Dismissed

D H B v. N L & Anr. v M/S Anand Gases (India) Pvt. Ltd.

Punjab & Haryana HC7 Feb 2014RSA/3160/2011

Case brief

AI extract

What is this about?

This second appeal challenges a decree declaring illegal electricity charges demanded without procedural compliance. The Court held no interference warranted as the Electricity Act's assessment procedures were violated, affirming lower courts' findings that natural justice was breached.

What did the court decide?

Instant regular second appeal stands dismissed with no order as to costs.

D H B v N L & Anr. Vs M/S Anand Gases (India)… — Consumer Protection | Punjab & Haryana HC (2014)

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RSA No. 3160 of 2011 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No. 3160 of 2011 (O&M) Date of Decision 7.2.2014

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Dakshin Haryana Bijli Vitran Nigam Limited and another

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....Appellants

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Versus

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M/s Anand Gases (India) Private Ltd.

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....Respondents

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CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. Kartar Singh, Advocate for the appellants.

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Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate for the respondent.

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1. To be referred to the Reporters or not? Whether the judgment should be reported in the Digest?

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RAMESHWAR SINGH MALIK J.

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Defendants are in second appeal, against the concurrent findings of facts recorded by the learned courts below, in a suit for declaration with consequential relief of permanent injunction.

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Brief facts of the case are that plaintiff filed the present suit on the allegation that industrial unit for manufacturing the gas was being run by the plaintiff. Defendants were supplying electricity since March, 2003. Plaintiff was a regular consumer of the defendants having electricity connection No. ILS-83. Plaintiff had been paying all

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Kumar Amit 2014.04.04 09:39 I attest to the accuracy and integrity of this document

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RSA No. 3160 of 2011 (O&M) 2

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the bills issued by the defendants well in time. Some of the officials of the defendants were nursing personal grudge against the officials of the plaintiff for extraneous reasons, without there being any fault on the part of the plaintiff. Defendant No.2 personally took reading of the electricity meter of the plaintiff. Meter of the plaintiff was in good running condition. The sanctioned load of meter of the plaintiff was enhanced from 359.400 KW to 689.400 KW in the month of January/February, 2005. Electricity meter of the plaintiff was checked by the defendants and the same was found in proper running condition on 28.1.2005. However, defendant No.2 replaced electricity meter of plaintiff on 29.7.2005. Even after changing the said meter, average electricity bill of the plaintiff remained almost the same. Defendants sent electricity bill dated 21.10.2005 to the plaintiff in respect of the abovesaid electricity connection for an amount of 9,56,559/- and huge unexplained amount of 12,11,396/- was shown as sundry charges.

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Plaintiff repeatedly requested the defendants to disclose the basis of alleged sundry charges, but they refused to do so. It was pleaded case of the plaintiff that the demand of sundry charges contained in the said bill dated 21.10.2005 was illegal, unauthorised, arbitrary and factually incorrect and the same was liable to be declared void. It was also pleaded by the plaintiff that neither any notice was issued nor the mandatory procedure laid down under the Electricity Act, 2003 ('the Act' for short) was followed. Since the repeated requests of the plaintiff were not being attended and Kumar Amitresponded, he was left with no other option, except to file the present 2014.04.04 09:39 I attest to the accuracy and integrity of this document

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RSA No. 3160 of 2011 (O&M)

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suit.

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Having been served in the suit, defendants appeared and filed their written statement taking more than one preliminary objections including locus standi and suppression of material facts. It was pleaded that premises of the plaintiff was checked on 29.7.2005 and the blue phase CT of the meter was found saturated. Blue phase current of meter was less and resultantly, meter was working slow by 19.380% in comparison to the last checking on 28.1.2005. Accordingly, an amount was sought to be recovered in the bill served in the month of September 2005, out of which the plaintiff deposited 8,35,058 and a sum of 12,11,396/- remained unpaid, which was included in the next bill, was being challenged by the plaintiff. Denying all other averments taken in the plaint, defendants prayed for dismissal of the suit.

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On completion of pleadings of the parties, learned trial court framed the following issues:-

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“1. Whether the demand of Rs. 12,11,396/vide bill dated 21.10.2005 is illegal, unauthorized, void, ab-initio, nonest, nullity, arbitrary, baseless and contrary on the grounds as alleged?OPP.

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2. Whether the plaintiff is entitled to relief of permanent injunction on the grounds as alleged? OPP.

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3. Whether plaintiff has no locus standi to file the present suit?OPD.

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4. Whether plaintiff has not come with

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Kumar Amit 2014.04.04 09:39 I attest to the accuracy and integrity of this document

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RSA No. 3160 of 2011 (O&M)

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clean hands and has suppressed material facts from the court?OPD.

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5. Relief.”

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With a view to substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to be conclusion that plaintiff has duly proved his case. Defendants did not follow the mandatory procedure laid down under the Act. Accordingly, suit was decreed vide impugned judgment and decree dated 20.7.2010. Feeling aggrieved, defendants filed their first appeal, which came to be dismissed by the learned lower appellate court vide impugned judgment and decree dated 29.1.2011. Hence this appeal.

