JUDGMENT
S. Muralidhar, J.
1. This Writ Petition seeks the quashing of an order No. 8508 dated 10th October, 1991 whereby the respondent Delhi Electric Supply Undertaking (Municipal Corporation of Delhi) imposed the penalty of misuse on the petitioner at 50% with regard to the meter K. No. 6140172-NL and K. No. 3265535-NP and a penalty of 10% for not maintaining a low power factor. The other prayers are for quashing the bills raised for the months January to June, 1992 issued by DESU to the petitioner in respect of the aforementioned two meters at the petitioners factory at 39, Rama Road, Najafgarh Road, Industrial Area, New Delhi-15 and for a direction to the respondent not to disconnect the electricity connection.
2. At the first hearing of this writ petition on 7th July, 1992 while directing notice to the respondent this Court observed that the bill paid by the petitioner would be subject to the further orders of this Court. Thereafter while Rule was issued on 30th October 1992, the following order was passed:
C.W. 2325/92
Even after the last opportunity, which was given on the last date, no answer to show cause has been filed.
Rule.
C.M. 4382/92
Interim orders made on 7th July 1992 are confirmed till the decision of the writ petition.
It is further directed that respondent/DESU shall not charge the misuse charges from the petitioner on account of change in the name of the petitioner from M/s Goramal Hari Ram Pvt. Ltd. to M/s Goramal Hari Ram Ltd.
Liberty, however, to the respondents to seek variation of the order when the pleadings are complete and when the circumstances so require.
A copy of this order be given dusty to counsel for both the parties.
3. After the conversion of DESU into the Delhi Vidyut Board (DVB) and the unbundling of DVB into private distribution companies, the North Delhi Power Limited (NDPL) has been substituted as the Respondent.
4. The petitioner, which was earlier a private limited company known as Goramal Hari Ram Pvt. Ltd., is in the business of manufacturing of soap, detergent cleaning powders and incense sticks at its factory at 39, Najafgarh Road Industrial Area, New Delhi. The petitioner has four electricity connections in its premises. Two are industrial light and industrial power connections. These are in K. No. 211-121942-IL (Industrial Light) with a load of 1 KW and K. No. 211/121943-IP (Industrial Power) with a sanctioned load of 80 HP. The other two connections are K. No. 7ZK/6140172 NL (Non-Domestic Light) with a load of 4 KW and K. No. 7ZK-326553-NP (Non-Domestic Power) with a load of 13.80 KW respectively. The load of 4 KW in K. No. 6140172 was increased to 25 KW by DESU at the request of the petitioner.
5. The petitioner informed DESU by a letter dated 22/23rd December 1988 that with is conversion to a deemed public limited company under Section 43 A Companies Act 1956, it had changed its name to Goramal Hari Ram Ltd. thus dropping the word “Pvt.” from its name.
6. On 18th September, 1991 the DESU officials inspected the petitioner’s premises. By an order dated 10th October 1991, claimed by the petitioner to have been received on 4th December 1991, DESU informed the petitioner that in respect of the NP and NL connections the connected load of 12.43 KW and, 22.46 KW was found and that there was misuse of electricity. The petitioner was asked to remove the misuse and to provide a capacitor of adequate capacity so as to get the power factor not below 0.85 lagging and bringing down the load within the sanctioned limit. It was further mentioned that there would be 50% surcharge and 10% misuse charge for maintaining the power factor below 0.85 lagging till such time the misuse and low power factor was not removed.
7. By a further letter dated 30th November/10th December 1991, the petitioner was informed by DESU that the inspection had revealed the following irregularities in respect of the IP and IL connections:
1. Connected load found more than committed load.
2. Misuse of supply due to subletting.
4. Lower power factor due to non-installation of shunt capacitor.
DESU further informed the petitioner that it proposed to revise the tariff from SIP to LIP “due to connected load found 100 KW or above”, levy misuse charges due to sub-letting and levy a surcharge due to low power factor.
8. The petitioner replied to the above letter objecting to the inspection report and referring to an explanation earlier offered by the petitioner on 26th October 1991. However, as against K. No. 211/121943-IP the DESU raised a bill of Rs. 1,31,921.80. The petitioner challenged the said bill by way of Writ Petition No. 1903 of 1992 in which by an order dated 22nd May, 1992 this Court stayed the disconnection. Subsequently this writ petition was dismissed as withdrawn granting the petitioner liberty to file a civil suit. Thereafter the petitioner filed a suit which is stated to relate to the IP and IL meters and pending.
