Delhi District Court
Sh.Naresh Aggarwal vs Ndpl on 29 February, 2012
IN THE COURT OF MS.RUCHIKA SINGLA
CIVIL JUDGE-01(NORTH) : DELHI
Suit No. 1444/2006
Unique ID No. 02401C0064822005
Sh.Naresh Aggarwal
S/o Sh.S.N.Aggarwal
Pooth Kalan Road,
Village Pehladpur,
(Shiv Mandir ke samne)
Delhi
...... Plaintiff
Versus
1. NDPL
North Delhi Power Ltd.
Enforcement Assessment Cell,
(EAC), C-2 Blk, Keshav Puram,
Lawrence Road, Delhi-35
Also at:
NDPL, North West Circle
Badli Extension Industrial Area,
Delhi
2. Chief Executive Officer
NDPL
North Delhi Power Limited
Grid Sub Station
Hudson Line, Kingsway Camp,
Delhi
3. Business Manager
NDPL
(EAC), C-2 Blk, Keshav Puram,
Lawrence Road, Delhi-35
4. Enforcement Assessment Cell,
(EAC), C-2 Blk, Keshav Puram,
Lawrence Road, Delhi-35
...... Defendants
Naresh Aggarwal v. NDPL Suit No.1444/2006 Page 1 of 12
Date of institution of suit : 31.01.2005
Date on which reserved for judgment : 13.02.2012
Date of Judgment : 29.02.2012
JUDGMENT:
1. This is a suit for mandatory injunction.
2. Briefly stated, the facts of the case as alleged by the Plaintiff are as follows.
2.1. The Plaintiff is carrying out its business at the suit property at Pooth Kalan Road, Pehladpur, Delhi where the Defendant has installed an electricity connection K no.41301122365. On 02.6.2004, certain officials of the Defendant company visited the suit premises where they allegedly carried out an inspection in the absence of the Plaintiff. The Plaintiff was called at the site by his labour. The officials of the Defendant company supplied a copy of the inspection report and a show cause notice to the Plaintiff directing him to appear before the concerned authority on 05.6.2004. The Plaintiff attended the personal hearing and challenged the inspection report. However, he was told to move an application for re- inspection and was handed over a provisional assessment bill dated 06.5.2004.
2.2. On 10.6.2004, the Plaintiff moved the application for re- inspection but no re-inspection was carried out. A week later, Plaintiff moved another similar application but in vain. On 09.12.2004, the officials of the Defendant company visited the premises and replaced the meter. Thereafter, on 28.01.2005, few persons on behalf of the Defendant no.1 visited the premises and tried to disconnect the supply. The Plaintiff protested against the same and also visited the office of the Defendant no. 4 in this respect where he was informed that on 11.01.2005, a speaking order had been passed against the Plaintiff. A bill no. 9400002749 was also handed over to the Plaintiff. He was directed to settle the same and Naresh Aggarwal v. NDPL Suit No.1444/2006 Page 2 of 12 make the payment. Having no other alternative, the Plaintiff filed the present suit.
3.1. Summons of the suit have been served upon the Defendant. The Defendant prayed for dismissal of the suit stating that the Plaintiff has not affixed the ad-valorum court fees and that the suit has not been valued properly for the purposes of court fees and jurisdiction. It is also stated that the simplicitor suit is not maintainable without seeking declaration. 3.2. However, the factum of the meter at the Plaintiff's premises is not denied. On 02.6.2004, the Defendant's joint team inspected the Plaintiff's premises where they found that the Plaintiff was using the connected load of 10.197kw against the sanctioned load of 7.460kw. The Plaintiff was found indulged in Dishonest Abstraction of Energy (hereinafter referred to as DAE) as a deliberately created cavity was found in the upper left portion of the meter body and meter window glass through which the dial/ disc/digits were accessible to the consumer to manipulate the recorded consumption. Scratches were also found in the upper left side of the meter window glass. The premises were inspected in the presence of a representative of the consumer to whom the copy of the report was also supplied.
