Delhi High Court
Super Auto Centre vs Bses Rajdhani Power Ltd. on 2 February, 2011
Author: V.K. Jain
Bench: V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 28.01.2011
Judgment Pronounced on: 02.02.2011
+ CS(OS) No. 298/2004
SUPER AUTO CENTRE .....Plaintiff
- versus -
BSES RAJDHANI POWER LTD. .....Defendant
Advocates who appeared in this case:
For the Plaintiff: Ms Radhika Chandrasekhar
For the Defendant: Mr Sunil Fernandes, Standing
Counsel with Mr Deepak Pathak
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? NO
2. To be referred to the Reporter or not? NO
3. Whether the judgment should be reported NO
in Digest?
V.K. JAIN, J
1. This is a suit for declaration and permanent
injunction. The plaintiff is the registered consumer of the
defendant in respect of electricity supplied through
K.No.009/0888987, installed at its petrol pump at Ring
Road, Sriniwas Puri, New Delhi.
2. It is alleged that on 11.4.2003, some officials of the
CS(OS)No. 298/2004 Page 1 of 14
defendant came to the premises of the plaintiff and took
down notes about the machines and equipments installed
there. A show-cause notice was thereafter served on the
plaintiff wherein it was alleged that load of 89.101 KW was
found connected as against sanctioned load of 51.35KW. It
was also alleged in the notice that shunt capacitor was not
installed and both half seals were not installed in respect of
meter No.4H9701519. The plaintiff replied to the show-
cause notice. This was followed by yet another notice
bearing No.AE(ENF)/S/2002-2003/2098/297 dated
31.5.2003. A writ petition being CW No.4147/2003 was
filed by the plaintiff. A re-inspection was also carried out on
30.12.2003 and at that time the connected load was found
to be 48.59 KW. Vide order dated 13.8.2003, passed in the
writ petition, this Court directed the defendant to give a
personal hearing to the petitioner on 27.8.2003. After
giving a fresh hearing to the petitioner, a speaking order
was passed on 10.09.2003, rejecting the objections of the
petitioner and holding that he was duty bound to pay the
full bills raised under relevant tariff provisions, besides LPF.
Noticing that a speaking order had been passed after giving
hearing to the petitioner, this Court permitted the petitioner
CS(OS)No. 298/2004 Page 2 of 14
to withdraw the writ petition with liberty to file appropriate
proceedings against the order dated 5.9.2003 in accordance
with law. The plaintiff has now filed this suit challenging
the speaking order dated 10.9.2003 and has sought a
declaration that the aforesaid order is null and void. He has
also sought an injunction restraining the defendant from
disconnecting the electricity being provided to it.
3. The defendant has contested the suit and has
taken preliminary objections that (i) the suit is not
maintainable in view of Section 145 of Electricity Act; (ii)
this Court does not have pecuniary jurisdiction to try the
suit and; (iii) the suit is not properly valued for the purpose
of pecuniary jurisdiction. On merits, it is alleged that
during inspection, which was carried out by the
Enforcement Team, it was found that the plaintiff had
tampered with seals of the meter. It is also alleged that a bill
dated 17th June, 2003 of Rs 16,07,168/- was raised against
the plaintiff.
4. The following issues were framed on the pleadings
of the parties:-
"1. Whether the suit filed by the plaintiff for declaration and
permanent injunction is maintainable in view of Section
CS(OS)No. 298/2004 Page 3 of 14
145 of Electricity Act, 2003? OPP
2. Whether this court has pecuniary jurisdiction? OPP
3. Whether the suit is property valued for the purpose of
pecuniary jurisdiction? OPP
4. Whether the plaintiff was not indulging in Dishonest
Abstraction of Energy on 11.04.2003 when inspection was
carried out at its premises by the defendant? OPP
5. Whether the Order No.D/AGM/Enf./C433 dated
10.09.2003 not correct? OPP
6. Whether the plaintiff is entitled to the decree of
declaration as prayed for in the plaint? OPP
7. Whether the plaintiff is entitled to the relief of permanent
injunction as prayed for in the plaint? OPP
8. Relief."
5. Vide order dated 20th October, 2009, Issue Nos. 1
to 3 were treated as preliminary issues.
