Delhi District Court
Shri Ajit Singh vs North Delhi Power Limited on 16 February, 2010
Civil Suit No.1115/06/99
Shri Ajit Singh Vs North Delhi Power Limited
IN THE COURT OF SH MUKESH KUMAR GUPTA SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI
Civil Suit No.1115/06/99
(Old Case: More than10 years old)
Shri Ajit Singh ,
S/o Sh. Narain Singh Yadav,
R/o Kh. 28/3J, Village, Libaspur,
New Delhi110042 ........Plaintiff
Vs
North Delhi Power Limited,
Through its CEO, Hudson Lines,
Kingsway Camp,
New Delhi110009. ........ Defendant
SUIT FOR DECLARATION MANDATORY
AND PERMANENT INJUNCTION
Date of institution of suit : 03.08.1999
Date of assignment to this court : 16.O2.2009
Date of hearing final argument : 02.02.2010
Date of Judgement : 16.02.2010
JUDGEMENT
1 By way of present judgement I shall conscientiously adjudicate upon the plaintiff suit of declaration, mandatory and permanent 1 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited injunction against the defendant seeking a decree of declaration in his favour against the defendant thereby declaring the levy of misuse charges and LPF surcharge by the defendant in the bills of the plaintiff as illegal and also declare the impugned demand of Rs.1,58,953.07ps in the impugned bill with due date 28.07.1999 as illegal, null and void . The plaintiff is also seeking a decree of mandatory injunction in his favour and against the defendant its agent, employee etc thereby directing them not to levy any misuser charges in the future bills of the plaintiff and to adjust the amount already paid by the plaintiff as misuse charges and excess charges on account of subletting and low power factor. The plaintiff is also seeking a decree of permanent injunction in his favour and against the defendant, its officials, agents etc. restraining them from recovering the penalties and arrears of penalties raised on account of alleged subletting and low power factory in the impugned bill with due date 28.09.1998, besides praying for costs of the suit.
2. Eschewing prolix details to the pleadings, crystallizing the same, the plaintiff is stated to be registered consumer of electricity in respect of K. No.5937830 installed at premises at Kh. No.28/3J, Village 2 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited Libaspur, Delhi110042 and the defendant is stated to be sole licensee within the meaning of section 22 of the Indian Electricity Act for production/generation and distribution of electricity in the State of Delhi. It is further averred in the plaint by the plaintiff that he has been using the electricity supplied by the defendant for running its small industry and and has been observing all the requirements mandated by the defendant from time to time and the plaintiff is making payment of all the legal and legitimate demands of the defendant in respect of the electricity consumed and as per the bills raised by the defendant month after month on the basis of the meter reading for which the employees of the defendant have been visiting the premises of the plaintiff compulsorily once in a month to note the meter reading and otherwise quite often for inspection. It is further averred in the plaint that all of a sudden in the bill for the month of April, 1999 the defendant started levying misuse charges and a misuse charge of Rs.7098/ under the column misuse charge was shown in the bill for the month of April, 1999. Moreover the energy charges were calculated at a rate much higher than the normal tariff. The plaintiff made a representation dated 24.04.1999 to now the basis of levying of misuse charge but the no rely of the said representation was given to the plaintiff 3 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited and in the last the plaintiff made the payment of the bill to the defendant to save himself from any coercive action of the defendant like disconnection. It is further stated in the plaint by the plaintiff that the defendant issued two bills for the month of May and June separately and both containing the misuse charges and bill containing illegal and arbitrary demand under the column misuse charges. In this regard, the plaintiff is stated to have made another representation dated 25.05.1999 but no reply of the said representation was ever sent to the plaintiff by the defendant. It is further stated in the plaint by the plaintiff that in the bill for the month of June 1999 the same misuser charges was also contained on huge exorbitant, illegal, arbitrary and vexatious demand of Rs.1,42,329.32ps under the column of miscellaneous charges but no basis were provided for raising such demand under the column Misc. charges. In this regard, the plaintiff is stated to have made a representation again dated 27.06.1999 to know the basis raising such huge demand but no reply of the said representation is sent to the plaintiff. It is further averred in the plaint that the plaintiff made inquiries from the office of the defendant for knowing the