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HARSH BUNGER, J. (ORAL) –

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 29.10.2018 passed by the learned Civil Judge (Junior Division), Karnal, and also the judgment and decree dated 07.02.2024 passed by the learned Additional District Judge, Karnal.

2. Briefly, plaintiff (God Sons Senior Secondary School, Ramba, Tehsil and District Karnal through its Director) filed a suit for declaration with consequential relief of mandatory and permanent injunction against the defendants on the plea that the plaintiff is having N.D.S. electricity connection bearing account No.ND-38-1934-L, which is running in the school of the plaintiff and he is regularly paying the charges. It was pleaded that the plaintiff on number of occasions had visited the office of defendant No.2-Sub Divisional Officer, (OP), Uttar Haryana Bijli Vitran Nigam Ltd. (in short “UHBVN”) for providing proper electricity supply however, nothing was done in this matter. It was stated that the plaintiff was surprised to receive two notices bearing memo No.SDNKNL/2017/875 and memo No. SDNKNL/2017/876 dated 28.07.2017 by virtue of which, the defendants have imposed a penalty of Rs.1,65,095/- on account of assessment for theft of electricity and Rs.35,000/- on account of compounding the offence of theft of electricity. The plaintiff maintained that both the aforesaid memos-cum-notices are illegal and arbitrary as neither any theft of electricity has been committed nor detected at the premises of the plaintiff. It was also pleaded that no respectable person of the locality was associated at the time of alleged checking in terms of the relevant instructions. It was further averred that the defendant has no jurisdiction to serve the notice under Section 135 of the Electricity Act, 2003 (in short “2003 Act”) and even the officers, who conducted the alleged checking were not competent to make inspection for the theft of electricity. Principles of natural justice were also stated to have been violated. Accordingly, the suit was filed.

2.2 Upon notice being issued, the defendants opposed the claim of the plaintiff by filing their written statement, wherein a preliminary objection was raised that the Civil Court has no jurisdiction to entertain and try the suit in view of the provisions contained in Section 145 of 2003 Act. While replying on merits, it was submitted that the premises of the plaintiff were checked on 25.07.2017 at about 3:20 PM to 3:50 PM by the staff of the Executive Engineer, Enforcement UHBVN, Karnal in the presence of Shri Joginder Singh (Principal of the school) and at the time of checking, it was found that two core black colour PVC approximately 10 meters was tapped from the LT line of the Nigam running behind the school and taken into the electrical loads through grip system from Kurali AP Feeder. Further, PVC was found running into the school building and a case of theft of energy was found to be made out. Even the videography was stated to have been carried out. The defendants maintained that the supply was disconnected and meter and PVC were handed over to the OP staff for further action into the matter. The connected load at the time of checking was found as 6.626 KW. Accordingly, the impugned memos were issued to the plaintiff. Other averments of the plaint were denied and prayer for dismissal of the suit was made.

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

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

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

3. Whether the suit of the plaintiff is not legally maintainable? OPD

4. Whether the plaintiff has not come to the Court with clean hands and has suppressed the true and material facts from this Court? OPD

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

6. Whether this Court has got no jurisdiction to entertain, try and decide this suit as provided under Section 145 of the Electricity Act? 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 29.10.2018.

6. Feeling aggrieved against the trial Court’s judgment and decree dated 29.10.2018, the defendants preferred an appeal before the learned Additional District Judge, Karnal, which has been dismissed vide judgment and decree dated 07.02.2024.

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 his able assistance.

9. In the present case, the plaintiff had filed the suit challenging two notices bearing memo No.SDNKNL/2017/875 and memo No. SDNKNL/2017/876 dated 28.07.2017 by virtue of which, the defendants have imposed a penalty of Rs.1,65,095/- on account of assessment for theft of electricity and Rs.35,000/- on account of compounding the offence of theft of electricity. The challenge of the plaintiff was primarily based on the plea that the plaintiff has not committed any theft of electricity. On the other hand, the claim of the defendants was that the premises/school of the plaintiff were checked on 25.07.2017 and at the time of checking, the case of theft of energy was made out and accordingly the impugned memos/notices were issued.

10. Learned trial Court, after considering the matter, returned the following findings as regards theft of electricity is concerned:-

“16. As far as first proposition is concerned, Learned counsel for the plaintiff has argued that false case of theft of electricity has been made by the officials of defendant Nigam and the plaintiff never committed theft of electricity as alleged by the defendants. I am in agreement with this plea of Learned counsel for the plaintiff because there is nothing on the record to even prima-facie show that the plaintiff committed theft of electricity by taking direct supply from the LT line directly through black colour PVC as alleged by the defendants. There is nothing on the record that any respectable from the locality during the checking was joined. Perusal of cross-examination of DW-2 reveals that no site plan has been prepared at the time of checking to show from where the alleged wire was attached. Apart from that, the defendants have alleged that black colour PVC was recovered which was taken into possession, however, there is no evidence on the case file regarding the same and neither the said black colour PVC wire has been produced nor any explanation for its non-production has been given. Admittedly, when the alleged raid was conducted, then the school children were not present which means that the premises were closed. This fact is further corroborated from Ex.P-3 wherein school timings are shown to be from 08:00 hours to 14:00 hours. Now it is hard to believe that the school owners would take such a risk of committing theft of electricity particularly at that point of time when there is no need of taking electricity supply as the school remains closed during that time taking into consideration the school timings.