Issue No. 1
6. Section 145 of Electricity Act reads as under:
"Civil Court not to have jurisdiction -
No Civil Court shall have 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
CS(OS)No. 298/2004 Page 4 of 14
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.."
7. In B.L. Kantroo Vs. BSES Rajdhani Power Ltd.
154 (2008) Delhi Law Times 56, the plaintiff/appellant had
filed a civil suit, seeking declaration that the bill issued by
the respondent/defendant was false and illegal and had also
sought consequential relief of injunction against
disconnection of electricity supply. He had also sought a
declaration that he was not guilty of theft of electricity and
the inspection reports/speaking orders of the defendant
were illegal and void.
8. The plaint was rejected by the learned Single Judge
on the ground that the matter false within the jurisdiction of
Assessing Officer under Section 126 or/and Adjudicating
Officer appointed under the Act. In that case also before
filing the suit, the plaintiff had filed a writ petition being
WP(C) No. 5124/2007 to give an opportunity of hearing to
him, which was disposed of with a direction to pass
speaking order and not to disconnect the electricity supply
of the plaintiff. This was followed by another writ petition
CS(OS)No. 298/2004 Page 5 of 14
which was disposed of with directions to the
plaintiff/petitioner to approach Civil Court or any other
forum in accordance with law.
9. Noticing the provisions contained in Section 145 of
Electricity Act, the Court, inter alia, observed as under:
"the jurisdiction of the civil court is
excluded for entertaining any suit or
proceeding in respect of any matter which
the assessing officer referred to in section
126 or the appellate authority referred to
under section 127 or adjudicating officer
appointed under this act has to
determine. It is further expressly provided
that no injunction shall be granted by
any court or any authority in respect of
any action taken or to be taken in
pursuance of powers conferred or under
this Act. Therefore, there is express
provision for excluding the jurisdiction of
the civil court in respect of the matters,
which the assessing officer has to decide
under section 127 of the Act.
Disagreeing with the learned Single Judge and
holding that the matter involved in the suit does not fall
within the jurisdiction of the Assessing Officer under
Section 126 and 127 of Electricity Act, the Court further
observed as under:-
It is apparent that the cases of theft
under section 135(1) involve mens rea.
CS(OS)No. 298/2004 Page 6 of 14
The jurisdiction of civil court is not
barred but the power to try offences
punishable under section 135 to 139 is
conferred exclusively on the Special Court
constituted under section 153 of the Act
and the provisions of sub-section (5) of
section 154 specifically invest Special
Court with the jurisdiction to determine
any dispute regarding the quantum of
civil liability in theft cases whether or not
the allegation of theft is disputed, is still
entitled to make such a challenge to the
disputed bill before the Special Court,
even in cases where no criminal
complaint is filed against the consumer
and the amount of civil liability so
determined shall be recovered as if it
were a decree of a civil court and it can
act as civil court as well as criminal court
while conducting the cases before it.
23. In the present case by speaking order
dated 15th January, 2008 passed by the
HOD-Enforcement, a case of theft has
been registered against the appellant on
the basis of the checking report given by
the officers of the defendant. Therefore, it
has to be decided as to whether a civil
suit is maintainable to challenge such a
bill given on the basis of purported theft.
In other words, the question is whether
maintainability of such proceeding at the
instance of the consumer as discussed
above necessarily excludes the
jurisdiction of Civil Court.
It is true that ordinarily, the Civil Court
has jurisdiction to go into and try the
disputed questions of civil nature, where
CS(OS)No. 298/2004 Page 7 of 14
the fundamental fairness of procedure
has been violated. By necessary
implications, the cognizance of the civil
court has been excluded. As a
consequence, in the present case, the
Civil Court shall not be justified in
entertaining this suit and giving the
declaration without directing the party to
avail of the remedy provided under the
Act. Therefore, by necessary implications,
the appropriate competent authority
should hear the parties, consider their
objections and pass the reasoned order,
either accepting or negativing the claim.
Of course, it is not like a judgment of a
civil court. Civil court has no jurisdiction
by necessary implication to entertain suit
for declaration and injunction against
specially constituted Forum in view of the
specific provisions found in the Electricity
Act [(1997) 5 SCC 120].
