Delhi District Court
Smt. Malti Jain vs Tpddl on 31 July, 2023
-:: 1 ::- Date: 31.07.2023
IN THE COURT OF MS. SHIVALI BANSAL
ADDITIONAL DISTRICT JUDGE-03 (NORTH)
ROHINI COURTS, DELHI
CNR No. DLNT010004062018
CS No. 31/18
In the matter of :-
Smt. Malti Jain
W/o Sh. Ashwani Jain
R/o D-157, Phase-I,
Ashok Vihar, Delhi-110052 ...... Plaintiff
Versus
TPDDL
Through its Commercial Manager,
Enforcement Assessment Cell,
Sector-3, Rohini, Delhi .....Defendant
Date of Institution : 12.01.2018
Date of Final Arguments Heard : 04.07.2023
Date of pronouncement of judgment : 31.07.2023
SUIT FOR MANDATORY INJUNCTION AND DAMAGES OF
RS. 3,60,000/-
1. The present suit is for mandatory injunction and damages of Rs.
3,60,000/-.
CS No. 31/18 Malti Jain Vs. TPDDL Page: 1 of 41
-:: 2 ::- Date: 31.07.2023
2. The brief facts of the case as stated by the plaintiff in the plaint are as
under:-
i. It is stated that the Plaintiff is the legal and lawful owner of the
property bearing No. D-40, 2nd Floor, Bhagat Singh Road, Adarsh
Nagar, Delhi-110033 through registered sale deed dated 17.6.2004
(herein after referred to as 'suit property'). That earlier the K.
No.45100135693 was installed in the suit property in the name of
the plaintiff. The last bill of the said K. No. was paid by the
plaintiff for sum of Rs.150/- on 22.9.2004. It is stated that the suit
property was illegally and unlawfully trespassed by previous
owner Late Sh. Rakesh Kakkar and Hanish @ Harish etc. On
18.09.2004, the Plaintiff registered the FIR NO. 102/2005 u/s
420/448/120-B IPC against the accused persons and the plaintiff
also filed the suit for possession u/s 6 of Specific Relief Act
against the accused persons as that time they were in judicial
custody. That the plaintiff duly intimated the same to the
defendant vide letter No. MC1213/23.03.2005. That the accused
Hanish Kakker was found in direct theft case when the defendant
inspected the said property on 31.7.2009 and defendant made a
complaint against Hanish Kakker to P.S. Adarsh Nagar vide DD
No.71-A dated 12.10.2009. That thereafter, the defendant made a
settlement with accused Hanish Kakker in permanent local Adalat
and direct theft bill of Rs.1,13,613/- was settled for sum of
Rs.85,210/-, out of which accused paid sum of Rs.25, 000/- to the
Defendant and balance amount of Rs.60,210/-will be paid by the
accused in 5 equal monthly installments. The defendant installed
CS No. 31/18 Malti Jain Vs. TPDDL Page: 2 of 41
-:: 3 ::- Date: 31.07.2023
the CA No.6008958922 K. No. 36304242261 in the name of
Hanish Kakker on 19.3.2010 without any title documents in the
name of Hanish Kakker and previous meter of the plaintiff was
removed by the defendant.
ii. It is stated that the plaintiff received the actual physical possession
on the suit property through the order dated 8.4.2011 passed by
the Hon'ble Supreme Court of India and at that time one electricity
meter was also installed in the name of Hanish Kakkar at working
condition and the same was removed by the defendant after some
time.
iii. It is stated that the plaintiff applied new meter connection against
notification no. 2008550786 dated 12.01.2015 and the
defendant illegally and unlawfully directed the plaintiff to pay
sum of Rs. 1,13,613/- dated 22.1.2015 despite of the fact that
aforesaid amount was already settled with Hanish Kakker. It is
stated that the plaintiff disclosed all the relevant documents to the
defendant but the defendant deliberately, intentionally and
knowingly not installed the electricity connection in the name of
the plaintiff at the said property.
iv. It is stated that being aggrieved from the acts of the
Defendant, the plaintiff filed the complaint before Consumer
Grievance Redressal Forum, Model Town, Delhi vide CG
No.7042/12/15/MDT dated 9.12.2015 and CGRF vide its order
dated 17.3.2016 held as under:
"According to sub section 3 (vii), of DERC Regulations,
CS No. 31/18 Malti Jain Vs. TPDDL Page: 3 of 41
-:: 4 ::- Date: 31.07.2023
2003 it is barred by jurisdiction and this forum cannot
entertain as the same subject matter is pending in the civil
court. Since nothing survives, the matter is disposed off."
v. It is stated that as per the directions of the CGRF, the plaintiff
moved the complaint-cum-execution for releasing the new
connection vide reference No. 2008550786 dated 12.1.2015 and
for damages before the Hon'ble Court of Ms. Swarn Kanta
Sharma, the then ASJ, Rohini, Delhi and the plaintiff also filed the
amended memo of parties. The defendant in its reply to the said
application admitted all the averments of plaintiff in the said
complaint except relied upon the two judgment of Delhi High
Court titled as "Madhu Garg V/s TPDDL in LPA
NO. 223-24/2006 and Izhar Ahmed & Anr. V/s BSES Rajdhani
Power Ltd. & Anr. Vide CM (M) No.2875/2009". It is stated that
the said judgments are not applicable in the facts and
circumstances of the present case as the said judgment is
applicable for restoration of existing electricity connection. It is
stated that the meter of the plaintiff was already removed and
meter of Hanish Kakker was also removed by the Defendant.
vi. It is stated that the defendant withdrew the execution petition No.
48/2012 with the liberty to file the same as and
when the address of judgment debtor Hanish Kakkar were found.
That since triable issues were raised between the parties, they
could not be decided in the execution petition, hence the plaintiff
filed the present suit.
vii. That the plaintiff earlier had not filed the application for
CS No. 31/18 Malti Jain Vs. TPDDL Page: 4 of 41
-:: 5 ::- Date: 31.07.2023
installment the new connection as the execution petition No.
75/2010 titled as "Malti Jain Vs Harish Kakker & Ors." was
pending before the Hon'ble court of Ms. Harisita Vatsyan, Ld.
Civil Judge, Tis Hazari Court Delhi.
viii. It is stated that the Defendant already settled the dispute with
Hanish Kakkar and installed the electricity in the name of Hanish
Kakkar and defendant already received sum of Rs.25,000/- from
Sh. Hanish Kakkar and Defendant has already withdraw the
execution petition, hence the Plaintiff is not liable to pay the
balance settlement amount on behalf of Hanish Kakkar.
ix. It is further stated that the plaintiff applied for new connection
on 12.1.2015 but the defendant not installed the electricity
connection till date, therefore, the plaintiff is entitled for damages
of Rs.15,000/- per month from the defendant till the installation of
the new connection as due to non-connection of
electricity, the son of the plaintiff has been residing in rented
accommodation in Tri Nagar, Delhi for a monthly rent of
Rs.15,000/-p.m. Hence, the plaintiff filed present suit for the
damages from the period 12.01.2015 to 08.01.2018 i.e. 10,000/-
×36 months=Rs.3,60,000/-.
x. The prayer made by plaintiff is inter alia reproduced herein
below:-
i. pass a decree of Mandatory Injunction in favour of the
plaintiff and against the defendant thereby directed the
defendant to install the new electricity connection in the
CS No. 31/18 Malti Jain Vs. TPDDL Page: 5 of 41
-:: 6 ::- Date: 31.07.2023
premises of the Plaintiff i.e. D-40, 2nd Floor, Bhagat Singh
Road, Adarsh Nagar, Delhi-110033.
ii. Pass decree of damages for sum of Rs.3,60,000/- in favour of
the plaintiff and against the defendant.
iii. Award the cost of the suit proceeding in favour of the plaintiff
and against the defendant.
iv. Pass any other or further orders as this Hon'ble Court may
deem fit in the facts and circumstances of the present case in
favour of the plaintiff and against the defendant
to meet the ends of the justice.
3. The defence of the defendant as stated by him in his WS is as under:-
i. It is stated that admittedly there were dues of theft bill of Rs.