9. As regards the other two connections, i.e., K. No. 6140172 and K. No. 3265535, according to the petitioner, the DESU started raising arbitrary bills over and above the normal charge from January 1992 onwards. Initially the petitioner filed Suit No. 148 of 1992 praying for an injunction to restrain DESU from disconnecting the four meters by treating the bills from January 1992 as arrears. It is stated that by an order dated 10th February 1992 an ex parte stay against disconnection was granted conditional upon the petitioner depositing Rs. 30,000. The appeal filed against this order was disposed of by the Additional District Judge by recording the statement of DESU that the wrong billing had taken place due to the computer not being fed the correct multiplying factor of one and that thereafter the correctly recomputed bills would be sent. On 10th June 1992 the present writ petition was filed in respect of the bills for the NP and NL connections praying for the reliefs as set out in the first paragraph of this judgment.
10. As regards the IL and IP connections, the bills for the months of October and November 1992 were challenged in the civil court by the petitioner by filing Suit Nos. 1445 of 1992 and 874 of 1993 respectively. By a common judgment dated 20th September 1996 both suits were decreed by the Civil Judge, Delhi restraining DESU from disconnecting the IL and IP connections and from raising bills on a LIP basis. DESU was permitted to raise bills for the consumption against the IL and IP connections on SIP basis.
11. It is contended by the petitioner that the very basis of the bills pertaining to the NL and NP connections is the inspection report dated 18th September 1991 which has already been discredited in the judgment dated 20th September of the learned Civil judge in Suit Nos. 1445 of 1992 and 874 of 1993. It is further submitted that there is absolutely no basis for concluding that there was misuse on the part of the petitioner of the NL and NP connections particularly on the ground that the connection was sanctioned in the name of M/s Gora Mal Hari Ram (P) Ltd. whereas at the time of the inspection the user was M/s. Gora Mal Hari Ram Ltd. The contention of the petitioner is that both entities, i.e., M/s Gora Mal Hari Ram (P) Ltd. and M/s Gora Mal Hari Ram Ltd. are one and the same company. The latter name came about as a result of the former becoming a deemed public limited company. It is submitted that none of the grounds on which misuse has been defined in the tariff of 1994-95 is attracted in the present case. There was no evidence to show that the petitioner had misused the NP and NL electricity connections. It is submitted that there was no cause made out at all for misuse of the premises and, therefore, the bills raised were illegal.
12. On behalf of the respondent NDPL it was contended that as far as the two electricity meters K.Nos.6140172-NL and 3265535-NP are concerned, several irregularities were detected. It is denied that the misuse charges was only on account of the change of the entity. It was found that K. No. 6140172-NL was being misused by the petitioner for the purpose of non-domestic power as well as for industrial power and the power factor was also below 0.85. As regards the K. No. 3265535-NP, the inspection report showed that the petitioner was using the said K. No. 3265535-NP for office as well as for industrial purpose. It is further submitted that the petitioner did not respond to the show cause notice issued. However, it is pointed out that that charge of subletting was only in respect of K. No. 211/121943-IP which is not the subject matter of the present writ petition. It is maintained that the higher tariff was levied only on account of misuse and not for any other reason.
13. The question that arises for consideration is whether the petitioner can be held liable for the misuse of the NL and NP connections warranting the levy of the penalty against him by the NDPL. The inspection report of 18th September 1991 does not indicate that there was any charge of misuser. It appears that on of the reasons the higher tariff was imposed was for alleged ‘subletting’ which can only be explained by the change of user from a firm to a deemed public limited company. The change in name having been informed to DESU way back in 1988, there was no ‘subletting’ as such. Therefore, this reason for levying misuse charges is without basis. The inspection report also reveals that there was no misuse as such within the meaning of that term as contained in the DESU tariff. Importantly, in respect of the inspection report dated 18th September 1991, which forms the basis of the impugned bills in this petition, the learned Civil Judge in his judgment dated 20th September 1996 observed:
…inspection report Ex DW1/1 has not been proved by the defendant DESU as per law of evidence. Moreover, DW1 in his cross- examination admitted that motors of the plaintiff bears the label of manufacturer with capacity load but the said particulars were not mentioned in the said inspection report dated 18.9.91 Ex.DW1/1. DW1 further admitted that no instrument was taken at site at the time of inspection o measure the power factor and it was assumed as shunt capacitor was lying disconnected. DW1 further admitted in his cross-examination that power point are added in the connected load. This draws an adverse inference that these power points were added in the inspection report later on just to cover the pltff under the LIP category.
Inasmuch as the above findings on facts are in respect of the very same inspection report that forms the basis of the impugned bills, and the findings have become final, there is no reason why they should not apply to the case on hand as well. Whether it was for the IL and IP connections or the NL and NP connections, the inspection report is the same. That inspection report having been held to be unreliable by the civil court, there is no merit in the plea of the Respondent about the said report establishing the misuse of the NL and NP connections by the petitioner.
14. For the aforementioned reasons, the impugned order dated 10th October 1991 and the impugned bills fro the months from January to June 1992 raised on the basis of the inspection report dated 18th September 1991 are unsustainable in law and are hereby quashed.
15. The writ petition is accordingly allowed.