Delhi District Court
Shri Bhagwan Dass Berlia vs North Delhi Power Ltd on 6 September, 2007
1
IN THE COURT OF SH. SUKHDEV SINGH:
ADDITIONAL DISTRICT. JUDGE:DELHI.
Suit No. 28/2004
Shri Bhagwan Dass Berlia
Plot No. 59, SSI Indl. Area,
G.T Karnal Road, Delhi. ..Plaintiff
Vs.
North Delhi Power Ltd.
Through its CEO,
Hudson Lines, Kingsway Camp,
New Delhi. ..Defendant
Date of Institution : 26.4.2004
Judgment Reserved for : 06.09.2007.
Judgment Passed on : 06.o9.2007.
JUDGMENT
Plaintiff has filed the present suit for Declaration and Permanent Injunction against defendant praying that amount of Rs. 6,25,329.25 added under the head adjustment be declared as null and void and defendant be restrained from disconnecting the supply through K. No. 45100135661 J, installed at Plot No. 59, SSI, Industrial Area, G.T Karnal Road, 2 Delhi. It has been stated in the plaint that plaintiff is carrying out the business from the premises with electricity connection through K. No. 45100135661 J installed at the premises, having sanctioned load of 91.52KW. He also possessed MCD licence which was valid upto 31st March, 2004. It has been stated that a revised policy /procedure for grant of permanent/provisional electric connections on demand was circulated vide office order No. CO-II/P-8/99/6 dated 15.2.1999 in view of the approval of DVB vide Resolution No. 06-99/056A, on receipt of letter No. F-1 (1)/05 EB/15815 dated 4.2.1999 from NCT of Delhi. On the basis of said policy, plaintiff applied for Industrial connection. It has further stated that as per the policy, plaintiff was entitled for the industrial connection without having Muncipal licence and for this purpose higher charges were required to be deposited. As per the policy, plaintiff was liable to pay the bills on regular tariff and was making the payment of the bills at the normal rates. It has further staed that vide circular No. CE (C)COI/P-25/2000/46 dated 20.7.2000, issued by Addl. Chief Engineer (Comml), it was specified that normal tariff will be charged in all he cases of provisional connections 3 given by DVB in industrial area. Further, as per the tariff issued by DERC, the rate of PI connection was Rs. 4.10p only. It is further stated that plaintiff received a bill for Rs. 99,730, which was deposited by him. Further, another bill for Rs. 7,00,916.85 p in which the current demand is Rs. 7,55,81.40 with arrears of Rs. 6.20 p has been received by plaintiff, which is not in dispute as the plaintiff is ready to pay the same. However, in the same bill an amount of Rs. 6,25,329.25 p has been reflected, but no details have been given against this amount. Defendant was bound to give details of the same. It has further been stated that no show cause notice or opportunity of personal hearing was granted to the plaintiff. Hence, the suit.
2 In the Written Statement, defendant has stated that plaintiff was running the industry without having a valid MCD licence. He did not produce MCD licence even after the service of show cause notice. Hence, he was liable to pay misuse charges on account of NF code (escaped demand) w.e.f 1.6.2001 till 31.5.2003 to the tune of Rs. 6,25,329.25, which was debited in the billing month of April, 2004. They 4 have further stated that normal industrial tariff is Rs. 410 with MCD licence and Rs. 600 per unit without licence. They have further stated that plaintiff was given show cause notice dated 20.12.2003 and he was asked to bring MCD licence, which he failed to produce.
3 In the replication filed by plaintiff, he controverted the pleas of the defendant and reiterated his own pleas. 4 On the pleading of the parties, following issues were framed :-
i Whether the demand raised by defendant is illegal in view of the provisions of clause 31 of DERC Regulations and Section 56 (2) of the Electricity Act, 2003 ?
ii Whether the plaintiff is entitled to the decree of declaration and permanent injunction as claimed in the suit ?
Iii Relief.
5 I have heard Ld. Counsels for parties and have 5 perused the material placed on record. My findings on the above issues are as follows :-
ISSUE NO.1 & 2.
