Delhi District Court
B.S.E.S. Rajdhani Power Limited vs Sh. J.J. Tyagi on 4 April, 2007
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IN THE COURT OF SMT. PINKI ADDITIONAL DISTRICT
JUDGE : DELHI
MCA 37/05
IN THE MATTER OF:
1. B.S.E.S. Rajdhani Power Limited,
Corporate Legal and Enforcement Cell,
Opp. Ahuja Park, Near CPWD Office,
Behind Police Station,
Andrews Ganj,
Delhi.
2. Sh. A.K. Tyagi, Business Manager,
B.S.E.S. Rajdhani Power Limited,
District Vikaspuri.
3. Sh. Anil Kumar (Inspector)
B.S.E.S. Rajdhani Power Ltd.,
District Vikaspuri, District Centre,
Janakpuri,
New Delhi. .....Appellants
Versus
Sh. J.J. Tyagi,
R/o WZ-21, First Floor,
Village Budhela, Vikas Puri,
New Delhi.
And
Also at
Chamber No. T-31, Tehsil Lane,
Tis Hazari Courts,
Delhi-110054. .....Respondents
Date of Institution: 15.04.2005
Date of Order: 04.04.2007
Contd.....
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ORDER
1. Aggrieved by impugned order passed by Ld. Civil Judge on 07.04.2005 vide which interim injunction application under Order XXXIX Rule 1&2 was allowed, the present appeal has been filed by appellant/defendant on 15.04.2005.
2. I have heard Sh. Karan Bharihog, Advocate, Ld. counsel for appellant/defendant and Sh. S.B. Goel, Advocate Ld. Counsel for respondent/plaintiff. I have also carefully perused the record, the trial court record and the authorities cited at bar. I have also perused the impugned order. I have also carefully gone through the written submissions filed on behalf of respondent/plaintiff on 25.08.2005 and written arguments filed on 19.03.2007. I have given my considerable thought to the submissions putforth by Contd.....
-3-learned counsel for parties.
3. Ld. counsel for appellant/defendant has relied upon the following authorities:
1. Mrs. Vijay Srivastava Vs. M/s Mirahul Enterprises and Others, AIR 1988 Delhi 140
2. The University of Bihar and Another Vs. Rajendra Singh, AIR 1978 Patna 144
3. Nandan Pictures Ltd. Vs. Art Pictures Ltd and Others, AIR 1956 Calcutta 428
4. Dorab Cawasji Warden Vs. Coomi Sorab Warden and Others, (1990) 2 Supreme Court Cases 117
5. Metro Marins and Another Vs. Bonus Watch Co. (P) Ltd. And Others, (2004) 7 Supreme Court Cases 478
6. Mrs. Madhu Garg & Another Vs. North Delhi Power Ltd., in LPA No. 223-24 of 2006 passed on 22.03.2006 by Hon'ble Chief Justice, Markendy Katzu and Hon'ble Mr. Justice Madan B. Lokur , Judge, Delhi High Court Contd.....-4-
4. Ld. counsel for respondent/plaintiff has relied upon the following authority:
1. Vardhman Properties Ltd. Vs. BSES Rajdhani Power Ltd., and Another, Order dated 05.10.2006 passed by Hon'bleMr.
Justice S. Ravindra Bhat, Judge Delhi High Court in Civil Writ Petition No. 14876/2006 and CM No. 11740/2006
5. When the oral arguments were addressed learned counsel for respondent/plaintiff has not referred to any authority except authority cited above and matter was fixed for orders. In the mean time written arguments on behalf of respondent/plaintiff have been filed. I have gone through the order dated 05.10.2006 also.
6. Regarding the civil liability of user for making payment the recent judgement of our own High Court which has discussed the various provisions of law as well as the various authorities. Judgement titled Madhu Garg and Anr. V. North Contd.....
-5-Delhi Power Ltd., MANU/DE/115/2006 is the recent judgement passed on 22.03.2006 by Hon'ble Mr. Justice Markandeya Katju, Chief Justice ( As his Lordship then was) and Hon'ble Mr. Justice Madan B. Lokur, Judge Delhi High Court.
7. Vide Para-13 of this judgement it has been held that:
''The learned counsel for respondents has sought to distinguish the decision of the Supreme Court in Isha Marbles Case Vs. Bihar State Electricity Board (1995) 2 Supreme Court Cases 648 on the ground that in that case there was no statutory provision which empowered the authorities to refuse supply of electricity for outstanding dues against the previous owner.
