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Delhi District Court

Bses Yamuna Power Ltd vs Sh. Rajesh Sharma on 21 March, 2012

                   IN THE COURT OF SH. REETESH SINGH
                ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
                       KARKARDOOMA COURTS, DELHI

                                                                        RCA No. 29/10

        Date of Institution of Appeal                   :      01.07.2010
        Date on which Reserved for Judgment             :      21.03.2012
        Date of Judgment/Order                          :      21.03.2012
        Case I.D. Number                                :      02402C0176072010
IN THE MATTER OF:-


        BSES Yamuna Power Ltd.,
        Having its Registered Office at
        Shakti Kiran Building, Karkardooma,
        Delhi-110032.
                                                                       ........Appellant.

                                        Versus
     1. Sh. Rajesh Sharma,
        S/o Sh. Mahender Pal Sharma,
        R/o C-331, Kh. No.18/12 & 18/14,
        Matawali Gali, Nala Road,
        Karawal Nagar, Delhi-110094.

     2. Smt. Reshmi Devi,
        W/o Sh. Chunni Lal,
        R/o C-331, Kh. No.18/12 & 18/14,
        Matawali Gali, Nala Road,
        Karawal Nagar, Delhi-110094.
                                                                 ..........Respondents.

JUDGMENT

1. This appeal has been filed against the impugned judgment and order dated 6.4.10 passed by the ld. Trial Court by which suit of the respondent/plaintiff for declaration and permanent injunction has been decreed.

2. The only contention which is sought to be raised in the appeal is that the ld. Trial Court did not have the jurisdiction to entertain the suit in view of the expressed RCA No. 29/10 Page No. 1/6 bar provided under Section 135 of Indian Electricity Act, 2003. It is contended that only the special electricity court constituted under Section 153 of Indian Electricity Act, 2003 has the jurisdiction to entertain the suit. Reliance was placed by the appellant on the judgment of the Hon'ble High Court of Delhi in the case of B.L. Kantroo Vs. BSES Rajdhani Power Limited, reported in 154, 2008 DLT 56 (DB) and judgment dated 19.4.11 of the Hon'ble High Court of Delhi in RFA No.175/11 titled Usha Goyal Vs. BSES Yamuna Power Limited.

3. Brief facts leading to the filing of the appeal are that the plaintiff filed a suit in the ld. Trial Court for declaration and permanent injunction. Plaintiff prayed that the demand of Rs.2,09,628/- raised by the defendant be declared as null and void and to pass a decree of permanent injunction to restrain the defendant from disconnecting supply of the electricity connection to his premises. It is pleaded in the plaint that the plaintiff no.1 was tenant in premises no.C-331, Khasra no.18/13 and 18/14 Matawali Gali Nala Road, Johripur, Karawal Nagar, Delhi in which she was running business of jeans dye works. Plaintiff no.2 was the landlady of the suit premises and was consumer of electricity connection bearing K No.1251V1485976 installed at the suit premises which was being used by the plaintiff no.1. Said connection had sanctioned load of 5 Kilowatt. It is averred that average consumption of the electricity from the said connection was 500 to 800 units between December 2007 to February 2009. In February, 2009 plaintiff no.1 received assessment bills for theft of electricity for Rs.2,09,628/- on the basis of that plaintiff had committed theft of electricity. Plaintiffs thereafter filed the present suit for above mentioned reliefs.

4. In the written statement the defendant among other raised an objection that the suit of the plaintiff was not maintainable and liable to be dismissed. On merits it was averred that inspection of the suit premises was conducted on 29.1.09 where total connected load of 6.482 kilowatt was found under industrial capacity against sanctioned load of 5 kilowatt under the non-domestic category and connection was found being used for jeans dying work.

5. On the pleadings of the parties the ld. Trial court famed the following issues on 28.5.09:

1. Whether the present suit is without cause of action?OPD

2. Whether the plaintiff is entitled for the relief of declaration?OPP

3. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed?OPP

4. Relief.

6. Ld. Counsel for appellant has argued that it has now been settled by the Hon'ble High Court that jurisdiction of general Civil Courts for entertaining such suit challenging the electricity bill on account of theft of electricity was barred under Section 135 of Indian Electricity Act, 2003 and thus it was the only the special electricity court which could entertain this suit. Counsel for the appellant relied upon the judgments of the Hon'ble High Court of Delhi in the case of BL Kantroo V/s BSES Rajdhani Power Ltd. 154 (2008) DLT 56 (DB), Usha Goel Vs. BSES P. No. 197/10 decided on 09.02.2011, the Ld. PO of the Special Court (Electricity), Karkardooma Courts and RFA No. 175/11 titled Usha Goel Vs. BSES Yamuna was decided by the Hon'ble High Court of Delhi by order dated 19.04.2011.

7. Counsel for respondent on the other hand contended that the Civil Courts had the jurisdiction to entertain the present suit.

8. I have heard the ld. Counsel for parties and have perused the record.

9. In the case of B.L. Kantroo (Supra) the Hon'ble division bench of the Hon'ble High Court was pleased to observe in paras 28 and 29 that the scheme of the Indian Electricity Act, 2003 was complete in itself and that the jurisdiction of the Civil Court to take cognizance of the cases under the Act by necessary implication stood barred. Jurisdiction of the Civil Court to take cognizance of the suit of civil nature covered under the Act stood excluded.

