Bses Yamuna Power Ltd. vs Roshan Masood
2013 Latest Caselaw 5290 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 19th November, 2013

+                                 RFA No.755/2010

      BSES YAMUNA POWER LTD.                  ..... Appellant
                  Through: Mr. Manish Srivastava & Mr. K.
                           Datta, Advs.

                                     Versus
    ROSHAN MASOOD                              ..... Respondent

Through: Mr. S.A. Quadri, Adv.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree dated 25.05.2010 of the Court of Additional District Judge (ADJ)-03 (North-East), Karkardooma Courts, Delhi decreeing on admissions the civil suit No.203/2009 filed by the respondent / plaintiff and declaring the bill No. YMENF 180420090022 (based on inspection dated 02.01.2009) due date 23.04.2009 of Rs.13,38,551/- (incorrectly recorded in the judgment as Rs.33,38,551/-) raised by the appellant / defendant on the respondent / plaintiff as null and void and directing the appellant / defendant to restore electricity supply to the property of the respondent / plaintiff.

2. Notice of the appeal was issued. The respondent / plaintiff could not

be served by ordinary process and was ultimately ordered to be served by

publication whereafter the counsel for the respondent / plaintiff appeared.

The appeal was on 05.07.2013 admitted for hearing. It was the contention of

the counsel for the appellant / defendant on 05.07.2013 that the matter was

fully covered by the judgment of the Supreme Court in The Executive

Engineer Vs. Sri Seetaram Rice Mill (2012) 2 SCC 108. In view of the said

statement, the hearing was expedited and the Trial Court record

requisitioned. The counsel for the respondent / plaintiff on 11.09.2013

stated that he was not ready with the arguments; accordingly the appeal was

adjourned to today subject to payment of costs of Rs.3,000/-. Though costs

have been paid today but again request for adjournment has been made on

behalf of the respondent / plaintiff. However, upon it being told that

adjournment would be granted subject to payment of further costs, the

counsel for the respondent / plaintiff agreed to address arguments. The

counsels for the parties have been heard.

3. The respondent / plaintiff instituted the suit from which this appeal

arises, pleading a) that he was a registered consumer with the appellant /

defendant; b) that on 25.06.2009 the officials of the appellant / defendant

came to his premises and removed the electricity meter; c) that the

respondent / plaintiff on making enquiries learnt that the officials of the

appellant / defendant, on the basis of inspection carried out on 02.01.2009,

had concluded that the respondent / plaintiff was extracting electricity by

tampering the meter; however the respondent / plaintiff had paid the bills

even after 02.01.2009 and till the date of removal of the meter; and, d) that

the appellant / defendant could not have, without raising the demand on the

respondent / plaintiff, disconnected the electricity supply; accordingly, the

relief of declaration that the said bill was null and void and a decree for

mandatory injunction for restoration of electricity supply was claimed.

4. The appellant / defendant contested the suit by filing a written

statement. No replication is found to have been filed by the respondent /

plaintiff.

5. The learned ADJ, vide order dated 25.07.2009 expressed a prima

facie opinion that the civil court has no jurisdiction to entertain and try the

suit and framed the following preliminary issue:

Whether this court has the jurisdiction to entertain and try the present suit?(OPP)"

6. Thereafter the suit was dismissed in default of appearance of the

respondent / plaintiff but was restored on application being made by the

respondent / plaintiff.

7. A perusal of the order sheet of the suit file shows the counsel for the

appellant / defendant to have, on 22.10.2009, placed reliance on B.L.

Kantroo Vs. BSES Rajdhani Power Ltd. 154 (2008) DLT 56 (DB) to

contend that the civil court had no jurisdiction.

8. The learned ADJ vide order dated 18.12.2009 decided the preliminary

issue in favour of the respondent / plaintiff and against the appellant /

defendant inter alia observing that the Division Bench of this Court in B.L.

Kantroo supra had held that Civil Courts would have jurisdiction where the

prescribed procedure had not been followed and since the appellant /

defendant had not followed the procedure prescribed in Section 126 of the

Electricity Act, 2003, the Court of the learned ADJ had jurisdiction to decide

the said limited issue.