1,13,612/- out of which Rs. 25,000/-were paid and the balance
payable outstanding amount is of Rs. 88,612/- besides
accumulated LPSC as on date amounting to Rs. 1,19,036/- total
amounting to Rs.2,07,649/-. As such, plaintiff being the owner of
the premises is liable to pay the outstanding dues against the
premises as a condition of supply before sanction of new
electricity connection in her favour as held by the Hon'ble High
Court of Delhi in the judgment of Madhu Garg. The Hon'ble High
Court has categorically held that new owner/occupant can be
compelled to pay electricity dues of previous owner on transfer of
premises. In either case dues have to be paid by new
owner/occupant before supply can be continued / restored, as a
general condition of supply.
CS No. 31/18 Malti Jain Vs. TPDDL Page: 6 of 41
-:: 7 ::- Date: 31.07.2023
ii. It is further submitted that in the matter "BSES Rajdhani Power
Ltd. Vs. Saurashtra Colour Tones Pvt. Ltd & Anr.", Delhi High
Court Full Bench reported as 161 2009 DLT page 28, it is held that
distribution company can compel new owner to pay arrears of
electricity dues of previous owner or occupant and can refuse to
supply electricity to the premises on account of such non-payment.
In the matter "Izhar Ahmed Vs. BSES RPL", the Hon'ble High
Court has also held that the Regulation 15 of DERC Regulation
2007 is clear and unambiguous which says that the payment of all
outstanding dues including direct theft bills are liable to be paid by
the owner/occupant. Therefore, according to above judgments, it is
settled law that the owner/occupant is liable to pay the outstanding
dues before reconnection of electricity connection or for
installation of new electricity connection. It is submitted that in
case the Plaintiff wants to get installed new electricity connection,
she has to pay the outstanding dues against the premises and to
complete the commercial formalities, only thereafter electricity
connection can be installed.
iii. It is submitted that as per admission of the Plaintiff, for the same
relief as claimed in the present suit, the Plaintiff filed complaint
before the Consumer Grievance Redressal Forum, Model Town,
Delhi vide CG No. 7042/12/15MDT dated 09.12.2015 and the Ld.
CGRF vide order dated 17.03.2016 decided her complaint holding
that the jurisdiction of the forum was barred and it could not
entertain the same as the subject matter was pending in the civil
court. It is submitted that admittedly the plaintiff availed / elected
CS No. 31/18 Malti Jain Vs. TPDDL Page: 7 of 41
-:: 8 ::- Date: 31.07.2023
the remedy available with her as per provisions of Section 42(5) of
Electricity Act 2003 by filing complaint case before the CGRF and
the complaint case was disposed off, the plaintiff should have
challenge the abovesaid order by preferring an appeal before the
Ombudsmen as provisions of Section 42(6) of Electricity Act
2003. Therefore, the suit of the plaintiff is barred by law as per
provisions of Order 7 Rule 11 (d) CPC.
iv. It is submitted that Electricity Act, 2003 is a complete Act in itself
and the plaintiff availed remedy available in the Electricity Act
2003 having one of the jurisdictions by filing complaint before the
CGRF claiming the same relief. The plaintiff did not challenge the
order dated 17.03.2016 by filing an appeal before the Ombudsmen.
It is submitted that the plaintiff must have availed the remedy
available to her to reach at its logical end and should not have
given up it in the middle and start another proceedings under
another enactment by filing the present suit. Therefore, having
more efficacious alternate remedy available to her under the
provisions of Electricity Act 2003, as such, the suit is barred by
provisions of Section 41 (h) of Specific Relief Act.
v. It is submitted that admittedly after passing of the order dated
17.03.2016 by the CGRF, the plaintiff filed petition before the
Special Electricity Court which is also acting as a session as well
as civil court claiming the same relief of installation of connection
as well as damages. The said petition was dismissed by Sh.
Rajnish Kumar Gupta, Ld. ASJ, Special Electricity Court, North
CS No. 31/18 Malti Jain Vs. TPDDL Page: 8 of 41
-:: 9 ::- Date: 31.07.2023
West District, Rohini Court, Delhi vide order dated 18.08.2017.
The Plaintiff has not challenged the above said order which has
attained finality. In view of the abovesaid facts the plaintiff is
indulged in forum shopping which is not permissible as per law,
therefore, the present suit of the plaintiff is barred on the principle
of Res-judicata.
vi. It is stated that in the garb of present suit of mandatory injunction,
the plaintiff wants to avoid payment of theft bill / dues. The
plaintiff has not challenged the said theft bill by claiming the relief
of declaration declaring the said theft bill as null and void and not
payable by the plaintiff. In the absence of the essential relief of
declaration, the suit for mandatory injunction simplicitor is not
maintainable. It is stated that the plaintiff has claimed the damages
to the tune of Rs. 3,60,000/- on account of non-installation of
electricity connection in the premises. It is submitted that present
suit is not maintainable for want of jurisdiction as penalty
prescribed under Section 43 of Electricity Act 2003 can only be
redressed U/s 142 & 143 of Electricity Act 2003 before the
appropriate commission i.e. Delhi Electricity Regulatory
Commission. Therefore, the suit of the plaintiff claiming damages
is barred by law in view of the above provisions of Electricity Act
2003. It is submitted that the plaintiff has claimed damages
amounting to Rs. 3,60,000/- but the plaintiff did not pay the ad-
valorem court fees on the claimed amount and has arbitrarily
valued the suit, therefore, the suit of the plaintiff is not
maintainable.
CS No. 31/18 Malti Jain Vs. TPDDL Page: 9 of 41
-:: 10 ::- Date: 31.07.2023
vii. It is submitted that by way of present suit, plaintiff wants to install
electricity connection in her premises and to avoid payment of
theft dues, for the reason that the theft bill was settled by Sh.
Hanish Kakkar and she is not liable to pay the same. It is stated
that Sh. Hanish Kakkar is the necessary party for adjudication of
controversy in the suit and the suit of the plaintiff is bad for non-
joinder of necessary party.
viii.It is submitted that earlier electricity connection bearing
K.No.45100135693 was installed in the name of Sh. Ravinder
Kumar, subsequent thereto the plaintiff applied for transfer of the
aforesaid electricity connection in her name vide her application
alongwith test notice dated 17.02.2005, undertaking regarding
payment of any dues against the premises at D-40, Second Floor,
Bhagat Singh Road, Adarsh Nagar, Delhi, affidavit dated
16.08.2004 duly Notarized, Indemnity Bond duly Notarized dated
16.08.2004, stating that she had purchased the above said property
from its previous owner namely Sh. Rakesh Kumar Kakkar son of
Sh. Nand Lal Kakkar and also submitted registered sale deed and
house tax receipt dated 17.08.2004. Then after completion of
commercial formalities the abovesaid electricity connection was
transferred in the name of the plaintiff. It is submitted that as per
sale deed dated 17.06.2004 Sh. Rakesh Kumar Kakkar S/o Sh.
Nand Lal Kakkar was the lawful owner of the property.
ix. It is admitted that as per record when the premises was inspected
on 31.07.2009 by the officials of the defendant, Sh. Hanish Kakkar
CS No. 31/18 Malti Jain Vs. TPDDL Page: 10 of 41
-:: 11 ::- Date: 31.07.2023
S/o Late Sh. Rakesh Kakkar was found indulged in direct theft of
electricity, as such, a direct theft bill of Rs. 1,13,612/- was raised
and simultaneously a complaint was also lodged against Sh.
Hanish Kakkar with the P.S. Adarsh Nagar, Delhi.
x. It is submitted that Sh. Hanish Kakkar approached the Permanent
Lok Adalat for settlement of abovesaid direct theft bill and
settlement was made for a sum of Rs. 85,210/- out of which he
paid a sum of Rs.25,000/- to the defendant and the balance amount
of Rs. 60,210/- was to be paid in five equal monthly installment.
xi. It is stated that the plaintiff received the actual physical possession
of the suit property through court order dated 08.04.2015, passed
by the Hon'ble Supreme Court of India. It is admitted as per record
that the plaintiff filed complaint before the Consumer Grievance
Redressal Forum, Model Town, Delhi vide CG No.
