Delhi District Court
Smt. Suresh Kumari vs North Delhi Power Limited on 1 October, 2019
IN THE COURT OF SHRI GIRISH KATHPALIA
DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI.
CS No. 723/2019
SMT. SURESH KUMARI
W/o SH. T.C. PALI
R/o H.NO. 1, FIRST FLOOR
NEHRU KUTIA, MALKA GANJ
SUBZI MANDI, DELHI110 007
.....PLAINTIFF
VERSUS
1. NORTH DELHI POWER LIMITED
GRID SUBSTATION BUILDING
HUDSON LINE, KINGSWAY CAMP
DELHI110 009
2. SMT. CHANDAN MALA JAIN
W/o LATE SH. A.K. JAIN
3. SMT. ANITA JAIN
D/o LATE SH. A.K. JAIN
4. SH. RAJ KUMAR JAIN
5. SH. AMIT JAIN
SONS OF LATE SH. A.K. JAIN
RESPONDENT NOS. 2 TO 5
RESIDENTS OF:
HOUSE NO. 3735, GALI JAMADAR
PAHARI DHIRAJ, SADAR BAZAR
DELHI110 006
... ..DEFENDANTS
CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 1 of 26 pages
Date of filing : 11.11.2010
First date before this court : 29.07.2019
Arguments on appeal concluded on : 21.09.2019
Date of Decision :01.10.2019
Appearance : Sh. B.P. Aggarwal, counsel for plaintiff
Sh. V.K. Rai, counsel for defendant
JUDGMENT
1. Plaintiff, being the registered consumer of electricity connection installed in her premises, has filed this suit seeking decree of declaration that the inspection report dated 21.02.2006, consequential show cause notices, followed by speaking order dated 07.08.2009 and bill of Rs. 12,96,746/ are null and void; and for permanent injunction, thereby restraining the officials of defendant no. 1 NDPL from initiating any proceedings against the plaintiff on the basis of the said show cause notices; and for permanent injunction, thereby restraining the defendant no. 1 NDPL from transferring the outstanding dues against electricity connection of one meter to the other meter in the premises of the plaintiff. The suit was filed, arraying the electricity supply company New Delhi Power Limited as defendant no. 1 and legal representatives of the deceased tenant of plaintiff as defendant nos. 25. It is only defendant no. 1 who contested the suit. Defendant nos. 25 opted not to contest and were proceeded exparte vide order dated 16.11.2010.
CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 2 of 26 pages
2. Briefly stated, the factual matrix as set up by plaintiff is as follows.
2.1 Plaintiff, being owner of the premises bearing number 1, Nehru Kutia, Malkaganj, Subzi Mandi, Delhi had inducted Sh. Ashok Kumar Jain, the now deceased predecessor of defendant nos. 25 as a tenant for commercial purposes in the year 1997 with respect to a portion of ground floor of the said premises at a monthly rent of Rs. 6000/. Plaintiff got installed in the said premises a separate electricity connection bearing K. No. 35101136355, meter number 0400019507 (hereinafter referred to as 'the said meter') with sanctioned load of 16 KW for exclusive user by the tenant.
2.2 During his lifetime, Sh. Ashok Kumar Jain and subsequent to his death his legal representatives failed to pay rent regularly. Defendant nos. 25 being legal representatives of Sh. Ashok Kumar Jain also did not pay electricity consumption charges to plaintiff.
2.3 Officials of defendant no. 1 are stated to have conducted a raid/inspection of the premises of plaintiff on 21.02.2006 in presence of the remaining defendants and prepared an inspection report reflecting that defendant nos. 25 had installed some moulding machines in the premises and were dishonestly abstracting electricity for commercial CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 3 of 26 pages purposes; that against the sanctioned load of 16 KW, connected load found was 48.66 KW; that the said meter was found to have been deliberately tampered with by refixing of seal wire with adhesive; and that the said meter was found running slow by 69.21% according to accuracy check performed.
2.4 The raiding team of defendant no. 1 is further stated to have prepared show cause notice dated 21.02.2006, which was served on defendant no. 3, stated to be present at the time of raid.
