Delhi District Court
Smt. Kiran Gandhi vs N.D.P.L on 17 March, 2015
IN THE COURT OF MS. SWARANA KANTA SHARMA
ASJ (ELECTRICITY): NW DISTRICT: ROHINI: DELHI.
Suit No.M29/12
Smt. Kiran Gandhi
W/o Shri D.K. Gandhi
R/o D532, 1st Floor,
Sector1, Avantika
Rohini, Delhi ........ Plaintiff
Vs.
N.D.P.L
Through its Commercial Manager
Sector3, Rohini
Delhi110 085 ......... Defendant
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
Date of Institution : 24/01/2012
Date of reserving order : 12/03/2015
Date of pronouncement : 17/03/2015
(Appearances)
Shri Ashok Kumar, Ld. counsel for plaintiff.
Shri O.P. Parshad, Ld. counsel for defendant company.
J U D G M E N T
The plaintiff has filed this suit for declaration and permanent injunction alleging interalia that plaintiff has an electricity connection bearing K.No.44105023166 installed at property No.D532, Ist Floor, Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........1 of 17 Sector1, Avantika, Rohini, Delhi belonging to her. It is the case of the plaintiff that she has been paying regular electricity bills to the defendant company in respect of the above mentioned electricity connection.
2. The plaintiff has further stated in the plaint that she has been using this electricity connection for the purpose it was sanctioned for i.e. for domestic purpose and has never misused the electricity connection at any point of time.
3. It is the case of the plaintiff that on 27.09.2011 the officials of the defendant company had visited the house of the plaintiff and had told her that they have come for routine survey of the meter and she had agreed for the same.
4. The plaintiff's case is that her husband was running an electricity shop and after the death of her husband all the electrical items which are lying in the shop were brought home, but were never used.
5. It is further the case of the plaintiff that since the meter of many premises and shops in her area were being replaced, she had also requested the defendant company to replace the electricity meter. However, despite her repeated requests the meter was neither replaced by the defendant company nor any official had checked the same. The plaintiff further claims that a raid was conducted at her premises on Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........2 of 17 27.09.2011 and a false case regarding misuse of electricity was registered against her. The plaintiff pleads that she had received inflated electricity bill in the sum of Rs.52,790/ and had received a notice for disconnection of electricity on 15.12.2014. She pleads that since she had failed to make payment of the bill raised by the defendant company, the electricity supply to her house will be disconnected. It is stated that the defendant company has been repeatedly threatening that the electricity supply to her premises will be stopped and that they have also issued a disconnection letter/notice dated 15.12.2014. It is further grievance of the plaintiff that till date no meter has been installed at her premises. It is, therefore, prayed that a decree of permanent injunction be passed thereby restraining the defendants and its agents from disconnecting the electricity supply to the premises of plaintiff. Further a decree of declaration be passed for declaring the inspection report dated 27.09.2011; speaking order dated dated 24.11.2011 and final assessment bill for a sum of Rs.52,798/ dated 25.11.2011 as null and void.
6. Written statement was filed by the defendant company wherein they have taken preliminary objections amongst other objections wherein they have denied the averments made by the plaintiff. It is mentioned in the written statement by the defendant that as per DERC Regulation, 2007, the plaintiff was liable to keep the meter in safe custody and to maintain it properly and if enough steps are not taken to Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........3 of 17 protect the meter from tampering or damage or misuse and if any irregularity is found in the meter for which the consumer has no satisfactory explanation, the consumer shall be liable for the same. It is averred in the written statement that since in the inspection report dated 27.09.2011, it is clearly mentioned that at the time of inspection the meter box seals, meter terminal seals were found tampered and removed, the double shunt wire was found between incoming and outgoing of the meter, the accu check machine had revealed that the meter was slow by 50.15% and a load of 8.4 KW was found connected against sanctioned load of 1.00 KW for the domestic category, the plaintiff was clearly guilty of committing theft of electricity and is thus, liable to pay the bill raised by the defendant company. It is also averred that the plaintiff is not entitled to either a declaration or an injunction from this Court, since she has not come to the court with clean hands.
7. Rejoinder was filed by the plaintiff to the written statement of the defendant wherein she has denied the averments made by the defendant company.
