Delhi District Court
Chandra Pal Singh vs . Tpddl & Anr. on 28 March, 2016
Chandra Pal Singh Vs. TPDDL & Anr.
IN THE COURT OF SH. V.K. JHA : CIVIL JUDGE12 (CENTRAL),
ROOM NO.366, TIS HAZARI COURTS, DELHI
SUIT NO : 718/14
In the matter of :
Unique ID Number : 02401C0299782012
1. Chandra Pal Singh,
S/o Late T.R. Singh
2. Lata Singh,
W/o Sh. Chandra Pal Singh,
Both R/o Flat/Quarter No.1143,
TypeII, M.S. Old Timarpur,
Delhi - 110 054. ...PLAINTIFFS
VERSUS
1. The District Manager,
Tata Power Delhi Distribution Ltd.
(previously known as North Delhi Power Ltd.)
Sector3, Rohini, Delhi.
2. The Officer(s)
Tata Power Delhi Distribution Ltd.
(previously known as North Delhi Power Ltd.)
Grid Sub Station Building,
Hudson Line, Kingsway Camp, Delhi. ...DEFENDANTS
Date of institution : 06.07.2012
Date of judgment : 28.03.2016
SUIT FOR DECLARATION & PERMANENT INJUNCTION
J U D G M E N T
CS No.718/14 Pg 1 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
1. By this judgment, I shall dispose of the suit filed by the plaintiff for declaration and permanent injunction.
2. Necessary facts for the disposal of the case of the plaintiffs are that the plaintiff No.1 is the registered consumer of electricity connection bearing No.20006876, installed at premises No.1143, Timarpur, Delhi, provided by the defendants and the said connection is only for domestic purposes and as per the plaintiffs the said connection was being used only for domestic purposes.
3. On 09.05.2012, a joint inspection team of the defendants visited at the address of the plaintiffs and after inspection, the officials of the defendants imposed misuse charges upon the plaintiff on the ground that the plaintiffs who were provided domestic electricity connection were using it for commercial purposes. On the same date, when the raid had been taken place, a show cause notice dated 09.05.2012 was given by the defendants to plaintiff to which on 16.05.2012, plaintiffs had send the reply. Thereafter, on 04.06.2012, with respect to raid which had been carried out qua which the show cause notice was issued by the defendants, a speaking order dated 04.06.2012 was passed and on 25.06.2012, the defendants gave a notice demanding huge misuse charges CS No.718/14 Pg 2 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
from the plaintiff. The defendants also raised misuse bill dated 11.07.2012 for the amount of Rs.64,590/. According to the plaintiff, the bill dated 11.07.2012 is illegal as the plaintiffs did not use the domestic electricity connection for any commercial purposes and also plaintiffs had been paying the bill as and when same is raised. Under these facts and circumstances, plaintiff has prayed for decree of declaration for declaring the speaking order dated 04.06.2012 as well as the electricity misuse bill dated 11.07.2012 of Rs.64,590/ issued by the defendants with respect to electricity connection bearing CA/CRN No.60006440303 and also a decree of permanent injunction in favour of the plaintiffs and against the defendants, thereby restraining the defendants, its assignees, officials, employees etc. from disconnecting the electricity supply bearing CA/CRN No.60006440303, bearing K.No.31200455422, meter No.20006876 sanctioned load of 3.00 KW installed in the name of plaintiff No.1 at address of the plaintiffs, in any manner whatsoever.
4. In the written statement filed by the defendants, a preliminary objection has been raised as to the bar of jurisdiction of this court under Section 145 of the Electricity Act, 2003 and the case of the CS No.718/14 Pg 3 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
defendants is that on 09.05.2012, inspection was carried out by the authorized officer/inspection team of the defendants in the presence of representative of the plaintiff and it was found that the load of 9.688 KW was found connected against the sanctioned load of 3.00 KW and the domestic meter was found to be used for commercial purposes for the purposes of running a school, namely, Bhagwati Nursery School. It is further stated in the written statement that the act and omission on the part of the plaintiffs were unauthorized and illegal which amounted to breach of agreement/violation of provisions of Electricity Act, 2003 as well as the provisions of DERC.
5. In the replication filed by the plaintiffs, the plaintiffs have denied the case as set up by the defendants in their written statement and repeated their stand as has been taken in the plaint.
6. From the pleadings of the parties, following issues were framed for trial on 04.04.2013:
1. Whether the plaintiff is entitled for relief of declaration, as prayed for?
OPP.
2. Whether the plaintiff is entitled for relief of permanent injunction, as CS No.718/14 Pg 4 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
prayed for? OPP.
