submits that due to technical error in the SAP, billing was stopped and bills were issued from 29.12.2015 to 13.08.2020 whereas during that period the meter was physically connected at the site and the respondent had been enjoying the interrupted supply of the electricity. However, in the SAP system connection was showing 5 First Appeal No.186 of 2022 disconnected due to said technical error during said period. Learned counsel has also submitted that the respondent/complainant had consumed total 26783 units for 1688 days and the respondent/complainant was receiving the bills but the exact amount was not mentioned due to said error. The bills were received but the payable amount was reflected as '0' which is apparent from the bills itself. Learned counsel has further submitted that the respondent/complainant had never intimated/informed to the appellants/OPs regarding this material fact and it cannot be said to be a case of any 'deficiency in service' on the part of the appellants/OPs. The respondent/complainant was well aware that he had been using the electricity during said period but still it was reflecting '0' and no efforts were made to verify the same. Learned counsel has further submitted that after detection of technical error, the respondent/complainant was informed vide notice dated 09.10.2020 by sending calculation sheet which was received by the respondent/complainant wherein it was reflected total 26783 units during a period of 1688 days. Learned counsel has also submitted that the theft had occurred in the premises of the complainant and the seals of the meter were found to be tempered with as found vide inspection dated 24.12.2015 and thereafter the theft, disconnection flag was issued for the respondent/complainant and meter was physically connected at the site and the complainant was getting the interrupted supply of electricity. However due to SAP system, the connection was showing disconnection flag due to technical error. 6 First Appeal No.186 of 2022 Learned counsel has further submitted that the OPs are entitled to raise the demand as it was a technical error and the units as mentioned in the bills were consumed by the consumer and the validity of bills raised on the basis of units consumed by the customer/consumer during said period cannot be a case of any 'deficiency of service' as per the judgment of the Hon'ble Supreme Court of India of case "M/s Prem Cottex Vs. Uttar Haryana Bijli Vitran Nigam Limited & others" C.A. No.7235 of 2009. Learned counsel has further submitted that as per Clause 93 of ESIM, the amount was so levied on the basis of internal audit was rightly claimed/charged in the subsequent bills and as such the appellants/OPs were well within their rights to recover the due as the amount was missed/skipped or escaped from their notice. Learned counsel has further submitted that as per Electricity Supply Instruction Manual 2018, wherein it has been provided that during such situation where there may be such cases where bills due for relating to previous time can be considered as arrears on account of under assessment or demand/load surcharge as pointed out by the internal auditor/detected by the authorized officers even due to negligence of PSPCL employees or due to some technical defect in the metering equipment or even due to application of wrong tariff/multiplication factor or due to any mistake in connection or other irregularities etc. In all such like situations, the separate bills can be issued by giving complete details of the charges so levied and such charges are to be considered as arrears to be adjusted in the 7 First Appeal No.186 of 2022 subsequent electricity bills till the payment is made. Learned counsel has further submitted that the period of limitation of two years was to commence from the date on which the electricity charges became first due as per Section 56(2) and as such the additional or supplementary demand even can be claimed even after the expiry of period of limitation in case of any such mistake or bonafide error. In support of this argument, learned counsel has relied upon the judgment of the Hon'ble Supreme Court of case Assistant Engineer (D1), Ajmer Vidyut Vitran Nigam Limited & another Vs. Rahumatullah Khan alias Rahamjulla (2020) 4, SCC-650. Learned counsel has further submitted that the District Commission while passing the impugned order has recorded the wrong facts by showing that no show cause notice was issued to the complainant to explain his conduct immediately after 29.12.2015 and the complainant had remained unheard. It was further mentioned in the order passed by the District Commission that neither the opposite parties handed over the memo of inspection to the complainant under proper acknowledgment as required under law as per Sales Regulation. However no such inspection was carried out at the site and no seizure was made. Learned counsel has further submitted that consumer had been receiving bimonthly bills showing consumption of units for the said period and the consumption of the electricity had not been disputed and in such scenario/circumstances no notice was required to be issued. Learned counsel has further submitted that it is not the case of the consumer that units were wrongly recorded in the 8 First Appeal No.186 of 2022 bills for the period from 29.12.2015 to 13.08.2020 or he had not consumed such units. He himself had consumed the said units and he had not paid any amount for such consumption. The Sales Regulation No.112.5.1 and 112.5.2 deal with Memorandum of Inspection & Seizure. It is not a case of the appellants/OPs or the consumer that any inspection or checking was ever carried out or any other evidence, instrument, apparatus was ever seized from the premises of the consumer and as such in absence thereof, the quoted Sales Regulation No.112.5.1 and 112.5.2 are not applicable to the case in hand. Learned counsel has further submitted that the impugned order reflects that OPs had admitted in some paras of their written statement that the bill had been correctly recorded/sent but there was some defect in the SAP system. The act of the OPs is not a case of any fault on their part but still wrong finding has been recorded. At the end, learned counsel has submitted that the SAP system has not shown any defect with regard to said meter and it was also not checked manually by the service provider. Action had already been taken against the M/s Sterling Transformers as is clear from A-5. The District Commission has given a finding that the OPs should have issued the electricity bills to the complainant as per his consumption consumed by him but the bills were sent for the unit consumed by the complainant and the consumer was also informed about the technical error vide notice dated 09.10.2020 alongwith calculation sheets and it was duly received by him. 9 First Appeal No.186 of 2022
9. Mr. Arjun Kundra Advocate, learned counsel appearing for the respondent/complainant has submitted that the order passed by the District Commission is based on proper appreciation of facts and evidence and detailed findings have been recorded by the District Commission and it cannot be said to be a case that the stand taken by the OPs has not been taken into consideration. All documents and evidence produced by both the parties were considered and thereafter order was passed by partly allowing the complaint by setting aside the demand of Rs.2,10,876/- as raised vide notice dated 09.10.2020 and only a direction was issued that the amount so deposited by the complainant, if any, out of the disputed amount was to be adjusted in the future consumption bills.
