Delhi District Court
Sh. Yogendra Kumar Sharma vs Bses Yamuna Power Ltd on 5 November, 2014
IN THE COURT OF SH. RAJINDER SINGH, ADMINISTRATIVE
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER-CUM-
COMMERCIAL CIVIL JUDGE (NORTH-EAST),
KKD COURTS, DELHI.
Suit No. 104/14
Unique Case ID No.: 02402C0168712014
In the matter of :
Sh. Yogendra Kumar Sharma
S/o Late Sh. Ishwar Chand Sharma
R/o H.No. C-163/2, Main Nala Road,
Bhagirthi Vihar,
Delhi-110094.
.......Plaintiff
Versus
BSES Yamuna Power Ltd.
Through its Chief Executive Oficer
Shakti Kiran Building,
Karkardooma,
Delhi-110032.
......Defendant
Date of Institution : 03.06.2014
Date of Final Argument : 03.09.2014
Date of Pronouncement : 05.11.2014
ORDER ON THE APPLICATION U/O 7 RULE 11 CPC
1.The plaintiff has filed a suit for declaration, cancellation, permanent and mandatory injunction. It is Suit No. 104/14 Page 1 to 6 submitted that the plaintiff is the owner and in possession of property bearing no. C-163/2, Main Nala Road, Bhagirthi Vihar, Delhi-94. The plaintiff obtained a domestic electricity connection no. 1251232092 at the aforesaid address. The plaintiff has payed all the electricity bills upto 05.4.14. In the month of May 2014 the plaintiff received an electricity bill wherein the category of tariff with regard to his electricity meter was changed from domestic to non-domestic. In the bill the plaintiff was also requested to clear the dues in the sum of Rs.18,107.05 with regard to enforcement bill no. YMENF 190320140047R1.
2. After discussion with the officials of the defendant the plaintiff came to know that it was a case of misuse of electricity. It is submitted that the plaintiff was not given any prior information about this alleged misuse. The plaintiff has made several complaints to the office of the defendant, despite such complaints the tariff category has not been changed from non- domestic to domestic. No information was given to the plaintiff about the reason for the change of category of the tariff. The officials of the defendant have allegedly shown the sanctioned load of 2 kw on 06.5.14, in the electricity connection of the plaintiff, instead of 1 kw. The explanation made by the plaintiff was not considered by the defendant. The plaintiff has never used the alleged load of 2 kw.
3. It is prayed that decree of declaration in favour of the plaintiff and against the defendant may be passed declaring the Suit No. 104/14 Page 2 to 6 bill dated 10.5.14 as null and void. Further, the enforcement bill no. YMENF 190320140047R1 be also declared null and void. The plaintiff has also prayed for cancellation of these two bills. Permanent injunction is sought to restrain the defendant and persons claiming through it from disconnecting the electricity supply and connection no. 1251232092, installed at the premises of the plaintiff. Mandatory injunction is sought by the plaintiff against the defendant and persons claiming through it, directing the defendant to change the tariff category from non- domestic to domestic and the sanctioned loan from 2 kw to 1 kw in respect to connection no. 1251232092.
4. The defendant filed an application under Order 7 rule 11 CPC. Therein it is stated that the plaintiff is challenging the demand raised regarding unauthorized use of electricity connection. This matter is covered u/s 126 of the Electricity Act, 2003. The matters covered u/s 126 and 127 of the Electricity Act, 2003 cannot be dealt with by the Civil Court. In such matters the jurisdiction of the Civil Court is barred by virtue of Section 145 of the Electricity Act, 2003. The matters referred u/s 126 of the Electricity Act, 2003 are appealable as per provisions of Section 127 of the Electricity Act, 2003.
5. Arguments heard.
6. It was argued on behalf of the defendant/applicant that by virtue of Section, 126, 127 and 145 of the Electricity Act, 2003 the Civil Court is barred from entertaining the present suit.
Suit No. 104/14 Page 3 to 6 The plaintiff was indulging in misuse of the electricity connection. The connection was granted for domestic use whereas the plaintiff is using it for non-domestic purpose. The Civil court cannot decided whether it is a case of mis-use or not. By virtue of notification no. FH(93)/2003/Power/1154 Dated 05.05.06 the ADM concerned is the appellate authority with regard to Section 127 of the Electricity Act, 2003.
7. It was argued on behalf of the plaintiff that in the plaint injunctions have been sought. Such injunctions can be granted by the Civil Court. The tariff category of the plaintiff's electricity connection was changed without notice. The defendant says that it was a case of mis-use of electricity but for the purpose of deciding an application under Order 7 rule 11 CPC only the plaint and the accompanying documents are to be seen.
8. It is settled law that at the stage of consideration of the application under Order 7 rule 11 CPC, only the plaint and the accompanying documents are to be seen. The defence raised by the defendant cannot be examined at this stage.
In the present case the defendant has filed the Provisional Assessment Order dated 20.3.14 which was made u/s 126 of the Electricity Act, 2003. This Provisional Assessment Order is addressed to the plaintiff and purported to have been sent to the plaintiff through regd. post/speed post. Photocopy of the Provisional Assessment Bill for tariff Suit No. 104/14 Page 4 to 6 violation in the name of the plaintiff is also placed on record. Photocopy of the Enforcement Inspection Report is also filed by the defendant. Therein it is mentioned that it is a case of misuse. Photocopy of letter dated 18.6.14 addressed to the plaintiff for the misuse of electricity connection is also placed on record. In the plaint the plaintiff has stated that upon getting the bill dated 10.5.14 he approached the officials of the defendant, however, they did not listen to his complaints. In para no. 5 of the plaint the defendant has given details of the complaints sent by him with regard to the bill dated 15.4.14. In such circumstances it is highly improbable that the plaintiff is not aware of the developments as disclosed from the documents filed by the defendant. These documents were addressed to the plaintiff. During the course of the arguments the plaintiff did not deny having received the Provisional Assessment Order and the accompanying documents. At the cost of repetition it may be observed at this stage only the plaint and the accompanying documents are to be seen. However, where the plaintiff having knowledge of certain documents deliberately omits to mention that in the plaint, the afore-mentioned rule cannot be allowed to be misused by the plaintiff.
Documents relied upon by the defendant are part of the official proceedings. Even if it is presumed that the defendant has wrongly made out a case of misuse of Suit No. 104/14 Page 5 to 6 electricity connection against the plaintiff, it can be only challenged as per provisions of Section 127 of the Electricity Act, 2003.
9. Section 126 of the Electricity Act, 2003 clearly states that if upon inspection it is found to be a case of misuse then the assessment bill can be raised. Such assessment is appealable u/s 127 of the Electricity Act, 2003.
10. It was argued on behalf of the plaintiff that he is seeking the relief of injunction. It can be granted by the Civil Court only. It is pertinent to observe that the injunctions sought by the plaintiff are in fact the reliefs which are substantially covered under the provisions of Section 126 and 127 of the Act.
11. In view of the above, this court is of the opinion that the suit filed by the plaintiff is barred by the provisions of Section 126, 127 and 145 of the Electricity Act. Accordingly, the plaint is rejected.
File be consigned to Record Room after due compliance.
PRONOUNCED IN OPEN COURT 05.11.2014 (RAJINDER SINGH) ACJ/ARC/CCJ (NE)/ KKD COURTS, DELHI.
Suit No. 104/14 Page 6 to 6