However, in the present case, there is clear statutory provision embodied in the General Conditions of Supply to that effect. We agree with this submission. In our opinion, the general conditions of supply is a piece of delegated legislation, and hence has statutory force.'' Contd.....
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8. Vide Para-14 of this judgement it has been held that:
''In our opinion, there is no distinction between the purchaser of a premises who was aware that there were outstanding electricity dues against the previous owner/tenant, and one who was not aware of it. In either case, the dues have to be paid by the new owner/occupant before supply can be continued/restored. This is because of the statutory provision contained in Clause 2(iv) of the General Conditions of Supply which has been quoted above.''
9. Vide Para-16 of this judgement it has been held that:
''In view of the general condition of supply, it is the duty of the new owner/occupant to himself make enquiries and find out whether there was such dues or not. The general conditions of supply are Contd.....-7-
statutory in nature (being delegated legislation), and hence the question of bonafide or malafide does not arise, and in either case the new owner/occupant of the premises has to pay the dues against the previous owner/tenant. If he wishes the electric supply to be continued/restored.''
10. Vide Para-23 and it has been observed that:
''It may be mentioned that the condition of supply as contained in tariff order dated 23rd May, 2001 has been considered and discussed by a Division Bench of this Court in Suresh Jindal Vs. BSES Rajdhani Power Ltd. LPA 256/2006 decided on 20th February, 2006 in paragraph 51 of which it was observed that:
It may be mentioned that the binding and statutory nature of the Conditions of Supply has been upheld by the Supreme Court in Punjab State Electricity Vs. Bassi Cold Storage 1994, Suppl. (2) SCC 125; Bihar State Electricity Board Vs. Parmeshwar 1994 (4) SCC 636 (vide para 16) and M/s Hyderabad Vanaspati Ltd. Vs. A.P. State Electricity Board Contd.....-8-
AIR 1998 SC 1715 (para22)''
11. Vide Para-24 of this judgement it was also considered that:
''In the same judgment it was also observed in paragraph 57:
No doubt, the license was granted by the Delhi Electricity Regulatory Commission on 11th March, 2004. However, the respondent had applied for the license under rule 10(2) of the Delhi Electricity Reforms (Transfer Scheme) Rules 2001 within 60 days of 1st July, 2002, which was the notified date of transfer. Hence the respondents were duly licensed to the supply electronic meters in the area of their distribution and were vested with the powers of the licensee under the Indian Electricity Act 1910. Electricity (Supply) Act 1948 and the rules framed thereunder. The powers under Section 26 of the Indian Electricity Act 1910 and Section under section 49 of the Electricity (Supply) Act 1948 were available with the respondent No. 1 as also the power under the Contd.....-9-
conditions of supply which were notified when Delhi Vidyut Board was in existence.''
12. Vide Para-25 of this judgement it was held that:
''The learned Single Judge in the impugned judgement has observed that the outstanding dues of earlier owner/occupant cannot be realized from the new owner/occupant unless there were malafides of the old consumer. With respect, we do not agree. There is no question of malafides when there is a statutory provision.''
13. Vide Para-26 of this judgement it was held that:
''The learned Single Judge also observed that the outstanding dues can be realized from the consumer only when he is the heir and successor of the Contd.....
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defaulting party. In our opinion, this is not the correct position of the law. The new owner/occupant, whether he was a heir or successor or not, has to pay the outstanding dues if he wants continuation/restoration of the electricity connection. Further, notice of existence of arrears is not the requirement in the Clause 2.1(iv) of the General Conditions of the Supply. Also, there is no requirement for the licensee to first initiate recovery proceedings by filing a civil suit against the old consumer before disconnecting the supply. As observed by the Supreme Court in Swastic Industries Vs. MSEB 1997 (9) SCC 465 (vide para 5):
It would thus be clear that the right to recover the charges is one part of it and right to discontinue supply of electrical energy to the consumer who neglects to pay charges is another part of it. The right to file a suit is a matter of option given to the licensee, the Electricity Board. Therefore, the mere fact that there is a right given to the Board to file the suit and the limitation has been prescribed to file the suit, it does not take away the right conferred on the Board Contd.....
