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2007 DIGILAW 143 (DEL)

SANVIK ENGINEERS INDIA PVT. LTD. v. M. C. D.

2007-01-22

S.MURALIDHAR

body2007
JUDGMENT Dr. S. Muralidhar, J.- This writ petition filed on 5.10.1996 seeks direction to the Municipal Corporation of Delhi (MCD) to grant, sanction and energise a load of 21.26 K W in the name of the petitioner in their premises on the ground floor 17, Local Shopping Centre, Pushp Vihar, New Delhi. By an order dated 2.8.2006, the MCD was permitted to be substituted by B.S.E.S. Rajdhani Power Ltd. 2. The facts leading to the filing of the writ petition are that the land over which the property bearing No. 17, Local Shopping Centre, Pushp Vihar, New Delhi (hereafter the said property) was constructed was originally sold by the Delhi Development Authority (DDA) to M/s. Capricorn Industries Ltd., respondent No.2, for the purposes of construction of shops and offices. The DDA sanctioned the plan for construction of the building by respondent No.2. It granted on 6.8.1987 an occupancy certificate in respect of the said building certifying that the construction was in accordance with law. A temporary electricity connection was granted by the MCD. 3. The ground floor of the building was sold by way of three agreements dated 1.3.1988 to the petitioner, Mrs. Anu Chopra and Baby Sakshi Chopra respectively. By further agreements dated 29.3.1993. the petitioner purchased the rights, title and interest from Mrs. Anu Chopra and Baby Sakshi Chopra and consequently became the owner in possession in respect of the entire ground floor of the said property measuring 1607 square feet. 4. For the grant of a temporary connection and a permanent connection for the ground floor portion purchased by it, the petitioner paid to respondent No.2 certain sums of money. Simultaneously, same time around October 1991 the petitioner also made an application to the Delhi Electricity Supply Undertaking (DESU) (whose successor in interest is B.S.E.S. Rajdhani Power Ltd.) for grant of a permanent electricity connection in its name. It is stated that the respondent No. 2 did not take steps to provide copies of the electricity bills that had been raised by DESU on respondent No.2, which were required by the DESU for granting permanent connection to the petitioner. The petitioner states that it commenced use of the property on 29.11.1991. Since it had no permanent connection of electricity or even a temporary connection, it began using generators to meet its requirements. 5. On 1.9.1992 a raid was conducted on Plot Nos. The petitioner states that it commenced use of the property on 29.11.1991. Since it had no permanent connection of electricity or even a temporary connection, it began using generators to meet its requirements. 5. On 1.9.1992 a raid was conducted on Plot Nos. 16 and 17, Local Shopping Centre, Pushp Vihar, New Delhi, both of which were constructed by respondent No.2 herein. The circumstances under which the raid was conducted is explained in the counter affidavit dated 26.2.1997 filed by DESU in these proceedings. Para 2 of the said affidavit reads as under: "That, when the building was under construction, the party, respondent No.2, had a running consumption bill of Rs. 2,82,108.05. Besides the above, a raid was conducted on 1.9.1992 by the Vigilance Team at Plot Nos. 16 and 17, Local Shopping Centre, Madangir, New Delhi. It was found that the two meters installed at the premises were burnt and the consumer was consuming electricity directly from the mains. As such, the consumer was liable to pay the actual consumption charges i.e. Rs. 2,82,108.05 as well charges on account of theft of electricity. As against the consumption charges, respondent No.2 made a request to the Director (EDP) that he be allowed to make payment in two instalments, which request was granted but the respondent No.2 made the payment of Rs. 1,42,000.00 on 3.5.1993 out of Rs. 2,82,108.05 of the consumption bill. Another theft bill for a sum of Rs. 16,74,106.92 upto the due date and a sum of Rs. 17,09,768.87 after the due date was to be paid by the respondent No.2." 6. The petitioner has annexed to the writ petition a copy of the inspection report dated 1.9.1992. The said report states that when the inspection team visited both premises on 1.9.1992, it found that total connected load was 54.28 KW. The material portion of the said report reads as under: "4. In the premises two meters were found installed and both of them were burnt. 5. One of the two meters, M No. 4E 8805461 was totally burnt and glass was found missing. Two 1/2 seals were missing and the monogram of one existing 1/2 seal was not clear. The service cable, which was feeding to this meter found disconnected from the feeder pillar as well as from meter terminal. 6. Other Meter No. 4C-958206 was also found burnt and smoky. Reading was not visible. Two 1/2 seals were missing and the monogram of one existing 1/2 seal was not clear. The service cable, which was feeding to this meter found disconnected from the feeder pillar as well as from meter terminal. 