Delhi District Court
Shanti Lal Malhotra vs North Delhi Power Limited on 20 August, 2018
Shanti Lal Malhotra v. North Delhi Power Limited
IN THE COURT OF MAYANK MITTAL : CIVIL JUDGE - 08 (CENTRAL),
ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 96641/16 (OLD NO.645/17)
In the matter of :
Shanti Lal Malhotra,
S/o Late Ujjagar Mal Malhotra,
R/o 3444, Arya Pura,
Subzi Mandi, Delhi - 110 007. ...PLAINTIFF
VERSUS
North Delhi Power Limited
Through its Chief Executive Officer,
Hudson Lines, Kingsway Camp,
Delhi - 110 009. ...DEFENDANT
Date of institution : 07.05.2005
Date of judgment : 20.08.2018
SUIT FOR DECLARATION, MANDATORY AND PERMANENT
INJUNCTION
J U D G M E N T
1.Vide this judgment, I shall decide the suit for declaration, mandatory and permanent injunction filed by the plaintiff against the defendant.
2. The necessary facts as deposed by the plaintiff are that the plaintiff is the owner of the House No.3444, Arya Pura, Old Subzi Mandi, Delhi - 110 007. The said premises were previously occupied by one tenant Sadhu Ram Mahesh Kumar who had been the registered consumer of electricity CS No.96641/16 (old No.645/17) Pg 1 of 16 Shanti Lal Malhotra v. North Delhi Power Limited connection No.35100203388 of 7.4 kwts. load and after they left the premises, the plaintiff is using the said supply for lighting purposes only. The plaintiff requires the load of 2 kwt. single phase connection at the said premises, hence, the plaintiff requested the defeated on 11.12.2004 for granting of 2 single phase kwts. connection and disconnection and removal of three phase connection in the name of Sadhu Ram Mahesh Kumar. The plaintiff also completed all the formalities for grant of 2 kwts load connection and submitted all the papers including the copy of the last paid bill of the existing connection mentioned above. As per regulation No.4 of D.E.R.C. Regulations, 2002, the defendant was bound to issue the receipt and point out any short comings in the application within two days and within seven days after the acceptance of the application the defendant was bound to sanction the load and raise a demand note under proper receipt to the plaintiff giving break up of estimate of applicable including advance consumption deposit for providing the connection or inform/ intimate the applicant/plaintiff if it is not feasible or is violative of any principles of law. The defendant has failed to intimate either to give any information or refused to grant to connection on any ground whatsoever till date. The area in question is electrified and premises itself is electrified as the connection in the name of the previous tenant/registered connection exists in the same CS No.96641/16 (old No.645/17) Pg 2 of 16 Shanti Lal Malhotra v. North Delhi Power Limited premises. The plaintiff has been forced to make payment of the fuel charges upto February, 2005. The plaintiff was asked to deposit again against the connection No.35100203388 and the new connection shall be given in the name of the plaintiff if the plaintiff makes the payment of Rs.1520/ which were paid by the plaintiff immediately vide receipt No.164 on 19.02.2005 and Rs.1520/ was again deposited on 24.02.2005 vide receipt No.564 just to avoid displeasure of the defendant, so that the new connection may be installed in the name of the plaintiff. The defendant has failed to grant the new connection in the name of plaintiff for 2 kwts single phase in premises No.3444, Arya Pura, Subzi Mandi, Delhi - 110 007. Now a fresh bill of Rs.17,463/ payable by 29.04.2005 has been raised by defendant against the said connection which includes Rs.71,069.57/ relates to NF for the period 2000 to 2002 is liable to be declared as null and void and not payable by the plaintiff, thereby defendant is also liable to be restrained from raising the said demand from the plaintiff or disconnecting the said connection on the basis of the same. Defendant is also liable to be directed by way of decree of mandatory injunction to install the 2 kwts single phase connection in the name of the plaintiff at 3444, Arya Pura, Subzi Mandi, Delhi - 110 007.
