Ratan Lal vs Ndpl
2011 Latest Caselaw 1855 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 30th March, 2011

+                  W.P.(C) 2160/2011 & CM No.4577/2011 (for stay)

         RATAN LAL                                        ..... Petitioner
                              Through:     Mr. B.P. Agarwal & Mr.
                                           Ujjawal Kumar Jha, Advocates

                                   Versus
         NDPL                                            ..... Respondent
                              Through:     Mr. K. Datta with Mr. Manish
                                           Srivastava & Mr. Vishwa
                                           Wadhwa, Advocates
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 petition impugns the demand of `3,06,680/- in a bill with

the due date of 31st March, 2011 raised by the respondent on the

petitioner under Regulation 43 of the Delhi Electricity Supply Code &

Performance Standards Regulations, 2007 i.e. for the period, the meter

was defective.

2. The counsel for the respondent appearing on advance notice has

contended that the dispute raised in the petition being a billing dispute,

this writ petition is not maintainable as held by the Division Bench of

this Court in Ram Kishan Vs. NDPL 130 (2006) DLT 549.

3. The counsel for the petitioner has however contended that the

defective period bill has been raised without any show cause notice or

opportunity of hearing to the petitioner. He in this regard invites

attention to the judgment dated 16th March, 2010 of this Court in

W.P.(C) No.1807/2010 titled Devki Nandan Aggarwal Vs. North

Delhi Power Ltd. In that case, the writ petition was disposed of with

liberty to the distribution company to issue show cause notice to the

petitioner and to thereafter pass a speaking order on the question of

defective meter and with liberty to the distribution company to raise a

fresh bill after passing a speaking order and with further clarifications

for the petitioner therein if remained aggrieved by the said order to be

entitled to the remedies.

4. The counsel for the petitioner has from the said judgment sought

to urge that before raising the defective period bill under Regulation

43, it is incumbent upon the distribution company, as the respondent is,

to issue a show cause notice and grant an opportunity of hearing and to

pass a speaking order.

5. However, a perusal of the aforesaid judgment shows that the

same was on concession of the counsel for the distribution company in

that case. The counsel for the respondent also clarifies that the said

concession was made in that case owing to the delay in that case and

which is not so in the present case.

6. The judgment aforesaid being on concession, cannot be treated

as a precedent.

7. The counsel for the petitioner has however contended that since

under Regulation 43 civil consequence arises, the principles of natural

justice ought to be complied and the distribution companies cannot be

permitted to raise defective period bill of any amount and leaving the

consumers to rush to the Consumer Grievance Redressal Forum

(CGRF).

8. Per contra, the counsel for the respondent has contended that no

hearing is required under Regulation 43 in as much as the Regulation

itself provides the formula for computing the defective period bill and

the exercise being a purely mathematical one, no requirement of show

cause notice and hearing can be read therein. It is further contended

that if it were to be so held then the distribution company would be

required to give hearing to the consumers before raising every bill and

which is not possible.

9. Attention of the counsel for the parties has been invited to

Regulation 44 which provides a procedure for the consumer to file a

complaint with respect to the bill. Of course, the said procedure is post

facto the bill i.e. post decisional; however it does not appear to make

any difference. The said Regulation is found to redress the grievance

raised by the petitioner of the petitioner having no say whatsoever in

the mistake if any by the distribution company in raising the defective

period bill. It has as such been enquired from the counsel for the

petitioner as to why the petitioner cannot make a complaint under

Regulation 44 with respect to defective period bill to the respondent

itself.

10. The counsel for the petitioner has urged that Regulation 44

would not apply to the defective period bill and apply only to regular

bills as made under Regulation 42. He has further contended that since

Regulation 44(ii) provides for payment of the amount based on average

consumption of last three consecutive undisputed bills, the said

Regulation cannot apply to a defective period bill made under

Regulation 43.

11. I am unable to agree. The placement of Regulations 42 to 44

shows that Regulation 44 is intended to cover/ apply to both, the

regular bills under Regulation 42 and the defective period bills under

Regulation 43. The mechanism provided of post facto hearing is found

to be a complete mechanism whereunder the grievance, if any, with

respect to the bill, whether it be raised in the normal course or for

defective period will be redressed. Merely because payment during the

pendency of the complaint, at the rate of average consumption of the

last three consecutive undisputed bills is provided for, cannot be held

to mean that the Regulation would not cover / apply to the defective

period bill. The same, in the case of a defective meter, would refer to

the last three consecutive undisputed bills of the period prior to the

defect.

12. The Regulations have, wherever necessary, provided for a

hearing. The Legislature having not provided for a hearing before

raising the defective period bill and having provided for an opportunity

post facto, it is felt that this Court ought not to in the name of

principles of natural justice, introduce a hearing where none exists and

when the post facto mechanism provides a complete machinery for

redressal of grievance.

13. The Supreme Court in The Chairman, Board of Mining

Examination & Chief Inspector of Mines Vs. Ramjee (1977) 2 SCC

256 held that unnatural expansion of natural justice, without reference

to the administrative realities and other factors can be exasperating; if

fairness is shown by the decision maker to the man proceeded against,

the form, features and the fundamentals of such essential processual

propriety being conditioned by the facts and circumstances of each

situation, no breach of natural justice can be complained of.

Again in Swadeshi Cotton Mills Vs. Union of India (1981) 1

SCC 664, it was held that where the statute contemplates a post-

decisional hearing amounting to a full review of the original order on

merits, then the same would be construed as excluding the audi

alteram partem rule at the pre-decisional stage. Reference may also be

made to Union of India Vs. Tulsiram Patel (1985) 3 SCC 398 laying

down that the rule of audi alteram partem yields to and changes with

the exigencies of different situations; the rule is not cast in a rigid

mould and is flexible and adaptable. It was yet further reiterated that if

the statutory provision can be read consistently with the principles of

natural justice, the Courts should do so because it must be presumed

that the legislature and the statutory authorities intend to act in

accordance with the principles of natural justice.

14. The post decisional / post bill hearing in the present case is

found to be adequate and not causing any prejudice to the petitioner /

consumer. It is not as if the post decisional / post bill hearing saddles

the consumer nevertheless with a liability. Regulation 44 does not

require the consumer to pay the amount billed before representing

theiragainst. Provision as aforesaid has been made for payment during

the period of pendency of complaint by the consumer with respect to

the bill. It thus cannot be said that the post decisional / post bill

mechanism in the present situation would be unfair to the consumer.

15. The counsel for the respondent agrees that the mechanism

provided in Regulation 44 will apply to defective period bills under

Regulation 43 as also to the other bills under Regulation 42.

16. Since the consumer is expected to make a complaint under

Regulation 44 immediately on receipt of the bill and further since the

matter does not appear to have been considered in any earlier

judgment, it is deemed expedient to extend the time for making of the

complaint by the petitioner till the filing of this writ petition. The writ

petition be treated as a complaint of the petitioner against the defective

meter bill and be dealt with and decided in accordance with Regulation

44. If the petitioner remains aggrieved by the decision so taken by the

respondent, the petitioner shall have his remedies in law.

17. To avoid any controversy, it is further provided that subject to

deposit of `1,00,000/- besides regular consumption charges by the

petitioner within 7 days from today, the electricity supply of the

petitioner shall not be disconnected till seven days after the decision

under Regulation 44 and communication thereof to the petitioner.

The petition is disposed of. No order as to costs. Dasti.

RAJIV SAHAI ENDLAW (JUDGE) MARCH 30, 2011 'gsr'