Delhi District Court
Shri Sushil Dhawan vs Bses Yamuna Power Limited on 19 July, 2010
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IN THE COURT OF Ms. SANGITA DHINGRA SEHGAL,
ADDITIONAL DISTRICT JUDGE, TIS HAZARI COURTS,
DELHI
Suit No. : 672/08
Unique Case ID : 02401C0092172008
Shri Sushil Dhawan
Through His Attorney
Shri Abhishek Aggarwal,
S/o Shri Rajesh Aggarwal
R/o D-68, Kamla Nagar,
Delhi. ...Plaintiff.
Vs.
BSES Yamuna Power Limited
Through its Chief Executive Officer,
33,KUR SUB Station
Kamla Market, Asaf Ali Road,
New Delhi. ...Defendant.
DATE OF INSTITUTION OF SUIT : 08.04.2003
DATE ON WHICH ORDER WAS RESERVED : 19.07.2010
DATE OF DECISION OF SUIT : 19.07.2010
Suit No. 672/08 1/14
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JUDGMENT
The suit has been filed by the plaintiff Shri Sushil Dhawan against the defendant BSES Yamuna Power Limited for Declaration and Permanent Injunction; that the plaintiff is a registered and recorded consumer of electricity connection No. 328413 NP installed at 23B, New Rohtak Road, New Delhi; that the defendant is a company registered under the Indian Companies Act and inter alia engaged in supply, distribution of the electricity in part of Delhi earlier known as Delhi Vidyut Board; that the defendant issued a CT Meter connection at the premises of the plaintiff against the requisite fee; that the plaintiff requested the defendant to replace the old electricity meter installed by the defendant at the premises of the plaintiff with the new meter since the defendant have sanctioned a new CT meter with the sanctioned load of 65 HP; that the plaintiff requested the defendant to replace the meter as the meter installed by the defendant was not a new meter and the plaintiff showed his hesitation to install the old meter and also apprehended that the defendant may dispute the correctness of the meter in future; that the defendant being a State Instrument is expected to act fair and Suit No. 672/08 2/14 3 reasonable; that despite the plaintiff having requested the defendant to replace the old meter with a new meter, the officials of the defendant did not replace the old meter with a new meter as requested by the plaintiff; that the defendant inspected the meter connection at the premises of plaintiff and after satisfying itself about the correctness of the meter be replaced the original sticker seal with the permanent plastic seal on the electricity meter; that the officials of the defendant further inspected the electricity connection installed at the premises of the plaintiff on 17.11.2001 and after inspecting the same defendant found the seal of the meter intact and properly connected and the connected load was found to be below the sanctioned load; that the plaintiff had paid regular electricity bills for the consumption of the electricity as and when demanded by the defendant; that the officials of the defendant interfered with the meter box and prepared the impugned report and asked the plaintiff to sign the said report on his arrival; that as per report of MTD dated 20.02.2003 prepared by the defendant officials the seal of the meter was found proper and intact; that the defendant alleged that a gap was found between the meter glass and its body on the lower RHS of the meter glass through which Suit No. 672/08 3/14 4 a thin film of plastic is insertable in the meter to stop the meter disc and to manipulate the consumption of the electricity; that on the basis of alleged report defendant issued a show cause notice to the plaintiff; that the plaintiff in response to the show cause notice attended the personal hearing before the defendant officials and also submitted its reply and the documents in support thereof; that the defendant without passing any reasoned order to the reply submitted by the plaintiff and hearing attended by the plaintiff issued the impugned electricity bill dated 15.03.2003 received by the plaintiff on 01.04.2003 for an amount of Rs.7,93,052/- as a Fraudulent Abstraction of Energy bill on the basis of inspection report; that the Fraudulent Abstraction of Energy demand raised by the defendant is totally unjustified, illegal and arbitrary; that the allegations made in the report by the defendant by itself do not justify the demand raised in the bill; that the defendant threatened the plaintiff to disconnect the electricity in case the alleged impugned demand as raised on the basis of the FAE report is not paid; that hence, the plaintiff filed the present suit.
Written statement has been filed by the defendant in Suit No. 672/08 4/14 5 which he submitted that the plaintiff has not come to the court with clean hands and had concealed material facts from the court. Defendant further submitted that the plaint is liable to dismissed in view of the provisions of Order VII Rule 11 CPC as there is no cause of action in favour of the plaintiff. It is also submitted that the present suit is not maintainable in law in view of the provisions of Section 145 of Electricity Act, 2003 as the Court has no jurisdiction to entertain any suit or proceedings in respect of any matter which Assessing/Appellate/Adjudicating officer appointed under the Act is empowered to determine nor a civil court has jurisdiction to grant injunction in respect of action taken or to be taken in pursuance of power conferred by this Act. It is further submitted that the plaintiff has not properly valued suit for the purpose of court fee and jurisdiction and the same is liable to be dismissed.
Plaintiff filed the replication and reiterated the contents of the plaint.
On the pleadings of the parties following issues were framed.
