Delhi District Court
Shri Rakesh Bajaj vs Tata Power Delhi Distribution Limited on 27 January, 2015
IN THE COURT OF MS. SHEFALI SHARMA CIVIL JUDGE
(NORTH): ROHINI COURTS: DELHI
Suit No. 4/2013
1.Shri Rakesh Bajaj, S/o Shri R. C. Bajaj
2. Smt. Ritu Bajaj, W/o Shri Rakesh Bajaj Both residents of House No. 12, IInd floor, Sector5, Rohini, Delhi - 110 085 ........Plaintiff Versus
1. Tata Power Delhi Distribution Limited, through its Managing Director/Directors, Grid Substation Kingsway Camp, Delhi - 110 009
2. Tata Power Delhi Distribution Limited, Office of Enforcement Assessment Cell (EAC), CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 1 Sector3, Rohini, Delhi - 110 085 ........Defendants Date of filing of the suit : 23.12.2010 Date Reserve for orders : 27.1.2015 Date of Decision : 27.1.2015 Judgment The plaintiff has filed the present suit for declaration and permanent injunction and mandatory injunction against the defendant, TPDDL.
CASE OF THE PLAINTIFF
1. The case of the plaintiff is that plaintiff no. 1 is husband of plaintiff no. 2 and plaintiff no. 2 is the owner and landlady of the property comprising of IInd floor of House No. 12, Sector5, Rohini, Delhi - 110 085 which was purchased by her from one Smt. Mamta Khurana by virtue of sale deed duly registered as document no. 8568 in Book No. I, Volume No. 1501, on pages 52 to 58 dated 25.5.2007 with the Sub Registrar VI, Delhi. Smt. Mamta Khurana had purchased the said portion of the property from one Smt. Reena Gandhi vide sale deed duly registered as document no. 1295 in Additional Book No. I, Volume No. 55, on pages 22 to 31 dated 11.8.2005 with the Sub Registrar VI, Rohini, Delhi. CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 2
That on the day, plaintiff no. 2 had purchased the aforesaid portion of the property from Smt. Mamta Khurana, there was a domestic connection of electricity with K. No. 44105060147 in the name of Smt. Reena Gandhi already installed in the premises which the present plaintiffs continued to use as it is.
That from the date of the purchase of the property, the plaintiffs are using the connection already installed in the premises as such and had been regularly making the payment of the bills of consumption as billed by defendant no. 1 to the plaintiffs without any default.
That both plaintiffs no. 1 and 2 (husband and wife) are working and are out of the house for the entire day and that they are residing with their two minor children.
That on 16.10.2010, there was no electricity supply coming to the portion of the plaintiffs and a complaint was lodged, upon which, defendant no. 1 visited the suit property and found that a wire had broken out and to rectify the same, officials of the defendant visited the place of the plaintiffs and removed the seals of the meter and the meter box installed in the premises and said that the meter is also required to be replaced and after giving a temporary connection, they went away. That again on 19.10.2010, staff of defendant no. 1 came and installed the new meter and affixed the CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 3 seals on the new meter.
2. That on 21.10.2010, certain officials of defendant no. 2 which is now being entirely privatized by defendant no. 1 visited the place of the plaintiffs without informing them before their entering into the premises about their purpose of the visit and had issued an inspection report dated 21.10.2010 which was got signed by the visiting officials of defendant no. 2 under protest from plaintiff no. 1, thereafter, that defendant no. 2 wrongfully booked plaintiff no. 1 for dishonest abstraction of energy (DAE) under section 135 of the Electricity Act, 2003 making the following allegations:
"During inspection of meter the rouvet found damaged and hologram seals found tampered. During segregation of meter resoldering found on NCT1, NCT2, PCT1, PCT2, REV and ELT termination on the PCB. This was done to manipulate meter reading."
In response to the said notice issued by defendant no. 2, plaintiff no. 1 personally visited before defendant no. 2 on 28.10.2010 at the given time and submitted his written reply dated 28.10.2010. It was represented that the said meter was existing as such from the date of purchase of the property by the plaintiffs and there is no other member in the family except the present plaintiffs and their two small kids and there is CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 4 no tampering being done at the end of the plaintiffs.
