North Delhi Power Ltd. vs Allena Auto Industries (P) Ltd.
2016 Latest Caselaw 5564 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  RSA No.30/2009

%                                                           26th August, 2016

NORTH DELHI POWER LTD.                                         .... Appellant
                      Through:               Mr. Vikram Nandrajog, Advocate
                                             with Mr. Sheetesh Khanna,
                                             Advocate and Mr. Sushil Jaswal,
                                             Advocate.
                          versus

ALLENA AUTO INDUSTRIES (P) LTD.                ..... Respondent

Through: Mr. Rajesh Kumar Luthra, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?       YES


VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of the Code of

Civil Procedure, 1908 (CPC) is filed by the appellant/defendant against the

Judgment of the First Appellate Court dated 27.11.2008. The first appellate

court by the impugned judgment has set aside the Judgment of the Trial Court

dated 4.3.2003, and by which judgment the suit of the respondent/plaintiff

seeking permanent injunction against the appellant/defendant from claiming

higher electricity tariff/charges on the basis of the Report dated 25.3.1997 was

dismissed. The first appellate court has decreed the suit and has restrained the

appellant from claiming Large Industrial Power (LIP) charges from the

respondent/plaintiff on the basis of the Report dated 25.3.1997.

2. Before I turn to the facts of the case, it is necessary to state that

there existed two types of electricity connections at the relevant point of time

in the year 1997 which were installed by the Delhi Vidyut Board (DVB)

erstwhile DESU, and of which entity the present appellant company is the

successor. One set of connections were connections with sanctioned load

below 100 KW and they were known as Small Industrial Power (SIP)

connections. The other set of connections were where sanctioned load was

more than 100 KW and were called as Large Industrial Power (LIP)

connections. The tariffs for SIP connections and LIP connections were

different i.e charges for LIP connections were at a higher tariff than the SIP

connections. If a consumer having taken only an SIP connection,

(respondent/plaintiff having taken an SIP connection with sanctioned load of

95 KW), is found to be actually using and having connected a load above 100

KW, then DVB imposed the higher LIP charges upon the consumer. These

charges were charged for six months prior to the inspection and were to

continue after the date of inspection till the fault was remedied by the

consumer by bringing down the connected load to the sanctioned load below

100 KW.

3. The facts of the present case are that the DVB conducted an

inspection of the premises of the respondent/plaintiff on 25.3.1997.

Respondent which was having a sanctioned load of 95 KW i.e

respondent/plaintiff was a consumer in the SIP category, was as per the

officials of the DVB who conducted the inspection dated 25.3.1997, found to

have a connected load of 239.7 KW as against the sanctioned load of 95 KW.

The respondent/plaintiff was thus noticed for paying LIP charges. After giving

show cause notice to the respondent/plaintiff, the appellant/defendant passed

its speaking Order dated 27.10.1997 imposing LIP charges upon the

respondent/plaintiff resulting in the respondent/plaintiff filing the subject suit

stating that in its factory manufacturing pumps for maruti cars the

respondent/plaintiff had two separate electricity lines feeding separate

machineries. One set of machinery were fed with DVB line and had connected

load upto 95KW with a standby generator of 125 KVA and other set of

machineries were connected through a separate line and had for its power

source a generator of 125 KVA with another standby generator of 75 KVA. It

may be noted that 100 KW equals 117.6 KVA. Respondent/plaintiff therefore

pleaded that officials of the appellant were totally unjustified and had acted

arbitrarily in holding that a total connected load of 239.7 KW was connected

against DVB line whereas against DVB line there was connected load only

within the sanction load, and that load of one set of machineries was connected

with the separate line having as its power of source the generators of 125 KVA

and 75 KVA.

4. After pleadings were complete, the trial court on 26.5.2000

framed the following issues:-

"1. Whether the plaintiff is entitled for the relief claimed? OPP

2. Whether at the time of inspection dated 25.03.00 plaintiff has connected load of 239.7 KW with the DVB electricity line? OPD

3. Relief."

5. Trial court decided issue nos.1 and 2 in favour of the

appellant/defendant by holding that no permission was taken by the

respondent/plaintiff for installing the generator sets. Trial court also held that

the speaking Order dated 27.10.1997 was passed after hearing the

respondent/plaintiff and hence the respondent/plaintiff was liable to pay the

LIP charges. It is interesting to note that the trial court noted the admission of

the DW2 Sh. Ram Singh in its cross-examination conducted on 9.10.2002 that

the entire load of 239.7 KW if it was fixed on the DESU line/cable, then, the

cable will burst i.e it was an inconceivable position that the entire load of

239.7 KW could have ever run on the DESU cable which supplied electricity

to the premises of the respondent/plaintiff. This aspect is indeed material and

is dealt with hereinafter.

