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Skipper Properties P. Ltd. v/s Bses Rajdhani Power Ltd.

    W.P. (C) 12673 of 2006 & CM 9780 of 2006
    Decided On, 18 August 2006
    At, High Court of Delhi
    By, THE HONOURABLE MR. JUSTICE S. RAVINDRA BHAT
    For the Petitioner: Mukul Dhawan, Advocate. For the Respondent: Naveen Chawla, Advocate.


Judgment Text
S. Ravindra Bhat, J.

1. Issue notice. Mr. Naveen Chawla, learned Counsel accepts notice on behalf of respondent and states that he does not wish to file counter affidavit; it is further submitted that the matter can be disposed of at the stage of admission.

2. The petitioner is owner of Janak Cinema. It had approached this Court claiming to be aggrieved in respect of some electricity bills on a previous occasion by filing W.P.(C) 3888/04. It is averred and contended on its behalf that the BSES changed the meter in the premises on 12.1.2005. Learned Counsel on behalf of the Counsel for the petitioner has taken me through the allegations in the petition, certain orders passed by this Court and submitted that after installation of the meter in January 2005, despite repeated requests, proper billing was not resorted to the BSES and that finally a bill was issued in December 2005 for the amount of Rs. 7,74,000/-. It is claimed that the petitioner was aggrieved and approached the officials of the BSES who noted that the bill had to be corrected. Thereafter, another bill was issued on 21st April, 2006 for the sum of Rs. 9,48,275/-. The petitioner wrote to BSES in respect of this bill on 1st May, 2006.

3. In the meanwhile, it is claimed that an inspection was carried out on 3rd April, 2006; the existing seals placed on the meter was found intact. It is claimed that on 5th April, 2006 a further inspection was carried out and the BSES decided to change the meter. A copy of the inspection report was placed on record. Learned Counsel contended that there was no occasion to inspect the meter again on 5th April, 2006 and change it. It is submitted that the impugned bill raised subsequently on 1st August, 2006, for the sum of Rs. 1,38,41,381/- is in flagrant violation of the provisions of the Electricity Act, 2003 and the concerned regulations.

4. Learned Counsel contended that after the inspection report was prepared a show cause notice was issued to the petitioner calling upon him to explain on issues such as the state of the seals on the meter and that the BSES had prima facie decides that it was culpable for dishonest abstraction of electricity. It is contended that the petitioner replied to the show cause notice refuting the allegations and pointing out the entire sequence of events leading up to the replacement of the meter on 12.1.2005. Learned Counsel relied upon the report dated 12.1.2005 issued by the respondent. The petitioner had disputed the observations in the inspection report as well as show cause notice that the connected load was in excess of 99 KW; it was contended that the BSES had taken into consideration a ‘stand alone’ generator with 180 KVA capacity. It was, therefore, submitted that this was not a case of dishonest obstruction of electricity.

5. Learned Counsel submitted that in these background of facts the speaking order issued by the BSES attributing theft to the petitioner is unjustified. It was submitted that the reasoning in the speaking order that the petitioner had to installed a meter which has not been placed in the premises by the BSES was never been put to it in the show cause notice and was therefore a clear after thought. It was submitted that BSES could not have imposed liability in excess of Rs. 1,38,41,381/-.

6. Learned Counsel for the respondent BSES resisted the petitioner and claimed that the meter had never been replaced on 12.1.2005. He strongly relied upon the circumstance that the bill issued in December 2005 and April 2006 had correctly reflected the meter existing on site and disclosed its true number, namely, 09700141. The petitioner’s case, however, was that the meter existing at site was 29003527. It was contended that this issue was squarely put into the inspection report duly furnished to the petitioner. The BSES discovered that the petitioner had engaged in switching of meter with a view to indulge in theft. It was contended that in these circumstances, the impugned bill was justified.

7. Learned Counsel submitted that the speaking order correctly discarded the submissions with regard to the inclusion of 180 KVA generator and for valid reasons. Learned Counsel for the respondent further submitted that the BSES had issued a notice for theft under Section 56 and has also decided to prosecute the petitioner.

8. The materials on record disclose that several disputed questions of fact have been raised. On the one hand the petitioner contend that the replacement of meter effected on 12.1.2005, were under the orders of the BSES; it strongly relied upon the meter change report in that regard. This has been equally, vehemently, denied by the respondent who states that the document was never issued by it. Apart from this, the question as to whether there was tampering in the meter as alleged by the respondent and whether the utilization of the generator was lawful or not so as to fall within the description of theft under the electricity, ought not to be, in my opinion, gone into at this stage since the respondent has taken a decision in principle to put the matter in issue for adjudication by the properly constituted and competent Court under Section 154 of the Electricity Act.

9. One further circumstance which impels me to desist attempting to decide the merits is that the Special Judge, after taking cognizance, is the only empowered Court which can adjudicate on the issues, after duly recording evidence of the concerned parties. Another added and to my mind, significant feature is that the Special Judge has exclusive jurisdiction to determine civil liability of the consumer in the event of a finding on the complaint made by the licensee.

10. For the above reasons, I am of the opinion that it would not be appropriate and would perhaps be premature for this Court to delve into the disputes sought to be agitated in these proceedings, with a view to decide them.

11. There is, however, one aspect on which the question of the amount payable by the petitioner during interregnum, as a purely interim arrangement would have to be worked out. This is necessary because in the absence of such an order, there would be an impasse, eventually leading to disconnection of electricity supply, and resultant disruption of the petitioner’s activities, that would inconvenience its customers. The respondent claimed Rs. 1,81,40,226/- and has given credit for an amount of Rs. 42,98,845/-. The total net demand is Rs. 1,38,41,381/-. In the peculiar circumstances of this case, I am of the opinion that the pending adjudication and final decision by the Special Judge in the proceedings under Section 154 of the Electricity Act and subject to deposit of the sum of Rs. 45 lakh by the petitioner, the respondent BSES should not disconnect the electricity supply to the petitioner. The petitioner is, therefore, permitted to deposit the said amount of Rs. 45 lakh, by initially paying Rs. 10 lakh within four weeks. The balance Rs. 35 lakh shall be paid within six months thereafter in equal monthly instalments. The pet

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itioner shall continue to pay all the amounts demanded for current consumption. 12. The above order with regard to the payment of amounts is subject to the final outcome of the proceedings. As per statement of the respondent it would be initiating a complaint case under Section 154 within two weeks. In the event of the petitioner succeeding in that proceeding, it goes without saying that the amount would be payable or refundable by the respondent. All rights and contentions of the parties are kept open and nothing stated in this order including the interim arrangement shall be construed as an expression on the merits of the case. 13. The writ petition and application for interim relief are disposed of in view of the above terms. 14. Order Dasti to parties.
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