Delhi District Court
Akash Verma vs The Bses Yamuna Power Ltd on 20 July, 2024
IN THE COURT OF MS. SALONI SINGH, SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER, KARKARDOOMA COURTS, SHAHDARA.
Civil Suit No. 10397/16 Case Registration No. DLSH03-001211-2016 Sh. Akash Verma, S/o, Sh. U.C Verma, R/o, 3/212, First Floor, Gali Ganga Ram, Chhota Bazar, Shahdara, Delhi-110032.
...Plaintiff Vs. The BSES Yamuna Power Ltd., Through its Manager/G.M, Shakti Kiran Building, Karkardooma, Delhi-110092. ...Defendant Suit for Declaration & Permanent Injunction.
Date of Institution : 04.06.2016
Date of Reserving Judgment : 16.05.2024
Date of Judgment : 20.07.2024
Decision : Partly Decreed
Digitally signed
by SALONI
SALONI SINGH
Date:
SINGH 2024.07.20
17:41:52
+0530
C.S. No. 10397/16 Pg No.1/32
Judgment:-
In the present suit, the plaintiff has mainly prayed for the relief of a decree of declaration that the bill number 101951618062, for other charges of Rs. 22,997/- (Rupees Twenty-Two Thousand Nine Hundred and Ninety-Seven Only), dated 08.01.20161 (hereinafter also referred as, "bill in question"), issued by the defendant is null and void and a decree for permanent injunction of restraining the defendant, its officials, agents etc., from raising said illegal and unwarranted charges upon the electricity connection of the plaintiff in future.
1) Facts of the case/Pleadings of the parties: - The facts of the case, as given in the plaint, are briefly stated as follows:-
a) The plaintiff purchased the first floor of property bearing no. 3/212, Gali Ganga Ram, Chota Bazar, Shahdara, Delhi-
110032 (hereinafter referred to as, "suit property") from its previous owner Smt. Ira Malhan by way of a registered sale deed dated 02.07.2012. There was an electricity meter already installed in the name of Smt. Kanta Devi in the suit property at the time of its said purchase. There are eight residents, namely, Sheikh Aual, Farzani Begum, Jasbir Mehta, Kamta Devi, Sunil Rawat, Kanta Devi, Lokesh Verma and Rahul Verma, in the same flat using separate electricity meters bearing CA numbers 100726943, 100752629, 100726840, 100726791, 150411391, 100752365, 150234056 and 150881430 respectively.
1 The date of 08.01.2016 is mentioned as the due date in the said bill and the bill itself is Digitally signed dated 23.12.2015. SALONI by SALONI SINGH SINGH Date: 2024.07.20 17:42:01 +0530 C.S. No. 10397/16 Pg No.2/32
b) At the time the plaintiff occupied the suit property, there were no outstanding dues of any nature of the defendant in respect of the suit property. The plaintiff started regularly paying the electricity bills raised by the defendant based on the actual consumption till June 2015. That the previous bills issued by the defendant did not contain entry of any outstanding/other charges. Thereafter, due to the ill-health of the father of the plaintiff, the plaintiff resided at the house of his father for a few months. In December 2015, the plaintiff was shocked to receive a notice dated 15.12.2015 for disconnection of the electricity supply on account of non-payment of Rs.1,130/- (Rupees One Thousand One Hundred and Thirty Only). Further, after a few days, the plaintiff received an electricity bill, dated 23.12.2015 bearing no. 101951618062, from the defendant including outstanding/other charges of Rs. 22,997/- (Rupees Twenty Two Thousand Nine Hundred Ninety- Seven Only). The plaintiff several times visited the office of the defendant and explained to the officials that there were seven other electricity meters installed at the property no. 3/212, Gali Ganga Ram, Chota Bazar, Shahdara, Delhi- 110032 and despite which the defendant had chosen the plaintiff's meter for imposing the unwarranted previous dues, which had not been consumed by the plaintiff. The defendant paid no heed to the plaintiff and threatened the plaintiff to clear all the outstanding amount or else they would disconnect the electricity supply and remove the electricity meter.
Digitally signed by SALONISALONI SINGH Date: SINGH 2024.07.20 17:42:10 +0530 C.S. No. 10397/16 Pg No.3/32
2) In the written statement filed on behalf of the defendant, the following preliminary objections have been raised: - That on 24.04.2015, an inspection was conducted at the premises in question and it was found that one electricity connection, bearing CA no. 100757396 (hereinafter also referred to as "disconnected connection"), was lying disconnected on account of non-payment of dues of Rs. 45,993/- (Rupees Forty Five Thousand Nine Hundred Ninety-Three Only). That the disconnected connection was registered in the name of Smt. Dayawanti and despite issuance of several disconnection notices, the consumer had not paid the dues and eventually Smt. Dayawanti had issued cheques in discharge of her liability, which were dishonoured, and for which notice under Section 138 of the Negotiable Instruments Act, 1881 (for short, "N.I. Act") had been issued. That in the same premises, electricity was now being supplied, vide CA no. 150234056 registered in the name of Sh. Lokesh Verma and CA number 100752365 registered in the name of Smt. Kanta Devi (hereinafter also referred to as the "live connections"). That the registered owners of the said live connections were served notices on 11.05.2015 in which they were asked to stop the supply of electricity through these live connections to the portion of the premises in which the electricity had been disconnected for non-payment of dues. That the registered consumers of the live connections were given an opportunity for personal hearing, but they did not avail the same. They were again served the show cause notice dated 16.10.2015. That after consideration of all facts and on receiving the due approvals for transfer of dues, vide speaking order dated 04.12.2015, the dues of the disconnected connection were Digitally signed SALONI by SALONI SINGH SINGH Date: 2024.07.20 17:42:19 +0530 C.S. No. 10397/16 Pg No.4/32 equally transferred to Sh. Lokesh Verma and Smt. Kanta Devi. That Sh. Lokesh Verma insisted, after the transfer of the dues, that the dues be transferred proportionately to all the other live connections existing at the site and not just to connections providing electricity to the first and second floors. That on the request of Sh. Lokesh Verma, the premises were again visited and on re-inspection, it was found that the disconnected connection was providing electricity to the second floor and that the other six meters, on which transfer of the dues was sought, existed on the ground floor and were being used for commercial purposes only. That the other six meters had been installed prior to disconnection of the disconnected connection in the year April 2011 and only the connection in the name of Rahul Verma had been installed after the disconnection of the disconnected connection for non- payment of dues. That, however, the said connection was only for the ground floor, whereas the disconnected connection provided electricity to the second floor and on inspection, it was informed that the occupant and user of electricity at the first and second floor is the same. That it is apparent from the pleadings of the case, that the occupant of the first floor (plaintiff) and of the second floor (Sh. Lokesh Verma) are brothers and that both the premises are used as one joint property by them and, therefore, the dues were transferred proportionately to both the first and second floors. That the dues of Rs.45,993/-(Rupees Forty-Five Thousand Nine Hundred Ninety-Three Only) are legal and are pending against the first and second floor of the premises.
