Delhi District Court
D.C. Yadav vs Bses Rajdhani Power Ltd on 28 May, 2024
IN THE COURT OF DISTRICT JUDGE -04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, THC, DELHI
CNR NO. DLWT01-000397-2021
CIV DJ NO. 51/2021
D.C. Yadav
S/o Late Sh. Sher Singh
R/o WZ-206A, Village Madipur,
Delhi-110063. ....Plaintiff.
Versus
BSES Rajdhani Power Ltd.,
Through its CEO / Business Manager,
BSES Bhawan, Nehru Place,
New Delhi-110019. ...Defendant.
SUIT FOR DECLARATION AND
MANDATORY INJUNCTION
DATE OF INSTITUTION : 12.01.2021
JUDGMENT RESERVED ON : 29.04.2024
JUDGMENT PRONOUNCED ON : 28.05.2024
Counsel for the Plaintiff : Mr. Siddhartha Yadav, Adv.
Counsel for the Defendant : Mr. Jasbir Singh, Adv.
________________________________________________________________ ANIL
D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 1 of 44 CHANDHEL
CIV DJ NO. 51/2021
Digitally signed by
ANIL CHANDHEL
Date: 2024.05.28
17:38:16 +0530
JUDGMENT
1. The Plaintiff has filed the present suit for declaration and mandatory injunction, against the Defendant.
2. The facts stated in the Plaint:
The facts, as set out in the plaint, are summed up in brief hereinbelow:
i. The Defendant no. 1 company is the licensee / sup-
plier of electricity at places inter alia in West District, Delhi.
ii. The Plaintiff is the lawful owner and having physical possession of the property bearing no. WZ-0206A, Village Madipur, Delhi-110063 (hereinafter referred as said property). The said property comprises of ground floor, first floor and second floor. The second floor is having one room, bathroom and roof. The Plaintiff is the registered consumer / user of the De- fendant company in respect of the electricity supply to the the said property.
Digitally
signed by
ANIL
ANIL CHANDHEL
CHANDHEL Date:
2024.05.28
________________________________________________________________ 17:38:27
+0530
D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 2 of 44
CIV DJ NO. 51/2021
iii. In the said property, there are two and one room at
the ground floor for which non-domestic meter is in- stalled in the name of the Plaintiff.
iv. The remaining part of the ground floor of the said property meant for domestic use, there is one room, latrine-cum-bath and a store for which a domestic electric meter No. 40802272, CA No. 102791774 with sanction load of 2.00 KW for Domestic (Resi- dential) tariff category was installed by the Defen- dant company in the name of the Plaintiff. The above-mentioned ground floor portion of the prop- erty is being used occasionally for guest and some- times for the personal use of the Plaintiff. There is another domestic meter in the name of the Plaintiff for the first floor and for the one room, bathroom at the roof of the property i.e. second floor.
v. In the early morning of 23.11.2020 at about 7 a.m. some alleged staff of the Defendant accompanied by some police officials had entered into the said prop- erty of the Plaintiff forcibly. They neither disclosed their identity nor gave any notice to the Plaintiff.
vi. The above-mentioned officials of the Defendant made video and had removed the domestic electric meter No. 40802272 having C.A. No. 102791774 in- stalled for the ground floor of the said property with- out following the due process of law, despite objec- ________________________________________________________________ ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 3 of 44 CHANDHEL CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:38:34 +0530 tions raised by the Plaintiff and thereby, disconnected the electricity supply of the ground floor. It is perti- nent to mention that the officials of the Defendant did not prepare any inspection or observation report nor prepared any seizure memo or any other docu- ments at the spot. They removed the electric meter without seizure memo or without giving anything in writing despite requests made by the Plaintiff.
vii. The Plaintiff made calls at 100 no. and thereafter a sent a letter on the same day i.e. 23.11.2020 at the of- fice of the Defendant at East Punjabi Bagh intimating them about the forcible de-installation of the electric meter and made a request for providing alternative means of electricity at the ground floor of the premises, the meter of which was removed by the Defendant wrongfully and illegally.
viii. Subsequent to the above, on 26.11.2020, the Defen-
dant company sent a postal envelope containing en- forcement inspection report, form for assessment of connected load, observation memo., seizure memo and a copy of intimation/recommendation to police (which is not legible). The seizure-memo indicates the name of the sone of the Plaintiff as user and a copy of intimation letter was also marked to him. A CD was also supplied in the above mentioned enve- lope containing a videography of the spot. The afore- ________________________________________________________________ ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 4 of 44 CHANDHEL CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:38:41 +0530 said documents were apparently fabricated by the of- ficials of the Defendant in a back date as nothing was prepared by the officials of the Defendant at the spot.
ix. The son of the Plaintiff, namely, Sh. Amit Kumar was not present at home when the above referred of- ficials of the Defendant entered into the house of the Plaintiff. They had enquired from the plaintiff about the name of his son and the Plaintiff gave them the name of his elder son Amit Kumar. Sh Amit Kumar had come to the house later on when the alleged in- spection was already over.
x. Subsequent to the above, the Plaintiff received a copy of a bill no. HNENR 241120200005AO dated 27.11.2000, which was raised in the name of his son for a sum of Rs.32509.94/-, which indicated an unbe-
lievable and unjustified load of 14.206 KW a new CA No. 401279563.
xi. The Plaintiff sent a letter dated 03.12.2020 to the head of Enforcement Office (West) of the Defendant at its office situated at Hari Nagar, New Delhi. The Plaintiff clearly informed the Defendant that there were no illegal wires connected from the street light and no theft of electricity was found. The Plaintiff stated therein inter-alia that the enforcement team and had made out a whimsical case which has no iota ________________________________________________________________ Digitally signed by ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 5 of 44 ANIL CHANDHEL CHANDHEL Date:
CIV DJ NO. 51/2021 2024.05.28
17:38:53
+0530
of truth and that the case was made out on presump- tion without there being any evidence. The Plaintiff clearly stated that the inspection report, observation report, seizure memo etc., are void ab initio and the assessment and demand as per the new bill raised by the Defendant is wrong and should be withdrawn and the electricity meter of the ground floor vide CA 102791774 should be restored.
xii. Pursuant to the above, on 03.12.2000, the above named son of the plaintiff received an assessment bill no. HNENR 241120200005A0. The subsequent to the above, the Plaintiff submitted a letter dated 14.12.2000, thereby intimating the difficulties faced by him due to disconnection of electricity and made a request to the Defendant for the restoration of elec- tric meter bearing no. 40802272 C.A. NO. 102791774.
xiii. The Plaintiff has not received any reply or notice of hearing till date on the above mentioned letters dated 03.12.2020 & 14.12.2020 from the office of assess- ing officer / enforcement office of the Defendant.
