Usha Mehra ( 1 ) THE petitioner s grievance in this Revisionpetition are that the point raised by him before the learned Additional Districtjudge have not been considered and that the Trial Court erroneously imposedthe condition while ordering restoration of electricity. ( 2 ) PETITIONER had filed a suit for permanent injunction against therespondent-DESU. Alongwith the suit, an application under Order 39 Rulesi and 2 read with Section 151, Code of Civil Procedure was also filed. Afterhearing the parties the learned Sub Judge prima fade came to the conclusionthat the electricity be restored, however, it was subject to petitioner depositing50% of the demand raised by the respondent-DESU and for balance amountto furnish guarantee. It was against this imposition of the condition thatpetitioner preferred the appeal. The Appellate Court after going through therecord prima facie came to the conclusion that the respondent should consider of sanctioning 42 K. W electricity connection in favour of the petitionerfor running Banquet Hall subject to petitioner depositing Rupees five lacs. Because of this direction the Appellate Court did not deem it necessary toorder for restoration of electricity of I KW which was disconnected by therespondent. ( 3 ) IT is against these conditional orders that present revision petitionhas been preferred. ( 4 ) IN brief the facts are that the petitioner is the owner of propertybearing No. 6, Bhama Shah Marg, New Delhi. He obtained domestic lightconnection. This premises he gave on licence to a Banquet Hall. The saidbanquet Hall has been used fur arranging parties for the occasions likemarriage etc. In the licence deed executed between the petitioner and thelicencee, it has been provided that the premises is meant for business purposes. The sanction load of the domestic light obtained in the premises by the petitioner is 1 Kilo Watt. It is the case of the respondent that the premises wasinspected on 27-2-92. On inspection it was found that excess load is beingused by the petitioner. Apart from excess load, the licencee has also installedair Conditioner of 120 HP. This electric connection is being used for commercial purposes. The seal of the meter was not tallying with the authenticated sample and the meter was tampered as a result of which the meterwas not showing the actual consumption. The cable of 55 mm square wasillegally installed with the incoming service line cable and hence tampered. This electric connection is being used for commercial purposes. The seal of the meter was not tallying with the authenticated sample and the meter was tampered as a result of which the meterwas not showing the actual consumption. The cable of 55 mm square wasillegally installed with the incoming service line cable and hence tampered. Notice mentioning these facts was given to the petitioner on 27-3-92. Thisnotice, of course, was denied by the petitioner thereby refuting the allegationcontained in the notice. The petitioner had submitted that the supply wasbeing used as per sanctioned load and per sanctioned purpose. No excessload used nor there is any tampering with the seal or the meter. Moreoverno show cause notice was served. ( 5 ) MR. Vinay Bhasin, appearing for the petitioner contended thatthe petitioner has been discriminated. The building in which the Banquethall is running is an authorised building. It was constructed after havingsubmitted the plan for approval to the M. C. D, Since the M. C. D. did notconvey any rejection within 60 days, therefore, the plan deemed to have beenapproved and as such the entire building is as per the sanctioned plan. Theland on which the building is constructed is meant for residential-cum-commercial purposes. DESU has already given electric connections to otherfirms namely M/s. New Friend and Co. Pvt. Ltd. This firm is manufacturingwatches in the premises which is adjacent to the property of the petitioner. Similarly in other part of this premises bearing No. 6, Bhama Shah Marg,m/s. Khosla Cold Storage is functioning. Commercial connection has beenprovided by the DESU to the said concern. The property bearing No. 3,bhama Shah Marg, is being used by a Banquet Hall namely M/s. Hostessbanquet. To all these firms the electric connection are being provided bydesu for commercial purposes This shows that the area is being used forcommercial purposes also and the DESU has been granting electric connectionfor the said purpose. The M C D. tried to demolish the premises on theground of being unauthorised construction. The Additional District Judge, Delhi,in an appeal filed by the petitioner passed restraining order against the MCD,restraining it from demolishing the property. Restraining order had beenpassed because the Court prima facie held that the property had not beenunauthorisedly constructed. ( 6 ) MR. Bhasin, further contended that since to other firms situated inthe adjacent premises electricity connections have been granted by the DESUthe petitioner has been discriminated. Restraining order had beenpassed because the Court prima facie held that the property had not beenunauthorisedly constructed. ( 6 ) MR. Bhasin, further contended that since to other firms situated inthe adjacent premises electricity connections