Digitally
signed by
SALONI
SALONI SINGH
SINGH Date:
2024.07.20
17:42:30
+0530
C.S. No. 10397/16 Pg No.5/32
3) It is alleged that the plaintiff has approached the court with unclean hands as the electricity connection in question and the electricity connection in the name of Sh. Lokesh Verma was disconnected from pole in April 2016, however, the plaintiff has claimed that his electricity connection in the premises is still alive. It is submitted that this indicates a case of illegal restoration of the electricity connection by the plaintiff and it disentitles the plaintiff to any equitable relief. It is submitted that the pending dues had been transferred and were reflected in the electricity bill dated 23.12.2015 after following the due process of law. It is denied that the electricity of the suit property was disconnected illegally.
4) A replication was filed on behalf of the plaintiff denying the allegations made in the written statement. It is stated that no notice was ever received by the plaintiff and the plaintiff was not aware of the show cause notice or the personal hearing. It is submitted that Section 56 (2) of the Electricity Act, 2003 (for short, "Electricity Act") is attracted as in the present case the electricity meter was installed in the year 2011 and the bill in question's due date is of 08.01.2016.
5) During the pendency of the present suit proceedings, an application under Order XXXIX Rules 1 and 2 of Code of Civil Procedure, 1908 (for short, "CPC") was filed on behalf of the plaintiff on 23.07.2016 and was argued on the same day and the application was allowed with directions to the defendant to restore the electricity connection at the suit property without prejudice to the rights and contentions of the Digitally signed by SALONI SALONI SINGH Date: SINGH 2024.07.20 17:42:38 +0530 C.S. No. 10397/16 Pg No.6/32 parties and the plaintiff was directed to fulfil all the commercial formalities in this regard.
6) Issues: - On completion of the pleadings of the parties, following issues were framed:-
a) Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP
b) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
7) Evidence: - Both the parties were given an opportunity to lead their evidence. The plaintiff proceeded to first lead his evidence. In order to substantiate his case, the plaintiff only examined himself and stepped into the witness box as PW-1 and tendered his examination-in-chief, by way of an affidavit, relying upon copy of sale deed dated 21.06.2012 as Mark X, copy of paid bill dated 28.05.2015 as Exhibit PW-1/B, copy of notice dated 15.12.2015 as Exhibit PW-1/C (OSR) and copy of disputed unpaid bill dated 22.11.20152 Exhibit PW-
1/D (OSR). In his affidavit, PW-1 deposed on the same lines as stated in the plaint and was cross-examined by the Learned Advocate for the defendant. No other witness was examined by the plaintiff. The plaintiff's evidence was closed by way of a separate statement. The matter was then listed for defendant's evidence.
8) In support of their case, the defendant called upon and examined two witnesses including Mr. Desh Deepak Sharma (field executive of the defendant) as DW-1 and Mr. Arun 2 Inadvertently, it seems the date of the bill, Exhibit PW-1/D, mentioned in the examination-
in-chief tendered by PW-1 on 03.10.2019 is 22.11.2015 instead of 23.12.2015. SALONI SINGH Digitally signed by SALONI SINGH Date: 2024.07.20 17:42:46 +0530 C.S. No. 10397/16 Pg No.7/32 Kumar (commercial officer at division Karkardooma, BSES Yamuna Power Ltd. New Delhi) as DW-2. DW-1 stepped into the witness box and tendered his examination-in-chief, by way of an affidavit, relying upon and placing on record only the copy of physical site verification report dated as Exhibit DW-1/1 (OSR) (Colly) (2 pages). DW-2 stepped into the witness box and tendered his examination-in-chief, by way of an affidavit, relying upon the show cause notice dated 16.10.20153 (as Exhibit DW-2/1), copy of speaking order dated 04.12.2015 as Exhibit DW-2/2 (OSR), copy of document check sheet for dues transfer of divisional energy bill as Exhibit DW-2/3 (OSR) (Colly), downloaded copy of statement of account with certificate4 under Section 65-B of Indian Evidence Act, 1872 (for short, "IEA") as Exhibit DW- 2/4, copy of notices issued to Smt. Dayawanti as Mark DW- 2/5 (Colly), copy of representation made by Lokesh Verma as Mark DW-2/6, copy of TF and CF report5 (as Exhibit DW- 2/7), copy of the K. number file of Smt. Dayawanti as Exhibit DW-2/8 (OSR) (Colly), and copy of the inspection report dated 22.02.2016 as Mark DW-2/9 (OSR). Both DW-1 and DW-2 were cross-examined by Learned Advocate for the plaintiff. No other witness was examined by the defendant.
9) Final Arguments: - On completion of defendant's evidence, final arguments were advanced on behalf of both the parties. Mr. D.K. Malhotra, Learned Advocate for the plaintiff submitted that there was already an electricity meter installed 3 The notice dated 16.10.2015 is mentioned in Exhibit DW-2/A, however, same was not filed by the defendant and was not found on record. 4 The certificate forms part of Exhibit DW-2/A. 5 The TF and CF report is mentioned in Exhibit DW-2/A, however, same was not filed by the defendant and was not found on record.
