Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : May 24, 2007
Date of Decision : June 11, 2007
+ W.P.(C) 4838/2004 & CM No.13744/2006
CROWN WHEELS P.LTD. ..... Petitioner
Through Mr.S.C.Nigam, Advocate.
versus
BSES RAJDHANI POWER LTD. ..... Respondent
Through Mr. Arun Monga with
Mr. Varun Kumar, Advocates.
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
: Dr. S. Muralidhar, J.
1. The petitioner is running a small scale industry for
manufacturing of automobile parts at premises No. 77 Maya Puri,
Delhi and it has a sanctioned industrial power connection of 120 HP
(89.2 KWs) against K.No.002-1316309 and 3 KW of industrial lighting
against K.No.1316317-IL. These electricity connections were granted
to it by erstwhile Delhi Vidyut Board ('DVB').
2. An inspection was carried out by the DVB on 3.4.1989. The
report noted that the connected load was 220.25 HP against the
sanctioned load of 120 HP and 2.7 HP of industrial lighting. Further it
was alleged that there was subletting to M/s. Okhla Small Scale
Industries, a unit in the adjacent premises. On the basis of the said
inspection reprot a letter dated 1.6.1989 was issued by the DVB to the
petitioner levying a penalty for exceeding the load and for subletting.
3. The petitioner disputed this liability by contending that Okhla
1 8
W.P.(C) 4838/2004 page of
Small Scale Industries was a separate unit with a separate
connection. The petitioner sought a fresh inspection and deposited the
necessary charges. A second inspection took place on 25.8.1989.
This time the inspection report showed the consumption in three
distinct parts in respect of each separate connection and consumer.
As far as the petitioner was concerned the connected load was shown
as 105 HP. The connected load for Okhla Small Scale Industries was
shown separately.
4. In the meanwhile the petitioner filed a Civil Suit for perpetual
injunction against the DVB for levying LIP tariff on the basis of the
inspection report dated 3.4.1989, which subsequently stood annulled
by the inspection report dated 25.8.1989. By an order dated 1.6.1990
the Civil Judge declined interim relief of restoration of electricity and
noted that the electricity could be restored only upon deposit of the
disputed amount of Rs.45,201.49 without prejudice to the rights of the
petitioner. The petitioner filed an appeal being MCA No. 274/1990
which was allowed by the judgment dated 27.3.1991 passed by the
Additional District Judge ('ADJ'). The ADJ held that the disconnection
was without justification and accordingly ordered reconnection by
passing the following order:
“I, therefore, direct the respondent to restore the electricity of
the appellant subject to the appellant's paying reconnection
charges and depositing Rs.10,000/- with the respondent. This
Rs. 10,000/- would be adjustable against the normal bill raised
by the respondent at SIP rates without prejudice to the
contention of the parties or the liability to pay charges at LIP
rate. Appeal is accepted.”
5. Meanwhile a third inspection of the premises took place on
26.7.1990. This inspection report also noted the consumption in
respect of the petitioner, separately. It is claimed by the Respondents
2 8
W.P.(C) 4838/2004 page of
that this inspection also revealed that the connected load was found
to be 222.098 HP plus 15.6 KW which was more than the sanctioned
load.
6. Pursuant to the order dated 27.3.1991 passed by the ADJ, the
petitioner deposited Rs.10,000/- and the electricity supply was
restored. The petitioner claimed that it had been regularly paying the
bill at the SIP tariff. There was a fire in the factory on 31.3.1993 and
on the advice of the Delhi Fire Service, the electricity supply was
disconnected by the DVB from the feeding point. Thereafter, despite
the petitioner making payment of the current charges, the DVB failed
to restore the electricity. The petitioner's industrial activity thereafter
came to a halt. Meanwhile, with the enactment of the Delhi Electricity
Reforms Act, 2000, the DVB came to be replaced by the BSES
Rajdhani Power Ltd.