Although there is no specific provision in
Section 145 of the Act for exclusion of
jurisdiction of Civil Court to entertain any
proceeding in respect of any matter which
the Special Court is empowered by or
under the Act to determine, we are of the
view that any dispute about civil liability
in theft cases is impliedly excluded from
the jurisdiction of civil court in view of
the provisions of Section 153 and 154 of
the Act wherein Special Court has got the
jurisdiction to determine any dispute
regarding the quantum of civil liability
specifically in theft cases and the said
court can act as civil court as well as
criminal court while conducting the cases
before it.
CS(OS)No. 298/2004 Page 8 of 14
10. In BSES Rajdhani Power Ltd. vs. State N.C.T. oF
Delhi & Anr., 2010 AD DEL. 73, this Court, while dealing
with the question as to whether BSES Rajdhani Power Ltd.,
which was the complainant in those cases was required to
pay Court fee on the amount of the Bill, inter alia, observed
as under:
"Section 154 of Electricity Act which
prescribes the procedure and power of
special court does not say that the special
court, while determining civil liability u/s
154(5) of the Act would adopt the
procedure prescribed in the Code of Civil
Procedure for trial of suits. It does not
even say that the special court, while
determining civil liability u/s 154(5) of
the Act shall be deemed to be a civil
court. Use of the words as if it were a
decree of the civil court in Section 154 (5)
of Electricity Act is a strong indicator of
the legislative intent and clearly shows
that the determination of civil liability by
special court by itself will not be a
„decree‟ passed by the civil curt and it is
only by fiction of law that such a liability
would be recovered as if it were a decree
of civil court. Had the intention of the
legislature been that the special court
while dealing with a request for
determination of civil liability, should
adopt the procedure prescribed for trial of
a civil suit, it would have stated so either
expressly or by necessary implication and
it would not have merely said that the
amount of civil liability shall be recovered
as if it were a decree of civil court. The
legislature would then have said that the
CS(OS)No. 298/2004 Page 9 of 14
special court while determining such a
liability would act as a civil court or that
the determination made by it shall be
deemed to be the decree of a civil court.
In fact, Section 154(5) of Electricity Act
casts an obligation upon the special court
to determine the civil liability, even if no
prayer for determination of such a
liability is made by either party.
Therefore, even if no request had been
made by the petitioner for determination
of civil liability, the special court would
still have to carry out the legislative
mandate given to it u/s 154(5) of the Act.
....Taking into consideration the
proposition of law enunciated by the
Hon‟ble Supreme Court in the case of
Paramjeet Singh Patheja (Supra), special
courts cannot be deemed to be civil court,
the same having been specially set up
u/s 153 of the Special Courts Act
primarily for the purpose of trial of
offence punishable U/ss 135 to 140 and
Section 150 of Electricity Act. These
special courts are not regular courts
envisaged under Article 136 of the
Constitution irrespective of the fact that
the person who can be appointed as a
Judge of a Special Court needs to be an
Additional District & Sessions Judge
immediately before his appointment as a
Judge of a Special Court. In any case, in
the absence of any specific statutory
provision to this effect, a court set up
primarily for the purpose of trial of the
criminal offences cannot be considered to
be a civil court within the meaning of
Article 1 of Schedule 1 of Court Fee Act.
Section 26(2) of Code of Civil Procedure
provides that in every plaint, facts shall
CS(OS)No. 298/2004 Page 10 of 14
be proved by affidavit. On the other
hand, Section 154 of Electricity Act, 2003
provides that the special court may try
the offences referred to in Section 135 to
140 and Section 150 in a summary way
in accordance with the procedure
prescribed in the Code of Criminal
Procedure and the provisions of Section
263 to 265 of the Code of Criminal
Procedure shall, so far as may be, apply
to such trial. It does not prescribe any
separate procedure for determination of
civil liability. The Electricity Act does not
envisage application of two procedures,
by special court, one for the purpose of
trial of offences referred to in Section 135
to 140 and Section 150 of the Act and the
other for determination of civil liability
u/s 154(5) of the Act. Had the legislative
intent been that for the purpose of
determination of civil liability, the special
court would adopt the procedure
prescribed in the Code of Civil Procedure
for trial of a suit, it would have expressly
stated so in the Act. In any case this is
not the case of the respondents that the
Special Courts, are conducting two
independent proceedings, one in
accordance with the procedure prescribed
in Cr.P.C. for trial of the offences of which
the complaint has primarily been filed
and the other in accordance with the
procedure prescribed in CPC for trial of
civil suits, for determining civil liability
u/s 154(5) of Electricity Act.