7042/12/15MDT dated 09.12.2015 and the Ld. CGRF vide its
order dated 17.03.2016 passed the orders.
xii. It is submitted that since Sh. Hanish Kakkar failed to pay the
settled amount of theft bill, therefore, the Plaintiff being the owner
of the premises is liable to clear all outstanding dues of direct theft
bill of Rs. 1,13,612/- out of which Rs. 25,000/- has been paid and
the balance amount of Rs. 88,612/- is still lying pending to be paid
besides accumulated LPSC as on date amounting to Rs. 1,19,036/-
total amounting to Rs. 2,07,649/-. It is submitted that the dues of
electricity charges are charge against the property, as such, plaintiff
being owner is liable to pay the same.
CS No. 31/18 Malti Jain Vs. TPDDL Page: 11 of 41
-:: 12 ::- Date: 31.07.2023
xiii.It is denied that defendant withdrew execution petition no. 48/2012
with the liberty to file the same as and when the address of
judgment debtor Hanish Kakkar will be available. It is stated that
since the defendant settled the dispute with Sh. Hanish Kakkar and
received a sum of Rs. 25,000/- from Sh. Hanish Kakkar and
defendant subsequently withdrew the execution petition and for
this reason, the plaintiff is not liable to pay the balance settled
amount on behalf of Sh. Hanish Kakkar. It is submitted that
plaintiff is liable to pay the outstanding dues being owner of the
premises as mentioned in preceding paras.
xiv. It is denied that since the defendant did not install the electricity
connection, therefore, the plaintiff is entitle for damages of Rs.
15,000/- per month from the defendant till the installation of new
electricity connection as alleged and due to non-installation of
electricity connection, son of the Plaintiff is residing in the rented
accommodation in Tri Nagar on a monthly rent of Rs. 15,000/- per
month, as alleged. It is further denied that the plaintiff is entitle to
damages to the tune of Rs. 3,60,000/- as claimed in the para under
reply. It is submitted that the Defendant did not install electricity
connection bonafidely for the reason that the Defendant failed to
pay the outstanding dues against the premises and for the same, the
plaintiff cannot claim any damages from the defendant. Even
otherwise as per provisions of Section 142 of Electricity Act 2003,
the jurisdiction to adjudicate / levy damages lies with the Delhi
Electricity Regulation Commission only and the Civil court has no
CS No. 31/18 Malti Jain Vs. TPDDL Page: 12 of 41
-:: 13 ::- Date: 31.07.2023
jurisdiction to grant any damages as per Sections 142 & 143 of
Electricity Act 2003.
xv. It is submitted that installation of new electricity connection is not
an absolute right of any applicant/consumer. The applicant /
consumer has to complete the commercial formalities as per
DERC norms prior to installation of new electricity connection
and in the present case, the plaintiff failed to comply with, as such,
Plaintiff cannot allege that she has suffered harassment or financial
losses, as alleged. The plaintiff had more efficacious alternate
remedy available with her which she did not follow to reach at its
logical end. It is further submitted that right to decide the claim of
alleged damages for non-installation of electricity connection lies
with the DERC as per provisions of Section 142 & 143 of
Electricity Act 2003. It is stated that the plaintiff has not
paid/affixed ad-valorem court fees. Therefore, plaintiff is not
entitle to any relief as prayed for in the plaint.
4. Replication filed on behalf of plaintiff and she reiterated the facts as
stated in the plaint.
5. On the basis of pleadings, the following issues were framed vide order
dated :-
1. Whether suit is barred U/s. 11 CPC ? OPD
2. Whether plaintiff is entitled for decree of mandatory
injunction, as prayed for? OPP
3. Whether plaintiff is entitled for damages for the amount of
CS No. 31/18 Malti Jain Vs. TPDDL Page: 13 of 41
-:: 14 ::- Date: 31.07.2023
Rs.3,60000/, if so, interest, at what rate and for what period?
OPP
6. In order to prove the case, plaintiff has examined the following
witnesses:
PW-1 is Smt. Malti Jain W/o Sha. Ashwani Jain aged about 63 years
R/o H. NO. D-157, Phase-I, Ashok Vihar, Delhi-110052, Delhi
110052. I tender my evidence by way of affidavit
Ex. PW1/A bearing my signature at point A and B. I also rely upon the
following documents:
1. Ex. PW1/1 (Colly.) are the certified copies of payment receipts of
Rs. 600 dated 09.09.2004 and Rs. 150/- dated 22.09.2004.
2. Mark PW1/2 is the letter dated 23.03.2005.
3. Ex. PW1/3 is the original electricity bill dated 16.08.2012 in the
name of Sh. Hanesh Kakkar.
7. In order to prove the case, the defendants have examined following
witness:-
DW-1 is Sh. Mr. Saurabh Goel, Assistant Officer, from the Office of
CGRF, Sub-Station Building, Police Colony, Model Town-II, Delhi. I
am summoned witness in the present matter. Today, I
have brought the summoned record i.e. case file bearing CG No.
7042/12/15/MDT titled as "Smt. Malti Jain Vs. TPDDL". The certified
copy of complaint alongwith documents filed by Smt. Malti Jain is Ex.
DW1/1 (Colly. 7 pages). The certified copy of reply alongwith
documents filed by TPDDL is Ex. DW1/2 (Colly. 11 pages). The
CS No. 31/18 Malti Jain Vs. TPDDL Page: 14 of 41
-:: 15 ::- Date: 31.07.2023
certified copy of the order dated 17.03.2016 passed by Hon'ble CGRF
is Ex. DW1/3 (2 pages). I have seen and compared the certified copies
with the original which I have brought today.
DW-2 is Mr. Gaurav S/o Mr. Kuldeep Singh, Assistant Officer, Trainee
(Commercial Department) at Keshavpuram, Delhi with TATA Power
Delhi Distribution Ltd. I tender my evidence by way of affidavit which
is Ex.DW2/A. The same bears my signatures at points A and B. I rely
upon the following documents:-
1. Ex. DW2/1 is the certified copy of reply dated 17.02.2017 filed by
the defendant/ TPDDL for releasing the connection vide
notification No. 2008550786 dated 12.01.2015 for damages.
2. Ex. DW2/2 is the certified copy of order dated 18.08.2017 passed
by Mr. Rajneesh Kumar Gupta, Ld. ASJ (Electricity Court), North
West, Rohini Courts, Delhi. He also relied upon the documents
which were already Ex. PW1/DX1 to Ex. PW1/DX6.
8. I have heard the final arguments and perused the record. My issue-
wise findings are as follows:
1. Whether suit is barred U/s. 11 CPC ? OPD
The onus to prove this issue is upon the defendant. The defendant
has placed on record Ex.DW1/1, Ex. DW1/2 and Ex. DW1/3 and
have examined DW2 who has placed on record Ex.DW2/2 to
prove his case. It is contended by the defendant in his WS that
since the plaintiff had filed complaint before the Consumer
Grievance Redressal Forum, Model Town, Delhi vide CG No.
CS No. 31/18 Malti Jain Vs. TPDDL Page: 15 of 41
-:: 16 ::- Date: 31.07.2023
7042/12/15MDT dated 09.12.2015, the present proceedings are hit
by application of principle of Res-judicata. It is submitted that
since the plaintiff had already availed / elected the remedy
available to her as per the provisions of Section 42 (5) of
Electricity Act, 2003 by filing a complaint case before CGRF, the
remedy before this court is not available to her. It is stated that the
plaintiff should have challenged the abovesaid order of the CGRF
by preferring an appeal before the Ombudsman as per the
provisions of Section 42(6) of Electricity Act, 2003 instead of
filing the present suit, which is barred by law under Order 7 Rule
11 (d) CPC. It is also stated that Electricity Act, 2003 is a
complete act in itself and the plaintiff had already availed her
remedy under the same and since more efficacious alternate
remedy is available to the plaintiff under the provisions of
Electricity Act, 2003, the present suit is barred under the
provisions of Section 41(h) of Specific Relief Act.
The defendant in his WS has stated that after passing of the order
dated 17.03.2016 by the CGRF, the plaintiff has also filed petition
before the Special Electricity Court claiming the relief of
installation of connection as well as damages. The said petition
was dismissed by the then Ld. ASJ, Special Electricity Court,
North West District, Rohini Courts, Delhi vide order dated
18.08.2017. It is stated that the plaintiff has not challenged the
abovesaid order and therefore, the same has attained finality and
therefore, the present suit is barred by res-judicata.
