S.C.Jindal vs Uhbvnl Tr.Exec.Eng.& Anr

DR.S.C. JINDAL ... APPELLANT

VERSUS

UHBVNL THRO.EXECUTIVE ENGINEER & ANR. ... RESPONDENTS

O R D E R

The respondents, though served, has remained

unrepresented. Leave granted. Heard learned counsel for the

appellant.

2. The appellant runs a hospital at Kaithal and is a

consumer of electricity. His premises was inspected by the SDOs

attached to the office of Assistant Director (Vigilance) of

UHBVNL on 4.7.2002. The checking report dated 4.7.2002 issued

in regard to the said inspection recorded that all the M&T

seals were found tampered, that is, lace wire was cut and

reinserted into seal hole and pressed. The meter was removed,

packed in a cardboard box, sealed and delivered to Bhawani

Prasad-AFM. In pursuance of it, a penalty/backbilling notice

dated 5.7.2002 was issued claiming Rs.2,72,677/- as penalty

being the electricity charges assessed for the period of

preceding six months. The appellant was required to deposit the

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entire amount to avoid disconnection/to secure restoration of

supply. The appellant therefore deposited the said amount,

under protest on 6.7.2002 and filed an appeal before the

Superintending Engineer against the demand notice. No action

was taken on the said appeal.

3. In this background, the appellant filed a suit on

19.9.2002 seeking a declaration that the demand notice dated

5.7.2002 was null and void and for refund of the sum of

Rs.2,72,677/- deposited by him. The suit was contested by the

respondents. The appellant had examined himself as PW.2 and had

examined a clerk of UHBVNL (first defendant) as PW.1 and marked

Ex.P.1 to P.25. The respondents examined the two inspecting

officers as DW.1 and DW.2 and relied upon the checking report

(Ex.D.1) and the demand notice (Ex.D.2). The suit was dismissed

by judgment and decree dated 17.7.2006. The appeal filed by the

appellant was allowed by the Additional District Judge, Kaithal

by judgment and decree dated 11.4.2007. After considering the

evidence in detail, the first appellate Court recorded the

following findings of fact:

(a) That the appellant's premises and installation was

checked by the officers of defendants on 19.2.2002 and all the

M&T seals were found to be in tact and the meter was also found

to be in working condition. Therefore the assumption that there

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was theft of electricity for six months preceding the date of

inspection (4.7.2002) was not correct.

(b) There was nothing to show that subsequent to 19.2.2002,

the appellant had tampered with the meter or committed any

theft of electrical energy.

(c) On 4.7.2002, there was an inspection and M&T seals were

found to have been tampered. The meter was dismantled and

removed, but was not tested in any laboratory to show its

functioning was tempered.

(d) DW.1 admitted that he was not in a position to say

whether the meter was slow when it was checked on 4.7.2002. The

finding that M&T seals were tampered was not proof of tampering

of functioning of the meter. There was no averment or proof

that the functioning of the meter was tampered. The earlier

checking on 19.2.2002 was carried out on a complaint dated

18.2.2002 by appellant, about the wrong recording of

consumption by the Meter Reader resulting in Rs.6616/- being

found to be refundable. As a consequence, the Meter Reader was

transferred. The Meter Reader developed a grudge against the

appellant and the employees of the respondents were inimical

towards the appellant; and that in order to settle scores, the

M&T seals were tampered and thereafter the matter reported to

the Vigilance so that there can be inspection and harassment to

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the appellant. The entire episode was intended to teach a

lesson to appellant, because he dared to give a complaint

against Meter Reader.

(e) Both the defence witnesses admitted that before issuing

the demand notice, the consumption for the previous months was

not checked and there was no calculation sheet showing how

Rs.2,72,677/- was arrived at.

On these and other findings, the appellate Court held that the

demand for Rs.2,72,677/- was not legal or justified and set

aside the imposition.

4. Feeling aggrieved, the respondent filed a second appeal

and a learned single Judge of the High Court, by the impugned

judgment dated 4.11.2009, reversed the decision of the first

appellate Court and restored the dismissal of the suit by the

trial Court. The said judgment is challenged in this appeal by

special leave.

5. The High Court noticed in its judgment, that the

decision of the first appellate court was based on findings of

fact recorded in favour of the appellant and that the case did

not involve any question of law. The High Court also noticed

that in a second appeal, findings of fact are not to be

interfered, unless the findings of fact by the first appellate

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court were perverse or were recorded in the absence of any

evidence. The High Court was of the view that there was no

material to show that DW.1 Manoj Kumar Garg and DW.2 Rajpal had

made any false statements about the checking of the electrical

connection on 4.7.2002 and about the tampering of M&T seals;

and as they were responsible officers, their evidence ought not

to have been disbelieved by the first appellate Court.

6. But High Court failed to notice that the evidence of

DW.1 and DW.2 about the inspection on 4.7.2002 and finding of

tampering of M&T seals were not denied or disputed by the

appellant nor disbelieved by the first appellate court. The

first appellate on consideration of evidence had concluded that

appellant had not tampered with the M&T seals or the meter,

that someone else in the defendants' department, to teach a

lesson to appellant, as he dared to complain against the Meter

Reader, had deliberately tampered with only the M&T seals and

then given a complaint to the Vigilance so that the tampering

could inspect the installation and attribute the tampering to

the appellant. The first appellate court, which is the final

court of fact had analysed the evidence in detail and

thereafter recorded the aforesaid findings of fact on the basis

of which it decreed the suit. It is therefore not a case where

the first appellate Court had ignored any evidence or

misconstrued any document or acted perversely. It had only held

that the tampering was not done by the appellant, but in all

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probability done by the meter reader or someone from the

defendants' department to settle scores with the appellant.

7. We are of the view that having regard to the evidence

and findings of fact recorded by the appellate court, there was

no justification for the High Court to interfere with the

findings of fact recorded by the first appellate Court, in

exercise of jurisdiction under Section 100 of Code of Civil

Procedure. We, accordingly, allow this appeal, set aside the

order of the High Court and restore the judgment and decree of

the first appellate Court decreeing the Suit.

.....................J. ( R.V. RAVEENDRAN )

New Delhi; .....................J. January 07, 2011. ( A.K. PATNAIK )