Delhi District Court
M/S Ganga Plastic vs North Delhi Power Limited on 23 August, 2012
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 1
TIS HAZARI COURTS, DELHI.
Case No: 218/2011
Unique I.D. No. 02401C0480032011
M/s Ganga Plastic
Prop. Sh. Sat Narain Goel
F1856, Dsidc Indl. Area Narela,
Delhi
...Plaintiff
Versus
North Delhi Power Limited
Through its C.E.O,
Hudson Lines, Kingsway Camp,
New Delhi
...Defendant
Date of institution of suit : 02.07.2004
Date of reserving the judgment : 21.08.2012
Date of pronouncement of judgment : 23.08.2012
JUDGMENT
In this case vide in suit no. 344/2004 a decree had been passed in favour of the plaintiff on 10.02.2009. The appellant challenged the CS 218/2011 Ganga Plastic vs. NDPL Page 1 of 17 2 same in the Hon'ble High Court of Delhi vide RFA No. 515/2009. Vide order dated 26.09.2009, Hon'ble the High Court of Delhi has been pleased to remand back the matter to this Court to return a finding on point of inherent lack of jurisdiction as raised by the appellant. The relevant portion of the order is as under: "4. In the facts and circumstances of this case, this case needs to be remanded back to the learned Trial Court for a finding on the plea of inherent lack of jurisdiction raised by the appellant.
5. In view of the above, the case is remanded back to the learned Trial Court to give a finding on the plea of the appellant relating to inherent lack of jurisdiction of the Civil Court after hearing both the parties. It is clarified that this Court has not examined the merits of the case and, therefore, the parties shall be entitled to challenge the finding of the learned Trial Court on the merits of the case after the decision of the issue of jurisdiction. The appeal is disposed of on the above terms."
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2. The suit after remand has been registered in this Court vide no. 218/2011.
3. Vide minutes of proceedings dated 08.12.2011 the following issue has been framed: Whether this Court has no jurisdiction to adjudicate upon the matter in the suit?
4. I have heard the arguments advanced by Shri Virag Kumar Aggarwal, Ld. Counsel for the plaintiff and Shri Ashok Kumar, Ld. Counsel for the defendant.
Defendant's Arguments
5. It is submitted by the Ld. Counsel for the defendant that the Civil Courts had no jurisdiction to entertain and adjudicate upon the lis in question in view of specific remedy to approach the Special Court under the Electricity Act, 2003. Under section 145 of the Elec tricity Act, 2003, the jurisdiction of civil courts is barred.
6. In the case of B.L. Kantroo v. BSES Rajdhani Power Ltd., 154 (2008) DLT 56 (DB) it has been held that although there is no specific provision in Section 145 of the Electricity Act,, 2003 for ex CS 218/2011 Ganga Plastic vs. NDPL Page 3 of 17 4 clusion of jurisdiction of Civil Court to entertain any proceeding in re spect of any matter which the Special Court is empowered by or under the Act to determine, but any dispute about civil liability in theft cases is impliedly excluded from the jurisdiction of civil court in view of the provisions of Section 153 and 154 of the Act wherein special court has got the jurisdiction to determine any dispute regarding the quantum of civil liability specifically in theft cases and the said court can act as civil court as well as criminal court while conducting the cases before it. Paras 27 to 30 of the judgment have been specially read and relied upon.
7. Defendant has also relied upon the case of Super Auto Centre vs. BSES Rajdhani Power Ltd 184 (2011) DLT 1 (DB) wherein it has been held that the language employed under Sections 145 and 154 of the 2003 Act is clear and unambiguous thus the jurisdiction of civil Court is ousted. Paras 2, 8, 14, 15 and 16 of the judgment have been read and relied upon.
8. Ld. Counsel for defendant has submitted that the Hon'ble High Court of Delhi in Deepika Kalra vs. BSES Rajdhani Power Limited 2009(4) JCC 2601 has relied upon the case of B. L. Kantroo (supra) CS 218/2011 Ganga Plastic vs. NDPL Page 4 of 17 5 and held that the jurisdiction of civil courts is ousted. Paras 3, 13, 14 and 15 of the judgment have been read and relied upon.