3. The defendant filed written statement controverting the claim of the plaintiff CS No.96641/16 (old No.645/17) Pg 3 of 16 Shanti Lal Malhotra v. North Delhi Power Limited and submitted that the connection bearing K.No.35100203388 is installed at 3443/44, Arya Pura, Subji Mandi, Delhi, in favour of M/s. Sadhu Ram Mahesh Kumar for sanctioned load of 7.46 KW. The existing connection pertains to Industrial Category, which is existing in an unauthorized area i.e. non confirming area. In pursuance to 'M.C. Mehta v. UOI' the MCD had issued a notification in October, 2000 to stop the industrial activity in those areas and it was further circulated by the erstwhile DVB that the tariff as applicable in those areas is required to be charged against the Industrial Connection. In view of the aforesaid, the adhoc license was revoked by MCD and higher tariff was charged w.e.f. October, 2000. As such, bill of the plaintiff was revised from November, 2000 and outstanding dues were accordingly revised. The outstanding dues were raised for the period from November, 2000 till 2002 only and as per the ruling of Supreme Court in "Dinesh Kumar v. MCD"; "Swastik Enterprises v. Maharashtra State Electricity Board", it has clearly been held that there is no limitation period to recover the outstanding dues as these dues fall in the category of "Escape demand". The connection bearing K.No.35100203388 is installed at 3443/44, Arya Pura, Subji Mandi, Delhi, in favour of M/s. Sadhu Ram Mahesh Kumar for sanctioned load of 7.46 KW. It is submitted that the plaintiff was using the electricity supply for industrial activity and not for CS No.96641/16 (old No.645/17) Pg 4 of 16 Shanti Lal Malhotra v. North Delhi Power Limited domestic use. For conversion of category of electricity supply or for disconnection of supply or for new connection of electricity, all outstanding dues are required to be cleared against the existing connection. Merely completion of commercial formalities would not entitle the plaintiff for grant of load of 2.00 KW till the time he does not clear all outstanding dues against the existing connection. It is further submitted that DERC (Metering and Billing) Regulations clearly provides that outstanding dues are to be cleared against the existing connection for change of name, new connection or disconnection of supply. In the present case as an outstanding dues of Rs.18,735/ was pending against the existing connection, his case could not be processed further by the defendant. The plaintiff till February, 2005 has paid the current consumption charges and not the charges on which higher tariff was levied as the plaintiff was using the electricity connection for industrial purposes in non confirming areas.
4. Plaintiff filed replication to the written statement of the defendant denying the case of the defendant; reiterating and reaffirming the case as set up by the plaintiff in the plaint.
5. Vide order dated 26.07.2006, following issues were framed for trial:
1. Whether the plaintiff is entitled for the relief of declaration? OPP
2. If issue No.1 is decided in favour of plaintiff, CS No.96641/16 (old No.645/17) Pg 5 of 16 Shanti Lal Malhotra v. North Delhi Power Limited whether plaintiff is entitled to the relief of mandatory and permanent injunction, as prayed for? OPP
3. Relief.
6. Plaintiff in order to prove his case, examined himself as PW1 by way of his affidavit Ex.P1. PW1 relied on following documents:
1. Ex.PW1/1 photocopy of letter written by Shanti Lal Malhotra to NDPL dated 11.12.2004.
2. Ex.PW1/2 photocopy of letter written by Shanti Lal Malhotra.
3. Ex.PW1/3 photocopy of "Aavedan Patra aevam Ikrarnama"
4. Ex.PW1/3A electricity bill with due date 29.11.2004.
5. Ex.PW1/3 B original receipt dated 19.11.2004.
6. Ex.PW1/4 electricity bill with due date 28.12.2004.
7. Ex.PW1/4A original receipt dated 27.12.2004.
8. Ex.PW1/5 electricity bill with due date 25.01.2005.
9. Ex.PW1/5A original receipt dated 19.01.2005.
10. Ex.PW1/6 electricity bill dated 27.02.2005.
11. Ex.PW1/6A original receipt dated 24.02.2005.
12. Ex.PW1/7 photocopy of some untitled receipt.
13. Ex.PW1/8 photocopy of installation test notice.
14. Ex.PW1/9 electricity bill dated 27.02.2005.
CS No.96641/16 (old No.645/17) Pg 6 of 16 Shanti Lal Malhotra v. North Delhi Power Limited
