Delhi District Court
Sh. Surinder Pal (Since Deceased) vs Bses - Rajdhani Power Ltd on 21 September, 2015
IN THE COURT OF SH. ARUN KUMAR GARG: CIVIL JUDGE:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
C.S No:325/11
Unique case ID No: 02405C0129432011
IN THE MATTER OF
Sh. Surinder Pal (since deceased)
S/o Late Sh. S.K. Gupta,
At 839 G, Nangloi road,
Nazafgarh, Delhi
Now substituted through Sh. Pankaj Aggarwal, L.R. ... Plaintiff
Versus
BSES - Rajdhani Power Ltd.
through its Administrative Head/CEO
Corporate and legal cell,
Andrews Ganj,
New Delhi .... Defendant
Date of filing : 16.03.2011
Date of Institution : 17.03.2011
Date of pronouncing judgment : 21.09.2015
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1. By this judgment, I will dispose of the suit for permanent injunction CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 1 of 23 filed by plaintiff Sh. Surinder Pal against the sole defendant M/s BSES Rajdhani Power Ltd.
2. Brief case of the plaintiff as per plaint is that he is registered consumer of electricity connection bearing K No.2620061478 (old) 2620KC010073 (new) installed at 839 G, Nangloi road, Najafgarh, New Delhi and on 05.06.2010 the meter was replaced by defendant with new meter. Subsequently, the defendant has raised a demand of Rs.3,03,731/ vide assessment bill no.AGENR101220100016 vide a notice dated 27.12.2010 u/s.56 of Electricity Act, 2003 which was received by plaintiff on 02.01.2011.
3. According to plaintiff, the defendant has raised aforesaid bill in gross violation of principles of natural justice in as much as, according to him, no opportunity has been given by defendant to the plaintiff either before raising the aforesaid bill or after raising the same, despite repeated requests by the plaintiff in this regard. On the other hand, the defendant is trying to disconnect the electricity CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 2 of 23 supply of plaintiff on account of non payment of aforesaid bill which, according to plaintiff, is not only in violation of principles of natural justice but is also in violation of DERC Code, 2007. The plaintiff has thus filed present suit for permanent injunction restraining the defendant from enforcing the aforesaid bill and from disconnecting the electricity supply of the plaintiff due to non payment of said bill.
4. Upon receipt of the plaint, defendant was summoned. Defendant entered his appearance through counsel on 19.03.2011, whereas, Written statement was filed on behalf of the defendant on 08.12.2011.
5. The case of the defendant as per written statement is that the impugned bill has been rightly raised by defendant, in as much as during inspection at the premises of plaintiff on 05.06.2010, the meter installed at the said premises was found slow by 44.75% and a connected load of 113.326 KW(IX) was found connected against the CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 3 of 23 sanctioned load of 92.16 KW(IX). Subsequently, since the plaintiff had refused to sign and receive the copy of meter report and load report, the meter was tested in the laboratory on 17.06.2010 by Electrical Research and Development Association. During the aforesaid lab test, meter was found 4.53 % slow with C.T. And CMRI data of Y face potential was found missing for 60 cumulative days. Besides, as per ERDA report, Y face C.T. Of meter was found burst. Thus, according to defendant since the definition of meter as per Delhi Electricity Supply Code and Performance Standard Regulations, 2007 includes C.T and C.T. of Y face of the meter was found burst during lab test, the meter was declared defective and the plaintiff has been billed for a period of 6 months based on the estimated energy consumption by taking consumption pattern of consumer for 12 months prior to the period during which the meter remained defective as per regulation 43(i) of the Supply Code and the impugned bill was raised by the defendant after adjusting the units already charged for the assessed period. Thus, according to the defendant, since the impugned assessment bill has been rightly CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 4 of 23 raised by defendant against plaintiff, the plaintiff is not entitled to the relief of injunction as prayed for by him. Even otherwise, according to the defendant, in view of the judgment of Hon'ble Delhi High Court in 'Sarjeevan Singh's case, the plaintiff was required to seek declaration of impugned bill as null and void before seeking the relief of injunction after making the payment of requisite court fees as per amount of the bill. Thus, the defendant has prayed for dismissal of present suit of plaintiff.