That all of the sudden on 5th December, 2010, the officials from the Defendant no. 1 visited the place of the plaintiffs for the disconnection of the electricity supply of the plaintiffs on account of nonpayment of the demand made by the defendants, the electricity connection of the plaintiffs had been ordered to be disconnected. The plaintiffs have not heard anything from the end of the defendants after 28.10.2010. That plaintiff no. 1, immediately, approached defendant no. 1 and then he came to know that some bill aggregating to Rs.1,19,713/ was being prepared, manufactured and raised against the plaintiffs pursuant to the inspection dated 21.10.2010 made by defendant no. 2. That plaintiff no. 2 immediately made a representation dated 7th December, 2010 to the defendant against the said demand raised vide bill no. 1011762688 reiterating the same stand along with the said representation, the plaintiffs have filed a copy of his earlier representation, copy of their sale deed, their family photograph and copies of the bills, but till date, nothing is being done about the said demand of Rs. 1,19,713/ illegally raised by the defendant against plaintiff no. 1 which was forced upon the plaintiffs.
But the defendant no. 2, without making any further investigation, dismissed the pleas of the plaintiff without any order. During CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 5 the personal hearing also, the plaintiff had requested for reexamination and reinvestigation of the matter through the concerned lab/forensic examination but defendant no. 2 paid no heed to the requests made by the plaintiff. That subsequently on 6.12.2010 officials of defendant no. 1 visited the place of the plaintiffs for disconnection of the electricity supply and the plaintiffs were shocked to know that on nonpayment of the demand made by defendant no. 1, the meter had been ordered to be disconnected.
Eventually the plaintiffs were immediately constrained to file the present suit of the electricity connection bearing no. 44105060147 bearing meter no. 04367987 installed at the suit property bearing no. IInd floor of House No. 12, Sector5, Rohini, Delhi - 110 085 seeking the relief of declaration to the effect that the bill bearing no. 1011762688 in pursuance of inspection dated 21.10.2010 be declared as null and void and further a decree of perpetual injunction be passed restraining the defendant from claiming and demanding any amount on the basis of the inspection of the aforesaid date.
CASE OF THE DEFENDANTS
3. It is the case of the defendants that the suit has not been properly valued for the purposes of court fees. It is further submitted that the subject connection bearing K. No. 44105060147 has been sanctioned in CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 6 the name of Smt. Reena Gandhi, which is based on the test notice and agreement submitted by the registered consumer in the office of the defendant. It is submitted that the connection has been installed at plot no. 12, Second Floor, Sector5, Rohini, Delhi, for a sanctioned load of 6.000 kw for domestic purpose.
It is submitted that earlier on 19.10.2010, the meter no. 04367987 was replaced with a new meter no. 41482692 and old meter was retained at site in safe custody of consumer, as the same was suspected to be a tampered one, as an important piece of evidence vide protocol sheet no. 3044211.
Thereafter, an inspection was carried out on 21.10.2010 at:
12.30 pm by duly authorized joint team of the defendant company, in respect of K. No. 44105060147 & Meter No. 04367987 (old retained meter) at the subject premises bearing plot no. 12, Second Floor, Sector5, Rohini, Delhi110085, in the presence user/plaintiff at site, who associated to joint team throughout the inspection proceedings and also signed and received the inspection reports without any protest. During the course of inspection, the joint team observed the following irregularities at site: A load of 19.590 KW was found connected against the sanctioned load of 6.000 KW for nondomestic purpose. CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 7
Rivet found damaged.
Hologram seal was found tampered During segregation of meter at site, resoldering found on NCT1, NCT2, PCT1, PCT2, Rev and ELT terminals on the PCB to manipulate the actual recording of meter.
Due to above mentioned irregularities, a show cause notice for Dishonest Abstraction of Energy (D.A.E. ) was prepared and was offered to the consumer requesting to attend the personal hearing on 28.10.2010 before EAC, which was duly received by the consumer/plaintiff at site by putting his signatures & phone number. Whereupon, the user/plaintiff no. 1, Sh. Rakesh Bajaj personally turned up for hearing on 28.10.2010 and submitted a written representation, but no satisfactory reply was put forth. It is further submitted that consumption pattern of the consumer has been analyzed for the period 11.48 months (w.e.f. 30.10.2009 to 14.10.2010) and the average recorded consumption was found to be 279.86 units per month and average computed consumption was found to be 970.38 units per month thus, the average recorded consumption was found to be very law and just 28.84 % of the average computed consumption, while it should not be less than 75 % of the assessed consumption, as per CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 8 Clause 52 (IX), Chapter VII of DERC Regulations 2007. The recorded consumption corroborates the findings, of the inspecting team that the plaintiff indulged in the manipulation, suppression of recording of actual consumption of electricity.
