Virender Kumar Jain vs Municipal Corporation Of Delhi
2007 Latest Caselaw 1255 Del

JUDGMENT

J.M. Malik, J.

1. The facts of the present case are these. Shri J.K. Jain, since deceased, is the registered consumer of electricity connection bearing K No. 52/0177118(CD) installed at the premises bearing No. 44-A, Dilshad Garden, GT Road, Shahdara, Delhi. Shri J.K. Jain expired on 2nd January, 1973. The officials of the defendant/respondent visited the factory of the plaintiff/appellant and found that the seals of the metre were tampered with. On the other hand, the appellant denied the above-said allegation. The plaintiff/appellant filed a suit for permanent injunction with the prayer that the defendant/respondent be directed not to disconnect the electricity supply except in due course of law. The interim order was passed but it was made clear in the interim order that this will not debar the authorities from raising the regular bills. Thereafter, a demand in the sum of Rs. 4,32,607.92 paise was made on the ground that a theft was committed by the appellant and others by tampering the aforesaid metre. The appellant filed another suit No. 1553/1991 and prayed that the DESU authorities may be restrained from disconnecting the electricity connection and recovering the aforesaid amount. The authorities were accordingly restrained from recovering the said amount vide order dated 27th June, 1991.

2. Vide judgment dated 29th August, 1997, the learned trial court held that the electricity metre was in the name of late Shri J.K. Jain and hence the appellant had no locus standi to maintain the suit. The case was dismissed on this preliminary objection. The case was not adjudicated on merits. The findings given by the trial court were upheld by the learned first appellate court vide its judgment dated 18th October, 1997. The first appellate court observed that the plaintiff/appellant had never applied for change of name after the death of his father. It cited Clause 8 A of conditions of supply, each consumer shall be required to enter into an agreement with the undertaking before the supply is commenced. The first appellate court also referred to authorities cited by the trial court and reported in Pawan Kumar Tandon v. NDMC AIR 1986 Delhi 454 and Puneet Plastic Industries v. Rawat Hosiery and Anr. AIR 1985 Delhi 257, wherein it was held that in case there is no privity of contract between the petitioner and DESU, discretionary relief cannot be granted.

3. Vide order dated 19th December, 1997, my learned predecessor, Justice (Retd.) Mohd. Shamim formulated the following substantial question of law in the present case:

Whether the son of a consumer who is a member of Joint Hindu Family and a Karta after the death of his father would be a 'consumer' within the meaning of Section 2(c) of the Indian Electricity Act, 1910?

4. I have heard the learned Counsel for the parties. The authorities cited by the trial court are not applicable to the facts of this case. In the above said case reported in Puneet Plastic Industries v. Rawat Hosiery and Anr. (supra) the dispute was between the landlord/tenant and DESU and it was held that there was no privity of contract between the tenant and the DESU. Secondly, the facts of case reported in Pawan Kumar Tandon v. NDMC(supra) are also different and have got no similarity with the facts of the instant case.

5. Moreover in a recent authority reported in S.D. Technical Services Pvt. Ltd. v. DESU 2006(130)DLT26], this court held that notwithstanding the fact that legal relationship is between the person in whose name electricity supply has been sanctioned and company supplying electricity, actual consumer would also be liable to clear the electricity dues. It was further held that the said liability flows from private contract between him and his landlord wherein it is stipulated that he will clear the electricity dues.

6. In another authority reported in Madhu Garg and Anr. v. North Delhi Power Limited (DB), it was held,

The learned Single Judge also observed that the outstanding dues can be realized from the consumer only when he is the heir and successor of the defaulting party. In our opinion, this is not the correct position of the law. The new owner/occupant whether he was a heir or successor or not, has to pay the outstanding dues if he wants continuation/restoration of the electricity connection. Further, notice of existence of arrears is not the requirement in the Clause 2.1(iv) of the General Conditions of the Supply. Also, there is no requirement for the licensee to first initiate recovery proceedings by filing a civil suit against the old consumer before disconnecting the supply. As observed by the Supreme Court in Swastic Industries v. MSEB (vide para 5):

It would, thus, be clear that the right to recover the charges is one part of it and right to discontinue supply of electrical energy to the consumer who neglects to pay charges is another part of it. The right to file a suit is a matter of option given to the licensee, the Electricity Board. Therefore, the mere fact that there is a right given to the Board to file the Suit and the limitation has been prescribed to file the suit, it does not take away the right conferred on the Board under Section 24 to make demand for payment of the charges and on neglecting to pay the same they have the power to discontinue the supply of cut-off the supply, as the case may be, when the consumer neglects to pay the charges.

7. This is an indisputable fact that the appellant is the legal representative of deceased Shri J.K. Jain. I am of the considered view that after the death of his father he steps into the shoes of his father. Respondent cannot be permitted to have the benefit of both the worlds. On the one hand, the appellant is being treated as legal representative of the deceased-consumer and is made liable to pay the electricity charges or the demand made in the bill in question, on the other hand, it does not lie in the mouth of the respondent authorities to say that it does not have any privity of contract with the respondent and as such, the appellant is not authorised to pursue the above-said case. The rights and duties of the citizens are actually the sides of the same coin. If the State can compel the citizens to perform their duties, citizens can also demand their rights. Rights and duties are correlated to each other. The State may issue excess demand bill. The citizens have a right to call the same in question on legal grounds, e.g., demand is excessive or is not tenable in the eyes of law. In order to promote the egalitarian society, the judiciary has to work as bulwork against the excesses committed either by the citizens or by the executive. It is not out of place to mention here that this is an indisputable fact that in the criminal case, the accused/ appellant stands exonerated, though the judgment of criminal court will not be binding on a civil case.

8. In view of the discussion above, I hereby accept the appeal, set aside the orders passed by the courts below and permit the appellant to pursue the case. The trial court to decide the case on merits. The parties are directed to appear before the trial court on 1st August, 2007. A copy of this order be sent to the trial court forthwith.

9. RSA 86/1997 and CM No. 3788/1997 stand disposed of.