Digitally signed by SALONISALONI SINGH SINGH Date:
2024.07.20 17:42:54 +0530 C.S. No. 10397/16 Pg No.8/32 at the time the property was purchased by the plaintiff and no notice was received by the plaintiff before transfer of the dues. He argued that the defendant had transferred the dues after four years and, therefore, the claim of the defendant was time barred under Section 56(2) of the Electricity Act. Further, he argued that DW-1 was not aware of the contents of his affidavit or about the signatures of Mr. R.K. Yadav, the Recovery Officer, on the site verification report dated 27.04.2015. Learned Advocate for the plaintiff further argued that as DW-1 in his cross-examination has stated that the said report had been prepared at the office and that admittedly there was no public witness present at the time of the verification/inspection of the premises, the site verification report is manipulated. Learned Advocate for the plaintiff also argued that even DW-2's affidavit of evidence is not reliable as admittedly DW-2 has stated in his cross-examination that he had worked only with Ravinder Sharma and not with the BSES officials Puneet Kumar and Ankit Khandelwal. Learned Advocate for the plaintiff further argued that a consumer has no concern with the alleged fraud by an official of the defendant and for which the consumer cannot be made liable.
Lastly, he submitted that the bill in question is illegal and the defendant has not even given status of any recovery proceedings (civil or criminal) initiated against Smt. Dayawati.
10)Ms. Ritu Gupta, Learned Advocate for the defendant submitted that the case of the plaintiff is not that the transfer of the dues is illegal, in fact, the plaintiff has pleaded that the dues be transferred on pro-rata basis to all the existing meters Digitally signed by SALONI SALONI SINGH Date:
SINGH 2024.07.20 17:43:05 +0530 C.S. No. 10397/16 Pg No.9/32 in the premises. She argued that the plaintiff has presumed that the connection given was without any no dues certificate. She further argued that the defendant is a big discom company with lakhs of consumers and it is possible that dues on a connection are subsequently discovered on account of a fraud by their own official or because of a bona fide mistake of the company. Learned Advocate for the defendant submitted that the defendant has specifically pleaded in their written statement that the official of the defendant had committed fraud and because of which no dues was reflected in the commercial feasibility report generated before granting the connection to the plaintiff. She argued that the defendant has shown that there was a disconnected connection at the premises for non-payment of dues in the name of Smt. Dayawanti, therefore, under Regulation 49 of the Delhi Electricity Supply Code and Performance Standards Regulations, 2007 (for short, "Supply Code"), the dues had been legally transferred after following the due procedure. Lastly, Learned Advocate for the defendant relied upon the decision of the Hon'ble Supreme Court in K C Ninan v. Kerala State Electricity Board & Ors., Civil Appeal No. 2109-2110 of 2004 dated 19.05.2023 to submit that the limitation of two years, as mentioned in Section 56 (2) of the Electricity Act, is not applicable to the right of the defendant to recover the dues from the consumer and, therefore, the plea of the plaintiff that the claim of the defendant is time barred is not maintainable.Digitally signed by SALONI
SALONI SINGH Date: SINGH 2024.07.20 17:43:13 +0530 C.S. No. 10397/16 Pg No.10/32
11) Reasons for decision/Findings: - The submissions have been considered and the record of the case has been thoroughly perused. The issue-wise findings of this Court are as follows:-
12)Issue No. 1:- Whether the plaintiff is entitled to the relief of declaration as prayed for? The burden to prove this issue is upon the plaintiff. The plaintiff in the present suit has challenged the bill in question as illegal mainly on three counts. Firstly, it is contended that the plaintiff is not liable to pay the alleged dues/other charges, as transferred by the defendant and reflected in the bill in question, as the corresponding electricity was not consumed by him. It is submitted that the previous electricity bills issued by the defendant of the suit property did not contain any entry of the said previous dues. Secondly, it is contended that the defendant had illegally transferred the alleged dues/other charges only to the plaintiff despite there being seven other electricity connections in the property. Thirdly, it is contended that the bill in question is time barred. The defendant's case briefly is that the dues of the previous occupier had been legally transferred by the defendant to the plaintiff in accordance with Regulation 49 of the Supply Code and that in view of the decision of the Hon'ble SC in K.C. Ninan's case (supra), the bill in question is not time barred.
13)Before proceedings further, it is imperative to first consider the legal framework applicable to the facts and circumstances of the present suit. The law governing distribution and supply of electricity to households/consumers in the National Capital Territory (NCT) of Delhi is the Electricity Act, 2003 (for short, "Electricity Act"). The right of a consumer to apply Digitally signed SALONI by SALONI SINGH SINGH Date: 2024.07.20 17:43:22 +0530 C.S. No. 10397/16 Pg No.11/32 and obtain electricity and the corresponding duty of the distribution licensee to supply electricity to an owners' or occupiers' premises is governed by Section 43 of the said Act.
Section 43 (1) of the Electricity Act provides that, "Save as otherwise provided in this Act, every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply..." As per the explanation clause of Section 43 of the Electricity Act, an 'application' is stated to include not only the complete application form but also the documents showing payment of 'necessary charges'. Under Section 45 of the Electricity Act, the distribution licensee is empowered to fix charges for supply of the electricity as per the licence and the tariffs fixed from time to time. Further, Section 50 of the said Act empowers the State Commission to specify an Electricity Supply Code providing for recovery of electricity charges, among other things. In exercise of the powers conferred by Section 50 of the said Act read with Sections 57, 86 and 181 of the said Act, the Delhi Electricity Regulatory Commission has made the Delhi Electricity Supply Code and Performance Standards Regulations, 2007 (Supply Code), which is applicable to the present case. Chapter III of the said Supply Code deals with New and Existing Connections in which Regulation 20 (1) allows for change in name of consumer in cases of change in ownership/occupancy of property. Chapter V of the said Supply Code deals with metering and billing, wherein Regulation 46 casts an obligation on the consumer to get a special reading done by the licensee at the time of change of occupancy or on the Digitally signed SALONI by SALONI SINGH SINGH Date:
2024.07.20 C.S. No. 10397/16 Pg No.12/32 17:43:31 +0530 premises falling vacant and to obtain a no-due certificate from the licensee. Chapter VI of the Supply Code deals with disconnection and reconnection in which Regulation 49 of the said Chapter provides for disconnection on non-payment of licensees dues, which is reproduced below: -
i The Licensee may issue a disconnection notice in writing, as per section 56 of the Act, to the consumer who defaults on his payment of dues giving him fifteen clear days to pay the dues. Thereafter, the Licensee may disconnect the consumer's installation on expiry of the said notice period by removing the Service Line / Meter or as the Licensee may deem fit. If the Consumer does not make the payment within six months of the date of disconnection, such connections shall be treated as Dormant Connection.
