Delhi High Court
Bses Rajdhani Power Ltd. vs Sh. Manoj Kumar on 5 November, 2007
Author: J.M. Malik
Bench: J.M. Malik
JUDGMENT J.M. Malik, J.
1. The main question which falls for consideration in this case is whether an aggrieved person/plaintiff is liable to pay the court fees on a bill which is prima facie not legal or where the court comes to the conclusion that the procedure adopted by the licensee i.e. BSES Rajdhani Power Limited is not correct.
2. Counsel for the petitioner urged that the order of this Court, in Sarjiwan Singh v. Delhi Vidyut Board puts the case of the petitioner in an impregnable position. Its relevant para is reproduced as hereunder:
7. In these circumstances the Order dated 25.9.1997 in Suit No. 791/1997 does not disclose any error in the exercise of jurisdiction; CR No. 1186/1997 is accordingly dismissed. Reference Nos. 1/1998, 2/1998, 3/1998, 4/1998, 5/1998 and 6/1998 are disposed of by holding that where a bill has been raised by the Electricity Department, which is prima facie legal, a declaration must be prayed for to the effect that the bill is incorrect or illegal before the Plaintiff can legally pray for an injunction against the recoveries made on the basis of such bills.
3. It must be borne in mind that the stress is on prima facie legal bill. Similar view was taken in a recent case titled as North Delhi Power Limited v. Ganesh Aggarwal CRP No. 72/2006 dated 2nd November, 2006 passed by this Court. The Authority of Sarjiwan Singh v. Delhi Vidyut Board (supra) was considered and it was held that the only exception carved out in para 7 of the judgment(quoted above) is that the court must be satisfied that the bill is prima facie legal.
4. Counsel for the petitioner has also placed reliance on two other authorities reported in M/s Maharaji Educational Trust and Anr. v. Punjab and Sind Bank and Anr. and Assam State Electricity Board Guwahati and Ors. v. Borjalinga Tea Company and Anr. AIR 1997 Guwahati 119.
5. Adumbrated in brief the facts of this case are these. The petitioner, BSES Rajdhani Power Limited inspected the premises of the respondent plaintiff on 24.08.2006 and issued a bill in the sum of Rs.29,25,989/-. The plaintiff respondent filed a suit before the Trial Court for mandatory injunction and permanent injunction wherein it was prayed that the defendant /petitioner be directed to restore the electricity supply of the plaintiff/respondent and the defendant/petitioner be restrained from enforcing the above said order / bill. Para 32 of the plaint goes to reveal that value of the suit for the purposes of the court fees and jurisdiction was fixed at Rs.260/- on which a prescribed court fees of Rs.26/- had been pasted on the plaint.
6. The petitioner / defendant objected that in view of the order passed by this Court in Sarjeevan Singh v. DVB , the court fees was not properly fixed. The jurisdiction of the court was also called into question.
7. The trial court granted the interim relief in favor of the plaintiff subject to the condition that it would deposit a sum of Rs. 8.5 lacs towards the bill in question. The petitioner has called into question the order passed by the trial court.
8. The trial court came to the conclusion that the impugned bill had been raised in contravention of Regulation 30(1) of DERC (Performance - Standards Metering and Billing) Regulations, 2002. I am unable to find out any fault with this finding. The said Regulation runs as follows:
30. General
(i) While making the assessment bill, the licensee shall give credit to the consumer for the payments already made by the consumer for the period of the assessment bill. The assessed bill shall be prepared after excluding the consumption recorded by the meter. The bill shall clearly indicate the timing, days and place where it is to be deposited.
9. The learned Counsel for the petitioner argued that Under Regulation 30(1) the consumer is only entitled to the benefit of past payments made and no exclusion in terms of units is contemplated. He also pointed out that the Secretary of DERC vide letter dated 28.07.2003 clarified that only past payments are admissible. Counsel for the petitioner opined that if credit is given to past payments and recorded consumption is also excluded it would lead to an anomalous situation. Consequently, the consumer would get dual benefit.
10. The trial court came to the conclusion that the licensee is obliged to exclude the consumption recorded by the meter in terms of units while preparing the assumption bill.
11. Prima facie it appears that bill prepared by the petitioner is not in accordance with law. They were supposed to exclude the consumption recorded by the meter in terms of units. Clarification issued by DERC cannot override Regulation 30(1) quoted above. It was also not clarified that DERC is empowered to issue such a clarification. This Court in a latest case reported in Sanjay v. NDPL in WP(C) 621/2007 observed:
3. This Court is unable to accept this submission. The very wording of the clause in regard to which the clarification was sought by the respondent from the DERC indicates that exclusion of must be of the consumption recorded by the meter. The meter obviously cannot record payments made but only the units consumed. There can be no manner of doubt, therefore, that if a reasonable meaning has to be given to Clause 30 (General)(i) of the Performance Standard (Metering and Billing) Regulations, then the units consumed have to be given credit. In any event, this interpretation finds support from the judgment dated 16.10.2006 in Bimla Gupta v. North Delhi Power Co. Ltd. 134 (2006) DLT 179.
4. Counsel for the respondents point out that an appeal against the said judgment is pending before the Division Bench of this Court. Nevertheless, it is stated that there is no stay of the judgment. They also point out that the judgment in Bimla Gupta does not take note of the clarification issued by DERC on 28.07.2003. That makes no difference since in any event the interpretation by this Court will ultimately prevail over what the DERC may clarify.
5. In that view of the matter, there is no merit in the application and it is accordingly dismissed.
12. Secondly, although, the respondent requested for an opportunity to cross-examine the members of the inspecting team, yet, the request made by him fell on deaf ears. The order in question is conspicuously silent about this request. An opportunity to cross-examine the witness should have been provided because personal hearing granted to the consumer is not an empty formality. The trial court has relied upon cases reported in authorities in Khem Chand v. Union of India , State of Kerala v. K.T. Shaduli , State of Jammu & Kashmir v. Bakshi Gulam Mohammad , S.C. Girotra v. UCO Bank 1995 (7) SLR 152(SC), Central Bank of India Ltd. v. Karunamoy Banerjee .
13. In a recent authority reported in Radhey Shyam v. NDPL 143 (2007) DLT 598 the Division Bench of this Court placed reliance upon Transmission Corporation of A.P. Ltd. v. Sri Rama Krishna Rice Mill AIR 2006 SC 1445, wherein the Apex Court held that the right of cross-examination was not inbuilt in the adjudicatory process before the adjudicating authority. The adjudicating authority was, however, duty bound to examine the request of a consumer for permission to cross-examine the witness and pass a reasoned order on the same, if the request was being rejected.
14. Counsel for the petitioner has failed to show that the law prevalent in Guwahati is paramateria to the Delhi laws. Although, the trial court did not have the jurisdiction to impose the condition of deposit of Rs.8.5 lacs because its own jurisdiction extends up to Rs. 3 lacs only, yet, the said condition has not been called into question in this case. Moreover, it is not clear how much money is to be paid by the respondent. It appears that the learned trial court has taken a cue from the judgment passed by this Court in Ashok Kumar v. BSES W.P.(C) No. 615/2007 decided on 24.01.2007 wherein the impugned bill was in the sum of Rs.1,88,74,291/-. This Court ordered the petitioner to deposit Rs.7.5 lacs only. This objection will assume importance only when it is clear as to how much bill is to be paid by the respondent. The petition has no force and the same is therefore dismissed.
CM No. 8216/2007No orders are required to be passed in this application in view of the dismissal of the petition.
Dismissed.