CS No. 31/18 Malti Jain Vs. TPDDL Page: 16 of 41
-:: 17 ::- Date: 31.07.2023
The law on res-judicata is stated under Section 11 of CPC as
under:-
"No Court shall try any suit or issue in which the
matter directly and substantially in issue has been
directly and substantially in issue in a former suit
between the same parties, or between parties under
whom they or any of them claim, litigating under the
same title, in a Court competent to try such subsequent
suit or the suit in which such issue has been
subsequently raised, and has been heard and finally
decided by such Court.
Explanation I.-- The expression former suit shall
denote a suit which has been decided prior to a suit in
question whether or not it was instituted prior thereto.
Explanation II.-- For the purposes of this section, the
competence of a Court shall be determined irrespective
of any provisions as to a right of appeal from the
decision of such Court.
Explanation III.--The matter above referred to must in
the former suit have been alleged by one party and
either denied or admitted, expressly or impliedly, by
the other.
Explanation IV.-- Any matter which might and ought to
have been made ground of defence or attack in such
former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.
Explanation V.-- Any relief claimed in the plaint, which
is not expressly granted by the decree, shall for the
purposes of this section, be deemed to have been
refused.
Explanation VI.-- Where persons litigate bona fide in
respect of a public right or of a private right claimed
in common for themselves and others, all persons
interested in such right shall, for the purposes of this
CS No. 31/18 Malti Jain Vs. TPDDL Page: 17 of 41
-:: 18 ::- Date: 31.07.2023
section, be deemed to claim under the persons so
litigating.
1[Explanation VII.-- The provisions of this section
shall apply to a proceeding for the execution of a
decree and references in this section to any suit, issue
or former suit shall be construed as references,
respectively, to a proceeding for the execution of the
decree, question arising in such proceeding and a
former proceeding for the execution of that decree.
Explanation VIII.-- An issue heard and finally decided
by a Court of limited jurisdiction, competent to decide
such issue, shall operate as res judicata in a
subsequent suit, notwithstanding that such Court of
limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has
been subsequently raised."
For res-judicata to apply, it is one of the condition precedent that
the matter should be heard and finally decided by the court and
the subsequent court should be competent to decide the former
suit. In the present case, the order dated 18.08.2017 of the Ld.
ASJ, Special Electricity Court, North West District, Rohini
Courts, Delhi (Ex. DW2/2) cannot be read so as to bar present
suit of the plaintiff by principles of res-judicata. In the abovesaid
order, the observations of the Ld. ASJ, Special Electricity Court,
North West District, Rohini Courts, Delhi are as under:-
"After considering the allegations of the applicant and
counter allegations of the decree holder, triable issues
has been raised between the parties. These triable
issues cannot be decided in the execution petition as
the applicant is not a party in the execution petition.
Moreover, the relief sought by the applicant in the
CS No. 31/18 Malti Jain Vs. TPDDL Page: 18 of 41
-:: 19 ::- Date: 31.07.2023
application cannot be granted as it does not fall within
the scope of the present execution petition as it was
only for recovery of settled amount from the JD as per
the order dated 03.02.2010 fo the permanent Lok
Adalat-1. Accordingly, I do not find any merit in the
application and the same is dismissed being not
maintainable."
An executing court cannot be a court of competent jurisdiction as
the executing court is not competent to try the subsequent suit.
The plaintiff had only filed an application before the executing
court which cannot be equated to a suit, so as such, there is no
former suit that was filed by the plaintiff. Moreover, for a suit to
be considered as 'heard and finally decided', the decision in
former suit must be on merits. If a former suit was dismissed by a
court for want of jurisdiction, or for default of plaintiff's
appearance, or on the ground of non-joinder or mis-joinder of
parties, or on the ground that suit was not properly framed, or that
it was premature, or there was technical defect, the decision not
being on merits, would not operate as res-judicata in a subsequent
suit. In order to operate as res judicata, a finding of a court must
have been necessary for the determination of the suit. On perusal
of the order of the Ld. ASJ, Special Electricity Court, North West
District, Rohini Courts, Delhi, it is evident that no finding is given
upon the merits of the case and the application was dismissed
simplicitor. Similarly, on perusal of Ex. DW1/3 i.e. the final order
dated 17.03.2016 of CGRF, it was held as under :-
"According to Subsection 3(vii) of DERC Regulation,
CS No. 31/18 Malti Jain Vs. TPDDL Page: 19 of 41
-:: 20 ::- Date: 31.07.2023
2003, it is barred by jurisdiction and this forum cannot
interfere as the same subject matter is pending in the
civil court. Since nothing survives, the matter is
disposed of."
A plain reading of the order dated 17.03.2016 clearly reflects that
no order was passed on the mints of the case and the complaint of
the plaintiff was dismissed for want of jurisdiction. None of the
case relied upon by the defendant constitutes a decision on merits
of the present case and therefore, the plea of the defendant that the
present suit is barred by principles of res judicata is erroneous and
bad in law.
As regards, the contention of the defendant that once the plaintiff
has exhausted her remedy by filing a complaint report CGRF then
the jurisdiction of the civil court is barred is also erroneous as the
Hon'be High Court of Delhi in "BSES Rajdhani Power Ltd. Vs.
Ashok Kumar", CM(M) No.789/2007, has observed as under:-
"3. Section 42 (5) & (6) of Electricity Act, 2003 read as
under :
"(5) Every distribution licensee shall, within six
months from the appointed date or date of grant of
license, whichever is earlier, establish a forum for
redressal of grievances of the consumers in
accordance with the guidelines as may be specified
by the State Commission.
(6) Any consumer, who is aggrieved by non-
redressal of his grievances under sub-section (5),
may make a representation for the redressal of his
grievance to an authority to be known as
Ombudsman to be appointed or designated by the
State Commission."
CS No. 31/18 Malti Jain Vs. TPDDL Page: 20 of 41
-:: 21 ::- Date: 31.07.2023
4. Section 145 of Electricity Act, 2003 reads as under :
"145. Civil Court not to have jurisdiction.- No Civil
Court shall have jurisdiction to entertain any suit or
proceeding in respect of any matter which an
assessing officer referred to in Section 126 or an
appellate authority referred to in Section 127 or the
adjudicating officer appointed under this Act is
empowered by or under this Act to determine and no
injunction shall be granted by any Court or other
authority in respect of any action taken or to be
taken in pursuance of any power conferred by or
under this Act."
5. A perusal of Section 145 would show that this
Section operates only in respect of Section 126 and 127
of the Electricity Act. Section 126 is contained in Part
XII of the Electricity Act and deals with investigation
and enforcement. Section 126 provides that if on an
inspection of the premises and after inspection of
equipments, gadgets, etc. found connected or used in
the premises, the Assessing Officer comes to conclusion
that the person was indulging in unauthorized use of
electricity, the Assessing Officer shall provisionally
assess, to his judgment, the electricity charges payable
by such person or by any other person benefited by
such use. It is also provided that if Assessing Officer
reaches to conclusion that unauthorized use of
electricity has taken place, it shall be presumed that
such unauthorized use was continuing for a period of 3
months. Section 127 provides that a person aggrieved
by the final order made by Assessing Officer under
Section 126 may prefer an appeal within 30 days of the
order to the Appellate Authority as may be prescribed.
6. It is apparent that Section 145 of Electricity Act is
not an omnibus Section which restricts the jurisdiction
of Civil Court in respect of all and every matter that
may arise concerning use of electricity by a consumer.
Section 145 bars the jurisdiction of Civil Court only in
respect of those matters which fall under Section 126
CS No. 31/18 Malti Jain Vs. TPDDL Page: 21 of 41
-:: 22 ::- Date: 31.07.2023
and 127. No other interpretation can be given to
Section 145. Adverting to Section 42(5) & (6) of the
Electricity Act, it is clear that these two provisions put
an obligation on the distribution licensee to create a
forum for grievance redressal of the consumer in
accordance with guidelines laid down by the State
Commission and an option is given to the consumer to
make a representation for redressal of his grievance to
the forum and if he is not satisfied with the action taken
by the forum then to approach ombudsman to be
appointed by the State Commission.