basis of raising such demand and at last it was transpired that the misuse charges/excess charges in the bill has been levied on the account of non 4 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited installation of shunt capacitors and the high tariff is levied due to subletting. It was further informed to the plaintiff that the miscellaneous charges shown in the bill is towards the arrears on the account of subletting and for not maintaining proper power factors as it was not explained to which period these arrears belong. The plaintiff submit that he himself is using the industry under partnership and there is no subletting at all. It is further averred that the defendant had never verified the power factor of the plaintiff's unit and the action of defendant in levying the surcharges for not maintaining the proper power factor is totally illegal, arbitrary, unjustified and against the Principles of Law and Natural Justice as no opportunity to explain has been given to the plaintiff by way of a show cause notice or otherwise before raising surcharges on account of low power factor (LPF). Since the plaintiff himself is using the industry there can be no question of subletting. Moreover the defendant is stated to have not given any opportunity to the plaintiff to explain by way of show cause notice or otherwise before raising such demand on the account of subletting. The action of the defendant is, therefore claimed to be totally illegal, arbitrary, unjustified and against the law and Principles of Natural Justice. It is further stated in the plaint that the plaintiff has not paid the bill 5 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited for the month of June, 1999 as the same was totally illegal, arbitrary, unjustified and contained huge exorbitant demand of Rs.1,53,953.97 ps which was not within the reach of the plaintiff. Hence the present suit, praying for a decree of declaration against the defendant declaring the levy of misuse charges and LPF surcharge by the defendant in the bills of the plaintiff as illegal and also declare the impugned demand of Rs.158,935.07ps in the impugned bill due dated 28.07.1999 as illegal null land void abinitio and the plaintiff has further prayed for a decree of a mandatory injunction thereby directing them not to levy any misuser charges in the future bills of the plaintiff and to adjust the amount already paid by the plaintiff as misuse charges and excess charges on account of subletting and low power factor. The plaintiff has further sought a decree of permanent injunction against the defendant, its officials, agents etc. restraining the defendant, its officials, agents permanent from recovery the penalties and arrears of penalties raised on account of alleged subletting and low power factory in the impugned bill dated 28.09.1998.
3. Written statement to the suit of plaintiff was filed by the defendant in which the defendant has denied each and every allegation 6 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited of plaintiff and has contended that the relief claimed in the plaint by the plaintiff is highly time barred, as the relief of declaration can be sought within three years from the date of cause of action but in the instant matter the alleged cause of action accrued in the month of April 1999 whereas the plaintiff has claimed the relief of declaration in July 2005. It is further contended that the cause of action accrued in the month of April 1999 as per the plaint and the sought the relief of declaration in July 2005 by moving an application under order 6 rule 17 CPC for amendment in the plaint which is highly time barred as per Limitation Act. On merits, It is further contended in the written statement by the defendant that as per the letter received from the enforcement department vide No. AE (Enf.) 000/212 dated 26.02.1999, the HT and shunt capacitor charges were levied w.e.f. 09.12.1997 and 09.06.1998 respectively and connected load was also found to be 64.75 KW in response to the said letter from enforcement department, an assessment bill for Rs.1,42,329.32ps was raised and debited in month of June, 1999 on the plaintiff. As the connection was not used by plaintiff and was subletted, hence he is liable to pay HT charges and surcharges on shunt capacitor as per inspection report dated 09.06.1998. It is further stated in the written statement that the bill is as per tariff and 7 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited plaintiff was also duly explained the bill. It is further contended in the written statement that the connection was subletted as per the inspection conducted by the defendant and the plaintiff was not maintaining PF against 0.85 and he is liable to pay HT w.e.f. 09.12.1997 and IPF charges w.e.f. 09.06.1998. It is denied by the defendant that the plaintiff is not liable to pay misuse charges and power factor charges. It is prayed that the suit of the plaintiff be dismissed with costs.
