Delhi District Court
Smt. Muzzaiyana Praveen vs Business Manager on 1 August, 2012
IN THE COURT OF PAWAN KUMAR MATTO,
ADDITIONAL DISTRICT JUDGE03 (EAST),
KARKARDOOMA COURTS, DELHI
MCA No.3/2012
Unique Case ID No. : 02402C0029392012
IN THE MATTER OF :
Smt. Muzzaiyana Praveen
W/o Late Sh. Babu Hanif Warsi
R/o A53, Street No.15,
Mandawali, Fazalpur, Delhi92
..................Appellant / Plaintiff
Versus
1. Business Manager
BSES Yamuna Power Ltd.,
Near Radhu Palace,
Laxmi Nagar, Delhi.
2. General Manager,
BSES Yamuna Power Ltd.,
Registered Office :
Shakti Kiran Building,
Karkardooma, Delhi
........Respondents / Defendants
Date of institution : 30.01.2012
Date of arguments heard : 30.07.2012
Date of judgment : 01.08.2012
MCA No.3/2012 Page 1 of 19
JUDGMENT
1. The present appeal is directed against the impugned order dated 20.12.11, passed by Learned Trial Court, vide which, the application U/o 39 rules 1&2 CPC filed by the appellant / plaintiff, was dismissed.
2. Briefly stating, the plaintiff (herein appellant) has filed the suit for declaration, permanent and mandatory injunction against the defendants, on the averments that she is the legal heir of late Sh. Babu Hanif Warsi and electricity connections were installed vide meter No.13606058 and 23546566 and the meter No.13606058 was installed in the name of the plaintiff, which is a domestic connection. Whereas, meter No. 23546566 was installed in the name of deceased husband of the plaintiff, which is commercial in nature and Sh. Firoz Alam is residing in the first floor portion of the premises for the last more than 15 years as a licensee, whose license has already been terminated by legal notice dated 16.03.2007 sent by the Advocate Sh. S B Tripathi and thus, Sh. Firoz Alam is an illegal occupant. It is further averred that after the demise of the husband of the plaintiff in the year 2001, Sh. Firoz Alam started to live illegally and forcibly with his wife and younger brother Gulzar Alam and Noor Alam alongwith his wife Nazreen, and father Shakil Ahmad and mother Jaitoon Begum and presently the above said persons are illegal occupants in the first floor portion of the said premises and no electricity was provided to these illegal occupants through the above said meters since March, 2007.
MCA No.3/2012 Page 2 of 19
3. It is further averred that on 30.03.2007 plaintiff Muzzaiyana Praveen has given complaint to the Business Manager of BSES, Laxmi Nagar on dated 15.05.2007, whereas, second complaint was given to the Business Manager, BSES, Laxmi Nagar on dated 23.05.2007 and a complaint to the police of PS, Mandawali was also given and complaint to the General Manager, Karkaroodooma was also given and all these complaints were relating to the direct theft of electricity committed by Firoz Alam and Gulzar Alam. It is further averred that the enforcement team of the defendants/respondents took the photographs at the time of inspection and raid conducted on dated 21.08.2007 but no criminal case has been registered against Firoz Alam and Gulzar Alam till date. It is further averred that on dated 28.08.2009, the plaintiff has given a complaint to Sh. B.P. Saini, AVP, EnforcementI, Shakti Kiran Building, KARKARDOOMA regarding the direct theft of electricity committed by the illegal occupants, but, no action has been taken so far and she has also averred that acts and conducts of the defendants, their agents, employees and servants indicate their collusion with the illegal occupants. It is further averred that the theft of electricity has been committed by Sh. Firoz Alam and Gulzar Alam from the electricity pole, which is situated outside the premises of the plaintiff and there is no concern with the above said meters of the plaintiff installed in her house and the plaintiff is regularly paying the electricity bills and no bill is pending till date and on dated 18.08.2011, the defendants have removed both the meters MCA No.3/2012 Page 3 of 19 (domestic, as well as, commercial) from the premises of plaintiff illegally and without giving any notice of disconnection and thus, the defendants have violated the provisions of The Electricity Act. It is also averred that the plaintiff is a widow lady of aged about 50 years and she is fully dependent upon her son and she has no source of income and she has sent a legal notice dated 26.07.2011 through registered post, speed post and the acknowledgment card came back on dated 03.09.2011.
