Delhi District Court
North Delhi Power Limited (Now) vs Sh. Aseem Gupta on 26 July, 2014
ID No.02401C0570202012
IN THE COURT OF SHRI PANKAJ GUPTA, ADDL. DISTRICT
JUDGE (CENTRAL07), TIS HAZARI COURTS : DELHI.
RCA NO.53/2013
North Delhi Power Limited (Now)
Tata Power Delhi Distribution Ltd.
Through its CEO
Hudson Line, Kingsway Camp,
Delhi - 110 009. ............. APPELLANT
VERSUS
Sh. Aseem Gupta
S/o Sh. D D Gupta,
R/o 2D, MIG, DDA Flats,
Gulabi Bagh, Delhi. ............ RESPONDENT
Date of Institution : 07.08.2013
Date when the case reserved for order : 26.07.2014
Date of Order : 26.07.2014
J U D G M E N T
1. This appeal is preferred by the appellant against the judgment and decree dated 04.07.2013 passed by the Ld. Civil Judge (Central13) Del hi (the trial court) whereby the suit filed by the respondent was decreed in his favour and against the appellant. For the sake of convenience, the appel lant and the respondent shall be referred to as per their ranks in the plaint as the defendant and the plaintiff respectively.
1/11 North Delhi Power Ltd. vs. Aseem Gupta
2. Brief facts relevant for disposal of the present appeal are that the plaintiff filed the suit for declaration, permanent injunction and mandatory injunction against the defendant on the ground that he was the registered consumer of electricity connection K.no. 352001133776 sanctioned for non domestic purpose, installed at premises no. 2D, MIG Flats, Gulabi Bagh, Delhi. It was stated that the plaintiff was shocked to receive the Dishonest Abstraction of Energy (DAE) bill for Rs.2,19,042/. On inquiry, the plaintiff came to know that the said bill was based upon the inspection dated 25.05.2006 allegedly carried out by the officials of the defendant when some seals of the electricity meter were found tempered. It was stated that no inspection was carried out on 25.05.2006 or thereafter nor copy of the same was supplied to the plaintiff. Further, no show cause notice or personal hearing was given by the defendant to the plaintiff before issuing the impugned order. Therefore, it was prayed that the impugned bill be declared null and void; the defendant be directed to cancel the impugned bill and also be restrained from disconnecting the electricity connection.
3. Vide the impugned judgment and the decree, the trial court decreed the suit in favour of the plaintiff. Being aggrieved by the impugned judgment and the decree, the defendant preferred the present appeal.
4. Notice of the appeal was issued to the plaintiff. The plaintiff contested the appeal and prayed for its dismissal.
5. I have heard the ld. counsels for the parties and have perused the 2/11 North Delhi Power Ltd. vs. Aseem Gupta material available on record including the trial court record.
6. Admittedly, the plaintiff was granted the subject electricity connection and the defendant raised the impugned bill of DAE upon the plaintiff.
7. Main case of the plaintiff before the trial court was (1) the defendant had not carried out an inspection on 25.05.2006; (2) the defendant had not supplied the inspection report; (3) the defendant had not issued the show cause notice nor gave an opportunity of being heard before raising the impugned bill; and (4) the plaintiff had not tempered the electricity meter.
8. Per contra, case of the defendant was that the impugned bill was raised following the principle of natural justice and the inspection was duly carried out on 25.05.2006 and following discrepancies were found at the site:
(i) connected load of 8.461 kw was found against the sanctioned load of 4 kw.
(ii) both meter box seals were found tempered.
9. During the course of the arguments, counsel for the defendant pleaded that it was a case of DAE. In the written arguments filed by the defendant before the trial court, the defendant raised an objection that the trial court i.e. the civil court lacked inherent jurisdiction to entertain the present suit and that being a legal objection could be taken up at any stage.
3/11 North Delhi Power Ltd. vs. Aseem Gupta However, while passing the impugned judgment and decree, the trial court had not looked into the said objetion.
10. Perusal of the impugned judgment and decree reveals that the trial court had not looked into the legal objection as to lack of inherent jurisdiction raised by the defendant.