7. The petitioner applied on 24.5.2001 to the Permanent Lok
Adalat ('PLA') for restoration of the supply and withdrawal of LIP
tariff which was proposed to be imposed. During the pendency of the
proceedings before the PLA, pursuant to an order dated 25.4.2003,
the petitioner was afforded a hearing and a Speaking Order dated
18.6.2003 was passed holding that there was misuse and that the LIP
tariff was payable. By its proceedings dated 23.3.2004 the PLA
recorded the failure in the dispute getting settled, and passed the
following order on:
“Today Sh.D.S.Nabiyal, BM(BS) submits that the movement of
the file has been traced but the file is with Deputy General
Manager, Enforcement. This case has been pending in this
Court since May, 2001 and it is unfortunate that the respondent
company is not showing any seriousness to settle the dispute
and has failed to produce even the bills which according to the
3 8
W.P.(C) 4838/2004 page of
respondent company are to be raised on the basis of three
inspections mentioned above and the petitioner had been
suffering without supply of electricity since 1993.
Ld. Counsel of the petitioner submits that in view of these facts,
the petitioner has exhausted his patience and is not in a position
to wait for any further period as the petitioner now wants to
approach some other Court for redressal of his grievance. The
petitioner is now at liberty to approach any other Court/Forum
for redressal of his grievance.
In view of these facts, I am constrained to close this case as
unsettled. I further direct that a copy of this order be sent to
Ld. Member Secretary, Delhi Legal Services Authority and
C.E.O. BSES Rajdhani Power Ltd. New Delhi for information.”
8. Thereafter the present writ petition was filed by the petitioner
in this Court on 5.4.2004 praying for a direction to the Respondent to
restore the electricity supply and for a direction to the Respondent to
pay a penalty for not complying with the Orders of the Court. The
counter affidavit has been filed by the successor entity BSES Rajdhani
Power Ltd. It was stated that the petitioner could not dispute the
liability to pay the electricity charges on LIP tariff and that in any
event the petition was barred by laches.
9. This Court on 6.4.2004 directed notice to issue in the writ
petition but no interim order was made. Meanwhile the Civil Suit
filed by the petitioner was dismissed for default by the Civil Court on
23.10.1993. On 19.8.2004 this Court requisitioned the file of the
concerned Suit.
10. The petitioner has since, on 31.10.2006, filed an application CM
No. 13744 of 2007 in which it is pointed out as under:
“the petitioner continues to be without electricity and the small
4 8
W.P.(C) 4838/2004 page of
industrial unit run by the petitioner is somehow surviving on
generating sets for the last over 13 years, whereas nothing is
due to the respondents and it is their obligation to supply
uninterrupted electricity for which the requisite statutory
agreement subsists.”
The petitioner mentioned the above facts and explained how the
Respondent was obliged to give the petitioner a fresh connection
failing which they should be asked to pay a penalty of Rs.1,000/- per
day for the period of delay in granting electricity connection beyond
5.2.2006. Enclosed with the said CM No. 13744/2007 is the copy of an
application made by the petitioner under the Late Payment Surcharge
(LPSC) waiver scheme. Under this Scheme the consumer can avail of
the benefit if he agrees to withdraw the cases pending before the
courts. A declaration has to be signed in the office of the BSES
Rajdhani Power Ltd. The petitioner on 3.1.2006 wrote to the BSES
Rajdhani Power Ltd seeking to avail of the benefit of the LPSC waiver
scheme. It informed the Respondent that Writ Petition (C) No.
4838/2004 (i.e the present petition) would be withdrawn upon the
restoration of electricity supply with the deposit of the billed amount.
11. It is submitted by Mr. S.C.Nigam, learned counsel for the
petitioner that the inspection reports did not indicate any misuse by
the petitioner and therefore the demand of LIP tariff was unjustified.
Moreover, no show cause notice was issued to the petitioner prior to
the demand of LIP tariff. A reference is also made to the proceedings
before the PLA. He accordingly prayed that the writ petition should be
allowed and a mandamus for re-connection of electricity be issued.
