Full Judgment
Rs.No.563 of 2013 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.563 of 2013 (O & M) Date of Decision: 22.04.2014 Jagmohan Chopra ..Appellant(s) Versus Punjab State Electricity Board and another ..Respondent(s) CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH1 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.Aayush Gupta, Advocate for the appellant.
Paramjeet Singh, J.
(Oral) This regular second appeal is directed against the judgment and decree dated 03.10.2009 passed by learned Civil Judge (Jr.
Divn.).Ludhiana whereby suit for declaration, permanent and mandatory injunctions filed by appellant-plaintiff has been dismissed and against the judgment and decree dated 08.11.2012 passed by learned Additional District Judge, Ludhiana whereby appeal preferred by appellant-plaintiff Kumar Parveen 2014.04.28 17:17 I attest to the accuracy and integrity of this document Rs.No.563 of 2013 2 has been dismissed.
For convenience sake, hereinafter reference to parties is being made as per their status in the suit.
The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced.
However, the brief facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit for declaration that demand of defendants of Rs.3,12,944/- is illegal, null and void and plaintiff is not liable to pay the same.
Permanent injunction was sought for restraining defendants from realizing this amount and mandatory injunction was sought for directing defendants to restore the electric connection No.KF-18/557 and CS01/137.
It has been pleaded that above mentioned connections are installed in the premises of plaintiff where he is running a maternity/nursing home.
He has been making payment of electricity bills regularly.
On 08.08.2005, plaintiff received memo No.488 dated 08.08.2005 whereby demand of the impugned amount was raised on the ground that he is using excess load and there is hole in the lower portion of the meter.
The demand is illegal, null and void.
Plaintiff never misused the electric connection.
He is using lesser load than sanctioned load.
He deposited Rs.20,000/- on 08.06.2005 vide receipt no.197 and load was extended by 20 KW.
Earlier, he was having sanctioned load of 58.960 KW and after extension it became 78.960 KW.
Defendants instead of rectifying the record mentioned the earlier sanctioned load in the above said memo and accordingly calculated the impugned amount.
Kumar Parveen 2014.04.28 17:17 I attest to the accuracy and integrity of this document Rs.No.563 of 2013 3 There was no hole in the meter.
Plaintiff moved application on 09.08.2005 that electric connection may be re-checked to ascertain the load being used by him but defendant did not re-check his connections and raised the impugned demand without any basis.
They immediately disconnected the electric supply of plaintiff without complying with the mandatory provisions.
The meter was never packed or sealed in the presence of the plaintiff.
It was not referred to Chief Electrical Inspector.
The impugned demand is liable to be set aside.
The electric connection is required to be restored.
Defendants filed written statement taking the objection that suit is not maintainable.
Plaintiff did not disclose that on 05.08.2005, electric connection Nos.KF-18/055-N of NRS category having sanctioned load of 14.960 KW, CS-01/137 of NRS category having sanctioned load of 44 KW and KF-3/0755-A of DS category in the name of Jagmohan Chopra installed in the premises of Chopra Maternity/Nursing Home Ludhiana were jointly checked by the officials of Electricity Board.
Plaintiff refused to sign the checking report.
A hole was found on the lower side of meter of connection No.KF18/0557-N from which a wire could have been inserted in the meter.
The electric meter of the plaintiff was found to be faulty and it was declared a case of theft of energy.
It was also found that entire NRS load of the building was put on connection No.KF-18/0557-N with change over switches and no load was put on connection No.CS-01/137.
All these facts are mentioned in detail in the checking report.
The load of account No.CS- Kumar Parveen 2014.04.28 17:17 I attest to the accuracy and integrity of this document Rs.No.563 of 2013 4 01/137 and KF-18/0557 was also checked and it was found that plaintiff was using load of 92.024 KW of both the connections against sanctioned load of 58.960 KW.
He was using 33.064 KW as an unauthorized load.