9. The learned ADJ thereafter vide order dated 14.05.2010 on the

application of the respondent / plaintiff under Order 39 Rule 1&2 of the CPC

directed the appellant / defendant to restore the electricity supply to the

respondent / plaintiff and to continue supplying electricity to the respondent

/ plaintiff upon the respondent / plaintiff making payment of future bills.

10. Vide the same order dated 14.05.2010, another preliminary issue as

under was framed:

"Whether the suit is not liable to be allowed U/o 12 rule 6 CPC? OPD"

11. The learned ADJ vide the impugned judgment and decree has held

that since the appellant / defendant had not followed the procedure

prescribed in Section 126 of the Act supra and had before raising the

impugned bill admittedly not issued any notice to the respondent / plaintiff

as contemplated under Section 126(2), the demand was not in accordance

with law. Axiomatically, the suit was decreed as aforesaid with costs.

23. The counsel for the appellant / defendant has contended that the

matter is no longer res integra. Attention is invited to Sri Seetaram Rice

Mill supra, particularly to paras No.15 and 17 thereof to contend that the

Supreme Court has carved out a distinction between Section 126 of the Act

which deals with unauthorized use of electricity and Section 135 of the Act

dealing with theft of electricity. It is contended that though as per

explanation (b)(iii) of Section 126 of the Act, use of electricity through a

tampered meter is also unauthorized use of electricity but the Supreme Court

had held that a case of theft under Section 135 of the Act is distinct from a

case under Section 126 of the Act. It is thus contended that the learned ADJ

has erroneously invoked Section 126 of the Act which is not even applicable

in case of theft of electricity, which is dealt with under Section 135 of the

Act.

24. Upon enquiry as to how the appellant / defendant contends the bill

impugned in the suit to be for theft under Section 135 of the Act and not

under Section 126 of the Act, attention is invited to the impugned bill which

itself describes the same as "Assessment Bill for Theft (Meter Tempering)".

25. The counsel for the respondent / plaintiff has invited attention to the

inspection report which shows the meter of the respondent / plaintiff to be

tampered.

26. It has as such been enquired from the counsel for the appellant /

defendant that when the meter is found to be tampered, how does the

appellant / defendant decide, whether to proceed under Section 126 of the

Act or under Section 135 of the Act.

27. The counsel for the appellant / defendant states that if tempering is

found to be without dishonest intention, the case will be treated as under

Section 126 of the Act and if with a dishonest intention, as under Section

135 of the Act. Attention is invited to the inspection report of the subject

meter where a decision has been taken to book the respondent / plaintiff

under Dishonest Abstraction of Energy (DAE) and it is argued that the said

expression is confined to theft of electricity alone and not to a case under

Section 126 of the Act.

28. It has next been enquired form the counsel for the appellant /

defendant whether the respondent / plaintiff is being prosecuted under

Section 135 of the Act.

29. The counsel for the respondent / plaintiff states that no FIR has been

lodged and no prosecution is underway.

30. The counsel for the appellant / defendant states that he has no

instructions whether any prosecution has been lodged or not and in any case

the limitation therefor is three years.

31. The counsel for the respondent / plaintiff points out that the said

limitation of three years also has lapsed.

32. The counsel for the appellant / defendant has also relied upon Sohan

Lal Vs. North Delhi Power Ltd. 113 (2004) DLT 547, in paras No.37, 38

and 40 whereof also it has been held that the difference between Sections

126 and 135 of the Act is that, for a case to fall under Section 135 of the Act,

there should be dishonesty coupled with one of the acts specified in Sub-

paras (a) to (c) of Sub-section (1) of Section 135 of the Act. On enquiry, as

to in which category, the action of the respondent / plaintiff falls, the counsel

contends that the action of the respondent / plaintiff would fall under Section

135(1)(b) of the Act i.e. of tempering of meter as described therein.

33. The counsel for the appellant / defendant also contends that it is not

essential for the appellant / defendant to lodge an FIR in all cases of theft of

electricity.