15. Ex.PW1/10 photocopy of receipt dated 19.02.2005.
16. Ex.PW1/11 is not on record.
17. Ex.PW1/12 electricity bill with due date 30.03.2005.
18. Ex.PW1/13 electricity bill with due date 29.04.2005.
19. Ex.PW1/14 photocopy of electricity bill with due date 28.05.2005.
20. Ex.PW1/15 photocopy of electricity bill with due date 28.06.2005.
21. Ex.PW1/16 photocopy of electricity bill with due date 28.07.2005.
22. Ex.PW1/17 photocopy of electricity bill with due date 30.08.2005.
23. Ex.PW1/18 photocopy of electricity bill with due date 26.09.2005.
24. Ex.PW1/19 photocopy of electricity bill with due date 25.10.2005.
25. Ex.PW1/20 photocopy of electricity bill with due date 25.11.2005.
26. Ex.PW1/21 photocopy of electricity bill with due date 23.12.2005.
27. Ex.PW1/22 photocopy of electricity bill with due date 30.01.2006.
28. Ex.PW1/23 photocopy of electricity bill with due date 27.02.2006.
29. Ex.PW1/24 photocopy of electricity bill with due date 16.03.2006.
30. Ex.PW1/25 photocopy of electricity bill with due date 17.03.2006.
31. Ex.PW1/26 photocopy of electricity bill with due date 29.03.2006.
32. Ex.PW1/27 photocopy of electricity bill with due date 28.04.2006.
33. Ex.PW1/28 photocopy of electricity bill with due date 31.05.2006.
34. Ex.PW1/29 photocopy of electricity bill with due date 29.06.2006.
CS No.96641/16 (old No.645/17) Pg 7 of 16 Shanti Lal Malhotra v. North Delhi Power Limited
35. Ex.PW1/30 photocopy of electricity bill with due date 28.07.2006.
7. Defendant has also examined DW1 Sh. Vishal Mittal, who tendered his evidence by way of affidavit Ex.DW1/A. He relied on the following documents:
1. Ex.DW1/1 copy of statement of account.
2. Ex.DW1/2 copy of meter book sheet.
8. I have heard the arguments and perused the record. Issue wise findings as follow: ISSUE NO.1 Whether the plaintiff is entitled for the relief of declaration? OPP
9. The burden of proving this fact was on plaintiff. In order to discharge this burden, the plaintiff had examined himself as PW1. PW1 in his affidavit of examinationinchief has reiterated and reaffirmed all the contents of his plaint. In his crossexamination, PW1 has stated that the connection has been sanction for a sanction load of 7.4 HP. PW1 had further stated that connection has been sanctioned in the name of Sadhu Ram Mahesh Kumar who was tenant in the premises bearing No.3444, Arya Puri, Old Subzi Mandi, Delhi - 110 007. PW1 had stated that tenant was in possession of MCD licence at that time of the sanction of electricity connection. PW1 had admitted it to be correct that the MCD licence is not on record. PW1 had CS No.96641/16 (old No.645/17) Pg 8 of 16 Shanti Lal Malhotra v. North Delhi Power Limited stated that he had filed the present suit challenging the demand of Rs.17,463/ raised by the defendant. PW1 had stated that electric connection is still lying and being used by him for domestic purposes.
10. The defendant had examined Sh. Vishal Mittal, H.O.G. Civil Lines, North Delhi Power Ltd. in order to rebut the case and evidence brought by the plaintiff. DW1 had reiterated and reaffirmed all the averments made in the written statement in his affidavit of examinationinchief.
11. I have heard the arguments and perused the record.
12. In the present case, the plaintiff had sought the declaration of bill raised by defendant to the tune of Rs.17,463/ as illegal, null and void and not payable by plaintiff in any manner on the ground that earlier the suit premises was in the possession of his tenant and when tenant had left the premises, and plaintiff had applied for substitution of existing connection with a connection for only 2 kwts single phase, the defendant had earlier asked the plaintiff to deposit the sum of Rs.1520/ twice and despite the fact that plaintiff had deposited this amount, the new connection was not installed on the ground that a bill of Rs.16,544.57/ is pending after adjusting of Rs.1520/ already paid by the plaintiff. It is submitted on behalf of plaintiff that said amount can not be recovered by the defendant as defendant is allegedly recovering this amount for a period from November, CS No.96641/16 (old No.645/17) Pg 9 of 16 Shanti Lal Malhotra v. North Delhi Power Limited 2000 till 2002 and such demand is barred under the provisions of Section 56 (2) the Electricity Act, 2003. The plaintiff had also submitted that at that time, premises in question was being used by the tenant and accordingly if any such demand is to be raised, such demand is to be raised against the tenant concerned and not against the plaintiff.