4. Vide order dated 24.05.2001 as passed by ld Predecessor of this court, the following issues were framed for adjudication: ISSUES (1)Whether DVB conducted illegal inspection on 09.06.1998 and raised an illegal bill for Rs.1,42,329.32ps? OPP.
(2)Whether plaintiff is entitled to decree of permanent injunction as prayed for ? OPP.
(3) Relief .
5. It is pertinent to point out that the suit as originally filed before the court on 03.08.1999 was a suit simplicitor for mandatory and permanent injunction . However in view of judgement reported in 110 8 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited (2004)DLT 633 titled Sarjiwan Singh Vs Delhi Vidyut Board wherein which our Hon'ble High Court has held that where the sundry bill raised by the defendant is challenged by the plaintiff he is required to seek a decree of declaration in respect of the impugned bill. The Hon'ble court has further held that the plaintiff in such case is also required to pay an ad valorum court fee under the provision of Section 7 (iv) (c) of Court Fee Act. Accordingly the plaintiff in the instant case moved an application u/o 6 rule 17 CPC for amendment of the plaint which was duly considered and allowed by this court vide order dated 06.10.05 and the plaintiff suit after amendment has become a suit for declaration, mandatory and permanent injunction. Defendant on its part filed a written statement to the amended plaint, thereby incorporating the preliminary objections regarding the relief of declaration being highly time barred.
6. Vide order dated 30.05.06 of ld Predecessor of this court following additional issue was framed for adjudication:
Additional Issue Whether the plaintiff is entitled for a decree of declaration as prayed in the amended plaint ? OPP 9 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited
7. Plaintiff in support of its case got examined himself as PW1 and filed his evidence by way of affidavit on record thereby reiterating the contents of the plaint on oath about he being using the electricity as per law and paying the consumption charges as per the bills received from time to time . The witness has stated that in the bill of April 1999 misuser charges of Rs.7098.80 paise was shown alongwith the energy charges being calculated higher than the normal tariff against which the plaintiff is stated to have made a representation on 24.4.1999 . The witness has further deposed that since no reply was received in respect of aforesaid representation the plaintiff made the payment of the aforesaid bill to save himself from coercive action of defendant like disconnection of electricity. Witness has further deposed that in the month of May 1999 the other bill was received which prepared on same pattern which was illegal and arbitrary alongwith energy charges being calculated at higher tariff than the normal. Plaintiff has further stated to have made representation on 25.5.1999 but of no avail. Plaintiff is stated to have made payment of said bill on 31.07.99. The plaintiff has further deposed that in the month of June 1999 another bill was received which was also prepared on high tariff but it also contained a huge exorbitant , illegal, arbitrary and vexatious 10 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited demand of Rs.1,42,329.32 paise against which he has again made a representation dated 27.6.1999 and on inqury running from pillar to post he has come to know that the misuser charges was levied on account of non installation of shunt capacitors and subletting. The witness has stated that he has already installed shunt capacitors of adequate capacity as per requirement. Witness has further stated that an appropriate power factor has not been applied for raising illegal, arbitrary unjustified bill against the Principle of Law and Natural Justice. Witness has stated that he has further made an application for reinspection of premises thereby depositing the necessary charges of Rs.200/ vide receipt No.133626 dated 30.06.1999 which got exhibited on record as Ex PW1/1. The witness has stated that the plaintiff has not paid bill of the month of June 1999 as the same is totally illegal, arbitrary, unjustified and contained a huge exorbitant demand of Rs.1,53,953.97 paise whereas the bill of July 1999 showed an amount of Rs.1,58,953.99 paise . Witness has categorically stated that the shunt capacitors was duly installed as per capacity and there has been no sub letting and plaintiff is not liable to pay any surcharge or misuse charges. The witness has stated that his suit is correct and the bill is liable to be quashed. Witness was cross examined at length by the ld counsel for 11 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited the defendant who during cross examination has asked various questions including informing the witness that an inspection was carried out on 09.06.98. The witness has stated that he has came to know about the said inspection when the bill of April 1999 was served upon him. Witness has refuted the connected load be found to be 64.75 KW.