6. Other Meter No. 4C-958206 was also found burnt and smoky. Reading was not visible. The seals of this meter were of MDI monogram. When this meter got issued by the inspector needs immediate confirmation as dial number, year of sealing the meter is not clearly visible. The case regarding the seals will be decided. The service line which was earlier feeding to Meter No. 4C-958206 found disconnected from the meter terminal but one phase of this cable was directly connected to consumer wiring along with neutral wire and the same phase wire and neutral wire were also connected with the feeder pillar connections. Hence the consumers were using the supply without metering after directly connecting with cable connection directly from DESU system. It means consumer is doing direct theft of electricity." (Emphasis supplied) 7. The inspection report also refers to the fact that a photographer was arranged to take photographs of the site. In the report, the joint team recommended "disconnecting the supply as well as removal service line for handing over to the police immediately". As recommended by the inspection team an FIR came to be lodged for theft of electricity, which resulted in a criminal case being registered against the petitioner herein. This criminal case ultimately ended in the acquittal of the petitioner. 8. The DESU in its said counter affidavit further explained that unless the outstanding amount of both the actual consumption charges as well as the theft bill were paid "by the individual seeking connections in the building, fresh connection cannot be granted". It was also stated in the said counter affidavit as under: "Merely because respondent No.2 is giving a no objection in favour of the petitioner does not give him a right to get a permanent connection as the respondent No.2, who was the owner of the building and from whom the building has allegedly been purchased by the petitioner, has to clear the dues of DESU and until and unless DESU dues are cleared, no permanent connection can be allowed." 9. Mr. Mr. Arvind Nigam, learned Counsel for the petitioner submits that petitioner has maintained throughout that it has nothing to do with the theft of electricity, which even as per the inspection report, related entirely to plot No. 16 Local Shopping Centre and not Plot No. 17 in which the petitioner is occupying the ground floor. In particular it is pointed out that the inspection report talks of 2 meters. Meter No. 4E 8805461 pertained to plot No. 17 and in respect of this meter the service cable was found disconnected "from the feeder pillar as well as from the meter terminal". As regards the other Meter No. 4C-958206 pertaining to plot No. 16, while the service line was found disconnected from the meter terminal, "one phase of this cable was directly connected to consumer wiring along with neutral wire and the same phase wire and neutral wire were also connected with the feeder pillar connection". It is submitted that the so-called theft of electricity pertains only to the consumers in plot No. 16. It is urged that the statement in the said report which reads: "Hence the consumers were using the supply without metering after directly connecting with cable connection directly from DESU system.......", can only refer to those consumers occupying plot No. 16. The submission is that since the petitioner was not in plot No.16 at all, the alleged theft of electricity cannot be attributed to it. Counsel for the petitioner further points out that the photographs in question also do not indicate that there were any cable leads going from the meter at plot No. 16 into the premises at plot No. 17. He further submits that petitioner is accordingly not liable to pay the theft bill and such payment cannot be made a precondition for grant of a permanent electricity connection to the petitioner. 10. On behalf of respondent No.1 B.S.E.S. Rajdhani Power Ltd., Mr. Jayant Nath, Senior Advocate first submits that the petitioners case that it commenced occupying the premises in question only on 26.11.1991, is not substantiated by any independent material. He submits that it is inconceivable that having purchased the said property in 1988 itself, the petitioner did not occupy it till 1991. He casts doubts on whether the petitioner was using any generator as stated by it since again there was nothing to substantiate this statement as well. He submits that it is inconceivable that having purchased the said property in 1988 itself, the petitioner did not occupy it till 1991. He casts doubts on whether the petitioner was using any generator as stated by it since again there was nothing to substantiate this statement as well. As regards the inspection report of 1.9.1992 and the photographs taken at that point in time, Mr. Nath does not dispute that there is no specific mention in the