xiv. The son of the Plaintiff had also submitted his objec-
tions before the Assessing Office challenging the as- sessment on various grounds including that the Plaintiff is the owner and registered user of the elec-
________________________________________________________________ Digitally
signed by
D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 6 of 44 ANIL
ANIL CHANDHEL
CIV DJ NO. 51/2021 CHANDHEL Date:
2024.05.28
17:38:59
+0530
tricity connections installed at the said property and his name was wrongfully mentioned as the user. The son the Plaintiff had requested for a personal haring on the matter but no notice was received by him from the office of the assessing officer. In such cir- cumstances, the son of the Plaintiff was left with no option but to file a suit for permanent injunction and declaration vide CS DJ No. 14/2021 which is pend- ing before Ld. ADJ-4, West District, Tis Hazari Courts, Delhi.
xv. The officials of the Defendant had failed to comply with the mandatory provisions of The Electricity Act, 2003 and the Delhi Electricity Regulatory Commission (Supply Code & Performance Stan- dards) Regulation, 2016 for carrying out inspection of the premises of the Plaintiff, some of which are mentioned below:-
i.) The enforcement team did not carry out the procedure of inspection, search and seizure as prescribed under Regulation 61 & 62 of the above mentioned Regulation, which is apparent from the video recording, which also indicate that same ending and alteration has been done to the Video Recording. No compliance of regulation no. 62 was done and meter was ________________________________________________________________ Digitally D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 7 of 44 signed by ANIL CHANDHEL CIV DJ NO. 51/2021 ANIL CHANDHEL Date:
2024.05.28 17:39:05 +0530 neither seized nor sealed at the spot.
ii.) The enforcement team had entered into the premises forcefully without showing the visiting card and I-Card of the Authorized office. They did not handover the visiting Card to the Plaintiff or to his son who came to the premises later on.
iii.) A perusal of the video recording supplied by the enforcement team clearly show that the enforcement team had entered into the premises forcefully without showing the visiting card and I-Card of the Authorized Officer. They also did not handover the visiting Card to the father of the Plaintiff. When the Plaintiff came to the premises later on, the authorized officer did not show his visiting card or I-card nor handed over the same to the Plaintiff.
iv.) Neither any inspection report was prepared at the spot nor any seizure memo or form of assessment of connected load, observation report or any other documents were prepared at the spot, which is clear from the video recording.
________________________________________________________________ Digitally signed by ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 8 of 44 ANIL CHANDHEL CHANDHEL Date:
CIV DJ NO. 51/2021 2024.05.28
17:39:11
+0530
v.) The enforcement team had removed the
electricity meter No. 40802272 supplying electricity to Ground Floor of the house, without giving anything in writing. No seizure memo was prepared at the spot which fact may be seen from the video recording.
vi.) A perusal of observation memo shows that the enforcement has made out a case alleging theft of electricity directly from the street light incoming cable illegally by two illegal wires, which is false. It has also been falsely stated therein that output of meter No. 40802272 was found off position. It stated that no evidence of direct theft was found as in apparent from the alleged seizure memo supplied by the Enforcement team on 26.11.2020.
vii) In the observation report, it has been alleged that when the Team knocked the door, D.C. Yadav came to the balcony of the first floor, where the direct theft arranged and removed the wires in front of the team and covered it inside the room. There were no illegal wires connected from the street light, which is ________________________________________________________________ ANIL CHANDHEL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 9 of 44 CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:39:17 +0530 apparent from the Video recording. The entire story is fabricated and figments of their imagination which have no iota of truth. Moreover, admittedly nothing was done by the Plaintiff but a false case has been made out against the Plaintiff.
viii.) In the observation report, it has been alleged that when the Team knocked the door, D.C. Yadav came to the balcony of the first floor where the direct theft arranged and remove d the wires in front of the team and covered it inside the room. There were no illegal wires connected from the street light. The entire story is fabricated and figments of their imagination which have no iota of truth. Moreover, admittedly nothing was done by the son of the Plaintiff but a false case has been made out against him.
ix.) The entire proceedings carried out by the enforcement team are vitiated in view of non-compliance of the provisions of the Regulation by the officials of the defendant. Such proceedings are such are ab-initio wrong.
ANIL ________________________________________________________________ CHANDHEL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 10 of 44 CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:39:22 +0530 xvi. Without prejudice to the objections made above, it is submitted that an unbelievable and unjustifiable load of 14.206 KW is shown against new CA NO. 401279563 for Rs.3,25,310/- vide bill no. NHENR 241120200005A0 dated 24.11.2020 raised in the name of son of the Plaintiff. The form for assess- ment of connected load mentions articles most of which are not available at the Ground Floor of the premises on which case has been made. Even the first floor and second floor of the house do not have any articles shown in the assessment form and as such are not even seen in the video recording but have been mentioned with a view to increase load and raise heavy assessment amount, which had not been done in accordance with Regulations no. 62 and other provisions of the Regulation and Act. The as- sessment made and the above mentioned bill raised by the Defendant is wrong and void.
xvii. The Defendant has alleged that the direct electricity theft was committed at the first floor, however, the Defendant had removed the electric meter installed for the ground floor of the said property without fol- lowing the provisions of the Electricity Act, 2003 and The Delhi Electricity Regulatory Commission (Sup- ply Code and Performance Standards) Regulations, 2017.
Digitally ________________________________________________________________ ANIL signed by ANIL CHANDHEL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 11 of 44 CHANDHEL Date:
2024.05.28 CIV DJ NO. 51/2021 17:39:28 +0530 xviii. The entire proceedings including the inspection of premises, the enforcement inspection report, form for assessment of connected load, observation memo, seizure memo and the letter of intimation to police are void ab initio. Nothing incriminating has been re- covered from the Plaintiff or his above named son and the case made out by the Defendant is not main- tainable. Moreover, the proceedings are vitiated and void ab initio in view of non-compliance of the mandatory provisions of the Electricity Act, 2003 and The Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Regula- tions, 2017.
xix. The whole acts and deeds on the part of the Defen-
dant are illegal, unjust and unwarranted and against the provisions of the Electricity Act & Regulations made thereunder and as such same are not legally maintainable and hence, liable to be declared as null and void. The officials of the Defendant have ille- gally and wrongfully removed the electric meter no. 40802272 and the Plaintiff an his family members are suffering due to the removal of the electricity me- ter, which the Defendant is liable to restore immedi- ately.
xx. The Defendant had failed to give any opportunity of personal hearing as per he provision of law and with- ________________________________________________________________ ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 12 of 44 CHANDHEL CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:39:34 +0530 out citing any reason or ground, removed the elec- tricity meter to harass the Plaintiff who is a senior citizen suffering from various ailments.
xxi. There is no electricity charge due from the Plaintiff.
Moreover, in the last six months, the Plaintiff was not required to pay any electricity charge as electricity consumption of the ground floor of the said property had always remained below 200 units /month. The right to electricity is a part of right to life and liberty in terms of Article 21 of the Constitution of India and no one in the modern days can survive without elec- tricity. The Plaintiff has no other efficacious remedy except to approach this Court by filing the present suit.
