Delhi District Court
Sh Mirza Anwar Beg vs Delhi Vidyut Board on 15 May, 2010
Civil Suit No.986/06/99
Sh Mirza Anwar Beg Vs Delhi Vidyut Board
IN THE COURT OF SH MUKESH KUMAR GUPTA SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI
Civil Suit No.986/06/99
(Old case : More than 10 years old)
Sh Mirza Anwar Beg
S/o Sh Sultan Mirza
Prop. of M/s Sultan & Sons
1794, Gali Chabuk Sawar, Lal Kuan ,
Delhi 110006 ........ Plaintiff
Vs
Delhi Vidyut Board
Through its Chairman
Shakti Sadan,
Nehru Place ,
New Delhi ........ Defendant
SUIT FOR PERMANENT INJUNCTION
Date of institution of suit : 20.04.1999
Date of assignment to this court : 22.01.2009
Date of hearing final argument : 05.05.2010
Date of Judgement : 15.05.2010
JUDGEMENT
1 By way of present judgement I shall conscientiously adjudicate upon the plaintiff suit for permanent injunction against the defendant seeking a decree of permanent injunction thereby restraining 1 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board the defendant, its agents ,servants and staff from disconnecting the supply through connection Nos. 0132107, 3994622 and 0132093 installed at 1794, Gali Chabuk Sawar, Lal Kaun, Delhi 110006 on account of disputed bills raised by the defendant , dated 06.04.99 and the defendant be restrained from making any demand or recovery of said bills .
2. Eschewing prolix details to the pleadings crystallizing the same the plaintiff is stated to be in lawful physical possession of premises No 1794, Sali Chabuk Sawar, Lal Kaun, Delhi 110006 and stated to be running a small work of moulding since the installation of connection in the suit . It is further the case of the plaintiff that he was having connection bearing No.0132107/IP and 3994622 NP and 0132093 NL at the premises of the plaintiff and he is the bonafide consumer of electricity through the aforesaid connections. It is further stated by the plaintiff that he requested the licensing department of MCD for grant of licence . It is the case of the plaintiff the he has not violated any terms and conditions of supply and there has been no misuse of the energy through the electric connections so installed and he was making regular payments of bills as and when raised by the defendant. It is further averred by the plaintiff that on 06.04.98 2 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board officials of defendant came to the premises and prepared a false report in respect of connected load being extra and shunt capacitor not connected alongwith other short falls. It is further stated by the plaintiff that on 16.04.99 defendant staff came to his premises and threatened him to disconnect the connection, on which plaintiff approached the senior officers of the defendant where he was handed over a Bill no.58 for sum of Rs.1,55,00.31 paise in respect of connection No.0132107 and bill for sum of Rs.6,647.53 paise in respect of connection no.3994622 and was threatened to disconnect the connection and also to get and FIR registered if the said amount was not paid. It is further the case of the plaintiff that said bills were absolutely baseless, imaginary , arbitrary , untenable and are not due from the plaintiff and plaintiff was shocked to received the said bills and as he is having small moulding machine and there is absolutely no theft of electricity . It is further the case of the plaintiff that defendant instead of withdrawing the bills threatened to disconnect the supply on 19.04.99 however the plaintiff succeeded to save such disconnection on the aforesaid day. It is further the case of the plaintiff that he is a registered consumer and has been running a small moulding machine and has not violated any rule as there is no arrears of electricity charges and defendant has 3 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board threatened him only to put a pressure to deposit the said amount on or before 22.04.99 or he will get FIR registered . It is finally averred in the plaint that the cause of action arose in favour of plaintiff and against the defendant on 16.04.1999 when the staff of defendant came and threatened to disconnect the electricity connections, and again on 17.04.99 when the plaintiff visited the officers and officers handed over the bill by the defendant and threatened to disconnect the supply and get registered a case of theft and the same cause of action is still subsisting . The plaintiff filed the instant suit for permanent injunction.
