Research › Search › Judgment

Delhi High Court · body

2007 DIGILAW 1783 (DEL)

RADHEY SHYAM v. N. D. P. L.

2007-09-10

T.S.THAKUR, VEENA BIRBAL

body2007
JUDGMENT T.S. Thakur, J. (Oral)-Issue rule. 2. Mr. K. Datta and Mr. Navin Chawla accept notice on behalf of the respondents. With consent, the petitions are heard for final disposal. 3. Aggrieved by a bill for payment of Rs. 10,20,626/ - raised against her by the respondent, the petitioner in W.P. (C) 6630/2007 filed W.P. (C) 14772/2006 which was heard and eventually disposed of by a Single Judge of this Court by an order dated 25th September, 2006. Relying upon the decision of the Supreme Court in Transmission Corporation of A.P. Ltd. & Ors. v. M/s. Sri Rama Krishna Rice Mill, II (2006) SLT 723=11 (2006) CLT 75 (SC)= AIR 2006 SC 1445 , the Court held that a right of cross-examination was not inbuilt in the adjudicatory process before the Adjudicating Authority. The Adjudicating Authority was, however, duty-bound to examine the request of a consumer for permission to cross-examine the witness and pass a reasoned order on the same if the request was being rejected. The petition was with those observations partially allowed, the impunged bill set aside and the matter remitted back to the Assessing Officer with directions. 4. Pursuant to the above order the assessing/ adjudicating officer has passed a fresh order dated 7th November, 2006 received by the petitioner in March, 2006 whereby he has reaffirmed the demand raised earlier. Aggrieved, the petitioner in W.P. (C) 6630/2007 has filed the present writ petition for a writ of certiorari quashing the demand as also the speaking order passed by the Assessing Officer. The petitioner has, in addition, challenged the constitutional validity of Regulation 53(IV) and Annexure XIII of the Delhi Electricity Supply Code and Performance Standards Regulations, 2007. The provisions of Regulation 26(IV) of the Delhi Electricity Regulatory Commission (Performance Standards - Metering and Billing) Regulations, 2002 and the LDHF formula mentioned in the Tariff Order, 2005-06 have also been assailed by the petitioner as ultra vires of Sections 126 and 154(5) of the Electricity Act, 2003. 5. In W.P. (C) 6491/2007, the petitioner has similarly assailed the vires of the provisions mentioned above and challenged a demand for a sum of Rs. 1,52,165/- raised against him on account of the alleged theft of electric energy. 6. Appearing for the petitioner, Mr. A.K. Gupta made a short submission in support of the petitions. 5. In W.P. (C) 6491/2007, the petitioner has similarly assailed the vires of the provisions mentioned above and challenged a demand for a sum of Rs. 1,52,165/- raised against him on account of the alleged theft of electric energy. 6. Appearing for the petitioner, Mr. A.K. Gupta made a short submission in support of the petitions. He argued that the Assessing/Adjudicating Officers had failed to comply with the directions implicit in the observation made by this Court in the previous round of litigation between the petitioner in W.P. (C) 6630/2007 and the respondent. He submitted that "I after the matter was remanded back to the Adjudicating Officer, the petitioner in W.P. (C) 6630/2007 had specifically prayed for an opportunity to cross-examine the members of the inspecting team who had reported the alleged theft against the petitioner. He drew our attention to para 10 of the reply in which the said request was made in the following words: "That I also want to cross-examine the members of the Inspecting Team who have alleged allegations against me. Each and every allegations of theft alleged by the team is disputed. The inspection team has mentioned the wrong connected load and has falsely mentioned about the tampering of the seals and the meter. I want to cross-examine the Inspecting Team on the above aspect of the case to defend myself against the subject show-cause notice. I am not given the opportunity to cross-examine; the same shall be against the principles of natural justice. I have not committed any theft of electricity." 7. Mr. Gupta submitted that although the request for an opportunity to cross-examine the members of the inspecting team was made in specific words and although this Court had in the previous round of litigation clearly observed that once such a request was made, the Assessing/ Adjudicating Officer was duty-bound to pass a reasoned order on the same in case the request was being rejected, the Adjudicating Authority had, in the instant case, failed to do so. He submitted that the Adjudicating Authority had proceeded entirely on the assumption that the report regarding theft was factually correct. The fact of the matter, according to Mr. Gupta, was that the report of the Inspecting Team was factually incorrect which aspect could be brought out more effectively in case the members of the Inspecting Team were allowed to be cross-examined. The fact of the matter, according to Mr. Gupta, was that the report of the Inspecting Team was factually incorrect which aspect could be brought out more effectively in case the members of the Inspecting Team were allowed to be cross-examined. He placed reliance upon the decision of the Supreme Court in Transmission Corporations case (supra) and urged that even when the right of cross-examination may not be inherent in the process of adjudication by the authority yet the moment a request for cross-examination is made, the Adjudicating Authority was duty-bound to address itself to that request and either grant the same or pass a reasoned order, if the request was being declined. The failure of the Adjudicating Authority in the instant case to do so, argued Mr. Gupta, renders the impugned order unsustainable. 8. Mr. Gupta further submitted that even the petitioner in W.P. (C) 6491/2007 had made a similar request for cross-examination as was evident from para 4 of the reply filed by him which was in the following words: "I want to cross-examine the Inspecting Team because the allegations levelled by the Inspecting Team are totally wrong and false." 