3. Relief.
7. Vide order dated 29.02.2016, the court in view of preliminary objection taken by the defendants in their written statement with respect to bar of the suit in view of Section 145 of Electricity Act, 2003, an additional issue was framed that "whether the suit of the plaintiff is maintainable in view of Section 145 of the Electricity Act, 2003?"
8. Plaintiffs in order to prove their case, examined plaintiff No.1 as PW1 by way of his affidavit Ex.PW1/A and plaintiff No.2 has been examined as PW2 by way of her affidavit Ex.PW2/A. One Ms. Meena Goswami, Deputy Education Officer, Zone7, Lucknow Road, Timar Pur, District North has been examined as PW3 who was a summoned witness. The deposition of PW1 and PW2 in examination in chief are in consonance with the case as set up by the plaintiffs in the plaint. All the plaintiff's witnesses have been duly cross examined by ld. counsel for defendants.
9. On behalf of defendants, Sh. Ashish Bhatnagar, Senior Manager, TPDDL and Sh. Sumit Kumar, Assistant Manager, EAC have been CS No.718/14 Pg 5 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
in support of the case of the defendants. The examination in chief of the witnesses of defendants have been lead by way of affidavits Ex.DW1/A and Ex.DW2/A, respectively. Witnesses of the defendants have been duly cross examined by ld. counsel for plaintiff.
10.The depositions of the witnesses including the crossexamination shall be referred to as and when necessary while deciding the issues.
11.I have heard the arguments and have perused the record.
12. Issue framed on 29.02.2016 "whether the suit of the plaintiff is maintainable in view of Section 145 of the Electricity Act, 2003?"
is taken up first as, if the court finds out that the suit of the plaintiff is barred, the whole suit has to be dismissed with lock, stock and barrel.
13. As per the provisions of section 9 of Code of Civil Procedure, the jurisdiction of the civil court is all pervasive to try all suits of civil nature, but this is exception, if the suit is barred either expressly or impliedly. A suit for its maintainability requires no authority of law and it is enough that no statute bars it. However, if the court does not have the jurisdiction then neither acquiescence nor CS No.718/14 Pg 6 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
waiver nor estoppal can create it. (Ref. Dhirendra Nath v. Sudhir Chandra, AIR 1964 SC 1300). Conversely, where a court has jurisdiction to decide a dispute, the same cannot be taken away or ousted by consent of parties.
14.The jurisdiction of the civil court would be expressly barred where any provision of the law bars the jurisdiction of the civil court to take cognizance. Suits barred by implication would be whereby the general principles of the civil jurisprudence the jurisdiction of the civil court is ousted. Except in these two circumstances, every citizen of this country has the right to file a civil case by bringing the plaint in the court of competent jurisdiction at his own peril and costs.
15.The case of the plaintiffs is that the plaintiffs had been provided domestic electricity connection by the defendants which they were using for domestic purposes only and as on 09.05.2012, the raid was conducted by the officials of the defendant which led into passing a misuse bill dated 11.07.2012 for Rs.64,590/ which according to the plaintiffs was illegal as the plaintiffs never misused the domestic connection for any commercial purposes. Therefore, plaintiff has filed the present suit for relief of CS No.718/14 Pg 7 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
declaration and permanent injunction.
16.If the suit of the plaintiff is not barred by any law either expressly or impliedly then in view of Section 9 of the CPC, the court is duty bound to adjudicate and give final judgment. However, if the suit of the plaintiff is barred under any provision of law either expressly or impliedly, the case of the plaintiff has to fail in this court.
17.Defendants have taken an objection in the written statement that the jurisdiction of this court is barred under Section 145 of the Electricity Act, 2003 which provides: "Civil court not to have jurisdiction - No civil court shall have the jurisdiction to entertain any suit or proceeding 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 appointed 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 any action taken or to be taken in pursuance of any power conferred by or under this Act."
18.To find out whether Section 145 of the Electricity Act bars the jurisdiction of the Civil court, Section 126 of the same Act has to CS No.718/14 Pg 8 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
be referred which provides:
126. Assessment. (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3) The person, on whom an order has been served under subsection (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:
(5) If the assessing officer reaches to the conclusion that unauthorised use of CS No.718/14 Pg 9 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.
(6) The assessment under this section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in subsection (5). Explanation. For the purposes of this section,
(a) assessing officer means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;
(b) unauthorised use of electricity means the usage of electricity
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorised.