3. Written statement to the suit of plaintiff was filed by the defendant in which the defendant has denied each and every allegation of plaintiff and has raised objections by contending that an inspection was carried out on 06.04.98 by the joint team when K. No.0132107 found with meter No.4C997296 with half seal tampered and right hand side seal missing and total connected load found 25.65 KW against sanctioned load of 4.84 KW being used for industrial purpose . It is further contended by the defendant that another K.No.3394622 found with meter No.E430354 with both half seals tampered and connected load found to be 0.58 against 4 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board sanctioned load of 1 KW , and in respect of K. No. 0130903 both seals found fictitious and the glass was loose and meter disk found stopped . It is further contended by the defendant that plaintiff has failed to show any valid licence and was served with a show cause notice dated 21.11.98 but the plaintiff did not appear for a personal hearing. It is further contended by the defendant that the consumption pattern of plaintiff was analysed and recorded as under : K No. 0132107 : Recorded consumption between 24.12.96 to 24.12.97 was 203 units per month and between 26.12.97 to 31.10.98 was 221 units per month whereas the computed consumption on the basis of 25.65x25x10x.6 formula was 3848 units per month .
K No. 3394622 : Recorded consumption between 26.12.96 to 26.12.97 was 101 units per month and between 26.12.97 to 31.10.98 was 98 units per month whereas the computed consumption on the basis of 1x25x11x.6 formula was 166 units per month .
K No. 0130903: Recorded consumption between 26.12.96 to 26.12.97 was 6 units per month and between 26.12.97 to 31.10.98 was 5 units per month whereas the computed consumption on the basis of 1x25x11x.6 formula was 165 units per month .
The defendant has finally contended that after approval from competent authority i.e I.G (Enf) on 01.12.99 a final bill was raised and necessary order for raising final bill was passed by XEN (Enf) II on 23.2.99. Defendant has prayed for dismissal of suit with heavy costs. 5
Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board
4. Replication to the written statement of defendant was filed by the plaintiff who has denied each and every allegation made by the plaintiff and reiterated the averments made in the plaint .
5. Vide order dated 27.09.2001 as passed by ld Predecessor of this court, the following issues were framed for adjudication :
ISSUES
1. Whether the DVB conducted illegal inspection on
06.04.98 and raised illegal impugned bill for Rs.6,647.53 and Rs.1,55,008.10 ps ? OPP
2. Whether the plaintiff is entitled to decree of permanent injunction ? OPP
3. Relief .
6. It may be seen that the suit was originally filed in the name of plaintiff against the defendant DVB which was later on unbundled in the year 2003 and the work of production, transmission and supply of electricity was segregated and assigned to various corporation/agencies and as such the distribution work was handed over to various distcoms for example BSESYPL in the instant case. The plaintiff however has failed to 6 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board move any application u/o 22 rule 10 CPC for substitution the name of defendant and as such the suit continued against the erstwhile entity.
7. Plaintiff in support of its case got examined his son Sh Arshad Mirza as PW1 who reiterated the contents of plaint and has stated that his father Sh Anwar Beg was the consumer of electricity connection installed at 1794, Gali Chabuk Sabar, Lal Kuan, Delhi and was having a small work of moulding business. Witness has stated that his father died on 11.05.02 during pendency of suit and was running the business of moulding and was having licence duly issued by licensing department. The witness has stated that the electricity charges were paid from time to time as per actual demand raised by the defendant through various electricity bills and electricity connection strictly used in accordance with terms and conditions as applicable to the Electricity Act. Witness has vehemently stated that the plaintiff Anwar Beg was never using any extra load and and has never violated terms and condition of electricity supply. Witness has stated that there was absolutely no fault in meter and no one objected from the department in respect of meter in question which was installed 40 years back . It was further deposed that on 06.04.98 neither the plaintiff nor his 7 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board father was present at the workshop when a red paper slip was found to be pasted on meter . On inquiry it was revealed that some official have come and pasted the said paper on meter . Witness has further stated that prior to alleged inspection the shunt capacitor was in operation , connected load was within the permissible limit and there were two moulding machine in existence in the shop out of which only one was working . Witness has further stated that on 16.04.99 staff of defendant came to site and threatened to disconnect the electricity which was resisted by him and his father as they have not violated any terms and condition, he and his father approached the senior officer of DVB where he was handed over a bill of Rs.1,55,008.31 paise in respect of power meter and Rs.6,647.53 paise in respect of light meter . Witness has stated that the bill is illegal and improper and there has been absolutely no extra load or theft being committed by him or his father The witness got exhibited the copies of bill as Ex PW1/1 and 2 respectively. Witness was cross examined at length by ld counsel for defendant who has asked various questions including competence of witness and specific question was asked regarding the witness being partner or proprietor in the firm of father . Witness has stated that he is now the sole proprietor and can even file the proof of the 8 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board same , but the same was not produced on date of examination. Witness has stated that he knew the fact of th case and the inspection was conducted in his absence . Witness got exhibited the inspection report as Ex PW1/DX1 and has stated that he did not write to the department against the inspection report and the connection has been used for manufacturing of plastic containers. Witness has failed to produce the authority/MCD licence on the date of examination.