have been granted by the DESUthe petitioner has been discriminated. The respondent agreed to grant theelectricity connection if the premises is situated in a commercial area. Hisbuilding is also situated in a commercial area, otherwise, why would DESUgive electricity connections to other commercial firms situated in the buildingas well as in the adjoining buildings. Healthy Deptt. of M. C. D. has issuednoc in favour of the licencee for running this Banquet Hall. Furthermore,as per the judgment of the Additional District Judge, Delhi, dated 3-11-901prima facie it has been held that the building is not unauthorisedly constructed which judgment has not been assailed till date by the Municipal Corporation. Therefore, the judgment in M. C. A. No. 5/90 is binding on the parties. The petitioner has thus complied with all the necessary requisits for the grantof excess load of electricity connection, namely it is an authorised construction,licencee of the petitioner has NOC and the premises is situated in a commercial area. Moreover to other commercial firms running in properties bearingnos. 3,5 and 6, Bhama Shah Marg, the DESU has provided commercialelectricity connections. Hence the petitioner fulfils all the conditions imposedby DESU for supply of commercial electricity connection. No licence isrequired for running the Banquet Hall and no rules have yet been framed. In this regard Mr. Bhasin has placed reliance on the letter issued by thedeputy Health Officer dated 3-10-91 regarding grant of certificate of registration to the Banquet Hall. It was pointed out that the Department is framingthe technical instructions and as such action on the licensee s applicationwould be taken by the Health Department, MCD, as soon as these guidelinesare finalised. He, further contended that like the petitioner, who has beengiven "no Objection Certificate" by the Health Department, "gola Five Starbanquet Hall" has also been given a similar NOC by the Health Departmentand the DESU has provided the electricity to the said Banquet Hall. ( 7 ) MR. Pathak, appearing for the respondent DESU admitted thatelectricity has been provided to M/s. New Friend and Company Pvt. Ltd. whichis carrying on its business at 5, Bhama Shah Marg, New Delhi. But theelectricity connection was granted long time back. ( 7 ) MR. Pathak, appearing for the respondent DESU admitted thatelectricity has been provided to M/s. New Friend and Company Pvt. Ltd. whichis carrying on its business at 5, Bhama Shah Marg, New Delhi. But theelectricity connection was granted long time back. Similarly, M/s. Khoslacold Storage, 6, Bhama Shah Marg, New Delhi, had been given commercialconnection which the respondent wanted to disconnect, but the said firm hasbrought stay order from the Court. As regards Gola Banquet Hall, accordingto Mr. Pathak, it is situated in an industrial area, therefore, electricity connection has been given. Mr. Pathak contended that no Objection Certificate" is not required for running a Banquet Hall if the premises is situated inan industrial area. In fact for sanctioning electricity connection to a Banquethall an NOC has to be obtained from the MCD as per Section 421 of them. C. D. Act. Since petitioner has not produced NOC as per Section 421of the M. C D. Act, therefore, electricity connection applied by the licenseecould not be sanctioned. Mr. Bhasin on the other hand urged that "noobjection Certificate" as produced by a similar Banquet Hall has beenproduced by the licensee. ( 8 ) THESE contentions raised at the Bar are not relevant for decidingthis Revision Petition, These arguments of the Counsel for the parties I havenarrated for the reasons that the ADJ in his impugned order had directed thedesu to consider the application of the petitioner for sanctioning electricconsumption of 42 KWs. Be that as it may, in this Revision Petition, thiscourt is not called upon to decide as to whether it is a case of discriminationor not. The fact remains that the question of discrimination cannot be goneinto by this Court in this Revision Petition. ( 9 ) THE short point which is involved for consideration before thiscourt is whether the respondent was justified in disconnecting the sanctionedload of 1 KW of the petitioner on the ground of non payment of the subsequent bill raised on the petitioner on account of misuse charges and of theftof electricity. The demanded amount, according to the respondent, is duefor the period from 27-4-89 to 27-2-92. Inspection of the premises wascarried out, according to the respondent, on 27-2-92 regarding meterno. 135119, installed at 6, Bhama Shah Marg, New Delhi. It was foundthat the meter was tampered and theseal interfered, thus the presumption isthat the petitioner committed theft of the electricity. The demanded amount, according to the respondent, is duefor the period from 27-4-89 to 27-2-92. Inspection of the premises wascarried out, according to the respondent, on 27-2-92 regarding meterno. 