Bhai Investment P. Ltd. vs Municipal Corporation Of Delhi ...
2007 Latest Caselaw 145 Del

JUDGMENT

S. Muralidhar, J.

1. The petitioner was running a 19-room hotel, known as Hotel President, at Asaf Ali Road, New Delhi The petitioner was sanctioned a load of 110 KW by the Delhi Electric Supply Undertaking ('DESU') a wing of Municipal Corporation of Delhi ('MCD'), the respondent herein With the unbundling of the DESU the respondent MCD has, by an order of this Court dated 10 11 2005, been substituted by the BSES Yamuna Power Limited

2. The petitioner's premises was inspected on 19 7 1990 by a joint inspection team of enforcement which found the following irregularities:

(a) Large Industrial Power (LIP), since the connected load was found to be 169 08 KW as against the sanctioned load of 110 KW

(b) Low Power Factor (LPF), the installed shunt capacitors of 3 x 8 KVAR + 15 KVAR were of inadequate capacity vis-a-vis the connected load of 169 08 KW The required capacity of the shunt capacitor has to be 1/3rd of the connected load

(c) There was subletting on account of the connection being used by M/s Bhai Sunderdas and Sons Company (P) Ltd , also in addition to the same connection being used for different floors of Hotel President

3. The copy of the inspection report (which has been annexed by the petitioner as Annexure 'I' to this writ petition) was signed by the representative of the petitioner, Mr Kuljeet Singh, as well as by each of the members of the inspection team The remarks in the inspection report read: "shunt capacitor 3 x 8 KVAR, 15KVAR found installed (ii) There is (sic) two sources supply from different sources through change over switch which is duly sealed by MTD Department "

4. Consequent upon the above inspection, on 2 9 1992 a letter was addressed to the petitioner by DESU stating that misuse of electricity by the petitioner, as found during the inspection, would attract surcharge/higher tariff and further that "unless and until sufficient evidence/proof to the satisfaction of DESU is made available to substantiate otherwise without prejudice to our right to take further action for disconnection of the supply under Clause 7(2)/7(4) and/or 7(6) of the order ibid " The said letter further required the petitioner to remove the excess load and/or misuse, provide/maintain shunt capacitor of adequate capacity so as to keep the power factor not below 85 lagging and bring down your load within the sanctioned limited " The petitioner replied to this letter dated 10 9 1992 denying both the misuse as well as the subletting The petitioner further maintained that there was no excess load and that there was no change in the user

5. On 7 10 1992 the petitioner was issued a show cause notice for the levy of surcharge on account of load violation/misuse of supply/non-installation of shunt capacitor Notice further stated that a bill would be raised w.e.f. July, 1989 by revising the applicable tariff

6. At this stage, the petitioner filed the present writ petition on 18 12 1992 challenging, inter alia, the said letter dated 2 9 1992 and notice dated 7 10 1992 issued to it by DESU On 21 12 1992 this Court directed notice to issue in the writ petition and passed an interim order staying the disconnection of electricity at the petitioner's premises at 4/238, Asaf Ali Road, New Delhi on the condition that the petitioner should pay a sum of Rs 80,000/- on or before 24 12 1992 Thereafter, numerous interim orders were passed permitting the petitioner to make ad hoc payments against the bills raised including misuse charges On 5 5 1993 it was noticed by this Court that no reply had been filed by the respondent and a direction was given that "henceforth the respondent shall not charge low tension charges, load violation charges and low power factor surcharge from the petitioner "

7. On 29 9 1993 since no reply had yet been filed by the respondent, this Court issued Rule and confirmed the interim orders made earlier This Court further directed that "henceforth, the respondent shall not charge misuse charges from the petitioner "

8. Pursuant to the substitution of BSES Yamuna Power Limited as a respondent, a counter affidavit has been filed by the said substituted respondent

9. Mr S C Nigam, learned Counsel for the petitioner submits that none of the three reasons pointed out by the respondent is tenable for coming to a conclusion about the misuse of electricity by the petitioner As regards the shunt capacitor requiring to be placed, a reference is made to a letter dated 12 4 1990 written by the petitioner informing DESU that it had installed the "40 KVAR capacitor so as to keep the power frequency above 85 " This is also, according to the petitioner, verified by an expert As regards the charge that the connected load of 169 08 kw was in excess of the sanctioned load of 110 KW, it is submitted that nothing has been shown by the respondent to indicate the basis on which such conclusion was drawn Thirdly, it is denied that there was any "subletting" as alleged It is submitted that since the petitioner is the owner of the property and the Director of Hotel President where this electricity connection has been installed by the DESU, there was no question of subletting

10. In reply, Ms Veronica Mohan, learned Counsel appearing for the BSES Rajdhani Power Limited points out that the petitioner in its letter dated 10 9 1992 did not dispute either the fact of the inspection having been carried out or the facts recorded in the inspection report While, it is not denied that a shunt capacitor was fixed by the petitioner, it was not of an appropriate capacity considering that the connected load was of 169 08 KW This would require a shunt capacitor of at least 60 KVAR, whereas the shunt capacitor installed by the petitioner was only up to 39 KVAR Even on the issue of subletting, it is pointed out that there was no denial by the petitioner as such It is pointed out that in rejoinder affidavit the petitioner has stated that "the electricity is being used by the same persons who besides being the owners of the property are also being business in the name of Bhai Sundar Das & Sons Co (P) Ltd and Hotel President "

11. After considering the facts of the case, the documents on record as well as the submission of learned Counsel for the parties, this Court finds that the petitioner has not really brought on record anything concrete to dispute the factual position of misuse of electricity as is evident from the inspection report dated 9 7 1992 This report was prepared in the presence of the petitioner There were two electricity connections on the premises in question and it was found that the shunt capacitor installed was not appropriate for the connected load of the premises The petitioner has not been able to show that the inspection report is either erroneous or perverse or activated by ulterior motives so as to enable the Court to take a different view of the matter In fact, there is nothing whatsoever to doubt the genuineness of the inspection conducted by the respondent or the report prepared pursuant thereto In that view of the matter, it is difficult for this Court to take a contrary view and hold that letter dated 2 9 1992, which is also consequent to the said inspection, suffers from illegality

12. The Respondent is right in contending that the Petitioner does not in fact deny either that the shunt capacitor was inadequate or that the connected load was more than the sanctioned load Even on subletting, the submission in the rejoinder is that the petitioner is also doing business "in the name of Bhai Sundar Das & Sons Co (P) Ltd and Hotel President" This indicates that the present petitioner [Bhai Investment (P) Limited] was a separate identity and probabilises the fact of sub-letting

13. On a conspectus of the facts of the case, there is no illegality in the determination by the respondent of the misuse of the electricity by the petitioner The restricted scope of judicial review in such matters limits the power of interfering with the decision sought to be reviewed on grounds of either procedural irregularity that has caused irreversible prejudice or on substantive grounds of irrationality or perversity Neither grounds have been made out by the petitioner in the instant case

14. The writ petition is, accordingly, dismissed All interim orders stand vacated

15. Petition and all pending applications stand disposed of