Full Text
R.S.A. NO.305/2005
Date of Decision: 4th March, 2013
BSES RAJDHANI POWER LTD. & ORS. …… Appellants
Through: Ms.Anjali Sharma, Adv.
V.K. SHALI, J. (Oral)
JUDGMENT
1. This is a regular second appeal filed against the judgment dated 18.1.2005 passed by the learned ADJ by virtue of which the appeal of the appellants was dismissed and the judgment and decree passed by the trial court on 02.9.2000 was upheld.
2. The learned counsel for the appellants has stated that the substantial questions of law which are involved in the present regular second appeal are as under:-
(i) Whether the respondent is not liable to come under the category of LIP as per the Tariff provisions and regulations, though he runs a large plastic industry and the concerned load was found more than 100 KW? 2013:DHC:1166
(ii) Whether one surprise inspection report can be overruled on the basis that subsequent surprise report reveals the irregularities deleted in the first inspection report?
(iii) Whether the mandatory rules, regulations and provisions of Tariff can be ignored?
(iv) Whether the learned Civil Judge can set aside the inspection report which was prepared in accordance with the statutory provisions, without any valid reasoned order?
(v) Whether the learned Civil Judge ignored the findings of the inspection report and other relevant documents on the basis that some witnesses were not available during the cross-examination?
3. I have carefully considered the submissions made by the learned counsel for the appellants. Before dealing with the same, it would be pertinent to give the brief background of the case. The respondent herein was a registered consumer of electric connection bearing K No.0111339693 IP and KN No.1339707 IL with a sanctioned load of 89.52
KW IP and 8.00 KW IL, respectively. The aforesaid meters were installed at C-83, Okhla Industrial Area, Phase-I, New Delhi, where the respondent was carrying on business of manufacturing of plastic goods with extrusion technique. The respondent was also having a valid municipal licence which was valid up to 31.7.78. It had been alleged in the plaint that on 22.3.95 in the absence of any Director of the respondent company, an inspection was carried out and it was alleged that the respondent was using the electric load which was much more than the sanctioned limit (100 KW). They were sought to be proceeded against under the relevant electricity laws and the tariff rules framed thereunder.
4. The respondent feeling aggrieved by this action of the appellants and its officers, made an application for re-inspection of the premises. This re-inspection was carried out on 10.7.95, wherein it was found that the consumption by respondent was within the sanctioned limits. However, the second inspection report alleged that one of the extruders was lying dismantled and disconnected from the mains.
5. Be that as it may. The appellants and its officers issued show cause notice for levying the surcharge and misuser charges for higher consumption.
6. The respondent, feeling aggrieved, filed a Suit bearing No.583/1995 for mandatory and permanent injunction. The said suit after contest was decided by the learned Civil Judge on 02.9.2000 in favour of the respondent holding that the appellants could not have issued the show cause notice for levying higher charges on the basis of the first inspection conducted by them on 22.3.95. The reasons given by the trial court was that the second inspection which was carried out at the instance of the respondent, ought to have made as a basis for drawing the tariff charges to be paid by the respondent.
7. The appellants feeling aggrieved by the said judgment/order passed by the trial court preferred an appeal before the Court of District Judge.
8. The District Judge vide order dated 18.1.2005 upheld the findings and the judgment of the trial court.
9. Still not satisfied, the appellants have preferred the present regular second appeal. The regular second appeal is admissible only if a substantial question of law is involved.
10. The substantial question of law which has been purportedly urged by the learned counsel for the appellants arising out from the present appeal is as under:- “Whether the basis for charging the tariff to the respondent is to be the first inspection report or the second inspection report?”
11. The question is essentially question of fact. The courts below have arrived at a concurrent finding that the second inspection report which has been conducted by the officials of the appellants themselves would be the basis for deciding the liability of the respondent.
12. Admittedly, the second inspection has been conducted at the instance of the respondent and it has been carried out by the officials of the appellant. Since the appellants themselves have willfully carried out the second inspection, it clearly shows that they themselves were not sure about the authenticity of the first inspection and the same being carried out in a proper manner. Therefore, the first inspection report ought not to be made as a basis for drawing the tariff. Generally, if at some point of time, the consumer feels aggrieved and a second inspection is conducted, the second inspection report should not be the basis but since in the instant case, the time gap between the first inspection and the second inspection was so short that it could not be said that the respondent had conducted some mischief and tried to procure the report, therefore, the question as to ‘whether the first inspection report ought to be the basis for charging the tariff or not?, is essentially a question of fact which has already been dealt with by the two courts below by a concurrent finding saying that the second inspection report should be the basis of charging of tariff. Merely because this Court is superior to the two courts below which have returned the concurrent finding, it would not be well within its power to substitute its own opinion in place of the concurrent finding of the courts below, even though, it may agree with the submissions made by the learned counsel for the appellant, I therefore, feel that there is no substantial question of law involved in the present regular second appeal and the same is dismissed. V.K. SHALI, J. MARCH 04, 2013 RN