said report of the theft by the petitioner. He also does not dispute that the photographs do not show that the wires from the meter in Plot No. 16 were connected to any of the installed equipments in the premises of the petitioner in plot No. 17. However, he refers to Annexure R-2 to an additional affidavit dated 27.5.1997 filed by DESU, which is a typed copy of the "record of inspection" prepared on the same date i.e. 1.9.992. This contains the signatures of the inspection team. It indicates that there were four users at Plot Nos. 16-17 Local Shopping Centre: M/s. R.K. Associates, Gulcon Tech Services, M/s. Sanvik (the petitioner herein), and in the basement, M/s. House of Furniture. Mr. Nath submits that this record of inspection clearly names the petitioner, as indulging in theft of electricity and therefore the petitioner is liable to pay the theft bill. Mr. Nath submits that although the petitioner may have been acquitted by the Criminal Court that cannot determine whether in fact the petitioner indulged in theft since the standard of proof for the purpose of determining theft of electricity for the purposes of billing cannot be as high as that of a criminal case; it should proceed on preponderance of probabilities. He finally submits that the petitioner has not specifically challenged the theft bill and therefore the correctness of the theft bill ought not to be examined by the Court. 11. The principal issue in the present case is whether the petitioner is liable for theft of electricity and, consequently, is the B.S.E.S. Rajdhani Power Ltd. justified in not granting a permanent connection to the petitioner on that score. The record of inspection, a typed copy of which is produced as Annexure R-2, does not actually state that the petitioners equipments were connected to the meter at plot No. 16. The record of inspection, a typed copy of which is produced as Annexure R-2, does not actually state that the petitioners equipments were connected to the meter at plot No. 16. That vital piece of information is neither in the inspection report dated 1.9.1992, the portions of which have been extracted hereinabove, nor in the typed copy of the record of inspection. Admittedly, the photographs taken at the time of inspection also do not bear this out. Therefore, even if one were to accept the typed copy to be a true copy of the original [which must have been hand written but is unable to be produced by Respondent No.1], the record of inspection does not establish that the equipment in the premises of the petitioner at Plot No. 17 were connected to the meter at Plot No. 16. In fact the record of inspection probabilises the fact that the petitioner was probably running these equipments on its premises by using generators. 12. The petitioner in its rejoinder to DESUs additional affidavit dated 27.5.1997 has pointed out that respondent No.2, the previous owner, has in his affidavit disclosed the list of occupants of Plot Nos. 16 and 17. The petitioner was the only person who did not occupy premises in both Plot Nos. 16 and 17 whereas all others occupied premises in both the plots. As regards the criminal case, the judgment dated 2.8.2003 passed by the Metropolitan Magistrate in Case No. 496/2 arising out of FIR No. 442/1992 (State v. Vijay Chopra) indicates that after examining the evidence it came to the following conclusion: "It has also come on record that entrance of building Nos. 16 and 17 were separate. Therefore, there is no evidence that the supply of electricity, which was being used in the entire building was going in the portions belonging to Sanvik Engineering Pvt. Ltd or House of Furnishing. There is no evidence on record that members of the team had checked the fact that whether supply was particularly going to the portion of House of Furnishing and Mis. Sanvik Engineering Pvt. Ltd. on the date of raid. There is no evidence on record that members of the team had checked the fact that whether supply was particularly going to the portion of House of Furnishing and Mis. Sanvik Engineering Pvt. Ltd. on the date of raid. Even if it is accepted that PW-I Y.L. Madan had gone on dated 2.9.1992 for removal of case property and had checked the fact that as to whether supply was going to the entire building or not and had found that the supply was going to the entire building, it cannot be said that supply was being used by Sanvik Engineering Pvt. Ltd. and House of Furnishing because there is no evidence on record that these offices were running along with their businesses activities on the said date. Therefore, 1 am of the considered opinion that prosecution has failed to prove the fact that use of the energy as found by the members of the team on dated 1.9.1992 was being used by Sanvik Engineering Pvt. Ltd. and House of Furnishing either on dated 1.9.1992 or 2.9.1992 because there is no such evidence on record." (Emphasis supplied) 13. As regards the submission that the petitioners case of