17. Further, perusal of LL-I report shows that the same has not been signed by the plaintiff which also creates doubt regarding the checking because had the plaintiff been present and he had refused to sign the LL-I report, then it was incumbent upon the defendants to call some respectable person of the locality to witness the said checking. Thus, the raid conducted by the defendants can not be said to be free from doubt. Now, when the plaintiff has specifically denied the checking, therefore, it was incumbent upon the defendants to prove the same which they have failed to prove. Even DW-2 has admitted during his cross-examination that he could not tell whether the name of the principal of the school was Joginder Singh or not. Although, he has voluntarily stated that the said person had introduced himself as the principal, however, that itself is not sufficient to establish that any person by name of Joginder Singh was actually present at the time of checking and he was the principal of the school. Further, the LL-I report has not been signed by the consumer and it has been admitted by DW-2 that he did not affix the copy of LL-1 report over the wall of the school after the same was refused to be signed by the principal. Thus, when no copy of LL-1 report has been handed over to the plaintiff or brought to the knowledge of the plaintiff, then it has remained unexplained how the checking party deduced that theft of electricity was committed by the plaintiff. Accordingly, no reliance can be placed on alleged checking.

18. The CD i.e. Ex-D5, which has been placed on record by the defendants cannot be taken as conclusive proof to establish commission of theft by the plaintiff as the same has not been proved in accordance with Section 65(B)(2) and Section 65(B) (4) of the Evidence Act, 1872 which lays down the conditions regarding admissibility of electronic records. Even DW-2 has admitted during his cross-examination that he had not brought the handy-cam by which the videography was conducted. Admittedly, certificate as per Section 65(B) of Evidence Act has also not been produced on record. Thus, the alleged checking by the defendants become doubtful and the case of theft has not been prima-facie established.

19. Now, the second proposition which is to be now looked into is regarding issuance of notice under Section 135 and Section 152 of the Electricity Act, 2003. Learned counsel for the plaintiff has contended that notice under Section 126 of the Electricity Act should have been issued to the plaintiff rather a notice under Section 135 of Electricity Act which itself makes the impugned notices invalid. I am in agreement with this plea of Learned Counsel for the plaintiff because Section 126 of the Electricity Act provides for the provision of assessment by assessing officer and the proper procedure has not been adopted by the defendant while assessing the liability and issuing notice of recovery of penalty.

20. It was incumbent upon the defendant to issue a provisional notice under Section 126 of the Electricity Act and to make an assessment thereunder, however, the defendant acted beyond the scope of the Act and instead of issuing a notice under Section 126 of Electricity Act, they took resort to Section 135 of the Electricity Act which makes the impugned notice null and void.”

11. A perusal of the above extracted findings of learned trial Court would show that the defendants had failed to prove on record that the plaintiff had committed theft of electricity by taking direct supply from the LT line through black PVC, as claimed by them. It has come on record that no respectable person from the locality was joined during the checking of the school premises by the defendants. Even no site plan had been prepared at the time of checking, so as to show from where the alleged wire was attached. It is also matter of record that although the defendants claimed that they had recovered black colour PVC, which was taken into their possession however, no such black colour PVC was produced in Court. Further, LL-I report was also not signed by the plaintiff and in case, the plaintiff or any of its representative had refused to sign the said report, then it was incumbent upon the defendants to call some respectable person of the locality to witness the said checking. Even the presence of the Principal at the time of checking has also not been proved on record. It has further come in evidence of DW2 (Sarvesh, SDO in office of UHBVNL, Sub Division, Jundla, Karnal) that he did not affix the copy of LL-I report over the wall of school after the same was refused to be signed by the so-called Principal. That apart, even the CD (Ex.D5), which was placed on record to establish commission of theft by the plaintiff, was not proved in accordance with Section 65(B)(2) and Section 65(B)(4) of the Evidence Act, 1872. Even the certificate, as envisaged under Section 65(B) of the Evidence Act, has also not been produced on record. Accordingly, it has been held that the alleged checking by the defendants becomes doubtful and the case of theft has not been prima facie established.