2.5 Plaintiff or her family members were not aware regarding the alleged dishonest abstraction or misuse of electricity by defendant nos. 25 and the raid conducted by officials of defendant no. 1 in the premises of plaintiff.
2.6 On 03.01.2007, premises of the plaintiff were sealed by the municipal authorities under the directions of Hon'ble Supreme Court on the ground of unauthorized business activity conducted by defendant nos. 25. As such, plaintiff requested defendant no. 1 on 04.01.2007 to disconnect electricity of the premises. But after sealing of the said premises, plaintiff received bills dated 18.01.2007 and 17.02.2007 and she cleared the same.
CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 4 of 26 pages 2.7 On 02.03.2007, husband of plaintiff visited office of defendant no. 1 to ascertain the action taken by defendant no. 1 on her letter dated 04.01.2007 and the matter remained closed thereafter.
2.8 Suddenly, plaintiff received a show cause notice dated 02/04.06.2008 issued by defendant no. 1, thereby calling upon plaintiff and defendant no. 4 to show cause why the proceedings for dishonest abstraction or misuse of electricity be not initiated and assessment bill be not raised. Plaintiff replied to the said notice on 13.06.2008, denying its contents.
2.9 On 19.06.2009, plaintiff received another show cause notice issued by defendant no. 1 reiterating the same allegations as were leveled in show cause notice dated 04.06.2008. Plaintiff responded by way of reply dated 25.06.2009.
2.10 On 26.03.2011, officials of defendant no. 1 threatened son of plaintiff that they intended to transfer the outstanding liability to the live electricity connection in the said premises which was in the name of plaintiff.
2.11 During pendency of the present suit upon perusal of contents of the amended written statement, plaintiff came to know that defendant no. 1 had passed a speaking order, which was alleged to have CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 5 of 26 pages been served on plaintiff on 07.08.2009 and the same followed a bill of Rs. 12,96,746/ against the plaintiff. Neither the speaking order nor the alleged bill was ever served upon the plaintiff.
2.12 Hence, the present suit for declarations and injunctions as described above.
3. In its written statement, defendant no. 1 denied the pleadings of plaintiff and set up its case as follows.
3.1 The relief sought by plaintiff for declaration that the inspection report dated 21.02.2006 is null and void is barred by limitation because vide Article 58 of the Schedule to the Limitation Act, relief of declaration could be sought by plaintiff within three years from the date of cause of action while the present suit was filed on 01.10.2010.
3.2 The averment of plaintiff to the effect that defendant nos. 2 5 are tenants of plaintiff is false and in any case, having admitted that she inducted the predecessor of defendant nos. 25 as tenant for commercial purposes, plaintiff has admitted having violated law by permitting commercial usage of electricity which was meant for domestic purposes.
CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 6 of 26 pages 3.3 The electricity connection through the said meter was installed in the premises of plaintiff in her name for domestic purpose but at the time of inspection on 21.02.2006, the electricity supply from the said meter was found being misused for industrial purpose by the user defendant no. 4.
3.4 Officials of defendant no. 1 never extended any threat to son of plaintiff and there was no such occasion ever for them to do so.
3.5 On 21.02.2006, an inspection by the joint enforcement team of defendant no. 1 was carried out in respect of the said meter at the premises of plaintiff in presence of defendant no. 4, who joined the proceedings and received a copy of inspection report under his signatures without any protest, thereby, admitting the contents of the inspection report. During the said inspection, it was found that as against a sanctioned load of 11.94 KW for domestic purpose, the connected load was 48.66 KW for industrial purpose; that meter box seals were found tampered with by refixing of seal wire with adhesive; that on accuracy check, the said meter was found slow by 69.21%. In the course of said inspection, four paper seals dated 21.02.2006 duly signed by the inspection team were pasted on the meter body to preserve status quo and the said meter was retained on the spot as a material evidence in safe custody of the consumer plaintiff.
CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 7 of 26 pages 3.6 In view of above mentioned irregularities found during the inspection, a show cause notice for dishonest abstraction of energy and unauthorized use of electricity was prepared by members of the inspecting team and was served on the consumer/representative on the spot and the consumer was granted opportunity of personal hearing on 24.02.2006 but the consumer/user did not avail the opportunity of personal hearing. On 25.02.2006, Sh. Rajneesh Kumar, cousin of the user defendant no. 4 appeared in the office of defendant no. 1 and was granted hearing. But Sh. Rajneesh Kumar could not submit any explanation regarding the irregularities mentioned in the inspection report.
3.7 Thereafter, more opportunities of personal hearing were given to plaintiff by defendant no. 1 vide letters dated 07.04.2007 and 04.06.2008, enclosing therewith copies of inspection report and show cause notice dated 21.02.2006, which were duly served on the plaintiff for appearance before the competent authority in the enforcement assessment cell on 25.04.2007 and 09.06.2008 respectively. But plaintiff failed to attend the personal hearing on both said dates. However, plaintiff submitted letter dated 25.05.2009, enclosing therewith copy of letter dated 13.06.2008 and informed that in ground floor of her premises, a factory was being run by her tenants namely Sh. Ashok Kumar Jain, Sh. Raj Kumar Jain and Sh. Amit Jain.
CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 8 of 26 pages 3.8 Thereafter on 09.06.2009 when the enforcement team of defendant no. 1 visited the premises of plaintiff in order to check the said meter, the premises were found locked and plaintiff informed that the factory had been sealed by MCD. Officials of defendant no. 1 found the main entry gate of the factory as well as rear wall of the factory sealed, so the said meter could not be segregated by them. Officials of defendant no. 1 took photographs and prepared action taken report but plaintiff refused to sign the same.
3.9 Defendant no. 1 also issued show cause notice dated 19.06.2009 to the user defendant no. 4, calling him upon to attend the personal hearing on 26.06.2009 but none appeared on his behalf. However, vide letter dated 25.06.2009, plaintiff submitted before defendant no. 1 that it is defendant no. 4 and others who had committed theft of electricity.
3.10 Since despite repeated directions, the plaintiff consumer and the defendant no. 4 user failed to submit on findings of the inspection team, proceedings were held exparte and after analysis of consumption pattern, on the basis of material available, the speaking order was passed by defendant no. 1 and copy thereof was sent to plaintiff on 07.08.2009.
3.11 The impugned inspection report, followed by show cause notices and speaking order culminating into the impugned bill are valid CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 9 of 26 pages in law and plaintiff is liable to pay the bill amount, so the suit is liable to be dismissed.
4. Plaintiff filed replication, denying the pleadings of defendant no. 1 and reiterated plaint contents.
5. On the basis of rival pleadings, my learned predecessor framed following issues:
1. Whether the relief of declaration is barred by limitation in view of para 6 of the preliminary objections taken in written statement by defendant? OPD
2. Whether the plaintiff was indulging in dishonest abstraction of energy as per inspection carried out by defendant on 21.02.2006 ? OPP
3. Whether plaintiff is liable to pay impugned bill of Rs. 12,06,206/ on account of theft of electricity raised by the defendant is legal ? OPP
4. Whether the plaintiff is entitled to the relief of declaration, as prayed? OPP
5. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed? OPP
6. Relief.
6. In support of plaintiff's case, her husband was examined as her solitary witness PW1 while on behalf of defendant no. 1, three witnesses were examined. As mentioned above, defendant nos. 25 remained exparte.
CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 10 of 26 pages
7. During final arguments, both learned counsel took me through their above described respective narrative and the material on record.
