Rajinder Prasad vs Gnct Of Delhi And Ors
2011 Latest Caselaw 1990 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 6th April, 2011

+                    W.P.(C) 2206/2011 & CM No.4678/2011 (for stay).

         RAJINDER PRASAD                                      ..... Petitioner
                     Through:             Mr. Ujjwal Kr. Jha & Mr. B.P.
                                          Agarwal, Advocates.

                                     Versus

    GNCT OF DELHI AND ORS                    ..... Respondents
                 Through: Mr. Sumit Chander, Advocate for
                           R-1.
                           Mr. S.K. Dubey with Mr. Karn Deo
                           Baghel & Mr. Tungesh, Advocates
                           for R-2.
                           Mr. K. Datta, Advocate for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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             Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The erstwhile Delhi Vidyut Board (DVB) had raised a bill for

`19,39,751.91/- on the petitioner, payable by 27th February, 2002. The said

bill was on account of misuse and low power factor. The petitioner

challenged the said bill by filing a suit for permanent injunction in the

Court of the Civil Judge, Delhi. The Civil Judge vide order dated 27 th

February, 2002 ordered -

"In the meantime the plaintiff shall deposit the current demand along with 25% of the misuse charges within 7 days."

2. It is the case of the petitioner that the petitioner complied with the

aforesaid interim order.

3. The plaint in the aforesaid suit was however on 21st October, 2009

rejected under Order VII Rule 11 of the CPC for the failure of the

petitioner to pay the requisite Court fees on the plaint. The said order has

attained finality.

4. The petitioner thereafter approached the Permanent Lok Adalat and

the matter was pending there.

5. The present petition was filed impleading the Government of NCT

of Delhi and Delhi Power Company Ltd. (DPCL) as the respondents,

seeking declaration that the aforesaid claims of the DVB against the

petitioner stood waived off in accordance with the Notification dated 16 th

May, 2008 of the Department of Power of the Government of NCT of

Delhi issued in exercise of powers under Section 108 of the Electricity Act,

2003 r/w Notification dated 20th February, 2004 issued by the Ministry of

Home Affairs, Government of India and in terms of the judgment of a

Single Judge of this Court in Lalit Gulati v. Govt. of NCT of Delhi 176

(2011) DLT 1 with respect to the said Notification.

6. The writ petition came up first before this Court on 1 st April, 2011

when the counsel for the respondent no.2 DPCL appearing on advance

notice contended that without North Delhi Power Ltd. (NDPL) which is

the successors of the DVB in the locality concerned, being impleaded as a

party, the writ was not maintainable. Accordingly, NDPL was impleaded

as the respondent no.3 and notice issued. The counsel for the respondent

no.3 NDPL today states that the matter concerns the petitioner and the

respondent no.1 Government of NCT of Delhi.

7. The counsel for the respondent no.1 Government of NCT of Delhi

states that a decision has been taken to prefer an intra court appeal against

the judgment of the Single Judge in Lalit Gulati (supra) and this petition

should be held over till then.

8. The counsel for the respondent no.2 DPCL and the counsel for the

respondent no.3 NDPL have urged that the facts of the present case would

not be covered by the judgment in Lalit Gulati. The matter being purely

legal, need has not been felt to issue formal notice or to call for the replies

and the counsels have been finally heard.

9. The contention of the counsel for the petitioner is that the present

case is fully covered by the judgment in Lalit Gulati. Per contra, the

counsels for DPCL & NDPL contend that the claim in the present case

cannot be said to be a stale claim which were intended to be covered by the

Notification aforesaid, in as much as the same was under challenge by the

petitioner since 2002 itself, first in the Civil Court, where the challenge by

the petitioner has been dismissed and thereafter before the Permanent Lok

Adalat. It is further contended that the judgment in Lalit Gulati was

concerned with cases where the challenge to the demand was pending and

did not consider the case as the present where the challenge had failed. It is

contended that in the present case, with dismissal of the challenge by the

petitioner to the demand, the doubt if any with respect to the demand

stands removed and the respondents would now be entitled to recover the

same.

10. The judgment in Lalit Gulati considered the Cabinet Note on the

basis of which deliberations leading to the issuance of the Notification took

place. While the Notification excluded from its ambit the consumers who

had challenged the demand of electricity dues in Courts, from the benefit

of write off, the Single Judge concluded that the Cabinet Note did not

reflect any intention to exclude such consumers; from letter dated 23rd

March, 2008 of DPCL to the Secretary (Power), Government of NCT of

Delhi, it was further concluded that the amount which was written off

included the cases where no payment whatsoever was made towards

electricity bills raised. It was further held that there was no rational basis

on which distinction could be drawn between the consumer who was in

arrears and who makes no payment whatsoever and makes no challenge in

any court on the one hand and a consumer who although does not make

any payment or makes only a part-payment, challenges the said demand by

filing a case in a court, on the other hand. It was held that there is no

reason why the former should get the benefit of complete waiver, while it

is denied to the latter. Accordingly, the part of the Notification excluding

the consumers who had preferred challenge to the claim, from the ambit of

the Notification was struck down.

11. I am unable to see the distinction as is being sought to be made out,

in the facts of the present case. A claim/bill, challenge whereto was

subjudice on the date of the Notification cannot be more stale than the

claim the challenge whereto had failed. The counsel for the petitioner

points out that in the present case also, the challenge was very much

pending/subjudice on the date of the Notification and has failed thereafter

and for this reason also the petitioner is fully covered by the judgment in

Lalit Gulati.

12. I am even otherwise of the opinion that once the Government is

intending to prefer an intra court appeal in Lalit Gulati (supra), it is

expedient that the Division Bench examines the matter in all facets and

factual controversies that arise and for the reason also it is expedient that

the Government if aggrieved prefers an appeal in the facts of the present

case also rather than inviting decision of the Division Bench on the

Notification, only on the facts in Lalit Gulati.

13. The petition accordingly succeeds. The petitioner is held entitled to

the benefit of the Notification aforesaid and the respondents are restrained

from taking any action against the petitioner for recovering the same or for

non-payment of the aforesaid demand.

No order as to cost.

Dasti.

RAJIV SAHAI ENDLAW (JUDGE) 6th April, 2011 pp..