Plaintiff's Arguments
9. Ld. Counsel for the plaintiff has submitted that the suit is governed under the Old Act i.e. Delhi Electricity Reforms Act, 2000 and not under the 2003 Act.
10. Learned counsel for the plaintiff submits that the action was taken by the defendant in accordance with the Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations, 2002 framed under Section 61 of the Delhi Electricity Reforms Act, 2000 and not under the Delhi Electricity Supply Code and Performance Standards Regulations, 2007 framed under Section 50 of the Electricity Act, 2003 and, therefore, the judgment in the B.L. Kantroo's case (supra) is not applicable in the facts and circumstances of the present case.
11. Ld. Counsel for the plaintiff submits that the point of Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations, 2002 had not been raised in the case of Super Auto Centre (supra).
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12. It is submitted that the Regulations under section 50 of the Electricity Act, 2003 known as Delhi Electricity Supply Code and Performance Standards Regulations, 2007 came into force on 18.04.2007. Section 71 of the said Regulations deal provided that it has repealed the Delhi Electricity Regulatory Commission (Performance Standard - Metering and Billing) Regulations 2002. However it has been specifically stated that notwithstanding such repeal anything done or action taken or purported to have been taken, or proceedings initiated under such repealed Regulations, shall be deemed to have been taken under these Regulations to the extent that same were not inconsistent with the Act. Similar language has been employed in section 185 of the Electricity Act, 2003. The instant suit has been filed prior to coming into the force of Delhi Electricity Supply Code and Performance Standards Regulations, 2007.
13. Under the Delhi Electricity Reforms Act, 2000 the bar of jurisdiction had been contained in section 56 of the Act. A bare reading of the said provision shows the instant suit is not covered by the bar contained therein. Under section 61 of the Delhi Electricity Reforms Act, 2000 the Commission had been invested with powers to CS 218/2011 Ganga Plastic vs. NDPL Page 6 of 17 7 make regulations. The Delhi Electricity Regulatory Commission (Performance Standard - Metering and Billing) Regulations 2002 have been made in exercise of the said provision.
14. A bare reading of the show cause notice Ex. PW1/3 clearly demonstrates that the action has been taken by the defendant in accordance with The Delhi Electricity Regulatory Commission (Performance Standard - Metering and Billing) Regulations 2002. Ex. PW1/3 is in conformity of section 25 to 28 of the Regulations of 2002 which is apparent from the following extract of the same: "You are therefore hereby called upon to show cause against the detail of your past paid bills for 6 months and also explain as to why a case for Dishonest Abstraction of Energy (DAE)/..., LPF should not be booked against you. Your response should reach to this office within the close of office hours in 3 days. You also have an opportunity of personal hearing before Enforcement Assessment Cell at the above mentioned address on 20.04.2004 at 2:30 P.M. CS 218/2011 Ganga Plastic vs. NDPL Page 7 of 17 8 alongwith relevant records/docords/documents in this connection. The matter then shall be processed by the company as per the provision of the law."
Findings & Reasons
15. The following dates are relevant to decide the issue: 16.04.2004 : Inspection and Show cause notice issued. 28.06.2004 : Speaking order passed.
03.07.2004 : Final Assessment Bill payable by 02.07.2004: Suit Filed.
16. Delhi Electricity Reforms Act, 2000 came into force on 03.11.2000; Delhi Electricity Regulatory Commission (Performance Standard - Metering and Billing) Regulations 2002 came into force on 19.08.2002; the Electricity Act, 2003 received the President's assent on 26.05.2003; Delhi Electricity Supply Code and Performance Standards Regulations, 2007 came into force on 18.04.2007.