Finally, it was submitted that since the petitioner had complied with
all the conditions attached to the LPSC waiver Scheme, its application
5 8
W.P.(C) 4838/2004 page of
thereunder should be considered by the Respondent.
12. Appearing on behalf of the BSES Rajdhani Power Limited, Mr.
Arun Monga, learned counsel submitted that this was a case of
excess consumption. He referred to the counter affidavit in which it is
stated as under:
“That the contents of paragraphs 5 are admitted being matter of
record except that during the course of inspections it was found
that the petitioner's connection and another industrial units
connection i.e. M/s. Okhla Small Scale Industry are co-
beneficiaries of each other. However, it is wrong to allege that
the load violation was on account of inter-mixing of load as the
petitioner was independently using load excess of the
sanctioned load detected during the course of inspections on
3.4.1989, 26.7.1990 and 13.12.1990.”
13. It was submitted by Mr. Monga that the petitioner must clear all
the liabilities before seeking a reconnection. A reference is made to
the show cause notice issued on 1.6.1989. The meter readings of the
petitioner's premises were also referred to. The allegation that the
petitioner had not received the notice of disconnection dated
30.3.1993 was refuted by pointing out that on 28.4.1993 the
petitioner had sent a legal notice to the DESU about the show cause
notice being received which required the petitioner to pay
Rs.16,78,232.98. It is accordingly pointed out that this plea of non-
receipt of the show cause notice is contrary to the record. As regards
the plea of not being heard, Mr. Monga points out that before the
PLA, this plea was taken care of and a Speaking Order was passed
after hearing the petitioner. Finally, he submitted that his
instructions were that the application by the petitioner for availing the
benefit of the LPSC waiver Scheme was not being considered only
because of the pendency of the present petition.
6 8
W.P.(C) 4838/2004 page of
14. The Court finds that the justification for raising the demand as
per the inspection report cannot really be examined in these
proceedings for the simple reason that its validity was put in issue in
the Civil Suit by the petitioner and that Civil Suit got dismissed for
default on 23.10.1993. The petitioner took no steps thereof either to
revive the suit or file an appeal. Having opted to invoke a certain
remedy against these inspection reports, the petitioner should have
exhausted the other avenues available in law instead of seeking to
agitate that issue by way of a fresh petition. The Court is not inclined
to permit the petitioner to reopen that issue in these proceedings.
15. As far as the PLA is concerned no fault can be found with the
conclusion of the Presiding Officer that the case could not be settled
in the facts and circumstances of the case.
16. The only issue that requires to be considered is whether the
petitioner's case should be considered under the LPSC waiver
scheme. The petitioner has made its application in this regard. It
appears to have also made up to date payments. It is now for the
Respondent to consider to dispose of the said application in
accordance with the law. With this writ petition being disposed of by
this Order, there should be no impediment in the Respondent
considering the said application. The only relief therefore that can be
granted to the petitioner is in the form of a direction to the
Respondent BSES Rajdhani Power Limited to process and dispose of
the application made by the petitioner for waiver of the late payment
surcharge within a period of four weeks from today and in any event
not later than 10.7.2007. If the petitioner is aggrieved by the decision
on the said application, it can avail of the statutory remedies available
7 8
W.P.(C) 4838/2004 page of
to it in law. It hardly need be mentioned that since the issue is only
about misuser charges, the dispute, if any, would have to be
thereafter raised before the Consumer Grievance Redressal Forum
constituted under Section 42(5) of the Electricity Act, 2003. However
the petitioner will not be permitted to reagitate the contentions in this
writ petition concerning the validity of the inspection reports.
17. With these directions the writ petition is disposed of with no
order as to costs. The application stands disposed of.