Thereafter, a speaking order was passed on 11.11.2010 by the assessing officer. It is stated that the inspection had been carried out in accordance with law and the connected load has been considered as per the inspection report in accordance with the stipulations of DERC regulations. Rest of the contentions are vehemently denied.
Replication
4. Plaintiff filed the replication to the WS wherein the contents of the WS are denied and the averments in the plaint are reiterated. The same are not being reproduced herein for the sake of brevity.
5. Thereby following issues were framed vide order dated 19.11.2013 :
(i) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
(ii) Whether the plaintiff in entitled to the relief of perpetual injunction as prayed for? OPP
(iii) Whether the suit is bad for cause of action since an inspection was CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 9 carried out on 21.10.2013 and a case of DAE was booked against the plaintiff as per the regulations? OPD EVIDENCE ON BEHALF OF PLAINTIFF
6. The plaintiff adduced one witness i. e. plaintiff no. 2 Ritu Bajaj as PW1, who vide her affidavit Ex.PW1/A reiterated the contents of the plaint and relied on documents Ex.PW1/, Mark A and Ex.PW1/2 to Ex.PW1/17.
Ex.PW1/1 is the copy of the title deed (Mark A) Ex.PW1/2 to Ex.PW1/10 are the bills and their receipts from November, 2009 to March, 2011 Copy of statement of summary of meter is Ex.PW1/11. Copy of the meter particulars is Ex.PW1/12.
Inspection note and notice dated 21.10.2010 as Ex.PW1/13. Copy of the reply of the plaintiffs to the said notice Ex.PW1/14.
EVIDENCE ON BEHALF OF DEFENANT
7. Defendant adduce two witness DW 1 who is Sh. Keshav, Assistant Manager, Enforcement (Technical), TPDDL, who vide his affidavit DW1/A reiterated the contents of WS and relied the documents Ex. DW1/2 to Ex DW1/4.
CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 10
EX.DW1/2 is the inspection report.
EX.DW1/3 is the action report.
EX.DW1/4 is the show cause notice dated 21.10.2010. (OSR) DW2 is one Sh. D.S. Dangwal presently working as assistant general manager EAC Sector3, Rohini, TPDDL who passed the speaking order and who vide his testimony Ex DW2/A reiterated the contents of the WS and relied the documents Ex. EX.DW2/1 to Ex DW2/5.
Ex DW2/1 is the copy of personal hearing sheet dated 28.10.2010 along with representation.
EX.DW2/2 is the copy of consumption pattern analysis and billing advice along with EAC summary.
EX. DW2/3 is a detail of inspection, reading summary with refunded units along with statement of K.No. Summary. Ex. DW2/4 is a copy of speaking order Ex. DW2/5 is a copy of final assessment bill for DAE to the tune of Rs. 1,10,413/ with due date 02.12.2010.
8. I have heard the arguments at length Mr. R.K. Mittal ld counsel for the plaintiff and Mr. B.K. Rai ld counsel for the defendant and gone through the material available on record.
FINDINGAS:
CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 11
9. My issues wise Findings are as follows:
(i) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
(ii) Whether the plaintiff in entitled to the relief of perpetual injunction as prayed for? OPP Issues no 1 and 2 are taken up together be interconnected and findings on the said issues would as such resolve the entire controversy in hand. The onus to prove both these issues was on the plaintiff.