17. Section 6 of the General Clauses Act, 1897 deals with the effect of repeal. It reads as under: '6. Effect of repeal-- Where this Act, or any Cen tral Act or Regulation made after the commence ment of this Act, repeals any enactment hitherto CS 218/2011 Ganga Plastic vs. NDPL Page 8 of 17 9 made or hereafter to be made, then, unless a differ ent intention appears, the repeal shall not --
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered there under; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment in curred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punish ment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regula tion had not been passed."
18. Section 185 of the Electricity Act, 2003 reads as under: "185. Repeal and saving: (1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the CS 218/2011 Ganga Plastic vs. NDPL Page 9 of 17 10 Electricity Regulatory Commissions Act, 1998 are hereby repealed.
(2) Notwithstanding such repeal,
(a) anything done or any action taken or purported to have been done or taken including any rule, no tification, inspection, order or notice made or is sued or any appointment, confirmation or declara tion made or any licence, permission, authorisation or exemption granted or any document or instru ment executed or any direction given under the re pealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provi sions of this Act.
(b) the provisions contained in sections 12 to 18 of the Indian Electricity Act, 1910 and rules made thereunder shall have effect until the rules under section 67 to 69 of this Act are made;.
(c) the Indian Electricity Rules, 1956 made under section 37 of the Indian Electricity Act, 1910 as it stood before such repeal shall continue to be in force till the regulations under section 53 of this Act are made.
(d) all rules made under subsection (1) of section 69 of the Electricity (Supply) Act, 1948 shall con tinue to have effect until such rules are rescinded or modified, as the case may be;
(e) all directives issued, before the commencement of this Act, by a State Government under the en CS 218/2011 Ganga Plastic vs. NDPL Page 10 of 17 11 actments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government.
(3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable.
(4) The Central Government may, as and when considered necessary, by notification, amend the Schedule.
(5) Save as otherwise provided in subsection (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897, with regard to the effect of repeals.
19. The Schedule to the Electricity Act, 2003 has the following Legislations listed therein, as it reads: "THE SCHEDULE ENACTMENTS [See subsection (3) of section 185] The schedule to this Act mentions the State Re forms Acts. Originally 8 enactments were incorpo rated:
1. The Orissa Electricity Reform Act, 1995 (Orissa Act No. 2 of 1996)
2. The Haryana Electricity Reform Act, 1997 (Haryana Act No. 10 of 1998) CS 218/2011 Ganga Plastic vs. NDPL Page 11 of 17 12
3. The Andhra Pradesh Electricity Reform Act, 1998 (Andhra Pradesh Act No. 30 of 1998)
4. The Uttar Pradesh Electricity Reform Act, 1999 (Uttar Pradesh Act No. 24 of 1999)
5. The Karnataka Electricity Reform Act, 1999 (Karnataka Act No. 25 of 1999)
6. The Rajasthan Electricity Reform Act, 1999 (Rajasthan Act No. 23 of 1999)
7. The Delhi Electricity Reforms Act, 2000 (Delhi Act No.2 of 2001)
8. The Madhya Pradesh Vidyut Sudhar Ad hiniyam, 2000 (Madhya Pradesh Act No. 4 of 2001)"
20. The Regulation no. 71 of the Delhi Electricity Supply Code and Performance Standards Regulations, 2007 read as under: "71. Repeal and Savings: i. Save as otherwise provided in these Regulations, the Delhi Electricity Regulatory Commission (Performance Standard - Metering and Billing) Regulations 2002 are hereby repealed.
ii. Notwithstanding such repeal a. Anything done or action taken or purported to have been taken, or proceedings initiated under such repealed Regulations, shall be deemed to have been taken under CS 218/2011 Ganga Plastic vs. NDPL Page 12 of 17 13 these Regulations to the extent that same were not inconsistent with the Act.
b. The Commission may, at any time and on such terms as it may think fit, amend, alter or modify any provision of these Regulations or remove any error or defect in these Regulations."
21. In Keshvan vs. State of Bombay AIR 1951 SC 128 it has been held that a statute after repeal is as completely obliterated as if it had never been enacted. Except the proceeding which were commenced, prosecuted and brought to a finality before the repeal, no other proceeding under the repealed statute can be commenced after the repeal.