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under section 24 to make demand for payment of the charges and on neglecting to pay the same they have the power to discontinue the supply or cut off the supply, as the case maybe when the consumer neglects to pay the charges?''
14. Vide Para-27 of this judgement it was held that:
''In our opinion an interpretation of the law which furthers the preservation and protection of public property ought to be adopted. If arrears of electricity charges outstanding in respect of electricity supplied to a premises were to be permitted to be equated with a contractual claims of damages, it would encourage dishonest consumers to raise some dispute or other in respect of such arrears and evade the consequences of non- payment of electricity charges viz. Disconnection / non- resumption of supply.'' Contd.....
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15. In this case the case of Isha Marbles Vs. BSEB and Anr MANU/SC/0632/1995 : 1995(1) SCALE 721 has also been distinguished in the following words vide Para-28:
''Inour opinion, the decision in Isha Marbles Vs. BSEB and Anr, which has been heavily relied upon by the writ petitioner, is clearly distinguishable, as the Supreme Court observed therein that it was due to inadequacy of the law as applicable in the State of Bihar that arrears cannot be realized from the subsequent purchaser. However, the law applicable in 'Delhiis different in as much as there is a statutory condition of supply which requires payment of such outstanding dues before resumption/continuation of electricity supply.'' Contd.....
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16. Finally the court has dealt with the condition of supply in Para-29 of this judgement in the following words:
''Inour opinion the condition of supply relates to Section 49 of the Electricity (Supply) Act as well as sections 11 and 28 of the DERA. The court has consistently held that the condition of supply forms an integral part of the tariff and does not require approval of State Legislature. In fact Clause 2.1 (iv) of the Condition of Supply was formulated by DESU (DVB) as far back as in 1997-98 and, therefore, adopted by DERC in 2001-02.''
17. The learned Trial Court by way of the impugned order dated 07.04.2005 has allowed the application u/o XXXIX Rule 1 & 2 CPC which was moved by the respondent/plaintiff. The appellant/defendants were directed to provide electricity connection to respondent/plaintiff in the suit property without charging pending dues. The Contd.....
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following order in this regard has been passed on page 4 of the impugned order:
''Inview of the discussion made above the application of the plaintiff under Order 39 rule 1&2 CPC is allowed. Defendants are directed to provide electricity connection to the plaintiff in the suit property without charging pending dues of alleged three K numbers, subject to fulfillment of commercial formalities. If the plaintiff had already fulfilled the commercial formalities as is required under law, then the defendant is directed to give fresh connection to the plaintiff within three days from today.''
18. Vide order dated 25.04.2005 passed by Ld. Civil Judge the application u/o XXXIX Rule 1 & 2 r/w Section 151 CPC moved by respondent/plaintiff was disposed off as satisfied as Sh. I.D. Arora had stated before the Ld. Trial Court that respondent / plaintiff had completed the requisite formalities and the electricity connection will be installed in the Contd.....
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name of respondent/plaintiff within 48 hours. As per the written submissions filed on 19.03.2007 the new connection has already been installed.
19. In the impugned order the Ld. Trial Court has dealt with clearance of arrears incurred by previous owners in the following words on page 2 and 3 of the impugned order:
''During the course of arguments learned counsel for plaintiff cited the judgement titled as Ahmedabad Electricity Co. Ltd. Vs. Gujarat Inns. Pvt. Ltd. & Others II (2004) SLT 814 wherein it was observed by Hon'ble Supreme that:
''We are clearly of the opinion that in case of a fresh connection though the premises are the same, the auction purchaser can not be held liable to clear the arrears incurred by the previous owners in respect of power supply to the premises in the absence of there being a specific statutory Contd.....
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provision in that regard.''
20. It is the admitted case of the parties that respondent/ plaintiff became owner after purchase of the suit property by way sale deed dated 20.08.2004. It has also been observed by the Ld. Trial Court that respondent is entitled to get fresh electric connection without clearing the dues of the three K. numbers in question of which the respondent/plaintiff was neither the registered consumer nor the user. The case of Madhu Garg and Another Vs. NDPL (Supra) is very much clear. Admittedly the judgement passed by the Division Bench of our own High Court in Madhu Garg and Another Vs. NDPL (Supra) has not been stayed as on date. It has also not been set aside. As per para 13 of this judgement the general conditions of supply is a piece of delegated legislation and has statutory force.
