Delhi District Court
M/S R.R. Financial Consultants Ltd vs Bses Yamuna Power Ltd on 12 May, 2011
IN THE COURT OF SH. SAURABH KULSHRESHTHA:
CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI
Civil Suit no: 35/11
ID No:02402C050172011
M/s R.R. Financial Consultants Ltd.,
106, Pankaj Chambers, Preet Vihar,
Delhi- 110 092 .......... Plaintiff
Versus
BSES Yamuna Power Ltd.,
Shakti Kiran Building,
Karkardooma, Delhi-110 092
...........Defendant
SUIT FOR DECLARATION, MANDATORY &
PERMANENT INJUNCTION
Date of institution of the Suit : 14.02.2011
Date on which judgment was reserved : 06.04.2011
Date of decision : 12.05.2011
Decision : Dismissed
JUDGMENT:-
1. This is a suit for Declaration and Permanent Injunction. The version of the plaintiff is that on 19.10.1985 one Mrs. Sheel Sabharwal purchased an office bearing no. 106, 1st floor, Pankaj Chambers, Preet Vihar, Delhi (hereinafter referred to as the suit Suit No. : 35/11 Page No: 1/8 premises) and an electricity connection was installed by DESU at that time in the suit premises in the year 1985. In the year 1995 the suit premises was purchased by M/s Paragon Estate (P) Ltd. which later on was amalgamated with the plaintiff company and the plaintiff got the electricity connection duly transferred in its name by completing all the requisite formalities. The Plaintiff has been using the electricity from the aforesaid electricity connection and making the payment of the bills raised. The defendant is the electricity distribution licensee.
2. It is further the case of the plaintiff the plaintiff did not receive the bill for the month of December 2010. The plaintiff has pleaded that thereafter on 07.02.2011 a team of officials of the defendant visited the suit premises and they claimed that the plaintiff has committed misuse of electricity and electricity connection is to be disconnected. The employees of the defendant told that the defendant has already served the plaintiff with a notice of misuse alleging that the meter installed in the suit premises is a Domestic Meter and it can not be used for commercial purposes.
3. The grievance of the plaintiff is that the plaintiff got the Suit No. : 35/11 Page No: 2/8 duplicate bill issued and found that an amount of Rs. 75,304.79 has been wrongly levied towards misuse charge. On 08.02.2011 the plaintiff made a representation to the defendant however nothing was done.
4. The plaintiff has contended that the misuse bill in question is illegal as the suit premises/ office of the plaintiff is itself situated in a commercial building and therefore there can be no occasion for the plaintiff or the erstwhile owner for applying for a domestic connection and hence it is not the fault of the plaintiff that a domestic connection/ meter has been installed.
5. The plaintiff has prayed for declaring the said misuse bill of an amount of Rs. 75,304.79 as illegal and null and void and a Permanent Injunction restraining the defendant from disconnecting the electricity supply to the suit premises for non payment of the said bill and a direction to the defendant for installing a commercial meter in the suit premises.
6. The defendant appeared pursuant to service of summons Suit No. : 35/11 Page No: 3/8 and filed written statement. The defendant has inter alia contended that in case of misuse of electricity the jurisdiction of civil court is barred in terms of the section 126, 127 and 145 of the Electricity Act, 2003. The defendant pleaded on merits that the premises of the plaintiff was inspected on 12.08.2010 and provisional assessment order dated 09.09.2010 under section 126 of the Electricity Act, 2003 was sent to the plaintiff through speed post and he was asked to show cause within seven days and was also granted an opportunity of personal hearing for 30.09.2010. However, inspite of receipt of the same the plaintiff neither replied the show cause notice nor attended the personal hearing. Accordingly, speaking order dated 05/06.10.2010 was passed and it was held that plaintiff had indulged in unauthorized use of electricity (UUE) and hence is liable to pay misuse charges as per tariff. Accordingly, a misuse bill of an amount of Rs. 75,300 was raised which is duly payable by the plaintiff. The defendant prayed for dismissal of the suit.
7. Vide order dated 06.04.2011 a preliminary issue was framed as to whether this court has the jurisdiction to try the present suit. Arguments were addressed on the said preliminary issue.
Suit No. : 35/11 Page No: 4/8
8. I have heard the Ld. Counsel for the parties and have gone through the record.
9. The plaintiff has contended that the demand of the defendant for an amount of Rs. 75,304.79 towards misuse charges is illegal, null and void on the ground that the defendant had itself installed a domestic connection in the premises of the plaintiff although the building in question is a commercial building.
10. Per Contra the defendant has contended that the suit is barred in view of the provisions of section 126 and 145 of the Electricity Act, 2003.
11. It would be relevant to examine the relevant statutory provisions i.e. sections 126, 127 and 145 of the Electricity Act 2003. Section 126 of the Electricity Act, 2003 deals with assessment in case of unauthorized use of electricity. The explanation to the section clearly shows that unauthorized use of electricity would include a case where a consumer uses a domestic connection for commercial Suit No. : 35/11 Page No: 5/8 purposes. The present case therefore relates to unauthorized use of electricity. In such a case assessment is to be made in accordance with the provisions of section 126 of the Electricity Act, 2003. The appeal against a final order made under section 126 of Electricity Act, 2003 lies to the Appellate Authority constituted under section 127 of Electricity Act, 2003. It has been informed that ADMs have been designated as appellate authorities for the purpose of section 127 of the Electricity Act, 2003.
12. Further section 145 of the Electricity Act, 2003 bars the jurisdiction of the Civil Court in such matters dealt with under section 126 and 127 of the Electricity Act, 2003 and no injunction can be granted by the court in respect of any action taken or to be taken in pursuance of any power conferred under the Electricity Act, 2003. Accordingly, it is a case of express bar of the the jurisdiction of civil courts.
13. The counsel for the plaintiff has relied upon the judgment reported as AIR 2007 Punjab and Haryana 57. In that case the matter was that the electricity distribution company had issued Suit No. : 35/11 Page No: 6/8 demand notice by clubbing two separate electricity connections which was assailed. The said judgment is not applicable in the facts and circumstances of the present case.
14. It is also not the case of plaintiff that the defendant has not followed the fundamental rules of procedure specified in the statute. Provisional assessment order dated 09.09.2010 was passed and the plaintiff was asked to show cause within seven days and also granted opportunity for personal hearing and the since the defendant did not respond final speaking order 05/06.10.2010 was passed and it was held that the plaintiff had indulged in unauthorized use of electricity and he was liable to pay misuse charges as per tariff.
15. Plaintiff is clearly challenging the bills issued on account of unauthorized use of electricity raised pursuant to an assessment under section 126 of the Electricity Act, 2003. The contentions taken before this court are nothing but grounds for assailing the assessment order and subsequent bill for unauthorized use of electricity. The plaintiff can challenge the assessment order only before the Appellate Authority constituted under section 127 of the Electricity Act, 2003.
Suit No. : 35/11 Page No: 7/8 This court has no jurisdiction to entertain the present suit in view of the provisions of section 126/127/145 of the Electricity Act, 2003. Section 145 of the Electricity Act, 2003 expressly bars the jurisdiction of civil courts in such a case and no injunction can be granted.
16. Accordingly, the preliminary issue is decided in favour of the defendant. This court has no jurisdiction to entertain the present suit and the present suit is liable to be dismissed. The suit is accordingly dismissed. No costs. File be consigned to Record Room.
Announced in the open (SAURABH KULSHRESHTHA) Court on 12.05.2011 CCJ/ARC(East)
(Judgment contains 8 pages.) KARKARDOOMA COURTS, DELHI Suit No. : 35/11 Page No: 8/8