North Delhi Power Ltd. vs Sham Deo Shah

Kailash Gambhir, J.

C.M. No. 5551/2006 (Exemption)

Allowed, subject to all just exceptions.

Application stands disposed of accordingly.

RFA No. 246/2006 and C.M. No. 5550/2006 *

1 By this appeal filed u/s 96 read with Order 41 of Code of Civil Procedure, 1908, the Appellant seeks to set aside the judgment and decree dated 20.02.2006 passed by the Court of learned ADJ, Delhi whereby the suit was decreed in favour of the Respondents and against the Appellant.

Brief facts of the case relevant for deciding the present petition are that an inspection was carried out on 13.3.2004 on the premises of the Respondent and a case of DAE was made out against him. Thereafter, a speaking order was passed against the Respondent and an electricity bill to the tune of Rs. 12,62,323.25 was raised. The Respondent filed a civil suit against the said order which vide judgment and decree dated 20.2.2006 was decreed in favour of the Respondent and against the Appellant. Feeling aggrieved with the same, the Appellant has preferred the present appeal.

Mr. Vikram Nandrajog, counsel appearing for the Appellant states that the learned trial court has returned the findings on Issues No. 1 and 2 in favour of the Appellant/Defendant and, therefore, the Appellant succeeded so far Issues No. 1 and 2 are concerned. Counsel further submits that the said finding on Issues No. 1 and 2 clearly proves that the hole was created by the Respondent-Plaintiff in the electric meter through which the Respondent was manipulating the meter reading. He further submits that so far the findings on Issue No. 3 are concerned, the same are perverse and illegal on the very face of it, as the learned trial court while deciding the said issue placed reliance on the Notification dated 31st March, 2004 which in fact was not even born on the date of inspection i.e. on 13th March, 2004.

Refuting the submissions made by the counsel for the Appellant, the counsel for the Respondent supports the judgment passed by the court below.

I have heard learned Counsel for the parties.

It is not in dispute between the parties that an inspection was carried out by the Appellant in respect of K No. 43200127886 installed at premises bearing Khasra No. 18, Village Ghogha, Delhi on 13.3.2004. A case of Dishonest Abstraction of Energy (DAE) was made out against the Respondent and a speaking order dated 17.5.04 was passed against the Respondent raising a bill of amount of Rs. 12,62,323.25 . On filing a civil suit against the said order, following issues were framed by the learned trail court:

Whether there was any hole in the electric meter installed at the premises of the Plaintiff? OPD

Whether only on the basis of hole in the electric meter, if any, the case of DAE can be initiated without checking the internal status of the meter? OPP

Whether the Plaintiff is entitled to the decree of declaration, permanent and mandatory injunction, as prayed? OPD.

Relief.

The learned trial court while deciding issue No. 1 observed that the Respondent did not have any evidence to show that the inspection report dated 13.3.2004 was wrong and thus it was proved that there was a hole in the meter. Issue No. 2 was also decided in favour of the Appellant where the learned court observed that the hole was created deliberately for manipulating the consumption of electricity energy. The finding on Issues No. 1 and 2 are thus clearly in favour of the Appellant/Defendant and there is no challenge made by the Respondent/Plaintiff to the said findings. Hence, clearly the Appellant/Defendant succeeded in establishing the said issues, through which it was proved on record that the hole was deliberately created by the Respondent/Plaintiff through which the Respondent/Plaintiff could access the meter to manipulate the meter reading and in the absence of any challenge made by the Respondent/Plaintiff the said findings have attained finality.

However, coming to Issue No. 3, I find merit in the submission of the counsel for the Appellant. The finding on Issue No. 3 has gone against the Appellant-Defendant only on the ground that the Notification dated 31st March, 2004 was taken into consideration by the learned trial court while deciding the said issue in favour of the Respondent/Plaintiff. The said notification reads as under:

DEPARTMENT OF POWER NOTIFICATIONS

Delhi, the 31st March, 2004

No. F.11(93)/2003/Power/I/592-605.-In exercise of the powers conferred by Sub-section (2) of Section 135 of the Electricity Act, 2003 (36 of 2003) read with the Govt. of India, Ministry of Home Affairs Notification F.N. U-11030/2/2003/UTL dated the 20th February, 2004, the Lt. Governor of the National Capital Territory of Delhi, hereby designates, for a period of one year from the date of the issue of this notification, the technical officers of the rank of Manager/Executive Engineer and above in the departments dealing with distribution(district/zones), commercial and enforcement functions in BSES Yamuna Power Limited, BSES Rajdhani Power Limited and North Delhi Power Limited, as Authorized Officers for the purposes of Section 135 of the aforesaid Act, in the respective distribution areas of the said Companies in the National Capital Territory of Delhi.

Therefore, so far the finding on Issue No. 3 is concerned, the same is clearly perverse as the Inspecting Team conducted the inspection of the premises in question on 13th March, 2004, whereas the learned trial court has placed reliance on the aforesaid Notification dated 31st March, 2004, which came into force on 31st March, 2004. Notification in common English acceptation means and implies a formal announcement of a legally relevant fact and in the event of a statute speaking of a notification being published in the Official Gazette, the same cannot but mean a notification published by the authority of law in the Official Gazette. It is on formal declaration and publication of an order and shall have to be in accordance with the declared policies or in the event the requirement of the statute then in that event in accordance therewith. Subhash Ramkumar Bind @ Vakil and Another Vs. State of Maharashtra, . Hence a notification has a statutory force. The notification dated 31.3.2004 clearly states "...for a period of one year from the date of the issue of the notification...". It is a settled legal position that any statute or a notification that has a statutory force has prospective application and not retrospective unless there is an express stipulation or a clear intendment to the contrary. It will be pertinent here to refer to the recent judgment of the Apex Court in the case of Union of India (UOI) and Another Vs. Kartick Chandra Mondal and Another, where it was held that unless and until there is a clear intention expressed in the notification that it would also apply retrospectively, the same cannot be given a retrospective effect and would always operate prospectively. Hence, the learned trial court has committed grave illegality in taking the said notification into consideration and holding the inspection as a nullity. Invariably, the said Notification could not have been made applicable to the instant case when the inspection of the said premises was conducted on 13th March, 2004.

Hence, in the light of the foregoing, the findings on Issue No. 3 are accordingly set aside. The judgment and decree dated 20.02.2006 is set aside and the suit filed by the Plaintiff-Respondent is hereby dismissed and the appeal filed by the Appellant-Defendant is allowed in the above terms.

RFA No. 246/2006 and C.M. No. 5550/2006 stand disposed of accordingly.