135119, installed at 6, Bhama Shah Marg, New Delhi. It was foundthat the meter was tampered and theseal interfered, thus the presumption isthat the petitioner committed theft of the electricity. Moreover, as againstsanctioned load of domestic light he is illegally taking extra load from directline for running the Banquet Hall. ( 10 ) THESE facts had been refuted by the petitioner when he filed thesuit alleging therein that on the day the inspection took place i. e. 27-2-92, onone on behalf of the petitioner was present. That the officials of the DESUin order to falsely implicate the petitioner tried to interfere with the meterand even tried to fabricate evidence against the petitioner. The petitionerhad been paying the electricity bills regularly. When the DESU official triedto tamper with the wires in order to make out a false case, the petitionerlodged a police report. The police officials on the date of inspection i. e. 27-2-92 had accompained the DESU officials. The police official afterreturning from the site submitted a report regarding the inspection on his"vapsi" to the superior officer. Reading of the same makes it clear that itis the DESU officials who tried to tamper with the wires and the meter inorder, to fabricate evidence against the petitioner. Police official did not findany breakage of meter or interference with the seal. In his report, copy ofwhich was placed before the Trial Court, it is clearly mentioned that neitherthe wires were touched nor the meter or the seal were tampered with. Petitioner placed these documents before the Trial Court. He had contendedthat the demand raised by the DESU is illegal, therefore, restraint order bepassed so that his electricity may not be disconnected. Besides this the caseof the petitioner before the Court was that for running the air conditioner,he had installed generators. The installation of generator sets is admitted bythe respondent. Therefore, there was no misuse of the domestic connectionfor commercial purposes, nor there was any theft committed by the petitioneror his licensee. ( 11 ) THE respondent-DESU took the plea before the Trial Court thatthere were generators, still the electricity was misused. There was tamperingof the seal and the meter, therefore, revised demand was raised. Since thatamount was not paid hence electricity was disconnected. ( 11 ) THE respondent-DESU took the plea before the Trial Court thatthere were generators, still the electricity was misused. There was tamperingof the seal and the meter, therefore, revised demand was raised. Since thatamount was not paid hence electricity was disconnected. ( 12 ) THE perusal of the Trial Court record shows that on 30-9-92 insuit No. 624/92 statement of one Mr. A. K. . Gupta, Engineer of the DESU,was recorded by the Court. According to him at the time of inspectionthere were two single cors 50 MM square wires fitted in single phase whichwere fitted to the meter installed on the spot. He, however, admitted thatthe air conditioner of a capacity of 120 HP cannot work on the single phasewhich was found on the spot. According to him the party had connectedthe wire of the generator set as well as the above said private line to thedistribution box from where supply was being regulated. He admitted thatprivate line installed by the consumer could not have taken the entire connected load of 41. 826 K. W plus 120 HP. Further stated that police recoveredthe wires from the spot. The recovered wires were of two cores 10 MMsquare. From this statement of Mr. Gupta one thing is clear that there aregenerator sets installed at the premises in question. The wires which in factrecovered from the spot are of two cores of 10 MM which cannot take theload of 42 K. W. Mr. Gupta s statement that wires were subsequently changedhas vet to be proved. Prima facie from the recovered wires it cannot be saidthat the petitioner committed the theft of the electricity. ( 13 ) AS regard misuse of the electricity w. e. f. 27-4-89 to 27-2-92according to the facts which have come on record, the Banquet Hall in question was inaugurated on 18-11-90. Since the commercial activities started fromnovember 1990, then now could DESU raise revised bill w. e. f. 27-4-89. Thequestion of revised bill at the higher rate plus surchage becomes doubtful. How the recovery is being asked from 17-4-89 has not been explained. Therefore, prima facie petitioner cannot be forced to pay the amount which isyet to be determined. ( 14 ) THE police report submitted by the Inspector after returning to thepolice station also creates a doubt about the alleged inspection report of therespondent. How the recovery is being asked from 17-4-89 has not been explained. Therefore, prima facie petitioner cannot be forced to pay the amount which isyet to be determined. ( 14 ) THE police report submitted by the Inspector after returning to thepolice station also creates a doubt about the alleged inspection report of therespondent. The reading of the report as discussed above clearly indicatethat there was no tampering of the meter nor breaking of the seal or tampering of the wires. To my mind, the Trial Court has completely ignored thepolice report and according to first Appellate Court DESU officials in connivance with police official raided the premises. But at the same time compeltely ignored the police report. In view of the conflicting version regardingtampering of the meter, seal and of the wires at the site prima facie theinspection report dated 27. 2. 