Sd/-
S. MURALIDHAR, J
June 11, 2007
dn
8 8
W.P.(C) 4838/2004 page of
% Reserved on : May 24, 2007
Date of Decision : June 11, 2007
+ W.P.(C) 4838/2004 & CM No.13744/2006
CROWN WHEELS P.LTD. ..... Petitioner
Through Mr.S.C.Nigam, Advocate.
versus
BSES RAJDHANI POWER LTD. ..... Respondent
Through Mr. Arun Monga with
Mr. Varun Kumar, Advocates.
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
: Dr. S. Muralidhar, J.
1. The petitioner is running a small scale industry for
manufacturing of automobile parts at premises No. 77 Maya Puri,
Delhi and it has a sanctioned industrial power connection of 120 HP
(89.2 KWs) against K.No.002-1316309 and 3 KW of industrial lighting
against K.No.1316317-IL. These electricity connections were granted
to it by erstwhile Delhi Vidyut Board ('DVB').
2. An inspection was carried out by the DVB on 3.4.1989. The
report noted that the connected load was 220.25 HP against the
sanctioned load of 120 HP and 2.7 HP of industrial lighting. Further it
was alleged that there was subletting to M/s. Okhla Small Scale
Industries, a unit in the adjacent premises. On the basis of the said
inspection reprot a letter dated 1.6.1989 was issued by the DVB to the
petitioner levying a penalty for exceeding the load and for subletting.
3. The petitioner disputed this liability by contending that Okhla
1 8
W.P.(C) 4838/2004 page of
Small Scale Industries was a separate unit with a separate
connection. The petitioner sought a fresh inspection and deposited the
necessary charges. A second inspection took place on 25.8.1989.
This time the inspection report showed the consumption in three
distinct parts in respect of each separate connection and consumer.
As far as the petitioner was concerned the connected load was shown
as 105 HP. The connected load for Okhla Small Scale Industries was
shown separately.
4. In the meanwhile the petitioner filed a Civil Suit for perpetual
injunction against the DVB for levying LIP tariff on the basis of the
inspection report dated 3.4.1989, which subsequently stood annulled
by the inspection report dated 25.8.1989. By an order dated 1.6.1990
the Civil Judge declined interim relief of restoration of electricity and
noted that the electricity could be restored only upon deposit of the
disputed amount of Rs.45,201.49 without prejudice to the rights of the
petitioner. The petitioner filed an appeal being MCA No. 274/1990
which was allowed by the judgment dated 27.3.1991 passed by the
Additional District Judge ('ADJ'). The ADJ held that the disconnection
was without justification and accordingly ordered reconnection by
passing the following order:
“I, therefore, direct the respondent to restore the electricity of
the appellant subject to the appellant's paying reconnection
charges and depositing Rs.10,000/- with the respondent. This
Rs. 10,000/- would be adjustable against the normal bill raised
by the respondent at SIP rates without prejudice to the
contention of the parties or the liability to pay charges at LIP
rate. Appeal is accepted.”
5. Meanwhile a third inspection of the premises took place on
26.7.1990. This inspection report also noted the consumption in
respect of the petitioner, separately. It is claimed by the Respondents
2 8
W.P.(C) 4838/2004 page of
that this inspection also revealed that the connected load was found
to be 222.098 HP plus 15.6 KW which was more than the sanctioned
load.
6. Pursuant to the order dated 27.3.1991 passed by the ADJ, the
petitioner deposited Rs.10,000/- and the electricity supply was
restored. The petitioner claimed that it had been regularly paying the
bill at the SIP tariff. There was a fire in the factory on 31.3.1993 and
on the advice of the Delhi Fire Service, the electricity supply was
disconnected by the DVB from the feeding point. Thereafter, despite
the petitioner making payment of the current charges, the DVB failed
to restore the electricity. The petitioner's industrial activity thereafter
came to a halt. Meanwhile, with the enactment of the Delhi Electricity
Reforms Act, 2000, the DVB came to be replaced by the BSES
Rajdhani Power Ltd.