3. The facts stated in the Written Statement:
The Defendant were duly served with summons of the suit and have entered appearance on 14.09.2017. The Defendant has filed a common written statem The Defendant was duly served with summons of the suit and entered appearance on 01.02.2021. The Defendant has filed the written statement, wherein the averments of the plaint have been denied. The averments, made in the written statement of the Defendant, are summed up in brief, in paras hereinbelow:
ANIL CHANDHEL ________________________________________________________________ Digitally signed by D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 13 of 44 ANIL CHANDHEL CIV DJ NO. 51/2021 Date: 2024.05.28 17:39:40 +0530 i. The Defendant on the basis of the Inspection Reports, Load Report, Seizure Memo (dated 23.11.2020) & Theft Bill, has already initiated and filed a Criminal Complaint before the Police Station Pubjabi Bagh as per the provisions of the Electricity Act, 2003 on 16.12.2020 for registration of FIR and same is under investigation.
ii. Without prejudice to the objections as mentioned hereunder, it is pertinent to mention here that the user of the premises i.e. Amit Kumar Yadav has already filed a suit for Declaration and Mandatory Injunction vide "Amit Kumar Yadav vs. BSES & Anr. CS DJ No. 14/2021" before this Court, wherein the next date of hearing is 10.05.2021. The Plaintiff with an ulterior motive a misguide the Court filed the present suit, wherein the aforesaid Civil Suit bearing No. CS DJ No. 14/21, has already been filed on the same subject-matter and same relief claimed. Hence, the present Civil Suit is fall under the doctrine of Res-Subjudice under Section 10 Code of Civil Procedure, 1908 which clear stated that "the principle of Res-Sub-judice prevents the Court from proceedings with the trial any suit in which the matter in issue is directly or substantially the same with previously instituted suit between the ________________________________________________________________ Digitally signed by ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 14 of 44 ANIL CHANDHEL CHANDHEL Date:
CIV DJ NO. 51/2021 2024.05.28
17:39:50
+0530
same parties and the court where the issue is previously instituted is pending has the power to grant the relief sought". Hence, the present suit deserves to dismiss at the threshold with exemplary cost to be awarded in favour of the Defendant.
iii. The Plaintiff has filed the suit with malafide intention which contains false averments and incorrect facts (as explained hereinafter) and as such the suit is liable to be dismissed on this ground alone with exemplary cost with regard thereto as per provision of Section 35A of CPC, 1908. The Plaintiff who is seeking equitable relief must prove his bonafide (viz. as viz. non-commission of theft of electricity) and should first come forward before this Court with clean hands.
iv. The present suit has been filed by the Plaintiff as counter blast to the Assessment Bill bearing No. HNENR241120200005A0 dated 24.11.2020 (for Direct Theft of Electricity) raised for a sum of Rs. 3,25,310/- by the Defendant. Under the garb of present false and vexation suit, the Plaintiff is trying to put an undue pressure, so that the answering Defendant indirectly succumb & do not the demand as raised vide supplementary / Assessment Bill dated 24.11.2020 for the Direct Theft of Electricity ("DT").
Digitally signed by ________________________________________________________________ ANIL ANIL CHANDHEL CHANDHEL Date:
D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 15 of 44 2024.05.28 17:39:56 CIV DJ NO. 51/2021 +0530 v. The authorised inspection team of the Defendant inspected the premises of Plaintiff i.e. WZ-206-A, Ground Floor, Vill. Madipur Jwala Heri, New Delhi-110026 on 23.11.2020 at 7:30AM and during inspection the joint inspection team found that the Plaintiff i.e. Dal Chand Yadav S/o Late Shri Sher Singh is the Registered Consumer of the Electricity Meter No. 40802272 installed at the premised in question. At the time of inspection, Single phase Electronic Meter bearing noi. 40802272 C/R-4218 KWH for Domestic purpose, whereas the Meter output was found in off position. The User was found indulged in direct theft of electricity with the help of two nos. of illegal wire directly tapping from BSES Street Light Cable. As the team knocked the door, Plaintiff i.e. D C Yadav (Registered Consumer) came at the balcony of the First Floor and removed the theft wires in front of the inspection team, and threw it inside a room at first floor. The connected load assessed in the presence of the Plaintiff and found to be 14.206 KW/DX/DT. The necessary Videography of the inspection being carried out at the site by the Photographer Mr. Harnish of M/s Arora Photo Studio through digital camera. The members of the inspection team seized the Meter No. 40802272with C/R-4218 KWh and sent to store as material ________________________________________________________________ Digitally signed by ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 16 of 44 ANIL CHANDHEL CHANDHEL Date:
CIV DJ NO. 51/2021 2024.05.28
17:40:01
+0530
evidence which fortifies the irregularities
committed by the User namely Amit Kumar Yadav as well as the Plaintiff, whereas the illegal wires could not be seized due to the user resistance. On the basis of the inspection, the Supplementary Bill for direct theft of electricity dated 24.11.2020 was prepared by following all the guidelines laid down by DERC i.e. as per the billing advice submitted to the DFO Enf. The said Theft Assessment bill raised by the DFO Enforcement is in order having been raised as per the provisions of Tariff and Supply Code and the Plaintiff sis liable to make the payment of the aforesaid Theft of Electricity Bill.
vi. The afore-mentioned inspection was conducted & further respective theft bill was raised by following all the guidelines laid down by DERC i.e. as per the billing advice submitted to the DFO Enfo. & as per the provisions of the Electricity Act. Thus, the aforesaid Inspection documents and Theft Bill cannot be declared as null and void and on the contrary the present suit deserves to dismiss at the threshold with exemplary cost to be awarded in favour of the Defendant.
vii. The present suit is bad in the eyes of law o the ground Non-joinder and mis joinder of necessary part i.e. Sh. Amit Kumar Yadav S/o Sh. Dal Chand ________________________________________________________________ Digitally signed by ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 17 of 44 ANIL CHANDHEL CHANDHEL Date:
CIV DJ NO. 51/2021 2024.05.28
17:40:10
+0530
Yadav (the present user of the premises). On
23.11.2020, during inspection Sh. Amit Kumar Yadav was found to be the user of the direct theft of electricity supply. Sh. Amit Kumar Yadav is the user of the suit premises. For better adjudication of the present matter, the user of the electricity supply of the suit premises i.e. Sh. Amit Kumar Yadav should be impleaded in the present matter in the interest of justice. Hence, the present suit liable to be dismissed along this ground.
viii. The Plaintiff has filed the present suit on mere conjectures and surmises as from the facts (as detailed herein under), would reveal that the Plaintiff i.e. Shri Dalk Chand Yadav being the Registered Consumer of the Electricity supplied at the premises, has acted dishonestly, and with an intention to make unlawful gain and cause unlawful loss to the Defendant. The Plaintiff, Dal Chand Yadav with dishonest intention was indulged in Direct Theft of Electricity and has acted with the intention of illegally abstracting and consuming electricity, without paying the applicable tariff for the same. As such, the present suit is without any cause of action against the Defendant and is liable to be rejected out rightly as per the provision enumerated under order VII Rule 11 (a) of Code of Civil Procedures1908.