8. After completion of the pleadings following issues were settled:
ISSUES
1. Whether the plaintiff is entitled for a decree for declaration to the effect that the inspection report dated 27.09.2011 is null and void? OPP Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........4 of 17
2. Whether the plaintiff is entitled for a decree of mandatory injunction directing the defendant, its agents, employees, associates, officers/officials not to disconnect the electricity supply of the plaintiff through K.No.44105023166, installed at D532, Ist Floor, Sector1, Avantika, Rohini, Delhi? OPP
3. Whether the plaintiff was indulged in dishonest abstraction of energy during the inspection dated 27.09.2011? OPD
4. Relief, if any.
9. In support of her case the plaintiff has examined herself as PW1. She has tendered her affidavit in evidence which is Ex.PW1/A. She has stated in her evidence that she has been using the electricity connection installed at her premises for domestic purpose and has been paying the bills regularly. She has further stated that on 27.09.2011 the employees of the defendant company had visited her house and had told her family members that they had come for routine survey for which the plaintiff had agreed. She has further stated that her husband was running a shop of electrical items and after his death those items were brought to their residential premises and had been lying there unused. She has also stated that she had requested the defendant company several times to replace the meter installed at her premises. However, they had not paid any heed to her requests. She has further stated that though she admits that the staff of the defendant company had conducted a survey and a raid, however, they had prepared a false inspection report Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........5 of 17 and had made her sign the same without disclosing the contents of the inspection report. She had been advised orally to get the electricity meter replaced from the defendant company. She has also stated that the defendant company has wrongfully mentioned that a load of 8.4 KW had been found connected at her residential premises. She states that they have taken into consideration the unused electrical items lying at her home and, therefore, their claim regarding the load found at the premises is false and based on presumptions. She has further stated that she was surprised to receive a bill dated 25.11.2011 in the sum of Rs.52,798/ and thereafter she had received a disconnection notice on 15.12.2011 since she had failed to pay the inflated bill. She has stated that she was being repeatedly threatened that the electricity supply to her premises will be disconnected unless she settles the case with the defendant company by paying a sum of Rs.39,120/. She has stated that the demand of the defendant company is illegal and unlawful and, therefore, they be restrained from insisting on payment of this inflated amount.
10. She has further stated that her plea for replacing the meter dated 28.12.2011 has been pending with the defendant company but they have failed to replace the same. She has further stated that the photographs of the meter taken at the spot by the raiding team reveal that the meter reflected in the photographs was different from the original meter installed in the suit property. She has further stated that Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........6 of 17 the defendant company officials had put another meter No.04409637 in place of original meter of the plaintiff having No.04409437. She states that she had been paying regular bills towards meter No.04409437. It is stated by the plaintiff that the defendant officials have cheated and intentionally pasted the label of plaintiff's meter number on the meter planted by the defendant's officials. She has further stated that after removing the label of 04409437 it will reveal the number of the meter as 04409637 which does not belong to the plaintiff. It is also stated that the defendant had manipulated the documents and have fraudulently show the meter belonging to the plaintiff. She has also proved on record the copies of the photographs Ex.DW1/3 to Ex.DW1/8.
On being cross examined by Shri O.P. Parshad, Ld counsel for defendant company she stated that her husband had died on 13.01.2011. She admitted that she had not applied for connection in her name after the death of her husband. The connection was applied for and sanctioned for domestic purpose and the same is being run for domestic purpose only. She has stated that the sanctioned load at her premises was 1 KW. She admitted that the officials of NDPL had checked the meter on 27.09.2011 against K.No.44105023166 and meter No.4409437. She stated that the same was not checked in her presence. However, 56 officials had come to her residence and had asked her to go upstairs. One official had accompanied her to first floor and the remaining officials had remained downstairs for checking the meter. She stated that the meter was not checked in her presence, only Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........7 of 17 the seals were broken by the officials of NDPL in her presence. She denied that the officials had not broken the seal of the meter. She denied that she had not indulged in theft of electricity by tampering with the meter box seals, meter terminal seals and by installing the double shunt wire between incoming and outgoing of the meter at the back side of the meter. She further stated that she cannot say as to whether the meter was checked through accu check and the result revealed that it was 50.15% slow. She denied that the connected load was found 8.4 KW against the sanctioned load of 1 KW. She admitted that the appliances which are mentioned in the inspection report were found at the premises but she stated that the same were not in use. She stated that the appliances mentioned in the inspection report were not installed but were merely kept in the premises. She admitted that the inspection report and show cause notice bears her signatures but she stated that these documents were not prepared in her presence. She admitted that she had signed the aforesaid documents without any protest. She also admitted that she had visited the office of complainant on 04.10.2011 and had given a written representation. She stated that the photographs of the meter which were allegedly of the meter installed at her premises did not belong to her. She stated that the photographs in respect of the retained tampered meter were taken at the spot relates to her meter. She admitted that the inspection report was pasted on the retained meter box to maintain status quo. She also admitted that the officials of defendant company had checked the retained meter bearing No. Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........8 of 17 4409437. She denied that the bill in question is correct. She admitted that she had not made any representation after receiving the final assessment bill.