non-use of the premises till November, 1991 was unbelievable, it must be noticed that it is not the case of respondent No.1 that any bill raised on the premises at Plot No. 17 during this period remained unpaid. Therefore, it is difficult to appreciate how this issue is relevant for determining whether the petitioner indulged in theft of electricity from the meter at plot No. 16. It is for the respondent No.1 to positively prove this fact, which it clearly has failed to do. 14. The other submission of Mr. Nath that the theft bill has not itself been challenged by the petitioner has only to be stated to be rejected. It is not denied that non payment of the theft bill was the only reason for the petitioner not being granted a permanent electricity connection. Therefore, the petitioner is within its rights, and within the scope of present writ petition, to challenge this ground of rejection of the petitioners request for permanent electricity connection. 15. It is not denied that non payment of the theft bill was the only reason for the petitioner not being granted a permanent electricity connection. Therefore, the petitioner is within its rights, and within the scope of present writ petition, to challenge this ground of rejection of the petitioners request for permanent electricity connection. 15. On a consideration of the above facts and circumstances, and the evidence placed on record, the only probable conclusion that can be drawn is that respondent No.1 has failed to show, even on a preponderance of probabilities, that the petitioner indulged in any theft of electricity from either the meter installed at plot No.16 or at Plot No. 17. In that view of the matter the petitioner cannot be made liable for the theft bill. 16. The theft bill of Rs 16.74 lakh was, pursuant to what transpired in the course of these proceedings on 13.5.1997 and 26.5.1997, bifurcated and a sum of Rs. 7,60,597.84 shown due from the petitioner. In the absence of any proof of theft of electricity by the petitioner, the said theft bill in the sum of Rs. 7,60,597.84 against the petitioner is hereby quashed. 17. Lastly, the question of the consequential relief that is required to be granted to petitioner. During the pendency of this petition by an Order dated 2.8.2006, the electricity connection to the petitioner was directed to be reenergised. The Court is informed that this order has been complied with. Therefore as on today, the petitioner has an electricity connection at its premises. It is also stated that as regards actual consumption charges pertaining to plot No. 17, respondent No.2 had already paid to DESU a sum of Rs. 1,42,000/- pursuant to an order of this Court. The petitioner was directed to deposit it sum of Rs. 1,35,000/- towards this balance in regards the bill of actual consumption, which it has. 18. While Mr. Nigam submits that even this amount of Rs. 1.35 lakh is refundable to petitioner, Mr. Jayant Nath places reliance upon the judgment of this Court in Madhu Garg v. NDPL, 124 (2005) DLT 688=2006 (IV) AD 667 Del., to contend that the succeeding owner of the premises would in any way be liable for the electricity dues ratable to the premises, even if it is on account of misuser of electricity by the preceding owner. Jayant Nath places reliance upon the judgment of this Court in Madhu Garg v. NDPL, 124 (2005) DLT 688=2006 (IV) AD 667 Del., to contend that the succeeding owner of the premises would in any way be liable for the electricity dues ratable to the premises, even if it is on account of misuser of electricity by the preceding owner. This Court finds the stand of the respondent on this count to be correct. It is accordingly held that the petitioner would not be entitled to seek a refund of Rs. 1,35,000/- on account of the above settled position in law. 19. Accordingly, the writ petition is allowed with the following directions: (a) The respondent will treat the electricity connection given to the petitioner already as a permanent electricity connection and raise bills on that basis. The petitioner will continue paying the current charges without default. (b) The petitioner is not liable for any theft of electricity as alleged by respondent No.1 on the basis of the inspection report of 1.9.1992. Consequently the theft bill in the sum of Rs. 7,60,597.84 raised against the petitioner is hereby quashed. (c) The sum of Rs. 1.35 lakh already paid by the petitioner to respondent No.1 will be taken as a full discharge in any previous liability in relation to the petitioners premises at Plot No. 17, Local Shopping Centre, Pushp Vihar as evidenced by the bill of actual consumption in the sum of Rs. 2,82,108.25 as on 1.9.1992. No further amount will be demanded from the petitioner on this ground. (d) The respondent will pay to the petitioner within four weeks from today, the costs of this petition which is fixed at Rs. 10,000/-. 20. The writ petition is allowed with the above directions. Writ Petition allowed.