The plaintiff vide testimony of PW1 proved that he is the owner of the property comprising of IInd floor of House no. 12, Sector 5, Rohini, Delhi by virtue of registered Sale Deed dt. 25.05.2007 having purchased the same from one Smt. Mamta Khurana. That in the aforesaid portion of the property a domestic electricity connection with K No. 44105060147 was installed in the name of Smt. Reena Gandhi from whom Smt. Mamta had earlier purchased the said property. That on 16.10.2010 there was no electricity supply coming to the portion of the plaintiff and complaint was lodged. The officials of defendant no.1 visited the suit premises and stated that the wire had been burnt out from the meter installed in the premises and that also the old meter is required to be replaced. That on 19.10.2010 the official of defendant no.1 again visited CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 12 the premises and installed a new meter along with old meter with new meter seal . That on 21.10.2010 an inspection was carried out by the officials of defendant no.1 and a case of DAE was wrongfully booked against the plaintiff with the remarks that "ROUVET" was found damaged and hologram seals found tampered and during segregation of meter resoldering found on NCT2, NCT2, PCT2, REV & ELT.
In response to this the plaintiff visited the office of the defendant and submitted a written reply however on 05.12.2010 the official of the defendant subsequently visited the premises again for supply of electricity meter stating that the plaintiff had not paid the impugned bill bearing no. 10662688 for a sum of Rs. 1,19,713/. It is the case of the plaintiff that the said bill is arbitrary raised and declared null and vide and further defendant be restrained from disconnecting the electricity supply to the plaintiff at the suit premises.
In support of the same the plaintiff has filed various documents including the property papers marked as mark A, copies of electricity bills etc. Ex PW1/2 to Ex PW1/10, Inspection note dt. 21.10.2010 EX PW1/3, copy of is reply Ex Pw1/4.
In response to this it is the case of the defendant that a inspection was carried out on 21.10.2010 by the duly authorized team of CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 13 the defendant's company with respect to K. No. 44105060147 and meter no. 04367987 and following irregularities were found :
(i) A load of 19.590 KW was found connected against the sanctioned load of 6.000 KW for non domestic purpose.
(ii) Rivert found damaged
(iii) Hologram seal was found tampered.
(iv) During segregation of meter at site, resoldering found on NCT1, NCT2, PCT1, PCT2, Rev and ELT terminals on the PCB to manipulate the actual recording of meter.
That noting of the aforesaid irregularities, a show cause notice was served upon the plaintiff. Even the consumption pattern was studied and it was found that the average recorded consumption was found to be just 28.84% of the average computed consumption whereas it should not be less then 75% of the assessed consumption as per DERC Regulations. Thereafter, the speaking order was passed and final bill was raised.
Thus the moot point of controversy between the parties is whether or not the due procedure of law followed by defendant department in raising the impugned bill or not.
10. At the very outset, it is imperative to analyse the rules and regulations provided DERC Supply Code and Performance standards CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 14 Regulations 2007 which govern the manner in which inspection is to be conducted and thereafter dealing with the sealed meter which are as under:
"Theft of Electricity
52. Procedure for booking a case for Theft of Electricity
(iii) The inspection team of the licensee, headed by such Authorised Officer shall carry along with them their Visiting Cards and Photo Identity Cards. Photo ID card should be shown and Visiting Card handed over to the consumer before entering the premises. Photo ID card of the Authorised Officer shall clearly indicate that he has been nominated as authorized officer as per provisions of section 135 of the Act.
(iv) The Authorised Officer shall prepare a report giving details such as connected load, condition of meter seals, working of meter and mention any irregularly noticed (such as tampered meter, current reversing transformer, artificial means adopted for theft of energy) as per format given in Annexe XI or as approved by the Commission from time to time.
(v) The report shall clearly indicate whether sufficient evidence substantiating the fact that theft of energy was found CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 15 or not. The details of such evidence should be recorded in the report.
(vi) No case for theft shall be booked only on account of seals on the meter missing or tampered or breakage of glass window, unless corroborated by consumption pattern of consumer and such other evidence as may be available.
(vii) In case sufficient evidence is found to establish direct theft of electricity, Licensee shall disconnect the supply and seize all material evidence including wires/cables, meter, service line etc., from the premises."
(viii) In case of suspected theft, the Authorised Officer shall Remove the old meter under a seizure memo and seal it in the presence of the consumer/his representative. The Licensee shall continue the supply to the consumer with a new meter. The old meter shall be tested in a NABL accredited laboratory and the laboratory shall give a test report, in writing, which alongwith photographs/videographs shall constitute evidence thereof. The list of NABL accredited laboratories shall be notified by the Commission. The Authorised Officer shall record reasons to suspect theft in the premises in his report. CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 16 Provided that, in case of suspected theft, if the consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption, no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within three days and connection shall be restored through original meter."