6. In his replication to the written statement of the defendant, though the plaintiff has admitted that alleged inspection at his premises was conducted by inspection team of defendant on 05.06.2010, however, the remaining averments made in the written statement were denied by plaintiff. On the other hand, averments made in the plaint were once again reiterated by plaintiff.
7. After completion of the pleadings, matter was fixed for admission/denial of documents and for framing of issues, however in CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 5 of 23 the meantime, the plaintiff expired on 25.04.2013 and as such on an application under order 22 Rule 3 read with section 151 CPC Mr. Pankaj Aggarwal, son of the plaintiff was impleaded as sole legal representative of the plaintiff vide order dated 26.03.2014. Subsequently, vide order dated 05.05.2014, the following issues were settled by this court on basis of pleadings of parties after hearing their submissions.
(i) Whether the jurisdiction of this court is barred in view of provisions of Section 42(5) of Electricity Act, 2003? OPD.
(ii) Whether the plaintiff is entitled for relief of permanent injunction as per prayer clause (a) of plaint? OPP.
(iii) Relief.
8. Looking into the nature of issue no.1, the same was treated as preliminary issue since it was submitted by parties that same is a pure question of law and no evidence was required to be led by any of the parties on the said issues.
CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 6 of 23
9. Arguments were accordingly heard on the preliminary issue no. 1 and it was decided against defendant vide order dated 11.07.2014.
10. Thereafter, the matter was fixed for plaintiff's evidence on the remaining issues. Sh. Pankaj Aggarwal has examined himself as sole witness in support of his case. He has tendered his affidavit Ex.PW1/A in evidence alongwith the following documents. Ex.PW1/1: copy of meter replacement sheet.
Ex.PW1/2: copy of letter dated 31.08.2010 sent by defendant to the plaintiff.
Ex.PW1/3 copy of letter dated 27.09.2010 written by plaintiff to the defendant.
Ex. PW1/4: copy of lab report dated 17.06.2010.
Ex.PW1/5: copy of letter dated 22.12.2010 written by plaintiff to the defendant.
Ex.PW1/6: copy of impugned bill dated 10.12.2010. Ex.PW1/7: copy of letter dated 03.01.2011 written by plaintiff to the defendant.
Ex.PW1/8: copy of notice dated 27.12.2010 u/s.56 of Electricity Act, 2003.
PW1 was cross examined by ld. counsel for defendant and was discharged. Thereafter, on a separate statement of plaintiff, PE was CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 7 of 23 closed on 21.01.2015 and the matter was fixed for defendant's evidence.
11. Defendant has examined two witnesses in support of its case. Sh.
Rajesh Singhal, Sr. Manager (O & M), BSES, Vikaspuri was examined as DW1 who has tendered his affidavit Ex.DW1/A in evidence alongwith following documents:
Ex.DW1/A: copy of load report dated 05.06.2010. Ex.DW1/B: copy of meter report.
Ex.DW1/C: copy of inspection report dated 05.06.2010. Ex.DW1/E Original lab report dated 17.06.2010. DW1 was duly cross examined by ld. counsel for plaintiff and was discharged.
12. Sh. Sudip Bhattacharya was examined by defendant as DW2 who has tendered his affidavit Ex.DW2/A in evidence. He was duly cross examined by ld. counsel for plaintiff and was discharged. During his CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 8 of 23 cross examination, the following documents were produced by DW2. Ex.DW2/P1: letter dated 18.10.2010 written by representative of defendant to plaintiff.
Ex.DW2/P2 internal note sheet prepared by DW2 before raising the impugned bill against the plaintiff.
MarkA, copy of proof of dispatch of alleged letter dated 18.10.2010.
13. No other witness has been examined on behalf of defendant and according, DE was closed vide order dated 19.08.2015. Thereafter, final arguments were heard on behalf of both the parties. I have heard the submissions made on behalf of the parties and have also perused the entire material available on record. My issue wise findings are as follows:
ISSUE NO.1: Whether the jurisdiction of this Court is barred in view of provisions of Section 42(5) of the Electricity Act, 2003? OPD.
14. As has already been observed hereinabove, the aforesaid issue has already been decided by this Court against the Defendant vide order dated 11.07.2014.
CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 9 of 23 ISSUE NO.2: Whether the plaintiff is entitled for relief of permanent injunction as per Prayer (a) of the plaint? OPP
15. Onus to prove the aforesaid issue was upon the plaintiff. In prayer (a) of the plaint, plaintiff has prayed for a decree of permanent injunction restraining the defendant from enforcing bill no. AGENR 101220100016 and from disconnecting the electricity supply of plaintiff from electricity connection bearing K No. 2620061478 (old) 2620KC010073 (New) installed at 839G, Nagloi Road, Najafgarh, New Delhi due to nonpayment of aforesaid bill. It is submitted by counsel for the plaintiff that the plaintiff has been able to discharge its onus to prove the present issue in as much as admittedly neither any opportunity of hearing, either before declaring the old meter of the plaintiff as defective or before raising the impugned bill, was given by defendant to the plaintiff despite the fact that plaintiff has to suffer civil consequences because of the illegal demand raised by the defendant under the impugned bill, nor any speaking order has been passed by the defendant giving the basis for raising the alleged demand. Thus, according to Ld. Counsel for plaintiff, non CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 10 of 23 compliance by the defendant of principles of natural justice before raising the impugned bill against the plaintiff has rendered the said bill null and void and defendant is liable to be restrained from enforcing the said bill and also from disconnecting the electricity supply of the plaintiff due to nonpayment under the impugned bill.
16. On the other hand, it is submitted by counsel for the defendant that plaintiff has failed to point out any illegality in the impugned bill in as much as the same has been raised by the defendant strictly in compliance with the provisions of Regulation 43 of the Supply Code since the 'meter' of the plaintiff, which term includes CT, was found defective due to CT of Yphase having been found burst during the lab report which has not been disputed by the plaintiff. According to him, the plaintiff has failed to point out as to why Regulation 38 of the supply code is applicable to his case. He submits that the Regulation 38 is applicable if the billing is done by the defendant on account of slowness of the meter whereas if the meter is found to be defective, the provisions of regulation 43 shall apply and not of CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 11 of 23 regulation 38. Even otherwise, he submits that since the plaintiff has failed to seek a declaration as to the impugned bill being null and void and to pay the court fee accordingly, in view of judgment of Hon'ble Delhi High Court in Sarjiwan Singh v. Delhi Vidyut Board, 110(2004) DLT 633, suit of the plaintiff is liable to be dismissed on this ground alone. He further submits that the sole basis, on which the demand raised by the defendant vide impugned bill has been challenged by the plaintiff in the present suit, is that the said bill has been raised by the defendant without giving him an opportunity of being heard. He submits that no such opportunity is contemplated by the provisions of supply code and as such there is no question of the impugned bill being bad on account of nongiving of any opportunity of hearing by the defendant to the plaintiff before raising the said bill.
17. In rebuttal, it is submitted by Ld. Counsel for the plaintiff that even if there is no specific provision in the supply code, for giving an opportunity of hearing to the consumer by the defendant before CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 12 of 23 raising a bill either in terms of regulation 38 or regulation 43, still it is incumbent upon the defendant to give such an opportunity to the consumer in compliance with the principles of natural justice since any assessment order of the defendant raising a bill under any of the aforesaid regulations shall have civil consequences for the plaintiff, in as much as not only it will put extra monetary liability upon the plaintiff without there being any fault on his part, but shall also has the effect of depriving him of the essential amenity like electricity if the dues under the assessment bill are not paid by the plaintiff. Ld. Counsel for the plaintiff has relied upon the following judgments in support of his submissions:
i) Canara Bank & Ors. v. Sh. Debasis Das & Ors. AIR 2003 SC 2041
ii) Rajesh Kumar & Ors. DCIT & Ors. AIR 2007 SC 181
iii)M/s Sahara India (Firm), Lucknow v. CIT, CentralI & Anr. 2008 AIR SCW 3665
iv) Shridhar v. Nagar Palika, Jaunpur AIR 1990 SC 307
v) M. N. Gupta & Anr. v. University of Delhi & Ors. AIR 1992 Delhi212 CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 13 of 23
18. Besides, it is submitted by him that since the impugned bill on the face of it is illegal no declaration was required to be sought by the plaintiff regarding the same being null and void even in terms of judgment of Hon'ble Delhi High Court in Sarjiwan Singh's case (Supra).