4. Feeling aggrieved with the above said acts and conducts of the defendants, the plaintiff has filed the suit for declaration to declare the demands of BSES for Rs.172344/ as illegal, null and void, as the said amount is payable by Firoz Alam and Gulzar Alam and also for restraining the defendants, their agents, employees, servants, associates etc. from recovering the amount of Rs.93183/ in the name of Firoz Alam and Rs.79161/ in the name of Gulzar Alam, from the plaintiff and also for directing the defendants to recover the due amount from Firoz Alam and Gulzar Alam and also for directing the defendants to reinstall both the electricity meters bearing No.23546566 & 13606058 removed by the officials of the defendants from the premises of the plaintiff.
5. She has also filed an application U/o 39 rules 1&2 CPC and sought to restrain the defendants, their associates, representatives, legal heirs, employees, agents etc. from recovering the amount of Rs.93183/ in the name of Firoz Alam and Rs.79161/ in the name of Gulzar Alam from the plaintiff and also sought direction for the defendant to reinstall both the MCA No.3/2012 Page 4 of 19 electricity meters No.23546566 & 13606058, which have been removed by the officials of the defendant company from the premises of the plaintiff, till the final disposal of the suit stating that the plaintiff has prima facie case. Balance of convenience is also lies in her favour and she will suffer an irreparable loss in case the defendants are not restrained from recovering the amount of Rs.172344/ from the plaintiff, which is due and payable by Firoz Alam and Gulzar Alam.
6. The Learned Trial Court has issued summons of suit and notices of the application, on the completion of the service the defendants had filed the written statement and reply to the application U/o 39 rules 1&2 CPC.
7. The defendants (respondents herein) have filed the written statement and contested the same stating that dues are pending against the premises of the plaintiff. The premises was inspected on 21.08.07, 18.02.09 and on 05.10.10 and on all these occasions Firoz Alam and Gulzar Alam i.e. brothers of the plaintiff were found indulged in the direct theft of electricity and accordingly theft bills of Rs.93183/ with due date as 08.09.07 and Rs.79161/ with due date as 09.03.09 and one more bill was raised, but despite of repeated requests the bills have not been cleared and as the dues are pending against the premises in question after the service of notice of disconnection, the electricity from the premises was disconnected. It is further stated that the brother of the plaintiff i.e. Gulzar Alam has also filed a suit, whereby he has challenged the rejection of his application for grant of new connection of electricity for MCA No.3/2012 Page 5 of 19 the portion of premises in his occupation and the said application was rejected in view of the dues pending against the premises. It is further stated that the suit has not been valued for the purpose of court fee and jurisdiction.
8. Replying to the plaint on merit, the defendants have not denied that the plaintiff is the legal heir of late Sh. Babu Hanif Warsi. The defendants have also stated that the plaintiff has admitted the factum of theft of electricity took place from the premises in question and dues on account of theft of electricity are recoverable and three cases of theft have been registered against the brothers of the plaintiff and further stated that defendants have acted, as per law. It is further stated that Gulzar Alam has filed the suit before Sh. A S Aggarwal, Sr. Civil Judge and the defendants have refused to grant new connection, on account of pendency of dues against the premises in question. It is denied that defendants have not taken any action on the complaint of the plaintiff or that the employees or servants of the defendants are having collusion with Firoz Alam and Gulzar Alam. It is further stated that the defendants have lodged three cases of theft against the brothers of the plaintiff and even rejected their application for new connection. It is also stated that the responsibility of the plaintiff does not come to an end by lodging complaint, as she has not pleaded as to what action has been taken by her to get her premises vacated and the dues are pending against the premises of the plaintiff. It is also stated that the husband of the plaintiff had MCA No.3/2012 Page 6 of 19 expired and it was duty of the plaintiff to inform about the same to the defendant and to get the necessary changes incorporated in the record of the defendants, as per law. It is further stated that the disconnection of the electricity has been done by the defendants as per law and the disconnection notice was duly served on the plaintiff, but, inspite of service of the notice, the plaintiff failed to clear the dues and resultantly the electricity from the premises was disconnected. The defendants have denied that the plaintiff has any cause of action to file the suit and sought the dismissal of the suit with heavy cost.