11. As per the rules and regulations of DERC Supply Code and Performance standards Regulations 2007 it was mandatory upon the inspection team members that they shall carry their visiting cards and photo ID cards which should be shown and handed over to the consumer before entering the premises. The witness DW1 Keshav who was member of inspecting team stated that he had shown the ID cards but in a specific question as to whether he was authorized officer for the year of inspection which had taken place in 2010, the witness could not answer with certainty and stated that he does not remember if he had the authorization for inspection for the year 2010. The relevant portion of cross examination of DW 1 is reproduced as under:
"I was nominated as the authorized officer under section 135 of the Delhi Electricity Act but I do not remember if I was carrying the said authorization on the date of inspection. I CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 17 have the authorization for the present year but I do not remember if I still possess the authorization for the year of inspection 2010.
Further, as per the Rules and Regulations laid down above and specifically rule 52 sub clause 8, the authorized officer is duty bound to remove the old meter under a seizure memo, seal it in the presence of the consumer and the said meter thereafter shall be sent and tested in a NABL accredited laboratory which shall give its report in writing along with the photographs which shall constitute evidence thereof. Both the DWs i. e. DW1 as well as DW2 who is the assessing officer have categorically admitted in their respective crossexaminations that the alleged tampered meter was not sent for laboratory test.
Sending of the tampered meter in NABL accredited laboratory has been incorporated in 2007 regulations keeping in view the fact that a correct assessment report regarding the tampered meter be procured which would enable the assessing officer in scanning the evidence before passing the final order. Although during the course of arguments, ld. counsel for the defendant submitted that they had sent several requests in writing for getting the meter tested but to no avail. Thus, it is not the case of the defendants that they were not aware of any NABL accredited lab. Per CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 18 contra, there is a clear mention of Electronic Original Test Laboratory (ERTL), North, Delhi which has been accredited by NABL for testing of the meters. Accordingly, because no response was received from the said accredited NABL lab it cannot absolve the defendant from their liability as per rules under 2007 regulations to get the meter tested. Thus, a grave doubt is raising upon the authenticity of the inspection report.
12. Further, the most striking feature in the manner in which the inspection is conducted is that surprisingly no photographs or videographs have been filed or proved by the department, of the inspection conducted at the site. In the absence of actual photographs of the meter at the time of inspection, it is highly improbable that the assessing officer could have come to a right conclusion since in the present case, the plaintiff has been constantly approaching and representing that the inspection has not been conducted in a fair manner.
13. Further, the whole basis of the speaking order which is Ex. DW2/4 is the consumption pattern of the plaintiff which is alleged to have been analyzed. It is alleged by the defendant that after studying the consumption pattern, the average recorded consumption was found to be just 28.84% of the average computed consumption whereas it should not be less than 75% of the assessed consumption as per DERC regulations. To CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 19 counter the same, the plaintiff has proved the letter Ex.PW1/17 issued by the defendant to the plaintiff dated 8.11.2012 i. e. after the date of inspection for reduction in the sanctioned load. As per the said letter which is issued by the defendant itself, it has been mentioned that the load which is being used by the plaintiff on the basis of average of the three highest of maximum demand indicator (MDI) recorded through the year 201112 is only 5 kws as against the existing sanctioned load of 14 kw and, therefore, in the light of the provisions of the recent DERC orders F. 7(57)/DERC/CA/201112306050055708 dated 22.11.2011 and 11.1.2012 respectively, the plaintiff was advised to get the sanctioned load reduced to not less than 5 kw and was also advised to visit the consumer care centre for the same. Thus, when on the basis of same electrical appliances, a pattern had been studied from September, 2011 to March, 2012 and the MDI recorded came out only to 5 kw it is highly surprising that how the reading of 19.59 kw as against the sanctioned load of 6kw at the time of inspection was recorded on the same appliances. The plaintiff, vide the testimony of PW1 has categorically proved through the constant representations made which are Ex.PW1/14 and Ex.PW1/15 at the time of personal hearing that they have a nuclear family and both plaintiffs are generally out through out the day for work and moreover, the equipments CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 20 installed are old but retained by the plaintiffs owing to their emotional attachment as they were there since the time of their marriage. In fact, the plaintiffs themselves have complained of their electricity fault due to which the meter had been broken and it was TPDDL officers themselves who stated that the meter box was found in tact. It is further proved that most of the appliances which were considered by the inspecting team for calculation of the load were not in working condition. The testimony of PW1 could not be controverted or rebutted on this aspect.