10. We have heard the arguments raised by learned counsel for both the parties. We have also carefully perused the order passed by the District Commission which is under challenge and all other documents available on the file. We have also perused the judgment cited by the learned counsel for both the parties and also the relevant provisions with the assistance of both the counsel representing the parties.
11. The factum of filing of complaint, reply thereof, partly allowing the complaint by the District Commission and thereafter filing of appeal by the OPs before this Commission being aggrieved by the order passed by the District Commission are not in dispute. 10 First Appeal No.186 of 2022
12. Admittedly the respondent/complainant has been user and owner of electric meter connection installed at his residence. As per case of the complainant he had been paying the electricity connection charges but subsequently he was shocked to receive the notice dated 09.10.2020 whereby the additional demand of Rs.2,10,876/- was raised. On inquiry it was found that the amount so demanded by the appellants was on account of energy charges, taxes and other charges commencing from 29.12.2015 till 13.08.2020. The complaint was filed by the complainant to withdraw the demand of Rs.2,10,876/- as raised by the appellants/OPs. However, as per the stand of the appellants/OPs it was a case of technical error in the SAP system and due to that the billing was stopped but on detection of the fault, a demand notice was issued for the period from 29.12.2015 to 13.08.2020. During said period, the meter was found to be physically connected at the site but due to technical error in SAP system, bill for amount '0' were issued. The respondent/complainant had consumed total 26783 units for 1688 days. Even the respondent/complainant had been receiving bimonthly bills where consumption of units for that period was reflected but energy charges, taxes and other charges were not included in the bills due to said error. The respondent/complainant had been receiving bills showing the amount to be '0'. As per the stand of the appellant/OPs it was a technical error and the respondent/complainant was informed by giving notice dated 09.10.2020 alongwith calculation sheet which was duly received by 11 First Appeal No.186 of 2022 the respondent/complainant. Said amount of Rs.2,10,876/- was genuine and was due to consumption of electricity charges consumed during the period of 29.12.2015 to 13.08.2020. Admittedly as per the version of both the parties, the issuance of bill and amount mentioned therein and in not issuing the complete bill and also the period as well as number of units as reflected in the bills are not in dispute.
13. As per the version of the complainant, the additional demand of Rs.2,10,876/- was raised by the appellants/OPs as reflected in notice dated 09.10.2020. It was stated to be the demand on account of some energy charges, taxes and other charges commencing with effect from 29.12.2015 till 13.08.2020. As per the version of the complainant he had been depositing the amount as per the bills issued from time to time. It is not the case of the appellants/OPs that the complainant had been paying the amount of the electricity consumed by him and the amount of Rs.2,10,876/- was demanded additionally by the OPs stating to be the amount towards energy consumption for the said period. The complainant had stated to the OPs that he had been paying the amount regularly but in case any amount was additionally claimed by the OPs it could have been by giving any notice as to for what purpose said amount was demanded. However, as per version of the OPs it was a case of technical error in the SAP system due to which the billing was stopped and bills for the period with effect from 29.12.2015 to 13.08.2020 could not be reflected in the bill. Even it was mentioned in the reply itself filed by the OPs that during said period the meter was 12 First Appeal No.186 of 2022 physically connected at the site and the consumer had been enjoying the interrupted supply of electricity but subsequently it was found that in the SAP system the connection was showing disconnected due to technical error during the disputed period. After detection of technical error the consumer had immediately informed vide notice dated 09.10.2020 after preparing the calculation sheet which was also received by the complainant. It was also the stand of the appellants/OPs that an amount of Rs.2,10,876/- was genuine and it was due to consumption of electricity for the period w.e.f. 29.12.2015 to 13.08.2020.