The defendant was granted an opportunity to lead the evidence in support of its case and has even filed affidavit of one Sh S S Madan, Assistant Manager (RPL) . However the same was not allowed to be examined by the ld Predecessor of this court in view of non payment of cost taking recourse to section 35(B) of CPC 1908 and vide aforesaid order dated 02.02.05 the DE was also closed by order and as such no evidence has come on record on behalf of the defendant .
8. It would be pertinent to point out that the suit of the plaintiff was earlier dismissed by ld Predecessor of this court vide judgement and order dated 23.10.02 and alongwith the aforesaid an application u/o 22 Rule 3 CPC was also dismissed. Plaintiff preferred a 9 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board review petition before the ld Predecessor of this court which was also dismissed vide order dated 02.11.02 as passed by Ld Predecessor of this court . The plaintiff then preferred an appeal before the Ld Appellate court and vide judgement and order dated 17.02.03 as passed by the ld Appellate Court in RCA No. 224/02 not only judgement decree was set aside but the plaintiff through LR were granted one opportunity to lead evidence before the trial court and accordingly the trial was conducted before the Ld Predecessor of this court .
9. It would be further pertinent to point out that the court keeping in view the pronouncement of law laid down in 110 (2004) DLT 633 titled Sarjiwan Singh Vs D V B granted an opportunity to the plaintiff to take steps in accordance with law vide order dated 02.04.2009. However the plaintiff was granted repeated opportunities to do the needful and even the cost was imposed , however the plaintiff has failed to do so or avail the opportunity granted by the court and the court was constrained to close such opportunity vide order dated 07.01.2010.
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Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board
10. I have heard the ld counsel for the parties and perused the entire record including the pleadings , documents and oral testimony of witnesses recorded before the court. Before adverting to determination of issues it would be appropriate for the court to briefly discuss the law as it hold the field today in such cases. In Sarjiwan Singh Vs DVB reported as 110 (2004) DLT 633 our own Hon'ble High Court has succintly held that in case where injunction simplicitor is prayed for against receiving the electricity bill for sundry amount it cannot be mandatory for the plaintiff to seek a decree for declaration before being entitled to the consequential relief of injunction. Hon'ble Mr Justice Vikramjeet Sen of our own Hon'ble High Court while disposing of various civil writ petitions has held that in a case where the electricity bill raised by the electricity department is prima facie legal declaration must be prayed for that the bill is incorrect or illegal before the plaintiff could legally pray for an injunction on such bill. The Hon'ble court has further held that in such cases the plaintiff is also required to pay an advolarem court fees in terms of section 7 (iv) (c) of Court Fees Act and valuation of suit has to be varied because in that case same shall include a relief of declaration in respect of the bill. Hon'ble court further while explaining the issue regarding the injunction 11 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board and declaration has vehemently relied upon the pronouncement of law laid down in Shamsher Singh Vs Rajinder Prashad & Ors AIR 1973 SC 2384 (DB). It would be pertinent to quote the relevant para from the aforesaid judgement.
"....... the question whether the relief of injunction prayed for should be considered as a consequential relief to the main relief or not has to be decided on the basis of the allegation and prayer contained in the plaint. Mere astuteness in drafting the plaint will not be allowed to impede the court from looking at the substance of the relief asked for. In a case where there is no controversy from an intelligent reading of the plaint, the court is not required to go further and the relief of injunction can be granted but if from the written statement or the documents placed on record it is evidence that he plaintiff has made a narration which is not factually correct then under these circumstances injunction would become a consequential relief and it would be necessary for the plaintiff to first seek a declaration ......"