7.1. Learned counsel for plaintiff argued that no criminal case of theft of electricity was registered against plaintiff as the allegation is qua the wire of the seal and not qua the seal or the meter; and that it is not possible to fix a wire with adhesive as alleged in the inspection report. It was argued that since the defendant no. 1 did not open the meter box in order to ascertain if the meter was tampered with, no case against plaintiff is made out. It was also argued that since the meter was not sent to the laboratory for testing, defective software cannot be ruled out as reason for slowing down of the meter. It was argued that no show cause notice was received by the plaintiff and she did not authorise anyone to appear before the competent authority of defendant no. 1 on her behalf. It was also argued that clause 26 (iii) of the Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations, 2002 (hereinafter referred to as ' the Regulations of 2002') was violated by defendant no. 1 insofar as the speaking order dated 07.08.2009 was passed much beyond the prescribed period of 15 days after service of show cause notice dated 21.02.2006. Learned counsel for plaintiff also took me through clause 2 (m) of the Regulations of 2002 and contended that in order to establish dishonest abstraction of electricity, conclusive CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 11 of 26 pages evidence as regards accessibility to the internal mechanism of meter has to be found, which is not in the present case. Learned counsel for plaintiff also assailed the speaking order on the ground that although the alleged inspection took place in the year 2006 when the Regulations of 2002 were in force, but the speaking order referred to the Regulations of 2007. It was also argued that the impugned bill Ex. PW 3/6 is bad in law since by way of the same, defendant no. 1 claimed misuse charges of Rs. 3,28,927/ but neither the show cause notice nor the speaking order make any reference to any misuse.
7.2. On the other hand, learned counsel for defendant no. 1 argued that the relief of declaration that the inspection report is null and void has become time barred because the inspection report is of the year 2006 while the relief of declaration was sought after amendment of plaint in the year 2012. As regards arguments related to bar of limitation, learned counsel for plaintiff contended that since the speaking order was passed in the year 2009, relief of declaration could be sought in the year 2012 and as such the suit is not time barred as regards the relief of declaration.
7.3. As regards merits of the case, learned counsel for defendant no. 1 took me through various provisions of law and the relevant regulations in support of his argument that there is no infirmity in the impugned inspection report or show cause notices or the speaking order CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 12 of 26 pages or the bill. It was argued that in the year 2006 when the inspection took place, the Regulations of 2002 were in force and the same do not mandate sending the meter to the laboratory; and that it is only in the year 2011 that laboratory was notified under the Regulations of 2007, so there was no necessity and possibility for defendant no. 1 to send the meter to the laboratory. It was further argued on behalf of defendant no. 1 that the said meter was admittedly a domestic meter but the same was being used for industrial purpose by the tenant of the plaintiff, so claim of misuse charges in the bill is justified and sustainable in law. As regards delay in issuance of speaking order, learned counsel for defendant no. 1 took me through record which reflects as many as four show cause notices issued by defendant no. 1. Learned counsel for defendant no. 1 also took me through the evidence adduced on behalf of both sides and contended that the solitary witness PW1 examined on behalf of plaintiff is totally unreliable as he knew nothing. It was also argued on behalf of defendant no. 1 that plaintiff failed to advance any explanation in her pleadings or evidence as regards the alleged tampering of seal wire or as regards slow running of the meter. As regards mention of the Regulations of 2007 in the speaking order, learned counsel for defendant no. 1 argued that inadvertent wrong mentioning of the applicable provision cannot be a ground to set aside the order itself, especially because the Regulations of 2002 also contained similar provisions.
CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 13 of 26 pages 7.4. Although both sides had filed printouts of a number of judicial precedents when the suit was pending before my learned predecessor, but before me during final arguments only some of those judgments were referred to. Learned counsel for plaintiff referred to the judgments of the Hon'ble Rajasthan High Court in the case of RSEB vs Deepak Oils, AIR 1998 Raj 176; the Hon'ble Delhi High Court in the case of Sunil Kumar vs BSES Rajdhani Power Limited, CM (M) 570/2010 decided on 18.12.2012; and the Hon'ble Delhi High Court in the case of Bansi Lal vs BSES Rajdhani Power Limited, WP(C) 4103/2007 decided on 17.03.2010. Learned counsel for defendant no. 1 referred to the judgments of the Hon'ble Delhi High Court in the case of NDPL vs Bhasin Motors Pvt. Ltd., 199 (2013) DLT 35 DB; the Hon'ble Supreme Court in the case of Khatri Hotels Pvt Ltd. vs Union of India, 182 (2011) DLT 597 (SC); and the Hon'ble Delhi High Court in the case of Mukesh Rastogi vs North Delhi Power Limited, 2007 (99) DRJ 108.
