Delhi District Court
Mohd Firoz vs Bses Yamuna Power Ltd on 23 December, 2019
IN THE COURT OF TANIA SINGH
CIVIL JUDGE01, CENTRAL DISTRICT, DELHI
Suit No:1607/2017
Mohd Firoz
S/o Mohd Shafi
R/o 4516, Lambi Gali,
Shahtara, Delhi110006 ...........Plaintiff
Versus
BSES Yamuna Power Ltd
Through its Directors
Chandni Chowk, Near Town Hall
Delhi110006 ............ Defendant
Date of institution of suit : 02.05.2017
Date of pronouncement of Judgment : 23.12.2019
SUIT FOR MANDATORY AND PERMANENT INJUNCTION
JUDGMENT
1. Present suit was filed for Mandatory Injunction by the plaintiff, who as per the plaint is one of the coowners of property No. bearing no. 4516, Lambi Gali, Shahtara, Delhi6(hereinafter referred to as 'suit property").Brief facts as per plaint are that one Sh. Mohd Aleem Raja was a tenant in respect of one shop forming part of suit property and was consuming the electricity through electricity connection bearing No. Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 1 of 15 400898222 (Old C.A. No. 100304206), which was installed in his name. Plaintiff had filed an eviction petition against the said tenant and an eviction order was passed on 08.06.2016 and the tenant had handed over the possession of the said shop to the plaintiff vide the aforesaid order on 28.01.2017. It is averred that after acquiring the possession of the suit shop, the plaintiff had visited the defendant office for transfer of said electricity connection in his name and it was only then that the officials of the defendant intimated him about the outstanding bill dated 09.08.2016 for Rs. 1,26,071/ vide Bill No. YMENF 250720160064AO pending against the suit shop. It is further stated that plaintiff had sent a representation dated 02.03.2017 to the defendant thereby furnishing the address of Mohd Aleem Raja and requested the defendant to recover the alleged outstanding bill from Mohd Aleem Raja directly, but of no avail. Hence, the present suit.
2. Summons of the suit were issued to the defendant by the Ld. Predecessor of this court upon which defendant had put their appearance through Counsel and thereafter the matter was listed for filing of Written Statement on behalf of defendant.
3. Written statement was filed on behalf of defendant, wherein it has been admitted that DAE bill of Rs. 1,26,071/ due on 09.08.2016 is raised by the defendant against the electricity connection bearing CA No. 100304206 which is still outstanding and therefore the plaintiff being the owner of the premises, is liable to make the payment of the said bill as per Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 2 of 15 statutory conditions of supply and clause 15 & 20 of the DERC Regulations. It is further stated that in the garb of the present suit for mandatory injunction,the plaintiff has challenged the above said DAE bill and wants to avoid the payment of the same and that the plaintiff has not made. Sh. Mohd Aleem Raja a party to the present suit and as such the suit of the plaintiff is bad for nonjoinder of necessary party.
4. Replication was filed on behalf of plaintiff wherein contents of the written statement were denied and averments made in the plaint were reaffirmed.
5. Based on the pleadings of the parties, the following issues were framed vide order dated 03.01.2018:
1. Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP
2. Whether the suit is liable to be dismissed for want of cause of action being premature and being barred by law for want of jurisdiction of this Court as per preliminary objection no. 1 & 2 of written statement? OPD
3. Whether the suit is not maintainable being bad for mis joinder of necessary parties? OPD
4. Relief.
Evidence: Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 3 of 15
6. Thereafter, the matter was listed for plaintiff's evidence. In order to prove his case, plaintiff got himself examined as PW1.
PW1 tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents:
(i) Mark A : Copy of eviction order dated 08.06.2016 passed by the Court of Sh. Tarun Yogesh, Ld. SCJcumRC, Central District, Delhi.
(ii) Mark B : Assessment Bill for Rs. 1,26,071/ dated 09.08.2016.
(iii) Ex.PW1/3(colly) : Copy of representation dated 02.03.2017 along with courier receipt.
PW1 was duly cross examined and discharged.