Digitally signed by ________________________________________________________________ ANIL ANIL CHANDHEL CHANDHEL Date:
D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 18 of 44 2024.05.28 17:40:16 CIV DJ NO. 51/2021 +0530 ix. In pursuance to the powers conferred by the provisions of Section 135 (2) of The Electricity Act, 2003 and on receipt of information from reliable sources regarding commitment of the Theft of Electricity, the authorized officers of the Defendant inspected the premises of teh Plaintiff i.e. WZ-206- A, Ground Floor, Vill. Madipur, Jwala Heri, New Delhi-110026 at 07:30AM & during inspection Amit Kumar Yadav S/o Dal Chand Yadav along with Plaintiff were found indulged in Direct Theft of Electricity with the help of illegal wires which were directly connected from BSES Street Light Cable and then feeded to the suit premises for Domestic Purposes. The raiding team consisted of:
(i) Shri Sachin Tomar, Asst. Manager.
(ii) Shri Rohit Singh, Dip. Engg.
(iii) Shri Ravinder, Tech.
x. During the inspection, it was revealed that Sh. Dal
Chand Yadav (Plaintiff) being the Registered Consumer whereas Amit Kumar Yadav S/o Dal Chand Yadav found to be the User of the electricity supplied at the premises, at which the inspection was carried out by the members of raiding team.
The inspection team was headed by Shri Sachin ________________________________________________________________ Digitally signed by ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 19 of 44 ANIL CHANDHEL CHANDHEL Date:
CIV DJ NO. 51/2021 2024.05.28
17:40:22
+0530
Tomar, Asst. Manager, and at the time of raid the Plaintiff was found using the electricity of Domestic (DX) Purpose.
xi. As per the direction of DGM Enforcement;
pursuing the morning raid along with Police Official, the Joint Inspection team of Defendant inspected the aforesaid premises of the Plaintiff. On inspecting the premise, the joint inspection team found that the Plaintiff was found to be the Registered Consumer of the Electricity Supply at the Suit Premises. Further at the time of inspection Plaintiff was indulged in Direct Theft of Electricity through BSES Street Light Cable with the help of two no. of illegal wires. During inspection, one single phase Electronic Meter Bearing No. 40802272 found installed at site, whereas the output of the meter was found in off position. As the inspection team knocked the door, Plaintiff (Registered Consumer came at the balcony of the first floor where the DT was arranged and those theft wires in front of the inspection team and threw it inside the room of first floor. Thus whole load of the premises was found running illegally on direct theft for Domestic purpose. The necessary Videography of the inspection being carried out at the side by Photographer Mr. Hanish of M/s Arora Photo Studio through digital camera. The connected ________________________________________________________________ ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 20 of 44 CHANDHEL CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:40:28 +0530 load of the premises was also checked and recorded as 14.206 KW/DX/DT. The members of the Inspection team disconnected the supply and removed and seized the electricity meter bearing No. 40802272, however the inspection team could not seized the illegal wires due to the user created heavy nuisance. The sketch depicting the mode of Theft was prepared on the Inspection Report by the Raiding Team members.
xii. The Plaintiff was present at the site the entire process but refused to sign the Inspection Report (Meter Detail), Load Report & Seizure Memo prepared by the members of the raiding team at the time of raid / inspection.
xiii. The acts of the Plaintiff (being the Registered consumer) falls within the ambit of the provisions contained in Section 135 read with Section 150 of the Electricity Act, 2003. All essential ingredients of the offence under the said sections of the Act was fulfilled. In view thereof, a presumption has to be drawn against the User also the Registered Consumer i.e. Plaintiff, that the Plaintiff has been guilty of offences under proviso to Section 135 (1) of the Electricity Act, 2003 since the Plaintiff was abating, the user for using the electricity illegally and dishonestly by employing means not authorized ________________________________________________________________ ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 21 of 44 CHANDHEL CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:40:34 +0530 by the Defendant. The acts of the Plaintiff are more specifically covered under proviso to sub section (1) of Section 135 of the Electricity Act.
xiv. The Plaintiff / Registered Consumer has acted dishonestly, and with an intention to make unlawful gain, and cause unlawful loss to the Answering Defendant. The Plaintiff with dishonest intention had employed a method, which resulted in a manner whereby electricity was being stolen. The Plaintiff has acted with the intention of illegally abstracting and consuming electricity, without paying the applicable tariff for the same.
xv. In view of the above, the Plaintiff / Registered Consumer has committed Direct Theft of Electricity, in terms of Section 135 read with Section 150 of the Electricity Act, 2003. He was abating the user to use electricity illegally, by drawing the same dishonestly, from the Defendant's system. Consequently, an amount of Rs.3,25,310/- (Rupees Three Lakhs Twenty Five Thousand Three Hundred and Ten Only) incl. LPSC is payable to be the Defendant by the User as well as the Plaintiff for the wrongful abstraction, consumption theft and use of electricity. Therefore, an Assessment bill dated 24.11.2020 was raised against the Plaintiff. The same has been computed on the basis of the ________________________________________________________________ Digitally signed by D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 22 of 44 ANIL ANIL CHANDHEL CIV DJ NO. 51/2021 CHANDHEL Date:
2024.05.28 17:40:42 +0530 billing load and as per the applicable tariff. The supplementary bill dated 24.11.2020, the same was payable by the due date i.e. 09.12.2020, was made and sent to the Plaintiff. The Defendant had assessed a civil liability of Rs.3,25,310/- (Rupees Three Lakh Twenty Five Thousand Three Hundred and Ten Only) against the Plaintiff in accordance with provisions of DERC Regulations.
xvi. The Plaintiff has willfully neglected to pay the said amount as per the supplementary bill dated 24.11.2020, which was duly sent to the Plaintiff.
