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Delhi District Court

Smt. Jamna Devi vs Tpddl on 11 October, 2019

IN THE COURT OF SH. SUNIL KUMAR: JSCC­CUM­ASCJ­CUM
  GDN. JUDGE: NORTH DISTRICT, ROHINI COURTS: DELHI

                                                  Suit No.1477 / 17

In the matter of :­
Smt. Jamna Devi
W/o Sh. Gurinder Singh
R/o - H.No. Flat No.33, Ground Floor,
Maitri Apartment, Sector - 9,
Rohini, Delhi - 110085.                           ............. plaintiff

                              versus

TPDDL
Through its
Chief General Manager / NDPL House,
Hudson Lines,
Kingsway Camp, Delhi ­ 110009                    .......... defendant


Date of Institution of Suit      :               13.12.2017
Date of announcement of Judgment :               11.10.2019

 SUIT FOR MANDATORY INJUNCTION AND RECOVERY OF
                   DAMAGES

                            Judgment

1.

Brief fact of the present case arising from the plaint are that plaintiff is having a plot now popularly known as Om Sai Dharam Kanta, in Khasra No.100/5 (0­11) and 100/6 (0­11), Ground CS. No.1477 - 17 Smt. Jamna Devi vs. TPDDL Page No.1/13 Floor, Village Alipur, Near Surai Dharam Kanta, Delhi-110036. That the plaintiff had applied for a temporary electricity connection with the defendant on 18.06.2013 for construction of building over his above mentioned plot / property and had deposited Rs.6,750/­ as per demand note generated by the defendant for installation of temporary electricity connection. That the plaintiff after completion of construction work in his above mentioned plot / property had applied for release of permanent connection on 25.10.2013 vide notification No.20059777773 and had duly paid a sum of Rs.7,500­ as per demand note dt. 06.11.2013 for installation of permanent electricity connection. That the defendant had assured the plaintiff of installation of permanent connection within a month. However, despite repeated requests of the plaintiff, the defendant did not install the permanent electricity connection at the above mentioned property of the plaintiff within assured time on the pretext of unelectrified area, however, the plot(s) in the neighbourhood of above mentioned plot of the plaintiff are having permanent electricity connections. That aggrieved of the unprofessional conduct of the defendant, the plaintiff approached the consumer Grievance Redressal Forum from for TPDDL complaining against the above mentioned illegal act of the defendant. That the Consumer Grievance Redressal Forum vide its order dt.

05.09.2014 in C.G. No.5968/06/14/NRL was pleased to direct the defendant to release the permanent connection applied by the plaintiff from 160 KVA transformer on which connection of neighbour of plaintiff namely M/s Jain Traders was energized. That the defendant despite the above noted directions issued by the Consumer Grievance Redressal Forum did not install the permanent electricity connection of the plaintiff within prescribed time. That the plaintiff approached the local office of the defendant on several occasion requesting them to release the permanent connection but the defendant kept on deferring the matter one pretext or the other. That due to the failure of defendant to install permanent electricity connection in the premises of the plaintiff, the plaintiff has to bear additional tariff per unit for temporary connection (Rs.11.44 / unit presently instead of Rs.8.80 / unit), than payable in case of permanent (commercial) electricity connection. The defendant, therefore, is liable to compensate the plaintiff by paying damages on account of undue loss & harassment caused to the plaintiff due to delay in installation of permanent electricity connection since date of deposit of demand note i.e., 12.11.2013. That the defendant is adamant in not installing the permanent electricity connection in the premises of the plaintiff, while the plaintiff has already deposited the amount for the same, hence, the acts of the CS. No.1477 - 17 Smt. Jamna Devi vs. TPDDL Page No.3/13 defendant are totally arbitrary, illegal, unconstitutional and against the cannon of law and therefore the plaintiff has no other efficacious remedy except to approach this Hon'ble Court. Hence, the present suit.

2. As per the WS of the defendant it is stated that plaintiff has not disclosed that vide non compliance intimation letter dt. 10.12.2014, the plaintiff was apprised about the reason for non compliance of order passed by CGRF, in case titled as "Jamna Devi vs. TPDDL" and the same was sent at the address of the plaintiff. It is also stated that plaintiff has also not disclosed in the plaint that vide letter dt. 15.02.2017, issued by the defendant, the amount for a sum of Rs.7,500/­ so deposited for new electricity connected by the plaintiff was refunded on account of technical feasibility by the defendant. That present suit is barred under the provision of limitation Act. It is stated that as per the plaint, lastly cause of action arose on 05.09.2014, when the directions for installation of electricity meter was issued in favour of the plaintiff subject to completion of commercial / technical formalities and as against the defendant by CGRF, which admittedly is beyond the period of three years as prescribed under Limitation Act. It is stated that issuance of legal notice does not increase limitation period for taking legal recourse under law. That present suit is not maintainable in view of section 42 (5) and (6) of the electricity CS. No.1477 - 17 Smt. Jamna Devi vs. TPDDL Page No.4/13 act, 2003, which is complete code in itself and also provides the mechanism for redressal of grievances for non compliance of orders passed by CGRF. Hence, the present suit is filed for the relief of injunction and damages.

