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HARSH BUNGER, J. (ORAL)

CM-8198-C-2026

Application (CM-8198-C-2026) is filed seeking condonation of delay of 406 days in filing the regular second appeal (RSA-2297-2026).

Keeping in view the reasons mentioned in the instant application (CM-8198-C-2026), the same is allowed and delay of 406 days in filing the regular second appeal (RSA-2297-2026) is condoned.

The instant application, i.e. CM-8198-C-2026, is disposed of in the aforesaid terms.

RSA-2297-2026 (O&M)

1. For convenience, the parties herein are being addressed as per their status in the original suit.

1.1. This is the defendant’s second appeal challenging judgment and decree dated 21.12.2019 passed by the learned Additional Civil Judge (Senior Division), Bhiwani, and also the judgment and decree dated 17.04.2025 passed by the learned District Judge, Bhiwani.

2. Briefly, plaintiff (Gajender) filed a suit for declaration and injunction against the defendants on the plea that he possess an electricity connection in the name of his father under NDS category and he is using the same and paying his bill regularly. It is the case of the plaintiff that the meter of the plaintiff was installed by the defendants on the wall outside the premises/shop. On 14.09.2017, some employees of the Dakshin Haryana Bijli Vitran Nigam Ltd. (in short “DHBVNL”) visited the premises of the plaintiff and removed the electricity meter from the wall by saying that they are changing the meter and installing a new one. At the time of checking, the plaintiff was present and the officials obtained the signatures of the plaintiff on a blank proforma. Subsequently, on 08.11.2017, the plaintiff received a message from the office of Sub-Divisional Officer (OP), City, Sub Division, DHBVNL, Bhiwani calling upon the plaintiff to be present in his office for the purpose of testing of his meter. The plaintiff stated that after receiving the aforesaid message, his father visited the office of defendant No.3 and after checking of meter, they obtained the signatures of plaintiff’s father (Jai Singh) by saying that everything is OK and seals are intact. The plaintiff further averred that on 22.11.2017, the employees of the DHBVNL visited the house of the plaintiff and tried to remove the meter and upon asking, the plaintiff was told that he was doing theft of electricity by tampering the meter and in case he wants the supply to continue, then he should deposit penalty amount as assessed by defendant No.3.

 2.1           Thereafter, the plaintiff is stated to have visited the office of defendant No.3, where he was told that his meter was tampered and therefore, deposit Rs.70,212/- as loss to the Nigam and Rs.15,000/- as compounding charges. He was further informed that in case the penalty amount was not deposited then the supply would be disconnected and even the criminal proceedings would be initiated. The plaintiff was also handed over a copy of the notice/memo No.B-13-2017/2450 and B-13-2017-2451 dated 13.11.2017 for depositing penalty amount of Rs.70,212/- as loss to Nigam and Rs.15,000/- as compounding charges.

2.2 In the aforementioned circumstances, the plaintiff filed the suit.

2.3 Upon notice being issued in the suit, the defendants opposed the claim of the plaintiff by filing their written statement, wherein inter alia the following stand was taken:-

“……..that the true facts of the present case are that the premises of the plaintiff were checked on 14.09.2017 by the checking party headed by Sh. Rajesh Kumar SDO, Krishan AFM, Surender LM, Rajkumar and Pardeep ALM in the presence of the plaintiff and during checking it was found that meter was installed on wall outside shop. Meter was removed and packed in cardboard box. The meter was referred to M & T lab for further testing of accuracy of meter as meter was tempered. The supply was restored and new meter was installed. The videography was done at site and plaintiff has signed the LL-I report. Report was prepared on the spot and same was signed by the plaintiff. As such it is a clear case of stolen electricity directly by the consumer and as such dishonestly committing theft of electricity. The meter was checked on 08.11.2017 and the observations of the lab are that M & T seal intact but meter body is tempered from back side by making a window and refixed. Internal inspection carried out and observed that one number extra resistance inserted in Phase CT wire and Neutral CT wire found cut to manipulate the standard working of meter. Before checking of meter notice was served by the Nigam and representative of plaintiff was present at the time of checking. The defendant assessed total penalty amount of 85,212/- (Rs.70,212 as net loss and Rs.15,000/- as compounding) as per rules of the Nigam. The notice bearing Memo No.B13/2017/2450 dated 13.11.2017 was served and a demand of Rs.70,212/- was raised on the basis of LL-I No.1816/30 dated 14.09.2017 and a sum of Rs.15,000/- was fixed as compounding fee vide memo no.B13/2017/2451 dated 13.11.2017 and same were served upon plaintiff. A Letter No.B13/2017/2452 dated 13.11.2017 was sent to concerned SHO for registration of case.”