7. Section 42 does not provide that the jurisdiction of
Civil Court shall be barred once the forum is created
and comes into action. Rather Section 42 (8)
specifically states that provisions of sub-Section (5), (6)
and (7) shall be without prejudice to the right of
consumer which he may have apart from the right
conferred upon him by these sub-Sections. If these sub-
Sections had not been there, the consumers only
remedy for redressal would have been to approach the
Civil Court. No other mechanism is provided in the
Electricity Act where a consumer could go against the
faulty bills. Thus where a bill is faulty, the consumer
has an option that before approaching the Civil Court
he may take resort to Grievance Redressal system
created under Section 42 (5). However, even after
approaching to the Grievance Redressal system, if he is
not satisfied, he still has the remedy to approach the
Civil Court for adjudication of his dispute.
8. The petitioner has placed reliance on Dheeraj Singh
vs. BSES Yamuna Power Ltd. 127 (2006) DLT 525 and
Ram Kishan vs. NDPL 130 (2006) DLT 549. A perusal
of these judgments would show that in these judgments
consumer had filed Writ Petitions before the High
Court in respect of alleged faulty bills. The High court
while dismissing the Writ Petition observed that the
petitioner had alternate remedy available to him under
CS No. 31/18 Malti Jain Vs. TPDDL Page: 22 of 41
-:: 23 ::- Date: 31.07.2023
Section 42 (5) & (6) and the petitioner should go to the
Grievance Cell as created in terms of this provision
and should not rush to High Court. In case the Writ
Petitions, on the basis of alleged faulty bills, are
entertained, the Court would be flooded with these kind
of Writ petitions. When the attention of the Court was
drawn to Section 42 (8), the Court observed that if
petitioner has rights before any other forum, he can
avail those rights and that would not mean that
principle of alternate remedy available to him under
law has to be ignored in view of Section 42 (8). This
only means that Section 42(8) could also be resorted by
the consumer as it provided for alternate remedy. The
High Court was only concerned with the flood of Writ
Petitions that may come to High Court despite the fact
that the Grievance Redressal system was provided in
the Act itself.
9. This Court had not observed that the jurisdiction of
Civil Court was barred. Even otherwise it is settled law
that exclusion of jurisdiction of a Civil Court must be
construed very strictly. Ordinarily, a Civil Court has
jurisdiction to entertain all civil disputes and unless
and until the jurisdiction of Civil Court is barred
specifically, the Court cannot infer the barring of
jurisdiction of Civil Court. I find no merits in the
Petition. The same is hereby dismissed.
Accordingly, the present issue is decided in favour of the plaintiff
and against the defendant.
2. Whether plaintiff is entitled for decree of mandatory
injunction, as prayed for? OPP
The onus to prove this issue is upon the plaintiff. The plaintiff has
sought a decree of mandatory injunction against the defendant for
installation of new electricity connection in the premises of the
CS No. 31/18 Malti Jain Vs. TPDDL Page: 23 of 41
-:: 24 ::- Date: 31.07.2023
plaintiff i.e. D-40, 2nd Floor, Bhagat Singh Marg, Adarsh Nagar,
Delhi-110033 ('herein after referred to as 'the property'). It is
stated by the plaintiff that she had purchased the property vide
Registered Sale Deed dated 17.06.2004 and K. No. 45100135693
was installed in the said property in her name. She has paid the
last bill on 22.09.2004 which is Ex. PW1/1 (colly.). She submits
that the property was illegally trespassed by the previous owner,
namely, Late Sh. Rakesh Kakkar and Sh. Hanish @ Harish on
18.09.2004 for which the plaintiff had lodged FIR No. 102/2005
against the accused persons and had also filed the suit for recovery
of possession under Section 6 of the Specific Relief Act. It is
stated that the possession of the suit property was restored to her
by order of the Hon'ble Supreme Court of India on 08.04.2011. It
is stated that the plaintiff had applied for new meter connection
against notification no. 2008550786 dated 12.01.2015 but the
defendant had illegally and unlawfully demanded a sum of Rs.
1,13,613/-. It is stated that from 18.09.2004 till 08.04.2011, the
plaintiff was not in the actual physical possession of the property
and the same was in possession of Sh. Hanish Kakkar against
whom a direct theft case was also registered by the defendant
upon inspection of the property on 31.07.2009. It is stated that Sh.
Hanish Kakkar and the defendant had settled the dispute of direct
theft bill of Rs. 1,13,613/- before the Permanent Lok Adalat for a
sum of Rs. 85,210/-. It is stated that Sh. Hanish Kakkar in
furtherance of the settlement had also paid an amount of Rs.
25,000/- and the balance amount of Rs. 60,210/- was to be paid in
CS No. 31/18 Malti Jain Vs. TPDDL Page: 24 of 41
-:: 25 ::- Date: 31.07.2023
five equal monthly installments. At the time of the direct theft, the
electricity meter was running in the name of plaintiff i.e. K. No.
45100135693. After the settlement, in the year 19.03.2010 the
defendant installed the CA No. 6008958922, K. No. 36304242261
in the name of Sh. Hanish Kakkar, without any title documents in
the name of Sh. Hanish Kakkar and the previous meter of the
plaintiff was removed by the defendant. It is stated that the
defendant had acted in collusion with Sh. Hanish Kakkar and had
installed an electricity meter in his name without any verification.
Per Contra, Ld. Counsel for the defendant in the WS has stated
that the earlier K. No. 45100135693 was installed in the name of
Sh. Ravinder Kumar and the plaintiff had applied for transfer of
the said electricity connection in her name vide her application
along with test notice dated 17.02.2005. It is stated that in the said
application, she had undertaken to pay any dues and after
completion of the commercial formality, the abovesaid connection
was transferred in the name of the plaintiff. The defendant has
pleaded ignorance to the pendency of litigation between the
plaintiff and Sh. Hanish Kakkar and has also disputed Mark A
filed by the plaintiff in this regard. The defendant has admitted the
direct theft case of electricity and its settlement. However, the
defendant submits that the new electricity connection can be
installed only after the payment of pending dues. Reliance upon
the judgment of the Hon'ble High Court of Delhi in "Madhu
Garg Vs. TPDDL (LPA No. 223-24/2006), and Izhar Ahmed &
CS No. 31/18 Malti Jain Vs. TPDDL Page: 25 of 41
-:: 26 ::- Date: 31.07.2023
Anr. Vs. BSES Rajdhani Power Ltd. (CM(M)No. 2875/2009 and
155/09)".
PW1 could not prove document bearing Mark-A by virtue of
which she had claimed to inform the defendant regarding the
trespass of the property. It has come in the cross examination of
PW1 that she does not have the second copy of letter dated
23.03.2005 and the same does not bear signatures or stamp of
officials of defendant. Another fact which is highlighted during
the cross examination of PW1 is that after receiving the
possession of suit property on 11.04.2011, the electricity
connection continued in the name of Sh. Hanish Kakkar till it was
disconnected for non payment of dues. It is admitted by the
plaintiff that she had not paid the pending bill amount of Rs.
30,690.00/- for the electricity meter installed in the name of Sh.
Hanish Kakkar. During the cross examination of PW1, PW1 was
confronted with certain documents wherein PW1 at the time of
seeking transfer of connection in her name in the year 2004 had
signed certain undertakings that she will be making payment of all
the dues of any kind against the above noted connection. These
documents are Ex. PW1/DX1 to Ex. PW1/DX6.
During the cross-examination of DW2, it is established that
despite registering a direct theft case of electricity against Mr.
Harish Kakkar on the electricity connection in the name of the
plaintiff, the defendant had not informed the plaintiff about the
same on 31.07.2009 and she only became aware when she had
CS No. 31/18 Malti Jain Vs. TPDDL Page: 26 of 41
-:: 27 ::- Date: 31.07.2023
filed a complaint to CGRF. It is also established even during the
disconnection of electricity connection in the name of plaintiff, the
plaintiff was not informed.