3. Replication was filed by the plaintiff to the WS of the defendant reiterating the contents of the plaint and denying the averments of the WS. It is stated that the plaintiff has never received any non­compliance intimation letter dated 10.12.2014 and no refund has been received from the defendant. That the defendant has defaulted in installation of permanent electricity connection and meter despite orders of CGRF dated 05.09.2017. That the plaintiff has filed the present suit seeking remedy against the illegal acts of the defendant on account of failure to install the permanent electricity connection and meter in the premises of the plaintiff despite deposit of demand note amount. That the continued failure of the defendant to install the permanent electricity connection and meter in the premises of the plaintiff is in itself a continuing cause of action in filing of the present suit. It is stated that the present suit is not barred by any provision of law.

4. After the completion of the pleadings, following issues were framed :­

1) Whether the plaintiff is entitled for the relief of Mandatory Injunction, as prayed for?OPP

2) Whether the plaintiff is entitled to decree of damages to the tune of Rs.1,00,000/­ as prayed by him?OPP

3) Whether the suit is barred by limitation?OPD

4) Whether the suit is barred under the provisions of Section 42(5) and (6) of Electricity Act of 2003?OPD

5) Relief.

Thereafter, matter was listed for PE.

5. To substantiate his case, plaintiff has examined herself as PW­1 and has tendered her affidavit in evidence as PW­1/1. In order to prove her case, plaintiff has placed reliance upon the documents exhibited from Ex.PW1/1, Ex.PW1/4, Ex.PW16 to Ex.PW1/8 and Ex.PW1/10(Colly.) and the documents marked as Mark A to Mark D. She was cross­examined at length by the counsel for the defendant.

No other evidence was lead on behalf of the plaintiff and thereafter, PE was closed and the matter was posted for DE on behalf of defendant.

6. Defendant to prove its case has examined as many as two witnesses.

Sh. Mayur Paul, Distt. Narela, Zonal Manager, TPDDL Company, Delhi examined himself as DW1 and tendered his evidence by way of affidavit as Ex.DW1/A and also relied upon the documents Mark­A. He was cross­examined at length by the counsel for the plaintiff.

Sh. Anirudh Sinha, Department CMG, AM Keshav Puram, TPDDL Company, Delhi examined himself as DW2 and tendered his evidence by way of affidavit as Ex.DW2/A and also relied upon the documents i.e, Ex.DW2/1 already Mark­A and Mark­B. He was cross­examined at length by the counsel for the plaintiff.

Thereafter, DE closed and matter was fixed for final arguments.

7. I heard final arguments on behalf of parties from their respective counsels.

8. After considering the submissions of ld. counsel for the parties and evidence on record, my issue­wise findings are as under :­ CS. No.1477 - 17 Smt. Jamna Devi vs. TPDDL Page No.7/13 Findings on issue no.1 : Whether the plaintiff is entitled for the relief of Mandatory Injunction as prayed for ? OPP The onus of proving that the plaintiff is entitled to the relief of Mandatory Injunction under Section 39 of the Specific Relief Act was upon the plaintiff.

The answer to this issue depends upon the proof of the facts that the plaintiff was entitled to the permanent electricity connection and the defendant has wrongfully denied the same to the plaintiff. It has remained undisputed between the parties that the plaintiff has duly applied for a temporary electricity connection for construction of now called Sai Dharamlk Kanta and had got the same after depositing the fee of Rs.6,750/­ on 18.06.2013. It is further not disputed that the plaintiff applied for a permanent electricity connection vide notification No.20059777773 and had deposited the required fees of Rs.7,500/­ on 12.11.2013. The plaintiff in her evidence exhibited as Ex.PW1/1 has stated that in spite of depositing the fee the defendant has failed in their obligations to provide him for the permanent electricity connection. The plaintiff has also tendered in her evidence as Ex.PW1/6 which is an order of Consumer Grievance Redressal Forum dt. 05.09.2014 constituted under Section 42 (5) of the Indian Electricity Act wherein the Forum directed the defendant to provide a permanent electricity connection to the plaintiff. The CS. No.1477 - 17 Smt. Jamna Devi vs. TPDDL Page No.8/13 defendant not only failed to carry out the order into effect but also admitted that only after the order of Consumer Grievance Redressal Forum dt. 05.09.2014 did they issue a non - compliance order (Ex.DW1/1). Under the said order the only grounds mentioned were that the area falls under unelectrified area and that of non ­feasibility (right of way). The non - compliance order is a cryptic one and does not satiate the judicial conscience and thus cannot be of any help to the defendant. Apart from a mere statement to this effect, no documents were filed to substantiate these grounds. Thus, it only seems to be an afterthought and provides clinching grounds to presume malafide by the defendant under Section 114 of the Indian Evidence Act 1872. Further, it is also a matter of record that the nearby premises of M/S Jain Traders and LT ABC is electrified and has a permanent electricity connection. It is, thus, untenable to hold that the area where the enterprise of the plaintiff stands falls under an electrified area. Furthermore, it is perplexing to observe here that while there was non ­feasibility due to right of way then how the temporary connection was granted to the plaintiff at the first place and why cannot a permanent electricity connection be granted to her now.