The aforesaid acts and omission of the Plaintiff clearly show that Plaintiff was indulging in Direct Theft of Electricity for a very long time and by such act, a huge loss is caused to the Defendant. Such malafide acts and omissions of the Plaintiff herein squarely fall within the ambit of Section 135 read with Section 150 of the Electricity Act, 2003. The Plaintiff has been causing the pilferage of electricity as defined in the aforesaid section and is, therefore, liable for punishment and penalty prescribed under Section 135 of the Electricity Act along with civil liability as contemplated under Section 154(5) of the Electricity Act, 2003.
xvii. Instead of paying the aforesaid Assessment Bill, the Plaintiff has filed the present false, frivolous and ________________________________________________________________ Digitally D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 23 of 44 signed by ANIL CIV DJ NO. 51/2021 ANIL CHANDHEL CHANDHEL Date:
2024.05.28 17:40:48 +0530 vexation suit, praying inter alia for quashing of the Bill. Without prejudice to the above, the act of the Plaintiff (as explained above) does not give any right to the Plaintiff to seek any discretionary relief from this Court, as the person seeking any discretionary relief should come to the Court with the clean hand and bonafide intentions. Hence, the Para wise reply to the present plaint.
xviii. The Defendant have denied the contents of plaint in the parawise replies. However the physical situation of the property or the factum of meters installed on the ground, first and second floor, as stated in para No. 2 to 6 of the plaint, have not been denied by the Defendant.
4. The facts stated in the Replication:
4.1. The Plaintiff has filed the replication, wherein the Plaintiff has traversed the contents of the written statement of the Defendant and has made the necessary denials, reiterating the contents of the plaint.
5. Issues:
5.1 On the basis of the pleadings of the parties, the following issues were framed on 20.12.2021:
ANIL ________________________________________________________________ CHANDHEL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 24 of 44 CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:40:54 +0530 i. Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP.
ii. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP.
iii. Relief. 6. The Plaintiff's Evidence: 6.1 The Plaintiff has led its evidence and has examined only one
witness in support of his case. The Plaintiff has himself appeared as the PW-1 and has exhibited the following documents in his examination-in-chief:
i. Exhibit PW-1/1: Copy of letter dated 23.11.2020. ii. Exhibit PW-1/2: Courier receipts. iii. Exhibit PW-1/3: Speed Post receipts. iv. Exhibit PW-1/4: Printout of courier tracking reports.
v. Exhibit PW-1/5: Printout of speed post tracking reports.
vi. Exhibit PW-1/6: Copy of Enforcement Inspection Report.
vii. Exhibit PW-1/7: Copy of Form for Assessment of Connected Load.
viii. Exhibit PW-1/8: Copy of Observation Memo. ix. Exhibit PW-1/9: Copy of Seizure Memo.
ANIL ________________________________________________________________ CHANDHEL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 25 of 44 CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:41:00 +0530 x. Exhibit PW-1/10: Original CD of the videography of the inspection.
xi. Exhibit PW-1/11: Copy of bill of supply for electricity.
xii. Exhibit PW-1/12: The letter dated 03.12.2020. xiii. Exhibit PW-1/13: Copies of three receipts of speed post and postal tracking report.
xiv. Exhibit PW-1/14: Copies of previous electricity bills dated 24.11.2020, 23.09.2020, 22.08.2020 and 23.07.2020.
xv. Exhibit PW-1/15: letter dated 14.12.2020. xvi. Exhibit PW-1/16(Colly): A few electricity bills of meter No. 40802272 CA No. 102791774.
xvii. Exhibit PW-1/17: Certificate under Section 65-B of Indian Evidence Act.
The PW-1 was cross-examined by the Ld. Counsel for the Defendant and was discharged, upon conclusion of his cross- examination.
7. The Defendant's Evidence:
7.1 The Defendant have also examined two witnesses in support of his case. The DW-1 is the manager of the Defendant. The DW-1, in examination-in-chief, has relied upon the documents already exhibited by the PW-1:
i. Exhibit PW-1/6: Copy of Enforcement Inspection ________________________________________________________________ D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 26 of 44 Digitally signed by ANIL CIV DJ NO. 51/2021 ANIL CHANDHEL CHANDHEL Date:
2024.05.28 17:41:07 +0530 Report.
ii. Exhibit PW-1/7: Copy of Form for
Assessment of Connected Load.
iii. Exhibit PW-1/9: Seizure memo dated 23.11.2020.
iv. Exhibit PW-1/11: Copy of bill for supply of
electricity.
The DW-1 was cross-examined by the Ld. Counsel for the Plaintiff and was discharged, upon conclusion of his cross- examination.
7.2 The Defendant has examined Ms. Sobhna Gopalan, DGM, Finance as the DW-2. The DW-2 has relied upon Exhibit PW1/11 in her examination in chief. The DW-2 was cross-
examined by the Ld. Counsel for the Plaintiff and was discharged, upon conclusion of his cross-examination.
8. Submissions of the Parties.
8.1 After conclusion of the evidence, the Ld. Counsels for the parties have addressed their final arguments. The Ld. Counsel for the Plaintiff has submitted that the Defendant No.1 and 2 have failed to prove the legality of the inspection/enforcement proceedings. He has cited the provisions of the Electricity Act as well as the Delhi Electricity Reforms Act, 2000 to submit that the inspection ________________________________________________________________ Digitally signed by D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 27 of 44 ANIL ANIL CHANDHEL CIV DJ NO. 51/2021 CHANDHEL Date:
2024.05.28 17:41:14 +0530 was carried out in complete violation of the statutory provisions. He has further submitted that the DW-1 has failed to support the contentions of the written statement in his cross-examination. He has stated that since the inspection is per-se void & illegal; therefore, the Plaintiff is entitled to the prayers of the suit. Ld. Counsel for the Plaintiff has relied upon the judgment, passed by the Hon'ble High Court of Allahabad in, "Kamil Vs. State of U.P.: 2016(6)ADJ11."
8.2. Ld. Counsel for the Defendanthas submitted that onus to prove the illegality of the inspection was upon the Plaintiff and the Plaintiff has to rebut the presumption of legality of the inspection. It is submitted that merely few contradictions would not vitiate the entire proceedings. It is submitted that the case at hand is one of the theft of electricity and perfect evidence cannot be expected, due to circumstances, under which the inspection was conducted, as well as due to the resistance from the defaulters. Ld. Counsel for the Defendant has relied upon the following judgments:
i. Punjab State Electricity Board Vs. Ashwani Kumar:
2010(2)CLJ(SC)299;
ii. Adit Engineering Pvt. Ltd. Vs. State : 251(2018) DLT54;
iii. Lokesh Chandela Vs. State of NCT of Delhi:
2012CriLJ1418;
iv. Sushil Sharma Vs. BSES Rajdhani: 2011(1) CC665; v. Hiten P. Dalal Vs. Bratindranath Baneerjee:
2011(2)ACR1492(SC);
ANIL ________________________________________________________________ CHANDHEL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 28 of 44 CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:41:20 +0530 vi. Mukesh Rastogi Vs. NDPL: 2007(99)DRJ108; vii. Raju Vs. BSES Rajdhani: MANU/DE/1885/2016; viii. Udaiveer Singh Vs. BSES Rajdhani:
MANU/DE/0879/2016.