After considering the material available on record, this court is of
the considered view that although, the plaintiff is not strictly a
new owner of the property and she was not in possession of the
property from 18.09.2004 till 08.04.2011 and was also unaware
about pendency of any direct theft bill in the property but the
same would not absolve her from the liability to pay the existing
bills as the intent / object of the Electricity Act, 2003 has a
reasonable nexus for recoupment of electricity dues of previous
consumer from a new owner. The intent is to ensure that
electricity companies do not have to run around to recover their
dues and any person who applies for re-connection makes
payment of all dues including surcharges and payment of
fraudulent extraction charges before grant of new connection or
reconnection of the said premises. Reliance is placed upon the
judgment of Hon'ble High court in "Madhu Garg Vs. TPDDL
(LPA No. 223-24/2006), and Izhar Ahmed & Anr. Vs. BSES
Rajdhani Power Ltd. (CM(M)No. 2875/2009 and 155/09)".
The Hon'ble Supreme Court of India in its recent judgment in
case titled as "K.C. Ninan v. Kerala State Electricity Board &
Ors., (Civil Appeal No. 2109-2110 of 2004)" has held as under:
"I. Universal Service Obligation is not absolute
30. The relevant portion of Section 43 reads as follows:
CS No. 31/18 Malti Jain Vs. TPDDL Page: 27 of 41
-:: 28 ::- Date: 31.07.2023
"43. Duty to supply on request - (1) Save as otherwise
provided in this Act, every distribution licensee, shall, on an
application by the owner or occupier of any premises, give
supply of electricity to such premises, within one month
after receipt of the application requiring such supply:
***
Explanation - For the purposes of this subsection, "application" means application complete in all respects in the appropriate form, as required by the distribution licensee, along with the documents showing payment of necessary charges and other compliances.
(2) It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1):
Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission."
(emphasis supplied)
31. According to Section 43, the distribution licensee is obligated to supply electricity to the premises of an owner or occupier within a month of the receipt of an application requiring such supply. The provision casts a duty on the distribution licensee to supply electricity to the owner or occupier's premises. PART F 28 Correspondingly, the owner or occupier of the premises has a right to apply for and obtain electric supply from the distribution licensee.22 Both the right and the corresponding duty are imposed by the statute. The owner or occupier of the premises has to submit an application to avail of the supply of electricity.
32. In Brihanmumbai Electric Supply & Transport Undertaking v.
Maharashtra Electricity Regulatory Commission, a two-judge Bench of this Court observed that the obligation of the distribution licensee to supply electricity to premises will begin after the owner or occupier of such premises submits a completed application. The explanation to Section 43 clarifies that the application must be complete in all respects along with the necessary documents showing payment of "necessary charges" and other compliances, CS No. 31/18 Malti Jain Vs. TPDDL Page: 28 of 41
-:: 29 ::- Date: 31.07.2023 as required by the distribution licensee. Thus, under Section 43, the distribution licensee is obligated to supply electricity to the premises of an owner or occupier, provided that the owner or occupier pays all charges and complies with all conditions stipulated by the distribution licensee. Section 43 begins with the words "Save as otherwise provided in this Act". Hence, the operation of Section 43 will also be subject to compliance with the other provisions of the 2003 Act.
33. Section 45 lays down the manner of computation of the price to be charged by the distribution licensee for supply of electricity under Section 43. It provides that a distribution licensee may fix charges for supply of electricity in accordance with the tariffs fixed from time to time in accordance with the methods and principles specified by the concerned State Commission. Under Section 46, a distribution licensee is empowered to charge from any person who seeks Chandu Khamaru v. Nayan Malik, (2011) 12 SCC 314 23 (2015) 2 SCC 438 supply of electricity any expenses reasonably incurred in providing any electric line or electric plant used for the purpose of giving electricity. Section 47 empowers the distribution licensee to seek a reasonable security from any person who requires supply under Section 43. It further provides that the distribution licensee can refuse to supply electricity to any person who fails to give the security deposit. The provision is extracted below:
"47. Power to require security - (1) Subject to the provisions of this section, a distribution licensee may require any person, who requires a supply of electricity in pursuance of section 43, to give him reasonable security, as may be determined by regulations, for the payment to him of all monies which may become due to him -
(a) in respect of the electricity supplied to such person; or
(b) where any electricity line or electrical plant or electric meter is to be provided for supplying electricity to such person, in respect of the provision of such line or plant or meter, And if that person fails to give such security, the distribution licensee may, if he thinks fit, refuse to give the supply of electricity or to provide the line or plant or meter for the period during which the failure continues."
CS No. 31/18 Malti Jain Vs. TPDDL Page: 29 of 41
-:: 30 ::- Date: 31.07.2023
(emphasis supplied)
34. Section 47 indicates that a distribution licensee can refuse to supply electricity under Section 43 if the applicant fails to furnish the requisite security. Under Section 48, a distribution licensee may require the applicant, who requires a supply of electricity in pursuance of Section 43, to accept (i) any restrictions which may be imposed for the purpose of enabling the distribution licensee to comply with the regulations made under Section 53; and (ii) any terms restricting any liability of the distribution licensee for economic loss resulting from negligence of the person to whom electricity is supplied. Thus, it is implicit that the distribution licensee may refuse electricity supply to the applicant until they accept such terms and restrictions reasonably imposed by the distribution licensee incidental to the statute.
35. Further, Section 50 empowers the State Commission to specify an Electricity Supply Code providing for recovery of electricity charges, among other things. The Electric Utilities have urged that the duty to supply electricity is subject to the Electricity Supply Code specified under Section 50. As mentioned in the preceding paragraphs, an applicant is required to submit a completed application along with documents showing the payment of necessary charges and other compliances. The Electricity Supply Code can stipulate such other compliances that an applicant has to observe for getting the supply of electricity under Section 43.
Therefore, reading Section 43 along with Sections 45, 46, 47, 48, and 50, it becomes evident that the right of an applicant to seek supply of electricity under Section 43 is not absolute. The right is subject to the payment of charges, security deposit, as well as terms and restrictions imposed by the distribution licensee. Universal Service Obligation is not absolute II. Duty to supply electricity is with respect to consumer
51. Section 43 of the 2003 Act obligates a distribution licensee to supply electricity "on an application by the owner or occupier of any premises". Under the provision, the right to obtain a supply of electricity is vested with the owner or occupier of the premises. Invariably, such owner or occupier means the consumer under Section 2(15). As held in Brihanmumbai Electric Supply & Transport Undertaking (supra), the duty to supply electricity comes into play only on an application made by the owner or occupier of CS No. 31/18 Malti Jain Vs. TPDDL Page: 30 of 41
-:: 31 ::- Date: 31.07.2023 the premises. Hence, PART F 37 the term "premises" has to be contextualised and understood with respect to the preceding portion, that is, the owner or occupier of the premises.
52. The duty to supply electricity under Section 43 is only with respect to the owner or occupier of the premises, and not the premises, as it is the owner or occupier who has the statutory right to "demand" electricity for the premises under their use or occupation. Further, it is the applicant who has to fulfil all the statutory conditions laid down under the 2003 Act to become entitled to get supply of electricity to their premises. The applicant has to pay the necessary charges and comply with all terms and conditions as determined by the appropriate commission for the supply of electricity.
53. It is true that Sections 43 and 44 of the 2003 Act talk about supply of electricity to premises. However, the use of such phrases is borne out of the practical consideration of supply of electricity. Unlike other goods, a distribution licensee cannot insist that the consumer come to their factory or warehouse to receive the supply of electricity. The distribution licensee necessarily has to lay down special infrastructure such as electricity lines and transformers to transmit electricity and supply it directly to the consumer, at their premises. On an application, the distribution licensee is statutorily obliged to supply electricity to the consumer. Consequently, the place where the supply of electricity is to be made has to be necessarily identified. Thus, Section 43 and 44 refer to the consumer's premises to fix the situs for the purpose of supplying electricity.
54. Section 56 provides that it is the liability of the consumer to pay the charge for electricity in respect of the supply of electricity. Under Section 56 the duty of effecting the payment of charges for electricity is on a person, that is, the PART F 38 consumer. Further, Section 56(2) specifically contains the expression "no sum due from any consumer". Section 126 also uses the words "the electricity charges payable by such person or any other person benefited by such use." Thus, the overall scheme of the 2003 Act makes it evident that only a consumer can be held liable for default in payment of electricity dues or charges.