14. By considering the averments made in the complaint and oral arguments of the OPs it appears that it was a case of negligence/ignorance on the part of both the parties. The duty of OPs was to issue bills by reflecting consumption in the shape of units and amount towards that consumption. After getting the bill of consumption of electricity, the complainant was also supposed to pay the amount but during the said period the bills were issued but against the bills the amount '0' was mentioned. The complainant thought it proper not to pay anything as no amount was mentioned. The units so consumed by the complainant had not been taken into consideration. Even no efforts were made to verify as to why the bill was reflecting '0' but the complainant had been using/consuming electricity. It is a case of total carelessness. However, on the part of the OPs it was not only the negligence but they were deficient in discharging their duties and especially under the circumstances when 13 First Appeal No.186 of 2022 units were mentioned then it could have been verified as to why the amount was coming in '0'. The OPs are well versed with the system of not only of issuing bills but for checking the matter etc. and they are expertise in their respective field. The fault or loss if any could have been detected much earlier. However for a longer period no attention was paid to this lapse. On the part of the OPs, it has been submitted that it was a case of technical error and said technical error could not come in their notice.
15. By considering these different versions on the part of the complainant as well as the OPs, we cannot shut our eyes while dealing with the different provisions regarding payment of arrears arising due to consumption of electricity. In case there is a delay it is necessary to know as to how the arrears are to be claimed by the OPs. It is also to be seen as to upto what extent the amount of arrears can be claimed and in what method. The mode of payment of arrears not originally billed is provided under Instruction No.93.1 of the Electricity Supply Instructions Manual (Updated till 30.06.2017) which is reproduced as under:
"93. PAYMENT OF ARREARS NOT ORIGINALLY BILLED:
93.1: There may be certain cases where the consumer is billed for some of the dues relating to previous months./years or otherwise as arrears on account of under assessment/unauthorized use of electricity or demand / load surcharge pointed out by Internal Auditor/ detected by the authorized officers either owing to negligence of the PSPCL employees or due to some defect in the metering equipment or due to application of wrong tariff/multiplication factor or due to mistake in connection or other irregularities/malpractices etc. In all such cases, separate bills shall be issued giving complete 14 First Appeal No.186 of 2022 details of the charges levied. Such charges shall be shown as arrears in the subsequent electricity bills regularly till the payment is made. Supplementary bills shall be issued separately giving complete details of the charges in regard to theft cases, slowness of meters, wrong connections of the meter and unauthorized of use electricity etc. In such cases the copy of relevant instructions under which the charges have been levied shall also be supplied to the consumer for facilitating the quick disposal of cases by consumer forums if approached by the consumer."
16. On perusal of said provision, it is clear that in certain cases, where the consumer is billed for some of the dues relating to previous period as arrears, the same may be on account of under assessment or unauthorized use of electricity or due to fault/negligence of PSPCL employees or even due to some defect in the metering equipment or due to application of wrong tariff or even due to any mistake in connection or other irregularities/malpractices, the separate bills are required to be issued by giving complete details of the charges so levied. Such charges are considered as arrears in the subsequent electricity bills regularly till the payment is made. For that purpose supplementary bills are required to be issued separately by giving complete details of the charges even in case where there are allegations of theft or slowness in the meter or wrong connections of meter or even unauthorized use of electricity. In such situations, the copy of relevant instructions are required to be supplied to the consumer/s for facilitating the quick disposal of the case but in the present case, it was not done. Neither the details were supplied nor any intimation thereof was given to the complainant. Even no supplementary bills were issued by giving complete details of the charges.
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17. Further, Instruction No.93.2 of the Electricity Supply Instructions Manual (Updated till 30.06.2017) relates to the period of limitation as provided u/s 56(2) of the Act. As per said provision, the amount sought to be recovered cannot be recovered after a period of two years from the date when such amount became due for the first time, unless the same has been shown/reflected continuously as recoverable as arrears of charges for electricity supplied. Meaning thereby, such amount which is sought to be recovered is to be reflected continuously as arrears of charges for the electricity so supplied and maximum period for recovery is two years. In case, the consumer finds any difficulty to make payment of arrears in lump sum, he/she may move application for allowing the payment of such arrears in easy instalments.
18. Instruction No.93.3 of the Electricity Supply Instructions Manual is relevant in this context, which is reproduced as under:
"93.3 Allowing Installments for Supplementary Assessment:
The consumer may sometimes find it difficult to make payment of such arrears in lump sum and may make representation for allowing the payment of such arrears to be made in installments. Such a representation must come from the consumer within the grace period i.e. within 10/15 days of the receipt of the bill. A notice to this effect shall be incorporated on the bill itself. However, it may be clarified that the representation shall not entitle stay to the consumer from the payment of installment(s). In fact the consumer seeking installments shall deposit not less than 25% of the billed amount so as to show his earnestness to pay the assessed amount in installments.