11. It is a settled law that an objection challenging the inherent jurisdiction of the court can be raised at any stage. Now the question arises whether the trial court being the civil court lacked the inherent jurisdiction to entertain the suit. The impugned bill Ex.PW 1/A reveals that it was issued under the category DAE. Counsel for the defendant pleaded that in view of section 21 of CPC, the said objection is not sustainable at this stage. Section 21 of CPC deals with objections as to the pecuniary jurisdiction and the territorial jurisdiction and not with the objection as to lack of inherent jurisdiction. Therefore, the said plea is not sustainable in law. In the judgment passed by the Hon'ble Delhi High Court in case titled as "BL Kantroo vs. BSES RPL" reported in 154 (2008) DLT 56 (DB), it was held: "29. It is true that ordinarily, the Civil Court has jurisdiction to go into and try and disputed question of civil nature, where 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 4/11 North Delhi Power Ltd. vs. Aseem Gupta 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].
"30. 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 Sections 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.
12. As discussed above, the present case is a case of DAE and is covered under section 135 of Electricity Act, 2003. In the present suit, the plaintiff disputed his civil liability to pay the amount under the impugned bill. As held in the above judgment, any dispute about civil liability in theft case is impliedly excluded from the jurisdiction of civil court in view of the provisions of Sections 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. However, in the present case, trial court had not considered the said objection raised by the 5/11 North Delhi Power Ltd. vs. Aseem Gupta defendant in the written arguments. At best, it can be held that the said objection was raised by the defendant at belated stage. But the fact remains that such kind of objection can be raised at any stage.
13. In view of the foregoing judgment, it can be held that the trial court lacked the inherent jurisdiction to entertain the present suit. Therefore, the impugned judgment and decree passed by the trial court are not sustainable in law. However, I propose to decide the appeal on merit also.
14. On merits, counsel for the plaintiff pleaded that no inspection was carried out on 25.05.2006 and while issuing the impugned bill, the defendant violated the principle of natural justice.
15. Perusal of the impugned judgment and decree reveals that the trial court had not given any finding on the grounds raised by the plaintiff to challenge the impugned bill. Despite that the trial court held that due to discrepancies as pointed out by the defendant, no case of DAE could be booked against the plaintiff and some artificial means should have been found to have been employed by the plaintiff to manipulate the meter. Since no such averment was made nor proved, hence, no case of DAE could have been booked against the plaintiff. Consequently, the suit was decreed in favour of the plaintiff and against the defendant.
16. Before the trial court, the plaintiff, in order to prove his case, examined himself as PW1. In his cross examination, he admitted that he 6/11 North Delhi Power Ltd. vs. Aseem Gupta was the registered consumer of the subject electricity connection since beginning and had the sanctioned load of 4KW for non domestic purpose. He also admitted the receipt of impugned bill. Regarding inspection dated 25.05.2006, he deposed that when the inspection was carried out by the officials of defendant, he was not present. He denied the suggestion that at the time of inspection, the connected load was found 7.961 KW against the sanctioned load of 4 KW and that any person namely, Kameshwar was present at the time of inspection of the said premises. As such, the plaintiff admitted that the officials of the defendant carried out the inspection of the electricity meter on 25.05.2006. Regarding receipt of show cause notice and inspection report, he showed his ignorance about receipt thereof. As such, an adverse inference can be drawn against the plaintiff.
17. The defendant examined Mr. M S Girwan, as DW1, who proved the speaking order dated 06.01.2007 Ex.DW 1/1. In his cross examination, he deposed that before passing the speaking order, he had gone through the inspection report, show cause notice, personal hearing given to the representative of the plaintiff, unsigned representation filed on behalf of the plaintiff and the consumption pattern. He specifically deposed that on 01.06.2006, when the matter was fixed for personal hearing, none appeared for the plaintiff. However, on 03.06.2006 and 19.06.2006 representative of the plaintiff appeared before him. He also deposed that he conducted the hearing dated 19.06.2006 when Sh. Kameshwar Prasad, representative of the plaintiff attended the hearing. A suggestion was given that Mr. Manish and Mr. Kameshwar Prasad were neither the representative nor the employee of the plaintiff. However, no suggestion to the contrary was given about the 7/11 North Delhi Power Ltd. vs. Aseem Gupta date of hearings fixed by the defendant and the plaintiff's knowledge about that. He deposed that one representation was made by the plaintiff on 30.06.2006. No suggestion to the contrary was given. Simultaneously, he deposed that as per his knowledge, no second representation dated 01.07.2006 was received by him. One suggestion was given that he had not considered the representation of the plaintiff at the time of passing the speaking order. Firstly, the said suggestion was contrary to the case of the plaintiff that he was not given an opportunity of being heard. Secondly, this shows that the plaintiff had the knowledge of the speaking order before institution of the present suit. In view thereof, it can be held that the plaintiff made the representation dated 30.06.2006 and tried to make a case that he made a second representation on 01.07.2006. The plaintiff has not filed that representation on the court record. But in view thereof, it can be held that the plaintiff had the knowledge of date of personal hearing and he availed those opportunities and also made the representations.