The defendant also failed to prove as to the make or in what condition resoldering or any damage to the revit of the meter had been caused. Moreover, in view of the fact that no photographs of the inspection have been filed by the defendant, there was no laboratory examination which has been done. Further, the defendant could not bring any evidence explaining as to when the seal of the meter box was found to be genuine then how the internal meter could be tampered with.
Thus, from the aforesaid findings, it can be safely concluded that the conclusion drawn by the assessing officer was not based upon sufficient cogent evidence but is on the assumption and presumption of the inspecting team which could not be proved by the defendant. It appears that the order had been passed merely upon the inspection note which was CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 21 given by the officials of the defendant itself and not after properly examining the meter in accordance with the DERC regulations. Generally, as a matter of procedure, even as an official of the police procedure has to accompany the inspecting team but no such witness had been produced by the defendant. There is no evidence of any neighbour or any independent witness otherwise which had been taken at the time of inspection.
14. In view of the aforesaid discussion, the issues are decided in favour of the plaintiff and against the defendant. Issue No. 3 :
(iii) Whether the suit is bad for cause of action since an inspection was carried out on 21.10.2013 and a case of DAE was booked against the plaintiff as per the regulation? OPD The onus to prove this issue was on the defendant. In view of my findings on issues no. 1 and 2 the plaintiff has proved a genuine cause of action against the defendant and merely booking a case of DAE upon the inspection report and the speaking order, which has already been assailed in the findings of the court in issues no. 1 and 2, it cannot be said that the suit is bad for want of cause of action against the defendant. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
15. During the course of arguments, ld. counsel for the defendant has CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 22 also raised the issue of jurisdiction of the present court to entertain the present suit and has relied on the judgment of B. L. Kantro Vs. BSES passed by the Hon'ble High Court of Delhi dated 25.9.2008 wherein it has been held that An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply."
Firstly there is no explicit or specific bar in filing the suit in civil court in this regard. Further it would not be out of place to quote landmark Judgment of Honourable Supreme Court in Dhulabhai vs State of M.P. [(1968)] 3. S.C.R. 662, wherein Hon'ble Supreme Court held as under:
" Where the statute gives a finality to the orders of the special tribunals the civil court's 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 provisions, however, does not 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 judicial procedure.......... CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 23 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 latter 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 tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.........
At this stage it would be relevant to quote the provision of section 145 of Electricity Act.
"145. Civil Court not to have jurisdictionNo civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or the adjudicating officer under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 24 any action taken or to be taken in pursuance of any power conferred by or under this Act."
On plain reading of the aforesaid section, 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 of the appellate Authority referred to under section 127 or adjudicating officer appointed under this act has to determine. It is further expressly provided that no injunction shall be granted by any court or any authority in respect of any action taken or to be taken in pursuance of powers conferred or under this Act.
A perusal of Section 145 would show that this Section operates only in respect of Section 126 of the Electricity Act. Section 126 is contained in Part XII of the Electricity Act and deals with investigation and enforcement. Section 126 provides that if on an inspection of the premises and after inspection of equipments, gadgets, etc. found connected or used in the premises,the Assessing Officer comes to conclusion that the person indulging in unauthorized use of electricity, the Assessing Officer shall provisionally assess, to his judgment, the electricity charges payable by such persons or by any other person benefited by such use. It is also provided that if Assessing Officer reaches to conclusion that unauthorized CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 25 use of electricity has taken place, it shall be presumed that such unauthorized use was continuing for a period of 3 months. Section 127 provides that a person aggrieved by the final order made by Assessing Officer under Section 126 may prefer an appeal within 30 days of the order to the Appellate Authority as may be prescribed. In view of the above, a careful reading of Section 145 would show that the ouster of jurisdiction is in respect of detection of unauthorized use.