The scheme of the Code of Civil Procedure
for trial of a suit instituted by presenting
a plaint is altogether different from the
procedure prescribed in Section 154 of
Electricity Act for trial of offences u/s 135
to 140 and 150 of the Act. Order V of the
Code of Civil Procedure provides the
CS(OS)No. 298/2004 Page 11 of 14
mode of service of summon in a civil suit.
Order VIII provides for filing of a written
statement by the defendant within 30
days from the date of service of summons
upon him. If the written statement is not
filed within the prescribed period, the
court is required to pronounce a
judgment against the defendant as
provided in Rule 10 of Order VIII of the
Code of Civil Procedure. Order IX of the
Code of Civil Procedure for dismissal of a
suit, if the plaintiff does not appear when
the suit is called on for hearing. Rule 6
of Order IX provides for making an ex-
parte against the defendant if he does not
appear despite service of summon upon
him. A suit dismissed in default under
Rule 8 of Order IX precludes the plaintiff
from brining a fresh suit on the same
cause of action. The final determination
of a civil suit results in passing of a
decree. No decree, however, is envisaged
in Section 154(5) of Electricity Act.
The entire procedure for trial of a civil
suit instituted by presentation of a plaint
as prescribed in the Code of Civil
Procedure is altogether different from the
procedure prescribed for dealing with the
complaints in respect of the offences
referred to in Section 135 to 140 and
Section 150 of Electricity Act. Neither
adoption of such a procedure has been
prescribed by Section 154 of Electricity
Act nor is such a procedure otherwise
implicit in that Act.
The interpretation given by the Hon‟ble
Supreme Court in the case of Gujarat
Industrial Finance Corpn. (Supra),
followed by this court in Prakash Playing
Cards Manufacturing Co. (Supra) equally
applies to Section 154 (5) of Electricity
CS(OS)No. 298/2004 Page 12 of 14
Act, 2003. The view being taken by me
also finds full support from the decision
of the Hon‟ble Supreme Court in,
Paramjit Singh Patheja (Supra),
interpreting Section 15 of Arbitration Act
of 1899 and Section 36 of Arbitration and
Conciliation Act, 1996.
11. The facts in the case of B.L. Kantroo (supra)
were identical to the facts of the case before this Court. In
this case, admittedly, a bill No. 3315 dated 17 th June, 2003
has been raised by the defendant against the plaintiff. In
this case also, the plaintiff has sought a declaration that the
speaking order dated 10th September, 2003 is null and void
and cannot be enforced. In this case also, the plaintiff is
seeking injunction against disconnection of the electricity.
The issue before the Division Bench in that case was as to
whether the jurisdiction of Civil Court in respect of a suit
seeking a declaration that the bill raised by the defendant
was illegal, the plaintiff was not guilty of theft of electricity
and the inspection reports/speaking orders were illegal and
also seeking injunction against disconnection of electricity
supply was barred or not. The same is the issue involved in
the case before this Court. The matter before this Court is
therefore squarely covered by the decision in the case of
CS(OS)No. 298/2004 Page 13 of 14
B.L. Kantroo.The issue is decided in favour of defendant
and against the plaintiff.
Issues No. 2 and 3
12. In view of my findings on issue No. 1, I need not
give any finding on these issues.
ORDER
In view of my finding on issue No. 1, the plaint is liable to be returned to the plaintiff for being presented to the Court in which the suit should have been instituted. The plaintiff is intimated accordingly and is given 15 days‟ time to file appropriate application under Order 7 Rule 10A (2) of the Code of Civil Procedure. If no such application is filed, the plaint be returned to the plaintiff alongwith a brief statement of reasons for returning the same.
(V.K. JAIN) JUDGE FEBRUARY 02, 2011 bg/'sn' CS(OS)No. 298/2004 Page 14 of 14