13. It is submitted by the defendant that the defendant had raised the alleged demand of Rs.17,463/ in pursuance of the decision of Hon'ble Apex Court in case of M.C. Mehta v. UOI. As per the law explained by Hon'ble Supreme Court in case of Swastik Industries v. Maharashtra State Electricity Board, AIR 1997 SC 1101, there is no limitation period to recover the outstanding dues as these dues falls in the category of escape demand. At the time of arguments, the counsel for defendant had also brought attention to this court towards Section 145 of the Electricity Act for the purposes of his submission that as present suit is predominantly a suit disputing the bill raised by the defendant against the plaintiff, this court does not have jurisdiction to try the present suit.
14. In the present case, though plaintiff has relied on Section 56 (2) of the Electricity Act, 2003 for the purposes of his contention that the claim raised by the defendant against the plaintiff is time barred as same has not been recovered by the defendant within a period of two years from the day when CS No.96641/16 (old No.645/17) Pg 10 of 16 Shanti Lal Malhotra v. North Delhi Power Limited such amount had become due, the plaintiff itself has admitted the ratio of case decided by Hon'ble Apex Court in Swastik Industries (supra) in the present case to the effect that such demand can be raised by defendant at any time under the term Escape Fund, however, the counsel for plaintiff has submitted that ratio of these cases does not apply in the present case as nowhere in that case it has been stated that such demand can be raised against any person other then the actual user after the departing of the actual user from the premises. The court is of view that plaintiff had though stated that plaintiff is using the suit premises for residential purposes only, the plaintiff has nowhere stated that tenant of plaintiff who was earlier using the suit premises was also using the same for domestic purpose or the tenant of plaintiff was not using the said premises for commercial/unauthorized purposes. As it has been explained very clearly by Hon'ble Apex Court in case of Swastik Industries v. Maharashtra State Electricity Board, AIR 1997 SC 1101 that: "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, it does not take CS No.96641/16 (old No.645/17) Pg 11 of 16 Shanti Lal Malhotra v. North Delhi Power Limited away the right conferred on the Board 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 may be, when the consumer neglects to pay the charges. The intendment appears to be that the obligations are mutual. The Board would supply electrical energy and the consumer is under corresponding duty to pay the sum due towards the electricity consumed. Thus, the Electricity Board, having exercised that power, since admittedly the petition had neglected to pay the bill for additional sum, was right in disconnecting the supply without recourse to filing of the suit to recover the same. The National Commission, therefore, was right in following the judgment of the Bombay High Court and allowing the appeal setting aside, the order of the State Commission.
Moreover, there is no deficiency of service in making supplementary demand for escaped billing. There may be negligence or collusion by subordinate staff in not properly recording the reading or allowing pilferage to the consumers. That would be deficiency of service under the Consumer Protection Act. We do not find any illegality warranting interference".