55. Under the 2003 Act, the Central government has enacted various rules and regulations for carrying out the provisions of the CS No. 31/18 Malti Jain Vs. TPDDL Page: 31 of 41
-:: 32 ::- Date: 31.07.2023 Act. The government notified the Electricity (Rights of Consumers) Rules, 202031 laying down the rights of the consumers of electricity. The Rules detail the rights of consumers and obligations of distribution licensees; release of new connections; metering arrangements; billing and payment; disconnection and reconnection; grievance redressal mechanism, among others. The Rules define an 'applicant' as an owner or occupier of any premises who files an application form with a distribution licensee for supply of electricity. The Rules defines 'point of supply' to mean the point, as may be specified by the State Commission, at which a consumer is supplied electricity. The Rules make it evident that electricity is supplied to the consumer.
III. Whether electricity connection sought by a subsequent owner constitutes a reconnection or fresh connection
61. We need to highlight that the 2003 Act contemplates a synergy between the consumer and premises. Under Section 43 of the 2003 Act, the owner or occupier of premises can seek a supply of electricity for particular premises. Perforce, when electricity is supplied, the owner or occupier becomes a consumer only with respect to those particular premises for which electricity is sought and provided. For example, when a person owning an apartment in a residential complex applies for supply of electricity to such an apartment, they become a consumer only with respect to the apartment for which the application is made and to which electricity is supplied. Such a person may own another apartment to which electricity may already be supplied, but they will be considered a separate consumer with respect to the second apartment. For an application to be considered as a 'reconnection', the applicant has to seek supply of electricity with respect to the same premises for which electricity was already PART F 42 provided. Even if the consumer is the same, but the premises are different, it will be considered as a fresh connection and not a reconnection.
IV. Regulatory power of the Electricity Boards/ State Commissions
86. The next question that arises for consideration is whether a regulation providing for recouping the arrears of a previous consumer from the subsequent owner has a reasonable nexus with the provisions of the 2003 Act. Section 42 of PART F 56 the 2003 Act requires the distribution licensee to develop and maintain an CS No. 31/18 Malti Jain Vs. TPDDL Page: 32 of 41
-:: 33 ::- Date: 31.07.2023 efficient, coordinated, and economical distribution system in their area of supply to supply electricity in accordance with the provisions of the said Act. A distribution licensee is an intermediary, performing the function of conveying supply of electricity from generating companies to the consumer, at their premises. In order to provide a supply of electricity to consumers, a distribution licensee is required to lay down infrastructure such as electricity lines, transformers, and other equipment. The nature of the supply of electricity also depends upon the type of consumer as well their needs. The licensee has to make a significant capital outlay for creating the necessary infrastructure as well as operation and maintenance costs to keep the infrastructure in readiness according to Section 42. The licensees are required to maintain the infrastructure even if the consumer does not consume electricity. They are also required to pay the salaries of their employees and pay the dues of electricity generation and transmission companies.
87. The 2003 Act has been enacted to promote the development of the electricity industry as well as to protect the interests of the consumers and to ensure the supply of electricity to all areas. The Supply Conditions providing for recoupment of electricity dues of a previous consumer from a new owner are necessary to recover the costs incurred for laying down the infrastructure as well as the ongoing current liabilities towards the electricity generation and transmission companies. In the absence of such conditions, it may be difficult for the distribution licensees to recover defaulted payments, adding to the revenue PART F 57 deficits. This may adversely impact the financial health of the distribution licensees to the detriment of the interests of the consumers.
88. In Paschimanchal Vidyut Vitran Nigam (supra), this Court observed that a condition stipulating that the distribution licensee can recover the electricity dues from the new owner or occupier was necessary to safeguard the interests of the distributor. It was observed:
"13. A stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary. In the absence of such a stipulation, an unscrupulous consumer may commit defaults with impunity, and when the electricity supply is disconnected CS No. 31/18 Malti Jain Vs. TPDDL Page: 33 of 41
-:: 34 ::- Date: 31.07.2023 for non-payment, may sell away the property and move on to another property, thereby making it difficult, if not impossible for the distributor to recover the dues. Having regard to the very large number of consumers of electricity and the frequent moving or translocating of industrial, commercial and residential establishments, provisions similar to Clauses 4.3(g) and (h) of the Electricity Supply Code are necessary to safeguard the interests of the distributor."
(emphasis supplied)
89. Electricity constitutes a public good. The Court's interpretation of the law must foster this position. In Hyderabad Vanaspati (supra) this Court was adjudicating upon the validity of Clause 39 of the Conditions of Supply which defined various malpractices and provided for enquiries by designated officials. This Court observed that it was the statutory duty of the Board to supply, transmit, and distribute electricity throughout the state in the most efficient and economical manner. It was further observed that terms and conditions such as Clause 39 were necessary to prevent unauthorised use, pilferage or malpractices PART F 58 by the consumers. Such terms were necessary to recoup the loss suffered by pilferages, and to stop the continuation of similar malpractices.
90. Apart from protecting a public good, such conditions also have a reasonable nexus with objects of the 2003 Act, such as a robust development of the electricity industry, protecting the interests of consumers as well as the financial interests of the distribution licensees. The need to protect the financial interests of distribution licensees has been explicitly recognized in Section 61 of the 2003 Act which empowers the Appropriate Commission to specify the terms and conditions for the determination of tariff in accordance with commercial principles. The relevant part of the Section 61 reads as follows:
"61. Tariff regulations.- The Appropriate Commission shall, subject to the provisions of this Act, specify the terms and conditions for the determination of tariff, and in doing do, shall be guided by the following, namely:-
***
(b) the generation, transmission, distribution, and supply of CS No. 31/18 Malti Jain Vs. TPDDL Page: 34 of 41
-:: 35 ::- Date: 31.07.2023 electricity are conducted on commercial principles; ***
(d) safeguarding of consumers' interests and at the same time, recovery of the cost of electricity in a reasonable manner;"
(emphasis supplied)
91. The Conditions of Supply and Electricity Supply Code which require the payment of electricity dues of a previous owner as a condition for the grant of an electricity connection have a clear nexus to the scheme of the parent legislations and the objectives sought to be achieved. It is just and reasonable for distribution licensees to specify conditions of supply requiring the subsequent owner or PART F 59 occupier of premises to pay the arrears of electricity dues of the previous owner or occupier as a pre- condition for the grant of an electricity connection to protect their commercial interests, as well as the welfare of consumers of electricity.
Conclusions
328. The conclusions are summarised below:
a. The duty to supply electricity under Section 43 of the 2003 Act is not absolute, and is subject to the such charges and compliances stipulated by the Electric Utilities as part of the application for supply of electricity;
b. The duty to supply electricity under Section 43 is with respect to the owner or occupier of the premises. The 2003 Act contemplates a synergy between the consumer and premises. Under Section 43, when electricity is supplied, the owner or occupier becomes a consumer only with respect to those particular premises for which electricity is sought and provided by the Electric Utilities;
c. For an application to be considered as a 'reconnection', the applicant has to seek supply of electricity with respect to the same premises for which electricity was already provided. Even if the consumer is the same, but the PART I 178 premises are different, it will be considered as a fresh connection and not a reconnection;
CS No. 31/18 Malti Jain Vs. TPDDL Page: 35 of 41
-:: 36 ::- Date: 31.07.2023
d. A condition of supply enacted under Section 49 of the 1948 Act requiring the new owner of the premises to clear the electricity arrears of the previous owner as a precondition to availing electricity supply will have a statutory character; e. The scope of the regulatory powers of the State Commission under Section 50 of the 2003 Act is wide enough to stipulate conditions for recovery of electricity arrears of previous owners from new or subsequent owners;
f. The Electricity Supply Code providing for recoupment of electricity dues of a previous consumer from a new owner have a reasonable nexus with the objects of the 2003 Act; g. The rule making power contained under Section 181 read with Section 50 of the 2003 Act is wide enough to enable the regulatory commission to provide for a statutory charge in the absence of a provision in the plenary statute providing for creation of such a charge;
h. The power to initiate recovery proceedings by filing a suit against the defaulting consumer is independent of the power to disconnect electrical supply as a means of recovery under Section 56 of the 2003 Act;
i. The implication of the expression "as is where is" basis is that every intending bidder is put on notice that the seller does not undertake responsibility in respect of the property offered for sale with regard to any PART I 179 liability for the payment of dues, like service charges, electricity dues for power connection, and taxes of the local authorities; and j. In the exercise of the jurisdiction under Article 142 of the Constitution, the Electric Utilities have been directed in the facts of cases before us to waive the outstanding interest accrued on the principal dues from the date of application for supply of electricity by the auction purchasers."