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Learned counsel for the appellants-defendants submits that learned courts below misdirected themselves, while not appreciating the true facts of the case as well as evidence brought on record. He further submits that electricity meter of the plaintiff-respondent was found running slow, because of which the reading was being shown less than actual reading. Plaintiff was consuming more quantity of supply and meter was showing less consumption, thereby causing loss to the State Exchequer. He next contended that checking was conducted in the presence of the representatives of the plaintiff, who refused to sign the checking report, because of which plaintiff had no case and the disputed demand was rightly raised. He concluded by submitting that since the learned courts below failed to appreciate the evidence in the correct perspective, the impugned judgments and Kumar Amit 2014.04.04 09:39 I attest to the accuracy and integrity of this document

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RSA No. 3160 of 2011 (O&M)

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decrees were not sustainable in law. He prays for setting aside the impugned judgments and decrees passed by the learned courts below, by allowing the present appeal.

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Per contra, learned senior counsel for the respondentplaintiff vehemently contended that plaintiff had been regularly paying the bills. Admittedly, it was not a case of theft. He further submits that, there was no allegation against the plaintiff that he was found misusing or tempering the meter to make the meter run at slow speed. He would next contend that it was also not the case of the defendants that plaintiff was issued any show cause notice to seek explanation on account of any unwarranted action or mistake on his part. He submits that even after changing the meter, there was hardly any change in the consumption of electricity. He concluded by submitting that defendants miserably failed to follow the basic principles of natural justice and the plaintiff was condemned unheard. In such a situation, learned courts below rightly came to the rescue of the genuine consumer by passing the impugned judgments. Finally, he prays for dismissal of the appeal.

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Having heard the learned counsel for the appellants at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions advanced, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.

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Kumar Amit 2014.04.04 09:39 I attest to the accuracy and integrity of this document

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RSA No. 3160 of 2011 (O&M)

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It is a matter of record that before issuing bill in question, raising demand of `12,11,396/- on account of sundry charges, no notice of any kind was issued by the defendants to the plaintiff. No opportunity of being heard was granted to the plaintiff, at any stage. It is also an admitted position on record that present one was not a case of theft of electricity because of which, provisions of Section 135 of the Act will not be attracted. Present case, at the most, would fall within the scope of Section 126 of the Act.

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Section 126 of the Act provides a complete procedure of assessment about unauthorised use of electricity. Section 126 of the Act reads as under:-

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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 any other person benefited by such use.

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(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.

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[(3) The person, on whom an order has been

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RSA No. 3160 of 2011 (O&M)

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served under subsection (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.

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(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.

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[(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use 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.

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(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

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RSA No. 3160 of 2011 (O&M)

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sub-section (5).

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A bare reading of the abovesaid provisions of law contained in Section 126 of the Act would show that a complete safeguard has been provided, by putting a workable mechanism in place. The purpose and object of Section 126 of the Act is laudable and aims at providing the procedure, so as to ensure that no consumer of electricity is put to unwarranted harassment. Backbone of the object envisaged under Section 126 of the Act is the golden rule of Audi Alteram Partem. However, in the present case, the basic principle of natural justice has been glaringly violated at the hands of defendants. Such kind of arbitrary and unreasonable action on the part of appellant authority is not permissible in law.

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This material aspect of the matter that procedure provided under Section 126 of the Act was not complied with by the defendants-appellant authorities, could not be denied by the learned counsel for the appellants during the course of arguments and rightly so, because this fact was based on record. Having said that, this Court feels no hesitation to conclude that authorities of the defendants-appellants proceeded on an illegal approach. In this view of the matter, it is unhesitatingly held that learned courts below rightly appreciated the true facts and the abovesaid principle in the correct perspective, while passing the impugned judgment and decree and the same deserve to be upheld for this reason also.

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During the course of hearing, learned counsel for the appellants failed to point out any jurisdictional error or patent illegality apparent on the record of the case in either of the impugned Kumar Amit 2014.04.04 09:39 I attest to the accuracy and integrity of this document

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RSA No. 3160 of 2011 (O&M)

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judgments and decrees passed by learned trial court as well as learned lower appellate court. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the learned courts below. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, while exercising its appellate jurisdiction under Section 100 CPC. In this view of the matter, it is held that impugned judgments and decrees passed by the learned courts below deserve to be upheld for this reason as well.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.

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Resultantly, the instant regular second appeal stands dismissed, however, with no order as to costs.

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(RAMESHWAR SINGH MALIK) JUDGE

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7.2.2014 AK Sharma

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Kumar Amit 2014.04.04 09:39 I attest to the accuracy and integrity of this document

D H B v. N L & Anr. v M/S Anand Gases (India) Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

D H B v. N L & Anr. v M/S Anand Gases (India) Pvt. Ltd.

Case brief

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What did the court decide?

What the court decided

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