Delhi High Court
Devraj vs Bses Yamuna Power Ltd. on 22 February, 2011
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22nd February, 2011.
+ W.P.(C) No.5360/2010
% DEVRAJ ....... Petitioners
Through: Mr. Deepak Pathak, Adv.
Versus
BSES YAMUNA POWER LTD. ..... Respondent
Through: Mr. K. Datta, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition impugns the order dated 16th November, 2009 of
the Office of Electricity Ombudsman constituted under the Electricity Act,
2003. The only question falling for adjudication being as to whether the
electricity dues claimed from the petitioner are time barred or not, need
was not felt to call for any counter affidavit and the counsel for the
respondent appearing on advance notice heard finally.
2. The undisputed facts are that the petitioner has an industrial
electricity connection; no bills with respect thereto were raised since the
date of installation; the petitioner in the year 2003 approached the
Permanent Lok Adalat with the grievance of the bills having not been
raised; the Permanent Lok Adalat vide order dated 14 th August, 2003,
finding a total sum of `94,446/- to be then due from the petitioner up till
20th May, 2003 made provisions for payment thereof in installments.
However even thereafter no bills were raised. On 27th July, 2004, the
meter was changed under the scheme of mass replacement of electro
mechanical meters; however no bills were raised thereafter also.
3. The petitioner in or about the year 2008 approached the Consumer
Grievance Redressal Forum (CGRF) constituted under Section 42(5) of the
Electricity Act, 2003 with the case that the electricity dues if any against
him had become time barred and for a direction to the respondent to raise a
correct bill on him.
4. It was the case of the respondent before the CGRF that inadvertently
the master date of the meter installed at the premises of the petitioner could
not be punched in the system and due to which no bills were raised; that as
per the reading taken on 7 th July, 2008, a sum of `1,19,101.16 paise against
the old meter for the period after 20 th May, 2003 and a sum of
`7,41,886.51 paise for the period after the change of the meter was due
from the petitioner. It was further pleaded that under Regulation 16(xi)
and 44(iv) of the Delhi Electricity Supply Code & Performance Standards
Regulations, 2007 it was the duty of the petitioner as consumer to complain
of non receipt of the bill and the petitioner had not made any complaint at
all and could not escape the liability for the electricity actually consumed
by him.
5. Per contra, the petitioner relied upon Section 56(2) of the Act to
contend that the dues not recovered within two years had become time
barred. It was further contended that for the deficiency in service and
mistake of the respondent in non-punching of the master date, the
petitioner could not be burdened with heavy payment.
6. The CGRF held that the petitioner had not submitted any document
in support of his claim of approaching the respondent with the complaint of
non-receipt of bills after 20th May, 2003 and thus was liable to pay the
amounts demanded. However, the petitioner was permitted to pay the
amount in eight monthly installments without Late Payment Surcharge
(LPSC). Compensation of `2,000/- was also awarded to the petitioner for
inconvenience caused due to non-raising of bills by the respondent.
7. The petitioner being not satisfied, preferred an appeal to the Office
of Electricity Ombudsman. The Ombudsman vide order dated 16th
November, 2009, impugned in this writ petition, after going through the
accounts and giving adjustment of the lump sum payment made by the
petitioner since the order of the CGRF, found a sum of `5,06,875.78 paise
to be due from the petitioner and permitted the same to be paid in ten
monthly installments.
8. This writ petition was preferred after more than eight months of the
order of the Ombudsman. There is no explanation whatsoever for the
unusual delay in preferring the writ petition. Be that as it may, the
question urged being purely legal, the counsels for the parties have been
heard.
9. The mainstay of the case of the petitioner is Section 56(2) of the Act
which is as under:-
"(2) Notwithstanding anything contained in any other law
for the time being in force, no sum due from any consumer,
under this section shall be recoverable after the period of two
years from the date when such sum became first due unless
such sum has been shown continuously as recoverable as arrear
of charges for electricity supplied and the licensee shall not cut-
off the supply of electricity."
10. The question as to when the electricity charges become first due is
no longer res integra. The Single Judge of this Court in H.D. Shourie Vs.
Municipal Copn. of Delhi 32 (1987) DLT 73 held that the electricity
charges become due and the limitation for recovery thereof commences
only when the bill therefor has been raised. The Division Bench in appeal
reported as MCD (DESU) Vs. H.D. Shourie 53 (1994) DLT 1 reiterated
that liability to pay accrues when liability is quantified and bill is raised.
The counsel for the respondent has also drawn attention to Swastic
Industries Vs. Maharashtra State Electricity Board (1997) 9 SCC 465
upholding the order of the National Consumers' Disputes Redressal
Commission holding that even where the electricity distribution company
had woken up after nine years to make the claim, the electricity dues had to
be paid. Attention is also invited to the judgments of this Court in:-
(i) D.R. & Co. Vs. D.V.B. 130 (2006) DLT 158 laying down that
even though consumer has to pay for the electricity consumed from
the moment of consumption but there is no limit for raising demand.
(ii) Order dated 14th November, 2006 of the Appellate Tribunal
for Electricity in Appeal Nos.202 & 203 of 2006 interpreting Section
56(2) aforesaid and the Terms & Conditions for Supply of
Electricity, 2004 then in force and holding that the same were
identical to the provisions earlier existing and reiterating that the bar
of two years in Section 56(2) would come into play only after two
years from the date of raising of the bill and not from the date of
consumption.
(iii) Brihanmumbai Municipal Corporation Vs. Yatish Sharma
AIR 2007 Bombay 73 also holding that the payment for electricity
consumed falls due only upon service of bill.
(iv) Judgment dated 16th July, 2009 of the Division Bench in LPA
No.211/2009 titled N.D.M.C. Vs. Karam Chand Thapar & Brothers
P. Ltd. with reference to Section 56(2) of the Act and reiterating that
an Electricity Undertaking is entitled to issue the bill for
consumption of electricity even after three years of the date of
consumption.
11. Though the counsel for the petitioner has referred to judgment of a
Single Judge of this Court in NDMC Vs. Ashok Kumar Ahuja 154 (2008)
DLT 50 but the same was discussed by the Division Bench in the judgment
aforesaid and held to be not applicable.
12. Applying the aforesaid law, in the present case admittedly no bill
was raised for the electricity consumed by the petitioner, till the petitioner
approached the CGRF. It could not thus be said that the demand had
become time barred as contended by the petitioner.
13. There is thus no merit in the writ petition; the same is dismissed. I
refrain from imposing any costs. The petitioner if has not paid the dues
aforesaid till now, to clear the same within four weeks from today. If the
dues are not so cleared, the petitioner shall become liable for Late Payment
Surcharge besides other remedies of the respondent.
RAJIV SAHAI ENDLAW
(JUDGE)
FEBRUARY 22, 2011
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