8. Vide statement dated 27.08.2002 of ld counsel for the plaintiff the plaintiff evidence was closed in affirmative.
9. Defendant in support of its case got examined two witnesses one Sh Onkar Singh JE who got examined himself before the court as DW1 and was stated to be an Inspector posted in Enforcement III Shankar road and was stated to be a member of joint inspection team who is stated to have inspected the premises on 09.06.98. The witness has stated that at the time of inspection , the connection was being used by M/s J B B Plastic and the connected load was found to be 64.75 KW alongwith inadequate shunt capacitors and DG set was found to be installed at site of the capacity 62.5 KVA . The witness has stated that the consumer did not show any MCD licence and load report dated 09.06.98 on performa 12 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited No.002195 was prepared by him in his own handwriting on site , photocopy of the same got exhibited on record as Ex DW1/1. The witness was cross examined at length by ld counsel for plaintiff who has been put across various questions including misuser to which the witness has replied that he was informed about the user being M/s J B B Plastic by the plaintiff. Witness was cross examined even on the aspect of show cause notice or an opportunity of being hearing.
DW2 Sh L R Mehta stated to be another member of joint inspection team which carried out inspection at the premises of the plaintiff on 09.06.98 while posted as AE Enforcement , Shankar Road deposed on similar lines as that of DW1 and has stated that inspection report was prepared by the joint inspecting team on 09.06.1998 and the basis of inspection report he had issued a show cause notice to the plaintiff, photocopy of which got exhibited on record as Ex DW2/1 and the photocopy of surcharge notice got exhibited on record as Ex DW2/2. Witness has stated that the bill was raised on account of LPF and misuser charges. Witness was cross examined at length on the aspect of show cause notice to which he has stated that he do not remember as to how service of show cause notice was effected on the plaintiff . The witness during cross 13 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited examination has stated that it must have gone by post , however failed to bring in any postal receipt of the dispatch of show cause or surcharge notice. No other witness was examined by the defendant despite opportunity and vide order dated 20.09.04 of ld Predecessor of this court DE was closed by order .
10. It may be seen that after the additional issue was framed on 06.10.05 the plaintiff was granted opportunity to lead evidence on additional issue which was not led by the plaintiff and vide order dated 24.01.2007 of ld Predecessor of this court the plaintiff evidence was again closed by order .
11. No DE on additional issue was led despite opportunity and defendant evidence was again closed by order on 08.10.07.
12. It may be seen that at the time suit was filed in the year 1999, Delhi Vidyut Board (DVB) was in existence and was accordingly made defendant by the plaintiff. However the same was later on unbundled in the year 2003 and whereafter which the work of production, 14 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited transmission and distribution was separated and segregated and was allocated to different corporation/agencies, e.g. North Delhi Power Limited (NDPL) being the distribution company in the instant case. Plaintiff has moved an application u/o 22 rule 10 CPC which was allowed by the ld Predecessor of this court vide order dated 27.07.04 and defendant DVB was allowed to be substituted by the successor in interest namely NDPL .
13. I have heard the ld counsel for the parties and perused the entire record including the pleadings, documents and oral testimony of witnesses on record. I have given a thoughtful consideration to the aforesaid as also written submissions filed on record. The issue wise determination is as follows :
Issue No 1 & Additional issue : Whether DVB conducted illegal inspection on 09.06.1998 and raised an illegal bill for Rs.1, 42, 329.32ps? OPP.
Whether the plaintiff is entitled for a decree of declaration as prayed in the amended plaint ?
