Delhi High Court
Sehjiv Kumar Tandon vs Delhi Electric Supply Undertaking on 27 May, 1993
Equivalent citations: AIR1994DELHI202, AIR 1994 (NOC) 202 (DEL), (1994) 53 DLT 247, (1994) 1 ARBILR 186, (1993) 3 RRR 689, (1993) 51 DLT 117
ORDER
1. The petitioner's grievance in this Revision petition are that the point raised by him before the learned Addl. District Judge have not been considered and that the trial Court erroneously imposed the condition while ordering restoration of electricity.
2. Petitioner had filed a suit for permanent injunction against the respondent-DESU. Along with the suit, an application under Order 39, Rules 1 and 2 read with S. 151, Code of Civil Procedure was also filed. After hearing the parties the learned Sub Judge prima facie came to the conclusion that the electricity be restored, however, it was subject to petitioner depositing 50% of the demand raised by the respondent-DESU and for balance amount to furnish guarantee. It was against this imposition of the condition that petitioner preferred the appeal. The appellate Court after going through the record prima facie came to the conclusion that the respondent should consider of sanctioning 42 KW electricity connection in favor of the petitioner for running Banquet Hall subject to the petitioner depositing Rs. five lakhs. Because of this direction the appellate Court did not deem it necessary to order for restoration of electricity of I KW which was disconnected by the respondent.
3. It is against these conditional orders that present revision petition has been preferred.
4. In brief the facts are that the petitioner is the owner of property bearing No. 6, Bhama Shah Marg, New Delhi. He obtained domestic light connection. This premises he gave on license to a Banquet Hall. The said Banquet Hall has been used for arranging parties for the occasions like marriage etc. In the license deed executed between the petitioner and the licensee, it has been provided that the premises is meant for business purposes. The sanction load of the domestic light obtained in the premises by the petitioner is 1 Kilo Watt. It is the case of the respondent that the premises was inspected on 27-2-92. On inspection it was found that excess load is being used by the petitioner. Apart from excess load, the licensee has also installed Air Conditioner of 120 HP. This electric connection is being used for commercial purposes. The seal of the meter was not tallying with the authenticated sample and the meter was tampered as a result of which the meter was not showing the actual consumption. The cable of 55 mm. square was illegally installed with the incoming service line cable and hence tampered. Notice mentioning these facts was given to the petitioner on 27-3-92. This notice, of course, was denied by the petitioner thereby refuting the allegation contained in the notice. The petitioner had submitted that the supply was being used as per sanctioned load and per sanctioned purpose. No excess load used nor there is any tampering with the seal or (he meter. Moreover no show cause notice was served.
5. Mr. Vinay Bhasin appearing for the petitioner contended that the petitioner has been discriminated. The building in which the Banquet Hall is running is an authorised building. It was constructed after having submitted the plan for approval to the M.C.D. Since the M.C.D. did not convey any rejection within 60 days, therefore, the plan deemed to have been approved and as such the entire building is as per the sanctioned plan. The land on which the building is constructed is meant for residential-cum-commercial purposes. DESU has already given electric connections to other firms namely, M/s. New Friend & Co. Pvt. Ltd. This firm is manufacturing watches in the premises which is adjacent to the property of the petitioner. Similarly in other part of this premises bearing No. 6, Bhama Shah Marg, M/s. Khosla Cold Storage is functioning. Commercial connection has been provided by the DESU to the said concern. The property bearing No. 3, Bhama Shah Marg, is being used by a Banquet Hall namely M/s. Hostess Banquet. To all these firms the electric connections are being provided by DESU for commercial purposes. This shows that the area is being used for commercial purposes also and the DESU has been granting electric connection for the said purpose. The M.C.D. tried to demolish the premises on the ground of being unauthorised construction. The Addl. District Judge, Delhi, in an appeal filed by the petitioner passed restraining order against the MCD, restraining it from demolishing the property. Restraining order had been passed because the court prima facie held that the property had not been unauthorised constructed.
6. Mr. Bhasin, further contended that since to other firms situated in the adjacent premises electricity connections have been granted by the DESU, the petitioner has been discriminated. The respondent agreed to grant the electricity connection if the premises is situated in a commercial area. His building is also situated in a commercial area, otherwise why would DESU give electricity connections to other commercial firms situated in the building as well as in the adjoining buildings. Health Deptt. of M.C.D. has issued NOC in favor of the licensee for running this Banquet Hall. Furthermore, as per the judgment of the Addl. District Judge, Delhi, dated 3-11-90, prima facie it has been held that the building is not unauthorisedly constructed which judgment has not been assailed till date by the Municipal Corporation. Therefore, the judgment in M. C. A. No. 5/90 is binding on the parties. The petitioner has thus complied with all the necessary requisites for the grant of excess load of electricity connection, namely it is an authorised construction, licensee of the petitioner has NOC and the premises is situated in a commercial area. Moreover to other commercial firms running in properties bearing Nos. 3, 5 & 6 Bhama Shah Marg, the DESU has provided commercial electricity connections. Hence the petitioner fulfills all the conditions imposed by DESU for supply of commercial electricity connection. No license is required for running the Banquet Hall and no rules have yet been framed in this regard. Mr. Bhasin has placed reliance on the letter issued by the Deputy Health Officer dated 8-10-91 regarding grant of certificate of registration to the Banquet Hall. It was pointed out that the Department is framing the technical instructions and as such action on the licensee's application would be taken by the Health Department, MCD, as soon as these guidelines are finalised. He, further contended that like the petitioner, who has been given "No Objection Certificate" by the Health Department, "Gola Five Star Banquet Hall" has also been given a similar NOC by the Health Department and the DESU has provided the electricity to the said banquet hall.