In the instant case, the plaintiff had applied for reconnection of the electricity meter in her name after regaining the possession of the property from the trespasser Sh. Hanish Kakker, which was denied by the defendant for non-payment of dues. It is correct that the CS No. 31/18 Malti Jain Vs. TPDDL Page: 36 of 41
-:: 37 ::- Date: 31.07.2023 duty of defendant to supply electricity is with respect to a consumer, which was not the plaintiff for the period 18.09.2004 to 08.0.2011 and from that perspective she is not liable to pay pending dues, however, the duty of the defendant to supply electricity is not absolute and the defendant can regulate the conditions for supply of electricity, the defendant is well within its right to claim arrears/dues from the plaintiff within the scheme of Electricity Act, 2003. The consumer for the purpose of Electricity Act, 2003 is both the owner as well as occupier and the occupier need not be lawful as has been held by the Hon'ble High Court of Calcutta in "Santosh Jaiswal Vs. CESC Limited & Ors, 2008 SCC Online Cal 492", wherein it was interalia held as under:-
"15. Keeping these well-settled principles of law in mind, this Court would proceed to examine the point in issue.
16. The word occupier in section 43(1) of the new Act has not been defined therein. In its decision in Industrial Suppliers (P) Ltd. v. Union of India, reported in AIR 1980 SC 1858, the Apex Court has held that in the legal sense an occupier is a person in actual possession.
17. Applying the literal rule, there appears to be no doubt that an occupier of a premises meaning thereby a person in possession thereof, in terms of section 43 of the new Act, is entitled to supply of electricity on request being made to the licensee and once electricity is supplied and he bears the charges therefor, he becomes a consumer of electricity. The duty of the licensee is to supply electricity, i.e. sell the licensee to ascertain whether the prospective consumer is in lawful occupation or not is not discerned in the statutory provisions.
CS No. 31/18 Malti Jain Vs. TPDDL Page: 37 of 41
-:: 38 ::- Date: 31.07.2023
18. In some of the decisions referred to supra, the Courts have interpreted the word 'occupier' in section 43 of the new Act to mean 'a lawful occupier'.
19. There can be no doubt that by so interpreting the word 'occupier' in section 43, the Courts have assumed existence of a word therein. Section 12(6) of the old Act provided that occupier of a building or land would mean one in lawful occupation thereof for the purposes mentioned in sub-section (2) thereof. The decisions in Associate Indian (supra), Surajbali Pandey (supra) and Aloke Saha (supra) have proceeded on the basis that provisions contained in section 12 of the old Act is a bar for supplying electricity to a prospective consumer unless he proves lawful occupation of the premises at which supply is intended. Without dilating on the point of applicability of section 12 of the old Act to an application for new connection on the face of section 22 thereof, it may be noted that in repealing the old Act and introducing the new Act the legislature has consciously omitted the word 'lawful' while denoting the class of persons entitled to supply of electricity. What the legislature omitted, obviously consciously, could not have been read into the statute unless of course reading of the statute without such addition would render it absurd or unintelligible. Section 43(1) of the new Act, read as it is, does not produce absurd or unintelligible results.
20. That apart, one cannot lose sight of the fact that a person intending to enjoy electricity though alleged to be a trespasser by the owner of the premises cannot be evicted by the owner except by taking recourse to law. If possession of such trespasser is protected till such time his eviction is ordered according to law, it defies reason as to why an embargo should be created by judicial verdict only in respect of obtaining supply of electricity. None can dispute that electricity is an essential service without which it is difficult to survive. Right to live a meaningful life and with dignity is one of the basic CS No. 31/18 Malti Jain Vs. TPDDL Page: 38 of 41
-:: 39 ::- Date: 31.07.2023 postulates of Article 21 of the Constitution. The right guaranteed under Article 21 is the fundamental of all fundamental rights enshrined in Chapter III of the Constitution. One cannot be deprived of such right only on the basis of an unestablished accusation that he is a trespasser which, as held in Soumitra Banerjee (supra), is commonly used as a tool or means of putting extraneous pressure for resolving civil disputes. Supply of electricity to such alleged trespasser by a licensee would neither prejudice in any manner the owner's right to have an order of eviction passed against him nor would it make any difference so far as status of the alleged trespasser is concerned. The licensee's duty is to sell electricity provided formalities are complied with. There is no justification to hold that lawful occupation of a portion of the premises is a pre-condition for obtaining supply. If the right of an owner to object to electricity being supplied to an occupier of his premises by the licensee is to be conceded on the ground that the occupier has illegally or unauthorisedly taken possession, that would necessarily lead to clothing the licensee with the right to adjudicate the occupier's right to enjoy the property which this Court is inclined to hold is not the legislative intention. The laws of the country provide for adjudication of such issue by an appropriate forum. If there is any flaw in the statute or the phrasing is defective and the need to mend it arises, it is only the legislature that can amend it. It is the function of the Courts to expound and not to legislate is settled law. Keeping in view the scheme of the new Act, reading the word lawful before the word 'occupier' would amount to legislation by Court which is impermissible."
Thus, the liability of the plaintiff to pay the dues is made out. However, the plaintiff is not liable to pay the direct theft bill raised and settled by the defendant qua Sh. Hanish Kakkar in CS No. 31/18 Malti Jain Vs. TPDDL Page: 39 of 41
-:: 40 ::- Date: 31.07.2023 Permanent Lok Adalat as Section 22E of the Legal Services Authorities Act, 1987 clearly stipulates that the award of Permanent Lok Adalat shall be final and binding on all the parties thereto. It shall be deemed to be a decree of a Civil Court. The defendant being one of the parties to the award of the Permanent Lok Adalat is not permitted to re-agitate the direct theft electricity bill qua the plaintiff. It is trite law that the award of Permanent Lok Adalat is final and cannot be called in question in any original suit, application or execution proceedings. Reliance in this regard is placed upon the judgment of the Hon'ble Supreme Court of India in "Canara Bank Vs. G. S Jayarama (2022) 7 SCC 776". The defendant is free to get the award of the Permanent Lok Adalat executed through a Civil Court against Sh. Hanish Kakkar but is not entitled to recover the same from the plaintiff herein.
Accordingly, this issue is partly decided in favour of the plaintiff and partly against the defendant, with a direction to the defendant to install new electricity connection in the property upon payment of pending dues except the direct theft electricity bill which was settled by the order of the Permanent Lok Adalat and LPSC charges levied thereupon.
3. Whether plaintiff is entitled for damages for the amount of Rs.3,60,000/-, if so, interest, at what rate and for what period? OPP The onus to prove this issue is upon the plaintiff. The plaintiff has not placed on record any evidence to show that she had sustained CS No. 31/18 Malti Jain Vs. TPDDL Page: 40 of 41
-:: 41 ::- Date: 31.07.2023 damages on account of non installation of a new connection. The plaintiff has not placed on record rent agreement showing that the son of the plaintiff was residing in rented accommodation in Tri Nagar for a monthly rent of Rs. 15,000/- per month. Even on perusal of cross-examination of PW1, it has come on record that the plaintiff has received a sum of Rs. 1,40,000/- from Sh. Hanish Kakkar and his brother Sh. Naresh Kakkar respectively as damages in the execution petition filed before the court of Ms. Harshita Vatsayan, Ld. Civil Judge-03, Central Tis Hazari Courts, Delhi. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
RELIEF
9. The suit of the plaintiff is partly decreed with a direction to the defendant to install new electricity connection in the property upon payment of pending dues except the direct theft electricity bill which was settled by the order of the Permanent Lok Adalat and LPSC charges levied thereupon. The FDR amounting to Rs. 28,500/- bearing no. 7747572 dated 31.07.2018 be released in favour of the plaintiff.
File be consigned to record room. Digitally signed
SHIVALI by SHIVALI
BANSAL
BANSAL Date: 2023.07.31
Announced in open 16:53:45 +0530
Court on 31.07.2023 Shivali Bansal
Additional District Judge-03
North District, Rohini Courts, Delhi
CS No. 31/18 Malti Jain Vs. TPDDL Page: 41 of 41