11. Plaintiff's evidence was closed vide her separate statement.
12. The defendant company has examined three witnesses.
13. DW1 Shri Sandeep Kumar Kohli has tendered affidavit in evidence and has proved the same as Ex.DW1/A and has also proved the inspection report and show cause notice as Ex.DW1/1 and Ex.DW1/2. The photographs of the spot were proved as Ex.DW3/1 to Ex.DW1/8. He stated that the premises of the plaintiff was inspected on 27.09.2011 against K.No.44105023166 bearing meter No.4409437 by the enforcement team comprising of himself and some other technically efficient persons well equipped and conversant with their job of checking the meter and other metering equipment in the presence of user. He stated that during the raid following irregularities were found to have been committed by the plaintiff:
i) Meter box seals were found tampered
ii) Meter terminal seal was found tampered.
iii) Double shunt wire was found between incoming and outgoing of
the meter at the back side of the meter.
Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........9 of 17
14. The witnesses further stated that due to these irregularities inspection report and show cause notice dated 27.09.2011 were prepared at spot in the presence of the user, who had accepted and signed the same without protest. In token of receipt of these documents he had also stated that necessary photographs were taken as evidence and also paper seal No.131843 dated 27.09.2011 duly signed by the members of the team was pasted on the meter box to maintain status quo. He stated that actual and factual position found at the site was correctly mentioned in the inspection report and the same was forwarded to the office for further action.
On being cross examined by Ld. counsel for the plaintiff he stated that he did not remember as to how many meters were intalled in the premises in question. He stated that they had taken the photographs of the meter installed in the premises in question. He stated that he did not remember the number of the inspected meter. He admitted that the meter No.4409437 is mentioned in the inspection report and the meter number in the photographs Ex.DW1/4 is mentioned as 4409637. He denied that since the meter number mentioned in the photographs Ex.DW1/8 is different from the meter number in the inspection report, therefore, the photographs do not pertain to the premises of the plaintiff. He denied that the meter of the plaintiff was found tampered. He denied that the photograph of the other meter have been placed on record to implicate the plaintiff in the present case.
Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........10 of 17
15. DW2 Shri Devender Singh Dangwal also tendered his evidence by way of affidavit and proved the same as Ex.PW2/A and stated that the suit premises had been inspected by the inspecting team on 27.09.2011. He stated that after the documents and the photographs were submitted in the office, the consumption pattern of the consumer was studied and analyzed which revealed that the average recorded consumption was 89.57 units per month whereas the average computed consumption was 436.56 units per month. He stated that it was revealed that the recorded consumption was substantially less compared to the computed consumption which corroborates the findings of the inspecting team. The consumer was deliberately and dishonestly indulging in the manipulation of recording of actual consumption of electricity. He admitted that a representation had been received from the plaintiff which was accorded a personal hearing on 04.10.2011. After considering the representation of the plaintiff the case had been decided on merits on the basis of findings of the inspecting team, the consumption pattern, photographs and speaking order had been passed on 24.11.2011 along with final assessment bill for Rs.52,798/.
On being cross examined by counsel for the plaintiff he denied that he had not considered the representation of the plaintiff properly or that the speaking order is false and fabricated.
16. DW3 Shri Ravi Kumar, photographer also tendered his evidence by way of affidavit Ex.DW3/A and stated that he had taken the Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........11 of 17 photographs of the premises in question as he had accompanied the inspecting team on 27.09.2011 to the premises of the plaintiff. He proved the photographs Ex.DW1/3 to Ex.DW1/8.
On being cross examined by counsel for the plaintiff he stated that he could not tell the number of the meter regarding which the photographs were taken. He denied that he had not visited the premises in question or that he had not taken the photographs.
17. Defendant's evidence was closed.
18. Final arguments were heard. I have heard Ld. counsels for the parties and have gone through the case file and the documents placed on record carefully. My findings to the issues are as under. I shall decide issue No.3 first.
ISSUE NO.3
19. I have also gone through the statement of the witnesses. The case of the defendant company is that the premises of the plaintiff had been inspected on 27.09.2011 during which they had found that the plaintiff had been committing theft of electricity by tampering with the meter number No.4409437. A perusal of inspection report also shows that it is mentioned in the inspection report that the meter which was found tampered with bears No.4409437. A replacement form which has been placed on record by the plaintiff also shows the the old meter Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........12 of 17 number as 4409637. Show cause notice Ex.DW1/2 also mentions the meter which has been tampered with as 4409437. The plaintiff has also filed on record the bills towards payment of the electricity consumption of the previous dates which too mention the meter number installed at her residence as 4409437.
20. Therefore, it is clear that it is the case of the NDPL that user i.e. the plaintiff was using electricity through meter No.4409437 which had been tampered with and had been slowed down with the help of tampering the meter box seals, terminal seal and double shunt wire found between incoming and outgoing of the meter at the back side of the meter.