3.3. On the basis of the inspection report, a show cause notice dated 02.6.2004, was served upon the consumer and he was called for personal hearing on 05.6.2004 and accordingly, he appeared at the personal hearing and filed his written representation. A provisional theft bill of Rs.1,81,118/- was raised. The representation of the Plaintiff and the consumption pattern were analyzed and it was concluded that the DAE is established against the Plaintiff. Accordingly, the speaking order dated 11.01.2005 was passed and the impugned bill was raised after giving a credit adjustment of Rs.25,892.34. Hence, the bill is payable by the Plaintiff and it is prayed that the suit of the Plaintiff may be dismissed.
Naresh Aggarwal v. NDPL Suit No.1444/2006 Page 3 of 124. Replication to the Written Statement of the Defendant filed by the Plaintiff reiterating the facts as mentioned in the plaint and denying the averments made in the Written Statement. Thereafter, on the pleadings of the parties following issues were framed vide order dated 30.11.2005:
1. Whether the Plaintiff was found indulged in DAE during the inspection dated 02.6.2004? OPD
2. Whether the suit of the Plaintiff is not maintainable in the present form?
OPD
3. Whether the Plaintiff is entitled to the relief of mandatory injunction, as claimed?OPP
4. Relief.
5. Thereafter, the matter was fixed for Plaintiff's evidence. The Plaintiff got examined himself as PW1 and exhibited the following documents:
Ex.PW1/1 Copy of the inspection report dated 02.6.2004 Ex.PW1/2 Letter dated 10.6.2004 Ex.PW1/3 Letter dated 28.6.2004 Ex.PW1/4 Provisional theft bill of Rs.1,81,118/-
Ex.PW1/5 Meter installation report Ex.PW1/6 Speaking order dated 11.01.2005 Ex.PW1/7 DAE bill bearing no.9400002749 Ex.PW1/D1 Show cause notice dated 02.6.2004
6. Thereafter, the matter was fixed for DE. The Defendant got examined one Sh.Shabeeb Anwar Zaidi and Sh.Sandeep Khurana as DW1 & DW2 and exhibited the following documents:
Ex.DW1/1 Copy of the inspection Report dated 02.6.2004 Mark A Copy of the joint inspection report Ex.DW2/1 Copy of personal hearing sheet dated 05.6.2004 Ex.DW2/2 Speaking order dated 11.01.2005
7. Thereafter, the case was fixed for final arguments. I have heard the arguments of the counsel for parties and have gone through the Naresh Aggarwal v. NDPL Suit No.1444/2006 Page 4 of 12 record carefully. My issue-wise findings are as follows.
Issue no.1 Whether the Plaintiff was found indulged in DAE during the inspection dated 02.6.2004? OPD
8. Onus to prove this issue was upon Defendant.
9. The case of DAE has been booked against the Plaintiff on the basis of certain discrepancies which were allegedly found during the course of the inspection conducted on 02.6.2004. The factum of the inspection is not in dispute. The onus to prove the fact that the DAE was being committed is on the Defendant. To prove this fact, the Defendant has relied upon the testimony of DW1 who was the member of the inspecting team and the inspection reports Ex.PW1/1 & Mark A. It is alleged that on the date of inspection, the following discrepancies were found at site:
1. The Plaintiff was using the connected load of 10.197kw against the sanctioned load of 7.460kw.
2. A deliberately created cavity was found in the upper left portion of the meter body and meter window glass through which the dial/ disc/digits were accessible to the consumer to manipulate the recorded consumption.
3. Scratches were also found in the upper left side of the meter window glass.
10. Perusal of these reports Ex.PW1/1 & Mark A show that these discrepancies were found. The counsel for the Defendant has argued that in view of the same, the case of DAE has been rightly booked against the Plaintiff.