9. Replying to the application U/o 39 rule 1&2 CPC, the defendants have denied all the averments made in the application and sought the dismissal of the said application with heavy cost.
10. Learned Trial Court after hearing the arguments advanced by learned counsels for the parties, dismissed the application U/o 39 rules 1&2 vide its impugned order under appeal dated 20.12.11.
11. Feeling aggrieved with the impugned order under appeal, the appellant / plaintiff has filed the present appeal.
12. The notices of the appeal were issued to the respondents and the record of Learned Trial Court is also requisitioned.
13. I have heard Learned counsels for the parties and perused the entire record.
14. Learned counsel for the appellant has submitted that since this is not a new connection, so, the judgment passed by their lordship of Delhi High MCA No.3/2012 Page 7 of 19 Court in Madhu Garg and Anr. v. North Delhi Power Ltd, 129(2006) Delhi Law Times, 213 (DB) is not applicable to the case in hand and the Ld. Trial Court has erroneously relied upon the same at the time of passing of the impugned order under appeal. He has further submitted that respondents / defendants cannot recover the amount from the plaintiff, as the theft of electricity has been committed by brothers of the plaintiff namely Gulzar Alam and Firoz Alam, that too, after passing of more than two years. He has further submitted that as per the law, the amount in question can be recovered from Firoz Alam and Gulzar Alam, who have committed the theft and the disconnection of electricity done by the respondents / defendants are illegal, as the plaintiff has not committed any theft. He has relied upon the judgment passed by their lordship of Hon´ble Supreme Court in case Haryana Electricity Board v. M/s. Hanuman Mal Rice Mill, Dhanauri and others, AIR 2010 Supreme Court 3835 and prayed for restoration of the both the electricity connections by way of allowing the appeal and setting aside the impugned order under appeal.
15. On the other hand, Learned counsel for the respondents has drawn my attention towards regulation 15 of Delhi Electricity Supply Code and Performance Standards Regulations, 2007. She has also drawn my attention towards rule 1.5 of tariff schedule, which speaks about the general condition of supply, which says that the applicant has to deposit the outstanding dues against the premises or disconnected connection. MCA No.3/2012 Page 8 of 19 She has also drawn my attention towards regulation 51 of Delhi Electricity Supply Code and Performance Standards Regulations, 2007, which also speaks about the payment of dues for reconnection. She has also submitted that as per rules and regulations of the defendants, the defendants are entitled to recover the amount due against the premises. She has further submitted that it is admitted by the plaintiff that the theft of the electricity has been committed by her brothers in the premises in question and she has further submitted that officials of the respondents have inspected the premises thrice times i.e. firstly on 21.08.07, secondly on 18.02.09 and thirdly on 05.10.10. She has further submitted that on all these three occasions, the brothers of the plaintiff namely Sh. Gulzar Alam and Firoz Alam were found committing theft of the electricity. She has further submitted that since the brothers of the plaintiff were found committing theft of the electricity and the respondents have raised the bills of such theft, so, the notices for disconnection were issued to the plaintiff, but, despite of service of the notices, the plaintiff has failed to deposit the amount of the bills. Accordingly, the respondents disconnected the electricity from the premises in question. She has further submitted that the Ld. Trial Court has rightly declined the application U/o 39 rule 1&2 CPC relying upon the judgment passed by their lordship of Delhi High Court in case Madhu Garg v. North Delhi Power Ltd. (Supra).