And as such emphasis has been held by the court to go into the Pith and Substance regarding the claim of the plaintiff. At the same time the Hon'ble court has warned against the instances of astuteness in 12 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board drafting the plaint.
Similarly in a case reported in 2001 (9) Apex Decision (SC) 559 Kameshwar Parsad Vs Parasnath & ors the Hon'ble Apex court has gone to the extent of holding that if the plaintiff is required to seek an essential relief at the time of filing the suit and such relief is not sought for in the plaint at the time of filing the suit it cannot be allowed to be continued and the plaintiff in such case has to be nonsuited. Accordingly as the law holds the field today the plaintiff has while questioned the inspection report dated 06.04.98 carried out by joint inspection team comprising of official from Enforcement MTD and Zone of defendant has in a way also questioned the consequent FAE bill to the tune of Rs.1,55,008.31 paise in respect of IP connection bearing No.0132107 and Rs.6,647.53 in respect of NP connection No 3994622 which the defendant stated to have raised on the basis of aforesaid inspection . In fact the plaintiff has sought an injunction against implementation of such FAE bills which are to the tune of Rs.1,55,008.31 paise and Rs.6,647.53 paise respectively . In view of the aforesaid discussion the plaintiff was required to seek a decree of declaration in respect of not only the inspection report but also the consequent FAE bill in view of the pronouncement of law 13 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board laid down in 110 (2004) DLT 633 Sarjiwan Singh (Supra), further the plaintiff was also required to pay an advalorem court fee in terms of section 7(iv) (c)of Court Fees Act. It has to be borne in mind that relief of declaration in the instant case was an essential relief which the plaintiff has failed to seek at the time of filing the suit and even failed to take steps to incorporate the same despite clear and categoric defence taken by the defendant in written statement and even opportunity being granted by the court vide order dated 02.04.09 and in view of law laid down in 2001 (9) Apex Decision (SC) 559 Kameshwar Parsad Vs Parasnath & ors (Supra) the plaintiff shall have to suffer a dismissal or omission to seek a necessary relief for which the plaintiff has failed to act . Be that as it may since the court is at the stage of final adjudication the court shall proceed to adjudicate the issues keeping in view the aforesaid discussion in mind. ISSUE No1 1. Whether DVB conducted illegal inspection dt. 06.04.98 and raised illegal impugned bill for Rs.6,647.53 paise & Rs.1,55,008.10 paise ?OPP The onus of proving this issue was on the plaintiff who was required to prove this issue in terms of allegations raised by the plaintiff and its plaint and deposition of PW1. While PW1 Arshad Mirza 14 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board son of the plaintiff in his deposition has tried to clearly and categorically stated that the alleged inspection dated 06.04.98 was carried out in his absence or in absence of his father and even the copy of inspection report was not supplied to him by the defendant . He has further stated that even no show cause notice was ever served upon him or his father or any opportunity of personal hearing was afforded to him before raising the impugned bill for sum of Rs.1,55,998.31 paise and Rs.6,647.53 paise respectively . Witness has even stated that on 06.04.98 when neither he nor his father was present at workshop a red paper was pasted on their meters and on inquiry it was revealed that the same was done by official of defendant DVB. The witness has further stated that even the shunt capacitor were in operation prior to alleged inspection and the connected load was well within the purview of sanctioned load . Witness has further stated that it was only on 16.04.99 when the defendant visited the workshop and threatened to disconnect the supply . He approached the higher officials of the defendant whereafter he was handed over the bill of Rs.1,55,008.31 paise and Rs.6,647.53 paise respectively and he was also threatened regarding disconnection of electricity as also lodging of FIR against his father . Plaintiff has tried to persuade the court that the bill 15 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board suffers from not only the substantive but also procedural irregularities which defendant is bound to follow in terms of settled law and requirement of serving show cause notice and opportunity of personal hearing to be afforded in such case before raising the bill . He has even relied upon the pronouncement of law laid down in 136 (2007) DLT 500 titled Udham Singh Vs BSES Rajdhani Power Ltd . The defendant on its part has tried to refute the contentions of the plaintiff on all these aspects by the testimonies of defendant witnesses. However the testimony of witnesses requires a critical analysis alongwith one interesting aspect in this case which is regarding competence of PW1 to depose in favour of the case of the plaintiff. The court has to see as to whether the plaintiff has been able to successfully show on record that the inspection report and the alleged bill for sum of Rs.1,55,008.31 paise and Rs.6,647.53 paise respectively was illegal or not and that can only be done subject to law of land as discussed in the preceding paras more particularly in view of the pronouncement of law laid down in 110 (2004) DLT 633 titled Sarjiwan Singh Vs DVB .
