Delhi District Court
Sh. Narayan Kumar vs The Chairman on 5 April, 2019
IN THE COURT OF MS. MONA TARDI KERKETTA, ADDL. SENIOR CIVIL
JUDGE-CUM- JUDGE SMALL CAUSE COURT-CUM- GUARDIAN
JUDGE, DISTRICT: SOUTH, NEW DELHI.
CS No. 912/17
CNR No. DLST03-001569-2017
SH. NARAYAN KUMAR
S/o Late Sh. Bhagwan Das,
R/o 6/108, DDA Flats,
Madangir, New Delhi-110062 .....Plaintiff
Versus
1. THE CHAIRMAN
BSES Rajdhani Power Limited,
BSES Bhawan,
Nehru Place, New Delhi-110019
2. THE DY. GENERAL MANAGER,
Business Division (Khanpur),
BSES Rajdhani Power Limited,
Pul Praladpur,New Delhi-110044.
3. THE OFFICE OF MANAGER (B)
BSES Rajdhani Power Limited,
Pul Praladpur,New Delhi. ......Defendants
SUIT FOR MANDATORY INJUNCTION
DATE OF INSTITUTION : 25.08.2017
DATE OF FINAL ARGUMENTS : 20.03.2019
DATE OF PRONOUNCEMENT : 05.04.2019
FINAL DECISION : SUIT DECREED
LEARNED COUNSELS FOR THE PARTIES:
FOR THE PLAINTIFF : SH. SANDEEP SEHGAL
FOR THE DEFENDANTS : SH. VIRENDER
CS No. 912/17 Sh. Narayan Kumar vs. The Chairman, BSES Rajdhani power Ltd. Page 1 of 9
SUIT FOR MANDATORY INJUNCTION
JUDGMENT
1. Brief facts of the present suit as disclosed in the plaint are that plaintiff is a resident of H.No. 6/108, DDA Flats, Mandangir, New Delhi- 110062. Plaintiff purchased this property in 2010 and started living therein in 2013. This property had an electricity connection vide meter bearing no. 22855861 in the name of the previous owner Sh. Om Prakash which was changed to plaintiff's name in July 2013 vide a demand note for name change dated 01.07.2013. The electricity bill for 14.05.2013 and 14.06.2013 in the name of the previous owner and the bill for 16.08.13 and 16.09.133 in the name of plaintiff were raised. Plaintiff was regularly paying the electricity bills on time but all of a sudden he received a letter dated 23.05.2014 from defendant no. 3 stating that plaintiff has got his name changed by using the false information of the said property and requested to produce the original documents with complete chain of documents. The said letter was duly replied by plaintiff vide letter dated 09.07.2014. Thereafter, plaintiff received another letter dated 09.07.2014 from defendant no.3 stating that the suit property is in dispute therefore the name of the consumer has been reverted back to the previous registered consumer Sh. Om Prakash. Plaintiff was shocked to have received the next month's bill dated 15.09.2014 in the name of one Sh. Nigam Choudhary who has no connection with the suit property being neither the owner nor the occupier. Defendants unilaterally and without intimation changed the name from Sh. Om Prakash to Sh. Nigam Choudhary. Plaintiff made several complaints to defendant no. 2 to rectify the illegal change but it fell to deaf ears. Plaintiff even went to the Public Grievance Cell but yield no result. Plaintiff also sent letters dated CS No. 912/17 Sh. Narayan Kumar vs. The Chairman, BSES Rajdhani power Ltd. Page 2 of 9 27.09.2014, 22.07.2015 and 28.01.2016 to defendant no. 2. Plaintiff has been the occupier of this property since 2013 and duly paying the property tax. All the electricity bills are being paid regularly by plaintiff from 2013 till date. Defendants arbitrarily changed the names of registered consumer from plaintiff to the previous owners and then to one Sh. Nigam choudhary for some extraneous and inexplicable reasons. Defendants have performed an illegal act causing great stress to plaintiff. Defendants have flouted all laws and have no locus standi to decide the title ship of the property. Even as per Section 43 of the Electricity Act, defendants are duty bound to provide electricity connection to the owner or occupier of the premises. Plaintiff has been running from pillar to post to purge and rectify this illegal act and has no choice left but to approach the Hon'ble Court. Hence the present suit.
2. Plaintiff has prayed to pass the following reliefs in his favour and against defendants:-
(a) A decree of mandatory injunction thereby directing defendants to change the name of the electricity connection for the premises 6/108, DDA Flats, Madangir, New Delhi-110062 in plaintiff's name.
(b) Any other or further order(s), which this Hon'ble Court may deem fit and proper, in the interest of justice.