Thereafter, the plaintiff's evidence was closed vide Order dated 09.01.2019 upon separate statement of plaintiff.
7. Sh. Shivam Yogi, Manager, Power Supply (Division), Chandni Chowk, New Delhi was examined as DW1. DW1 tendered his evidence by way of affidavit ExDW1/A..
DW1 was duly cross examined by Ld. Counsel for the plaintiff and discharged.
8. Thereafter, evidence on behalf of defendants was closed vide Order dated 26.02.2019 upon separate statement of Manager of defendant company and the matter was listed for final arguments.
Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 4 of 159. Final Arguments advanced on behalf of both the parties were heard at length and the record is carefully perused by this court.
Issue wise findings.
Issue No.1 Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for?OPP
10. Onus of this issue is cast upon the plaintiff. Plaintiff has sought relief of mandatory injunction that the defendant be directed to transfer electricity connection bearing No. 40089822(old CA No. 100304206) in the name of the plaintiff. It is an undisputed position that one Mr. Aleem Raja was a tenant in the suit property and the electricity connection in question is in his name.
11. It is the case of plaintiff that vide order of Ld. Senior Civil Judge, dated 08.06.2016, the said tenant Sh. Aleem Raja has been ordered to evict the suit property and consequently, the possession of the suit property was handed over to the plaintiff.
12. Per contra, it is the defence that Ex.DW1/P1 which is a DAE bill has been raised against the aforesaid tenant but charged on the premises in question and as per the DERC guidelines and regulations, the plaintiff cannot be held entitled to get the transfer of connection in his name until the dues as per Ex.DW1/P1 are paid.
Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 5 of 1513. The entire bone of contention in this case revolves around only one legal issue whether the plaintiff is liable to pay the DAE bill raised against the tenant, in order to get the electricity connection transferred in his name.
14. Plaintiff has relied upon Ex.PW1/3 which is the representation given by him to the defendant department, specifying that it was only when the plaintiff had approached the defendant department for transfer of electricity connection in his name that he got to know about the outstanding bill Ex.DW1/P1. Through Ex.PW1/3 the plaintiff has furnished the address of the aforesaid tenant and has requested the department to recover the outstanding bill Ex.DW1/P1 from the tenant as plaintiff was not in possession of the suit property at the relevant period.
15. In his cross examination, it has been admitted by the plaintiff that he did not ask his tenant Sh. Aleem Raza to produce any 'no dues certificate' in respect of the electricity connection in question. It is also been admitted that before filing of the present suit he has not applied to the department for transfer of electricity connection in his favour.
16. The only witness examined by the defendant has admitted in the cross examination that the assessment bill is raised upon the address/property where the inspection is carried out and there is no requirement of searching for the fresh address of Sh. Mohd Aleem Raza as the dues have to be recovered from the premises where the case has been booked.
Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 6 of 1517. In order to adjudicate upon the rival contention of the parties, it is necessary to advert to the relevant law for transfer of name of electricity connection. Regulation 20 of DERC Regulations is necessary to be reproduced below: "20. Transfer of Connection: 20(2) Transfer of consumer's name for legal heir:
(iii) Any charge for electricity or any sum other than charge for electricity as due and payable to licensee which remains unpaid by a deceased consumer or the erstwhile owner/occupier of any land/premises as the case may be, shall be a charge on the premise transmitted to the legal representative/successorsinlaw or transferred to the new owner of the premises as the case may be, and same shall be recoverable by the license as due from such legal representative or successorinlaw or new owner/occupier of the premises as the case may be."
18. Ld. Counsel for the defendant has also placed reliance upon judgment titled as MADHU GARG VS NDPL 129 (2006) Delhi Law Times 213 (DB), wherein it has been observed that: "14. In our opinion, there is no distinction between the purchaser of a premises who was aware that there were outstanding electricity dues against the previous owner/tenant, and one who was not aware of it. In either case, the dues have to be paid by the Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 7 of 15 new owner/occupant before supply can be continued/restored. This is because of the statutory provision contained in Clause 2(iv) of the General Conditions of Supply which has been quoted below.
