Delhi District Court
Bses Yamuna Power Ltd vs Sh.Kallu on 29 January, 2010
IN THE COURT OF SHRI SANJEEV JAIN
ADDITIONAL DISTRICT JUDGE (CENTRAL DISTRICT) DELHI
RCA No.21/08 (I.D.No. 02401C0836452008)
Date of Institution: 02.06.08
Final Arguments heard on :04.01.10
Date of Decision: 29.01.10
BSES Yamuna Power Ltd.
Shakti Kiran Building
Karkardooma
Delhi.
... Appellant
Vs.
Sh.Kallu
R/o d5/17, New D5/20
Vijay Colony, Third Pusta
Delhi.
... Respondent
ORDER
1 In brief, appellant (defendant in the suit) has challenged the judgment and decree dt.20.3.08 passed in suit bearing no.466/06 RCA No.21/08 1 titled as Kallu Vs. BSES Yamuna Power Ltd., whereby it was held by the Ld.Civil Judge that bill of Rs.1,44,691/ is null and void and is unsustainable in law. It was further held that the appellant should refund the amount of Rs.1,08,500/ deposited by the respondent/plaintiff against the impugned bill. Appellant was further directed to transfer connection no. YV1250V7090340 in the name of respondent Kallu.
2 In brief, suit for declaration and mandatory injunction was filed by the present respondent in respect of inspection dt.19.7.05 and impugned bill for an amount of Rs.1,44,691/ raised in lieu thereof. In the suit, plaintiff (respondent in the appeal) has challenged the inspection report, show cause notice and the impugned bill alleging that he received the speaking order from defendant Co.on 28.7.05, passed without giving any personal hearing to him. It was alleged in the plaint that plaintiff deposited the amount as defendant had threatened to lodge the FIR against him and to disconnect the electricity supply. It was also alleged by plaintiff that plaintiff was RCA No.21/08 2 never involved in tampering of meter or tampering of seals of meter. As per plaintiffs case, defendant failed to comply with the mandatory provision of DERC and no case of DAE was established against the plaintiff.
3 Suit was contested by the present appellant by filing a written statement. It was alleged in preliminary objection that suit is not maintainable as plaintiff is estopped from challenging the DAE bill as the plaintiff had approached the defendant Co.and the theft bill was settled for an amount of Rs.1,08,500/ which was paid by the respondent. It was further alleged in written statement that respondent has not approached the court with clean hands and suppressed the material facts. As per appellant, the inspection was carried out and the meter was found badly tampered. Both the half seals of the polycarbonate body meter were tampered and upper base cover of the meter was disturbed and refixed. During inspection, the user of the connection told his name as Rehmat Ali. However, lateron it was revealed to the defendant that plaintiff was RCA No.21/08 3 the user of the said connection. As per defendants case, the inspection report and load report was prepared at the spot, but the user of electricity refused to sign the same. It was alleged in written statement that plaintiff attended the personal hearing before the officer of defendant on 28.7.05 and then speaking order was passed. 4 On the basis of pleadings and material on record following issues were framed by the Ld.Trial Judge on 10.5.06.
1. Whether the demand raised by the defendant is justified and legal?(OPD)
2. Whether the plaintiff was found indulged in DAE?(OPD)
3. Whether the plaintiff is entitled for a decree of declaration as prayed for?(OPP)
4. Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for?(OPP)
5. Relief.
5 In order to prove its case, plaintiff examined himself as PW1. RCA No.21/08 4 Defendant examined Sh.Mohd.Azam, Asst.Manager (Enforcement) as DW1 and Sh.H.N.Sainwal, Dy.Manager as DW2. After conclusion of evidence and hearing the arguments, Ld.Civil Judge decided issue no.1 and 2 in favour of the plaintiff observing that defendant has miserably failed to prove that plaintiff had indulged in dishonest abstraction of energy. In the opinion of Ld.Trial Court, conclusive evidence for establishing in DAE was lacking and the inspection report Ex.DW1/1 could not reach to any inference of DAE at all. 6 The appellant has challenged the impugned judgment and decree mainly on the grounds that plaintiff was estopped from challenging the inspection report and impugned bill as he had already settled the dispute and paid the settled amount. Appellant further contended that plaintiff was not present at the time of inspection and therefore his evidence could not have been considered. It was also submitted that Ld.Trial Court has failed to appreciate the evidence of the parties and the material on record and failed to consider the testimony of DW1 and 2 in the right RCA No.21/08 5 prospective. At the stage of appeal Ld.counsel for defendant also raised the issue of jurisdiction. It was contended that jurisdiction of the Civil Court was barred in view of the provision of Electricity Act 2003. In support of his contention, Ld.counsel for appeallant has relied on the law laid down by Hon.High Court of Delhi in the case of B.L.Kantru Vs. BSES Rajdhani Power Ltd, 154 (2008) DLT 56 (DB).
