Mohammad Rafiq, J. - (1.) THIS is defendant's second appeal filed against judgment and decree dated 13.03.2013 passed by learned District Judge, Sikar, whereby judgment and decree dated 19.01.2013 passed by learned Additional Civil Judge (Junior Division) No. 1, Sikar, decreeing the suit of the plaintiff filed for declaration and permanent injunction, has been reversed. Plaintiff -respondent filed a suit seeking declaration that notice dated 23.08.2007 is illegal, void -ab -initio and ineffective against the plaintiff and defendants be restrained from disconnecting agriculture electricity connection of the plaintiff. According to the plaintiff, duly sanctioned agriculture electricity connection is installed in his agriculture land for last thirty years. The Assistant Engineer of the defendants Ajmer Vidhyut Vitaran Nigam Limited, without any authority of law, carried out the inspection of the electricity connection of the plaintiff and prepared a vigilance report. In the report it was stated that the meter was running with less than the normal speed. As a result of slow running, the meter is showing 50% less consumption. By notice dated 23.08.2007, the defendants required the plaintiff -respondent to deposit a sum of Rs. 35,000/ -. Learned trial court dismissed the suit and upheld the recovery notice. The first appellate court has however set -aside the judgment and decree of the trial court and decreed the suit of the plaintiff -respondent.
(2.) SHRI Raunak Singhvi, learned counsel for the defendant -appellants, has argued that learned first appellate court has erred in law in reversing the judgment of the learned trial court without examining his findings in true perspective. The suit was not maintainable because as per the General Condition of Supply, if any dispute arises between the consumer and appellant Department, the same, at the first instance, should be referred to settlement committee. The suit was under valued. It was argued that learned first appellate court failed to appreciate that in exercise of powers conferred by Sections 50, 181 and 183 of the Indian Electricity Act, 2003 (for short, 'the Act of 2003'), the Rajasthan Electricity Regulatory Commission made the Regulations by issuance of the notification dated 20.06.2006. The said Regulations provide with respect to quantum of provisional assessment of civil liability subject to final determination by the special court under Section 154 of the Act of 2003. The term 'civil liability' has been used in Section 154 of the Act of 2003, which prescribes that final assessment of civil liability will be made by the special court under Section 154(5). Sub -section (6) of Section 154 provides that if any excess amount is being received earlier, the same will be refunded back under Section 154(6), meaning thereby there has to be a provisional assessment of civil liability in the case of theft, which can be adjusted or finalized under Section 154 of the Act of 2003. Since the cases of theft are not covered under Section 126 of the Act, the question of assessment of civil liability, even provisional in nature, cannot be made in the above provisions. The learned first appellate court has taken a wrong view in holding that final assessment under Section 135 could have been made as per the procedure prescribed under Section 126 of the Act of 2003. The learned first appellate court has wrongly held that opportunity of hearing was not granted to the plaintiff -respondent prior to passing of the provisional assessment order. Moreover, the learned first appellate court also erred in law in holding that the Assistant Engineer should have taken order for inspection, and he was not competent to inspect the site and undertake the enquiry on his own. Upon hearing learned counsel for the defendant -appellant, I find that the findings recorded by the learned first appellate court cannot be held to be perverse or erroneous. The learned trial court has referred to Section 135 of the Act of 2003, which provides for both, the provisional and final assessment. The learned first appellate court has held that prior to passing the aforesaid assessment order, the respondent no. 4, Assistant Engineer, did not issue any notice and did not invoke the jurisdiction. No opportunity of hearing was granted to him. The learned first appellate court relied on the judgment of this court in M/s. Shiv Parwati Marble Vs. Ajmer Vidhyut Vitran Nigam Limited - : AIR 2010 Rajasthan 86, and rightly held that the provisions of Section 126 of the Act of 2003 were not followed in the present case.
(3.) THIS court does not find any infirmity in the view taken by the learned first appellate court. The controversial issues involved in the present case relate to the question of fact and there is finding of fact by the first appellate court, and this court does not deem it appropriate to interfere with the matter in the second appeal because the sum demanded by the appellant by demand notice, was only Rs. 35,000/ -.;