19. I have heard the submissions made on behalf of the parties and have also perused the record. First of all, I will deal with the submissions of Ld. Counsel for the defendant that in view of judgment of Hon'ble Delhi High Court in Sarjiwan Singh's case (supra), the present suit for simpliciter injunction, without first seeking the relief of declaration of impugned bill being null and void, is not maintainable. Though, there can't be any dispute about the proposition of law laid down by Hon'ble Delhi High Court in the aforesaid judgment that if prima facie the impugned bill seems to be legal, the plaintiff should seek a declaration of the same as null and void and should pay the court fee accordingly, after valuing the suit for the purposes of jurisdiction as well as court fee as per the bill CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 14 of 23 amount. However, in case bill seems to be illegal/void on the face of it, a suit for injunction simpliciter restraining the defendant from disconnecting the electricity on account of nonpayment of the same is maintainable and no declaration would be required as has been held by Hon'ble Delhi High Court in BSES Rajdhani Power Ltd. v.
Manoj Kumar (2007) 145 DLT 390. In the later case, the earlier judgment of Hon'ble Delhi High Court in Sarjiwan Singh's case (supra) was considered by the Hon'ble Delhi High Court and following observations were made:
"The main question which falls for consideration in this case is whether an aggrieved person/plaintiff is liable to pay the court fees on a bill which is prima facie not legal or where the court comes to the conclusion that the procedure adopted by the licensee i.e BSES Rajdhani Power Limited is not correct.
2. Counsel for the petitioner urged that the order of this court, in Sarjiwan Singh v. Delhi Vidyut Board, 110 (2004) DLT 633 : 2004 (75) DRJ 400 puts the case of the petitioner in an impregnable position. Its relevant para is reproduced as hereunder:--
"7. In these circumstances the Order dated 25.9.1997 in Suit No. 791/1997 does not disclose any error in the exercise CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 15 of 23 of jurisdiction; CR No. 1186/1997 is accordingly dismissed. Reference Nos. 1/1998, 2/1998, 3/1998, 4/1998, 5/1998 and 6/1998 are disposed of by holding that where a bill has been raised by the Electricity Department, which is prima facie legal, a declaration must be prayed for to the effect that the bill is incorrect or illegal before the Plaintiff can legally pray for an injunction against the recoveries made on the basis of such bills."
Emphasis Supplied.
3. It must be borne in mind that the stress is on prima facie legal bill. Similar view was taken in a recent case titled as North Delhi Power Limited v. Ganesh Aggarwal, CRP No. 72/2006 dated 2nd November, 2006 passed by this court.
The Authority of Sarjiwan Singh v. Delhi vidyut Board (supra) was considered and it was held that the only exception carved out in para 7 of the judgment (quoted above) is that the court must be satisfied that the bill is prima facie legal."
20. In the case in hand, the bill cannot be said to be prima facie legal in as much as no basis/criteria for raising the same has been mentioned in the bill. Thus in the absence of bill being prima facie legal, suit for injunction simpliciter is perfectly maintainable and the plaintiff CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 16 of 23 was not required to seek any declaration of the same being null and void.
21. Now coming to the second aspect as to whether the defendant was required to give any opportunity of hearing to the plaintiff before raising the impugned bill. No doubt the alleged act of defendant in raising the impugned bill cannot be said to be either a judicial or quasi judicial act but certainly it amounts to an administrative act which entails civil consequences for the plaintiff and as such the defendant was bound to follow the principles of natural justice while raising the impugned bill. While taking the aforesaid view, I am supported by the following observations made by Hon'ble Supreme Court in para 19 of its judgment in Canara Bank & Ors. V. Sh.
Debasis Das & Ors. AIR 2003 SC 2041:
"19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 17 of 23 should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and nonpecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." (Emphasis mine)
22. In the aforesaid para Hon'ble Supreme Court has further pointed out as to what may be considered to be civil consequences. In case an administrative order entails civil consequences, it is mandatory for the authority to give an opportunity of hearing to the affected party even if there is no specific provision in this regard in the statute/rules. While taking the aforesaid view, I am supported by the judgment of Ho'ble Supreme Court in Rajesh Kumar & Ors. v.