3. From the pleadings of the parties, the learned trial Court framed the following issues:-

“1. Whether the plaintiff is entitled to decree for declaration alongwith consequential relief of permanent and mandatory injunction? OPP.

2. Whether the plaintiff has no cause of action or locus standi to file the present suit? OPD.

3. Whether the suit is not maintainable in the present form? OPD.

4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD.

5. Whether the court has no jurisdiction to decide the present suit? OPD

6. Whether the plaintiff has not approached to the Court with clean hands and suppressed true and material facts? OPD

7. Relief.”

4. Thereafter, the parties led their respective evidence (oral as well as documentary) in respect of their claims.

5. Learned trial Court, after considering the matter, decreed the suit filed by the plaintiff, vide judgment and decree dated 21.12.2019.

6. Feeling aggrieved against the trial Court’s judgment and decree dated 21.12.2019, the defendants preferred an appeal before the learned District Judge, Bhiwani, which has been dismissed vide judgment and decree dated 17.04.2025.

7. In the aforementioned facts and circumstances, the present regular second appeal has been filed before this Court.

8. I have heard learned counsel for the appellants and perused the paper-book with her able assistance.

9. In the present case, the plaintiff filed a suit seeking declaration that the impugned notice/memo No.B-13-2017/2450 and B-13-2017-2451 dated 13.11.2017 for depositing penalty amount of Rs.70,212/- as loss to Nigam and Rs.15,000/- as compounding charges be declared as null and void. On the other hand, the defendants claimed that it was the case of theft of electricity.

10. Learned trial Court, after considering the matter, returned the following findings under issue No.1:-

“10. After hearing learned Counsel for the plaintiff and learned Counsel for the defendants and perusing the record very carefully, I have reached to the conclusion that in this case, the case of the plaintiff is fully proved and plaintiff is entitled to the relief claimed.

In the present matter, the plaintiff has not denied the factum that the checking was conducted on the fateful day and checking report was signed by him, but the plaintiff has taken the stand that when the meter was installed outside his premises on a pillar, therefore, the plaintiff is not responsible for any such alleged tampering as per the own instructions of the defendant Nigam.

In that respect the contention of the plaintiff is correct. A perusal of instructions dated 27.04.2007 of sales circular No.D-21/2007 issued by the CGM, Commercial, DHBVN, Hisar to all GMCs/GMs/DGMs/AGMs(OP),JE-1/C Sub offices in DHBVNL, it has clearly been mentioned that “It has been decided by the management that the concerned feeder manager will be held responsible in case the energy meters installed outside the premises are found tampered.”

In the present case, the electricity meter of the plaintiff was installed outside his premises and if the meter was installed outside his premises then as per the instructions of the defendant Nigam, the plaintiff cannot be held responsible for the tampering as alleged.

Apart from the above, the compliance of Sales Circular No.D-31/2008 was also not made while conducting the raid in the instant case by the raiding team. The relevant portion of the same reads as under:

“...The members of the raiding team can also be mix-up of operation, vigilance, M&P or any other organization alongwith the independent witness and police (if available). For security reasons the raiding party shall also associate HESL employees, who will be in uniform with weapons. The team will make a plan to raid the premises with video camera. Videography of the process of making raid shall be carried out at site, covering the complete mode of theft-detection and preferably also covering the members of the raiding party.”

But in the present case raiding party was not constituted as per the instructions of the Nigam and when the due procedure as laid down under Rules of the Sale Circular has not been followed by the defendant Nigam then the case is discrepant and in that respect, reliance can be placed upon the judgment titled Uttar Haryana Bijli Vitran Nigam Limited Versus Santokh Singh (Supra).

Moreover, in the present case, the penalty has been imposed upon the plaintiff directly vide notice Ex.P3 without providing opportunity of hearing to him and no provisional assessment of penalty was made and conveyed to the plaintiff, which has caused serious prejudice to the plaintiff and that is against the mandatory provisions of Section 126 of the Electricity Act, 2003, which reads as under:-

“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 unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or any other person benefited by such use.

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.”

In the present case, the defendants have imposed penalty upon the plaintiff directly without making provisional assessment and conveying the same to the plaintiff. In that respect document Ex.P3 shows that penalty was demanded from the plaintiff by issuing order of assessment. A perusal of Ex.P3 and Ex.P4 as well shows that no provisional assessment was made by the defendants and penalty of Rs.70,212/- and compounding amount of Rs.15,000/- has been demanded from the plaintiff.

Thus, it is clear that defendants have not complied their own instructions of sales-circulars about conducting of raid, provisional assessment and conveying of the same to the consumer.