9. Conclusions on Issues & Reasons for such conclusions:
9.1. Issue No.1 Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP.
9.1.1. The onus to prove the Issue No.1 is upon the Plaintiff. The Plaintiff has sought declaration with regard to raid/inspection carried out on 23.11.2020. The main contentions are that the Plaintiff has not committed any theft of the electricity as alleged and the aforesaid raid /inspection was in complete violation of the provisions of the Electricity Act, 2003 as well as in violation of the Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Regulations 2017. The Plaintiff's son was neither the user of the electricity nor was present at the time of the incident/inspection. Thus the core question to be decided for adjudication of the controversy, being subject-matter of present suit and for adjudication of the Issue No.1 can be culled out as follows:
"Whether the inspection/enforcement proceedings, dated 23.11.2020 carried out by the Defendant No.1 was legal ________________________________________________________________ ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 29 of 44 CHANDHEL CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:41:26 +0530 and valid, in terms of the rules and statutory provisions?"
9.1.2. Before dwelling upon the aspect for adjudication of the above-mentioned question, it would be appropriate to adjudge the maintainability of the present suit. The present suit has been filed for challenging the inspection/raid carried out by the Defendant and touches upon the provisions of the Electricity Act, 2003. However the present suit is maintainable, in terms of the law laid down by the Hon'ble Supreme Court in, "North Delhi Power Limited Vs. Devinder Singh & Anr.: CA No. 20842 of 2017 (04.12.2017)", wherein it has been held that the Special Electricity Court acts as a Court of Sessions and has been set up only to try the offences, which are committed under the Act. It has been held that the aforesaid Special Court would not have jurisdiction to entertain and adjudicate a civil suit. In the aforesaid matter, a civil suit challenging a theft inspection and consequent proceedings was filed before the Special Court under the provision of Electricity Act, 2003. The challenge to jurisdiction was rejected by the Hon'ble High Court of Delhi, by relying upon the judgment passed in, "B.L. Kantroo Vs. BSES Rajdhani Power Ltd.:
154(2008)DLT56". However upon appeal, the Hon'ble Supreme Court reversed the decision holding that the Special Court under the Act would not have jurisdiction to entertain a civil suit. Accordingly, the present civil suit is not barred under the provisions of the Electricity Act, 2003.
ANIL
________________________________________________________________ CHANDHEL
D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 30 of 44
CIV DJ NO. 51/2021 Digitally signed
by ANIL
CHANDHEL
Date: 2024.05.28
17:41:32 +0530
9.1.3. Whether the inspection/enforcement proceedings, dated 23.11.2020 carried out by the Defendant was legal and valid, in terms of the rules and statutory provisions?
i. The present case is stated to be a direct theft case by the Defendant No.1, under Section 135 of the Electricity Act, 2003. The Chapter VII of the Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Regulations 2017 provides the rules, which are relevant for the inspection/raid in such cases. In terms of Regulation 55 sub rule 3 and 4, the Licensee/company is duty bound to issue photo identity cards to their Officials, which would clearly indicate their designation. The officers of the Licensee are mandated to videograph the inspection, including the refusal acceptance or denial by the consumer of photo visiting card, signing of inspection report, signing of seizure memo etc. The relevant part of Regulation 55 is being reproduced hereinbelow:
"(2) The Licensee shall publish on its website, the list of the Assessing officers under section 126 of the Act, the Authorized officers under sub-section (2) of section 135 of the Act and the officers authorized by the Commission to disconnect supply under sub-section (1A) of Section 135 of the Act and shall display such list at prominent locations in its local offices.
(3) The Licensee shall issue photo identity cards to all the Assessing officers and Authorized officers specifically indicating their designation and details of ________________________________________________________________ ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 31 of 44 CHANDHEL CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:41:44 +0530 authorization.
(4) During the inspection of premises, in all cases, the assessing officer or the authorized officer as the case may be, shall cause to videograph the entire proceedings, till the completion of inspection at the premises: Provided that the videograph shall include acceptance or denial by the consumer of photo visiting card, signing of inspection report, signing of seizure memo etc. (5) The Licensee shall maintain and submit record of all cases booked under Section 126 of the Act and Section 135 of the Act to the Commission on monthly basis."
The Regulation 56 provides that the Inspecting Officials will carry their photo visiting card/identity cards and show the same to the consumer before entering the premises. The relevant part of regulation 56 is being reproduced hereinbelow:
"56. Inspections of the premises and electrical installations by Assessing Officer:-
(1) The Assessing officer shall promptly conduct inspection of any premises either suo-moto or on receipt of information regarding unauthorized use of electricity thereat: Provided that the Assessing officer may avail the assistance of employees of the Licensee for conducting inspection.
(2) The Assessing officer shall carry his visiting card bearing his photograph and photo identity card issued under Regulation 55(3).
(3) Photo ID shall be shown and the visiting card bearing his photograph shall be handed over to the consumer before entering the premises.
(4) The Assessing officer shall prepare an inspection/site ________________________________________________________________ ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 32 of 44 CHANDHEL CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:41:50 +0530 report as per the provisions under these Regulations."
Regulation 57 further provides for seizure of material evidences during the inspection in the following manner:
57. Preparation of Report by Assessing officer:-
(1) In the event of detection of unauthorized use of electricity, the Assessing officer shall prepare a detailed Report at site, in the manner as prescribed in the Commission‟s Orders.
(2) All the material evidences such as tampered meter, etc. and the documentary evidence, which are relevant to the case found during the inspection, shall be seized under a seizure memo and sealed in the presence of the consumer or his representative and be kept as a proof along with photography and video recording of the premises.
(3) A detailed description of the material seized, including date, time and place and name & address of witnesses to the seizure shall be recorded on the exterior of the cover and signatures of all witnesses shall be affixed on the sealing points: Provided that if the witness refused to sign, the same shall be recorded in the report and captured in the videograph.
(4) The Inspection Report shall be signed by the Assessing officer and a copy of the same shall be handed over to the consumer or his representative at the site immediately under proper acknowledgement. The other persons present at site may also sign the inspection report.
(5) If consumer or his representative at site refuses to acknowledge and/or accept the copy of the report, a copy of the report shall be pasted at a conspicuous place in or ________________________________________________________________ Page No. 33 of 44 Digitally D.C. Yadav Vs. BSES Rajdhani Power Ltd. signed by ANIL CIV DJ NO. 51/2021 ANIL CHANDHEL CHANDHEL Date:
2024.05.28 17:41:55 +0530 outside the premises and photographed and video recorded. Another copy of the same report shall be sent to the consumer under Registered Post or Speed Post or electronically on the same day or on the next day of the inspection.
(6) The Inspection report shall form the basis for further action as per the provisions contained in Regulations."
Similarly the Regulation 60 also casts an obligation upon the Authorized officer about identifying himself to the consumer, before entering the premises and preparation of an inspection report, in the following manner:
"60. Inspections of the premises and electrical installations by Authorized officer:-
(1) The Authorized officer shall promptly conduct inspection of any premises either suo-moto or on receipt of information regarding theft of electricity:
Provided that the Authorized officer may avail the assistance of employees of the Licensee for conducting inspection.
