Punjab-Haryana High Court
Pinkcassia Tourist Complex vs Punjab State Electricity Board & Others on 11 August, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
RSA No.1533 of 2013 (O&M)
Date of decision: 11.08.2014
Pinkcassia Tourist Complex, Ropar
-----Appellant(s)
Vs.
Punjab State Electricity Board & others.
-----Respondent(s)
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Anil Kshetarpal, Sr.Advocate with
Mr. Aditya Kochar, Advocate
for the appellant.
---
RAKESH KUMAR GARG, J.
This is plaintiff's second appeal challenging the judgment and decree of the courts below whereby suit for declaration was dismissed.
As per the averments made, plaintiff-appellant was having an electric connection at its premises with 117 KW of sanctioned load. The electric connection was checked by AEE (Enforcement), Patiala on 28.12.2002 and on the basis of that checking, a report was prepared by the officials of the respondent- department and on the basis of said report, memo. dated 31.12.2002 was issued to the plaintiff-appellant, demanding a sum of Rs.3,94,663/- on account of theft of electric energy. The Kumar Ashwani 2014.08.14 17:36 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1533 of 2013 2 appellant filed a case before the Zonal Legal Dispute Settlement Committee of the respondent-department, challenging the aforesaid memo., but the said case was dismissed as withdrawn on 24.3.2003. Thereafter, a complaint was also moved by the appellant before the District Consumer Disputes Redressal Forum, Ropar, which was also withdrawn on 19.5.2003. Plaintiff also filed an appeal before the Dispute Settlement Authority of the respondent-department, which was decided on 9.2.2004 upholding the claim set up by the defendants. Pursuant to this, appellant deposited an amount of Rs.2,63,110/- while putting up its case before the Zonal Legal Dispute Settlement Committee, which again decided against the appellant.
In the instant suit, it has been stated that the impugned notice No.2383 dated 31.12.2002 issued by the officials of the respondent-Board is illegal, null and void and against the principles of natural justice, particularly when the electric meter was checked on 22.3.2002 and all the seals were reported to be intact and no crack in the meter glass was detected. It was further stated that since the respondent-Board was threatening to recover the balance amount of illegal demand raised by them under the threat to disconnect the power supply on permanent basis, necessity arose to file the instant suit.
Upon notice, defendants appeared and filed written statement contesting the suit, raising various preliminary objections. On merits, it was stated that the electric connection Kumar Ashwani 2014.08.14 17:36 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1533 of 2013 3 was checked by AEE (Enforcement Wing), Patiala on 28.12.2002 in the presence of the appellant and during checking, the meter glass of the electric meter was found to be cracked. Even the counter plates and figures inscribed thereon were found to be disturbed. Thereafter, the meter was removed from the appellant complex and was packed and sent to M.E. Lab for further checking. It was all done in the presence of authorized agent of the appellant who put his signatures in token of his consent in this regard. During checking, it was found that the counter-plates were found to have been scratched, meter glass was broken and was found to have been re-affixed with some adhesive material. Some pieces of broken glass were found inside the body of the meter and as such, a clear cut case of theft of electric energy was detected. In view of the report of the M.E. Lab, notice for recovery of Rs.3,94,663/- was issued to the appellant. While denying all other averments of the plaint, dismissal of the suit was prayed.
From the pleadings of the parties, following issues were framed:-
"1. Whether the memo. No. 2383 dated 31.12.2002 issued by the defendant No. 1 is illegal, null and void, as alleged? OPP
2. Whether the Plaintiff has committed the theft of energy, as alleged by the defendants? OPD
3. Whether the plaintiff is entitled to the permanent injunction as prayed for? OPP
4. Whether the Suit of the Plaintiff is not maintainable in the present form? OPD
5. Relief."Kumar Ashwani 2014.08.14 17:36 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1533 of 2013 4
After hearing learned counsel for the parties, the trial Court dismissed the suit vide judgment and decree dated 21.7.2010.
Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff preferred an appeal before the first Appellate Court which was also dismissed vide judgment and decree dated 27.9.2012. While dismissing the appeal, the lower Appellate Court observed as under:-
"12. I have considered their respective contentions. Surjit Singh, while appearing as PW1, has admitted in the cross-examination that the meter was checked by the Enforcement Staff of the defendants on 28.12.2002. He signed the checking register maintained by the members of the Flying Squad and that also proves that the checking was conducted in his presence. He admits his signatures on the report of the Flying Squad Ex. D1. The examination of the meter by the M.E. Lab was conducted in the presence of authorised representative of the Plaintiff complex and the same is Ex. D2. From Ex. D2, it is clear that the electric meter has been tampered with, as a big rack in its glass was noticed and small pieces of broken glass were also found inside the meter. It is also mentioned in the report that the meter was showing the digit of 1,000 and 10,000 to have been scratched and tampered thoroughly. Bhupinder Singh DWI has also deposed regarding all these facts pertaining to the checking of the meter and forensic examination of the meter by Kumar Ashwani 2014.08.14 17:36 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1533 of 2013 5 the M.E. Lab. The Plaintiff has failed to lead cogent evidence to rebut the authenticity of the report Ex. D2 especially when the forensic examination of the electric meter was conducted in the presence of the representative of the plaintiff complex. The Plaintiff has also failed to prove as to how the demand raised by the defendants through the impugned notice is illegal, null and void and the plaintiff has even failed to explain as to how the glass fitted on the electric meter was broken. There is also no motive for the Defendants to give wrong report and rather the same is based on checking by the Flying Squad as well as examination of the meter by the M.E. Lab. It is also clear that special forum has been created by constituting Disputes Settlement Committee to deal with such type of cases, but the Plaintiff, though approached the Disputes Settlement Committee, but subsequently had withdrawn the claim petition without adjudication. So keeping in view the evidence, both oral as well as documentary, led by the parties, the Judgment passed by the Id. Lower Court is sound, both on law and facts and hence no illegality has been proved in passing of the order raising demand of the sum of Rs. 3,94,663/- on account of theft of electricity in the meter installed in the premises of the Plaintiff complex and the findings of the Id. Lower Court on all the issues are well reasoned. So the judgment and Decree passed by the Id. Lower Court is liable to be upheld.
13. In view of my above discussion, I do not find any ambiguity in the Judgment under appeal, passed Kumar Ashwani 2014.08.14 17:36 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1533 of 2013 6 by the Id. Lower Court and as such, the appeal filed by the Appellant is hereby dismissed being devoid of any merits and the Judgment under appeal passed by the lower Court is hereby upheld. The parties are left to bear their own costs. Decree sheet be prepared. Lower Court record along with a copy of this Judgment be sent back. Appeal file of this Court be consigned to the record room".
Still not satisfied, the plaintiff-appellant has filed the instant appeal submitting that following substantial questions of law arise in this appeal for consideration of this Court:-
"(i) Whether the Civil Court has jurisdiction after a consumer had availed the remedy before the Disputes Settlement Committee and Zonal Legal Disputes Settlement Committee?
(ii) Whether without installing the check meter or comparing consumption of electricity prior or subsequent to the incident with the consumption of electricity during the incident, can it be assumed that there was theft of energy by the consumer and hence penalised for theft of energy?
(iii) Whether the judgments and decrees passed by the courts below are result of mis-reading and non-reading of material evidence available on file and therefore, liable to be set aside?
(iv) Whether in view of clear admission by the official of the Electricity Board that the seals of the MCB Kumar Ashwani 2014.08.14 17:36 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1533 of 2013 7 were intact and it is not possible to tamper the meter without tampering with the seals of the MCB, finding of theft of energy by the Electricity Board and Disputes Settlement committee could be upheld?"
I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below.
At the outset, it may be noticed that no challenge has been laid to the report of the raiding party dated 28.12.2002 with regard to its observation of broken glass and scratch on counter- plates and figures inscribed on the electric meter. Further, dispute has not been raised with regard to broken pieces of glass in the meter. Thus, in view of the aforesaid material, it could not be disputed that the electric meter has been tamper with. No reasonable explanation has been put forth by the appellant as to how in what manner the glass fitted in the electric meter installed in its premises was broken. It could further not be disputed that if the glass is broken, the counter-plates and the figures inscribed thereon, which give the reading of consumption recorded therein can be tampered with. Further, there is no challenge to the report prepared by the M.E. Lab in this regard. Since the forensic evidence clearly suggests that it was the case of tampering with the meter, no fault can be found with the finding recorded by the Courts below that it was a case of theft.
Kumar Ashwani 2014.08.14 17:36 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1533 of 2013 8
At this stage, it may also be noticed that a demand of Rs.3,94,663/- raised vide impugned memo. dated 31.12.2002 was also challenged by the appellant before the forum provided under the provisions of the Electricity Act as well as in the Consumer Forum but he remained unsuccessful. Those orders were never challenged by him and he also deposited a sum of Rs.2,63,110/- and it is only when the remaining amount was being recovered from the appellant, the instant suit was filed challenging the impugned memo. Thus, appellant is clearly estopped from filing the instant suit by his act and conduct.
In view thereof, this Court finds no merit in this appeal Thus, no substantial question of law arises in this appeal.
Dismissed.
August 11, 2014 [RAKESH KUMAR GARG]
ak JUDGE
Kumar Ashwani
2014.08.14 17:36
I attest to the accuracy and
integrity of this document
High Court Chandigarh