Pawan VS S.D.O.

DHBVNL,Hisar
1

U.I.D No. HR0450

HRHS010005572017

Civil Suit No.60-C

Presented on: 08.03.2017
Registered on: 08.03.2017
Decided on: 19.11.2018
Duration: 01 year, 08 months and 11 days.

IN THE COURT OF
Civil Judge (Junior Division) AT Hisar,
Presided Over by Ashwani Gupta
CS/ 376/ 2017

Exhibit No.___________

Pawan Kumar son of Sh.Amar Singh, age 39 years, resident of V.P.O. Naya
Gaon, Tehsil Uklana and District Hisar.
…..Plaintiff

VERSUS

Sub Divisional officer Uklana, Dakshin Haryana Bijli Vitran Nigam, Hisar.

…..Defendant

--------------------------------------------------------------------------------------------
Present: Sh. Ashish Goyal, Advocate for plaintiff.
Sh. Manpreet Singh, Advocate for defendant.
--------------------------------------------------------------------------------------------

SUIT FOR DECLARATION ALONGWITH CONSEQUENTIAL

RELIEF OF MANDATORY (PROHIBITORY AND MANDATORY)
INJUNCTION

JUDGMENT
(Delivered on 19.11.2018)

1. By dint of present suit, the plaintiff has assailed the validity of

checking report dated 11.02.2017, on the basis of which impugned notices

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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bearing No.H54/ 2017/ 116 and H54/ 2017/ 117 dated 15.02.2017 for the

theft of electricity and compounding thereof were issued, directing the

plaintiff to deposit an amount of ₹.33,780/- and ₹.15,000/- on account of

theft of electricity and compounding charges, are illegal, null and void, as

the false case of theft has been foisted upon the plaintiff. The plaintiff

requested to restain the defendant from disconnecting the electricity supply

of the premises of the plaintiff and not to initiate any proceedings for

recovery of the amount and, if any, amount is deposited by the plaintiff by

the order of the Hon'ble Court during the pendency of the suit, then the same

may kindly be refunded with interest.

2. The plaintiff pleaded that his brother had taken an electric

connection under NDS category with a sanctioned load of 2.900 KW having

account No.NN21-0328 and he has no concern with the same. Meaning

thereby, the impugned notices issued by the defendants against the plaintiff

are bereft of any cause of action against him. Even otherwise, the brother of

the plaintiff namely Joginder used the electricity in an honest manner. The

consumption of the electricity is less than the sanctioned load. The villagers

of Naya Gaon were getting the electric supply from Rural AP feeder and

defendant was supplying the electricity for 08 hours in a day to the NDS

category consumers of Naya Gaon. On 16.02.2017, the plaintiff was

astonished to receive the impugned notices, whereby defendant raised a

demand of ₹.33,780/- and ₹.15,000/- from the plaintiff, on the pretext of

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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checking allegedly conducted on 11.02.2017. The plaintiff visited the office

of defendant, whereby he came to know that a checking was allegedly

conducted at the premises on 11.02.2017 and the impugned notices were

sent in lieu of the said checking. The plaintiff tried to persuade the

defendant that the alleged checking was never conducted at his premises,

rather it pertains to the brother of the plaintiff and plaintiff has no concern

with the same. The plaintiff also requested the defendant to supply the copy

of alleged checking report, but the defendant had not supplied any copy of

checking report. If the theft of electricity was detected, then the defendant

should not allow to continue running the electricity at the premises as is

running till date. Neither the videography is conducted, nor the calculations

are prepared in accordance with the instructions of the Nigam. Not only the

instructions in the circular of defendants are overlooked, but the principles

of natural Justice has also not followed. Accordingly, a false case of theft of

electricity has been imposed upon the plaintiff. The defendant did not hear

the genuine request of the plaintiff, rather defendant had threatened the

plaintiff that they would recover the amount and dis-connect the electricity

supply of the premises of the brother of the plaintiff. At the end, plaintiff

requested that if the defendant would succeed in his evil design, then the

plaintiff shall suffer an irreparable loss. Hence, the present suit.