7. The petitioner applied on 24.5.2001 to the Permanent Lok
Adalat ('PLA') for restoration of the supply and withdrawal of LIP
tariff which was proposed to be imposed. During the pendency of the
proceedings before the PLA, pursuant to an order dated 25.4.2003,
the petitioner was afforded a hearing and a Speaking Order dated
18.6.2003 was passed holding that there was misuse and that the LIP
tariff was payable. By its proceedings dated 23.3.2004 the PLA
recorded the failure in the dispute getting settled, and passed the
following order on:
“Today Sh.D.S.Nabiyal, BM(BS) submits that the movement of
the file has been traced but the file is with Deputy General
Manager, Enforcement. This case has been pending in this
Court since May, 2001 and it is unfortunate that the respondent
company is not showing any seriousness to settle the dispute
and has failed to produce even the bills which according to the
3 8
W.P.(C) 4838/2004 page of
respondent company are to be raised on the basis of three
inspections mentioned above and the petitioner had been
suffering without supply of electricity since 1993.
Ld. Counsel of the petitioner submits that in view of these facts,
the petitioner has exhausted his patience and is not in a position
to wait for any further period as the petitioner now wants to
approach some other Court for redressal of his grievance. The
petitioner is now at liberty to approach any other Court/Forum
for redressal of his grievance.
In view of these facts, I am constrained to close this case as
unsettled. I further direct that a copy of this order be sent to
Ld. Member Secretary, Delhi Legal Services Authority and
C.E.O. BSES Rajdhani Power Ltd. New Delhi for information.”
8. Thereafter the present writ petition was filed by the petitioner
in this Court on 5.4.2004 praying for a direction to the Respondent to
restore the electricity supply and for a direction to the Respondent to
pay a penalty for not complying with the Orders of the Court. The
counter affidavit has been filed by the successor entity BSES Rajdhani
Power Ltd. It was stated that the petitioner could not dispute the
liability to pay the electricity charges on LIP tariff and that in any
event the petition was barred by laches.
9. This Court on 6.4.2004 directed notice to issue in the writ
petition but no interim order was made. Meanwhile the Civil Suit
filed by the petitioner was dismissed for default by the Civil Court on
23.10.1993. On 19.8.2004 this Court requisitioned the file of the
concerned Suit.
10. The petitioner has since, on 31.10.2006, filed an application CM
No. 13744 of 2007 in which it is pointed out as under:
“the petitioner continues to be without electricity and the small
4 8
W.P.(C) 4838/2004 page of
industrial unit run by the petitioner is somehow surviving on
generating sets for the last over 13 years, whereas nothing is
due to the respondents and it is their obligation to supply
uninterrupted electricity for which the requisite statutory
agreement subsists.”
The petitioner mentioned the above facts and explained how the
Respondent was obliged to give the petitioner a fresh connection
failing which they should be asked to pay a penalty of Rs.1,000/- per
day for the period of delay in granting electricity connection beyond
5.2.2006. Enclosed with the said CM No. 13744/2007 is the copy of an
application made by the petitioner under the Late Payment Surcharge
(LPSC) waiver scheme. Under this Scheme the consumer can avail of
the benefit if he agrees to withdraw the cases pending before the
courts. A declaration has to be signed in the office of the BSES
Rajdhani Power Ltd. The petitioner on 3.1.2006 wrote to the BSES
Rajdhani Power Ltd seeking to avail of the benefit of the LPSC waiver
scheme. It informed the Respondent that Writ Petition (C) No.
4838/2004 (i.e the present petition) would be withdrawn upon the
restoration of electricity supply with the deposit of the billed amount.
11. It is submitted by Mr. S.C.Nigam, learned counsel for the
petitioner that the inspection reports did not indicate any misuse by
the petitioner and therefore the demand of LIP tariff was unjustified.
Moreover, no show cause notice was issued to the petitioner prior to
the demand of LIP tariff. A reference is also made to the proceedings
before the PLA. He accordingly prayed that the writ petition should be
allowed and a mandamus for re-connection of electricity be issued.