Contd.....
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21. Ld. counsel for appellant/defendant has basically relied on the judgement titled Madhu Garg and Another Vs. NDPL (Supra). It has been submitted that as per the judgement of Madhu Garg and Another Vs. NDPL (Supra) there is statutory provision and respondent had been tenant in the disputed premises since 1996 who had later on purchased the premises. The matter regarding as to from where the respondent/plaintiff was using the electricity cannot be decided at this stage. It has been submitted that respondent is actual user of the premises who had purchased the same in the year 2004. The first floor was purchased and respondent/plaintiff had applied for fresh connection and on the date of filing of the suit there was no meter in the portion of the respondent/plaintiff. He has also referred to the copy of the Sale Deed filed by respondent on record especially Clause-9 of the Sale Deed which is on page 103 of the trial court record which reads Contd.....
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as under:
''9. That the Vendor shall provided Electricity and Water connection facilities to the Vendee and shall issue N.O.C. for installation of both the meters in the name of the Vendee/purchaser and also provided meters space at Ground Floor visible & accessible to the meter Readers of both the authority.''
22. This Clause '9' of Sale Deed is also regarding provision of electricity and water connection and issuance of N.O.C. for installation of meters in the name of purchaser and in the instant case purchaser is the present respondent/plaintiff.
23. In the main suit the respondent/plaintiff has prayed for the following relief:
''Itis, therefore, prayed that a decree of mandatory injunction may kindly be passed in favour of the plaintiff and against the Contd.....
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defendants directing them to provide electric-meter connection in the name of the plaintiff at first floor premises No. WZ-21, Village Budhela, Vikas Puri, New Delhi recently purchased by the plaintiff from Mulakh Raj Tyagi of which copy of Regd. Sale Deed attached and more particularly has been shown in red colour in the attached site plan. Suitable action may also be initiated against the illegal acts of the defendants.
It is further prayed that the defendants. May kindly be restrained permanently from charging pending dues of K. Nos.
2650 W-5070139, 5070268, 5070425 from the plaintiff as these K. Nos. and their dues are not related or concerned with the plaintiff.''
24. In application under Order XXXIX Rule 1 & 2 r/w Section 151 CPC the respondent/plaintiff has prayed for the following relief:
''It is, therefore, prayed that the Contd.....
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respondents / defendants may kindly be directed to provide electricity connections to the applicants/plaintiff without charging pending dues of three K. Nos. i.e. 2650 W-5070139, 5070268, 5070425 till further orders of the Hon'ble Court, at residential premises No. WZ-21 (First Floor) Budhela, Vikas Puri, New Delhi-18.''
25. The authorities relied by learned counsel for appellant/defendant duly supports its case as per Para-27 of case titled Mrs. Vijay Srivastava Vs. M/s Mirahul Enterprises & Others (Supra). The court had considered regarding grant of mandatory injunction on an interlocutory application. It is granted only to restore the status-quo and not granted to establish a new state of things, different from state which existed on the date when the suit was instituted.
Contd.....
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26. In Para-27 of jdugement tiled Mrs. Vijay Srivastava Vs. M/s Mirahul Enterprises & Others (Supra) our own High Court has observed in the following words;
''...........The Court further observed that according to the accepted principles, as found from the reported cases, the practice of the Courts was that if a mandatory injunction is granted on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things differing from the state which existed on the date when the suit was instituted...........''
27. In the instant case when the suit was instituted there was no such connection. The connection has been installed only pursuant to the impugned order dated 07.04.2005 as well as the order dated 25.04.2005 when application under Order XXXIX Rule 2 (A) r/w section 151 CPC was disposed off.
Contd.....
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28. The authority titled The University of Bihar and Another Vs. Rajendra Singh, (Supra) and authority titled Nandan Pictures Ltd. Vs. Art Pictures Ltd and Others (Supra) also deal with grant of mandatory injunction at interim stage. Nandan Pictures Ltd. Vs. Art Pictures Ltd and Others (Supra) case has also been discussed in Para-27 of judgement Mrs. Vijay Srivastava Vs. M/s Mirahul Enterprises and Others (Supra). Even in the judgement tilted The University of Bihar and Another Vs. Rajendra Singh, (Supra) has been discussed in judgement titled Mrs. Vijay Srivastava Vs. M/s Mirahul Enterprises and Others (Supra).