ii The Licensee may take steps to prevent unauthorized reconnection of such consumers disconnected in the manner as mentioned above. Wherever Licensee discovers that connection has been re-connected unauthorisedly, Licensee may initiate action as per provisions of section 138 of the Act. Further, in case Licensee discovers that the supply to such premises has been restored through another live connection, notice to registered consumer/user of such live connection shall be given to stop such illegal supply immediately failing which pending dues of disconnected connection shall be transferred to his account and non- payment of such transferred dues may be dealt with as per Sub- Regulation (i) above.Digitally signed by SALONI
SALONI SINGH Date: SINGH 2024.07.20 17:43:39 +0530 C.S. No. 10397/16 Pg No.13/32
14)Section 56 of the Electricity Act provides for disconnection of supply in default of payment, which reads as follows: - (1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days' notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer:
Provided that the supply of electricity shall not be cut off if such person deposits, under protest, - (a) an amount equal to the sum claimed from him, or b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee.
(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of Digitally signed by SALONI SALONI SINGH SINGH Date:
2024.07.20 17:43:47 +0530 C.S. No. 10397/16 Pg No.14/32 charges for electricity supplied and the licensee shall not cut off the supply of the electricity.
15)Evidently, Regulation 49 of the Supply Code empowers the licensee (the defendant in the present case), in the circumstances mentioned therein, to transfer the pending dues of a previously disconnected connection (due to non-payment of dues) of a premises to the registered consumer/user of the electricity supply restored through another live connection to such premises.
Therefore, the first objection raised by the plaintiff with respect to the bill in question that only charges for the electricity consumed by him can be recovered by the defendant is contrary to said Regulation and, thus, not valid. The circumstances in which Regulation 49 of the Supply Code becomes applicable is where
(a) there exists a disconnected connection of a premises (in accordance with Section 56 of the Electricity Act) and (b) the licensee discovers that supply to such premises has been restored by another live connection. Further, before transfer of the pending (previous) dues, the licensee is bound to issue a notice to the registered consumer/user of such live connection immediately to stop such illegal supply and if such registered consumer/user fails to do so, the licensee may then transfer the pending dues to the account of such registered consumer/user.
16)At the first instance, it is to be considered in the present suit whether the circumstances for invoking Regulation 49 of the Supply Code, for transfer of the previous dues, existed and whether the defendant had legally transferred the pending dues (of the disconnected connection) to the plaintiff. Digitally signed by SALONI SALONI SINGH SINGH Date:
2024.07.20 17:43:54 +0530 C.S. No. 10397/16 Pg No.15/32
17)The plaintiff's case is that he had purchased the suit property on 02.07.2012, which already had an existing electricity connection bearing CA no. 100752365 in the name of one Smt. Kanta Devi, and that since the time the plaintiff occupied the suit property, he had regularly paid the electricity bills of the said connection till June 2015. It is not the case of the plaintiff that he had obtained a no dues certificate or had applied for change in name of the registered consumer of the said connection. To show that the plaintiff is the owner/occupier of the suit property, he has placed on record a copy of the registered sale deed dated 21.01.2012 executed between himself and Smt. Ira Malhan in respect of the suit property as Mark X. Further, to show the electricity bill previously issued in respect of the suit property by the defendant, the plaintiff has placed on record a copy of the electricity bill dated 28.05.2015 as Exhibit PW-1/B (showing the due amount as Rs. 3,810/- and payable by 13.06.2015). The said bill is issued by the defendant in respect of CA no. 100752365 in the name of Smt. Kanta Devi. It is pertinent to note here that as per the plaintiff, he had purchased the first floor of the property no. 3/212, Mohalla Ganga Ram, Delhi-110032, however the said bill, Exhibit PW-1/B, and the bill in question are issued of the property in question and do not specifically state to be of the first floor of the said property.
18)The defendant does not dispute that the plaintiff is the occupier of the suit property, and that electricity was being supplied to the suit property through the said electricity connection bearing CA no. 100752365 (in the name of Smt. Kanta Devi). The defendant also does not dispute having raised the bill, Exhibit PW-1/B, SALONI and Digitally signed by SALONI SINGH SINGH Date: 2024.07.20 17:44:11 +0530 C.S. No. 10397/16 Pg No.16/32 bill in question, Exhibit PW-1/D. The defendant claims that they had subsequently discovered, when they had conducted an inspection at the premises in question on 24.04.2015, that in respect of the premises there was already the disconnected connection in the name of Smt. Dayawanti on account of non- payment of the dues of Rs. 45,993/- (Rupees Forty-Five Thousand Nine Hundred Ninety-Three Only) and that the same premises was being supplied electricity through the two live connections i.e., in the names of registered consumers Lokesh Verma and Kanta Devi. It is to be noted that the defendant has not specified in their written statement whether the said disconnected connection in the name of Smt. Dayawanti was in respect of the entire property in question or any portion or floor thereof.
