PER DR. B.C. GUPTA, MEMBER

RP/568/2007

          This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 13.12.2006, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in Appeal No. A-1124/2006, “BSES Yamuna Power Limited vs. Bina Rani Gupta” vide which, while dismissing the appeal in limini, the order dated 08.07.2005, passed by the District Forum in consumer complaint No. 183/2005, allowing the said complaint, was upheld.

2.       The respondent/complainant did not enter appearance despite publication of the notice in the newspapers and hence was proceeded against exparte. 

3.       The facts of the case as stated in the consumer complaint filed by the Bina Rani Gupta are that she purchased property No. L-37, Naveen Shahdara, Delhi vide sale-deed dated 29.08.2003, alongwith electricity connection which had been obtained for domestic purpose.  It is alleged that the opposite party (OP), or its predecessor-in-interest, Delhi Vidyut Board (DVB) was raising electricity bills at correct tariff initially, but later on started raising the bills on higher tariff, including misuse charges without sending any show-cause notice etc.  It was further alleged that the OP had included the arrears of the amount of some cheques, which had bounced more than two years ago.  There was, therefore, deficiency in service on their part.  The complainant filed the consumer complaint in question, seeking directions to the OP to withdraw the mis-use charges/late payment surcharge and to refund the amount paid in excess to the OP alongwith interest.  A direction was also sought to get a complete statement of account and withdraw all demands of arrears, which were not included immediately after the said cheques were bounced.  In their written statement filed before the District Forum, the OP, BSES Yamuna Power Limited stated that the misuse charges were levied in the year 1994 after issue of a proper show-cause notice. The electric connection had been sanctioned in the name of Rakesh Kumar Gupta and hence, the present complainant did not have the locus standi to file the complaint.  Since the misuse charges were levied in the year 1994, the complaint was barred by limitation u/s 24A of the Act.  The OP had privity of contract with the previous owner only.  The OP requested that the complaint should be dismissed. 

4.       The District Forum after taking into account the averments of the parties, stated that the OP had filed on record the bounced cheques for which credit was given earlier, but the same was withdrawn when the cheques got bounced.  There was one cheque dated 10.01.2004 for ₹18,890/- and it was dishonoured on 16.01.2004.  The other cheque was dated 20.08.2004 for ₹10,500/- and was dishonoured on 23.08.2004.  It was clear, therefore, that these cheques were issued during the period, the complainant was the owner, as the property had been purchased on 29.08.2003.  The District Forum held, however, that the complainant was not liable to pay the dues for the previous owner and they gave the following directions vide impugned order:-

“i)        Remove the  misuse charges from the bills of the complainant from the date of purchase of the property by the complainant, i.e., 29.08.2003 and not to include the amount of bounced cheques in the bills of the complainant, and revise the bill accordingly as per rule;

ii)         Pay ₹1000/- as compensation for harassment and mental agony and ₹500/- as cost of litigation to the complainant; and

iii)        Adjust the amount paid in excess, if any, by the complainant against future bills if it is upto ₹2000/- and refund the same if it exceeds ₹2,000/-.”

5.       Being aggrieved against the said order of the District Forum, the petitioner/OP filed an appeal before the State Commission which was dismissed vide impugned order.  The State Commission observed that all previous bills were payable by the previous owner and hence, the OP could not have charged the amount in question, from the present owner.  Being aggrieved against the said order of the State Commission, the OP is before this Commission by way of the present revision petition.

6.       The learned counsel for the petitioner argued that the misuse charges were levied on the previous owner in the year 1994, because the connection meant for domestic purpose was being used for commercial purpose.  The learned counsel has drawn attention to an order passed by the Hon’ble High Court of Delhi in “Madhu Garg & Anr. vs. North Delhi Power Limited” [LPA 223-24/2006 decided on 22.03.2006] [129(2006) DLT213], wherein it was held that a person in occupation of the premises was liable to pay the arrears of the previous bills.  The learned counsel has also drawn attention to an order of Hon’ble Supreme Court in “Paschimanchal Vidyut Vitran Nigam Ltd. & Ors. vs. DVS Steels and Alloys Pvt. Ltd. & Ors.” [(2009) 1 SCC 210], in which it was held that when the purchaser of a premises approaches the electricity distributor, seeking a fresh electric connection, the distributor can stipulate the terms, subject to which, the fresh connection is issued.  It could be stated in the terms and conditions that the old arrears due from the previous owner shall be payable.  The learned counsel has also drawn attention to an order passed by the Delhi High Court in “BSES Rajdhani Power Limited vs Saurashtra Color Tones Pvt. Ltd. & Anr.” [LPA 2725/2005 decided on 02.07.2009] and an order passed by this Commission in “BSES Rajdhani Power Ltd. vs. M/s. Saraf Project Pvt. Ltd.” [FA No. 84/2009 decided on 07.08.2009], in support of his arguments.

7.       We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

8.       A perusal of the material on record indicates that the property in question was purchased by the complainant/respondent vide sale-deed dated 29.08.2003.  A perusal of the complaint itself indicates that the complainant has not objected to the payment of arrears which were due from the previous owner, although they have stated that the misuse charges could not be levied, without issuing a show-cause notice.  In reply, the OP has clarified that the misuse charges were levied in the year 1994 after giving show-cause notice, because a domestic connection was being used for commercial purpose.  It is also made out from the order of the District Forum that after the property had been purchased by the present complainant, two cheques dated 10.01.2004 and 20.08.2004 were sent to the petitioner/OP for payment although the said cheques bounced.  It is not clear, therefore, that how the State Commission has concluded that the amount due from the previous owner was not payable by the present complainant.  In the absence of any averment to this effect, the consumer fora below could not have given a verdict that the amount due from the previous owner was not payable by the present owner.  In any case, the OPs have taken the stand in their reply before the District Forum that the connection had been sanctioned in the name of Rakesh Kumar Gupta and they had no privity of contract with the present complainant.  It is also not clear from the complaint whether the complainant got the connection transferred in their name and whether any terms and conditions were laid down by the Distributor at that time. 

9.         In the light of the discussion above, it is held that the orders passed by the State Commission and District Forum are perverse in the eyes of law, because they have based their verdict on certain facts which were not pleaded in the consumer complaint.  The orders passed by the State Commission and the District Forum are, therefore, set aside.  The revision petition is allowed and the consumer complaint stands dismissed.  There shall be no order as to costs.

RP/1654/2007

PER DR. B.C. GUPTA, MEMBER

          This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 13.2.2007, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in Appeal No. A-362/2005, “BSES Yamuna Power Limited vs. Modfab India (P) Ltd. & Anr.” vide which, while dismissing the appeal, the order dated 13.04.2005, passed by the District Forum in consumer complaint No. 606/2004, allowing the said complaint, was upheld.

2.       The facts of the case are that the complainant Modfab India Limited, applied for a 11 KVA electricity connection with Delhi Vidyut Board, the predecessor-in-interest of the BSES Rajdhani Power Limited, opposite party (OP).  The said connection was sanctioned and the complainant was asked to deposit a sum of ₹45,575/-, which was deposited on 03.05.2003.  However, the said electric connection was not released.  The complainant was told on 16.07.2004 that their file was not traceable.  The required documents were again supplied to the OP on 17.07.2004; but the connection was still not provided despite repeated visits.  The complainant filed the consumer complaint in question, seeking installation of the electric connection and to give compensation of ₹2 lakh for mental harassment etc. and also interest @18% p.a. on the amount deposited with the OP.

3.       The complaint was resisted by the petitioner/OP by filing a written statement before the District Forum in which they stated that there was already a meter installed in the said building in commercial category, with status ‘disconnected’; a new connection could not be released, therefore, in such a situation.

4.       The District Forum after taking into account the averments of the parties concluded that the petitioner/OP could not have refused to energise the connection after accepting the requisite fee.  The District Forum directed the petitioner/OP to energise the connection within 7 days of the complainant after completing the formalities.  A sum of ₹25,000/- as compensation for harassment and ₹2,500/- as litigation cost was also ordered to be paid.  Being aggrieved against the said order of the District Forum, the petitioner/OP filed an appeal before the State Commission and the said appeal having been dismissed vide impugned order, the petitioner/OP is before this Commission by way of the present revision petition. 

5.       The State Commission observed in their order that a new connection was applied in the name of M/s. Modfab India (P) Ltd., a partnership firm, and one of the partners of the said firm was the son of the holder of the electricity connection.  However, the new connection applied was for a commercial purpose and was an independent connection and hence, had no relevance with the earlier electric connection, lying disconnected.  The State Commission also observed that even if, there were some outstanding dues against the earlier connection, the same could be recovered from the persons in whose name, the said connection was sanctioned.

6.       The respondent/complainant did not enter appearance despite publication of the notice in the newspapers and hence, was proceeded against exparte. 

7.       During arguments before us, the learned counsel for the petitioner has drawn attention to an order passed by the Hon’ble High Court in “Madhu Garg & Anr. vs. North Delhi Power Limited” [LPA 223-24/2006 decided on 22.03.2006] [129(2006) DLT213], wherein it was held that the previous dues could be recovered from the new owners.  The learned counsel has also drawn attention to an order passed by the Hon’ble Supreme Court in “Paschimanchal Vidyut Vitran Nigam Ltd. & Ors. vs. DVS Steels and Alloys Pvt. Ltd. & Ors.” [(2009) 1 SCC 210], in which, it was held that when the purchaser of a premises approaches the electricity distributor, seeking a fresh electric connection, the distributor can lay down the terms, subject to which the fresh connection is issued.  It could be stated in the terms and conditions that the old arrears due from the previous owner shall be payable.  The learned counsel has also drawn attention to an order passed by the Delhi High Court in “BSES Rajdhani Power Limited vs Saurashtra Color Tones Pvt. Ltd. & Anr.” [LPA 2725/2005 decided on 02.07.2009] and an order passed by this Commission in “BSES Rajdhani Power Ltd. vs. M/s. Saraf Project Pvt. Ltd.” [FA No. 84/2009 decided on 07.08.2009], in support of his arguments.

8.       We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

9.       In the order passed by the Hon’ble Delhi High Court in “Madhu Garg & Anr. vs. North Delhi Power Limited” (supra), it has been stated as follows:-

“In our opinion, there is no distinction between the purchaser of a premises who was aware that there were outstanding electricity dues against the previous owner/tenant, and one who was not aware of it.  In either case, the dues have to be paid by the new owner/occupant before supply can be continued/restored.  This is because of the statutory provision contained in Clause 2(iv) of the General Conditions of Supply which has been quoted above.”

10.     The Hon’ble Delhi High Court referred to an earlier decision of the Supreme Court in “Isha Marbles vs. Bihar State Electricity Board” [(1995) 1 SCR 847], holding that the facts in that case were distinguishable, because there was no statutory provisions in that case, which empowered the authorities to refuse supply of electricity because of outstanding dues against the previous owner.  However, in the case, “Madhu Garg & Anr. vs. North Delhi Power Limited” (supra), there were clear statutory provisions, embodied in the general conditions of supply, to that effect.

11.     In the case “Paschimanchal Vidyut Vitran Nigam Ltd. & Ors. vs. DVS Steels and Alloys Pvt. Ltd. & Ors.” (supra), it has been stated as follows:-

“……  When the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity. It can stipulate as one of the conditions for supply, that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the electricity supply is restored to the premises or a fresh connection is provided to the premises. If any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfilment of the requirements of such rules and regulations. If the rules are silent, it can stipulate such terms and conditions as it deems fit and proper to regulate its transactions and dealings. So long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable, courts will not interfere with them.

A stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary……”

12.     In the case in hand, the complainant deposited a sum of ₹45,575/- with the OP as per the demand raised in their letter dated 01.05.2003.  The said fact has been admitted by the OP in their written statement before the District Forum.  Going by the spirit of the order passed by the Hon’ble Supreme Court in “Paschimanchal Vidyut Vitran Nigam Ltd. & Ors. vs. DVS Steels and Alloys Pvt. Ltd. & Ors.” (supra), it was the duty of the OP Distributor to explain the entire position with regard to the previous connection or its dues to the complainant, before accepting any amount of money from him.  On the other hand, the OP Distributor quietly accepted the said amount, but did not release the connection on the ground that the previous connection for the said premises had been disconnected for non-payment of outstanding dues.  So much so, that more than one year afterwards, i.e., on 16.07.2004, the OP told the complainant that his file had been misplaced and requested the complainant to give the necessary documents again which were submitted on the very next date, i.e., 17.07.2004.  This kind of conduct shown by the OP Distributor leads to the conclusion that there is definitely a deficiency in service on their part, vis-à-vis, the complainant. 

13.       In the light of the discussion above, it is held that there is no infirmity, illegality or jurisdictional error in the orders passed by the Consumer Fora below.  This revision petition is, therefore, dismissed and the orders passed by the consumer fora below are upheld.  There shall be no order as to costs.