Smt. Laxmi Devi vs Ndpl
2012 Latest Caselaw 1313 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 W.P.(C) No.134/2011

                                  Date of Decision:27th February, 2012

IN THE MATTER OF:
SMT. LAXMI DEVI                                ..... Petitioner
                        Through : Mr. Mukul Dhawan, Adv.


                  versus


NDPL                                         ..... Respondent

Through : Mr. Manish Srivastava, Adv.

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI

HIMA KOHLI, J (Oral)

1. The present writ petition is filed by the petitioner praying

inter alia for directions to the respondent/NDPL to grant her a new

permanent electricity connection on the third floor of premises bearing

No.1820-A, Rani Bagh, Shakurbasti, New Delhi, owned by the

petitioner, as granted to the resident of the first floor of the same

building on 29.7.2010, without insisting on her paying any amount on

a pro-rota basis in terms of the intimation letter dated 20.12.2010

(Annexure-D).

2. Counsel for the petitioner states that the petitioner had

purchased the third floor of the subject premises measuring 35 sq.

yards, by virtue of a Registered Sale Deed dated 11.8.2008. One

month before the execution of the aforesaid sale deed, the first floor of

the subject premises was purchased by one Mr. Shyam Sunder Lal,

vide Registered Sale Deed dated 18.7.2008. On 27.7.2010, upon the

owner of the first floor of the subject premises applying to the

respondent/NDPL for grant of a permanent electricity connection, the

respondent/NDPL granted him the same without insisting that he pay

any dues with respect to the electricity charges against the earlier

electricity connection energizing at the said premises. However, when

the petitioner approached the respondent/NDPL for grant of a new

electricity connection in respect of the third floor of the premises,

respondent/NDPL issued her a letter dated 20.12.2010 informing her

that the department had come across outstanding dues in respect of

the subject premises to the tune of `14,20,559/- and her application

for grant of a new permanent electricity connection could be

considered only if she would clear the dues on a pro-rata basis.

Aggrieved by the aforesaid decision of the respondent/NDPL, the

present petition was filed by the petitioner on 24.12.2010.

3. Counsel for the petitioner states that the arrears of

electricity dues claimed by the respondent/NDPL are in respect of a

single storeyed structure built in the subject premises as it earlier

existed whereas, a separate structure was raised later on in the year

2006 on a portion of the same plot. He states that that the entire plot

in question in respect of property bearing No.1820-A, Rani Bagh,

Shakurbasti, New Delhi measures 135 sq. yards, on which there had

earlier existed only a single storeyed structure on land measuring 100

sq. yards. However, the structure on which the third floor was

purchased by the petitioner was built in the year 2008 on the

remaining area measuring 35 sq. yards from out of the total of 135 sq.

yards and that the disputed amount in question relates to the

permanent electricity connection granted to the earlier built-up

structure on 100 sq. yards, which the petitioner is not liable to pay. It

is further asserted that the respondent/NDPL has discriminated against

the petitioner inasmuch as while refusing to grant her a permanent

electricity connection on the ground that there were arrears existing in

respect of the subject premises, a fresh electricity connection was

granted in respect of the first floor of the same property without

demanding any such arrears on a pro-rata basis from the owner of the

said floor.

4. Notice was issued on the present writ petition on

11.1.2011. On 10.2.2011, it was observed that as per the provisions

of the Delhi Apartment Ownership Act, 1986, whereunder,

independent status has been conferred on apartments within the

meaning of the said Act, in respect of a property that has four or more

apartments, merely because there were dues with respect to the

earlier existing single storeyed structure in the subject premises and

over a period of time, separate floors had been added to the property,

the purchasers of the said floors, which are new construction, could

not be saddled with the old dues. It was also noticed that the

respondent/NDPL had filed a counter affidavit stating inter alia that the

accused in the theft case, lodged by the respondent/NDPL where

`9,86,544/- was claimed as civil dues, had been acquitted and the said

order had attained finality. In view of the above, counsel for the

respondent/NDPL was directed to address arguments on the aspect as

to whether after the said acquittal, the civil claim for the said dues

would survive for seeking recovery thereof from the petitioner on a

pro-rata basis.

5. On 15.2.2011, the respondent/NDPL was directed to grant

a permanent electricity connection to the petitioner upon her making

compliance of all commercial formalities, but with the right given to

the respondent to disconnect the same in the event of the petition

ultimately failing. It was also clarified that the petitioner would then

have no right to claim refund of any commercial charges paid by her to

the respondent/NDPL and she would remain liable to pay the

consumption charges and the electricity meter would be liable to be

disconnected in the event of non-payment of the said consumption

charges. It was further clarified that the said order would not be a

bar on the respondent/NDPL from making recovery of the arrears from

the other flats/occupants.