9. On behalf of the respondents, it was per contra argued that since the right to cross-exaine the witnesses was not inherent in the process of adjudication before the departmental authority, any such request ought to have been more prominently and vigorously made before the Adjudicating Authority rather than making the same in a subdued form as was the position in the instant case. Alternatively, he submitted that civil liability of a consumer can be determined by the Special Court in terms of Section 154(5) of the Electricity Act, 2003 and that any payment made by the consumer in exces of the liability so determined, could be refunded by the respondent with interest at the Reserve Bank of India rates in terms of Subsection (6) to Section 154 (supra). He submitted that since according to the petitioner, prosecution proceedings has already been launched against the petitioner in which the petitioner claims to have deposited a sum of Rs. 3,00,000/- pursuant to the interim order passed by the Competent Authority while granting bail to the petitioner, the issue as to whether the liability has been rightly determined could be left open for determination by the Special Court in terms of the above provisions. 10. 3,00,000/- pursuant to the interim order passed by the Competent Authority while granting bail to the petitioner, the issue as to whether the liability has been rightly determined could be left open for determination by the Special Court in terms of the above provisions. 10. We have given our careful consideration to the submissions made at the Bar and perused the record. The legal position as regards the right of cross-examination of the witness is, in our view, well settled by the decision of the Supreme Court in Transmission Corporations case (supra). Although the consumer does not have an inherent right of cross-examining the witnesses including the members of the Inspecting Team, the Court has in the said case recognised the right of a consumer to make a request which must in turn be examined and dealt with by the Adjudicating Authority by passing an appropriate speaking order in case the request is being rejected. There is no gainsaying that in both the cases the consumer-petitioners before us had made specific requests before the Adjudicating Authority for permission to cross-examine the members of the Inspecting Team. While the petitioners may not have had any vested right to cross-examine the members of the Inspecting Team, the least which the Adjudicating Authority was supposed to do was to examine the said request and pass an appropriate speaking order why the request was being rejected. The impunged order passed by the Adjudicating Authority is, however, blissfully silent on that aspect. There is not even a murmur in the orders about the prayer made by the petitioners for permission to cross-examine the witnesses. There is, thus, a complete non-application of mind on the part of the Adjudicating Authority insofar as the said prayer is concerned. Consequently, the order passed by the respondents and the demands raised under the same are rendered wholly unsustainable. The fact that the respondents have instituted prosecution proceedings against one of the petitioners is, in our view, wholly inconsequential insofar as the validity of the demand raised by the respondents in terms of the impugned order is concerned. Consequently, the order passed by the respondents and the demands raised under the same are rendered wholly unsustainable. The fact that the respondents have instituted prosecution proceedings against one of the petitioners is, in our view, wholly inconsequential insofar as the validity of the demand raised by the respondents in terms of the impugned order is concerned. So long as the respondents are enforcing the orders passed by them and insisting on the payment of the amount demanded under the same, the petitioners would have a right to have the legality of the said order determined in these proceedings regardless of the fact that the special Court could, in terms of Section 154(5), also examine the extent of the civil liability of the consumer. 11. Learned Counsel for the petitioner submits that insofar as petitioner in W.P. (C) 6630/2007 is concerned, she has already deposited a sum of Rs. 3,00,000/- towards a total payment of Rs. 10,20,626/-, that amount, according to learned Counsel, may represent more or less the actual consumption charges demanded from the respondent, the balance amount being only in the nature of penalty. In the circumstances, therefore, we do not see any reason to direct any further deposit by the petitioner in W.P. (C) 6630/2007. Insofar as the petitioner in W.P. (C) 6491/2007 is concerned, learned Counsel argued that out of a total amount of Rs. 1,52,165/-, the petitioner is ready and willing to deposit a sum of Rs. 30,000/- to show his bona fide. 12. In the result we allow these petitions but only in part and to the following extent: (i) The orders impugned and the demands raised by the respondents against the petitioners on the basis of the said orders are hereby quashed. (ii) The Adjudicating/Assessing Officer shall pass a fresh order on the subject after considering and appropriately dealing with the request of the petitioner for permission to cross-examine the members of the Inspecting Team. In order to avoid any confusion and consequent delay and complication, learned Counsel for the petitioners may file a specific application in both the cases indicating the names and the particulars of the members of the Inspecting Team whom he wants to cross-examine and also the reason why such a cross-examination is necessary. (iii) The petitioner in W.P. (C) 6491/2007 shall deposit a sum of Rs. (iii) The petitioner in W.P. (C) 6491/2007 shall deposit a sum of Rs. 30,000/- with the respondents pending final adjudication of the liability by the Assessing/ Adjudicating Authority. (iv) The challenge to the vires of the provisions of the Act has not been examined by us and all questions relating to the said aspect shall remain open. (v) This order shall not prevent the respondents from taking action otherwise permissible in law for the alleged misuser, if any, of the electric connection for purposes not permitted under the sanction order. (vi) No costs. (vii) Order dasti to both the parties. Petitions allowed.