3. Upon notice, the defendant appeared and opposed the claim of

the plaintiff by taking preliminary objections as to maintainability,

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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jurisdiction, estoppel, court fees and suppression of true and material facts.

The defendant submitted that on 11.02.2017, the meter of the plaintiff was

checked by the checking team in presence of Surender Kumar. During

checking the supply was found direct with the help of two Core Black colour

6mm PVS approximately 8 meter. The directed PVC was removed and

packed properly for evidence and photographs and videography were also

taken on the spot and matter was referred to SDO 'op' for taking action, as

per Nigam instruction. The checking party prepared the LL-1 bearing

No.21/ 949 dated 11.02.2017 and handed over the copy of the same to

Surender Kumar, who refused to sign the checking report. In this way, the

plaintiff has committed the theft of energy. Thereafter, the competent

authority assessed the loss and notice bearing memo No.H54/ 2017/ 116

dated 15.02.2017 and No.H54/ 2017/ 117 dated 15.02.2017 were issued to

the plaintiff, whereby plaintiff was asked to deposit ₹.33,780/- on account of

theft of electricity and ₹.15,000/- as compounding charges. The Nigam also

issued a letter bearing Memo No.H54/ 2017/ 118 dated 15.02.2017 to the

SHO I& P Hisar for lodging the case against the plaintiff. Remaining

contents of the plaint were denied and at last it was prayed that the present

suit is liable to be dismissed with costs.

4. Replication was not filed. From the respective pleadings of the

parties, the following issues were framed, vide order dated 30.05.2017

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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passed by the court of Sh.Puneet Limbha, the learned Civil Judge (Jr. Divn.),

Hisar:-

(1) Whether the plaintiff is entitled for decree of declaration as

prayed for.?OPP
(2) Whether the plaintiff is entitled for decree of injunction
(prohibitory and mandatory) as prayed for.? OPP
(3) Whether the plaintiff has no locus-standi to file the present
suit.?OPD
(4) Whether the plaintiff has no cause of action to file the present
suit.?OPD
(5) Whether the plaintiff has not come to this Hon'ble Court with
clean hands?OPD
(6) Whether the suit of the plaintiff is not maintainable.?OPD
(7) Relief.

5. In order to prove his case, the plaintiff has examined the

following witnesses in his evidence:-

Sr.No. Name of Witness Documents Exhibit

PW1 Pawan Kumar  Evidence by way of PW1/A
affidavit;
 Has tendered the P-1
Memo No.H54/
2017/ 117 dated
15.02.2017 for
compounding the
offence of
electricity theft;
 Electricity Bill for
the period w.e.f P-2
20.10.2016 to
20.12.2016 for an
amount of
₹.38,944/-

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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 Order of the
assessment bearing
Memo No.H54/
2017/ 116 dated P-3
15.02.2017, whereby
plaintiff was asked
to deposit fine of
₹.33,780/- for
committing theft of
electricity.

On 10.04.2018, the evidence of the plaintiff was closed by court order.

6. In order to rebut the case of plaintiff, the learned counsel for

defendant has examined the following witnesses and tendered on record the

following documentary evidence:-

Sr. Name of Witness Documents Exhibit

No.
DW1 Raj Kumar, J.E-I O/o  Evidence by way of DW1/A
S.D.O., Uklana affidavit
 Copy of LL-1 DW-1
DW2 Pawan Kumar, C.A.  Evidence by way of DW2/A
SDO Sub Division affidavit;
Satrod, DHBVN,
Hisar;  Has tendered copy D2
of order of
assessment bearing
Memo No.H54/
2017/ 116 dated
15.02.2017;
 Has tendered copy
D3
of letter for
compounding the
offence bearing
Memo No.No.H54/

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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2017/ 117 dated
15.02.2017; &
 Copy of letter to D4
SHO to lodge FIR
against Pawan
Kumar (plaintiff),
on account of theft
of electricity.

Thereafter on 31.10.2018, the evidence of defendant was closed

by court order.

7. No evidence in rebuttal was placed on record and the same was

closed by the learned counsel for plaintiff, vide his separate recorded

statement of even date.

8. Arguments heard. Case file perused. After hearing the learned

counsel for the parties, my issue-wise findings are here as under:-

ISSUES NO.1 & 2:-

9. The burden to prove these issue lies upon the plaintiff. Both

these issued are inter-connected and inter-dependent. In order to avoid the

repetition of reasoning and for the sake of brevity, these issued are taken up

together.

10. Starting the line of arguments, Ld.counsel for the plaintiff

vehemently argued that the plaintiff has made no default, giving rise to any

cause of action against him, with respect to the issuance of impugned

notices. Rather, the connection is in the name of his brother Joginder, who is

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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an honest, dedicated consumer of electricity and made no default in payment

of the bills. Meaning thereby, the plaintiff is neither owner nor user of the

electricty connection. The defendant-department acted illegally by way of

foisting a false case of theft of electricity upon the plaintiff and coerced him

to pay the illegal demand, otherwise a criminal case will be implicated upon

him. The plaintiff never indulged in theft of electricity and the defendant

has claimed illegal amount under the garb of theft of electricity, on the basis

of LL-1 report prepared, in the absence at the back of plaintiff, without

giving any opportunity of being heard.

11. Per contra, the learned counsel for the defendant vehemently

argued that the present suit is an abuse of the process of law filed with an

ulterior motive to avoid the criminal liability for theft of electricity. Even

otherwise, the premises of the plaintiff was checked on 11.02.2017 in the

presence of Surender Kumar, who refused to sign the checking report,

wherein the direct supply of electricity has specifically been mentioned, duly

proved on record by the testimony of DW1. The calculations and notices of

theft of electricity and compounding thereof are also proved on record by the

testimony of DW2. The plaintiff in his cross-examination has himself

admitted that the electricity connection is in the name of his brother and they

are using the electricity supply for tubewell and poultry farm. Having said

so, the plaintiff has admitted his fault in the proceedings of the present suit

also.

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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Findings of Court:–

12. In the instant case, the plaintiff has challenged the impugned

notices bearing Memo No.H54/ 2017/ 117 dated 15.02.2017 and No.H54/

2017/ 116 dated 15.02.2017 (Ex.P-1 and Ex.P-3) prepared on the basis of

LL1-checking report dated 11.02.2017, whereby plaintiff was asked to

deposit ₹.15,000/- as compounding charges and ₹.33,780/- on account of

theft of electricity. The said LL-1 report (Ex.DW1) mentions that the

checking was done in the presence of one Surender Kumar. At the same

time, the said LL-1 report does not bear the signature of aforesaid Surender

Kumar. The LL-1 report itself mentions a column for signatures of witness,

if consumer refused to sign. If the said Surender Kumar was an independent

witness (not belonging to defendant-department), then his address/

particulars i.e. father’s name etc. were required to be written, so that he

could have been examined qua the checking, if any. Meaning thereby, the

defendant-department/ checking team substantially failed to comply with the

procedural norms provided by the defendant-department itself. The

procedural safeguards are provided to save the consumer from false

implication. In the instant case, it is admitted by DW-1 in his cross-

examination that as per sale circular of Nigam, if theft of electricity is

detected then the electricity supply is to be disconnected then and there,

which they do not followed in the instant case. Not only this, the checking

party mentioned in the LL-1 report that the video C.D of the site was also

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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prepared, but the said C.D has not been brought on record by the defendant,

for the reasons best known to them only. Meaning thereby, the defendant

has withheld the best evidence, in the absence of which the checking report

can not sustain on the basis of balance of probabilities. The non-compliance

of procedure gives rise to the cause of action in favour of the plaintiff, as the

case of the plaintiff is that a false case of theft of electricity has been

prepared in his absence, at his back. Accordingly, the defendant has failed to

prove the compliance of procedure to be made by them, at the time of

inspection of theft of electricity, failing which the plaintiff cannot be

burdened to pay the amount illegally claimed by the defendant.