6 Since both these issues are interlinked and evidence on the same is similar, they are taken up together. The onus to prove these issues lies upon the parties. In support of this, plaintiff has examined himself as PW.1. Shri Bhagwan Dass Berila, PW.1 has stated in his testimony that he was carrying out the business from the premises with electricity connection through K. No. 45100135661 J installed at the premises, having sanctioned load of 91.52KW. He also possessed MCD licence which was valid upto 31st March, 2004. He has further stated that a revised policy /procedure for grant of permanent/provisional electric connections on demand was circulated vide office order No. CO-II/P-8/99/6 dated 15.2.1999 in view of the approval of DVB vide Resolution No. 06-99/056A, on receipt of letter No. F-1 (1)/05 EB/15815 dated 4.2.1999 from NCT of Delhi. On the basis of said policy, he applied for Industrial connection. Further, it is stated that as per the policy, he was entitled for the 6 industrial connection without having Municipal licence and for this purpose higher charges were required to be deposited. As per the policy, he was liable to pay the bills on regular tariff and was making the payment of the bills at the normal rates. He has further stated that vide circular No. CE (C)COI/P-25/2000/46 dated 20.7.2000, issued by Addl. Chief Engineer (Comml), it was specified that normal tariff will be charged in all he cases of provisional connections given by DVB in industrial area. Further, as per the tariff issued by DERC, the rate of PI connection was Rs. 4.10p only. He has also stated that he received a bill for Rs. 99,730, which was deposited by him. Further, another bill for Rs. 7,00,916.85 p in which the current demand was Rs. 7,55,81.40 with arrears of Rs. 6.20 p has been received by him, which was not in dispute as he was ready to pay the same. However, in the same bill an amount of Rs. 6,25,329.25 p has been reflected, but no details have been given against this amount. Defendant was bound to give details of the same. It has further been stated that no show cause notice or opportunity of personal hearing was granted to the plaintiff. He has got exhibited the copy of MCD licence as Ex.PW1/1, copy of 7 office order Ex.PW1/2, copy of circular dated 20.7.2000 Ex.PW1/3, copy of tariff schedule of DERC Ex.PW1/4, Bill for the month of March, 2004 has been got exhibited as Ex.PW1/5 and disputed bill has been got exhibited as PW.1/6. 7 In defence, defendant has examined Shri Gautam Sen Gupta as DW.1. He has stated in his testimony that misuse charges were levied as the plaintiff was running the industry without MCD licence in 2001 and made payment of bills as raised on NF code since June, 2003 till March,2004. He has further stated that he issued show cause notice dated 20.12.2003 to produce MCD licence, but he did not produce the same Accordingly, misuse charges to the tune of Rs. 6,25,329.25 w.e.f 1.6.2001 to 31.5.2003 were debited in the bill of April, 2004. He has got exhibited the show cause notice as Ex.DW1/1, statement of account as Ex.DW1/2 and calculation sheet as Ex.DW1/3.
8 It has been argued on behalf of plaintiff that he was not liable to pay the misuse charges as the same were not depicted in the provisional bills. However, Ld. counsel for 8 defendant has argued that plaintiff was making the payment of regular bills raised on NF Category and the misuse charges were shown in the disputed bill.
9 If a look is made to the crossexamination of the plaintiff, PW.1, it is noticed that he has admitted that he was not having MCD licence in the year 2001 to run industrial unit. He has further admitted that he was paying the regular bills raised on NF Category. However, crossexamination of Shri Gautam Sen Gupta, DW.1 is only restricted to suggestions by the counsel for plaintiff. The examination in chief of this witness also shows that show cause notice Ex.DW1/1 was given to the consumer. Further, statement of account and calculation sheets have been got exhibited as Ex.DW1/2 and 3. There is no crossexamination or suggestion with regard to Ex.DW1/2 and DW1/3. It means statement of account and calculation sheet stand admitted by the plaintiff. However, there has been suggestion with regard to time barred claim. No doubt under clause 3 of DERC Regulations, there has been prohibition of levy of charges on account of violation and on account of tariff schedule by six months, but under Section 56 (2) of the Electricity Act, 9 2003, no sum due from any consumer is recoverable after the period of two years from the date when such sum became first due unless such sum has not been shown continuously as recoverable as arrears. 10 In order to reconcile these two provisions and balance the interests of the parties, it would be preferred to give precedence to Section 56 (2) of the Electricity Act, 2003 over clause 3 of DERC Regulations. Meaning thereby, the amount if has not been shown as arrears continuously for the period of two years cannot be recovered beyond a period of two years.
11 From the evidence on record, it is noticed that Ex.PW1/5, is the bill for the month of March,2004, prior to bill Ex.PW1/6, which is for the month of April, 2004, the disputed amount has been shown. This amount was not shown in the bill for the month of March,2004. It means the arrears were not shown in the earlier bills. Though there is a conflict between the DERC Regulation and the Electricity Act, 2003, but in order to safeguard interest of both the parties, it is concluded that payment of arrears on account of misuser 10 cannot be made for a period beyond two years.
12 In view of the above, I am of the opinion that plaintiff is liable to pay arrears on account of misuser for a period of two years. Therefore, I direct defendant to issue a fresh bill calculating the amount on misuse for a period of two years only, if not issued. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open Court (SUKHDEV SINGH) on 6.9.2007. ADDL. DISTT. JUDGE:
DELHI