The onus of proving these two issues was held on the plaintiff and these two issues are tried together in view of the fact that they are interlinked to each other and the evidence led by the parties are 15 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited common on these two issues. These two issues deals with appreciation of entire fact and circumstances in respect of alleged inspection dated 09.06.1998 and impugned bill for sum of Rs.1,42,329.32 paise (though in the pleadings a bill of Rs.1,58,953.97 paise which the plaintiff has questioned as illegal, arbitrary , unjustified and against the principle of law and natural justice .) Though the plaintiff has not specifically questioned the alleged inspection report dated 09.06.1998 directly but in substance he has questioned the impugned bill with due date 28.07.99 for sum of Rs.1,58,953.97 paise on various grounds both substantive as well as procedural. The plaintiff has stated that no inspection has ever been carried out in his premises on 09.06.1998 nor he was given any opportunity by way of any show cause notice and opportunity of personal hearing to rebut the allegations , neither any speaking order was passed by the defendant before raising the impugned bill. The plaintiff on substantive aspect has stated that the plaintiff was never misusing the connection bearing K. No.5937830 which he has always been using for his own personal consumption and there has been absolutely no subletting as alleged . The plaintiff has further stated that the allegations regarding the shunt capacitors being not found of appropriate capacity are false , frivolous and 16 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited he was using the electricity in accordance with law . He has further stated that the bill with due date 28.07.99 for sum of Rs.1,58,953.07 paise containing LPF and misuser charges is totally unwarranted. The plaintiff has vehemently questioned the allegations regarding the shut capacitors being not found of appropriate capacity. It is the case of the plaintiff that the entire alleged inspection dated 09.06.1998 resulting into the impugned bill for sum of Rs.1,58,953.07 paise has been prepared by the defendant arbitrarily and without actual verification. Plaintiff has finally on procedural counts has stated that he has never served with any show cause notice or afforded an opportunity of personal hearing and impugned bill has been raised without following the Principle of Natural Justice , nor any speaking order has ever been passed . Plaintiff got examined himself before the court as PW1 and deposed the aforesaid contention on oath regarding the bill being prepared arbitrary, illegal and whimsical thereby raising that the defendant has failed to act despite his application for re inspection dated 30.06.1999, copy of which got exhibited on record as Ex PW1/1. The defendant on its part has categorically stated by examining two witnesses that the inspection was carried out at the premises of plaintiff on 09.06.1998 whereby which the connected load was found to the tune of 17 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited 64.75 KW, the shunt capacitors was found of lower capacity and the plaintiff was found misusing the electricity by subletting the same to one M/s J B B Plastic. Defendant has examined the witness DW1 Sh Onkar Singh and DW2 Sh L R Mehta stated to be the member of joint inspection team and the officials who have issued alleged show cause notice before issuance of the impugned bill. While the plaintiff has relied upon a number of judgements in respect of requirement of serving show cause notice before raising of misuser bill as 1994 (54) DLT 156 Rakesh Rubber Industries Vs MCD and 55 (1994) DLT 701 Sukhbir Singh vs MCD alongwith recent pronouncement of law laid down in 134 (2006) DLT 174 titled Bimla Gupta Vs N D P L . The defendant on its part has vehemently relied upon the pronouncement of law laid down in 1996 (4) SCC 522 titled M P State Electricity Board Jabalpur Vs. Harsh Wood Products & Another and has stated that no show cause notice is required in case of theft or pilferage of energy and has without prejudice to the aforesaid stated that a show cause notice dated 17.04.1998 Ex DW2/1 was given to the plaintiff in this case . The court shall consider all the aforesaid aspects carefully in the light of statutory provisions as also pronouncement of law laid down by the superior courts on this aspect from time to time.
