IMPORTANT POINT
Electricity--Theft of--Penalty--Refund of--Jurisdiction of Civil Court--Assessment made under Section 126--Jurisdiction of Civil Court in such assessment barred under Section 145.

Sabina, J.

1. Plaintiff Vinod Kumar filed a suit for declaration challenging the checking dated 30.6.2004 vide which the penalty of Rs. 15,13,585/- had been imposed on account of alleged theft of energy and mandatory injunction directing the defendants to refund or adjust Rs.12,10,866/- paid by the plaintiff against receipt No. 160 dated 2.7.2004. The suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division), Panipat vide judgment and decree dated 27.7.2007. The appeal filed by the plaintiff was partly allowed by the Additional District Judge, Panipat vide judgment and decree dated 18.12.2007 and directed the defendants to make fresh assessment of the amount of penalty only for a period of 15 days in accordance with procedure prescribed under Section 126 of the Electricity Act, 2003 (for short the New Act). After deducting the amount of penalty of Rs. 12,10,866/- deposited by the plaintiff, remaining amount was ordered to be refunded to him with interest @ 12% per annum from the date of deposit till payment. Hence, the defendants have filed the present appeal.

2. The case of the plaintiff, in brief, is that he was holder of meter account No.R2 1283 LT. He had been making payment of the energy bills issued by defendant No.3. The officials of the defendants came on the premises of the plaintiff and a notice for payment of Rs. 15,13,585/- as penalty on account of alleged theft of energy was issued. The said notice dated 30.6.2004 was illegal, null and void. It was averred by the plaintiff that the meter in question had not been tampered with. No alleged checking ever took place either in his presence or his authorised representative. The last checking of M&P staff was held on 14.6.2004 and at that time meter was found in order. As such, if penalty had to be imposed it could only be for a period from 15.6.2004 to 30.6.2004. The plaintiff had deposited 80% of the alleged penalty as demanded vide the notice in order to get restoration of electricity supply and to avoid lodging of an FIR. The plaintiff had also preferred an appeal to XEN/City defendant No. 2 on 7.7.2004 but no action has been taken on his appeal so far. Hence, the suit was filed.

3. The defendants in their written statement took up preliminary objections that the suit was not maintainable and the plaintiff has no cause of action to file the suit. On merits, it was averred that on 30.6.2004, the premises of the plaintiff had been checked between 7 A.M. to 10.45 P.M. A magnet was found affixed on the right side of MCB and the factory was found in running condition. Thus, the meter was found obstructing power unlawfully to run his factory by making the meter un-functional by placing a magnet on right side of MCB. The penalty was imposed as per the rules. The checking conducted by M&P on 14.6.2004 was periodical checking of the meter. But only on the checking done on 30.6.2004 by the Vigilance staff, it was found that the plaintiff was committing theft of electricity.

4. On the pleadings of the parties, following issues were framed by the trial Court :-

"1. Whether notice/memo No. 3875 imposing penalty of Rs. 15,13,585/- is illegal ? OPP

2. Whether the plaintiff is entitled to refund of Rs. 12,10,686 ? OPP

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

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

5. Whether the plaintiff has no cause of action ? OPD

6. Relief."

5. Learned counsel for the appellants has submitted that in terms of the New Act, the jurisdiction of the Civil Court to try the suit was barred.

6. Learned counsel for the respondent, on the other hand, has submitted that the Civil Court had the jurisdiction to try the suit.

7. The substantial question of law that arises in this case is " whether the Civil Court has no jurisdiction to try the suit ?" Section 145 of the New Act is reproduced herein-below :-

"145. Civil Court not to have jurisdiction. - No civil