16. She has further submitted that the judgment passed by their lordship MCA No.3/2012 Page 9 of 19 of Hon´ble Supreme Court in case Haryana Electricity Board v. M/s. Hanuman Mal Rice Mill, Dhanauri and others, AIR 2010 Supreme Court 3835 is of no help for the appellant, as their lordship of Hon´ble Supreme Court in said judgment was also pleased to hold that where the statutory rules or terms and conditions authorizes the suppliers to demand from the purchaser of the property claiming reconnection or fresh connection of electricity, the supplier can recover the arrear from the purchaser.
17. She has also submitted that since their lordship of Delhi High Court in case Madhu Garg v. North Delhi Power Ltd. (Supra) was pleased to hold that the law applicable in Delhi is different from the other states and there is a statutory condition for supply, which requires the payment of outstanding dues for resumption / continuation of the electricity, so, the appellant / plaintiff is not entitled for the restoration of the electricity connections without making the payment of the electricity bills due against the premises of the plaintiff and prayed for dismissal of the appeal.
18. I have given thoughtful considerations to the submissions made by Learned counsels for the parties and perused the record.
19. The perusal of the record shows that the plaintiff has filed the present suit for declaration, permanent and mandatory injunction and sought to restrain the defendants, their associates, representatives, legal heirs, employees, agents etc. from recovering the amount of Rs.93183/ in the MCA No.3/2012 Page 10 of 19 name of Firoz Alam and Rs.79161/ in the name of Gulzar Alam, from the plaintiff and also sought direction for the defendants to reinstall both the electricity meters No.23546566 & 13606058, which have been removed by the officials of the defendant company from the premises of the plaintiff and the plaintiff has also filed an application U/o 39 rule 1&2 CPC and also sought to restrain the defendants, their associates, representatives, legal heirs, employees, agents etc. from recovering the amount of Rs.93183/ in the name of Firoz Alam and Rs.79161/ in the name of Gulzar Alam, from the plaintiff and also sought direction for the defendants to reinstall both the electricity meters No.23546566 & 13606058 which have been removed by the officials of the defendant company from the premises of the plaintiff, till the final disposal of the suit stating that the plaintiff has prima facie case. Balance of convenience also lies in her favour and she will suffer an irreparable loss, in case the defendants are not restrained from recovering the amount of Rs.172344/ from the plaintiff, which is due and payable by Firoz Alam and Gulzar Alam. But, the Ld. Trial Court vide its impugned order under appeal, relying upon the judgment passed by their lordship of Delhi High Court in Madhu Garg and Anr. v. North Delhi Power Ltd, 129(2006) Delhi Law Times, 213 (DB), was pleased to dismiss the said application. The ld. counsel for the appellant has submitted that the appellant cannot be asked to pay the amount of the bills regarding the theft of the electricity committed by Firoz Alam and Gulzar Alam, MCA No.3/2012 Page 11 of 19 because, both of these persons are illegal occupants in the suit property and their licenses have already been terminated and it is their personal liabilities. He has further submitted that even, if, theft of the electricity is committed from the premises of the appellant/plaintiff, the respondents / defendants cannot be allowed to recover the amounts of the bills in question from the appellant / plaintiff and the respondents / defendants have illegally disconnected both the electricity meters, as mentioned above and the electricity charges regarding the theft of electricity cannot be held to be due against the premises of the plaintiff. He has relied upon the judgment passed by their Hon´ble Supreme Court in Haryana Electricity Board v. M/s. Hanuman Mal Rice Mill, Dhanauri and others, AIR 2010 Supreme Court 383. I have gone through the judgment passed by their lordship of Hon´ble Supreme Court and with due regard to the law laid down by their lordship of Hon´ble Supreme Court in the said judgment, I am inclined to hold that the ratiodecidendi of the said decision is of no help for the appellant, for the reason that in the said case, the appellant (Haryana State Electricity Board) did not plead in its defence that statutory rules or terms and conditions of