Admittedly neither the plaintiff has prayed for declaration declaring the impugned inspection report dated 06.04.98 or its consequent FAE bill dated 06.04.98 for sum of Rs.1,55,008.31 paise and 16 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board Rs.6,647.53 paise respectively as null , void and malafide nor appropriate court fees in terms of section 7 (iv) (c)of court fees Act has been paid. Plaintiff has utterly failed to act despite clear and categoric stand of defendant in Written Statement and the opportunity been granted by the court in its order dated 02.04.99 and in view of the aforesaid the court is of the considered opinion that the testimony of PW1 cannot be legally considered in evidence on this issue in the absence of the requisite legal steps and the plaintiff cannot be held to have discharged its onus at least to the extent of preponderance of probabilities. Another aspect which the court is required to see is the question regarding the competence of the plaintiff witness which the court shall discuss while adjudicating the remaining issues in forthcoming paras.
ISSUE No2 2. Whether the plaintiff is entitled to decree of permanent injunction ? OPP The onus of proving this issue was on the plaintiff .
Now this relates the entitlement of plaintiff to the relief of injunction as prayed for in the suit. The decision on this issue is wholly dependent and consequent upon the decision of the court on Issue No1. Admittedly the plaintiff has failed to prove on record that the alleged inspection dated 17 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board 06.04.98 alongwith the impugned FAE bill for the sum of Rs.1,55,008.31 paise and Rs.6,647.53 paise was illegal, null and void and as such the plaintiff cannot be said to be entitled to even the consequential relief of injunction claimed under the suit in the absence of main relief of declaration being prayed for and adjudicated upon. It may be further seen that even the plaintiff has failed to file any original documents on record and even the impugned bills which got exhibited on record as Ex PW1/1 and 2 respectively were photocopies of aforesaid bills . In so far as the credibility and competence of PW1 is concerned it may be sen that the witness has no where clarified as to how he has been deposing on behalf of the registered consumer M/s Sultan & Sons in respect of impugned IP connection and NP connection. To a specific question regarding as to whether he is a partner or proprietor of registered consumer M/s Sultan & Sons witness has stated that he is neither partner nor proprietor of the same and it was only after demise of his father he has become the sole proprietor of registered consumer M/s Sultan & Sons. However even the proprietorship documents in this respect was not brought to the court . Be that as it may the plaintiff has failed to prove this issue even to the extent of preponderance of probabilities and testimony of PW1 Arshad Mirza is not 18 Civil Suit No.986/06/99 Sh Mirza Anwar Beg Vs Delhi Vidyut Board even sufficient enough to prove the case of the plaintiff. In view of the aforesaid discussion the court is of the considered opinion that the plaintiff has failed to prove this issue even to the extent of preponderance of probabilities , this issue is accordingly decided against the plaintiff and infavour of the defendant.
RELIEF Relief In view of the aforesaid discussion and findings of the court, the court is of the considered opinion that the plaintiff has utterly failed to prove its case even to the extent of preponderance of probabilities The plaintiff is not entitled to any discretionary relief under Specific Relief Act, 1963 from this court . Suit of the plaintiff is accordingly dismissed , with no order as to costs. File be consigned to record room after due completion .
(MUKESH KUMAR GUPTA)
DATED 15.05.2010 SCJ/RC(NORTH)DELHI
ANNOUNCED IN THE OPEN COURT .
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