As regard the contention of learned Counsel for the defendants that the jurisdiction of the civil court is barred, this contention is totally wrong and in that respect, reliance can be placed upon the judgment titled Dakshin Haryana Bijli Vitran Nigam Limited and others Versus Jaswant @ Jaibir(supra), which has been brought to the notice of this Court by learned Counsel for the plaintiff, wherein, Hon’ble Punjab and Haryana High Court has observed that “In view of the above, in the present case the order passed by the assessing officer, imposing penalty of Rs.1,49,200/- upon the plaintiff, was rightly challenged by the respondent before the Civil Court. The Courts below have rightly decreed the suit filed by the present respondent. The respondent had no remedy available to him to file any claim against such penalty before the Special Court. Therefore, the lower Appellate Court has rightly held that the Civil Court has got the jurisdiction to try the matter and to decide the same.”

Thus, in the present case, this Court is having the jurisdiction and the defendants have imposed penalty upon the plaintiff illegally without following the principles of natural justice and the guidelines of their own instructions/sales circulars and they have no right to disconnect the electricity connection of the plaintiff and to recover the amount of penalty.

In view of the above discussions, findings and the ratio of the law as settled by the Hon’ble High Court, this issue is decided in favour of the plaintiff and against the defendants.”

11. On the basis of the findings returned by learned trial Court on various issues, the suit filed by the plaintiff was decreed vide judgment and decree dated 21.12.2019. Even learned First Appellate Court has affirmed the findings of learned trial Court vide its judgment and decree dated 17.04.2025 by observing as under:-

“16. Perusal of case file reflects that in this case, though alleged checking was shown to have been done by officials of defendants department but no written permission was produced in the Court showing that written orders were passed by SDO before conducting raid and inspection of premises of plaintiff and this act of officials of defendants is against the provision given in Clause 7 of Sales Circular No.D-43 of 2007 of defendant-Nigam, which provides that “the concerned JEs/AFMs shall obtain prior written permission from the concerned SDO ‘OP before raiding and inspecting any suspected premises” and hence, there is clear violation of abovesaid provision by officials of defendants.

17.          Further, it is not in dispute that the electric meter of the plaintiff was installed outside the premises of the plaintiff. When the electric meter of the plaintiff was installed outside the shop of the plaintiff and it was found tampered with or defective, then the liability cannot be fastened upon the plaintiff because as per Sale Circular No.D-21/2007, it was the responsibility of Feeder Manager in case the meter installed outside the premises is found tampered with or defective. Also, as per Sale Circular No.D17/2014 of DHBVNL (clause 7.2.14(2)) no case of dishonest abstraction of theft of electricity can be framed only on account of the fact that seals on the meter and/or meter cubicle found missing or tampered with or fake or breakage of glass window or existence of hole in meter, loose glass, cut in incoming PVC cable or any other act, unless corroborated by consumption pattern of consumer, reliable tamper information and such other evidence which may establish that theft of energy was being actually committed. But in the present case the defendants have not adduced any such evidence.

18.          Further, as per defendants, videography/photography was carried out at the site. Perusal of LL-I/checking report Ex.D1 reflects that the videography was carried out at the site and the defendants have placed on file CD Ex.D6 but they have failed to prove the fact that the CD in fact relates to the site in question. Further, no certificate under Section 65B of Evidence Act of the person who had conducted the videography and the person who prepared the CD has been produced on the file. In these circumstances, the CD Ex.D6 cannot be taken into consideration.

19.          Further, in this case the defendants have examined Rajesh Kumar SDO as DW1 and Surender Lineman as DW2 i.e. the witnesses to the checking report and no witness of joint checking report has been examined by the defendants and hence, in the absence thereof, the said report has also remained unproved on record. In the absence of any corroboration from any other witness of joint checking report Ex.D5, it cannot be taken into consideration. Hence, defendants have failed to prove that the alleged checking at the premises of plaintiff on 14.07.2017 was done by following due procedure for inspection of premises and detection of theft of electricity by plaintiff.

20.          Further, no Clerk or C.A. has been examined by defendants to prove on the file the memos Ex.D2 and Ex.D3 and in absence of the same, the fact that who had prepared these documents have remained unsolved. Non-examination of Clerk or C.A. by defendants to prove documents Ex.D2 to Ex.D3 also goes against the defendants.

21.          Further, as per record, alleged checking at premises of plaintiff was conducted on 14.09.2017 and impugned notices were issued to plaintiff on 13.11.2017. Defendants have not produced on the file any documentary evidence that after alleged checking at premises of plaintiff on 14.09.2017 and before issuance of impugned notices dated 13.11.2017, any opportunity of hearing was provided to plaintiff prior to raising demand of impugned amounts, which is also a serious lapse on the part of defendants. It is well settled that an opportunity of hearing is required to be given to any party before any penalty is imposed upon the said party. However, defendants are not shown to have given any prior opportunity of hearing to plaintiff before raising demand of impugned amounts. Defendants have failed to explain as to why basic principles of natural justice have been violated by them before issuing the impugned notices to him. Hence, impugned notices are liable to be set aside on the ground of violation of principles of natural justice as well.”

12. A perusal of the findings returned by learned Courts below would show that the defendants did not produce any written permission/orders by the SDO concerned before conducting the raid/inspection of the premises of the plaintiff, which was contrary to the provisions contained in Clause 7 of Sales Circular No.D-43 of 2007, which provided that the concerned JEs/AFMs shall obtain prior written permission from the concerned SDO ‘OP’ before raiding and inspecting any suspected premises. It has also been found as a matter of fact that the electricity meter of the plaintiff was installed outside his premises and in these circumstances, the liability could not be fastened upon the plaintiff as according to Sales Circular No.D-21 of 2007, it was the responsibility of the Feeder Manager in case the meter installed outside the premises is found tampered with or defective. Further, although the defendants claimed that the videography/photography was carried out at the site, which was also mentioned in the checking report (Ex.D1) however, it has not been proved on record that the CD (Ex.D6) relates to the site in question. Further, no certificate under Section 65(B) of the Evidence Act, 1872 has been produced before the Courts below. No witness of the Joint Checking Report had been examined by the defendants therefore, the report remained unproved on record. Even the memos (Ex.D2 & D3) remained unproved on record. There is also no proof on record to show that the alleged checking at the premises of the plaintiff was carried out on 14.09.2017 and before issuance of impugned notices dated 13.11.2017, any opportunity of hearing was afforded to the plaintiff.

13. Before this Court, learned counsel for the appellants has failed to show as to how the findings returned by the Courts below are either illegal or perverse or based upon mis-reading or mis-appreciation of material evidence on record.

14. Another submission raised by learned counsel for the appellants is that the jurisdiction of the civil Court is clearly barred under Section 145 of 2003 Act and in support of the said contention, he places reliance upon the judgment rendered by Division Bench of this Court in the case of Mahesh Kumar vs. Sub-Divisional Officer and another, 2025(3) RCR (Civil) 303 = (2025) Law Today Live Doc. Id. 20121.

15. I have considered the aforesaid plea raised on behalf of the appellants however, suffice it to say that recently a co-ordinate Bench of this Court in RSA No.1952 of 2024, titled as Sub-Divisional Officer and another vs. Smt. Kamla Devi (decided on 27.10.2025), while dealing with a similar plea regarding bar of jurisdiction of civil Courts based upon decision rendered in case of Mahesh Kumar (supra), has clarified that the jurisdiction of civil Courts in electricity theft cases is not barred under Section 154 of 2003 Act. It has been held that the jurisdiction would be barred only in case where a complaint has been lodged by the competent officer/authority regarding theft of energy and the Special Court has taken cognizance of the offence pursuant to filing of such complaint or filing of police report as per Section 151 of 2003 Act. The relevant findings returned in case of Smt. Kamla Devi (supra) read as under:-

“22. In view of above, this Court finds that the Division Bench having relied upon powers conferred by Section 154 to hold that the jurisdiction of Civil Court, is barred in the case of theft of energy, the ratio can be relied upon by the supplier only in the cases wherein compliance has been made to the provisions of Section 135. Which means that only when a complaint has been lodged by the competent officer/authority regarding theft of energy and the Special Court has taken cognizance of the offence pursuant to filing of such complaint or filing of police report as per Section 151 of 2003 Act, the jurisdiction can be said to be barred invoking Section 154 of the Act of 2003. 23. In the absence of there being any complaint filed before the Special Court or FIR registered by the police authorities, the allegations of theft of energy, cannot assume the status of offence. In all those cases, where there is no FIR registered by the police authorities and/or complaint filed by the competent authorities before the Special Courts, the consumer is well within his right to approach the Civil Court alleging violation of the law and procedure prescribed therein…...”

15.1 In the present case, learned counsel for the appellants has failed to refer to any material to indicate that any complaint was filed before the Special Court or any case FIR was registered by the police authorities and cognizance thereof was taken.

16. In view of the above discussion and in peculiar facts and circumstances of this case, it cannot be held that the jurisdiction of the civil Courts was barred.

17. Considering the totality of circumstances, I am of the considered view that the impugned judgment and decree passed by learned Courts below are based upon proper appreciation of facts, pleadings as well as the law, which does not call for any interference by this Court. No question of law much less, a substantial question of law arises for adjudication in this regular second appeal.

18. Resultantly, the instant regular second appeal is dismissed being devoid of any merit.

19. All the pending application(s), if any, shall also stand closed.

Appeal dismissed.

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