Subhash Nijhawan & Another vs North Delhi Power Limited & ...
2010 Latest Caselaw 1460 Del

R-32
*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+       W.P.(C) 7181/2002

                                         Date of decision: 16th March, 2010

        SUBHASH NIJHAWAN & ANR.                     ..... Petitioners
                      Through Mr. Fanish K. Jain, Advocate.

                         versus

        NORTH DELHI POWER LIMITED & ANR.         ..... Respondents
                      Through Mr. Vikram Nandrajog, Advocate for
                      NDPL.

        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA

                                  ORDER

1. Mr. Subhash Nijhawan and Mr. R.K. Mittal have filed this writ petition in a representative capacity on behalf of Jhang Cooperative Group Housing Society Limited, respondent No. 2. It is an admitted position that an Administrator was appointed by the Registrar of Cooperative Societies to take over the management and control of the said society. The petitioners have stated that the said Administrator was not taking steps to ensure that the respondent No. 1-discom raises proper electricity bills on permanent domestic tariff with slab system benefits and bills were wrongly raised on temporary connection tariff. Respondent No. 2 society was served but the Administrator has failed to file counter affidavit. It is the admitted position that the bills raised by the respondent No. 1-discom were for consumption of electricity supply to residential flats in the cooperative society and have to be actually and de facto borne and paid by the flat owners/occupiers. In these circumstances, it is held that the petitioners are entitled to file the present writ petition in representative capacity and invoke writ jurisdiction.

W.P. (C) No. 7181/2002 Page 1

2. A scheme dated 8th November, 2001 was prepared and submitted to the Delhi Vidyut Board for supply of electricity and electrification of the respondent No. 2. As per the scheme, the total cost of the electrification was Rs.24,70,940/-, out of which Rs.20,18,400/- was payable by the respondent No. 2 society and the balance amount of Rs.4,52,540/- was payable by the Delhi Vidyut Board. The scheme, however, itself records that the Administrator by his letter dated 20th October, 2001 had requested Delhi Vidyut Board for giving high tension single delivery connection instead of multiple electricity connection or separate connection for each flat.

3. The Jhang Cooperative Group Housing Society Limited had applied for permanent electrification of the entire society on 11KV single point delivery system. The Delhi Vidyut Board accepted the request of the respondent No. 2 society for giving high tension single delivery connection in accordance with the then prevailing scheme. Copy of the said scheme dated 26th December, 1996 has been placed on record by the respondent discom. The said scheme stipulates that it would be the responsibility of the society/promoter to install, operate and maintain transformers, LT distribution network including individual metering , billing and collection of revenue. They would be responsible to make payment of the bills to Delhi Vidyut Board from time to time as per provisions of tariff. On the question of bearing of costs, the scheme states that Delhi Vidyut Board would bear the entire cost of HT feed and network upto HT metering cubical but the cost of installation of equipment/network after the HT cubical would be borne and paid by the society/promoters. It further states that the society/promoter shall install their own HT breaker/switch fuse so that they could isolate their transformers for maintenance/repairs and safeguard their equipment. The society/promoter was required to install minimum of two transformers to ensure reliability of supply.

W.P. (C) No. 7181/2002 Page 2

4. It is not disputed that in terms of the said scheme, Delhi Vidyut Board/respondent-discom had to bear and pay the entire cost of the HT feed/network upto the metering cubical and the cost of the equipment beyond the said cubical had to be borne and paid by the society.

5. Supply to the respondent No. 2 society was made under the said scheme dated 26th December, 1996. Delhi Vidyut Board and thereafter respondent discom on disbundling, for the period 7th February, 2002 to 13th February, 2003 raised bills on actual consumption by applying temporary domestic tariff rates. Temporary domestic tariff rates due to surcharge payable were 1 ½ times the normal domestic tariff rates. The contention of the petitioners is that the respondent-discom/Delhi Vidyut Board were entitled to charge normal domestic tariff without any surcharge which was applicable to temporary tariff.

6. The dispute involves interpretation of the tariff fixed for the year 2001-02. Copy of the said tariff has been placed on record by the respondent-discom. Examination of the said tariff shows that the tariff was divided into several headings; domestic, non-domestic, industrial, agricultural, mushroom cultivation, railway traction and licensee NDMC/MES. In addition to these headings, there is a separate category relating to temporary supply. It is not disputed that Clause 8.2(a) of the said tariff applies and the dispute pertains to interpretation of the said clause. The said clause reads as under:-

"

Category         Minimum          Demand        Energy          Normatiave
                 charges          Charges       charges          Limit Charges
                 (Rs./KW/         (Rs./KVA/     (Paise/          (KWh (%)
                 month)           month)        KWh)             /mont
                                                                 h)


8.2 (a) for Same as that                        Domestic
residential of    relevant -                    tariff
cooperative category                            without
group                                           any


W.P. (C) No. 7181/2002                                                   Page 3
 housing                                         surcharge      -       -
connections                                     from the
                                                date of
                                                payment
                                                of their
                                                payable
                                                share in
                                                full
                                                towards
                                                electrificat
                                                ion cost.
                                                                               "

7. Clause 8.2(a) stipulates that residential cooperative group housing connections shall be liable to pay minimum tariff charges as applicable and payable under the relevant category. Further, a residential cooperative group housing society would be liable to pay domestic tariff without surcharge from the date of payment of their share in full towards electrification cost. In other words, residential cooperative group housing connections would be billed for energy charges at domestic tariff with surcharge upto the date the cooperative society had not paid their share in full towards electrification cost and not thereafter. After the said charges were paid by the cooperative society then even for a temporary connection, domestic tariff without surcharge would be payable. The date on which the cooperative society had paid their share in full towards electrification cost is the relevant date for deciding whether a cooperative society is liable to pay surcharge or not, in cases of temporary connections.