15. In our opinion, whenever a person purchases a property, it is his duty to find out whether there are outstanding electricity dues in relation to the premises or not, and he cannot be allowed to say later that he was unaware of the fact that there were electricity dues of the previous owner/tenant.
16. In view of the General Condition of Supply, it is the duty of the new owner/occupant to himself make enquiries and find out whether there was such dues or not. The General conditions of supply are statutory in nature (being delegated legislation), and hence, the question of bona fide or mala fide does not arise, and in either case the new owner/occupant of the premises has to pay the dues against the previous owner/tenant, if he wishes the electric supply to be continued/restored."
19. Ld. Counsel for defendant has further placed reliance upon judgment in the case of IZHAR AHMED AND ANOTHER BSES RAJDHANI POWER LTD & ANR 157(2009) DELHI LAW TIMES 777, DELHI Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 8 of 15 HIGH COURT, wherein it is observed that: "7. In my view, there is no conflict or overlapping between Regulation 15 and Section 154 of EA, 2003. The issue of reconnection has only been dealt with in Regulation 15. I may mention that the legality and validity of Regulation 15 has not been impugned by the petitioners in any proceedings till date or even in the present petition.
8. The intent of such a regulation is to ensure that electricity companies do not have to run around to recover their dues and any person who applied for reconnection makes payment of all dues including surcharges and payment of fraudulent abstraction charges before grant of new connection or reconnection of the said premises.
9. Further, in my opinion, judgment of Division Bench of this Court in Madhu Garg (Supra) is very categorical and it has even considered judgment of the Hon'ble Supreme Court in Isha Marbles v. Bihar State Electricity Board, reported in I (1995) BC 529=1995(2) SCC 847, which was also referred to by Mr. S.D. Ansari, Advocate, during the course of his argument. Consequently, petitioners/owners of premises have to clear all outstanding including Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 9 of 15 payment of direct theft bills."
20. Per contra it is contention of the Ld. Counsel for the plaintiff that the outstanding dues are to be realized from the owner or the subsequent occupier only when the address of the registered consumer/previous occupant is not traceable. Ld. Counsel for plaintiff has not filed any judgments to support his contentions. In any case, the law regarding transfer of connection has been clearly laid down in Regulation 20 of DERC regulations and nothing can be contrary to the law laid down as above.
21. It is also pertinent to mention here that Ex.DW1/P1 is not an outstanding bill against regular consumption but is a DAE bill charged against the premises in question and not against the registered consumer per se.
22. Therefore, in the facts and circumstances of the case and considering the relevant law in regard, I am inclined to hold that the DAE bill Ex.DW1/P1 is charged against the premises i.e. the suit property and transfer of electricity connection in name of plaintiff cannot be effected by the department without payment of the same. Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
Issue No.2 Whether the suit is liable to be dismissed for want of cause of action being Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 10 of 15 premature and being barred by law for want of jurisdiction of this Court as per preliminary objection no. 1 & 2 of written statement?OPD
23. Onus to prove this issue was cast upon the defendant. As per the written statement, the defendant has taken preliminary objections that DAE bill raised against the electricity connection bearing CA No. 100304206 is outstanding and therefore, unless and until the plaintiff pays the above said outstanding dues, the electricity connection cannot be transferred in his name as prayed, as per the settled law held by Hon'ble Delhi High Court in case titled as MADHU GARG VS NDPL 129 (2006) Delhi Law Times 213 (DB) and IZHAR AHMED AND ANOTHER BSES RAJDHANI POWER LTD & ANR 157(2009) DELHI LAW TIMES 777.
24. Further, it is stated in the WS that in the garb of mandatory injunction to transfer the electricity connection in favour of plaintiff, the plaintiff has challenged the DAE bill Ex.DW1/P1 in order to avoid the payment of the same. Therefore, it is the objection of the defendant that the present suit is premature and without any cause of action. The plaintiff in his replication has denied the contentions of the WS and has stated that any outstanding bill has to be paid by the previous tenant Sh. Aleem Raza. From the pleadings, it is clear that the plaintiff has not sought any declaration w.r.t. Ex.DW1/P1 and as already been observed in issue No.1 the plaintiff is not entitled to the relief sought in the present suit without payment of dues as per Ex.DW1/P1. It is also been admitted by the plaintiff that he has neither paid Ex.DW1/P1 Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 11 of 15 and does not intend to pay the same, which as per his case is the liability of the previous tenant.