supply of the electricity authorized it to demand the dues of electricity from the previous owner. Whereas, in the case in hand, the respondents herein have categorically pleaded that the amounts of the bills in question are due against the premises, wherein both the electricity meters were earlier installed. It is worthwhile to mention herein that in the said judgment MCA No.3/2012 Page 12 of 19 their lordship of Hon´ble Supreme Court was pleased to hold that "where the statutory rules or terms and conditions of supply which are statutory in character authorize the supplier of the electricity to demand from the purchaser of the property claiming reconnection or fresh connection of electricity, the arrears due by the previous owner / occupier in regard to the supply of the electricity to such premises, the supplier can recover the arrear from the purchaser". So, with these observations of their lordship of Hon´ble Supreme Court in the said case, it is clear that the decision of the said case is of no help for the appellant. It is also worthwhile to mention here that their lordship of Delhi High Court in Madhu Garg and Anr. v. North Delhi Power Ltd, 129(2006) Delhi Law Times, 213 (DB) was pleased to hold that "in our opinion there is no distinction between the purchaser of the premises, who was aware that there was 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 and this is because of statutory provision contained in clause 2(IV) of the General Condition of Supply" and further held that "in our opinion, whenever a person purchases the property, it is his duty to find out whether there are outstanding electricity dues in relation to the premises or not and he cannot be allowed to say later that he was unaware of the fact that MCA No.3/2012 Page 13 of 19 there were electricity dues of the previous owner / tenant" and further held that "under clause 2.1(IV) of the General Condition of Supply contained in tariff order 199798 and 200102 which has been framed by Delhi Electricity Regulatory Commission, it has been specifically stated that supply of electricity is subject to the condition that the applicant deposits development charges, advance consumption deposit and all such charges as may be applicable including outstanding dues against the premises and / or disconnected connection". Their lordship has further held that "in our opinion an interpretation of law which furthers the preservation and protection of public property ought to be adopted. If arrear of electricity charges outstanding in respect of electricity supplied to a premises were to be permitted to be equated with the contractual claims of damages, it would encourage dishonest consumer to raise some dispute or other in respect of such arrear and evade the consequences of nonpayment of electricity charges viz. disconnection / non resumption of supply" and further held that "the law applicable to Delhi is 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".
20. It is pertinent to mention here that the relevant provision of General Conditions of Supply of Tariff Schedule for the year 200304 are as under : MCA No.3/2012 Page 14 of 19 1.5.1 Supply of electricity in all cases is subject to condition that;
i) The peripheral electrical services have been laid for the electrification of the area or where supply is required on HT (High Tension) of EHT (Extra High Tension) system.
ii) The electrical load applied for is technically feasible from the existing system of the voltage applied for.
iii) The applicant is eligible to get electrical connection for the specific purpose under the provisions of the Act/Supply Act/Electricity Act/Rules/Regulations/Orders.
iv) The applicant deposits development charges, advance consumption deposit, and service line charges etc. as may be applicable including outstanding dues against the premises and/or disconnected connection(s).
21. Whereas, the provision of Regulation 15 of the Delhi Electricity Supply Code and Performance Standards Regulations, 2007 is as under :
15. General (i) "The Licensee shall prominently display at all offices where application for new connection is accepted, the detailed procedure for new connection and the complete list of documents required to be furnished along with the application. No other document, which has not been listed, shall be asked to be submitted by the applicant. Rate / amount of security and cost of service line to be deposited by the applicant in accordance with the stipulation in the regulations shall also be displayed.