34. It has been enquired from the counsel for the appellant / defendant as

to on what basis the appellant decides whether to lodge an FIR or not.

35. The counsel now states that there is a „practice‟ not to book cases of

tampering under Section 126 of the Act.

36. It has however been put to the counsel for the appellant / defendant as

to how can the appellant / defendant have a practice contrary to the statute

and why the consumers, if entitled to a beneficial / better procedure in cases

of tampering, also under Section 126 of the Act, should not be permitted to

avail of the same and as to how they can be deprived thereof by a „practice‟

adopted by the appellant / defendant for which there appears to be no basis.

It has further been enquired form the counsel for the appellant / defendant as

to how the appellant / defendant can at its ipse dixit take a call, in which case

to lodge an FIR and / or file a complaint and in which case not to do so. The

appellant / defendant having over 50% shareholding of the State, cannot be

permitted to so discriminate without any guidelines and the counsel for the

appellant / defendant is unable to cite any guidelines in this respect.

37. Though the counsel for the respondent / plaintiff has drawn attention

to Kawsar Ali alias Kawsar Sk. Vs. State of West Bengal AIR 2006

Calcutta 65 laying down that a final assessment order under Section 126 of

the Act, without complying with the procedure prescribed therein to be bad.

However, here the very applicability of Section 126 is disputed by the

appellant/defendant which contends the case to be falling in Section 135 of

the Act. The Supreme Court in Sri Seetaram Rice Mill supra has carved out

a distinction between the two. The Calcutta judgment thus does not help the

respondent/plaintiff.

38. However, the fact remains that even if the case was to be under

Section 126 of the Act, the Civil Court would have no jurisdiction in view of

the bar under Section 145 of the Act as expressly held in para No.30 of B.L.

Kantroo supra. I may notice that the appellant / defendant in this appeal has

not challenged the order dated 18.12.2009 of the learned ADJ holding that

Court to have jurisdiction. However, once the said fact has come to the

notice of this Court in a challenge to a subsequent order in the said

proceedings, this Court cannot shut its eyes to the same and allow an order

of a Court which has no jurisdiction and the judgment whereof would be a

nullity for the said reason, to stand. Even if the argument of the respondent /

plaintiff of Section 126 of the Act being applicable were to be accepted, the

jurisdiction to challenge the bill or demand under Section 126 of the Act

would be of the Appellate Authority constituted under Section 127 of the

Act.

39. In this light of the matter, the appeal succeeds. The judgment and

decree of the learned ADJ which is found to have no jurisdiction, declaring

the impugned bill as null and void and directing the appellant / defendant to

restore electricity supply is set aside and the suit filed by the

respondent/plaintiff is dismissed. In the circumstances, no costs. Decree

sheet be prepared.

40. The amount of Rs.20,000/- deposited by the appellant / defendant in

this Court towards costs imposed vide the impugned judgment be refunded

to the appellant / defendant.

41. On enquiry, it is informed that in compliance with the order in the

suit, the electricity was restored.

42. It is felt that the electricity be not immediately disconnected by the

appellant/defendant without giving the respondent/plaintiff an opportunity to

either pay/settle the disputed amount or to challenge the same before

appropriate fora. It is accordingly directed that the appellant / defendant, as a

consequence of this judgment, shall not be entitled to disconnect the

electricity supply for a period of 30 days from today, during which time the

respondent / plaintiff may avail of the appropriate remedy against the

impugned bill or pay/settle the dues of the appellant/defendant. The

disconnection of electricity after 30 days shall be subject to the orders if any

in the proceedings which may be preferred by the respondent / plaintiff.

43. However, the issues as raised and discussed in paras No.26 to 37

hereinabove are found to be in public interest. It is deemed appropriate to

give an opportunity to the appellant / defendant to address further on the said

aspect and the appellant / defendant may also file an affidavit on the

aforesaid aspects within three weeks.

44. List for the said limited purpose on 16th December, 2013.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 19, 2013 „gsr‟