ORDER

16.11.2023

Sh. Sanjay Kumar, President

1. A complaint filed by Smt. Santosh Gupta (hereinafter referred to as “complainant”) under section 12 of Consumer Protection Act 1986 (hereinafter referred to as “Act”) against NDPL (hereinafter referred to as “OP”).

2. In brief facts of the present case are that complainant is a consumer of the respondent vide request no.0809771050. It is stated that complainant purchased the above said property in September, 2007 and thereafter the property was lying locked. It is further stated that now the complainant and her family members decided to start residing in the said property and the complainant applied for a new electricity connection having aforesaid request number. It is further stated that complainant shocked when she received a Dues Intimation Letter dated 29.05.2009 against the said request number. As per the said Dues transfer letter Smt. Kesri Devi R/o H.No.171 of the same locality having dues of Rs.41,953.26 and the said dues transferred in the name of complainant without verifying the real facts.

3. It is stated that the complainant has no concern with said Smt. Kesri Devi or property bearing No. 171, Block-I, JJ Colony, Shakurpur, Delhi and the said transfer of dues upon the complainant is illegal, unjustified and arbitrary. It is further stated that complainant immediately visited the office of respondent and the respondent’s officials are not ready to clarify the complainant as to why an amount of Rs.41,953.26/- have been surprisingly upon the complainant. It is stated that complainant reserves her right without prejudice to amend her complaint if any clarification is brought forward by the respondent by way of filling their reply as till date the complainant is unaware as to why the impugned amount of Rs.41,953.26 has been transferred upon the complainant.

4. It is stated that respondent without any justified reason and verifying the true facts cannot transfer the dues of another person upon the complainant and the same is liable to be set aside as there was no reason as to why this amount has been transferred upon the complainant. It is further stated that no procedure provided under DERC and Indian Electricity Act & Rules have been followed by the respondent while raising this illegal demand. It is stated that complainant is ready and willing to pay the requisite charges for  installation of new meter and energize the same and also ready to  complete all the requisite formalities but the respondent is not ready to install a new connection without paying the illegal dues of Rs.41,953.26.

5. It is stated that the facts and circumstances mentioned above clearly states that the respondent is showing its monopolistic attitude and is very much deficient in providing the services to the complainant for which the complainant is suffering mental agony and harassment. It is further stated that the parties to the complaint resides and work for gain at Delhi and this Hon’ble Forum has got full  jurisdiction to entertain, try and decide this  present complaint. 

6. It is stated that complainant is seeking relief from this  Hon’ble Forum to remove  the dues transferred in the name of complainant vide Dues Intimation letter dated 29.05.2009, to install a new domestic electricity connection after completing requisite formalities, to pay the complainant the cost of litigation for Rs.5000/- as well as the compensation to the tune of Rs.10,000/- as complainant has been harassed by the respondent without any  cause, to pass such other  order/s which this Hon’ble Forum may deem fit and proper under the facts and circumstances of the case.

7. OP filed WS and taken preliminary objections that complainant has not come  before  this  Hon’ble Forum with clean hands as complainant has herself availed  the interim order for the restoration of disconnected  connection no.34300126938 on the payment of Rs.12,000/- on account as the connection was pertaining to same premises and on the  other hand he is disputing the dues  of the above said connection in the present complaint on the ground that the same does not  pertain to the premises on which  he applied for new connection which is self contradictory and transpires that the present complaint is devoid of any cause of action. The dues against connection no.34300126938 pertains to the same premises on which the complainant applied for new connection hence payable by the complainant as per law. It is stated that complainant availed ex parte interim order dated 11.08.09 for restoration of the connection no. 34300126938 without praying for the same in the contents of the complaint. Hence present complaint is not maintainable in the eyes of the law and exparte order is liable to be vacated.

8. On merit all the allegations made in the complaint are denied. It is stated that the complainant applied for  new connection vide request no.0809771050 but due to non fulfill of commercial formalities/payment of dues  new connection could not be released against his  request as per DERC Supply Code. It is pertinent to mention here that dues against disconnected connected  no.31300126938 were o/s on the same premises i.e. I-171, JJ Colony, Shakurpur, Delhi on which the complainant applied for new connection the dues are amounting to Rs.41953.26 and accordingly the complainant was intimated regarding the dues  on  premises vide letter dated 29.05.09 copy of same has already been annexed by the present complaint but instead of paying the same complainant filed the present complaint without any cause of action.

9.  It is stated that the dues against the above said connection was on the same premises which was registered in the name of original allottee Kesri Devi and the  same was removed on 02.12.04 with dues. It is further stated that on the one hand complainant is applying for new connection on premises i.e. H.no. 171, Block-I, JJ Colony, Shakurpur and on  the other hand complainant is mentioning in the contents that he had no concerned with the property no. 171, Block-I JJ Colony Shakurpur which is not  acceptable. Moreover, complainant availed exparte interim order dated 11.08.09 for  restoration of the connection no.34300126938 against which were intimated to the complainant then how come the dues does not pertain to the same premises and if the premises is different why complainant availed the restoration of the said connection. All these facts clearly transpires the malafide intention of the complainant only to avoid the dues on premises which he is liable to pay as per law.

10.  It is stated that as per ‘condition of supply’ all o/s dues on the  premises is payable by the owner/occupier of the premises and this principle is also settled in the various judgment of Hon’ble High Court and Supreme Court of India and most recently by the divisional bench of High Court of Delhi in the matter of Madhu Garg VS NDPL hence the dues are payable by  the complainant and the present complaint filed by the complaint is baseless and devoid of any cause of action. It is further stated that details of bill were explained to  the complainant as and when he visited of the OP for the same. It is stated that there is no deficiency in services on the part of the OP in light of the above mentioned facts.  It is further  stated that the complainant has not suffered mental  agony or pain due to any irregularity on the part  of OP has been done on the part of the  OP. It is further stated that the complainant is not entitled for any compensation in light of the above mentioned facts and law. It is stated that the present complaint filed by the complainant may kindly be dismissed with cost in the interest of  justice.

11. Complainant filed Replication to the WS of OP and denied all the allegations made by OP. It is stated that complainant has come to  this  Hon’ble Court with clean hands. It is  further  stated that  respondent restored the electricity of complainant instead of providing new connection. The fault lying with the respondent. It is stated that the dues pertains to the complainant’s premises and the complaint is devoid of any cause  of action. It is stated that the dues against the connection K no.34300126938 does not pertain to the same premises. It is stated that the complainant applied for new connection and the respondents have  illegally shown illegal dues against  the name of Kesri Devi, who was neither owner of the premises or having any concern with  the  premises. It is stated that the complaint of the complainant is well maintainable in the eyes of law.

12. It is stated that complainant made request for new connection and the respondent had shown dues of 41953.26 in the name of Kesri Devi. In fact, Kesri  Devi was not original allottee as alleged. It is stated that  the  complainant applied for a new connection on the basis of proper documents executed in favour of the  complainant. It is wrong and denied  that the complainant having no concern with the  property No.171, Block-I, J.J. Colon, Shakur Pur, Delhi. The complainant became owner by virtue of execution of proper document in her favour. The restoration through  the K No.34300126938 is done by respondent instead of giving new connection. This shows malafide intentions of respondents for  extorting hard earned money of complainant. As per law, respondent should give new connection instead of restoration. The dues shown against the K.No. and the K.No. which is alleged to be the  K.No. of the complainant’s premises is wrong. This K.No. was not shown against the premises and  the owner of the K.No. is also not shown as owner of the premises as per the record  supplied by the respondent to the complainant. No documents is supplied by the respondent which proves the dues of premises. It is further stated that the dues shown against the premises is illegal and liable to be withdrawn by the respondents.

13. Complainant filed evidence by way of affidavit and mentioned the relied document Ex.CW1/1 to Ex.CW1/­­_____. However, no marking has been done on the documents relied.  Complainant reiterated the contents of the complaint.
14. OP filed evidence by way of affidavit of Pallav Jain Commercial Manager and reiterated contents of the written statement.

15. Written arguments filed by complainant as well as OP.

16. We have heard complainant in person  and Sh. Harish Purohit AR of OP and perused the record.

17. The law is well settled on the proposition of law with regard to transfer of dues by OP by our own Delhi High Court and Supreme Court of Delhi which is as under:

In the case of Mrs. Madhu Garg and Anr. Vs.NDPL 129 (2006) DLT 213 Division Bench of Hon’ble High court discussed the powers vested in DERA and DERC which are reproduced hereunder:-

14.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.

15.In our opinion, whenever a person purchases a property, it is his duty to find out whether there are outstanding electricity dues in relation to the premises or not, and he cannot be allowed to say later that he was unaware of the fact that there were electricity dues of the previous owner/tenant.

16.In view of the General Condition of Supply, it is the duty of the new owner/occupant to himself make enquiries and find out whether there was such dues or not. The General conditions of Supply are statutory in nature (being delegated legislation), and hence the question of bonafide or malafide does not arise, and in either case the new owner/occupant of the premises has to pay the dues against the previous owner/tenant, Page1121 if he wishes the electricity supply to be continued/restored.

17.It is obvious that he purpose of framing Clause 2.1 (iv) of the General Conditions of Supply was that many persons against whom there were huge electricity dues tried to avoid payment of the same by selling/transferring the property, and in this way the electricity department/electricity company could not recover its dues. In our opinion, thereis no illegality or unconstitutionality in sub-clause (iv) of Clause 2 of the General Condition ofSupply.

18. It may be mentioned in Hyderabad Vanaspati Ltd. v. A.P State Electricity Board AIR 1998 4 SSC 1715, the Supreme Court took the view that even in the absence of a contract the terms and conditions of supply will be governed by the statutory Regulations and they will applicable to the consumers who will be bound by them.

19.Under Clause 2.1 (iv) of the General Conditions of Supply contained in the tariff order 1997-98 and 2001-02 which has been framed by the Delhi Electricity Regulatory Commission, it has been specifically stated that supply of electricity is subject to the condition that the applicant deposits development charge, advance consumption deposit and all such charges as may be applicable including outstanding dues against the premises and/or disconnected connection.

20. The above Clause 2.1 (iv) of the General Conditions of Supply has been framed under Section 21(2) of the Indian Electricity Act 1910 as well as Section 49 of the Electricity Supply Act, 1948, and hence is a piece of delegated legislation.

21.The learned Single Judge in the impugned judgment has struck down Clause 2.1 (iv) of the General Conditions of Supply, With respect to him, we are of the opinion that there is no illegality in the saidClause as it comes within the purview of the Tariff Order framed by theDelhi Electricity Regulatory Commission as well as under Section 21(2) of the Indian Electricity Act, 1910 and Section 49 of the Electricity Supply Act, 1948. We do not agree that the General Conditions of Supply required approval of the State Legislature under the proviso to Section 79 of the Electricity (Supply) Act, as in our opinion they are not Regulations made under Section 79.

22. We agree with the learnedSingle Judge who has disposed of Writ Petition (c) No. 3532/2003 Ms. Madhu Garg v. North Delhi Power Ltd. by directing her to pay the dues for the electricity consumer by one Jathedar Richpal Singh. However, as already observed above, even is she was unaware she has to pay the outstanding dues.

26. . In our opinion, this is not the correct position of the law. The new owner/occupant, whether he was a heir or successor or not, has to paythe outstanding dues if he wants continuation/restoration of the electricity connection. Further, notice of existence of arrears is not the requirement in the Clause2.1 (iv) of the General Conditions of the supply. Aslo, there is no requirement for the licensee to first initiate recovery proceedings by filing a civil suit against the old consumer before disconnecting the supply. As observed by the Supreme Court in Swastic Industries Vs. MSEB (vide para 5):-

Page 1123 it would, thus, be clear that the right to recover the charges is one part of it and right to discontinue supply of electrical energy to the consumer who neglects to pay charges is another part of it. The right to file a suit is a matter of option given to the licensee, the Electricity Board. Therefore, the mere fact that there is a right given to the Board to file the Suit and the intimation has been prescribed to file the suit, it does not take away the right conferred on the Board under section 24 to make demand for payment of the charges and on neglecting to pay the same they have the power to discontinue the supply or cut off the supply, as the case may be, when the consumer neglects to pay the charges.

27. In our opinion, an interpretation of the law which furthers the preservation and protection of public property ought to be adopted. If arrears of electricity charges outstanding in respect of electricity supplied to a premises were to be permitted to be equated with a contractual claims of damages, it would encourage dishonest consumers to raise some dispute or other in respect of such arrears and evade the consequences of non-payment of electricity charges viz. disconnection/non-resumption of supply.

18. The Hon’ble Supreme Court in the case of Telangana State Southern   Power Vs. M/S Srigdhaa Beverages  dated 1^st June, 2020 has held as under:-

15. In our view, there is a clear judicial thinking which emerges, which needs to be emphasized:

A. That electricity dues, where they are statutory in character under the Electricity Act and as per the terms & conditions of supply, cannot be waived in view of the provisions of the Act itself more specifically Section 56 of the Electricity Act, 2003 ( in pari materia with Section 24 of the Electricity Act, 1910)and cannot partake the character of dues of purely contractual nature.

16. In view of the aforesaid legal position, which has emerged, we are of the view that the impugned orders cannot be sustained and are accordingly set aside while opining that appellant No.1 would be well within its right to demand the arrears due of the last owner, from the respondent-purchaser.

19.  The full bench of Hon’ble Supreme Court comprising of Hon’ble Chief Justice of India, in a recent case titled as K.C Ninan Vs. Kerala State Electricity Board & Ors. Civil Appeal No. 2109-2110 of 2004 decided on 19.05.2023 alongwith several other Civil appeals laid down the principle of law as under:

1. Conclusions

328. The conclusions are summarised below:

a. the duty to supply electricity under Section 43 of the 2003 Act is not absolute, and is subject to the such charges and compliances stipulated by the Electric Utilities as part of the application for supply of electricity; b. The duty to supply electricity under Section 43 is with respect to the owner or occupier of the premises. The 2003 Act contemplates a synergy between the consumer and premises. Under Section 43, when electricity is supplied, the owner or occupier becomes a consumer only with respect to those particular premises for which electricity is sought and provided by the Electric Utilities;

c. For an application to be considered as a ‘reconnection’ the applicant has to seek supply of electricity with respect to the same premises for which electricity was already provided. Even if the consumer is the same, but the PART I premises are difference, it will be considered as a fresh connection and not a reconnection;

d. A condition of supply enacted under Section 49 of the 1948 Act requiring the new owner of the premises to clear the electricity arrears of the previous owner as a precondition to availing electricity supply will have a statutory character;

e. The scope of the regulatory powers of the State Commission under Section 50 of the 2003 Act is wide enough to stipulate conditions for recovery of electricity arrears of previous owners from new or subsequent owners;

f. The Electricity Supply Code providing for recoupment of electricity dues of a previous consumer from a new owner have a reasonable nexus with the objects of the 2003 Act;

g. The rule making power contained under Section 181 read with Section 50 of the 2003 Act is wide enough to enable the regulatory commission to provide for a statutory charge in the absence of a provision in the plenary statute providing for creation of such a charge;

h. The power to initiate recovery proceedings by filing a suit against the defaulting consumer is independent of the power to disconnect electrical supply as a means of recovery under Section 56 of the 2003 Act.

20. Now applying the principle of law in the present case. It is admitted by the complainant that property no.171, Block-I, JJ Colony Shakupur, landmark near mother dairy Delhi purchased on 20.09.2007 but shifting was delayed for two years and for new connection application filed in April/May 2009. As per agreement to sell the property purchased from Smt. Neeraj Mittal W/o Sh. Anil Kumar Mittal and agreement to sell entered between the parties. Receipt of Rs.4,35,000/- also executed. The vital clauses of agreement are reproduced hereunder:

6. That the first party again ensure the second party that there are no dues, charges against the above mentioned plot/property till the date of execution of this agreement and in future the second party shall pay all taxes, dues, charges of the above mentioned property to the authority concerned.

9. That the first party has delivered the vacant peaceful possession of the said plot/property alongwith its previous documents to the second party at the time of execution of this agreement.

21. The agreement to sell clearly establish that complainant is not the original  allottee  of the property. The property purchased by her from one Smt. Neeraj Mittal who had paid all earlier  dues including electricity dues of the electricity connection installed in the property. Further Mrs. Neeraj Mittal handed over ownership document of previous owners. During the course of proceedings OP was directed  to file documents pertaining to Kesri Devi. The documents filed on record including statement of account and meter recording record and receipt in favour of Kesri Devi for electric connection alongwith photocopy of ration card of Kesri Devi. The ration card clearly mentions address of the property I-171, JJ colony, the receipt of Delhi Electricity Supply undertaking in the name of Kesri Devi of deposit of Rs.185/-. The ledger record further shows that K No.34300126938 installed in the name of Kesri Devi in 26.10.1981 which remained active till January 2004. The complainant did not verify with regard to true and correct facts with regards to installation of electricity connection in the premises at the time of purchase on 20.09.2007 and also not verified from the seller about the previous owners and dues against the electricity connections. The law is well settled by Hon’ble Supreme court that electricity dues are statutory in nature  and against the premises. The OP has established that Kesri Devi was the consumer of the same premises of an electric connection and there was dues against the premises. In these peculiar circumstances of this case complainant is liable to pay electricity dues against the premises.
22. On the basis of above observation and discussion present complaint is dismissed and complainant is directed to clear all the dues as per intimation letter dated 29.05.2009 of Rs.41,953.26/-. We direct the OP to waive off all the LPSC accrued on the principle due amount. We further direct complainant to deposit the principle due amount against K No.34300126938 in six equal monthly installments starting from 01.01.2024 to 01.06.2024. The monthly installment shall be paid on or before first seven days of each month from 01.01.2024. No order as to cost. File be consigned to record room.

23. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  16.11.2023.

    SANJAY KUMAR                                                                               RAJESH

       PRESIDENT                                                                                     MEMBER