7 Ld.counsel for respondent supported the judgment and decree and controverted the contention of appellant, stating that the judgment has been passed by the Ld.Trial Court after proper appreciation of documents and testimony of witnesses. It was contended that the jurisdiction of civil court is not completely barred as laid down in the case of B.L.Kantru. Where the jurisdiction of civil court is impliedly barred, Civil Court may still entertain the suit if the provision of the act has not been complied with or the statutory tribunal has not acted in conformity with fundamental principle of judicial procedure as was held in the case of Secretary of State Vs. RCA No.21/08 6 Mark & Co.AIR 1940 Privy Counsel 105 and relied by Hon.High Court of Delhi in the case of B.L.Kantru, in para 17. 8 I have carefully considered the Ld. Trial Court record including the pleadings of parties, documents proved on record and the testimony of witnesses. I have given my considered though to the written submissions filed by parties and the arguments advanced at bar.
9 Careful scrutiny of the plaint and written statement revealed that in written statement, it was specifically alleged that plaintiff approached the defendant for settlement of bill and the theft bill was settled for a reduced amount of Rs.1,08,500/ which was duly paid by the plaintiff. It was stated that plaintiff is estopped from challenging the inspection report and impugned bill. In plaint, it was alleged that plaintiff had paid the amount of the impugned bill as the officials of defendant threatened him to lodge an FIR against him and to disconnect his electricity. This was a disputed question of facts RCA No.21/08 7 which requires determination by the Ld.Trial Court. Surprisingly, no issue was framed by the Ld.Trial Court on the question, whether defendant was estopped to challenging the impugned bill in view of the alleged settlement by the defendant. As no issue was framed in this regard, this question was not decided by the Ld.Trial Court. 10 I have gone through the judgment of the Ld.Trial Court. Ld.Trial Court opted to decide issue no.1 and 2 simultaneously. Issue no.1 was, whether the demand raised by the defendant is justified and legal?(OPD). Issue no.2 was, whether the plaintiff was found indulged in DAE?(OPD). In my considered opinion, issue no.1 and 2 were framed in view of the respective pleadings of the parties and both the issues had different sphere. The findings of issue no.2 might have some bearings on issue no.1 also. It was for the Ld.Trial Court to first decide, whether plaintiff was found indulged in DAE? If a person is found indulged in DAE, then the impugned bill has to be raised by following procedure estabished by law i.e.by giving show cause notice and personal hearing. Impugned bill of DAE has to be RCA No.21/08 8 raised in accordance with the permissible rules, slabs and penalties. After the decision of issue no.2, it was for the Ld.Trial Court to examine, whether the demand was raised by defendant in justified and legal manner? It appears that while discussing issue no.1 and 2 simultaneously, Ld.Trial court inter mixed the sphere of one issue into the another issue while appreciating the evidence of parties. The evidence of parties was not properly appreciated in respect of the sphere and ambit of a particular issue. In the opinion of Ld.Trial Judge, the inspection report Ex.DW1/1 does not show that any device or filling or shunt was used to slow down the meter. Ld.Trial Judge has relied on the portion of testimony of DW1 that no artificial element was found inside the meter and that they can not say anything about the slowness of the meter. Meter may be slowed down by a person by various means, some times by using a device or filling or shunt and some times by other hidden methods. The question of slowing down the meter can be decided by taking into the account of entire evidence. The examination of consumption pattern may also be one of the factor in determination of the issue. In my RCA No.21/08 9 opinion, Ld.Trial Judge has not considered the entire evidence relevant for particular issue and relied on one or the other portions of the testimony of the witnesses to reach on the conclusions of issue no.1 and 2.
11 The question of jurisdiction was not raised in the written statement. I agreed with the contention that question of jurisdiction can be considered by the court even if it is not raised. The question of jurisdiction may be raised at any stage of proceedings or even at appellate stage. The question of jurisdiction may be on the ground of territorial jurisdiction or the subject matter of the suit. Where the jurisdiction has been specifically barred by a statute, it remains only a question of law and may be considered at any stage. Where the question of jurisdiction is not specifically barred, but is barred by implication, then some time the question of jurisdiction pertaining to the subject matter of the suit may be dependant on the facts of a particular case. As held by Hon.High Court of Delhi in the case of B.L.Kantru, the jurisdiction of civil court is not all together barred in RCA No.21/08 10 the disputes pertaining to the Electricity Act, 2003. In the present suit, the action of defendant i.e. the inspection report and impugned bill was challenged by the plaintiff on various grounds including that procedure established by law has not been followed by the defendant. In the cases of DAE, the jurisdiction has not been specifically barred, but barred by implication. In the context of the case in hand, as the jurisdiction of the civil court was barred by only by implication and not specifically, the jurisdiction of the civil court is not absolutely barred and is dependant on the determination of factual issue "Whether the procedure established by the act and rules therein has been properly implemented". I am of the view that in the context of the present suit, the question of jurisdiction was a mixed question of law and fact which requires determination after appreciation of evidence.
12 In view of the above findings, in my opinion, the impugned judgment and decree is not sustainable in law and matter requires fresh consideration of Ld.Trial Court. Accordingly the impugned RCA No.21/08 11 judgment and decree dt. 20.3.08 passed by the Ld.Trial Court is set aside with the direction that case be remanded back to the Ld.Trial Court for fresh consideration (after reframing of issues and giving opportunity to the parties to lead additional evidence etc.)and without being influenced by the observation of this court. Trial court record be sent back for the compliance along with the copy of the order. No order as to cost. Appeal file be consigned to R/R after due compliance.
(SANJEEV JAIN) Additional District Judge:Delhi (Central District) Announced in open court on 29.01.10 RCA No.21/08 12