19. It is also relevant to mention here that in case any arrears are due, the responsibility of the same is required to be 16 First Appeal No.186 of 2022 fixed as to who was the officer/official responsible for the delay. The loss so suffered by the department be recovered from the concerned employee/employees as per opinion/observation made by the Hon'ble Supreme Court as expressed in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation reported as 2010 (5) SCC 459 and Lucknow Development Authority v. M.K. Gupta AIR 1994 SC 787. Hon'ble Supreme Court in M.K. Gupta's case (supra) held as under:
"When the court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries."
20. The Distribution Licensee has a right to test any consumer meter and related equipment, either at the site or in the laboratory, in case there is a reasonable doubt about the accuracy of the meter. In such situation, the consumer is also required to cooperate in conducting the test but in the present case no such practice had been done by the appellants/OPs.
21. The District Commission had partly allowed the complaint of the complainant by setting aside the demand of Rs.2,10,876/- as raised vide notice dated 09.10.2020 by the OPs. The amount so 17 First Appeal No.186 of 2022 deposited by the complainant, if any, was out of disputed amount by adjusting in the future consumption bills. Although, it has been observed in para No.8 of the order passed by the District Commission that there was a huge difference in the bills issued by the OPs to the complainant and further it has also been observed that there was some defect in SAP system. However, immediately thereafter the District commission has stated the action of the OPs as 'deficiency in service' and 'unfair trade practice'. Thereafter, by considering this fact it was concluded that the OPs had failed in discharge of their duties whereas it was the duty of the OPs to issue electricity bills to the complainant as per actual consumption but it was not done and the same was against the Rules of PSPCL and Electricity Supply Instruction Manual by observing that the OPs had slept over the matter for a longer period of 1688 days and suddenly woke up by raising demand of said period of 1688 days which was stated not to be justified. By considering these reasons the complaint filed by the complainant was partly allowed and demand raised by the OPs of Rs.2,10,876/- was set aside.
22. Admittedly, at one point of time the bills were being dispatched to the complainant by the OPs and same were received by the complainant but none of them had bothered to see as to why this contradiction was there in the bills as when units had been consumed and bill was reflecting '0' amount. It was the duty of the OPs to inform immediately in case there was any defect in SAP system fault at any point of time but it was not brought to the notice of 18 First Appeal No.186 of 2022 the complainant. However, as per stand of the OPs that due to SAP system the meter was showing disconnected flag due to technical error. The complainant/consumer had been receiving bimonthly bills which were showing consumption of units during that period but energy charges, taxes and other charges were not getting included in the bills due to said technical error. However, on detection of technical error subsequently, the complainant was informed vide notice dated 09.08.2020 alongwith calculation sheet which was received by the complainant. As per version of the OPs, this fact was come to their notice after a period of approximately five years. Meaning thereby, the OPs had slept over the matter for a longer period of more than five years which shows their negligence while discharging their duties. Nowhere it has been mentioned in the reply or even in the oral arguments that due to that technical error in SAP system the same situation had arisen to any other customers or not. No such evidence has been brought on record by the OPs to prove this fact that there was defect/error in SAP system qua to complainant only. As per version of the OPs, the SAP system was not showing any defect with regard to said meter and it was also not checked manually by the service provider and thereafter action had already been taken against the service provided. Meaning thereby the appellants/OPs have admitted fault on the part of service provider, which is the agency of the appellants/OPs. It is also admitted fact that the complainant had received the bills for the said 19 First Appeal No.186 of 2022 period amounting to rupee '0' but he even did not bother to contact the electricity department to rectify the same.
23. In view of the reasons and the facts as mentioned above and the requirement of principle of natural justice, we are of the considered opinion that the appellants are entitled to recover the amount of bills for the previous two years but in installments not beyond that by supplying the proper detail as mentioned in above regulations. The judgments as relied upon by the appellants as well as the respondent are not applicable in the present case.
24. In view of above detailed discussion, said Instructions of the Electricity Supply Instructions Manual (Supra) and also in the interest of justice, the appeal is partly allowed and the appellants are directed to recover the amount of bills only for the previous two years i.e. from 14.08.2018 to 13.08.2020 after adjusting the amount of Rs.50,000/- already deposited by the complainant. It is made clear that before recovering the arrears of previous two years, the appellants/OPs are directed to supply the full details of consumed units on bimonthly basis alongwith applicable charges as usually charge by the PSPCL in regular electricity bills but without imposing any penalty charges. The order dated 03.12.2021 passed by the District Commission is modified to this extent only.
25. Since the main case is decided, the pending applications, if any, are also disposed of.
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26. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases and due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER October 13, 2023 (MM)