8. The scheme formulated vide order dated 26th December, 1996 stipulates the party who was to bear the cost of installation of the equipment before and after the metering cubical. The scheme does not require the cooperative society to share or bear any costs towards electrification and the same were to be borne by the discom or the Delhi Vidyut Board.

9. In view of the aforesaid position, it is clear that the cooperative society would be liable to pay surcharge till the date they do not pay their

W.P. (C) No. 7181/2002 Page 4 complete share towards electrification. Once the cooperative society had paid the full cost payable by them, surcharge was not payable. In the present case, no share whatsoever was payable by the petitioner society towards electrification. Therefore, no surcharge was liable to be paid. A cooperative society, which was not liable to pay even a rupee towards electrification cost, cannot be treated as worse of and asked to pay surcharge, which was payable till electrification cost was payable. Such societies who had NIL dues have to be treated at par and in same and like manner as the cooperative societies, who have paid their full share towards electrification cost.

10. As noticed above, the cooperative society as per the terms of order dated 26th December, 1996 paid the entire electrification cost after the metering cubical. The equipment etc. was also maintained by them. They had incurred the entire cost for supply of electricity under the scheme before supply was made. Thus, in terms of the tariff they were not liable to pay surcharge. Any other interpretation will not be fair and just. For example, in case interpretation given by the respondent-discom is to be accepted, then a cooperative society which is to pay a nominal amount towards electrification cost will be better off and in a more advantageous position on payment of the said amount, than a cooperative society which has nil demand payable on account of electrification cost and has incurred entire expenditure after the metering cubical.

11. The above interpretation is also in consonance with the office order dated 26th December, 1996 relating to electrification of cooperative group housing society/complexes. The said circular was issued to mitigate the difficulty of the residents and to deal with temporary connections. Relevant clause of the said circular reads as under:-

"vii) The applicability of the benefit of the permanent tariff rates to all the temporary connection in the respective category shall be allowed after the remittance of society's full payable share and subject to the

W.P. (C) No. 7181/2002 Page 5 condition/procedure laid down in office order no. 1 dated 24.4.1995."

12. As per the aforesaid clause, permanent tariff rates were applicable to all temporary connections after remittance of the full payable share by the cooperative society subject to the guidelines as laid in the office order dated 24th April, 1995. It is not the contention of the respondent-discom that any of the conditions stipulated or procedure laid down in the office order dated 24th April, 1995 were violated and required the respondent No. 2 to pay the surcharge.

13. Learned counsel for the respondent-discom referred to clause 2 of the office order dated 26th December, 1996 and has submitted that as per the said clause a cooperative society was required to get the entire installation attested from a licensed wiring contractor and the high tension installation approved from an electrical inspector. It is accordingly submitted that in view of clause 2 of the office order dated 26th December, 1996, a cooperative society was liable to pay surcharge till the high tension installation was approved by the said authorities. This contention cannot be accepted. The tariff quoted above does not prescribe any requirement of testing or approval by the electrical inspector or wiring contractor before surcharge was to be withdrawn. The only requirement prescribed in the tariff was that full amount payable by the cooperative society towards electrification cost should be paid. There was no other requirement. Clause 2 of office order dated 26th December, 1996 imposed a pre-condition for electrification/energization and was not a pre-condition for charging or not charging of surcharge. The respondent discom/Delhi Vidyut Board could have insisted upon approval of the Electrical Inspector/wiring contractor before energization. However, once the discom/supplier had energized the meter, the prescribed tariff was payable. The respondent discom/Delhi Vidyut Board could have refused to energise the connection without requisite approvals and inspection but the said question or issue was neither

W.P. (C) No. 7181/2002 Page 6 raised at the relevant time before installation nor is relevant for the present adjudication, which relates to the tariff rate payable under the regulation.

14. In view of the above, the petitioners are entitled to succeed. It is directed that the Jhang Cooperative Group Housing Society Limited was liable to pay permanent domestic tariff on or from the date they had paid full costs towards electrification. In case no costs whatsoever towards electrification was payable, they would be charged without surcharge. Credit of excess amount paid, if any, would be given to the respondent No. 2 cooperative society in the future bills after making necessary calculations within a period of three months from today.

The writ petition is disposed of. There will be no order as to costs.

SANJIV KHANNA, J.

        MARCH 16, 2010
        VKR




W.P. (C) No. 7181/2002                                                    Page 7