Bses Rajdhani Power Ltd. & Ors. vs M/S Polospor Engineers (I) Ltd.
2013 Latest Caselaw 1052 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                       R.S.A. NO.305/2005

                                         Decided on : 4th March, 2013

BSES RAJDHANI POWER LTD. & ORS.         ...... Appellants
             Through: Ms.Anjali Sharma, Adv.

                         Versus

M/S POLOSPOR ENGINEERS (I) LTD.                ......      Respondent

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

1. This is a regular second appeal filed against the judgment dated

18.1.2005 passed by the learned ADJ by virtue of which the appeal

of the appellants was dismissed and the judgment and decree

passed by the trial court on 02.9.2000 was upheld.

2. The learned counsel for the appellants has stated that the

substantial questions of law which are involved in the present

regular second appeal are as under:-

(i) Whether the respondent is not liable to come under the category of LIP as per the Tariff provisions and regulations, though he runs a large plastic industry and the concerned load was found more than 100 KW?

(ii) Whether one surprise inspection report can be overruled on the basis that subsequent surprise report reveals the irregularities deleted in the first inspection report?

(iii) Whether the mandatory rules, regulations and provisions of Tariff can be ignored?

(iv) Whether the learned Civil Judge can set aside the inspection report which was prepared in accordance with the statutory provisions, without any valid reasoned order?

(v) Whether the learned Civil Judge ignored the findings of the inspection report and other relevant documents on the basis that some witnesses were not available during the cross-examination?

3. I have carefully considered the submissions made by the learned

counsel for the appellants. Before dealing with the same, it would

be pertinent to give the brief background of the case. The

respondent herein was a registered consumer of electric connection

bearing K No.0111339693 IP and KN No.1339707 IL with a

sanctioned load of 89.52 KW IP and 8.00 KW IL, respectively.

The aforesaid meters were installed at C-83, Okhla Industrial Area,

Phase-I, New Delhi, where the respondent was carrying on

business of manufacturing of plastic goods with extrusion

technique. The respondent was also having a valid municipal

licence which was valid up to 31.7.78. It had been alleged in the

plaint that on 22.3.95 in the absence of any Director of the

respondent company, an inspection was carried out and it was

alleged that the respondent was using the electric load which was

much more than the sanctioned limit (100 KW). They were sought

to be proceeded against under the relevant electricity laws and the

tariff rules framed thereunder.

4. The respondent feeling aggrieved by this action of the appellants

and its officers, made an application for re-inspection of the

premises. This re-inspection was carried out on 10.7.95, wherein it

was found that the consumption by respondent was within the

sanctioned limits. However, the second inspection report alleged

that one of the extruders was lying dismantled and disconnected

from the mains.

5. Be that as it may. The appellants and its officers issued show

cause notice for levying the surcharge and misuser charges for

higher consumption.

6. The respondent, feeling aggrieved, filed a Suit bearing

No.583/1995 for mandatory and permanent injunction. The said

suit after contest was decided by the learned Civil Judge on

02.9.2000 in favour of the respondent holding that the appellants

could not have issued the show cause notice for levying higher

charges on the basis of the first inspection conducted by them on

22.3.95. The reasons given by the trial court was that the second

inspection which was carried out at the instance of the respondent,

ought to have made as a basis for drawing the tariff charges to be

paid by the respondent.

7. The appellants feeling aggrieved by the said judgment/order passed

by the trial court preferred an appeal before the Court of District

Judge.

8. The District Judge vide order dated 18.1.2005 upheld the findings

and the judgment of the trial court.

9. Still not satisfied, the appellants have preferred the present regular

second appeal. The regular second appeal is admissible only if a

substantial question of law is involved.

10. The substantial question of law which has been purportedly urged

by the learned counsel for the appellants arising out from the

present appeal is as under:-

"Whether the basis for charging the tariff to the respondent is to be the first inspection report or the second inspection report?"

11. The question is essentially question of fact. The courts below

have arrived at a concurrent finding that the second inspection

report which has been conducted by the officials of the appellants

themselves would be the basis for deciding the liability of the

respondent.

12. Admittedly, the second inspection has been conducted at the

instance of the respondent and it has been carried out by the

officials of the appellant. Since the appellants themselves have

willfully carried out the second inspection, it clearly shows that

they themselves were not sure about the authenticity of the first

inspection and the same being carried out in a proper manner.

Therefore, the first inspection report ought not to be made as a

basis for drawing the tariff. Generally, if at some point of time, the

consumer feels aggrieved and a second inspection is conducted, the

second inspection report should not be the basis but since in the

instant case, the time gap between the first inspection and the

second inspection was so short that it could not be said that the

respondent had conducted some mischief and tried to procure the

report, therefore, the question as to 'whether the first inspection

report ought to be the basis for charging the tariff or not?, is

essentially a question of fact which has already been dealt with by

the two courts below by a concurrent finding saying that the second

inspection report should be the basis of charging of tariff. Merely

because this Court is superior to the two courts below which have

returned the concurrent finding, it would not be well within its

power to substitute its own opinion in place of the concurrent

finding of the courts below, even though, it may agree with the

submissions made by the learned counsel for the appellant, I

therefore, feel that there is no substantial question of law involved

in the present regular second appeal and the same is dismissed.

V.K. SHALI, J.

MARCH 04, 2013 RN