Khema Dhar vs Bses Yamuna Power Ltd
2011 Latest Caselaw 5187 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) 7524/2011

                                                     Decided on: 21.10.2011

IN THE MATTER OF :

KHEMA DHAR                                                  ..... Petitioner
                                Through : Mr. Prag Chawla, Advocate

                    versus

BSES YAMUNA POWER LTD                                     ..... Respondent
                                Through : Mr. K. Datta, Advocate

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may           No
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?          No

     3. Whether the judgment should be                  No
        reported in the Digest?

HIMA KOHLI, J. (Oral)

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

issuance of a writ of mandamus to the respondent/BSES Yamuna Power

Ltd. to re-install the earlier electricity meter and supply electricity from

the said meter at her premises bearing No.19A, Manavsthali Apartments,

Vasundhra Enclave, Delhi.

2. It is the contention of the counsel for the petitioner that the

premises of the petitioner was inspected on 29.10.2005, and a case of

theft was alleged against her pursuant to which a theft assessment bill of

`2,20,604/- dated 26.7.2005 was raised on her. It is further stated that

the petitioner being a senior citizen and not in a position to enter into a

litigation, deposited a sum of `95,000/- with the respondent and got the

matter settled. After a period of 6 years, the petitioner was served with a

disconnection notice dated 19.7.2011. It is stated that the respondent

disconnected the electricity supply to the premises of the petitioner on the

very same date itself, i.e., 19.7.2011, even though the impugned

disconnection notice had stated that the petitioner would get 2 days time

to pay the alleged demand.

3. Counsel for the respondent, who appears on advance copy, states

that the petitioner has withheld material information from this Court and

has not divulged the relevant facts, which in itself should be considered

sufficient ground to disentitle the petitioner from the relief sought in the

present petition. He submits that in the present case, the petitioner

approached the respondent through her son, Shri Pankaj Dhar, on

14.10.2011, for settlement of the case, subject matter of the impugned

disconnection notice dated 19.7.2011 in respect of an inspection carried

out on 29.10.2005. He hands over a letter dated 14.10.2011, duly signed

by the son of the petitioner, who claims to be her authorized

representative, agreeing to settle the matter with the respondent by

paying a sum of `95,000/- in full and final settlement of all the claims

against the sum of `2,20,604/- demanded by the respondent. It was

further agreed that a sum of `40,000/- would be paid by the petitioner on

the same day and the balance amount would be paid in three equal

monthly installments of `15,000/- each starting from 19.10.2011. He

submits that this was followed by an e-mail sent on the same date by the

son of the petitioner seeking grace time upto 19.10.2011 for arranging

the first installment of `40,000/- and stating that he was depositing a

post dated cheque dated 19.10.2011 as a guarantee for the same, which

has not been encashed by the department in light of the present petition.

4. Lastly, counsel for the respondent relies on e-mails dated

10.10.2011 and 12.10.2011 sent by the son of the petitioner to the

respondent stating categorically that the Enforcement Cell of the

respondent had disconnected the electricity in the premises of the

petitioner on 7.10.2011. It is submitted by the counsel for the

respondent that the specific averment made by the petitioner in the

present petition that the electricity in the premises of the petitioner was

disconnected on 19.7.2011 is thus patently false.

5. Counsel for the petitioner states that the present petition was filed

on 14.10.2011 and came to be listed on 17.10.2011, but the settlement

which was arrived at with the respondent, was in the evening of the same

date, i.e., 14.10.2011. He states that for this reason, no averment was

made in the petition with regard to the subsequent settlement and that

the said settlement is of no consequence for the reason that it was arrived

at under coercion and therefore does not bind the petitioner.

6. The aforesaid explanation sought to be offered by the counsel for

the petitioner does not cut any ice as the son of the petitioner had

admittedly been corresponding with the respondent, with regard to the

disconnection notice dated 19.7.2011, even prior to filing of the present

petition as is evident from the e-mails dated 10.10.2011 and 12.10.2011.

The attempt on the part of the petitioner to conceal material facts from

this Court can be ascertained from the fact that no averment has been

made in the writ petition regarding the aforesaid e-mails. Furthermore,

it was incumbent on the part of the petitioner to place on record the e-

mail dated 14.10.2011, whereunder the factum of the negotiated

settlement was mentioned by son of the petitioner. The fact that the

settlement was entered into subsequent to the filing of the writ petition

would not be of any assistance to the petitioner as the petition came to be

listed only on 17.10.2011, and there was ample time for the petitioner to

have revealed such a fact. Hence, for the petitioner to now contend that

she was compelled to settle with the respondent against her will is not

acceptable.

7. Furthermore, the averment made in the petition that the electricity

supply to the premises of the petitioner was disconnected on 19.7.2011

and has remained disconnected, also appears to be patently false made

with the sole purpose of evoking equity from this Court, in asmuch as in

the e-mails dated 10.10.2011 and 12.10.2011, the son of the petitioner

had clearly stated that the date of the disconnection was 07.10.2011.

8. From the aforesaid facts and circumstances, it is apparent that the

petitioner has approached the Court with unclean hands and has

deliberately concealed material facts and tried to mislead this Court. It

is settled law that the writ jurisdiction of this Court in Article 226 of the

Constitution of India is to be exercised only in extraordinary

circumstances. Where the party approaches the Court under the writ

jurisdiction, it is imperative that it does so with clean hands by revealing

all material facts, otherwise the writ petition filed is liable to be dismissed

in limine without going into its merits. In the light of the aforesaid

observations, this Court is not inclined to exercise its discretion in favour

of the petitioner. The present petition is accordingly dismissed with costs

of `10,000/- to be paid to the respondent within four weeks.

                                                                   HIMA KOHLI,J
OCTOBER     21, 2011
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