3. Defendants contested the suit by filing the written statement on the following grounds:
(a) Suit of plaintiff is devoid of any cause of action and liable to be rejected under Order VII Rule 11 CPC.
(b) Suit of plaintiff is not maintainable as plaintiff is trying to settle the dispute between him and Sh. Nigam Choudhary and defendants have unnecessarily been dragged in the CS No. 912/17 Sh. Narayan Kumar vs. The Chairman, BSES Rajdhani power Ltd. Page 3 of 9 present suit.
(c) Plaintiff has not approached the court with clean hands and made frivolous and perverse allegations against defendants. The apprehension of plaintiff is without any basis.
(d) The suit of plaintiff is bad for non-joinder of necessary party.
Sh. Nigam Choudhary and Sh. Om Prakash are a proper and necessary party to the present suit whom plaintiff has deliberately not impleaded in the suit.
(e) Plaintiff never disclosed that suit property is under dispute and on the basis of false information, plaintiff had got the name changed. As per the guidelines of the DERC, if it found at any stage that the connection was taken or the name change was done by providing false information or documents then defendants can take action as per law.
(f) A letter dated 23.05.2014 was sent to plaintiff stating that a representation has been received from Sh. Nigam Choudhary stating that he is the absolute owner of the suit property and not plaintiff and plaintiff was asked to provide the complete chain of ownership documents but plaintiff never turned up.
(g) When plaintiff did not approach defendants with chain of documents then there was no other option than to change the name in favour of Sh. Nigam Choudhary to avoid any unpleasant situation and to avoid unnecessary litigation. Merely a name change of water or electricity meter cannot declare or consider any person as owner of the property until he has proper documentation in his favour. If it is found at any stage that the documents produced by Sh. Nigam Choudhary are not genuine, the connection in his name shall be CS No. 912/17 Sh. Narayan Kumar vs. The Chairman, BSES Rajdhani power Ltd. Page 4 of 9 disconnected.
4. Plaintiff filed replication denying all the defenses taken by defendants and re-iterated and re-affirmed the contents of the plaint.
5. After completion of pleadings, the following issues were framed vide order dated 23.05.2018:-
(i) Whether plaintiff is entitled for relief of mandatory injunction as claimed in the plaint ? OPP
(ii) Relief.
6. Subsequent thereto, the matter was fixed for plaintiff evidence. In order to prove the case, plaintiff examined himself as PW-1 and tendered his examination-in-chief by way of affidavit, which is Ex.PW1/1, bearing his signatures at point A and B and also relied upon the following documents:
(A) Ex.PW1/2 (OSR) (Colly): Copy of electricity bills for 14.05.2013, 14.06.2013, 16.08.2013 and 16.09.2013 and the demand note dated 01.07.2013 for name change.
(B) Ex.PW1/3 (OSR): Letter dated 23.05.2014 addressed to BSES Rajdhani Power Ltd, Pul Prahaladpur.
(C) Ex. PW1/4(OSR): Copy of reply dated 17.06.2014. (D) Ex. PW1/5 (OSR): Copy of letter dated 09.07.2014. (E) Ex.PW1/6 (OSR): Copy of electricity bill dated 16.08.2014. (F) Ex.PW1/7(OSR): Copy of electricity bill dated 15.09.2014. (G) Ex.PW1/8 (Colly)(OSR): Letters sent to defendant no. 2 dated 27.09.2014, 22.07.2015 and 28.01.2016 and the correspondence with the Public Grievance Cell.
(H) Ex.PW1/9 (Colly) (OSR): Copies of property tax receipt, aadhar card, driving license and latest electricity bill bearing due date 16.08.2017.
CS No. 912/17 Sh. Narayan Kumar vs. The Chairman, BSES Rajdhani power Ltd. Page 5 of 97. Plaintiff was cross examined by learned counsel for defendant. Plaintiff Evidence was closed vide order dated 15.11.2018.
8. Subsequent thereto, the matter was fixed for defendant evidence. As per record, defendants did not opt to lead defence evidence and vide separate statement of Ld. Counsel for defendant, defence evidence was closed on 08.01.2019.
9. Subsequent thereto, the matter was fixed for final arguments, which were heard conclusively on 20.03.2019. After hearing final arguments, the matter was fixed for pronouncement of judgment.