Finally, it was submitted that since the petitioner had complied with
all the conditions attached to the LPSC waiver Scheme, its application
5 8
W.P.(C) 4838/2004 page of
thereunder should be considered by the Respondent.
12. Appearing on behalf of the BSES Rajdhani Power Limited, Mr.
Arun Monga, learned counsel submitted that this was a case of
excess consumption. He referred to the counter affidavit in which it is
stated as under:
“That the contents of paragraphs 5 are admitted being matter of
record except that during the course of inspections it was found
that the petitioner's connection and another industrial units
connection i.e. M/s. Okhla Small Scale Industry are co-
beneficiaries of each other. However, it is wrong to allege that
the load violation was on account of inter-mixing of load as the
petitioner was independently using load excess of the
sanctioned load detected during the course of inspections on
3.4.1989, 26.7.1990 and 13.12.1990.”
13. It was submitted by Mr. Monga that the petitioner must clear all
the liabilities before seeking a reconnection. A reference is made to
the show cause notice issued on 1.6.1989. The meter readings of the
petitioner's premises were also referred to. The allegation that the
petitioner had not received the notice of disconnection dated
30.3.1993 was refuted by pointing out that on 28.4.1993 the
petitioner had sent a legal notice to the DESU about the show cause
notice being received which required the petitioner to pay
Rs.16,78,232.98. It is accordingly pointed out that this plea of non-
receipt of the show cause notice is contrary to the record. As regards
the plea of not being heard, Mr. Monga points out that before the
PLA, this plea was taken care of and a Speaking Order was passed
after hearing the petitioner. Finally, he submitted that his
instructions were that the application by the petitioner for availing the
benefit of the LPSC waiver Scheme was not being considered only
because of the pendency of the present petition.
6 8
W.P.(C) 4838/2004 page of
14. The Court finds that the justification for raising the demand as
per the inspection report cannot really be examined in these
proceedings for the simple reason that its validity was put in issue in
the Civil Suit by the petitioner and that Civil Suit got dismissed for
default on 23.10.1993. The petitioner took no steps thereof either to
revive the suit or file an appeal. Having opted to invoke a certain
remedy against these inspection reports, the petitioner should have
exhausted the other avenues available in law instead of seeking to
agitate that issue by way of a fresh petition. The Court is not inclined
to permit the petitioner to reopen that issue in these proceedings.
15. As far as the PLA is concerned no fault can be found with the
conclusion of the Presiding Officer that the case could not be settled
in the facts and circumstances of the case.
16. The only issue that requires to be considered is whether the
petitioner's case should be considered under the LPSC waiver
scheme. The petitioner has made its application in this regard. It
appears to have also made up to date payments. It is now for the
Respondent to consider to dispose of the said application in
accordance with the law. With this writ petition being disposed of by
this Order, there should be no impediment in the Respondent
considering the said application. The only relief therefore that can be
granted to the petitioner is in the form of a direction to the
Respondent BSES Rajdhani Power Limited to process and dispose of
the application made by the petitioner for waiver of the late payment
surcharge within a period of four weeks from today and in any event
not later than 10.7.2007. If the petitioner is aggrieved by the decision
on the said application, it can avail of the statutory remedies available
7 8
W.P.(C) 4838/2004 page of
to it in law. It hardly need be mentioned that since the issue is only
about misuser charges, the dispute, if any, would have to be
thereafter raised before the Consumer Grievance Redressal Forum
constituted under Section 42(5) of the Electricity Act, 2003. However
the petitioner will not be permitted to reagitate the contentions in this
writ petition concerning the validity of the inspection reports.
17. With these directions the writ petition is disposed of with no
order as to costs. The application stands disposed of.
Sd/-
S. MURALIDHAR, J
June 11, 2007
dn
8 8
W.P.(C) 4838/2004 page of