11. However, reference to case titled as "Col. R.K. Nayar v. BSES RPL, (140) 2007 DLT 257" is essential where the Hon'ble High Naresh Aggarwal v. NDPL Suit No.1444/2006 Page 5 of 12 Court of Delhi has held that:
"An inference of fraudulent abstraction of energy must be based on some conclusion evidence that the user has tampered with the meter in a manner that has enabled such user to either slow down the meter or make it record lesser units of consumption. There must be a link established between the physical evidence of tampering noticed on inspection and the consumer. An inference of FAE should not be permitted to be drawn on the mere fact that a meter had been found with broken seals. An electricity meter is admittedly not kept enclosed in a tamper proof environment under the lock and key, with one meter is kept in a location that permits any person intending to do mischief to have easy access to the meter, then to fasten the charge of FAE on the consumer in the event of the meter being found tampered, is not being reasonable or even realistic. Something more would have to be demonstrated to infer an intention by the consumer to "fraudulently" abstract electricity. In this context it is necessary to emphasise that the analysis of consumption pattern cannot constitute substantive proof of DAE in the absence of tangible physical evidence of DAE in the manner explained above. In other words, the analysis of consumption pattern can only corroborate what is found on physical inspection which can indicate whether the consumer has herself or himself employed a device or a method to dishonestly abstract electricity. It will not be open to the respondent, in the absence of any tangible evidence of DAE, to proceed on the basis of the consumption pattern to infer DAE".
12. The Hon'ble High Court of Delhi also relied upon the judgment of the Hon'ble Supreme Court of India in "Jagannath Singh v. Ramaswamy, (1966) 1 SCR 683" where the Hon'ble Court has held as under:
"An exposure of a stud hole on the meter cover is an artificial means for preventing the meter from duly registering. For the purposes of Section 44, the existence of this artificial means gives rise to the presumption that the meter was prevented from duly registering but this presumption cannot be imported into Section 39. A meter with an exposed stud hole, without more is not a perfected instrument for unauthorised taking of energy, and cannot be regarded as an artificial means for its abstraction. To make it such an artificial means, the tampering must go further, and the meter must be converted into an instrument for recording less than the units actually passing through it. A check meter affords an easy method of proving that the consumer's meter is recording less than the units consumed and is being used as an artificial means for abstraction of the unrecorded energy. To bring home the charge under Section 39, the prosecution must also prove that the consumer is responsible for the tampering. The evidence adduced by the prosecution must establish beyond doubt that the consumer is guilty of dishonest abstraction of energy."Naresh Aggarwal v. NDPL Suit No.1444/2006 Page 6 of 12
13. The Hon'ble High Court of Delhi also relied upon the judgment of the Hon'ble Supreme Court of India in "Ram Chandra v. State of Bihar, 1967 CriLJ 409". In that case a wire had actually been inserted which had the effect of preventing the rotation of a disc despite that it was held that in addition to the above evidence, it was important to demonstrate that "the appellant would have knowingly done something to the meter which would have escaped detection of a meter reader and facilitated the abstraction of electricity." The Court set aside the conviction in that case.
14. The Hon'ble High Court of Delhi further held in R.K Nayar's case (Supra) that:
"Although the above decisions were rendered in the context of a conviction in a criminal case, the proof necessary for inferring FAE or DAE can be no less considering that the element of 'dishonesty' brings in the concept of mens rea which is common to both FAE/DAE and the offence of theft of electricity.
An accu check meter could have been used to detect if the meter was recording lesser energy than it should".
15. Same has also been held by the Hon'ble High Court in Harvinder Motors v. B.S.E.S. Rajdhani Power Ltd. 135(2006)DLT198; Udham Singh v. BRPL 136 (2007) DLT 500; Jagdish Narayan v. NDPL 140(2007) DLT 307; Bhasin Motors (I) P. Ltd. v. N.D.P.L. 142 (2007) DLT 116 and J.K. Steelomelt (P) Ltd. v. BSES Rajdhani Power Ltd. MANU/DE/7684/2007.