(2) The Authorized officer shall carry his visiting card bearing his photograph and photo identity card issued under Regulation 55(3).
(3) Photo ID shall be shown and visiting card bearing his photograph shall be handed over to the consumer or the occupier of the premises before entering the premises and take the acknowledgment.
(4) The Authorized officer shall prepare an inspection report as per the provisions under these Regulations."
Digitally ________________________________________________________________ signed by ANIL ANIL CHANDHEL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 34 of 44 CHANDHEL Date:
CIV DJ NO. 51/2021 2024.05.28
17:42:01
+0530
ii. In the present case the Plaintiff has stated in the plaint as well
as in the examination in chief that the Plaintiff's son was not present in the premises and subsequently arrived on the spot. It is stated that the Plaintiff' son is neither the registered owner nor the user of the electricity meters in the premises and has been shown as user, without any basis. It is stated that the official did not show their photo visiting cards/identity cards and nothing incrimating was found at the premises. It is further stated that though the theft of electricity was alleged at the first floor, however the meter of ground floor was removed. It is stated that no receipt of the meter was given. It is stated that no report was prepared at the spot and the same was subsequently prepared and shared with the Plaintiff. It is stated that the Plaintiff has filed objections against the Assessment Bill dated 24.11.2020, however no opportunity of hearing was afforded to the Plaintiff.
iii. The Plaintiff has been cross-examined by the Defendant No.1 and 2, however nothing has been extracted from the Plaintiff. The Plaintiff was confronted with the case of the Defendant No.1 and 2, which the Plaintiff has denied.
iv. The Defendant No.1 and 2 have stated in the written statement that the Plaintiff was the user and his father was the registered consumer. It is stated that the Plaintiff was caught directly committing theft of the electricity by using two wires from the first floor. It is stated that the photography and videography of the inspection was done by a professional photographer, being ________________________________________________________________ Digitally D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 35 of 44 signed by ANIL CIV DJ NO. 51/2021 ANIL CHANDHEL CHANDHEL Date:
2024.05.28 17:42:08 +0530 part of the team. It is stated that the relevant evidence could not be seized due to the resistance of the Plaintiff and his son. It is stated that the Plaintiff and his son refused to sign the report.
v. The Defendant No.1 and 2 has examined only one to prove their contentions. The DW-1 is the head of the team, which has conducted the inspection on 23.11.2020. The DW-1's cross-examination places a question mark over the legality of the inspection carried on 23.11.2020.
vi. The cross-examination of DW-1 reveals that the I-card of the DW-1 does not disclose his designation as the manager or that he is employed in the enforcement branch. He states that he was not working as Manager on 23.11.2020, i.e., the day of inspection. He further states that he did not remember his designation on 23.11.2020. The witness could not point out any document, pursuant to which the inspection was conducted. He further could not point any document whereby he was authorized to conduct the inspection. In the written statement it was stated that the inspection was conducted on account of some reliable information received about the theft, however in the cross-examination, the witness states that there no such information from any source and he was not aware as to why the aforesaid fact has been mentioned in the affidavit. The witness states that the inspection was conducted during the mass raid, in the village Madipur. No document was pointed out for conducting the mass raid. The witness was ________________________________________________________________ D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 36 of 44 Digitally signed by ANIL CIV DJ NO. 51/2021 ANIL CHANDHEL CHANDHEL Date:
2024.05.28 17:42:15 +0530 further not aware of the procedure of inspection in cases related to theft.
vii. Thus, the facts as emerging on record are that the name and designation of the Officers conducting the raid/inspection is not disclosed to the consumer. The sole witness himself is not sure about his designation on the date of inspection and his current I-card does not display his designation and the same is a violation of the Regulation 55, 56 and 60. It is surprising that the head of the investigation team is not aware of his designation on the date of inspection.
viii. The witness was the head of the raiding/inspecting team. The head of the inspecting team should be aware of his designation as well as the legal procedure of the inspection. The inspection is regulated by the law and therefore, before conducting such an inspection, it is pre-emptory to be aware of the rules pertaining to the same. Even if the specific rules are not mathematically remembered, at least the substantive practical knowledge of the rules would suffice, however the cross examination of the witness points out his lack of knowledge about such rules. The relevant part of the cross- examination is being reproduced hereinbelow:
"The procedure of inspection and preparation of report of a premises in case of theft is given in Section 135 of the Electricity Act. I do not know, if any procedure is mentioned in electricity regulation. Again said, it is mentioned in DERC regulation but I do not know where it is written. I do not know the rule number, in which the procedure is prescribed, but I ________________________________________________________________ Digitally signed by D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 37 of 44 ANIL ANIL CHANDHEL CIV DJ NO. 51/2021 CHANDHEL Date:
2024.05.28 17:42:21 +0530 am aware of the procedure.
Q. Please tell the complete procedure of inspection and preparation of report in case of raiding of premises for electricity. What do you have to say?
Ans.: Under Section 135 of the Electricity Act, 2003, as being authorized officer, whenever in my area, theft is running, we book the premises."
The witness has also stated that he is not aware if under regulation 61 of the DERC Regulations, 2017, it is required to photograph or videograph the refusal of the person as well as the pasting of the inspection report at the premises. Thus the witness has failed to establish that he was substantively aware of the procedure of the inspection.
ix. Further the witness has stated that he had tried to affix the inspection report at the premises, however public persons gathered did not allow them to paste the report at the premises. The witness was not sure whether the same could be seen in the video. Strangely, the witness has also stated in the cross-examination that no resistance has been shown by the Plaintiff or his father during the inspection. Moreover the video does not show any such attempt of affixation, being made or resistance been afforded to the same.
x. If the video, i.e., Exhibit PW-1/5 is examined, the same starts with the Officials stating that the Plaintiff is removing the wire. The alleged act of removing the wire is not visible, though their appears to be some movement on the balcony, however its extremely difficult to comprehend and see any ________________________________________________________________ Digitally D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 38 of 44 signed by ANIL CIV DJ NO. 51/2021 ANIL CHANDHEL CHANDHEL Date:
2024.05.28 17:42:27 +0530 wire/ two wires being connected directly to commit theft. Though in conversation of official, the reference is only to one wire. The Official thereafter enters the premises without disclosing their names and identity. The officials, time and again requested the Plaintiff to open one particular room, however the Officials were not permitted to go inside that room. The Officials stated that removed wire was in the room. The entire inspection was peaceful, except the part where the access to the room was blocked by the Plaintiff. In the remaining inspection, there was no protest or resistance on the behalf of the Plaintiff or his son. The aforesaid videography in Exhibit PW-1/5 is stated to be provided to the Plaintiff by the Defendant and the Plaintiff has stated the same to be truncated and fabricated, however has also relied upon the same, in a manner. Though there is no certificate under Section 65B of the Indian Evidence Act, 1872, in support of the Exhibit PW1/5, however, the Defendant No.1 and 2 have also not challenged the Exhibit PW1/5. Thus the Exhibit PW1/5 has been proved against the Defendant No.1 and 2.