10. The findings of the court on the issue framed are discussed as under:-
Issue: Whether plaintiff is entitled for relief of mandatory injunction as claimed in the plaint ? OPP
11. The onus to prove this issue was fixed upon plaintiff. In order to discharge the onus, plaintiff deposed in consonance with contents of plaint and exhibited all relevant documents as mentioned in para no.6. Through cross examination, defendants have tried to demonstrate that the suit property is disputed property about which plaintiff did not disclose while getting the connection transferred in his name therefore, defendants were constrained to change the names of registered consumer as per the documents produced before them.
12. The Hon'ble Superior Courts in Catena of judgments have held that the electricity being an essential amenity must not be denied to any occupier or owner of a property merely because the property is under litigation except otherwise barred by any law or by the orders of Hon'ble Superior Courts, once he is willing to comply with all the formalities for the same. Section 43 of the Electricity Act provides that the owner or occupier CS No. 912/17 Sh. Narayan Kumar vs. The Chairman, BSES Rajdhani power Ltd. Page 6 of 9 of the premises is entitled to get electricity connection.
13. Defendants have argued that at the time of applying for connection, plaintiff concealed that suit property is under dispute. In this regard, it is observed that plaintiff/PW-1 in cross examination specifically deposed that he has filed a suit for specific performance against Sh. Nigam Choudhary on 23.05.2013. In the said suit, a local commissioner was appointed who reported and confirmed plaintiff's possession over the suit property vide report dated 28.05.2013 and before 01.07.2014, he approached defendants and filed application along with property papers and LC report for transfer of electricity connection in his name, which was allowed. It is on record that defendants had transferred the connection in plaintiff's name and also raised bills which plaintiff paid as and when demanded. Defendants have not adduced evidence to prove on record that Sh. Nigam Choudhary had sent a representation stating that he is the absolute owner of the suit property and not plaintiff; plaintiff was asked to provide the complete chain of ownership documents but plaintiff never turned up; when plaintiff did not approach defendants with chain of documents then there was no other option than to change the connection in the name of Sh. Nigam Choudhary to avoid unpleasant situation and unnecessary litigation. In cross examination, plaintiff specifically deposed that defendants did not send him any notice before change of connection in the name of Sh. Nigam Choudhary.
14. The possession of plaintiff in the suit property is not disputed by defendants. The possession of plaintiff in the suit property is further established through the exhibited documents. Plaintiff specifically deposed and exhibited documents do show that he approached defendants several times for re-transfer of connection in his name with his willingness to comply CS No. 912/17 Sh. Narayan Kumar vs. The Chairman, BSES Rajdhani power Ltd. Page 7 of 9 with all the formalities but of no avail.
15. Merely because a litigation in respect of suit property is pending adjudication does not disentitle plaintiff from applying connection in own name as the claims of plaintiff and Sh. Nigam Chaudhary are yet to be adjudicated upon and final findings are yet to be given by the adjudicating court which is likely to take some time. Therefore, plaintiff must not be made to wait till then for having electricity connection in own name.
16. Plaintiff has thus discharged the onus to prove his case and suit of plaintiff deserves to be decreed in his favour and against defendants subject to certain conditions enumerated in the next para. By doing so, the court wants to ensure that plaintiff does not take any undue advantage of this order for the purpose of any litigation in respect of the suit property. The issue in hand is decided in favour of plaintiff and against defendants accordingly.
RELIEF :
17. In view of findings on the issue framed, the suit of plaintiff is decreed in his favour and against defendants on the following terms:-
(a) Defendant shall change the electricity connection installed in the suit property i.e. H.No. 6/108. DDA Flats, Madangir, New Delhi-110062 in the name of plaintiff after compliance of necessary formalities;
(c) Plaintiff shall clear all the outstanding electricity dues, if any; shall pay the bill regularly on or before the due date and; shall also comply with all the other terms and conditions necessary for enjoying the electricity supply;
(d) Plaintiff shall not use installation of electricity connection in CS No. 912/17 Sh. Narayan Kumar vs. The Chairman, BSES Rajdhani power Ltd. Page 8 of 9 his name in the suit property for claiming his ownership before any court of law or any other authority;
18. It is clarified that nothing stated in this order is expression on the merits of the controversy and disputes in respect of suit property in any of the case pending adjudication before any court of law or authority.
19. Decree Sheet be prepared accordingly.
20. File be consigned to Record Room after compliance of necessary formalities.
(Mona Tardi Kerketta) JSCC-cum-ASCJ-cum-GJ (South), Saket Courts, New Delhi.
Announced in the open Court today i.e. 05.04.2019. MONA TARDI KERKETTA Digitally signed by MONA TARDI KERKETTA Date: 2019.04.15 17:40:14 +0530 CS No. 912/17 Sh. Narayan Kumar vs. The Chairman, BSES Rajdhani power Ltd. Page 9 of 9