21. The photograph Ex.DW1/6 filed on record however, reflects meter number 4409637 which had been found to be tampered with at the spot. Ex. DW1/6 reveals that the original inscription on the meter shown in this photograph allegedly tampered with bears meter number 4409637, March 2004. These are the photographs of the meter which had been found tampered with and retained at the spot as per case of defendant. Interestingly the team of NDPL had not seized the tampered meter in question for reasons best known to them though it was best piece of evidence. Only a paper seal bearing the meter number and the signatures of the team members and date 27.09.2011 has been pasted on the meter which was found tampered with at the spot. On the meter Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........13 of 17 allegedly found tampered the name of the plaintiff and the meter number as '4409437' have been mentioned, whereas the meter retained bears No.'4409637'. It is the case of defendant that the seal has been pasted on the meter on account of dishonest abstraction of energy. Therefore, it is clear beyond doubt that the meter which was retained at the spot was allegedly found tampered with in fact bears No.'4409637' and not '4409437' as alleged by NDPL.
22. As already discussed above it is undisputed that the meter being used by the plaintiff was '4409437' not '4409637'. Thus, the plaintiff has been able to prove that the meter No.'4409437' which was installed at her residence was neither inspected nor had been found tampered with. Since the photographs of the meter which was found tampered allegedly at her residence bears No.'4409637', the case of plaintiff's is further strengthened.
23. Moreover, specific question in this regard had been put to the defence witnesses regarding discrepancy in the meter numbers. However, no justification or clarification was forthcoming from the defendant company in this regard. I am, therefore, of the opinion that the plaintiff has been able to prove that she had not been indulging in dishonest abstraction of energy and that the meter installed at her premises No.4409437, was neither inspected nor it could be proved on record by the defendant company that this meter had been tampered Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........14 of 17 with for the reasons mentioned above.
24. In view of discussions made above, issue No.3 is decided in favour of the plaintiff and against the defendant.
Issue No.1
25. Since issue No.3 has been decided in favour of the plaintiff and against the defendant there is no need to discuss issue No.1 in detail and it is declared that the inspection report dated 27.09.2011 is null and void.
Issue No.2
26. The relief of injunction is a discretionary relief. The person who approaches the court for the same needs to establish that a legal right exists in his favour having corresponding obligation upon the opposite party. The plaintiff is however, required to establish that the opposite party is adamant to violating his existing legal right and needs to be prevented from doing so. In this case the plaintiff has established that she has been using the electricity connection for domestic purpose and has never misused the same for any other purpose. She has established that the meter which was retained at the spot which was allegedly found tampered with bears No.'4409637' and not '4409437' as alleged by NDPL. Even otherwise it is undisputed that the meter being used by the plaintiff was '4409437 and not 4409637'. The plaintiff has Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........15 of 17 thus, established that the meter No.'4409437' installed at her residence was neither inspected nor had been found tampered with and further that she is regularly making the payment of the electricity bill from time to time raised by the defendant. The plaintiff has further succeeded in proving that the inspection report dated 27.09.2011 was illegal. It is also established while deciding issue No.3 that plaintiff was not indulging in dishonest abstraction of energy during the inspection dated 27.09.2011, she is, therefore, entitled to the discretionary relief of permanent injunction restraining the defendant, its employee, agents from disconnecting the electricity supply through K.No.44105023166 installed at the premises of the plaintiff i.e. D532, Ist Floor, Sector1, Avantika, Rohini, Delhi for not making the payment of the bill dated 25.11.2011 which has been declared to be illegal and null and void. The issue No.2 is thus decided in favour of the plaintiff and against the defendant. Relief.
27. In view my findings on issues No.1 and 2, the plaintiff is entitled to grant of declaration as well as permanent injunction as claimed for. Accordingly the decree of declaration is passed in favour of the plaintiff and against the defendant declaring the inspection dated 27.09.2011, final assessment bill dated 25.11.2011 for Rs.52,798/ as illegal and null and void.
Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........16 of 17
28. Further a decree of permanent injunction is passed in favour of the plaintiff and against the defendant restraining the defendant its employee, agents or any other person representing it are restrained from disconnecting the electricity supply through K.No.44105023166 installed at the premises of the plaintiff i.e. D532, Ist Floor, Sector1, Avantika, Rohini for not making the payment of the bill which is based on the illegal inspection dated 27.09.2011.
In view of above terms, the suit of the plaintiff is decreed with costs. Decree Sheet be prepared accordingly.
29. File be consigned to Record Room.
Announced in the open court on 17th March, 2015.
( SWARANA KANTA SHARMA ) ASJ (ELECTRICITY): NW DISTRICT ROHINI:DELHI.
Suit No.M-29/12 (Kiran Gandhi Vs NDPL) Page no........17 of 17