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Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited
14. It may be seen that the present case pertains to year 1999 which is governed by the Indian Electricity Act 1910 though after amendment the new Electricity Act 2003 has come in vogue alongwith the various rules and regulations and even the erstwhile Delhi Vidyut Board has been unbundled and is being replaced by interalia amongst others the distribution companies such as NDPL , BSES Rajdhani Power Ltd and BSES Yamuna Power Limited within the territory of Delhi . So the case in hand is primarily governed by the existing provision of law and the perusal of entire Electricity Act 1910 shows the misuser has not been defined in any statutory provisions though the act stipulates theft of energy under the provision of section 39 of the Act . It may be seen that the law has been on development on this aspect since time inception of the procedure to be followed in case relating to misuser has been laid down from time to time by various superior courts which has now taken a concrete shape in the catena of judgements . Thereby keeping in view the basic underlying principle or the grundnorm remains the same which is Principle of Natural Justice which form the basis of evolved law of precedence. 19
Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited It has been held in 1994 (54) DLT 156 titled Rakesh Rubber Industry Vs MCD that Dishonest Abstraction of Energy requires following of principle justice which involves giving show cause notice to consumer followed by personal hearing is must before a theft or misuser bill is being raised against the consumer. Similar voice was echoed in pronouncement of law laid down by Delhi High Court in Sukhbir Singh Vs MCD 55 (1994) DLT 701 where the Hon'ble court has held :
We are of the view that before disconnection notice be issued , a detailed show cause notice ought to have been issued to the petitioner as to the manner in which demand has been arrived at. It is not proper for the respondent to have straightway issued a demand notice on the basis of inspection report .
Judgements on this aspect are numerous and need not be repeated . However the basic principle remains the same that if the misuser bill is raised against the consumer electricity authority is required to issue a show cause notice being given to the consumer/user who is also afforded an opportunity of hearing to controvert the allegations either in the form of reply or in the form of personal hearing followed by a speaking order there by declaring that the consumer was found indulged in use of the electricity except in accordance with law. In recent judgement of our 20 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited own Hon'ble High Court the Hon'ble court has gone to the extent of saying that the electricity company is even required to afford the consumer an opportunity to cross examined the official who has carried out the investigation and prepared the report at the time of personal hearing. In the instant case it may be seen that as per allegations of the plaintiff he was never supplied with any inspection report or a copy thereof , nor he has been associated with the alleged inspection. Te plaintiff has categorically refuted that he was never been found indulged in misuse of electricity and the shunt capacitors was found of a required capacity. Besides this the plaintiff has refuted the allegations of subletting raised by the defendant during all through the cross examination the defendant has failed to put any substantial dent in the testimony of plaintiff and even to a suggestion that the connected load was found to the tune of 64.75 KW, witness has replied in negative. Witness even during cross examination has been gone on the aspect that the shunt capacitors was installed finally at the time of enhancement of load The witness has categorically denied about the knowledge of inspection carried out on 09.06.1998. Though the defendant during cross examination has got exhibited the copy of the inspection report as Ex DW1/1. However it may be seen that at the place of consumer the 21 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited report mentioned 'refused to sign '. It has not been brought to the notice of the court as to who was available at the time of inspection , who has refused to sign on the report and as to whether the official of defendant have tried to know his identity or identification or any relation to the plaintiff. Case of the defendant is completely silent on the aforesaid aspect. Defendant on its part has further tried to depose during the testimony of its witness that the electricity was found being misused by subletting to one M/s J B B Plastic . However during cross examination witness has not been to clearly depose as to how he has come to the knowledge of aforesaid fact and has merely stated that it was told by the plaintiff. There has been no specification as to whether the plaintiff himself has told the factum of user of J B B Plastic to the official concerned or it has been otherwise inferred. Finally coming to the aspect of show cause notice grant of opportunity to the plaintiff to rebut the allegations of misuser and passing of an appropriate speaking order before raising of impugned bill. The defendant has stated that a show cause notice dated 17.06.98 Ex DW2/1 was issued to the plaintiff thereby calling upon the plaintiff to reply to the same within