Plaintiff was also found having installed a generator set without permission of Electricity Board.
Plaintiff is liable to pay the impugned amount.
On merits, it has been pleaded that the plaintiff applied for extension of load, but service connection order for the extension of load was not issued by the Electricity Board and load was not extended.
Since plaintiff was found committing theft of energy, his two connections were disconnected after completion of checking dated 05.08.2005.
It was a case of theft of electricity and not of defective electric meter.
Other averments in plaint were denied.
On the basis of pleadings of parties, the Court of fiRs.instance framed following issues: “1.
Whether the plaintiff is entitled to permanent injunction as prayed for?.OPP2 Whether plaintiff is entitled to declaration as prayed for?.OPP3 Whether plaintiff is entitled to mandatory injunction as prayed for?.OPP4 Whether suit is maintainable in the present form?.OPP5 Whether civil court has got jurisdiction to entertain and try the suit?.OPP6 Relief.”
.
After appreciating the evidence, the Court of fiRs.instance Kumar Parveen 2014.04.28 17:17 I attest to the accuracy and integrity of this document Rs.No.563 of 2013 5 dismissed the suit.
Feeling aggrieved, plaintiff preferred an appeal which has been dismissed by the lower Appellate Court.
Hence, this second appeal.
I have heard learned counsel for appellant and perused the record.
Learned counsel for appellant has referred to following substantial questions of law formulated in the grounds of appeal for consideration by this Court: (i) Whether the judgments of the courts below are based upon the misreading of the evidence?.
(ii) Whether there was any unauthorized extension of load or theft of energy?.
(ii) Whether the required notice under Section 126 of the Electricity Act, 2003 was ever served?.
Learned counsel for appellant has contended that findings of both the courts below are based on misreading of evidence.
No notice under Section 126 of the Electricity Act, 2003 was ever served upon plaintiff.
Learned counsel has further contended that both the courts below have wrongly recorded that there was unauthorized extension of load and there was theft of energy.
I have considered the contentions of learned counsel for appellant.
Both the courts below have recorded concurrent finding that evidence of defendants' witnesses makes it clear that theft of electricity Kumar Parveen 2014.04.28 17:17 I attest to the accuracy and integrity of this document Rs.No.563 of 2013 6 was being committed by plaintiff and he was also using unauthorized load of 33.064 KW.
There is a concurrent finding that assessment of electricity charges payable by plaintiff was made under Section 126 of the Electricity Act, 2003 and impugned amount was found due towards plaintiff.
Plaintiff did not prefer any appeal before any higher authority of Electricity Board with regard to impugned amount.
In fact the jurisdiction of the Civil Court is barred when assessment is made under Section 126 of the Electricity Act.
Reference may be made to the judgment of the Honb'le Supreme Court in UP Power Corporation LTD.And others versus Anis Ahmad 2013 (3) RCR (C ) 946 and judgment of this Court in M/s Ujjal Rice Sheller versus Punjab State Power Corporation LTD.& OtheRs.2011(2) Law Herald (P&H) 965.
Learned counsel for appellant has failed to show that said findings of both the courts below are perveRs.or illegal or based on misreading, non-reading or misappreciation of the material evidence on record.
Consequently, concurrent findings of fact recorded by both the courts below do not warrant interference in regular second appeal.
No question of law, muchless substantial question of law, as alleged, arises for adjudication in this second appeal.
No other point has been urged.
Dismissed.
It is made clear that since plaintiff had been prosecuting the Kumar Parveen 2014.04.28 17:17 I attest to the accuracy and integrity of this document Rs.No.563 of 2013 7 suit and thereafter preferred appeal before wrong forum under bona fide mistake, plaintiff may take this ground before the concerned authority in view of provisions of the Limitation Act and the same shall be considered sympathetically.
22.04.2014 (Paramjeet Singh) parveen kumar Judge Kumar Parveen 2014.04.28 17:17 I attest to the accuracy and integrity of this document