DCIT & Ors. AIR 2007 SC 181 wherein the following observations were made:CS No.325/11
Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 18 of 23 "26. Effect of civil consequences arising out of determination of lis under a statute is stated in State of Orissa v. Dr. Binapani Dei [(1967) 2 SCR 625 : AIR 1967 SC 1269] . It is an authority for the proposition when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. In such an event, although no express provision is laid down in this behalf, compliance with principles of natural justice would be implicit. In case of denial of principles of natural justice in a statute, the same may also be held ultra vires Article 14 of the Constitution."
23. In Shridhar v. Nagar Palika, Jaunpur AIR 1990 SC 307 it has further been held by Hon'ble Supreme Court that an order passed in violation of principles of natural justice is rendered void.
24. In State Bank of Patiala v. S.K.Sharma (1996)3 SCC 364, it has been held by Hon'ble Supreme Court that scope of judicial review on question of compliance with principles of natural justice is same whether it be on a writ petition under Article 226 of the Constitution of India or in a civil suit.
CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 19 of 23
25. Thus in view of the aforesaid authoritative pronouncements, it is clear that a challenge to an administrative act of raising a bill either under Regulation 38 or under regulation 43 on the ground of non compliance with the principles of natural justice is maintainable even before a civil Court that too without seeking a relief of declaration of the said bill as null and void, if prima facie the bill is not legal and seems to have been raised in violation of principles of natural justice. The defendant was bound to comply with the principles of natural justice by giving an opportunity of hearing to the plaintiff before raising the bill as also before declaring the meter as defective since it entails civil consequences i.e. it burdens the plaintiff with monetary liability without the fault of plaintiff and in case of nondischarge of said liability by the plaintiff it may lead to disconnection of electricity supply of the plaintiff as directed by the defendant vide notice dated 27.12.2010 under Section 56 of the Electricity Act,2003. Admittedly the present case is not a case of theft of electricity by the plaintiff and the only purpose of raising the CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 20 of 23 impugned bill as alleged by Ld. Counsel for the defendant was to save the defendant from any loss which might have occurred to the defendant due to incorrect recording of consumption in the meter. It has been admitted by DW2 during his cross examination that neither any opportunity of hearing was given by the defendant before declaring the meter defective or before raising the impugned assessment bill nor has he passed any speaking order. It appears that even the meter test lab report and CMRI data was also not provided by the defendant to the plaintiff. Though DW2 during his cross examination has placed on record a letter Ex. DW2/P1 and according to him the said lab test report and CMRI data was supplied by him to the plaintiff alongwith the said covering letter, however, a bare perusal of the copy of alleged proof of dispatch markA shows that despite the fact that the letter is dated 18.10.2010, the alleged proof of dispatch is dated 08.09.2010. The defendant has further failed to explain as to why the assessment bill was raised for a period of six months despite the fact that admittedly as per the lab report the CMRI data was found missing only for a period of 60 CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 21 of 23 cumulative days. It may be noted that even as per Regulation 43, the defendant is supposed to raise a bill for a maximum period of six months and it is not that the defendant in each case shall raise a bill for a period of six months without application of mind as to the period during which the meter was found defective. Neither the CMRI data nor the calibration report of the alleged acucheck meter has been produced before the Court.
26. Thus, in view of the aforesaid discussion, in my considered opinion, the assessment bill has been raised by the defendant without complying with the principles of natural justice and as such the same is void. Defendant cannot be permitted to enforce the same nor can it be permitted to disconnect the electricity supply of plaintiff on account of nonpayment of dues under the impugned bill. The issue is accordingly decided in favour of plaintiff and against the defendant.
ISSUE NO.3: Relief.
CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 22 of 23
27. In view of my findings on issue no.1 & 2, defendant is hereby restrained from enforcing the impugned bill no.AGENR101220100016 and from disconnecting the electricity supply of the plaintiff from electricity connection bearing K. No. 2620061478 (old) 2620KC010073 (new) installed at 839 G, Nangloi road, Najafgarh, Delhi due to non payment of aforesaid bill. Parties to bear their own cost.
28. Decree sheet be prepared accordingly.
Announced in the open court on this 21st day of September, 2015. This order consists of twenty three signed pages.
(Arun Kumar Garg) Civil Judge(SW)/Dwarka Courts New Delhi/21.09.2015 CS No.325/11 Surinder Pal (since deceased) through LR Vs. BSES Rajdhani Power Ltd.
Judgment dated 21.09.2015 Page no. 23 of 23