At this stage, it also pertinent to analyze the section 9 CPC which provides the jurisdiction of the Civil Court either expressly or impliedly barred.
Section. 9. Courts to try all civil suits unless barredThe courts shall (subject to the provisions herein contained) have jurisdiction to try all suit of civil nature excepting suit of which their cognizance is either expressly or impliedly barred.
No doubt Electricity Act is a complete code in itself, but in the following cases, civil suit can be entertained even though the jurisdiction of the civil court may have been specifically ousted i.e. where provisions of law are not complied with or the forum or tribunal does not act according to the fundamental principles of judicial procedure, the jurisdiction of civil court is clearly implied. This was laid down under the following cases: CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 26
a) "if the court is of prima facie opinion that the order is nullity in the eye of law because of any a jurisdictional error in exercise of the power by the commissioner or that the order is outside the Act" Shiv Kumar Chadha vs. MCD [JT 1993 (3) SC 238]
b)"even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principle of judicial procedure"
Secretary of State Vs. Mask and Co. [AIR 1950 Privy Council 105] Said cases had also been referred in the case of B.L. Kantroo Vs. Bses 154 (2008) DLT 56 DB.
It is wellsettled that the exclusion of jurisdiction of civil court can not be readily inferred and the normal rule is that civil courts have jurisdiction to try all suits of a civil nature except those of which cognizance by them is either expressly or impliedly excluded. Ordinarily, the Civil Court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated. CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 27
Thus upon the analysis of the scheme the provisions of the electricity Act, 2003 and that of the section 9 CPC it appears that there is no specific provision in Section 145 of the Act for exclusion of jurisdiction of Civil Court to entertain any proceedings in respect of any matter which the Special Court is empowered by or under the Act to determine.
The civil court has jurisdiction to entertain and try dispute to settle the nature where the fundamental fairness of procedure is laid down in the special Act has been violated. The ld counsel for the defendant has heavily relied on judgment B.L. Kantroo Vs. Bses Rajdhani Power Ltd. on 25 September, 2008 it is decided on 25.09.2008 in the Hon'ble High Court of Delhi. However, it is pertinent to mention that facts of the said case not squarely get covered under the facts of the present case. In the case of B.L. Kantroo Vs. Bses Rajdhani Power Ltd. it was not in dispute that the inspection team had visited the premises of the plaintiff and a case of theft had been lodged. It was also not disputed, that speaking order was passed by the defendant giving a fair opportunity of hearing to the appellant had been given. In fact a writ petition had also been filed to give the opportunity of hearing to the appellant. As per contra, in the present case. In the present case as is already discussed in my findings in issues no. 1 and 2, it evident that the due procedure has not been followed. CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 28 Relief: Thus in view of my aforesaid findings the suit of the plaintiff is, thus, decreed. The bill bearing no. 1011762688 in pursuance of inspection dated 21.10.2010 is declared as null and void and further a decree of perpetual injunction is passed restraining the defendant from claiming and demanding any amount on the basis of the inspection of the aforesaid date and disconnecting the electricity of the plaintiff at the suit premises bearing 2nd Floor of house no. 12, Sector5, Rohini, Delhi110085 in this regard without due process of law.
Pronounced in the open court today on 27.1.2015 (SHEFALI SHARMA) CIVIL JUDGE (NORTH) ROHINI,DELHI/27.1.2015 CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 29 CS No:4/13 Shri Rakesh Bajaj Vs. TPDDL 27.1.2015 Present: None.
Vide this separate detailed judgment containing 29 pages even date the suit of the plaintiff is decreed. The bill bearing no. 1011762688 in pursuance of inspection dated 21.10.2010 is declared as null and void and further a decree of perpetual injunction is passed restraining the defendant from claiming and demanding any amount on the basis of the inspection of the aforesaid date and disconnecting the electricity of the plaintiff at the suit premises bearing 2nd Floor of house no. 12, Sector5, Rohini, Delhi110085 in this regard without due process of law. Decree sheet be prepared accordingly. Parties to bear their own cost. File be consigned to record room.
(SHEFALI SHARMA) CIVIL JUDGE NORTH ROHINI/27.1.2015 CS No. 4/13 Sh. Rakesh Bajaj Vs. TPDDL 30