19)The defendant, to prove their said claim, has examined DW-1 and DW-2. DW-1 in his affidavit of evidence, Exhibit DW-1/A, has reiterated the said averments and has specifically stated that he was the one, who had visited the property no. 3/212, Gali Ganga Ram, Chota Bazar, Shahdara, Delhi-110032 (hereinafter also referred as, "property in question") on 26.04.2016 and had conducted the inspection/verification and found that in respect of the premises in question in which there was the disconnected connection, electricity was now being supplied through the two live connections. In proof thereof, DW-1 has placed on record a copy of the physical site verification report of the inspection conducted by him on 26.04.2016 as Exhibit DW-1/1 (OSR). DW-1, to prove the execution of the said report, has identified his signatures on the report at point A and has also identified the signatures of Mr. R.K. Yadav, the Recovery Officer, on the said report at point B. Several questions in this regard were put to SALONI Digitally signed by SALONI SINGH SINGH Date: 2024.07.20 17:44:20 +0530 C.S. No. 10397/16 Pg No.17/32 DW-1 in his cross-examination. DW-1 has reiterated in his cross- examination (as stated in his affidavit Exhibit DW-1/A) that he could identify the signatures of Mr. R.K. Yadav on the said report (Exhibit DW-1/1) as DW-1 in the ordinary course of business had seen Mr. R.K. Yadav signing on official documents. Further, DW- 1 in his cross-examination has stated that Mr. R.K. Yadav used to usually affix his initials, in short for his name, while signing the official documents. It is argued on behalf of the plaintiff that as Exhibit DW-1/1 does not bear the initials of Mr. R.K. Yadav at point B, therefore, DW-1 has falsely stated to having identified the signatures of Mr. R.K. Yadav. The said argument is misconceived as the report, Exhibit DW-1/1, seems to bear at point B the initials of the name (R.K. Yadav). Also, based on the testimony of DW-1 in this regard, there seems to be hardly any doubt on DW-1 being the author of the report, Exhibit DW-1/1.
20)Further, in his cross-examination, questions were put to DW-1 regarding the physical inspection/site verification stated to be conducted by DW-1 on 26.04.2015 and the procedure followed for the same. DW-1 in his cross-examination has stated that he had visited the property no. 3/212, Gali Ganga Ram, Chota Bazar, Shahdara, Delhi-110032 for inspection by himself on 26.04.2015. Further, DW-1 in his cross-examination has described the structure of the said property to have three floors i.e., the ground floor, the first floor and the second floor. DW-1 has also stated that there were shops on the outside of the ground floor and towards the inside there was a house on the ground floor of the property. DW-1 was unable to disclose the number of shops at the ground floor of the property and has stated that he had not counted the number of electricity meters of the said shops Digitally signed SALONI by SALONI SINGH SINGH Date: 2024.07.20 17:44:27 +0530 C.S. No. 10397/16 Pg No.18/32 on the ground floor as they did not fall under domestic category. Further, DW-1 in his cross-examination has stated that he had inspected the meters on the ground floor and had not visited the second floor of the property. Further, DW-1 has stated that on inspection he had found that there were only two electricity meters installed at the property, one was in the name of Lokesh Verma having address of 3/212, second floor, Gali Ganga Ram, Chota Bazar, Shahdara, Delhi-110032, and the second meter was in the name of Kanta Devi having address of 3/212, Gali Ganga Ram, Chota Bazar, Shahdara, Delhi-110032. DW-1 has further stated that there was no meter in the name of Dayawanti in the property (as it had already been removed on account of pending dues).
21)Apparently, there appear to be inconsistencies in the version of DW-1, the statements made in the written statement and the physical site inspection/verification report (Exhibit DW-1/1). In the written statement of the defendant, it is stated that the property in question was inspected on 24.04.2015. No document has been placed on record by the defendant to show that any inspection was conducted at the property in question on 24.04.2015. There is no averment in the written statement that there was any subsequent inspection on 26.04.2015. There is also no averment in the written statement that any inspection report had been prepared of an inspection conducted at the property in question on 24.04.2015 and/or 26.04.2015. It is not clear from the documents of the defendant when the inspection was conducted or even when the inspection report was prepared. The defendant has not specified the provision/regulation of the Electricity Act or the Supply Code or of any other applicable regulations/rules Digitally signed by SALONI SALONI SINGH SINGH Date: 2024.07.20 17:44:35 +0530 C.S. No. 10397/16 Pg No.19/32 under which the inspection(s) of the property in question had been conducted. The defendant has also not produced any register or specified the applicable regulation or rules to show the procedure adopted for carrying out such inspection (s) at the property in question.
22)Generally, an inspection of a site is conducted at the direction/instance of the organization concerned in respect of which formal instructions/directions are issued/given. The person authorized to conduct such an inspection is required to give prior intimation to the residents/occupants (if any) of the site of inspection. The authorized person/designated person visits the site and conducts inspection and prepares the report at the site itself in the presence of independent witnesses, preferably nearby residents. In the present case, the defendant seems to have followed no proper/formal procedure for conducting the inspection(s) and the report, Exhibit DW-1/1, appears to have been casually prepared. There is no document placed on record by the defendant to show the authority/locus of DW-1 to conduct the inspection on 26.04.2014 or for conducting the inspection as stated on 24.04.2014. DW-1 in his affidavit, Exhibit DW-1/A, has specifically stated that only he had visited and conducted the inspection at the property in question on 26.04.2015. There is no mention in the said affidavit or the report, Exhibit DW-1/1, about the time, date or place where the inspection report had been prepared by DW-1. DW-1 in his cross-examination has stated that he had prepared the report Exhibit DW-1/1 at his office next day i.e., on 27.04.2015. In the inspection report itself (Exhibit DW- 1/1), apparently there appears to be an overwriting in the date of site inspection mentioned in the report at points X and Y. There is SALONI Digitally signed by SALONI SINGH SINGH Date: 2024.07.20 17:44:42 +0530 C.S. No. 10397/16 Pg No.20/32 no date of 27.04.2015 mentioned at points A and B of Exhibit DW-1/1 i.e., at the place of the signatures of DW-1 and Mr. R.K. Yadav, to indicate the date on which the report was prepared. Further, DW-1 in his cross-examination has stated that he had conducted the inspection on 26.04.2015 between 2:00pm and 3:00pm, however, again there is no mention of the same in the affidavit, Exhibit DW-1/A, or the report, Exhibit DW-1/1. The above discrepancies create a doubt on the date on which the inspection (if any) of the property in question had been conducted and the manner in which the report may have been prepared, which in turn casts a shadow on the authenticity of the said report.