18. The defendant also examined Shri Ram Prasad as DW2. In his cross examination, he deposed that during the relevant period, his duty was to detect the theft of electricity by tempering the meter DAE or DT. He deposed that one Mr. Pradeep, a representative of plaintiff was present at the time of inspection at the site . In response to a question, he deposed that neither he nor any other member of the inspection team asked Pradeep to call the plaintiff at the time of inspection nor asked him to show his identity proof or authority letter. As such, the plaintiff admitted that the defendants carried out the inspection on 25.05.2006 and one Pradeep was present at that time.
8/11 North Delhi Power Ltd. vs. Aseem Gupta
19. A suggestion was given to DW2 that signatures on the inspection report and show cause notice were only acknowledgment of the documents and not the admission of the contents thereon. The said suggestion shows that the inspection report and the show cause notice were duly received by the plaintiff. In response to a suggestion, he deposed that the meter was found installed below the staircase of the flat. This also reveals the knowledge of DW2 about the subject premises and place of installation of the electricity meter and he could not have said so unless and until he would have carried out the inspection on 25.05.2006 because it was no where the case of the plaintiff that he visited the premises on any other date.
20. In cross examination of DW1 and DW2, the plaintiff tried to point out that there was some discrepancies in mentioning the load found at the time of inspection i.e. 7.961 KW and the load mentioned in the speaking order i.e. 8.461 KW. Both the witnesses deposed that the load of 7.961 KW was mentioned due to inadvertence while the correct load was 8.461 KW. No suggestion to the contrary was given. Further, the fact remains that the load found was much higher than the load sanctioned i.e. 4 KW.
21. From the testimonies of PW1, DW1 and DW2, it can be held that the defendant carried out the inspection on 25.05.2006 in the presence of the representative of the plaintiff and found certain discrepancies and the tempered meter. The defendant supplied the inspection report to the plaintiff and also issued the show cause notice to the plaintiff which was duly received by him. The defendant gave personal hearing to the plaintiff which were 9/11 North Delhi Power Ltd. vs. Aseem Gupta attended and the plaintiff also filed the written submissions. Before passing the speaking order, the said representations were considered by the competent authority. As such, it can be held that the defendant followed the principle of natural justice before raising the impugned bill.
22. In WS, inspection report Ex.DW 2/1, joint inspection report Ex.DW 2/2 and show cause notice Ex.DW 2/3, the discrepancies found were specifically mentioned. As discussed above, DW1 specifically deposed that before passing the speaking order, he read the consumption pattern. No evidence was led by the plaintiff to rebut the findings given in the inspection report and the speaking order.
23. In the judgment passed by the Hon'ble Delhi High Court in "NDPL vs. Bhasin Motors Pvt. Ltd." reported in 2013 (199) DLT 35, it was held that mere tempering of the electricity meter is itself a conclusive proof of tempering in absence of any plausible explanation. In the present case, as per report, the meter was found tempered. The plaintiff failed to rebut the same or gave any plausible explanation for the same. Therefore, in view of the foregoing judgment, it can be held that the finding of tempering of the electricity meter is the conclusive proof of tempering of the meter. Hence, the finding given by the trial court to that effect are not sustainable in law.
24. As discussed above, the plaintiff had the knowledge of inspection report and speaking order before the institution of the suit. However, in the suit, the plaintiff completely remained silent about the speaking order dated 06.01.2007. The plaintiff neither challenged the inspection report nor the 10/11 North Delhi Power Ltd. vs. Aseem Gupta speaking order. As such, the same have attained finality. Therefore, the impugned bill which was raised on that basis could not have been set aside without setting aside the inspection report and the speaking order which was neither prayed for by the plaintiff nor done by the trial court. Therefore, even otherwise, the impugned judgment and decree are not sustainable in law.
25. In view of the foregoing discussions, I am of the opinion that there exists infirmity in the impugned judgment and the decree. Therefore, the appeal is allowed. I hereby set aside the judgment and decree dated 04.07.2013 passed by the trial court. Consequently, the suit filed by the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly. Trial Court record be sent back along with copy of this order.
Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT, Today i.e. on 26th Day of July, 2014.
(PANKAJ GUPTA)
ADJ(CENTRAL07)/DELHI
26.07.2014
11/11 North Delhi Power Ltd. vs. Aseem Gupta