Mr. Augustine George Masih, J.: (Oral) - C.M. 11162-C of 2015

Prayer in this application is for condonation of delay of 60 days in filing the appeal.

For the reasons mentioned in the application, which is duly supported by the affidavit of S.D.O. (Op.) Sub Division, DHBVNL, Uklana District Hisar, the same is allowed. Delay of 60 days in filing the appeal stands condoned.

RSA No. 4610 of 2015

Challenge in this appeal is to the judgment and decree passed by the Civil Judge (Junior Division) Hisar dated 22.05.2014, whereby the suit for declaration to the effect that the checking report No. 24/1823 dated 06.12.2012 prepared by the staff of the appellant-defendant and the subsequent Memo Nos. 336 and 337 both dated 24.01.2013 issued by the appellant relating to the account for deposit of Rs. 86,312/- on account of theft of electricity and Rs. 28,000/- as compounding fee respectively are illegal, without show cause notice and without affording an opportunity of hearing and against the mandatory provisions of Electricity Act, 2003 with a permanent injunction restraining the defendant from recovering the impugned amount with a further mandatory injunction directing the appellant-defendant to restore the electricity supply of the respondentplaintiff, stands decreed, appeal against which preferred by the appellantdefendant dismissed by the Additional District Judge, Hisar on 10.04.2015.

2. It is the contention of the learned counsel for the appellant that the Courts below have not appreciated the fact that the suit was not maintainable as it was a case of theft and the jurisdiction of the Civil Court is barred under Section 135 of the Electricity Act, 2003. That apart, he contends that at the time of checking of the meter in the premises of the respondent-plaintiff, the seal of the meter was found tempered with and, therefore, it was a clear case of theft, which report was prepared in the presence of the son of the respondent-plaintiff who had duly signed the said report. He asserts that the finding, as recorded by the Courts below that the notice has not been given to the respondent-plaintiff which has resulted in violation of the principles of natural justice, thus, cannot sustain. He prays for setting aside the impugned judgments and dismissing the suit of the respondent-plaintiff.

3. I have considered the submissions made by the learned counsel for the appellant and with his assistance, have gone through the impugned judgments.

4. The bar, as contained in Section 135 of the Electricity Act, 2003, as per the assertion of the counsel for the appellant, would be to a case where there is a theft of electricity. The report L1 only mentions that there is tempering of the seal of the meter, which cannot constitute a theft in the light of the judgment of this Court in Harbhajan Singh and others vs. State of Punjab and another, 2002 (4) RCR (Civil) 133 as also the judgment in Kamaljeet Singh vs. The Bihar State Electricity Board, 2011 (1) RCR 475, where it has been held that merely because seals were found tempered, there is no legal or factual presumption of meter tempering and power theft. In the Punjab State Electricity Board and another vs. Firm New Era Printing Mills, Batala Road Amritsar, 2009 (3) LJR 618, it has been observed by this Court that “to prove the theft of electricity, the basic requirement is that the meter must have been checked from concerned laboratory.”

5. In the light of the above principles, the real report, which would determine whether there was a theft of electricity or not, would be the report of the M & T Laboratory. Admittedly, no notice is proved to have been served upon the respondent-plaintiff as to the date on which the meter was being checked in the said laboratory. In the absence of there being any proof that the respondent had an opportunity to present herself in the lab at the time of testing of the meter, the principles of natural justice are rightly held to have been violated. Even in the Rule