19.The Hon'ble Delhi High Court in the judgment titled as BSEB CS No.718/14 Pg 10 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
Rajdhani Power Ltd. v. Ashok Kumar C.M.(M)No. 789 of 2007. D/d. 21.7.2008 in para 5 has observed, "Section 145 bars the jurisdiction of Civil Court only in respect of those matters which fall under Section 126 and 127. No other interpretation can be given to Section 145." The case of the Plaintiff clearly comes within the provisions of section 126. The Hon'ble Supreme Court in another judgment titled as Ram Kishan v. N.D.P.L. 2006(130) DLT 549 (which is referred to in herein above mentioned judgment) has observed that in a case covered by section 126 of the Electricity Act, 2003 there is an alternative remedy first under section 126(3) and then by way of an appeal under section 127 of the same Act. Therefore as, the Plaintiff has an equally efficacious remedy under the provisions of the Electricity Act, 2003 the present suit of the Plaintiff is barred under Section 41(h) of the Specific Relief Act too. The Hon'ble Punjab and Haryana High Court in Uttar Haryana Bijli Vitran Nigam Ltd. v. Jai Jagdambey Steel Pvt. Ltd., 2007(3) R.C.R.(Civil) 75 with respect to section 126, 127 and 145 of the Electricity Act, 2003 has observed that where the jurisdiction of the civil court is barred by a statute, the litigant is required to approach the only forum provided for that CS No.718/14 Pg 11 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
purpose. The Hon'ble Delhi High Court in Super Auto Centre v. Bses Rajdhani Power Ltd. 2011(184) DLT 1 observed when the submission was made in the case by the counsel for the appellant that the special court under section 154 of the Electricity Act was not established and functioning till March, 2004, the Division Bench observed that if the jurisdiction of the civil court is barred under section 126, 127 read with section 145 of the Electricity Act, then even in the case where there is the absence of the presiding officer to man the special Court under section 154 of the Electricity Act, the civil court would not be conferred with the jurisdiction. On the same lines is the latest judgment of the Hon'ble Punjab and Haryana High Court in Dakshin Haryana Bijli Vitran Nigam Ltd. v. Sulekha 2014(1) R.C.R.(Civil) 151 in which it has been observed that section 145 of the Electricity Act bars the jurisdiction of civil court only in respect of those matters which fall under section 126 and 127 of the Electricity Act and these sections does not provide that the jurisdiction of the civil court shall be barred once the forum is created and comes into action.
20.The case of the defendants is that the domestic connection which CS No.718/14 Pg 12 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
was provided to the plaintiffs were used for commercial purposes for running school, namely, Bhagwati Nursery School and the case of the defendants specifically comes to explanation 4 of the Section 126 of the Electricity Act, 2003 which provides that for the purpose of Section 126 unauthorized use of electricity would mean usage of electricity for the purpose other than for which the usage of electricity was authorized. As the case of the plaintiffs come under Section 126, therefore, in view of Section 145 of the Electricity Act this court does not have jurisdiction. As the suit of the plaintiffs is barred, accordingly the issue under discussion is decided in favour of the defendants and against the plaintiffs.
21.Order 14 Rule 2 of CPC provides for court to pronounce judgments on all the issues which have been framed, however, sub rule 2 of Rule 2 of Order 14 of CPC provides that where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on any issue of law only, it may try that issue first it that issue relates to -
(a) the jurisdiction of the court, or
(b) a bar to the suit created by any law for the CS No.718/14 Pg 13 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issue until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
22.As the issue which was framed vide order dated 29.02.2016 was with respect to the bar to the suit created in view of Section 145 of the Electricity Act, 2003, has been decided that there is indeed the bar to the suit of the plaintiff. Therefore, the court is of the opinion that the issues No.1 and 2 framed order dated 04.04.2013 are superfluous and not necessary for determining the matter is in controversy between the parties. Therefore, issues No.1 and 2 are hereby deleted.
RELIEF
23.As the court is of the opinion that the suit of the plaintiffs in view of Section 145 of the Electricity Act r/w Section 126 of the Electricity Act is barred, therefore, the suit of the plaintiffs is hereby dismissed. Parties to bear their own costs.
24.After hearing the submissions of the counsel for the plaintiff and taking into consideration how the case has been litigated and disposed of on the issue which was framed by the court on CS No.718/14 Pg 14 of 15 Chandra Pal Singh Vs. TPDDL & Anr.
29.02.2016, the court does not have any doubt regarding the bonafides of the plaintiff in preferring the present suit, therefore the Plaintiff shall be liberty to agitate the issue involved in the present suit before the appropriate authority as per law. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Dictated & announced in the V.K. JHA
open court on 28.03.2016 CJ12/Central/THC
CS No.718/14 Pg 15 of 15