7. Mr. Pathak, appearing for the respondent DESU admitted that electricity has been provided to M/s. New Friend & Company Pvt. Ltd. which is carrying on its business at 5, Bhama Shah Marg, New Delhi. But the electricity connection was granted long time back. Similarly, M/s. Khosla Cold Storage, 6, Bhama Shah Marg, New Delhi, had been given commercial connection which the respondent wanted to disconnect, but the said firm has brought stay order from the Court. As regards Goia Banquet Hall, according to Mr. Pathak, it is situated in an industrial area, therefore, electricity connection has been given. Mr. Pathak contended that "No Objection Certificate" is not required for running a Banquet Hall if the premises is situated in an industrial area. In fact for sanctioning electricity connection to a Banquet Hall NOC has to be obtained from the MCD as per Section 421 of the M.C.D. Act. Since petitioner has not produced NOC as per Section 421 of the M.C.D. Act, therefore, electricity connection applied by the licensee could not be sanctioned. Mr. Bhasin on the other hand urged that "No Objection Certificate" as produced by a similar Banquet Hall has been produced by the licensee.
8. These contentions raised at the Bar are not relevant for deciding this Revision Petition. These arguments of the counsel for the parties I have narrated for the reasons that the ADJ in his impugned order had directed the DESU to consider the application of the petitioner for sanctioning electric consumption of 42 KWs. Be that as it may, in this Revision Petition, this Court is not called upon to decide as to whether it is a case of discrimination or not. The fact remains that the question of discrimination cannot be gone into by this Court in this Revision Petition.
9. The short point which is involved for consideration before this Court is whether the respondent was justified in disconnecting the sanctioned load of 1 KW of the petitioner on the ground of non payment of the subsequent bill raised on the petitioner on account of misuse charges and of theft of electricity. The demanded amount, according to the respondent, is due for the period from 27-4-89 to 27-2-92. Inspection of the premises was carried out, according to the respondent, on 27-2-92 regarding meter No. 135119, installed at 6, Bhama Shah Marg, New Delhi. It was found that the meter was tampered and the seal interfered, thus the presumption is that the petitioner committed theft of the electricity. Moreover, as against sanctioned load of domestic light he is illegally taking extra load from direct line for running the Banquet Hall.
10. These facts had been refuted by the petitioner when he filed the suit alleging therein that on the day the inspection took place i.e. 27-2-92, no one on behalf of the petitioner was present. That the officials of the DESU in order to falsely implicate the petitioner tried to interfere with the meter and even tried to fabricate evidence against the petitioner. The petitioner had been paying the electricity bills regularly. When the DESU official tried to tamper with the wires in order to make out a false case, the petitioner lodged a police report. The police officials on the date of inspection i.e. 27-2-92 had accompanied the DESU officials.The police official after returning from the she submitted a report regarding the inspection on his "Vapsi" to the similar officer. Reading of the same makes it clear that it is the DESU officials who tried to tamper with the wires and the meter in order, to fabricate evidence against the petitioner. Police official did not find any breakage of meter or interference with the seal. In his report, copy of which was placed before the trial court, it is clearly mentioned that neither the wires were touched nor the meter or the seal were tampered with. Petitioner placed these documents before the trial court. He had contended that the demand raised by the DESU is illegal, therefore, restraint order be passed so that his electricity may not be disconnected: Besides this the case of the petitioner before the Court was that for running the air conditioner, he had installed generators. The installation of generator sets is admitted by the respondent. Therefore, there was no misuse of the domestic connection for commercial purposes, nor there was any theft committed by the petitioner or his licensee.
11. The respondent-DESU took the plea before the trial court that there were generators, still the electricity was misused. There was tampering of the seal and the meter, therefore, revised demand was raised. Since that amount was not paid hence electricity was disconnected.