12. Learned trial Court has further come to the conclusion that even the impugned notices, issued under Section 135 of 2003 Act, were invalid as the notices were required to be issued under Section 126 of 2003 Act and not under Section 135, which makes the impugned notices null and void.

13. The aforesaid findings returned by learned trial Court has been further affirmed by learned First Appellate Court, who while referring to paragraphs 12 to 14 of the judgment rendered by the Hon’ble Supreme Court in the case of The Executive Engineer and another vs. M/s Sri Seetaram Rice Mill, 2012(2) SCC 108, observed as under:-

“Thus, in view of the law laid down by the Hon’ble Apex Court, it is clear that the authorities under the Act are empowered to make a provisional and final assessment by invoking power under Section 126(1) of the Act, even in cases where electricity is unauthorisedly used by way of theft. In the face of such express exposition of law by the Hon’ble Apex Court, the contention urged by the learned counsel for appellants-defendants that the assessment of civil liability contemplated under Section 135 of the Act could only be de hors Section 126 of the Act is untenable. At any rate, law is well settled that the subordinate legislation (in the present case, Clause 7.3 and Clause 7.8 of the Regulations, 2014) cannot supplant the express/ implied provisions of the statute or enact a procedure distinct from express statutory provision, which is bereft of the principles of natural justice of giving reasonable opportunity of being heard to the consumer/ person aggrieved. The judgment of our own Hon’ble High Court in the case of Ramesh Chand Vs. UHBVNL and others, supra to the extent it lays down contrary to the judgment of Hon’ble Apex Court in the case of West Bengal State Electricity Distribution Company Vs. M/s Orion Metal Pvt. Ltd., supra cannot be held binding on this Court.

15. Admittedly, the assessment of civil liability made in the present case vide memo/ notice/ order Ex.P1 (also Ex.D3) is not in compliance with the procedure laid down in Section 126 of the Act and the minimal procedural requirements to ensure fairness and compliance with the principles of natural justice as incorporated in Section 126 of the Act i.e. making of an order of provisional assessment, service of order of provisional assessment upon the plaintiff, granting an opportunity to the plaintiff to file objections against the provisional assessment and then affording him a reasonable opportunity of hearing before passing the final order of assessment, have not been complied with in the present case. Rather, the assessment purports to have been made de hors the provisions of Section 126 of the Act, purporting to rely on the procedure laid down in Clause 7.3 and Clause 7.8 of the Regulations, 2014, which has already been held to be unsustainable. Such assessment cannot stand legal scrutiny and must necessarily be struck down. However, the further question which arises here is that in case the assessment of civil liability has been made by the authorities of defendants-appellants, which assessment was competent only under Section 126(1) of the Act, then whether such assessment could be challenged in the Civil Court having regard to the bar of jurisdiction enacted under Section 145 of the Act. Law is well settled that even in a case where the statue bars the jurisdiction of Civil Court either expressly or by necessary implication, the jurisdiction of Civil Court is not totally ousted and the Civil Court shall always have the jurisdiction to consider whether the provisions of the particular Act have not been complied with or whether the authorities under the Act have not acted in conformity with the fundamental principles of judicial procedure. Reliance in this regard may be placed upon judgment of Hon'ble Apex Court in the case of Dhulabhai Vs. State of Madhya Pradesh AIR 1969 SC 78. Thus, it is open to the civil court to look into the impugned memo/ notice/ order Ex.P1 (also Ex.D3) in order to find out whether the same is in conformity with the provisions of Section 126 of the Act and the procedure incorporated therein. Resultantly, the impugned memo/ notice/ order Ex.P1 (also Ex.D3) must be held to be null and void and any demand raised by the appellants founded upon such memo/ notice/ order must also be held to be null and void.

16. Here, it needs to be stated that the appellants-defendants have also raised the contention that since the plaintiff-respondent has paid the compounding fee imposed vide memo/ notice/ order Ex.P2 (also Ex.D2), he shall be deemed to have admitted the commission of offence of theft of electricity. In this regard, suffice it to say that such payment of compounding fee was in terms of the interim order passed by the learned trial Court in the suit and the same cannot be construed an admission of guilt with respect to the commission of offence of theft on the part of plaintiff-respondent. Besides, such contention has no relevance to the questions which arise for determination in the present case. No other ground has been urged in appeal.

17. Consequently and in view of the aforesaid discussion, the learned trial Court has returned correct findings on Issue no.1, which are not shown to suffer from any illegality or infirmity and the findings given by the learned trial Court are hereby upheld, on the grounds as above. The findings on Issue no.6 with respect to the jurisdiction of the Civil Court are also maintained against the defendants-appellants and in favour of the plaintiff-respondent, while holding that the Civil Court has the jurisdiction to entertain and try the present suit.”

14. 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.

15. 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.

16. 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  ”

16.1           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.

17. 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.

18. 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.

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

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

Appeal dismissed.

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