10. Relying on the judgment of the Hon'ble High Court in the case of B.L. Kantroo (supra), in the case of Usha Goel Vs. BSES P. No. 197/10 decided on 09.02.2011, the Ld. PO of the Special Court (Electricity), Karkardooma Courts has held as under:-

"1. By this order I dispose of the question about the maintainability of the present petition filed by the petitioner/plaintiff Smt. Usha Goel u/s 154(5) of the Electricity Act, 2003, in view of the preliminary objections taken by the defendant company in its written statement."

********** "11. It is thus apparently clear that this Special Court (Electricity) constituted u/s 153 of the Electricity Act, 2003 acts as criminal court as well as civil court while conducting the trial for the offences punishable under Electricity Act, 2003 as well as for determining the civil liability against the accused in such cases. Even in the case of B.L. Kantroo Vs. BSES RPL (Supra) the main question before the court was as to whether a Civil Court has jurisdiction to entertain the suit for declaration and injunction against an impugned theft bill of electricity and it was held that civil courts have no jurisdiction to entertain such suits and Special Court (Electricity) has jurisdiction to entertain such suit challenging the legality of the impugned theft bill of electricity. The plea raised by ld. Counsel for petitioner that if this court is treated as a civil court, then this court has no pecuniary jurisdiction to entertain the present petition in respect to the present impugned theft bill of electricity to the tune of Rs.23,23,608/- as the jurisdiction of the civil court at district level cannot entertain the suit behind the pecuniary jurisdiction of Rs. 20,00,000/-, has no substance because this court being the Special Court (Electricity) is not bound by pecuniary jurisdiction of other ordinary civil courts at district level. Similarly the power of this Special Court (Electricity) to determine the civil liability against the consumer/user in theft cases is not barred by any pecuniary jurisdiction/limitation.

12. In view of my above discussion coupled with the reasons given, RCA No. 29/10 Page No. 4/6 I have come to the conclusion that the present petition u/s 154(5) of the Electricity Act, 2003 filed by the petitioner is not legally maintainable as it has not been framed in accordance with the rules and regulations of the pleadings as well as the provisions of Civil Procedure Code by filing a suit for declaration along with consequential relief of injunction and that too by paying ad-valorem court fee on the basis of amount of impugned bill. Accordingly, the present petition u/s 154(5) of the Electricity Act, 2003 filed by the petitioner/plaintiff is dismissed as not legally maintainable. Petitioner is however at liberty to file a fresh suit for declaration as well as injunction for challenging the impugned theft bill of electricity raised by the defendant company as well as for determining of her civil liability within 15 days during which period defendant company will not disconnect the supply of electricity at the aforesaid premises of the petitioner/plaintiff. With these observations, this petition filed by the plaintiff/petitioner u/s 154(5) of the Electricity Act, 2003 is dismissed as not legally maintainable. Parties are left to bear their own cost."

11. In the above matter, the Ld. Special Electricity Court after considering the judgment of the Hon'ble High Court of Delhi in the case of B.L. Kantroo has held that a person aggrieved of an electricity bill which was raised under the provisions of Section 135-139 of Electricity Act is entitled to file a civil suit before the Special Court (Electricity) constituted under Section 153 of the Electricity Act, 2003. It was held that the said Court was a Special Court which was vested with the jurisdiction to entertain the civil suits against bills raised on account of theft of electricity and that no other Civil Court can entertain the same.

12. Against the judgment dated 09.02.2011 of the Electricity Court, RFA No. 175/11 titled Usha Goel Vs. BSES Yamuna was filed before the Hon'ble High Court of Delhi. By order dated 19.04.2011, the Hon'ble High Court was pleased to dismiss the appeal. The Hon'ble High Court concurred with the view taken by the Ld. Special Electricity Court and held that a suit for challenging an inspection report and RCA No. 29/10 Page No. 5/6 a bill on account of theft of electricity can be challenged before the Special Court constituted under the Electricity Act, 2003 by filing of a civil suit.

13. The present suit of the plaintiff seeks to challenge a bill raised by the defendant on account of alleged theft of electricity by the plaintiff at the suit premises. Jurisdiction of the regular Civil Court to entertain such suit is barred since the same is exclusively vested with the Special Court (Electricity) constituted under the Electricity Act, 2003. The plaintiff ought to have filed his suit before the Special Court (Electricity) constituted under the Electricity Act, 2003. Since the jurisdiction of the regular civil Court to entertain the suit was barred, the Ld. Trial Court could not have entertain the same but should have returned the plaint under Order 7 Rule 10 CPC. Under the explanation to Order 10 Rule 1 CPC, the Appellate Court would also have the power to direct return of a plaint.

14. For the reasons recorded above, the present appeal is allowed to the aforesaid extent. Impugned order dated 06.04.2010 is set aside. Plaint of the plaintiff is directed to be returned to the plaintiff under the provisions of Order 7 Rule 10 CPC to be presented before the appropriate Court having jurisdiction.

15. A copy of this order along with TCR be sent back to the Ld. Trial Court.

16. File be consigned to the record room.

Dictated to the Steno and Announced in the Open Court today i.e. 21.03.2012.

(REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi.