Judgment:
Rakesh Kumar Garg, J.
C.M. No. 5031-C of 2007
1. For the reasons set forth in the application, delay of 40 days in filing the appeal is hereby condoned.
CM Stands disposed of.
R.S.A. No. 1709 of 2007
This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit for declaration and permanent injunction filed by the plaintiff-respondent has been decreed.
2. Briefly stated connection No. 14-SS-36/TC was installed in the shed of plaintiff-respondent. On 6.11.1997 the Vigilance Staff of the appellant-Corporation checked the aforesaid power connection and suspected that fake seals and capacitors were not working. The electric connection meter was removed for proper verification and testing. An FIR was also lodged by the SDO (Operation) against the tenant of the plaintiff-respondent. No notice was issued or served upon the plaintiff raising any demand on account of allegations mentioned by the department. It is the case of the plaintiff that in fact no seals of the meter in question were tampered with by the user or the plaintiff. The seals in question were intact in its original condition as these were at the time of its installation. Staff of the appellant had assured the reinstallation of the meter after proper checking and testing but despite memo dated 26.4.2002 whereby department had threatened to add an amount of Rs. 4,38,712/- in his residential connection and to take action in this regard. The said memo is illegal, unlawful. Since there was an arbitration clause in the agreement of supply of energy entered into between plaintiff and the erstwhile HSEB, therefore, plaintiff moved an application for adjudication of the dispute before the Arbitrator who after hearing both the parties passed an order dated 20.3.2003 and in view of the said order passed by the arbitrator this Court has got jurisdiction to try and entertain the suit. Plaintiff requested the defendants several times to treat the alleged inspection report and demand as void ab initio, illegal and not binding upon her and also not to demand any alleged amount or any part thereof but they refused to do so.
3. In the written statement filed by the defendants it was pleaded that the premises in question of plaintiff was checked by the DDV on 6.11.1997 and found the connected load as 13.920 KW against sanctioned load of 18.578 KW. Meter M&T; seals were compared with the sample seals which were found to be fake. The LT acceptor was also found defective and as such there was theft of energy. Accordingly, the account of plaintiff was over hauled as per sales circular No. 4/91 and penalty to the tune of Rs. 1,31,699/- was imposed vide notice bearing No. 4093 dated 7.11.1997. The checking was carried out in the presence of Mr. Vipin Jain the tenant and the representative of plaintiff and after understanding the meaning of checking report, he put signatures on the same. The said Mr. Vipin Jain never represented the defendant for checking the meter in the laboratory. Seals provided on the meter were compared with the sample seals in the presence of Mr. Vipin Jain. It is denied that the notice dated 26.4.2002 bearing Memo No. 4046 to Sh. S.C. Vashisht is illegal, unlawful and arbitrary. Other material allegations of the plaintiff were denied and prayed for the dismissal of the suit besides taking various preliminary objections.
4. The trial Court after hearing both the parties and going through the evidence on record, decreed the suit of the plaintiff with costs and a decree to the effect that the impugned demand of Rs. 4,38,712/- raised vide memo No. 4045 dated 26.4.2002 is illegal and against the principles of natural justice. The defendants were restrained from demanding any amount of Rs. 4,38,712/- against the electricity connection in question.
5. Aggrieved by the said judgment and decree, defendants filed an appeal. Additional District Judge, Faridabad vide impugned judgment dated 16.1.2007 affirmed the findings of the trial Court on all the issues and dismissed the appeal filed by the defendants.
6. Not satisfied the defendants have filed the instant appeal challenging the judgment and decrees of the Courts below.
7. Learned Counsel for the appellant has vehemently argued that the courts below have failed to appreciate that the Civil Court has no jurisdiction to go into the controversy as the respondent has a specific remedy of filing the appeal against the penalty amount under the provisions of Electricity Act. The learned Counsel has further argued that the amount in dispute was rightly assessed by the appellants because on 6.11.1997 the Vigilance checking had taken place in the premises of the respondent-plaintiff and on checking of electric meter it was found that seals were fake and capacitors were not working which shows that the respondent was indulging in theft of electricity. Thus, the courts below have wrongly decreed the suit of the plaintiff-respondent. On the other hand, learned Counsel for the respondent has supported the findings of the courts below and has argued that no substantial question of law arises in this appeal and the courts below have recorded a concurrent finding of fact on appreciation of evidence on record in favour of the plaintiff-respondent and therefore the appeal is liable to be dismissed.
8. I have heard learned Counsel for the parties and perused the record.
9. The first contention raised by the learned Counsel for the appellant is without any merit. Under Section 145 of the Electricity Act 2003, jurisdiction of the civil court is barred against an assessment made by the Electricity authorities under the provisions of Section 126 of the aforesaid Act. However, in the present case, the relief sought by the plaintiff-respondent is entirely different. In the present case, the plaintiff-respondent has prayed for a decree of permanent injunction restraining the defendants from demanding any amount under the garb of allegations of alleged theft of energy leveled against her. Thus, such kind of dispute does not fall within the purview of Section 126 of the Electricity Act, 2003 and therefore, the jurisdiction of the civil court is not barred. Even otherwise, no such objection has been raised by the appellants before the court below. Admittedly, the meter in question was got checked from the M&P; Laboratory, Palla. Thus, the checking report Ex.D-1 on the basis of which alleged demand has been raised against the provisions of the Electricity Rules. In fact, the rules require that to prove the theft of electricity it was the basic requirement that the meter must have been checked from the concerned laboratory. From the record, it is made out that the demand has been raised simply on the basis of checking report Ex.D-1. Before raising the demand it has not been proved on record that the plaintiff-respondent has indulged in theft. No other point has been urged.
10. For the reasons recorded above, 1 find no merit in this appeal. No substantial question of law arises. Dismissed.