15 days. DW2 Sh L R Mehta has stated that a show cause notice was issued whereafter which a speaking order Ex DW2/2 was issued . However 22 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited during cross examination the witness has failed to show as to how the notice was served upon the plaintiff and to specific question asked in this regard the witness DW2 has stated that he do not remember the service of show cause notice on the plaintiff . Even presuming that witness has forgotten the mode and manner in which the same was served upon the plaintiff due to lapse of time , however it may be seen that the witness has not been categorically deposed about the fact as to whether the same was served upon the plaintiff in person or his representative or even by post. Witness has vaguely replied that the same must have been gone by post. However the witness has failed to show on record any postal receipt or dispatch of surcharge notice on the plaintiff much less to show that the same was duly served upon the plaintiff or his authorized representative thereby affording him an opportunity to rebut before issuance of impugned bill which is a mandatory requirement in view of settled law laid down in 55 (1994) DLT 701 (Supra). And as such the court is of the considered opinion that the show cause notice has not been duly served upon the plaintiff before raising the impugned bill. Other aspect regarding shunt capacitor being found of lower capacity has also been not duly proved by the defendant while the plaintiff has been able to refute the same by way 23 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited of his almost undented testimony. The aspect of subletting has already been discussed in preceding paras and the plaintiff has even substantiated his claim on the aforesaid aspect also. In view of the aforesaid discussion on all the aspects the court is of the considered opinion that the inspection dated 09.06.1998 at the premises of plaintiff by the joint inspection team of defendant cannot be held to be carried out in accordance with law and inspection report dated 09.06.1998 being prepared strictly in accordance with law and provisions of Electricity Act 1910 and Tariff Provisions then in vogue. The inspection report and the impugned bill cannot sustain rigours of law both on procedural as well as substantive counts and in view of the discussion held the court is of the considered opinion that the plaintiff has been able to succintly show on record that the inspection carried out by official of DVB on 09.06.1998 was not carried out in accordance with law and procedure, defendant has failed to follow the procedural requirement being followed before raising the impugned bill for Rs.1,58,953.07 paise vide bill with due date 28.07.99. The plaintiff succeeds on both the counts and as such is entitled to declaration in respect of relief claimed also the alleged inspection dated 09.06.98 and the impugned bill of Rs.158,935.07ps issued against K. No.5937830 are declared as illegal, 24 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited arbitrary unjustified null and void and raised without following due process of law . These two issues are accordingly decided in favour of the plaintiff and against the defendant .
ISSUE No2 Whether plaintiff is entitled to decree of permanent injunction as prayed for ? OPP.
The onus of proving this issue was on the plaintiff who has prayed for a decree of permanent injunction against the defendant its officials etc restraining them from recovering the penalties and arrears of penalties raised on account of alleged subletting and low power factor in the impugned bill . Plaintiff has duly supported its case as discussed earlier by way of its oral testimony as PW1 and in view of the findings of the court on additional issue framed on 30.05.06 where the court has held that the plaintiff has been successful in establishing its case to the extent of preponderance of probabilities and the plaintiff is entitled to the relief of declaration in respect of alleged inspection dated 09.06.98 for sum of Rs.1,42,329.32 paise , the plaintiff shall also be accordingly entitled to consequential relief of permanent injunction as prayed for . Contrary to aforesaid the defendant has utterly failed to show anything on record dis 25 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited entitling him to such relief . Accordingly this issue is also decided in favour of the plaintiff and against the defendant .
ISSUE NO 3 Relief In view of the aforesaid discussion and findings of the court the court is of the considered opinion that the plaintiff has been successful in establishing its case to the extent or preponderance of probabilities for the relief claimed in the suit. The impugned inspection report dated 09.06.98 carried out by the official of defendant (erstwhile DVB) in respect of K No.5937830 installed at Kh. No.28/3J, Village Libaspur, Delhi is declared illegal , unjustified, null and void and carried out without following due process of law. The inspection report dated 09.06.1998 and the bill for Rs.1,58,953.07 paise are accordingly quashed . Defendant its official, agents etc are permanently restrained from taking any action on its aforesaid inspection report or on its bill dated 09.06.1998 except in accordance with law . Suit of the plaintiff is accordingly decreed with direction that the amount deposited pursuant to order of the court dated 01.09.99 be adjusted against the future consumption of electricity/demand raised by the defendant. In the specific facts and 26 Civil Suit No.1115/06/99 Shri Ajit Singh Vs North Delhi Power Limited circumstances of the case parties are left to bear their own respective costs . Decree Sheet be drawn accordingly. File be consigned to Record Room after due completion.
(MUKESH KUMAR GUPTA)
DATED 16.02.2010 SCJ/RC/(NORTH/DELHI.
ANNOUNCED IN OPEN COURT.
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