15. As it has been explained by Hon'ble Apex Court in the case cited above that Electricity Board i.e. defendant in the present case, can raise the said demand at any point of time under the term Escape Fund, the bill raised by the defendant against the plaintiff does not appear to be irregular/illegal in CS No.96641/16 (old No.645/17) Pg 12 of 16 Shanti Lal Malhotra v. North Delhi Power Limited any manner. The contention of plaintiff that rule laid down by Hon'ble Apex Court in case of Swastik Enterprises v. Maharashtra State Electricity Board does not apply to the plaintiff as plaintiff was not actual user of electricity in the year 2000 to 2002 is also misfounded as it was the tenant of plaintiff who was occupying the said premises with the permission of plaintiff only and plaintiff if pay the said charges is at liberty to recover the same from his erstwhile tenant. As argued by counsel for defendant that the electricity rules are categorically clear with regard to the fact that before change in the name of the user or for new electricity connection in the same premises, the payment of arrears of electricity bill is required to be deposited by the person who is interested in change of name or getting another electricity connection in same premises, it can not be said that bill raised by the defendant is not payable by the plaintiff. Accordingly, no defect/illegality/irregularity is found in the bill amounting to Rs.17,463/. Accordingly, no decree of declaration can be passed in favour of plaintiff and against the defendant. Even otherwise, the court has found force in the submission of counsel for defendant that the present suit has been brought by the plaintiff for disputing the bill raised by the defendant company, which in short can be said to be a billing dispute. As it is clear from the bare reading of Section 126, the Electricity Act, 2003 that "if on an inspection of CS No.96641/16 (old No.645/17) Pg 13 of 16 Shanti Lal Malhotra v. North Delhi Power Limited any place or premises if inspection of the equipments, gazettes, machines, devices even connected or used or after inspection of records maintained by any person, the Accessing Officer comes to the conclusion that such person is indulging in unauthorized used and occupation...", the bill raised by the defendant in pursuance of order of Hon'ble Apex Court in case of M.C. Mehta v. UOI must be covered under the "after inspection of records maintained by any person" and is accordingly within the purview of Section 126 of Electricity Act, 2003. In view of abovesaid finding, the suit of plaintiff does not appear to be maintainable before this court.
16. Issue is decided against the plaintiff.
ISSUE NO.2 If issue No.1 is decided in favour of plaintiff, whether plaintiff is entitled to the relief of mandatory and permanent injunction, as prayed for? OPP
17. The burden of proving this issue was on the plaintiff. It becomes clear that this issue was to be decided only if the issue No.1 was decided in favour of plaintiff, however, without considering that this issue is dependent on the favourable outcome of the issue No.1 in favour of plaintiff, this court is proceeding further to decide this issue on merits. It has been submitted by the counsel for plaintiff that injunction as sought by the plaintiff is not covered under the bar created by Section 145 (later part) of the Electricity CS No.96641/16 (old No.645/17) Pg 14 of 16 Shanti Lal Malhotra v. North Delhi Power Limited Act, 2003 as bar created by Section 145 of the Electricity Act, 2003 with respect to the injunction is only with regard to the matters covered under Section 126 and 127 of the Electricity Act. It has been submitted by the counsel for plaintiff that later part of Section 145 of Electricity Act is not independent in itself and scope of later part of Section 145 of Electricity Act, 2003 is subject to the first part of Section 145 of the Electricity Act, 2003. Counsel for defendant had vehemently opposed the arguments and had stated that later part of Section 145 of Electricity Act, 2003 does not subject to the first part of Section 145 of Electricity Act, 2003.
18. The court has perused Section 145 of Electricity Act, 2003. After hearing the arguments of both the counsel for parties and from the wording of Section 155 of Electricity Act, 2003, the court is of view that later part of Section 145 of Electricity Act, 2003 is not subject to the first part of Section 145 of Electricity Act, 2003 in any manner whatsoever. When Section 145 of Electricity Act, 2003 later part is considered to be independent of first part of Section 145 of Electricity Act, 2003, there is no hesitation of any sort in reaching to the conclusion that no suit for seeking injunction is maintainable before the civil court. An observation made by Hon'ble High Court of Delhi in case of B.L. Kantro v. BSES Rajdhani Power Ltd. 2008 SCC Online Del 1097 is very relevant, wherein it has been observed by Hon'ble High Court of CS No.96641/16 (old No.645/17) Pg 15 of 16 Shanti Lal Malhotra v. North Delhi Power Limited Delhi that "it is also directed by the legislature in the same very Section 145 independently that no injunction shall be granted by the court or authority in respect of any action under the Act". Accordingly, no relief of injunction as sought by the plaintiff can not be granted by this court. This issue is also decided against the plaintiff.
RELIEF
19. In view of the discussion on the issues herein above, the suit of the plaintiff is dismissed.
Decree sheet be prepared accordingly.
File be consigned to Record Room. Digitally signed
by MAYANK
MITTAL
MAYANK Date:
MITTAL 2018.08.21
17:00:25
+0530
Announced in the open court (Mayank Mittal)
on 20.08.2018 Civil Judge - 08 (Central)/Delhi
CS No.96641/16 (old No.645/17) Pg 16 of 16