Thus, on the basis of the above discussed legal proposition and in the light of factual case, the court is inclined to CS. No.1477 - 17 Smt. Jamna Devi vs. TPDDL Page No.9/13 decide the issue in favour of the plaintiff and against the defendant.

Findings on issue no.2: Whether the plaintiff is entitled to decree for damages to the tune of Rs.1,00,000/­ as prayed by him ? OPP The burden of proving this issue was upon plaintiff that in support of it the plaintiff has adduced electricity bills exhibited as Ex.PW1/10. It was put to the plaintiff in her cross­examination by the defendant as to how has she arrived at the figure of Rs.1,00,000/­ to which she replied that it was the difference between the electricity tariff which the plaintiff was paying under the temporary electricity connection and which she would have paid had the connection been made permanent. The court finds force with the method adopted by the plaintiff. The purpose of awarding damages is to relegate the parties to the same position in which they would have been, had the wrong not been committed and ensuring restitution in integrum. However, it is to be kept in mind that by virtue of the Limitation Act the plaintiff can claim damages only for the period of three years prior to filing of the present suit i.e., 13.12.2017 and even in this period of three years the plaintiff shall be entitled to the damages only for the months for which electricity bills have been duly annexed with the plaint. As per my calculation total number of electricity units by CS. No.1477 - 17 Smt. Jamna Devi vs. TPDDL Page No.10/13 the plaintiff were 2696 and for which plaintiff has paid Rs.30,842.24/­ as per the reading of temporary electricity meter but he would have paid Rs.23,724.8/­ had the permanent electricity meter been installed on time. Therefore, plaintiff is entitled for damages of Rs.7,117.2/­. As the plaintiff has opportunity to get the order of Consumer Forum executed but he failed to avail the same rather he opted to file a suit to get the permanent electricity meter installed, no hardship or harassment can be said to have been caused to him. Thus, this issue is decided in favour of the plaintiff.

Findings on issue no.3 : Whether the suit is barred by Limitation ? OPD The burden of proof for this issue was to be discharged by the defendant. The defendant has not been able to show as to how the cause of action of plaintiff has become time barred. It is also pertinent to mention here Section 22 of the Indian Limitation Act which talks about a continues cause of action . In the facts of the present case, the cause of action of the plaintiff is a continuous one and is renewed every moment till the installation of the electricity meter by the defendant. Thus, the suit is very will within the prescribed period of Limitation. This issue is decided against the defendant and in favour of the plaintiff.

Findings on issue no.4 : Whether the suit is barred under the Provisions of Section 42(5 & 6) of Electricity Act of 2003 ? OPD The burden to prove this issue was upon the defendant and in support of it the defendant has relied upon Section 42 (5 & 6) which are reproduced as follows : ­ Sub - Section 5 : "Every distribution license shall, within six months form the appointed date or date of grant of license, whichever is earlier, establish a forum for redressal of grievance of the consumers in accordance with the guidelines as may be specified by the State Commission".

Sub - Section 6 : "Any consumer, who is aggrieved by non­ redressal of his grievance under sub - Section (5), may make a representation for the redressal of his grievance to an authority to be known as Ombudsman to be appointed or designated by the State Commission".

The defendant has advertently or inadvertently, however, not mentioned Sub­Section 8 of the same Section 42 which states that the Provisions of Sub Section 5 & 6 shall be without prejudice to the right which the consumer may have apart from the rights conferred upon him by those Sub - Section. Thus, upon the perusal of the said Sub­Section it becomes clear that the jurisdiction of the present court is not ousted by the above CS. No.1477 - 17 Smt. Jamna Devi vs. TPDDL Page No.12/13 mentioned Sub­Section 5 & 6 and the plaintiff had the right to move this court for obtaining the particular relief. This issue is, thus, decided against the defendant and in favour of the plaintiff.

9. Relief :

In view of the above discussion, the suit of the plaintiff stands decreed in favour of the plaintiff and against the defendant. Parties to bear their own costs. Decree­sheet be prepared accordingly. File be consigned to record room after Digitally signed due compliance. SUNIL by SUNIL KUMAR KUMAR Date:

Announced in the open court 2019.10.14 15:52:59 +0530 on the day of 11th October, 2019 (SUNIL KUMAR) JSCC­CUM­ASCJ­CUM­GDN. JUDGE: NORTHDISTRICT, ROHINI COURTS: DELHI.