16. Hence, in view of the above discussed judgments, it is clear that due to the impugned discrepancies, a case of DAE cannot be booked against the Plaintiff. Some artificial means should have been found to have been employed by the Plaintiff to manipulate the meter. DW1 in his cross examination deposed that no foreign material or artificial means or Naresh Aggarwal v. NDPL Suit No.1444/2006 Page 7 of 12 wire was found attached with the meter. Mere presence of a cavity or scratches in the meter cannot by itself constitute a case of DAE. DW1 also deposed that he did not find the consumption of the meter being manipulated by the consumer. Hence, the Defendant has failed to prove that DAE was being committed by the Plaintiff as on the date of inspection. Hence, this issue is decided in favour of the Plaintiff.
Issue no.2 Whether the suit of the Plaintiff is not maintainable in the present form? OPD
17. Onus to prove this issue was upon the Defendant
18. The counsel for Defendant has argued that the present suit for injunction is not maintainable as the Plaintiff has not claimed the relief of declaration, which is a must in view of the judgment of Hon'ble High Court of Delhi in "Sarjiwan Singh Vs. DVB, 110 (2004) DLT 633". In view of the same, it is argued that the present suit is not maintainable.
19. The counsel for Plaintiff has argued that the Hon'ble High Court of Delhi has held that where the plaint does not prima facie show that the bill is illegal, simplicitor suit for injunction cannot be used as a device to defeat or delay the liability created. As a corollary, it would imply that where the plaint shows that the bill is prima facie illegal, declaration need not be sought. The counsel for Plaintiff has further argued that while disposing of the application u/o 39 rule 1 & 2 CPC the Ld.Predecessor Court vide its order dated 03.9.2005 had come to the conclusion that the bill was prima facie illegal. The Ld.Court had also discussed this aspect in para 8 of this order. In view of the same, it is argued that the present suit is maintainable.
Naresh Aggarwal v. NDPL Suit No.1444/2006 Page 8 of 1220. I have perused the impugned order. The Ld.Predecessor Court had discussed this aspect and had concluded that the bill was prima facie illegal. Moreover, as discussed in the previous issue, the case of theft has been wrongly booked against the Plaintiff. As a necessary corollary, the bill is bad in law. Hence, the suit is maintainable. This issue is also decided in favour of the Plaintiff.
Issue no.3 Whether the Plaintiff is entitled to the relief of mandatory injunction, as claimed?OPP
21. Onus to prove this issue was upon the Plaintiff
22. The Defendant has argued that the present suit is not maintainable as the Plaintiff is not the registered consumer of the impugned electricity connection. It is further argued that there is no privity of contract between the Plaintiff and the Defendant. However, in the opinion of the court, this objection is not maintainable. Admittedly, the connection is being used by the Plaintiff. DW1, who was a member of the inspection team, deposed in his cross examination that the Plaintiff was the user of the connection when the inspection was conducted. The case of DAE has been booked against the Plaintiff. The impugned bill has been raised against the Plaintiff and he shall be adversely affected if the supply is disconnected. The Defendant cannot blow hot and cold at the same instance. On the one hand, the Defendant seeks the payment of the bill from the Plaintiff and on the other hand, it says that there is no locus standi of the Plaintiff. The same cannot be allowed to be done. The same has also been held by Hon'ble High Court of Delhi in "Virender Kr Jain v. MCD MANU/DE/ 8200/2007". In view of the same, this objection is not maintainable.
Naresh Aggarwal v. NDPL Suit No.1444/2006 Page 9 of 1223. The Plaintiff has sought mandatory injunction that the Defendant may be restrained from disconnecting the supply of the Plaintiff and that it may be directed to close the matter initiated on the basis of the report dated 02.6.2004 and that the impugned bill may be withdrawn. It is argued by the counsel for the Plaintiff that the Plaintiff was not indulged in DAE. It is further argued that even the speaking order has not been proved by the Defendant. It is argued that the speaking order Ex.DW2/2 has been sought to be proved by DW2 who did not pass the same but had merely deposed on hear-say.
24. The court is in agreement with the arguments of the counsel for Plaintiff. From the record, it is apparent that the DW2 did not pass the speaking order. He also admitted in his cross examination that he had never presided over the personal hearing and that he was not aware of the submissions made by the consumer or the Plaintiff in the personal hearing. Hence, his testimony cannot be relied upon. In view of the same, the Defendant has failed to prove the speaking order. Even otherwise, as discussed in issue no.1, the Defendant has failed to prove that the Plaintiff was indulged in DAE. Hence, the Plaintiff is entitled to this relief.