6. The first appellate court by the impugned judgment has allowed

the appeal by holding that there were two separate lines of production

machineries and they were fed by the separate electricity lines, one line being

the line of DESU having for its standby supply a generator of 125 KVA and

other line being the line connected to the generator of 125 KVA with a standby

generator of 75 KVA, and which latter line with its connected machineries

cannot be said to be a connected load on the DVB connection/line.

7. I may at this stage note that it is an admitted position that when

inspection was conducted by the officials of the DVB on 25.3.1997, this

insertion report itself Ex.PW1/DX1 notes that there are total of three diesel

generator sets which were found at the site. Two generator sets were of 125

KVA capacity and one generator set was of 75 KVA capacity. Also the

witness of the respondent/plaintiff PW1 Sh. Umesh Dhupar has filed and

proved on record the photographs and negatives showing separate lines and

which though are marked as A and B, but, really they are exhibited documents

because they are the original photographs as also the original negatives with

respect to the photographs.

8. There are other aspects dealt with in this case by the courts below

of re-inspection having applied for by the respondent/plaintiff, as to whether

respondent/plaintiff had proper hearing before the authority giving hearing,

but, these aspects would not be relevant once it is found that in fact there was

no connected load of 239.7 KW on 25.3.1997 at the premises of the

respondent/plaintiff on the DVB/DESU line because the DVB/DESU line had

only connected load/machineries upto 95 KW whereas the other set of

machineries were fixed on another line having as the source of supply one DG

set of 125 KVA and a standby DG set of 75 KVA.

9(i) On behalf of the respondent/plaintiff, two witnesses were

examined. PW1 is Mr. Umesh Dhupar and who was duly authorized by the

resolutions of the respondent-company Ex.PW1/Aand Ex.PW1/B. This

witness has deposed with respect to the two sets of production lines in the

factory, one line being connected with the line of DVB/DESU and the other

line with an alternative arrangement of supply by a 125 KVA set with a

standby generator of 75 KVA capacity. For the DVB line there was a 125

KVA set as an alternative in case there was any break down or lack of power

supply from the DESU line, and which DG set of 125 KVA would be used to

continue the production in the factory of the respondent/plaintiff whenever

there was failure of power supply. This witness PW1 has clearly deposed that

there is no DESU line feeding the alternative set of machinery which was fixed

on one DG set of 125 KVA with a standby DG set of 75 KVA. As already

stated above, this witness has proved the photographs and the negatives

showing separate electricity lines with respect to the machineries connected on

the second DG set of 125 KVA and a standby DG set of 75 KVA.

(ii) PW2 who deposed on behalf of the respondent/plaintiff is Sh.

Parveen Dutt Paliwal and he similarly deposed with respect to existence of two

sets of production lines in the factory, one connected with the line of

DVB/DESU having an alternative arrangement/standby of 125 KVA generator

set and which was used in case of power cut and electricity failure, whereas

the other set of production line machineries had no connection with the DESU

line but had its source of power supply two generator sets, one of 125 KVA

and a standby generator set of 75 KVA. This witness specifically deposed that

there is no change over line of DVB/DESU on this second generator set of 125

KVA and once there is no change over switch in this connection to connect

this with DESU line, the second set of machineries/connected load are not

those connected to the supply line of the appellant.

10. On behalf of the appellant/defendant, evidence was led of two

witnesses with DW1 Sh. O.P. Sharma proving the report dated 25.3.1997 as

Ex.PW1/DX1 being a member of the inspection team. So far as DW1 is

concerned, he deposed in his cross-examination that he only signed as a

member and he had no knowledge about the load in the premises. The second

witness DW2 Sh. Ram Singh who was also a member of the inspection team,

deposed in detail with respect to the inspection stating that inspection was

conducted in the presence of the owner of the respondent/plaintiff company.