22. The Delhi Electricity Regulatory Commission (Performance Standards - Metering & Billing) Regulations, 2002 have been notified by the Notification No. F8(9)/DERC/200102 published in the Gazat tee on 19.08.2002. These regulations have come into existence in ex ercise of the powers conferred by virtue of section 61 of the Delhi Electricity Reform Act, 2000 (Act 2 of 2001) and accordingly so made by the Delhi Electricity Regulatory Commission. CS 218/2011 Ganga Plastic vs. NDPL Page 13 of 17 14
23. Thus the genesis of the Delhi Electricity Regulatory Commis sion (Performance Standards - Metering & Billing) Regulations, 2002 is in section 61 of the Delhi Electricity Reform Act, 2000. These Reg ulations are delegated legislations and have been enacted in exercise of the powers vested in Delhi Electricity Regulatory Commission by virtue of section 61 of the Delhi Electricity Reform Act, 2000. Once the Delhi Electricity Reform Act, 2000 has been repealed by virtue of enactment of the Electricity Act, 2003 all the rules, regulations enact ed under the same are get repealed as their only source of sustenance and raison d'etre is the parent statute. Once the parent statute is off the statutes book the subordinate or delegated legislations which have been brought into existence by virtue of powers vested in the parent statute, they have no option but also to sail in the same boat. Delegat ed or subordinate Legislation has to accept the same fate as meted out to the parent Legislation. Repeal of the delegated Legislation is auto matic on the repeal of the parent Legislation and no separate act, noti fication or repeal is required.
24. Investiture of jurisdiction in a Forum or Tribunal is a part of the procedural law, and is not a substantive right. No person has a vested CS 218/2011 Ganga Plastic vs. NDPL Page 14 of 17 15 right in procedure. The procedure can even be changed retrospective ly.
25. In the case in hand, the inspection and Showcause notice have been issued on 16.04.2004; the Speaking Order has been passed on 28.06.2004; the Final Assessment Bill has been prepared and payable by 03.07.2004 and the suit has been filed on 02.07.2004. All these acts have been done subsequent to the repeal of the Delhi Electricity Reform Act, 2000 and during the period when Electricity Act, 2003 had been in force. Thus during the accrual and currency of the cause of action of the plaintiff, the Electricity Act, 2003 was in force. Thus the parties are bound to act within the four corners of the law in force and for all practical purposes the Delhi Electricity Reform Act, 2000 stands obliterated.
26. Section 145 of the Electricity Act, 2003 reads as under: "Section 145. Civil courts not to have jurisdiction:
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 appellate authority referred to in section CS 218/2011 Ganga Plastic vs. NDPL Page 15 of 17 16 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to de termine 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."
27. In the factual matrix of the case, the plaintiff also cannot derive any mileage out of the fact that the terms of show cause notice, Ex. PW1/3, and various other acts of the defendant have been envisaged, performed or contemplated in the same terms as laid down in Chapter VII (Regulation 25 to 30) of the Delhi Electricity Regulatory Commission (Performance Standards - Metering & Billing) Regulations, 2002. It is the settled law that the parties by their agreement, acts or omissions cannot confer jurisdiction upon a Court, when it otherwise does not exists. As per section 6 of the General Clauses Act, 1897, the terms of repeal shall apply visàvis such acts, rights or obligations etc.
28. Thus in view of the judgments relied upon by the defendant as well as the above discussion the above discussion the parties were CS 218/2011 Ganga Plastic vs. NDPL Page 16 of 17 17 governed by the provisions of the Electricity Act, 2003 and by virtue of its provisions the jurisdiction of Civil Courts is barred in respect of the cause of action as propounded in the instant suit.
29. The issue is thus answered in favour of the defendant and against the plaintiff.
30. This answers the terms of remand of the matter.
31. The file be consigned to the Record Room. Announced in the Open Court today on: 23.08.2012 (MAN MOHAN SHARMA) ADJ (Central)01, Delhi CS 218/2011 Ganga Plastic vs. NDPL Page 17 of 17