6. Today, counsel for the respondent/NDPL submits that the

sum of `14,20,559/-, demanded by the respondent/NDPL from the

petitioner, vide letter dated 20.10.2010, on a pro-rata basis comprises

of three separate demands, which are as below :

(i) An electricity theft bill of `4,34,015/- raised against one

Mr. Manohar Lal and subject matter of a criminal complaint

bearing CC No.391/2009 lodged by the respondent/NDPL

and still pending adjudication before the Special Electricity

Court.

(ii) A theft assessment bill of `9,86,544/- raised upon Mr.

Sunder and Mr. Rajesh, legal heirs of late Shri Manohar

Lal, original owner of the subject premises, subject matter

of an FIR No.16/2007 lodged by the respondent/NDPL,

wherein an order dated 13.5.2008 was passed by the

Special Electricity Court acquitting the accused therein on

the ground that "respondent could not prove, who indulged

in direct theft of electricity".

(iii) A bill of `95,882/- raised by the respondent/NDPL and

subject matter of FIR No.572/2007 registered against Mr.

Sundar and Mr. Rajesh, legal heirs of late Shri Manohar

Lal. However, the said theft bill is stated to have been

settled for an amount of `47,450/- before the Special

Electricity Court.

7. In view of the fact that out of the total outstanding dues of

`14,20,559/-, a bill for a sum of `95,882/- already stands settled with

the legal heirs of late Shri Manohar Lal and the assessment bill of

`9,86,544/- based on FIR No.16/2007 could not be recovered due to

the acquittal of the accused therein in terms of order dated 13.5.2008

passed by the Special Electricity Court, which has attained finality, the

respondent/NDPL cannot saddle the liability pertaining to the aforesaid

assessment bills on the petitioner herein, for the obvious reason that

the respondent/NDPL could not place sufficient evidence on record

before the Special Electricity Court so as to establish as to who had

indulged in the direct theft of electricity.

8. In such circumstances, when the liability itself could not be

fastened by the respondent/NDPL on any particular person in respect

of the arrear of electricity that related to the years 2006-2007, the

question of fastening the liability on a pro-rata basis on the petitioner

herein, who had purchased the subject premises only in the year

2008, does not arise. Similarly, the bill of `95,882/- having been

settled by the respondent/NDPL with the legal heirs of late Shri

Manohar Lal for a sum of `47,450/-, no claim can be lodged by the

respondent/NDPL against the petitioner for payment of the said bill on

a pro-rata basis.

9. This leaves the electricity bill of `4,34,015/-, which is

stated to be the subject matter of a complaint bearing CC

No.391/2009 and pending adjudication before the Special Electricity

Court. Considering the fact that the aforesaid complaint case

lodged by the respondent/NDPL is pending adjudication in the Special

Electricity Court, at this stage, the respondent/NDPL cannot insist that

the petitioner pay any amount whatsoever towards the aforesaid bill

till the criminal case is adjudicated and a judgment rendered by the

Special Electricity Court. Therefore claiming any amount from the

petitioner in respect of the said bill on a pro-rata basis is not

permissible.

10. It is made clear that the aforesaid observations are made

in the peculiar facts and circumstances of the present case, where the

theft took place in the year 2006 when the third floor at the premises

in question had not even been constructed. In such circumstances,

this Court finds substance in the submissions made by the counsel for

the petitioner that the petitioner was neither in occupation of any

portion of the subject premises, wherein the theft is stated to have

taken place, nor did any construction exist on part of the plot

measuring 35 sq. yards, which forms a part of 135 sq. yards of plot

area, subject matter of the present petition. It is also relevant to

note that while the respondent/NDPL is harping about recoveries to be

made from the petitioner herein on a pro-rata basis, for the reasons

best known to it, it did not chose to assert its right to claim any

amount on a pro-rata basis from the resident/owner of the first floor of

the subject premises who is similarly situated as the petitioner herein.

11. Counsel for the respondent/NDPL states that the

recoveries on pro-rata basis were not made from the owner/occupier

of the first floor of the subject premises for the reason that an order

had been passed by the Consumer Grievance Redressal Forum,

prohibiting the respondent/NDPL from doing so. If the

respondent/NDPL was aggrieved by the said order, it was for it to have

assailed the said order in an appeal. However, admittedly, no such

appeal was preferred by the respondent/NDPL.

12. In view of the aforesaid facts and circumstances and

considering the fact that during the pendency of the present writ

petition, the petitioner has been duly granted a permanent electricity

connection in terms of the order dated 15.2.2011, the present petition

is allowed by setting aside the impugned demand letter dated

20.12.2010 raised by the respondent/NDPL on the petitioner calling

upon her to pay a sum of `14,20,559/- on a pro-rata basis. It is

however clarified that the decision passed in the present case shall not

come in the way of the Special Electricity Court in adjudicating the

aforesaid complaint bearing CC No.391/2009 lodged by the

respondent/NDPL against the successors-in-interest of late Shri

Manohar Lal and pending adjudication.

13. The petition is disposed of, while leaving the parties to

bear their own costs.

HIMA KOHLI, J

FEBRUARY 27, 2012 sk