xi. The people in the video are largely the Plaintiff, family members and the inspection team. The removal of the meter is not resisted to. However time and again, it was requested to the officials to give in the writing the reason for removal as well the factum of removal and receipt for the same. The video indicates that despite the requests for written reasons and receipt, nothing in writing was shared. The Plaintiff was not even asked to sign the report/receipt for removal and in ________________________________________________________________ ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 39 of 44 CHANDHEL CIV DJ NO. 51/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:42:33 +0530 fact no such report/receipt was prepared, at the spot. The video captures the events from entry till the team went away with the meter, however the team is not even seen to make an attempt to prepare any report or get the same signed by the Plaintiff.
xii. Though the conduct of the Plaintiff in not letting the official enter in one particular room appears suspicious, however the officials in video were not bearing their Identity cards nor had introduced themselves by designation. The PW-1 has not been confronted with the aforesaid part in the cross -examination and remaining entire proceedings were without any opposition. Therefore, the aforesaid factor alone would not be sufficient to sustain the legitimacy of the inspection. The team had a police official in it and therefore, if it was of the view that the incriminating evidence was in that particular room, it should have introduced themselves and should have legally tried to obtain the evidence.
xiii. Therefore, the inspection was not conducted in terms of the applicable rules. The witness of the Defendant has failed to establish the legality of inspection in his cross-examination. No other team member has been examined from the team. The violation of regulations 55, 56, 57, 60 and 61 of the Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Regulations 2017 is writ large on the face of inspection.
ANIL CHANDHEL ________________________________________________________________ Digitally signed by D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 40 of 44 ANIL CHANDHEL CIV DJ NO. 51/2021 Date: 2024.05.28 17:42:39 +0530 xiv. One more aspect is that there were multiple meters in the premises. The theft was stated to be at the first floor, whereas the meter of ground floor was seized. The load estimate has been prepared randomly and not at the spot. It is stated in the written statement that the load estimate was prepared in presence of the Plaintiff's father, however the video, i.e., Exhibit PW-1/5 belies the aforesaid fact. The video does not connect the aforesaid devices as well as well with the meter seized or wire stated to be used has to be shown. The entire video shows some random pictures/conversations. Even if it is a case of theft, it does not give power to the inspecting team to conclude a whimsical amount and the same has to be relatable to the devices plugged to the wire stated to be used for illegal use or theft of the electricity. The Defendant No.1 and 2 did not make any attempt to prove the sketch of the theft in the Court. The basis for estimation of the load for concluding the amount of Rs.3,25.310/- has not been established on record. There is no nothing on record to show that the load estimation has been made in terms of formula stated in Appendix-I of Delhi Electricity Regulatory Commission Regulations, 2017. Merely randomly mentioning the devices and stating an entry against them would not by itself prove the same.
xv. Further the seizure and sealing of the meter has to be in terms of DERC Regulations, however nothing is visible from the video whether the aforesaid procedure was followed. The seized meter has been stated to be sent to store, however no ________________________________________________________________ Digitally signed by ANIL D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 41 of 44 ANIL CHANDHEL CHANDHEL Date:
CIV DJ NO. 51/2021 2024.05.28
17:42:45
+0530
document has been produced, whether the same was sent to the store/accredited laboratory for examination. There is nothing on record to conclude that the meter was in off-load position.
xvi. Thus the Defendant No.1 has failed to establish the legality of the inspection as well as the basis of the assessment bill issued to the Plaintiff. Another important aspect is that no material has been produced to show that the Plaintiff's son was the user of the electricity in the premises. The identity of the Plaintiff's son on the spot or in video has not even been attempted to be established by the Defendant. Interestingly, the allegations of theft are against the Plaintiff. It can be seen in video, i.e., the Exhibit PW1/5 that the Officials have asked for the names of the Plaintiff and his son, which he had readily disclosed. It has not asked from the Plaintiff as to who else except him was using the electricity in the premises. Further the Plaintiff himself neither disputed nor disowned his liability of being the registered owner/user of the electricity of the premises. Therefore, the basis for terming the Plaintiff's son as user and booking him for theft is completely missing in the facts asserted by the Defendant.
xvii. Therefore, on account of the preponderance of the probabilities, it has been proved by the Plaintiff on record that the inspection/enforcement proceedings, dated 23.11.2020 carried out by the officials of the Defendant was not legal and valid, in terms of the rules and statutory provisions, as ________________________________________________________________ D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 42 of 44 ANIL CIV DJ NO. 51/2021 CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:42:52 +0530 discussed hereinabove and the answer to question, as framed above is in the negative.
9.1.4. Therefore, the Plaintiff has proved his entitlement for the declaration to the extent that enforcement proceedings carried out by the officials of the Defendant on 23.11.2020, the removal of the electricity meter from the premises and issuance of the bill dated 24.11.2020 are null void. The Issue No.1 is accordingly decided in favour of the Plaintiff and against the Defendant.
9.2. Issue No.2. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPD.
9.2.1. In terms of the Issue No.1, the inspection/enforecement proceedings and the removal of the meter has been declared to be null and void. Once, the proceedings carried out the officials of the Defendant have been declared nullity, the only consequence of the same is that the Plaintiff is entitled to seek restoration of the electricity connection. Accordingly, the Plaintiff is entitled to the consequential relief of the restoration of his electricity connection. The Issue No.2 is accordingly decided in favour of the Plaintiff and against the Defendant.
Digitally
10. Relief: signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.05.28 17:42:59 +0530 ________________________________________________________________ D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 43 of 44 CIV DJ NO. 51/2021 Accordingly, the suit of the Plaintiff is decreed and a decree for declaration is passed, whereby it is declared that the inspection/enforcement proceedings carried out by the officials of the Defendant on 23.11.2020 and the act of removal of the electricity meter from the ground floor of the property as well as issuance of Bill No.HNENR 241120200005A0 dated 24.11.2020 are null and void. A decree for mandatory injunction is passed and thereby the Defendant is directed to restore the electricity supply of the ground floor of the property of the Plaintiff, which was disconnected vide meter no. 40802272, bearing CA No.102791774, having sanctioned loan of 2.00 kw. The decree sheet be drawn accordingly. The files be consigned to record room after due compliance.
Digitally signed by ANIL CHANDHEL ANIL Date:
CHANDHEL 2024.05.28
17:43:08
+0530
Announced in the open Court (ANIL CHANDHEL)
today on 28th of May, 2024 DISTRICT JUDGE-04
WEST DISTRICT
THC/DELHI/28.05.2024
________________________________________________________________ D.C. Yadav Vs. BSES Rajdhani Power Ltd. Page No. 44 of 44 CIV DJ NO. 51/2021