Professional Documents
Culture Documents
DHBVNL,Hisar
1
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
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Present: Sh. Ashish Goyal, Advocate for plaintiff.
Sh. Manpreet Singh, Advocate for defendant.
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JUDGMENT
(Delivered on 19.11.2018)
(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Pawan VS S.D.O. DHBVNL,Hisar
2
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
of the premises of the plaintiff and not to initiate any proceedings for
the order of the Hon'ble Court during the pendency of the suit, then the same
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
(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
3
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
running till date. Neither the videography is conducted, nor the calculations
are prepared in accordance with the instructions of the Nigam. Not only the
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
(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
4
The defendant submitted that on 11.02.2017, the meter of the plaintiff was
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
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
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
parties, the following issues were framed, vide order dated 30.05.2017
(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
5
Hisar:-
(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
6
defendant has examined the following witnesses and tendered on record the
(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
7
by court order.
closed by the learned counsel for plaintiff, vide his separate recorded
9. The burden to prove these issue lies upon the plaintiff. Both
repetition of reasoning and for the sake of brevity, these issued are taken up
together.
vehemently argued that the plaintiff has made no default, giving rise to any
notices. Rather, the connection is in the name of his brother Joginder, who is
(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
8
of the bills. Meaning thereby, the plaintiff is neither owner nor user of the
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
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
wherein the direct supply of electricity has specifically been mentioned, duly
theft of electricity and compounding thereof are also proved on record by the
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.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
9
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
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,
could have been examined qua the checking, if any. Meaning thereby, the
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.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
10
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
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
the help of a wire is not tenable, because in order to rebut this contention of
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
be said that the electricity supply was directly connected by the plaintiff. In
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.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
11
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
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
Section 126 and 127 have been provided in Part-XII of the Act under the
(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
12
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
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
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
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
of the Act. The notices Ex.D2 & 3, issued in the instant case cannot by any
(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
13
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
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
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
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
eventuality, the court shall transfer the case to the Special Court for trial and
transferred to the Special Court for trial and disposal in as much as the
(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
14
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
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
Obviously, the evidence recorded by a Civil Court in a civil suit filed by the
offence in the presence of the accused. Moreover, the word 'trial' occurring
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
(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
15
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
under Section-135 to 140 & 150 of the Act has been committed.
and disposal.
(b) After such transfer of the criminal case, the Special Court
not only impose sentence and fine but could also saddle the
(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
16
a Civil Court has plenary jurisdiction with regard to any matter of civil
legal position that such plenary jurisdiction of Civil Court get ousted only
equally well settled that even where the jurisdiction of a Civil Court is
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
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
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
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.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
17
17. In this view of the matter, the suit of the plaintiff is held to be
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
RELIEF
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
accordance with law and are hereby declared to be illegal, null and void and
(Ashwani Gupta),
Civil Judge(Jr. Divn.)
U.I.D.No.0450
Hisar 19.11.2018
Pawan VS S.D.O. DHBVNL,Hisar
18
Note: This judgment consists of eighteen pages and each page has been
checked and signed by me.
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