(ii) Where applicant has purchased existing property and MCA No.3/2012 Page 15 of 19 connection is lying disconnected, it shall be the duty of the applicant to verify that the previous owner has paid all dues to the Licensee and has obtained "nodues certificate" from the Licensee. In case "nodues certificate" is not obtained by the previous owner, the applicant before purchase of property may approach the Business Manager of the Licensee for a "nodues certificate". The Business Manager shall acknowledge receipt of such request and shall either intimate in writing outstanding dues, if any, on the premises or issue "nodues certificate"
within one month from the date of application. In case the Licensee does not intimate outstanding dues or issues "nodues certificate"
within specified time, new connection on the premises shall be denied on ground of outstanding dues of previous consumer."
22. Whereas, Regulation 51 of Delhi Electricity Supply Code and Performance Standards Regulation, 2007 is as under :
51. Reconnection : "The Licensee shall reconnect the consumer's installation within two days of payment of past dues, reconnection charges, and Service Line Charges, as applicable, for that Category of Consumer if the same has been removed by the Licensee at the time of disconnection. Dormant connections, however, would be reconnected only after all the formalities as required in the case of a new connection are complied with by the consumer."
23. Coming to the case in hand, since the rules of the respondents MCA No.3/2012 Page 16 of 19 permit them to recover the electricity charges, due against the premises and admittedly the plaintiff has succeeded to the rights of her deceased husband namely Sh. Babu Hanif Warsi and she is claiming restoration of the electricity connections in respect of both the above said electricity meters without payment of the electricity charges dues against the premises, wherein both the electricity meters were earlier installed, so, as per the rules, as discussed above, it is incumbent on the part of the appellant / plaintiff to pay the amounts of the above mentioned bills of theft, as, she is seeking restoration of the electricity connections in the said premises.
24. It is also worthwhile to mention here that the appellant / plaintiff has also sought interim relief to restrain the defendants from recovering the amounts of the above mentioned two bills. The ld. counsel for the appellant has submitted that recovery of the amounts in question in respect of the above bills can be done within two years. Whereas, ld. counsel for the respondents has submitted that the inspection of the premises was done on dated 21.08.07, 18.02.09 and 05.10.10 and thus, the respondents are entitled to recover the amounts of the said bills in question.
25. Even otherwise, their lordship of Hon´ble Supreme Court in case Swastik Industries v. MSEB, 1997(9) S.C.C. 645, was pleased to hold that "it would, thus be clear that the right to recover the charges is one part of it and right to discontinue supply of MCA No.3/2012 Page 17 of 19 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 U/s 24 to make demand for payment of charges and on neglecting to pay the same, they have power to discontinue the supply or cut off the supply, as the case may be, when the consumer neglects to pay the charges".
26. Coming to the case in hand, the plaintiff has sought to restrain the defendants from recovering the amounts of the bills in question and in accordance with the provisions of section 41(b) of the Specific Relief Act, this relief sought is statutorily barred and the defendants cannot be directed to restore the electricity meters without payment of the charges against the said meters.
27. In view of above discussion, I do not find any force in the submissions of Ld. Counsel for the appellant. On the other hand, I am having inclination with the submissions made by the ld. counsel for the respondents as for grant of interim injunction, it was incumbent on the part of the appellant / plaintiff to prove that she is having prima facie case and she is having balance of convenience in her favour and she will suffer an irreparable loss, if, the interim injunction is not granted to her. But in the above mentioned MCA No.3/2012 Page 18 of 19 circumstance, I am inclined to hold that the appellant has failed to make out her case for grant of interim injunction. Accordingly, I do not find any infirmity in the impugned order under appeal passed by Learned Trial Court. So, the same stands upheld. The appeal of the appellant, stands dismissed, being devoid of merit. Parties are left to bear their own cost. It is clarified that nothing expressed herein above shall effect the merit of the case. File be consigned to the record room. The record of the trial court be returned. Announced in the open Court on this 01.08.2012 (Pawan Kumar Matto) Additional District Judge03 (East), Karkardooma Courts, Delhi / 01.08.2012 MCA No.3/2012 Page 19 of 19