25. The Plaintiff also seeks the relief that the Defendant may be directed to make a note in their record that the actual consumption of the Plaintiff is not above the sanctioned load. The Defendant has alleged that at the time of inspection the connected load was found to be 10.197kw against the sanctioned load of 7.460kw. To prove this fact, the Defendant has relied upon the inspection report Ex.PW1/1 and the joint inspection report Mark A. Even if the joint inspection report Mark A is not taken into consideration, on perusal of report Ex.PW1/1, it is found that the inspecting team found the above mentioned connected load at site.
Naresh Aggarwal v. NDPL Suit No.1444/2006 Page 10 of 1226. The counsel for the Plaintiff has argued that the inspection report has been sought to be proved by DW1. However, DW1 is not a reliable witness. The counsel for Plaintiff has towards the cross examination of DW1 where he has deposed as under:
"It is correct that the meter in question was lying installed in the meter box. Again said the meter was not in the box. There was no meter box on the site as such there is no question of meter box seal."
27. It is stated that in view of the above discrepancies in DW1's testimony, his evidence cannot be relied on. However, merely on the above mentioned account, the testimony of DW1 cannot be discarded completely. He has deposed that he prepared the inspection report Ex.PW1/1. The report was prepared on site and it is an important evidence regarding the facts that occurred at site. DW1's testimony was recorded in April 2011. It is unreasonable to expect that he shall remember the whole and accurate facts of an inspection conducted almost 7 years ago, when carrying out such inspections is a part of his day to day work. He has deposed that whatever was done by him for the inspection, all the facts were duly recorded by him in the inspection report. The inspection report has been prepared by him while discharging his official duties. In view of the same, the court does not find any reason to disbelieve the testimony of DW1 and the report Ex.PW1/1. In view of the same, the Defendant has proved that the connected load as alleged was found at the time of inspection.
28. Hence, the onus to prove the fact that the connected load was not noted correctly shifts upon the Plaintiff, which he failed to discharge. No evidence was led to this effect. PW1 has deposed in his cross examination that there were only 2 pasting machines at site. However, as brought out in the cross examination, this fact was not averred in his representation to the Defendant or in his plaint or replication. No other Naresh Aggarwal v. NDPL Suit No.1444/2006 Page 11 of 12 substantive evidence has been led to this effect. Hence, this fact has not been proved by the Plaintiff. Nothing to this effect has come on record that any other inspection was conducted by the Defendant where the connected load was found within the limit of the sanctioned load. Therefore, the Plaintiff is not entitled to this relief. The issue is disposed off accordingly.
Relief In view of the above discussion, the suit of the Plaintiff is partly decreed. The Defendant is restrained from disconnecting the supply of the Plaintiff's connection bearing K no.41301122365 installed at the Plaintiff's premises at Pooth Kalan Road, Pehladpur, Delhi for non payment of this bill. The Defendant is also directed to close the matter initiated on the basis of report dated 02.6.2004. The Defendant is directed to withdraw the impugned bill Ex.PW1/7.
No order as to costs.
Decree-sheet be prepared accordingly.
File be consigned to record room.
Announced in the Open Court [RUCHIKA SINGLA]
Today on 29.02.2012 CIVIL JUDGE-01 (NORTH)
DELHI
Certified that this judgment contains 12 number of pages and all pages are signed by me.
[RUCHIKA SINGLA]
CIVIL JUDGE-01 (NORTH)
DELHI
Naresh Aggarwal v. NDPL Suit No.1444/2006 Page 12 of 12
Suit No.1444/06
29.02.2012
Present : None
Vide separate judgment of even date, the suit of Plaintiff is partly decreed.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
[RUCHIKA SINGLA] CIVIL JUDGE01 (NORTH) DELHI Naresh Aggarwal v. NDPL Suit No.1444/2006 Page 13 of 12