Bombay Rubber vs Bses Yamuna Power Limited
2011 Latest Caselaw 3834 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) 5407/2010

                                                  Decided on 29.08.2011
IN THE MATTER OF :

BOMBAY RUBBER                                               ..... Petitioner
                          Through:    Mr. Jayant Nath, Sr. Adv. with Mr.
                                      B.C. Pandey, Mr. Udit Gupta, Advs.
                    versus


BSES YAMUNA POWER LIMITED                                    ..... Respondent
                  Through:            Mr. K. Datta, Adv. with Mr. Manish Kr.
                                      Srivastava, Adv.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     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 the Digest?                                     Yes

HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioner praying inter alia for

directions to the respondent/BSES YPL to refund to the petitioner, the

amount of `10 lacs deposited with it, in compliance of the orders dated

27.06.2005 passed in W.P.(C) No.10519/2005 alongwith interest @ 18%

p.a. from the date of deposit till the date of actual payment. The

petitioner has also sought a direction to the respondent to not add as

arrears in any future bill, the amount mentioned in the bill with due date

24.06.2005 (Annexure P-8), which stood withdrawn vide order dated

14.09.2005 passed in the aforesaid writ petition. The petitioner has

further sought litigation costs etc.

2. The brief relevant facts of the case are that on 19.05.2005, an

inspection was carried out by the officers of the respondent at the

industrial premises of the petitioner situated at Anand Parbat Industrial

Area. During the said inspection, as per the respondent certain

irregularities were noticed and a case for illegal abstraction of electrical

energy was sought to be made out against the petitioner. Subsequent to

the inspection, the petitioner was issued a notice to show cause dated

19.05.2006 and it was called upon to attend a personal hearing on

26.05.2005. The petitioner responded to the show cause notice by

submitting a representation dated 26.05.2005. On the same date, the

representatives of the petitioner made their submissions before the

Assessing Officer of the respondent. After hearing the petitioner, a

speaking order dated 06.06.2005 was passed by the respondent, wherein

the petitioner was held guilty of dishonest abstraction of energy. Along

with the aforesaid order, the respondent raised on the petitioner, the

impugned bill of `43,94,007/- with the due date of 24.06.2005.

3. Aggrieved by the aforesaid action of the respondent, the petitioner

preferred a writ petition in this Court registered as W.P.(C)

No.10519/2005. Notice was issued in the aforesaid writ petition vide

order dated 27.06.2005. In the interim application for stay preferred by

the petitioner, it was ordered that there would be a stay of recovery of

the bill dated 24.06.2005 (Annexure P-9) subject to the petitioner

depositing a sum of ` 10 lacs with the respondent within one week. As

per the counsel for the petitioner, the aforesaid amount was duly

deposited with the respondent within the time granted. Subsequently,

the aforesaid writ petition came to be disposed of vide order dated

14.09.2005 (Annexure P-10) which reads as follows:

"W.P.(C) No.10519/2005

1. Learned counsel for the parties agree that the writ petition could be disposed of on the following consent terms:

i) Impugned order (Annexure P-1) be treated as withdrawn and as a consequence thereof impugned bill having due date 24.6.2005 (Annexure A-1 to CM.No.7773/05) be treated as withdrawn.

ii) Respondent would supply hard copy of CMRI data to the petitioner which of necessity would include the data pertaining to MDI which counsel agree is a half hourly record of computation of voltage, current consumed as also the load.

iii) Petitioner would submit a response to the show cause notice in the context of the data provided by the respondent.

iv) Petitioner would be granted an oral hearing on 30.9.2005 by the Assessing Officer.

v) Reasoned and speaking order would be passed

vi) In light of the order passed, action pertaining to billing would be taken in conformity with the order.

2. Needless to state that the respondent would be permitted to take into consideration the videograph of

the record of inspection while passing the fresh order. It is recorded that the CD of the videograph has already been supplied to the petitioner.

3. Needless to state, remedies as per law would be available to the petitioner if petitioner is aggrieved by the order which would be passed.

4. It is hoped and expected that the order which would be passed would collate the CMRI and MDI data and would bring out the findings in the context of the data so that the validity of the order, if at all challenged, could be appreciated by this Court without analysis of the primary data.

5. Hard copy of the CMRI and MDI data would be supplied by counsel for the respondent to counsel for the petitioner within three days from today.

6. If petitioner has deposited a sum of Rs.10 lacs pursuant to the interim order passed on 27.6.2005, adjustment thereof would be given to the petitioner.

7. Petition stands disposed of.

8. Dasti."

4. After passing of the aforesaid order, the respondent granted two

hearings to the petitioner - the first one on 09.11.2005 and the second

one on 03.04.2006. It is submitted by the learned Senior Advocate for

the petitioner that thereafter, no reasoned speaking order was passed by

the respondent and it continued to retain the sum of `10 lacs deposited

by the petitioner in compliance of the order dated 27.06.2005 passed in

the aforesaid writ petition, thus, compelling the petitioner to approach

this Court by way of the present petition, seeking refund of the aforesaid

amount along with interest calculated @18% p.a.