1. Whether the suit is not maintainable in view of Suit No. 672/08 5/14 6 provisions of Section 145 of the Electricity Act 2003?OPD
2. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction?OPD
3. Whether the plaintiff is entitled to a decree of declaration as prayed for?OPP
4. Whether the plaintiff is entitled to a decree of injunction as prayed for?OPP
5. Relief.
Plaintiff examined Shri Abhishek Agarwal as PW1 and defendant has examined Shri U.K.Upadhaya as DW1 and Shri Sita Ram as DW2.
I carefully perused the record and heard the rival contentions raised by the counsel for the parties.
My findings issue wise are as under:
ISSUE NO. 1
Whether the suit is not maintainable in view of provisions of Section 145 of the Electricity Act 2003?OPD The onus of proving this issue was on the defendant.
Section 9 of the Code of Civil Procedure provides that :
"the Courts shall (subject to the provisions herein Suit No. 672/08 6/14 7 contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
(Explanation I) "A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. (Explanation II) for the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.)"
The relevant principles regarding ouster of jurisdiction of Civil Court were laid down by the Apex Court in Dhulabhai V. State of MP; AIR 1969 Supreme Court 78, wherein it was held :
(1) Where the statute gives a finality to the orders of the special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not Suit No. 672/08 7/14 8 exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of juridical procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the later case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunal so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statue or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared Suit No. 672/08 8/14 9 unconstitutional or the constitutional of any provisions is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.
On the other hand, it is a settled Law as per Section 145 of the Electricity Act, 2003, "No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in Section 126 or an appellant authority referred to in Section 127 or the adjudicating officer Suit No. 672/08 9/14 10 appointed under this Act is empowered by or under the plaintiff to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."
Therefore, as per Section 145 of the Electricity Act, 2003 no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which Assigning/ Appellate/ Adjudicating Officer appointed under the Act, is empowered to determine the issue and no civil court shall have jurisdiction to grant injunction in respect of action taken or to be taken in pursuance of power conferred by this Act.
In Sh. B.L. Kantroo Vs. BSES Rajdhani Power Ltd.
(2008) Delhi HC, it was held by the Honorable Delhi High Court that:
"As per Section 145 of the Electricity Act, the jurisdiction of the civil court is excluded for entertaining any suit or proceeding in respect of any matter which the assessing officer referred to in Section 126 or the appellate authority referred to under section section 127 or adjudicating officer appointed under this act has to determine.Suit No. 672/08 10/14 11
It is further expressly provided that no injunction shall be granted by any court or any authority or any authority in respect of any action taken or to be taken in pursuance of powers conferred or under this Act. Therefore, there is express provision for excluding the jurisdiction of the civil court in respect of the matters, which the assessing officer has to decide under section 127 of the Electricity Act. Therefore, pending the procedure of assessment under Section 126 and pending the decision by the appellate authority or the adjudicating officer, as the case may be, no injunction can be granted by the civil court.
A perusal of Section 145 of the Electricity Act would show that this section operates only in respect of section 126 and 127 of the Electricity Act. Section 126 is contained in Part XII of the Electricity Act and deals with the investigation and enforcement.
Section 126 provides that if on an inspection of the premises and after inspection of the equipments, gadgets, etc. found connected or used in the premises, the Assessing Officer came to the conclusion that the person was indulging in unauthorised use of electricity, the Assessing Officer shall provisionally assess to his judgment, the electricity Suit No. 672/08 11/14 12 charges payable by such person or by any other person benefited by such use. It is also provided that if the Assessing Officer reaches the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use was continuing for a period of three months. Section127 provides that a person aggrieved by the final order made by the Assessing Officer under Section126 may prefer an appeal within 30 days of the order to the Appellate Authority as may be prescribed.
At the same time, though the Electricity Act, 2003 is a complete code in itself still civil suits can be entertained even though the jurisdiction of the civil court may have been specifically ousted.
Wherever provisions of law have not been complied with or the forum or tribunal does not act to the fundamental principles of judicial procedure. Jurisdiction of civil court is clearly implied.
Returning to the facts of the present suit, the same relates to a matter which is to adjudicated under the provisions of Section 127 of Electricity Act, 2003 and Section 145 of Electricity Act, 2003 would come into operation. The plaintiff has failed to avail the remedy provided under the provisions of Electricity Act, 2003 and the Suit No. 672/08 12/14 13 Civil court has no jurisdiction to try the present suit for permanent injunction by the plaintiff praying for restraining the defendant his agents, officials, representatives from disconnecting the Electricity Meter K. No. 14400328413D installed at 23-B, New Rohtak Road, New Delhi.
In view of my discussion above, I am of the considered view that the suit of the plaintiff is not maintainable and is hit by the provisions of Section 145 of the Electricity Act, 2003. Accordingly, this issue is decided against the plaintiff.Issue No. 2
Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD Issue No. 3 Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP Issue No.4.
Whether the plaintiff entitled to a decree of injunction as prayed for? OPP In view of my findings on issue No. 1, the issues No. 2, 3 and 4 need not be decided.Suit No. 672/08 13/14 14
Relief Resultantly, the suit of the plaintiff fails as the same is not maintainable in this court. The same is dismissed. No order as to cost. Decree Sheet be prepared accordingly. File be consigned to the records.
Announced in the Open SANGITA DHINGRA SEHGAL Court today i.e. 19.07.2010 ADDL. DISTRICT JUDGE:DELHI Suit No. 672/08 14/14