12. The perusal of the trial court record shows that on 30-9-92 in Suit No. 624/92 statement of one Mr. A. K. Gupta, Engineer of the DESU, was recorded by the Court. According to him at the time of inspection there were two single core 50 MM square wires fitted in single phase which were fitted to the meter installed on the spot. He, however, admitted that the air conditioner of a capacity of 120 HP cannot work on the single phase which was found on the spot. According to him the party had connected the wire of the generator set as well as the above said private line to the distribution box from where supply was being regulated. He admitted that private line installed by the consumer could not have taken the entire connected load of 41.826 KW plus 120 HP. Further stated that police recovered the wires from the spot. The recovered wires were of two core 10 MM square. From this statement of Mr. Gupta one thing is clear that there are generator sets installed at the premises in question. The wires which in fact recovered from the spot are of two core of 10 MM which cannot take the load of 42 KW. Mr. Gupta's statement that wires were subsequently changed has yet to be proved. Prima facie from the recovered wires it cannot be said that the petitioner committed the theft of the electricity.
13. As regard misuse of the electricity w.e.f. 27-4-89 to 27-2-92 according to the facts which have come on record, the Banquet Hall in question was inaugurated on 18-11-90. Since the commercial activities started from November 1990, then how could DESU raise revised bill w.e.f. 27-4-89. The question of revised bill at the higher rate plus surcharge becomes doubtful. How the recovery is being asked from 17-4-89 has not been explained. Therefore, prima facie petitioner cannot be forced to pay the amount which is yet to be determined.
14. The police report submitted by the Inspector after returning to the police station also creates a doubt about the alleged inspection report of the respondent. The reading of the report as discussed above clearly indicate that there was no tampering of the meter nor breaking of the seal or tampering of the wires. To my mind, the trial court has completely ignored the police report and according to first appellate court DESU officials in connivance with police official raided the premises. But at the same time completely ignored the police report. In view of the conflicting version regarding tampering of the meter, seal and of the wires at the site prima facie the inspection report dated 27-2-92 cannot as such be treated as an authentic document. This requires evidence, because there is a complete conflict of version given by the police as well as by the DESU officials. Moreover, how this bill could be raised for the last three years has yet to be explained. The petitioner placed on record the documentary evidence to prove that Banquet Hall started in November, 1990. This fact has not been denied by the respondent by any cogent proof, to my mind, making the petitioner liable for the last three years could not arise. I do not agree with the version of the trial court that there is no evidence prima facie available on record to establish that the Banquet Hall did not start in November, 1990. So far as the conclusive evidence is concerned, which the trial court has mentioned in his order, that has yet to come. While deciding the application under O. 39 Rules 1 & 2, and to form prima facie view the Court has to see the evidence available on the record. Petitioner had placed on record-the invitation card prepared at the time of inauguration of the Banquet hall, whereas the respondent did not point out as to when this Banquet Hall started. Therefore, to my mind, the trial court erroneously concluded that there was no evidence to the effect that the Banquet Hall did not start in November, 1990. The trial court in fact fell in error for not recording the statement of the police official while recording the statement of Shri Roshan Lal Sharma, Assistant Finance Officer, and Shri A. K. Gupta, Assistant Engineer, officials of the DESU. The trial court prima facie came to the conclusion that the respondent DESU had not served any show cause notice and hence did not provide any opportunity to the petitioner to make representation. That the notice in fact was a notice of disconnection without affording any opportunity hence against the law. So far as theft was concerned, according to trial court, this remained in the realm of allegations only. Hence the trial court held that petitioner prima facie made out a case against the respondent-DESU for illegal disconnection of electricity. He also found balance of convenience in favor of the petitioner. But surprisingly after holding prima facie case in favor of the petitioner still imposed the condition for restoration. The learned trial court only relying on the statement of two of DESU officials passed the order which on the face of it is not suslainable. He ought to have the view of both sides. In face of these disputed facts and particularly when he was yet to determine as to how much amount was actually payable he should not have directed the petitioner to deposit 50% of the impugned demand, when the impugned demand on the face of it was not sustainable and had yet to be ascertained.
15. So far as the Addl. District Judge's order is concerned, he has not dealt with these aspects at all. By the impugned order the Addl. Distt. Judge did not deal with the question raised before him. According to him it was no fun to order for restoration. To my mind, it is nothing but non application of mind. By saying so the Addl. District Judge fell in grave error. The point at issue before him was whether the defendant should restore the electricity supply to the petitioner with condition as imposed by the trial court or without condition. As already pointed out above, the trial court had held that the case prima facie has been made out by the petitioner herein and plaintiff before the trial court and the balance of convenience was also in favor of the petitioner. To my mind, when the trial court had held so, the Addl, District Judge could not have observed that there was no fun in restoring electricity connection. Since the respondent has not complied with statutory requirement of serving show cause notice before disconnecting the electricity, to my mind, this is a clear violation of law, coupled with the fact that theft and misuse have yet not been proved, the court below could not have imposed any condition while directing the respondent to restore the electricity 1 KW. As regard the revised demand raised the same on the face of it is doubtful and yet to be determined, hence for this reason also no condition could be imposed.
16. I, therefore, set aside the order of the Addl. District Judge and modify the order of the learned Sub Judge wherein he imposed the condition of deposit of 50% amount and for 50% guarantee before restoration of electricity. By modifying this order I direct that the electricity connection of 1 KW at the suit premises be restored immediately without any condition.
17. Order accordingly.