5. Learned Counsel appearing for the respondent submits that the

reason a speaking order has not been passed in the present case is

because of the fact that the Corporate, Legal and Enforcement Cell of the

respondent had been shifted in the year 2005 from Andrews Ganj, New

Delhi to Patparganj, Delhi on account of internal re-structuring of the

company. Due to the said re-structuring, the files of the respondent were

shifted to the new office. The petitioner was also informed that a

personal hearing would be granted to it on 23.04.2006 at the new office

of the respondent. However, during the process of shifting, the original

files relating to the present case got misplaced and despite best efforts

made by the respondent, the same could not be traced and hence no

reasoned orders could be passed. It is stated by the counsel for the

respondent that the respondent is ready and willing to grant a hearing to

the petitioner even today and pass a speaking order thereafter.

6. The aforesaid submission is vehemently opposed by the learned

Senior Counsel appearing for the petitioner who submits that in view of

the provisions of Regulation 26(iii) of the DERC Regulations, 2002, the

respondent was required to pass a speaking order within 15 days from

the date of the submissions made by the consumer and once that period

has elapsed, no further proceedings can take place in respect of the case

of theft/DAE, irrespective of whether the same is established or not. He

further submits that the aforesaid period of 15 days was further reduced

to 3 days by DERC in the Regulations of the year 2007. He, thus, submits

that the respondent having grossly defaulted in passing a speaking order

within a reasonable time from the date of the last hearing given to the

petitioner, i.e. on 23.04.2006, it cannot be permitted to make good that

default by offering to give a fresh hearing today. It is also submitted that

the respondent has grossly violated the order dated 14.09.2005 passed in

the earlier writ petition and it cannot be permitted to take the plea that it

would grant a fresh hearing to the petitioner at this belated stage and

pass a speaking order thereafter.

7. This Court has heard the counsels for the parties and considered

their respective submissions. The factual matrix of the case is

undisputed. In the present case, this Court is required to see whether

just and sufficient cause has been shown by the respondent for failing to

pass a reasoned speaking order in terms of the order dated 14.09.2005

passed in W.P.(C) No.10519/2005. The explanation given by the

respondent for non-passing of the speaking order is that the files

pertaining to the present case were misplaced when the respondent's

office was shifted from Andrews Ganj to Patparganj. However, it is

pertinent to note that while the first hearing was given to the petitioner

on 09.11.2005 at the office of the respondent at Andrews Ganj, the

second hearing was given to the petitioner on 03.04.2006 at the

Patparganj office. The basis of the second hearing was a notice dated

27.03.2006 issued by the respondent to the petitioner. If at all the file of

the petitioner was misplaced during the shifting as claimed by the

respondent, it is not understood as to what was the material available

with the respondent which formed the basis of issuing the notice to the

petitioner, after the respondent had shifted its office to the new

premises. It is not the case of the respondent that only a part of the file

of the case was lost, rather it is stated that the entire file was lost. In

such circumstances, this Court is not at all satisfied by the explanation

sought to be offered by the respondent for not passing a reasoned

speaking order as directed in the earlier proceedings. Further, grant of

any indulgence to the respondent at this stage would be unjustified as it

is not the respondent which has approached the Court for seeking

extension of time for passing a speaking order. Rather, it is the

petitioner, who has preferred the present petition in August 2010, after

waiting patiently, for a period of almost 6 long years, for a speaking

order to be passed by the respondent. Therefore, this Court is of the

opinion that this is a fit case where the respondent ought to refund the

amount deposited by the petitioner in compliance of the order dated

27.06.2005 passed in W.P.(C) No.10519/2005, along with simple interest

calculated @ 10% p.a.

8. At this stage, counsel for the respondent states that the order dated

14.09.2005 mentions the fact that the amount deposited by the petitioner

would be adjusted in the future bills. This submission would have been

acceptable had the respondent passed a speaking order within a

reasonable time, but since the same has not been done, the said

submission made by the counsel for the respondent can only be partly

accepted by directing the respondent to refund to the petitioner, within a

period of six weeks from today, 50% of the total amount lying deposited

with it , i.e., ` 5 lacs alongwith the interest accrued on the entire amount

of `10 lacs from the date of receipt of payment till the date the amount is

refunded to the petitioner. The remaining sum of ` 5 lacs shall be

retained by the respondent to be adjusted in the bills raised on the

petitioner from the next billing cycle after September, 2011.

9. The petition is allowed in the above terms while imposing costs of

` 10,000/- to be paid by the respondent to the petitioner along with the

aforesaid amount.

                                                             (HIMA KOHLI)
AUGUST 29, 2011                                                 JUDGE
'anb'