13. The contention of the defendant/ department that plaintiff being

their consumer committed theft of electricity by way of direct supply with

the help of a wire is not tenable, because in order to rebut this contention of

the defendant-department, the plaintiff placed on record original electricity

bill of the electricity connection in question (Ex.P-2). A perusal of the same

shows that the said electricity connection has been issued in the name of one

Joginder Singh son of Amar Singh. The plaintiff is not the consumer as well

as user of the electricity connection in dispute. Meaning thereby, it cannot

be said that the electricity supply was directly connected by the plaintiff. In

the light of above-said discussion, the LL-1 report dated 11.02.2017 is

hereby declared to be illegal, null and void and the subsequent impugned

notices prepared on that basis No. H54/ 2017/ 116 and H54/ 2017/ 117 dated

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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15.02.2017 are illegal, null and void, being not prepared in accordance with

law and principles of natural Justice. The defendant is not entitle to recover

the amount as mentioned in the aforesaid notices and further the defendant is

restrained from disconnecting the electricity connection of the plaintiff,

under the garb of impugned notices.

14. In view of above discussion, both these issues stand decided in

favour of the plaintiff and against the defendant.

ISSUE NO.6

15. The onus to prove this issue lies upon the defendant. The

Electricity Act, 2003 is a complete code in itself. Section 126 and 127 of the

said Act deals with unauthorized usage of electricity and Section 135 deals

with theft of electricity. Both these provisions operate in different realms.

Section 126 and 127 have been provided in Part-XII of the Act under the

heading “Investigation and Enforcement'', whereas the offence of theft of

electricity defined under Section 135 is contained in Part-XIV under the

heading “Offences and Penalties''. In so far as the objection regarding

jurisdiction is concerned, I shall first refer to Section 145 of the Electricity

Act, 2003, which provides as under:-

“145. Civil Court not to have jurisdiction. No Civil Court shall

have jurisdiction to entertain any suit or proceeding in respect of any
matter which an assessing officer referred to in Section 126 or an
appellate authority referred to in Section 127 or the adjudicating
officer appointed under this Act is empowered by or under this Act to
determine and no injunction shall be granted by any Court or other
authority in respect of any action taken or to be taken in pursuance of

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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any power conferred by or under this Act. ”

A reading of the aforesaid bare provision leaves no manner of doubt that

Section-145 bars the jurisdiction of the Civil Court in respect of any matter

arising under Section-126 and 127 of the Act. Under Section-126, if there is

any unauthorised use of electricity by a consumer, the assessing officer shall

provisionally assess to the best of his judgment the electricity charges

payable by the consumer for such unauthorised user. After the provisional

assessment having been made, the order has to be served upon the consumer

inviting his objections and after hearing him a final order of assessment is to

be passed. In the case in hand, no such provisional assessment as envisaged

under Section-126 has been made by the defendants for any unauthorised

user of electricity. The defendant has proceeded on the premise that the

plaintiff has committed theft of electricity and on that basis worked out the

amount of penalty and compounding fee as per provisions of Section-135

and 152 of the Act. As already noticed above, Section-145 of the Act refers

only to the action taken under Section-126 and 127 of the Act. It does not

even remotely talk of any other amount/ penalty demanded/ levied by the

licensee otherwise than by way of provisional assessment under Section-126

of the Act. The notices Ex.D2 & 3, issued in the instant case cannot by any

stretch of imagination be construed as notices issued under Section-126 of

the Electricity Act, 2003. In these notices, there is no provisional

assessment and mention of any opportunity of hearing for making final

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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assessment for unauthorised user. The notices Ex.D2 & 3, therefore, do not