23)The report, Exhibit DW-1/1, itself appears to be vague and incomplete. Admittedly, the entries from the serial no.1 to 3 and from the serial no. 5 to 12 in the said report have been left blank. The said report mentions the details of the disconnected connection in respect of which the dues were to be transferred as bearing CA 100757396 (CRN 1210000724) in the name of registered consumer Dayawanti and its site address as 3/212, Gali Ganga Ram NR. Hanuman Mandir. The report does not mention the details of the specific portion/area which was previously being supplied electricity through the said disconnected connection. It is only the table below serial no. 3 of the said report that has been filled in ink mentioning the CA numbers as 150234056 and 100752365, the corresponding meter numbers as 14297457 and 13203496, and the corresponding names of registered consumers as Lokesh Verma and Kanta Devi. The address of the said registered consumers has been mentioned only as 3/212, S/F Gali Ganga Ram, Chotta Bzr NR. Hanuman Digitally signed SALONI by SALONI SINGH SINGH 17:44:50 Date: 2024.07.20 C.S. No. 10397/16 Pg No.21/32 +0530 Mandir, whereas admittedly, the first floor/suit property was in the occupation of the plaintiff having the electricity connection registered in the name of Kanta Devi. Further, at serial no. 4 of the report it is mentioned that the site was visited on 26.04.2015 and no meter of the disconnected connection was found at the site and that other two SOS exist on site. The remaining serial numbers of the report are blank. The report does not specify the area/portion/premises/floor to which the disconnected connection was previously supplying electricity. From the said report, it cannot be discerned that the disconnected connection was found to be supplying electricity to the premises of the two live connections or to the first or second floor of the property in question. The report, Exhibit DW-1/1, is not consistent with the version of the defendant in the written statement and the affidavit of DW-1 (Exhibit DW-1/A). The above said factors raise a serious doubt on whether any inspection had been conducted on 24.04.2015 and/or 26.04.2015 at the property in question and, therefore, the testimony of DW-1 is not wholly reliable.
24)The defendant to show the existence of the said disconnected connection in respect of the property in question has placed on record the K. number file of the registered consumer Dayawanti as Exhibit DW-2/8 (Colly) and copy of the notices issued under Section 56 of the Electricity Act and Section 138 of the N.I. Act by the defendant to Dayawanti for clearance of the pending dues as Mark DW-2/5 (Colly). The plaintiff does not seem to dispute the existence of the said disconnected connection in respect of the property in question. As already pointed out, it is not clear whether the disconnected connection was supplying electricity to the entire property in question or any portion/floor thereof. In theDigitally signed SALONI by SALONI SINGH SINGH 17:44:57 Date: 2024.07.20 +0530 C.S. No. 10397/16 Pg No.22/32 said K. number file (Exhibit DW-2/8 (Colly)), there is mention of the electricity connection being at house no. 3/212, Gali Gangaram, Shahdara Delhi-110032. It does not mention the area or portion of the property in question to which the electricity was being supplied through the said disconnected connection. In the written statement of the defendant, it is averred that after the transfer of dues, vide order dated 04.12.2015, Lokesh Verma, the occupier of the second floor of the property in question, approached the defendant for quashing the bill in question and for re-inspection of the property in question and had made a representation stating that there were seven other users in the same property and for issuance of the bill in question on pro-rata basis. The defendant has placed on record copy of the said representation as Mark DW-2/6, which has not been disputed by the plaintiff. Further, it is averred in the written statement of the defendant that, on the said representation, the property in question was inspected again and it was found that the disconnected connection was supplying electricity to the second floor of the property in question.
25)DW-2 in his affidavit, Exhibit DW-2/A, has reiterated the said averments, however, the defendant has not filed any documentary evidence in support thereof. There is no official record filed by the defendant regarding the subsequent inspection that was carried out at the property in question after receipt of the representation made by Lokesh Verma. The defendant has filed a copy of the inspection report dated 22.02.2016, in respect of the inspection stated to be carried out by them after the receipt of summons in the present suit, which has been placed on record as Exhibit DW-2/9. Amongst other details, the said inspection SALONI Digitally signed by SALONI SINGH SINGH Date: 2024.07.20 17:45:07 +0530 C.S. No. 10397/16 Pg No.23/32 report mentions that according to the neighbors, Dayawanti was living at the second floor. The said inspection report, Exhibit DW-2/9, has not been formally proved by the defendant. Further, it is not even the case of the defendant that this was the same inspection that was carried out by the defendant after receipt of the representation of Lokesh Verma. The defendant has failed to show that the disconnected connection was supplying electricity to the second floor of the property in question. In fact, the defendant has failed to show the specific portion/area of the property in question to which the disconnected electricity was supplying electricity. If it is not known to which portion/floor/specific premises of the property in question, the disconnected connection was supplying electricity, then the question is how the pending dues of the disconnected connection under Regulation 49 of the Supply Code could have been transferred to the 'same/such premises' (i.e., the first and second floor of the property in question).