92 cannot as such be treated as an authenticdocument. This requires evidence, because there is a complete conflict ofversion given by the police as well as by the DESU officials. Moreover, howthis bill could be raised for the last three years has yet to be explained. Thepetitioner placed on record the documentary evidence to prove that Banquethall started in November, 1990. This fact has not been denied by the respondent by any cogent proof, to my mind, making the petitioner liable forthe last three years could not arise. I do not agree with the version of thetrial Court that there is no evidence prima facie available on record to establish that the Banquet Hall did not start in November, 1990. So far as theconclusive evidence is concerned, which the Trial Court has mentioned in hisorder, that has yet to come. While deciding the application under Order 39rules 1 and 2, and to form prima facie view the Court has to see the evidenceavailable on the record. Petitioner had placed on record the invitation cardprepared at the time of inauguration of the Banquet Hall, whereas the respondent did not point out as to when this Banquet Hall started. Therefore, tomy mind, the Trial Court erroneously concluded that there was no evidenceto the effect that the Banquet Hall did not start in November, 1990. Petitioner had placed on record the invitation cardprepared at the time of inauguration of the Banquet Hall, whereas the respondent did not point out as to when this Banquet Hall started. Therefore, tomy mind, the Trial Court erroneously concluded that there was no evidenceto the effect that the Banquet Hall did not start in November, 1990. The Trialcourt in fact fell in error for not recording the statement of the police officialwhile recording the statement of Shri Roshan Lal Sharma, Assistant Financeofficer, and Shri A. K. Gupta, Assistant Engineer, officials of the DESU. Thetrial Court prima fade came to the conclusion that the respondent DESUhad not served any show cause notice and hence did not provide any opportunity to the petitioner to make representation. That the notice in fact wasa notice of disconnection without affording any opportunity hence against thelaw. So far as theft was concerned, according to Trial Court, this remainedin the relam of allegations only. Hence the Trial Court held that petitionerprima facie made out a case against the respondent-DESU for illegal disconnection of electricity. He also found balance of convenience in favour of thepetitioner. But surprisingly after holding prima fade case in favour of thepetitioner still imposed the condition for restoration. The learned Trial Courtonly relying on the statement of two of DESU officials passed the orderwhich on the face of it is not sustainable. He ought to have the view ofboth sides. In face of these disputed facts and particularly when he was yetto determine as to how much amount was actually payable he should nothave directed the petitioner to deposit 50% of the impugned demand, whenthe impugned demand on the face of it was not sustainable and had yet to beascertained. ( 15 ) SO far as the Additional District Judge s order is concerned, he hasnot dealt within these aspects at all. By the impugned order the Addl. Distt. Judge did not deal with the question raised before him. According tohim it was no fun to order for restoration. To my mind, it is nothing butnon-application of mind. By saying so the Additional District Judge fell ingrave error. The point at issue before him was whether the defendant shouldrestore the electricity supply to the petitioner with condition as imposed bythe Trial Court or without condition. According tohim it was no fun to order for restoration. To my mind, it is nothing butnon-application of mind. By saying so the Additional District Judge fell ingrave error. The point at issue before him was whether the defendant shouldrestore the electricity supply to the petitioner with condition as imposed bythe Trial Court or without condition. As already pointed out above, the Trialcourt had held that the case prima facie has been made out by the petitionerherein and plaintiff before the Trial Court and the balance of convenience wasalso ill favour of the petitioner. To my mind, when the Trial Court had heldso, the Additional District Judge could not have observed that there was no funin restoring electricity connection. Since the respondent has not compliedwith statutory requirement of serving show cause notice before disconnectingthe electricity, to my mind, this is a clear violation of law, coupled with thefact that theft and misuse have yet not been proved, the Court below couldnot have imposed any condition while directing the respondent to restore theelectricity of 1 K. W. As regards the revised demand raised the same on theface of it is doubtful and yet to be determined, hence for this reason also nocondition could be imposed. ( 16 ) I, therefore, set aside the order of the Additional District Judge andmodify the order of the learned Sub Judge wherein he imposed the conditionof deposit of 50% amount and for 50% guarantee before restoration ofelectricity. By modifying this order I direct that the electricity connection1 KW at the suit premises be restored immediately, without any condition.