come within the purview of Section-126 and that being so, the challenge

against them is not barred under Section-145 of the Act, which bars the

jurisdiction of the Civil Court to a limited extent only. Now, I would deal

with the submissions made by the defendants on the basis of Section-154 of

the Act of 2003. Learned Counsel for defendants contended that if during

the course of any inquiry or trial, the court finds that an offence under

Section-135 to 140 & 150 of the Act appears to have been committed, it

shall transfer the said case to the Special Court for suitable action, which

includes trial of the criminal as well as imposition of civil liability. The

submission is, that once it appears to the court that any offence under the

Electricity Act is committed in respect of Sections 135 to 140 and 150, such

civil court shall not proceed with the suit, its jurisdiction being impliedly

barred under Section-154(2) of the Act. A careful perusal of Section-154

indicates that it deals with trial of offences under Section-135 to 140 and 150

of the Electricity Act, 2003. It is also clearly inferable from the said

Section-154 that provisions of sub section(2) thereof would come into play

only if a court while conducting any inquiry or trial in relation to an offence

is of the opinion that it appears that an offence under the aforementioned

sections is committed. The section specifically says that in such an

eventuality, the court shall transfer the case to the Special Court for trial and

disposal. Obviously, a civil suit pending before a Civil Court cannot be

transferred to the Special Court for trial and disposal in as much as the

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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Special Court under Section-154 has to try and dispose of only a case

involving commission of an offence under the aforesaid sections of the Act.

The Special Court has no jurisdiction to try a civil suit. It is also obvious that

a civil suit cannot be converted into a criminal trial against the plaintiff by

invoking the provisions of Section-154(2) of the Act. The only meaning that

can validly be ascribed to Section 154(2) is that any court while discharging

its adjudicatory functions on criminal side by way of inquiry into or trial of

an offence, notices that an offence under Section-135 to 140 and 150 of the

Electricity Act, 2003 appears to have been committed, it shall transfer that

case (criminal trial) to the Special Court for trial and disposal. The first

proviso to Section-154(2) further provides that while trying such case, the

Special Court shall be entitled to act upon the evidence recorded by the

transferor court in the presence of the accused. In other words, the evidence

which is recorded by the transferor court has been envisaged to be such

evidence which is recorded in the presence of accused in a criminal trial.

Obviously, the evidence recorded by a Civil Court in a civil suit filed by the

plaintiff cannot be construed as evidence recorded in the trial of a criminal

offence in the presence of the accused. Moreover, the word 'trial' occurring

in sub Section(2) of Section-154 cannot be construed as a trial of the civil

suit. The word 'trial' has been used in conjunction with the word 'inquiry'.

The terms 'inquiry' and 'trial' would, therefore, have to be read ejusdem

generis i.e. of the same nature. In a civil suit, the trial does not envisage any

inquiry. The inquiry by a court is contemplated only under the Code of

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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Criminal Procedure, 1973, which lays down the procedure for trial of

criminal cases. It, therefore, follows that under Section-154(2) the word

'trial' is used in the context of a criminal trial. Thus construed, the following

proposition emerges from the reading of Section-154(2):-

(a). For Section-154(2) to apply, the transferor court should

be inquiring into or trying a criminal case, during the course of

which it should appear to the said criminal court that an offence

under Section-135 to 140 & 150 of the Act has been committed.

In such an eventuality, such criminal court shall transfer the

said criminal case along with the evidence already recorded by

it in the presence of the accused to the Special Court for trial

and disposal.

(b) After such transfer of the criminal case, the Special Court

shall conduct trial and if the accused is found guilty of the

offence of committing theft of electricity, the Special Court can

not only impose sentence and fine but could also saddle the

accused with civil liability.

(c) However, a civil suit filed by a plaintiff to challenge the

validity of a notice of penalty and compounding fee issued by

the authorities of defendant Nigam on the allegations of theft of

electricity cannot be transferred to the Special Court under

Section-154(2) as there is no provision under the law to change

the character of a civil suit into a criminal trial.