29. Dorab Cawasji Warden Vs. Coomi Sorab Warden and Others (Surpa), also deals with grant of mandatory injunction at interlocutory stage and Contd.....
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Para-16 of this judgement reads as under:
''The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining...........''
30. In judgement titled Metro Marins and Another Vs. Bonus Watch Co. (P) Ltd. And Others, (Supra), in Para-6 of this judgement, Para-16 of judgement titled Dorab Cawasji Warden Vs. Coomi Sorab Warden and Others (Surpa) has also been discussed.
Contd.....
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31. Para-9 of judgement titled Metro Marins and Another Vs. Bonus Watch Co. (P) Ltd. And Others, (Supra) reads as under:
''..........
As noticed by this Court, in the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden it has held that an interim mandatory injunction can be granted only in exceptional cases coming within the exceptions noticed in the said judgement. In our opinion, the case of the respondent herein does not come under any one of those exceptions and even on facts it is not such a case which calls for the issuance of an interim mandatory injunction directing the possession being handed over to the respondent.''
32. In view of the existing legal position regarding dues to be paid by the purchaser as well as regarding grant of mandatory injunction at the stage of considering interim application the law is Contd.....
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well settled. In Madhu Garg'sjudgement even the point raised by the respondent regarding time bar dues has been duly discussed especially in Para-26 of this judgement wherein it was discussed that right to recover the charges is one part of it and right to discontinue supply of electricity to the consumer who neglects to pay the charges is other part and there is no requirement for the licencee to initiate recovery proceedings by filing a civil suit against the old consumer before disconnecting the supply. The mere fact that there is right given to the licencee to file the suit and the limitation has been prescribed to file the suit does not take away right conferred of the licencee to make demand for payment of the charges and neglecting to pay the same and they have power to disconnecting the supply or cut off the supply as the case may be when the consumer neglects to pay the charges.
Contd.....
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33. In view of the above said discussion, I am of the considered view that respondent/plaintiff who is user/occupant is liable to make the payment. Merely because as mentioned in order dated 29.10.2005 passed by Ld. predecessor of this Court that respondent was ready to pay Rs. 15,000/- on pro-rata basis does not entitle the respondent/plaintiff not to pay the dues. With due respect the judgement dated 05.10.2006 passed by Hon'ble Mr. Justice S. Ravindra Bhat, Judge Delhi High Court relied by respondent/plaintiff is differentiable. In that case Vardhman Properties Ltd. the petitioner was left with no interest in respect of the property and some other people were occupying the premises but in the instant case it is the respondent/plaintiff who had purchased part of the property and is having interest.
34. It is also pertinent to mention that argument was put forth by respondent/plaintiff's Contd.....
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counsel that Madhu Garg'sjudgement was not pronounced when the impugned order was passed. As on date that judgement has yet not been set aside and operation of the judgment has not been stayed. The law laid down by Madhu Garg'sjudgement by the Division Bench of our own High Court has to be followed.
35. In these circumstances in view of the foregoing discussion, I am of the considered view that Ld. Trial Court erred in passing the impugned order. The impugned order stands set aside. Appeal is accordingly allowed. Parties shall bear their own cost. Parties are directed to appear before the Ld. Trial Court on 11.04.2007. It is further clarified that since the electricity has already been installed in compliance of order dated 25.04.2005 passed by Ld. Trial Court no further orders is required to be passed in that respect.
Contd.....
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36. Copy of this order be sent alongwith TCR.
37. File be consigned to record room. Announced in the Open Court on 04.04.2007 PINKI ADDITIONAL DISTRICT JUDGE DELHI Contd.....
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MCA 37/05 04.04.2007 Present: Proxy counsel for parties.
Vide separate order announced in the open court the impugned order stands set aside. Appeal is accordingly allowed. Parties shall bear their own cost. Parties are directed to appear before the Ld. Trial Court on 11.04.2007. It is further clarified that since the electricity has already been installed in compliance of order dated 25.04.2005 passed by Ld. Trial Court no further orders is required to be passed in that respect.
Copy of this order be sent alongwith TCR. File be consigned to record room.
PINKI ADDITIONAL DISTRICT JUDGE DELHI/04.04.2007 Contd.....