26)The second objection raised by the plaintiff with respect to the bill in question and regarding the transfer of the pending dues to the suit property is that there were seven other electricity meters in the property in question and despite which he had been burdened with the payment of the pending dues. The case of the defendant in their written statement is that on re-inspection, it was found that the disconnected connection was supplying electricity to the second floor and that the occupant and user of electricity at the first floor and the second floor was the same, thus, the dues were transferred proportionately to the first and second floor of the property in question. Further, it is stated that the other six meters on Digitally signed SALONI SINGH by SALONI SINGH Date: 2024.07.20 17:45:16 +0530 C.S. No. 10397/16 Pg No.24/32 which the transfer had been sought, were on the ground floor of the property in question and were being used for commercial purposes and they had been installed prior to disconnection of the disconnected connection in the year 2011. Further, it is the case of the defendant that there was one electricity meter in the name of Rahul Verma, which was installed after the disconnection of the disconnected connection, however, this meter was on the ground floor. It does not seem to be disputed that there were seven other meters in the property in question. DW-2 in his affidavit, Exhibit DW-2/A, has reiterated the said averments that these other meters were installed at the ground floor and were for commercial purposes and that they had been installed prior to disconnection of the disconnected meter. It is pertinent to mention here that the defendant has not transferred the pending dues to those meters in the property in question, which they claim were for commercial purposes, however, no such distinction has been made in Regulation 49 of the Supply Code. The defendant has not brought to the notice of this Court any other Regulation of the Supply Code or any provision of the Electricity Act, as per which the pending dues of a connection for domestic purpose could be recovered or transferred to a subsequent live connection in respect of the same premises only if this subsequent connection was for domestic purposes.
27)Further, DW-2 has stated in Exhibit DW-2/A that one meter was in the name of Rahul Verma, which had been installed at the ground floor after the disconnection of the disconnected connection. Neither DW-1 nor DW-2 have placed SALONI on record Digitally signed by SALONI SINGH SINGH Date: 2024.07.20 17:45:24 +0530 C.S. No. 10397/16 Pg No.25/32 any documentary evidence in proof thereof. It is reiterated that there is no official record/report placed on record by the defendant regarding this re- inspection that was carried out at the property in question after receipt of the representation of Lokesh Verma. DW-1, who is stated to have conducted the inspection on 26.04.2015, in his cross-examination has stated that there were shops at the ground floor of the property in question, however, neither had he counted them nor inspected the meters of the said shops. It has come in record in the cross-examination of DW-1 that there was also a house at the ground floor, however, the defendant has not placed any record to show the details of the electricity meter of this house, if any.
28)Further, DW-2 in his affidavit Exhibit DW-2/A has stated that on re-inspection, it was informed that the occupier and user of the electricity at the first and second floor is the same, thus, the pending dues were transferred proportionately to the first and second floor. It is not disputed that the plaintiff, occupier of the suit property (i.e., first floor of the property in question), and Lokesh Verma, the occupier of the second floor of the property, are brothers. There is no oral or documentary proof to show that the plaintiff and his brother Lokesh Verma were residing in the property in question as a joint family and/or using the first and second floor of the property in question as a joint property. Even assuming that they were using the said two floors as joint property, however, admittedly, both floors had a separate electricity connection supplying electricity to their respective portions. Further, it is the own case of the defendant that the disconnected SALONI Digitally signed by SALONI SINGH SINGH Date: 2024.07.20 17:45:31 +0530 C.S. No. 10397/16 Pg No.26/32 connection had been supplying electricity to the second floor, then how could the defendant decide to split the pending dues proportionately to the first and the second floor of the property in question. This act of the defendant is contrary to Regulation 49 of the Supply Code. The defendant has failed to bring forth to the attention of this court any other Regulation or provision of the Electricity Act, which empowered the defendant act in this manner.
29)The defendant has gone on to state in the written statement that after the inspection conducted at the property in question, notices dated 11.05.2015 had been issued to the said registered consumers of the live connections asking them to stop supply of electricity through their live connections to the portion of the premises (in respect of the disconnected connection). The defendant claims that the said notices had been served upon them, and they were given an opportunity of personal hearing, however, despite service the said opportunity was not availed by the said registered consumers. Further, it is submitted that the defendant had again issued show cause notices dated 16.10.2015 to the said registered consumers, however, despite service, they had not availed the opportunity of personal hearing and eventually after due approvals, the dues were transferred equally amounting to Rs. 22,996/- (Rupees Twenty-Two Thousand Nine Hundred and Ninety-Six Only) to both the said registered consumers of the live connections. The plaintiff has denied receipt of the said notices dated 11.05.2015 and 16.10.2015, which in turn has been denied by the defendant on the plea that the plaintiff had been regularly receiving the electricity bills and, therefore, he must have received the said notices. Digitally signed by SALONI SALONI SINGH SINGH Date:
2024.07.20 17:45:39 +0530 C.S. No. 10397/16 Pg No.27/32
30)With respect to the mode of service of notices issued by the defendant, the Regulation 68 of the Supply Code comes into play, which specifically provides that any notice, including notice under Section 56 of the Electricity Act, issued to a consumer by the licensee shall be deemed served, if the notice is delivered either by hand to the consumer at the address notified to the licensee or by way of registered post at the correct postal address of the addressee or if it is affixed at a conspicuous part of the premises and photographed in case there is no person to whom the notice can with reasonable diligence be delivered. The defendant has not placed on record copy of either of the said notices dated 11.05.2015 and 16.10.2015 or produced any evidence to show that the said notices had been served upon the registered consumers of the live connections by any of the said approved modes. The defendant has placed on record the speaking order dated 04.12.2015 as Exhibit DW-2/2 (OSR) pursuant to which the dues of Rs. 22,997/- (Rupees Twenty-Two Thousand Nine Hundred and Ninety-Seven Only) had been transferred to the electricity connection bearing CA no.
100752365. The said speaking order mentions that the registered consumer (Kanta Devi) was served the previous notices dated 11.05.2015 and 16.10.2015, however, the defendant has failed to prove that any such notices had been sent to the plaintiff or at the address of the registered consumer (Kanta Devi). Therefore, it can be inferred that the defendant, without having issued any notices to the plaintiff or at the address of the registered consumer (Kanta Devi), had passed the said speaking order dated 04.12.2015 regarding the transfer of dues. Without having been given an opportunity of being heard or without having disclosed Digitally signed by SALONI SALONI SINGH SINGH Date: 2024.07.20 17:45:48 +0530 C.S. No. 10397/16 Pg No.28/32 the case of the defendant to the registered consumers, the passing of the speaking order dated 04.12.2015 or transferring of the dues is prima facie illegal. Even otherwise, the note/check sheet for dues transfer with the dues transfer certificate has not even been proved by the defendant. DW-2 has placed on record the check sheet with the said certificate as Exhibit DW-2/3. The said documents are stated to have prepared and signed by Mr. Puneet Kumar, Mr. Ravinder Sharma and Mr. Ankit Khandelwal. DW-2 in his affidavit, Exhibit DW-2/A, has stated that he could identify the signatures of all the said persons on the documents (Exhibit DW-2/3) as DW-2 had seen them signing in normal course of work having worked with them. However, to the contrary, in his cross-examination, DW-2 has stated that he has only worked with Ravinder Sharma. Clearly, DW-2 was unaware about the signatures of Mr. Puneet Kumar and Mr. Ankit Khandelwal. Therefore, it is doubtful whether the entire testimony of DW-2 can be relied upon.
31)From the above, it is evident that the defendant has failed to show that the 'premises/portion/floor' of the property in question to which the disconnected connection was previously supplying electricity and the same premises that was being supplied electricity through live connections. Thus, it is stated that the circumstances as required for invoking Regulation 49 of the Supply Code did not exist and that the defendant had illegally transferred pending dues (of the disconnected connection) to the plaintiff without following the prescribed procedure. If the transfer of the dues to the plaintiff was itself illegal, the defendant could not have issued the bill in question raising demand for the Digitally signed by SALONI SALONI SINGH SINGH Date:
2024.07.20 17:45:55 +0530 C.S. No. 10397/16 Pg No.29/32 said dues as other charges. Therefore, the bill in question raised by the defendant is illegal.
32)Thirdly and lastly, the plaintiff has also challenged the bill in question as being time barred. In this case, the defendant is stated to have transferred the previous dues to the plaintiff and Lokesh Verma proportionately, vide the speaking order dated 04.12.2015, and, thereafter, had issued the bill in question including the other charges of Rs. 22,997/- (Rupees Twenty-Two Thousand Nine Hundred and Ninety-Seven Only). It is the case of the defendant that the connection in the name of Smt. Kanta Devi had been disconnected from the pole in April 2016. Firstly, the defendant has failed to state specifically in the written statement the reason for the said disconnection. Secondly, the defendant has not filed any document to prove the manner of the said disconnection. Regulation 49 (ii) of the Supply Code specifically provides that in case of non-payment of the transferred dues, the same would be dealt as per Regulation 49 (i) of the said Code i.e., by following Section 56 of the Electricity Act. Section 56 (1) of the Electricity Act provides that where a person neglects to pay any charge for the electricity or any other sum (other than a charge for electricity) due from him, the licensee may, after giving notice in writing of not less than fifteen days, disconnect the electricity supply. Section 56 (1) of the said Act clearly mandates the licensee to give prior written notice to such person before disconnection of the electricity supply. In the present case, no such notice seems to have issued by the defendant to the plaintiff prior to the disconnection of his electricity supply. Therefore, without compliance of Section Digitally signed SALONI by SALONI SINGH SINGH 17:46:02 Date: 2024.07.20 +0530 C.S. No. 10397/16 Pg No.30/32 56 (1) of the Electricity Act, the disconnection of the plaintiff's electricity supply towards recovery of the transferred dues (or the regular dues) is also illegal. Further, the defendant's action of disconnection of the plaintiff's electricity supply could be hit by limitation under Section 56 (2) of the said Act.
33)The Hon'ble SC in KC Ninan's case (supra), while interpreting Section 56 (2) of the Electricity Act, has clarified that the power to initiate recovery proceedings by filing a suit against the defaulting consumer is independent of the power to disconnect electrical supply as a means of recovery. Further, the Hon'ble SC in the said case has held that the limitation of two years provided in Section 56 (2) of the said Act is for recovery of dues by the licensee through the means of disconnecting electrical supply unless, the sum, which was first due, has been shown continuously as recoverable as arrears of charges for electricity supplied. The question of limitation in the context of Section 56 (2) of the Electricity Act was not framed as an issue in the present suit prior to commencement of trial. Even otherwise, determination of the issue of limitation also involves disputed facts such as the date on which the 'sum' became first due, the date on which the previous pending dues in respect of the premises was found, the date on which the alleged fraud by the official of defendant was discovered etc., which have not been per se proved by either of the parties for the purposes of limitation. Therefore, the question of limitation in the context of Section 56 (2) of the Electricity Act cannot be decided by this Court.
Digitally signed by SALONISALONI SINGH Date: SINGH 2024.07.20 17:46:17 +0530 C.S. No. 10397/16 Pg No.31/32 The bill in question has been already held to be illegal. Accordingly, the first issue is decided in the affirmative.
34)Issue no. 2: - Next, it is to be seen whether the plaintiff is entitled to the reliefs of permanent injunction of restraining the defendant from raising the above said illegal and unwarranted charges in future upon the electricity connection of the plaintiff and from disconnecting the electricity supply to the premises of the plaintiff. In other words, the plaintiff is attempting to obtain an all-purpose remedy in respect of any action to be taken in future by the defendant in respect of the electricity connection in the suit property, which cannot be permitted. The plaintiff does not have an unconditional or absolute right against disconnection of his electricity supply or against recovery of charges in accordance with the applicable electricity laws/regulations etc. Therefore, the plaintiff is not entitled to the said reliefs of permanent injunction in his favour. Accordingly, the second issue is decided in the negative.
35)Decision: - All issues framed by this Court have been decided. In view thereof, the bill in question is hereby declared as illegal. The present suit stands partly decreed without costs to either of the parties. Decree sheet be prepared accordingly.
Digitally signed by SALONISALONI SINGH Date: Pronounced in Open Court SINGH 2024.07.20 17:46:50 +0530 on July 20, 2024 (SALONI SINGH) Senior Civil Judge-cum RC KKD/SHD/DELHI/20.07.2024 C.S. No. 10397/16 Pg No.32/32