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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16. Further, as per Section 9 of the Code of Civil Procedure, 1908,

a Civil Court has plenary jurisdiction with regard to any matter of civil

nature or a case involving adjudication of a civil right of a party. It is settled

legal position that such plenary jurisdiction of Civil Court get ousted only

where it is expressly or impliedly barred by or under a statute. It is also

equally well settled that even where the jurisdiction of a Civil Court is

expressly barred by or under a statute, still the matter can be adjudicated

upon by the Civil Court if the impugned action is ultra-virus to the provision

of the statute, which bars the jurisdiction of the Civil Court or where the

provisions of the said statute itself are ultra-virus to the Constitution of

India. Such jurisdiction of the Civil Court can also be invoked in the cases

where the violation of the principle of natural justice is apparent on the face

of the record. In the present case, as already discussed above, the action of

the defendants in raising the impugned demand of penalty and compounding

fee is in clear violation of the guidelines and procedures laid down in the

sale circular of the defendant Nigam and they have also failed to comply

with the principles of natural justice while levying the impugned penalty on

the plaintiff. Therefore, on this account also the present suit is very well

maintainable before this Court. Thus, viewed from any angle, the

jurisdiction of this Court is not barred to adjudicate upon the validity of such

notice(s) alleging theft of electricity issued by the defendant Nigam on the

basis of their sales circulars and checking reports. For this view, I am

fortified by the law laid down by the Hon'ble Punjab & Haryana High Court

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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in the case titled 'Dakshin Haryana Bijli Vitran Nigam Limited versus

Poonam Vashisth 2009(2) RCR (Civil) 677, Punjab State Electricity

Board, Patiala and others versus M/s Guru Nanak Agriculture

Engineering Works and others 2007(2) RCR (Civil) 213 and

UHBVNL Vs. Harjit Singh 2014(1) PLR 184 .'

17. In this view of the matter, the suit of the plaintiff is held to be

maintainable. Accordingly, findings on these issues are also returned against

the defendant and in favour of the plaintiff.

ISSUES NO.3 TO 5

18. The onus to prove these issues lies upon the defendant. In the

light of detailed discussion made in issue No. 1 and 2, the plaintiff has a well

founded locus standi and cause of action to file and maintained present suit.

The defendant has failed to prove the material facts, which the plaintiff

intentionally concealed, on the basis of which it can be said that the plaintiff

has not come to the court with clean hands. Accordingly, these issues are

decided against the defendant and in favour of the plaintiff.

RELIEF

19. As a sequel of the foregoing, for the reasons discussed in the

above mentioned issues, especially issue No. 1 & 2, the suit of the plaintiff

succeeds and is hereby decreed with costs to the effect that checking report

LL-1 dated 11.02.2017 (Ex.DW1) cannot be said to have been prepared in

accordance with law and are hereby declared to be illegal, null and void and

the subsequent notices (Ex.P3/ D2 and Ex.P1/ D3) dated 15.02.2017

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
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prepared on that basis are also liable to be set aside. The defendant is not

entitled to recover the amount as mentioned in subsequent notices from the

plaintiff and defendant is also restrained from disconnecting the electricity

connection of the plaintiff under the garb of above-said checking report/

notices prepared on that basis. The payment, if any, already made in

pursuance to impugned notices is liable to be adjusted in subsequent

electricity, bills of the said connection. Decree sheet be prepared

accordingly. File be consigned to record-room, after due compliance

complete in all respects.

Date of Decision: 19.11.2018 (Ashwani Gupta)

Civil Judge(Jr. Divn.), Hisar
U.I.D.No.HR0450

Note: This judgment consists of eighteen pages and each page has been
checked and signed by me.

Date of Decision: 19.11.2018 (Ashwani Gupta)

Sanjeev Kr. S.Gr.II Civil Judge(Jr. Divn.), Hisar
U.I.D.No.HR0450

I attest to the
accuracy and
authenticity of this
SANJEEV document.
Digitally signed by
KUMAR SANJEEV KUMAR
Date: 2018.11.28
10:31:42 +0530

(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Hisar 19.11.2018