DW2, has admitted that at the time of inspection the cable of the DVB/DESU

was of the size of 3.5X150 mm square and which cable would burst if the

respondent/plaintiff had connected a load of 239.7KW on this cable i.e it is

impossible to have a connected load of 239.7 KW on the cable size of 3.5X150

mm square.

11. In my opinion, the first appellate court has rightly concluded that

there could not be connected load of 239.7 KW in the premises of the

respondent/plaintiff on 25.3.1997. The following reasons persuade me to

uphold the impugned judgment:-

(i) Admittedly three generator sets, two of 125 KVA capacity and

one of 75KVA, were found at the premises of the respondent/plaintiff and as

noted in the inspection report Ex.PW1/DX1.

(ii) Once the sanctioned load is 95KW, it would be enough even for

this sanctioned load for the DESU line that there is one standby generator of

125 KVA, whereas, there were found not one but two generator sets of 125

KVA with another set of 75KVA and which can only be if one generator set of

125 KVA is used as a standby for the DVB/DESU line in case of power failure

and the other generator set of 125 KVA with the standby of 75KVA DG set

was used for those separate set of machineries which had a separate feeding

line without any change over switch to connect the same to the DVB/DESU

electricity cable.

(iii) If on the cable size of 3.5X150 mm square which was fixed by

appellant in the premises of respondent/plaintiff load of 239.7 KW is

connected, then this cable will burst as admitted by the DW2 in his cross-

examination, and therefore it is inconceivable that the load of 239.7 KW would

be connected for running the same on the DVB/DESU line.

(iv) PW1 had duly proved the photographs and the negatives showing

existence of a separate electricity line and which was the separate electricity

line was not connected to the DESU supply line and which separate line had as

its power source one DG set of 125 KVA and the standby DG set of 75 KVA.

(v) The fact that diesel generator sets were fixed in the premises of

the respondent/plaintiff without taking permission of the appellant/defendant

will not take away the fact that three diesel generator sets, two of 125 KVA

each and one of 75 KVA, were found installed in the premises of the

respondent/plaintiff and therefore there were two separate lines giving

electricity to the machineries in the factory of the respondent/plaintiff; one line

being of 95KW sanctioned load of appellant/defendant and other private line

having as its source the second DG set of 125 KVA with standby DG set of

75KVA. I may also note that the appellant/defendant has not filed anything on

record showing that as per which legal provision permission is required for

installing of DG sets by a consumer, and that what would be the consequences

in law if no permission is taken for installing of DG sets but yet DG sets are

fixed/installed as a source of supply. Be that as it may, three DG sets in any

case were duly found installed and existing in the premises of the

respondent/plaintiff and thus the entire „connected load‟ of 239.7 KW cannot

be connected to the supply line of the appellant.

12. In view of the above, I am of the opinion that inspection dated

25.3.1997 conducted by the officials of the appellant in the premises of the

respondent/plaintiff in which the connected load was stated to be 239.7 KW

against the DESU line is a totally false and unacceptable report, and appellant

has been rightly restrained by the first appellate court from acting upon the

same and by giving the relief of restraining the appellant from charging LIP

charges upon the respondent/plaintiff on the basis of inspection dated

25.3.1997.

13. While admitting this appeal on 29.1.2014, the following

substantial question of law was framed:-

"Whether, the findings of the first appellate court being without any material, documents or evidence available on record is legal and valid?"

14. In view of the aforesaid discussion, the abovesaid substantial

question of law is answered in favour of the respondent/plaintiff and against

the appellant/defendant by holding that the first appellate court has rightly

arrived at a conclusion that the respondent/plaintiff cannot be fastened with

the LIP charges on the basis of the inspection dated 25.3.1997 and the first

appellate court has rightly held that there could not have been a connected load

of 239.7KW on the line of DVB because there were two separate lines having

two separate sources of power i.e one DESU line with the sanctioned load of

95KW having a source of supply as the main source of supply from

DVB/DESU and the second line having a source of supply having DG set of

125 KVA and the standby set of 75 KVA.

15. In view of the above, there is no merit in this second appeal and

the same is therefore dismissed, leaving the parties to bear their own costs.

AUGUST 26, 2016                                       VALMIKI J. MEHTA, J
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