25. It has also been admitted by the plaintiff in his cross examination that he has not formally applied for transfer of connection in question in his name in the department. It seems that the plaintiff after knowing about the DAE bill Ex.DW1/P1, without filing any formal application with the defendant department has directly approached this Court with an intention that the transfer be affected through the order of the Court without him actually paying the DAE bill as per Ex.DW1/P1. Injunction is an equitable relief and one who seeks equity must do equity. Without payment of Ex.DW1/P1 and thereafter applying for the transfer with the defendant department, the present suit as rightly pointed to the Ld. counsel for the defendant is premature.
26. It has also come out in the cross examination of DW1 that in case the applicant applies for name change, through written request, it is accepted and an order number is also generated. The plaintiff however has admittedly not filed any such application number or application form on record.
27. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
Issue No.3 Whether the suit is not maintainable being bad for mis joinder of Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 12 of 15 necessary parties?OPD
28. Onus to prove this issue was on the defendant. Defendant through his WS has taken another preliminary objection that the present suit is bad for non joinder of necessary parties i.e the plaintiff's tenant Sh. Aleem Raza who was in possession of the suit property for the relevant period against which Ex.DW1/P1 has been raised by the defendant. Relevant DERC guidelines are reproduced below: "(20)Transfer of Connection (1) Change of consumer's name due to change in ownership/occupancy of property.
(i) The applicant shall apply for change of consumer's name in the format prescribed of ANNEXEIII to these Regulations or as approved by Commission from time to time, along with copy of latest bill duly paid. The application shall be accepted on showing proof of lawful ownership/occupancy/of property;NOC(No Objection Certificate) from the registered consumer/authorised person/previous occupant of the premises shall be required for cases involving transfer of security deposit in the name of applicant. The licensee shall issue dated receipt of the request of the applicant. Any deficiencies in the application shall be Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 13 of 15 intimated in writing within seven days of receipt of application. The application shall be accepted only on removal of such difficulties.
(ii) The change of consumer's name shall be effected within two billing cycles after acceptance of application. However, if the change of consumer's name is not effected within the said two billing cycles, compensation as specified in Schedule III shall be paid by the Licensee.
(iii) In case NOC (No objection Certificate) from the registered consumer/authorised person/previous occupant is not submitted, application for change of name shall be entertained only if security deposit as stipulated in this Regulation is paid afresh. However, the original security deposit shall be refunded to the claimant, as and when a claim is preferred by the concerned."
29. As per the law laid down as above, the NOC from the registered consumer is a compulsory requirement for transfer of name in the electricity connection. Plaintiff has admitted in his cross examination that the electricity connection is in name of the previous tenant Sh. Aleem Raza. Hence, impleadment of previous tenant was required in this case seeking transfer of name in electricity connection as NOC of the registered Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 14 of 15 consumer is a prerequisite. Even if, the NOC is not submitted as per regulation 20(1)(iii) the application for change of name can be entertained if the security deposited is paid afresh. Therefore, the nonimpleadment of previous tenant Sh. Aleem Raza though is not fatal to the present case as nothing shall bar the plaintiff to recover the amount paid against the DAE bill from the tenant in a separate suit. Therefore, this issue is decided in favour of the plaintiff.
Issue No.4 Relief:
30. In view of the findings on issues no 1 and 2, the suit of the plaintiff stands dismissed.
31. No order as to cost.
32. Decree sheet be prepared accordingly.
33. File be consigned to record room.
Announced in the open Court (TANIA SINGH)
on this 23.12.2019 Civil Judge01/Central,
Tis Hazari Courts/Delhi
Case No. 1607/2017 Mohd Firoz vs BSES YPL Page 15 of 15