8. Having heard both sides and having perused the records, my issuewise findings are as under:
9. ISSUE NO. 1:
9.1 In the suit originally filed by way of plaint dated 02.11.2010, plaintiff did not seek decree of declaration that the CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 14 of 26 pages inspection report dated 21.02.2006 was null and void. In the written statement dated 26.11.2010, defendant no. 1 specifically pleaded that the relief of declaration against the inspection report dated 21.02.2006 had become time barred, so defendant no. 1 could not be restrained from taking action against plaintiff. Thereafter, plaintiff sought and was permitted to amend the plaint. But in the amended plaint dated 05.01.2012 also, relief of declaration against the inspection report dated 21.02.2006 was not sought by plaintiff. It is much subsequently that plaintiff again sought and was allowed by my learned predecessor to again amend the plaint. It is in second amended plaint dated 30.11.2012 that for the first time, plaintiff sought decree of declaration that the inspection report dated 21.02.2006 is null and void.
9.2 Article 58 of the Schedule to the Limitation Act prescribes a period of three years to obtain declaration, which period begins to run when the right to sue first accrues. In the present case, right to sue for declaration that the inspection report is null and void first accrued on 21.02.2006 itself when a copy of the said report was admittedly received on behalf of plaintiff by her tenant defendant no. 4. Thence, the limitation to file suit for declaration against the inspection report expired on 21.02.2009. As mentioned above, for the first time plaintiff sought relief of declaration against the inspection report only by way of second amended plaint dated 30.11.2012.
CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 15 of 26 pages 9.3 I am unable to agree with the contention of learned counsel for plaintiff that since the speaking order was passed in the year 2009, limitation period of three years must be computed till the year 2012 and the suit so far as declaration against the inspection report is concerned is within time. For, according to plaintiff's own case as well as settled legal position, cause of action for the first time arose on 21.02.2006 and it is trite that once limitation begins to run, it does not stop. Nothing prevented plaintiff from filing a suit for declaration against the inspection report within three years of 21.02.2006. But even if the contention of learned counsel for plaintiff is accepted to the effect that prior to speaking order, plaintiff could not challenge the inspection report, the speaking order was admittedly passed on 07.08.2009 and that being so, the limitation period of three years to seek declaratory decree expired on 07.08.2012 but the second amended plaint dated 30.11.2012 was filed on 01.12.2012, so even that was beyond time prescribed by law.
9.4 In view of above discussion, issue no. 1 is decided in favour of defendant no. 1 and it is accordingly held that the relief of declaration that the inspection report dated 21.02.2006 is null and void is barred by limitation.
CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 16 of 26 pages
10. ISSUE NO. 2:
10.1 As mentioned above, plaintiff herself did not step into the box and opted to bring only her husband as her solitary witness PW1. In his chief examination affidavit, PW1 did not specifically deny the factum of inspection carried out by officials of defendant no. 1 in the premises of the plaintiff and preparation of the inspection report. PW1 vaguely testified in his chief examination affidavit the entire exercise of inspection as a hearsay by using the expression "stated to have", for example, "That the officials of the defendant no. 1 are stated to have conducted a raid/inspection of the demised premises on 21.02.2006". In other words, PW1 did not have personal knowledge as to whether or not any inspection was carried out by the officials of defendant no. 1 on 21.02.2006, so he did not explicitly depose that no inspection was carried out on 21.02.2006.
10.2 Further, in his crossexamination also, PW1 was totally evasive and even contrary to records. In crossexamination PW1 stated that the subject connection had been sanctioned for industrial purpose with sanctioned load of 11KW, but there is not even shred of documentary record adduced on behalf of plaintiff to show that the said meter was pertaining to industrial use connection. Even in his cross examination, PW1 admitted that he did not know anything about the subject inspection that took place on 21.02.2006 and stated that he was CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 17 of 26 pages not aware whether officials of defendant no. 1 had visited premises of the plaintiff on that day for inspection.
10.3 According to inspection report Ex. PW 1/4, the inspecting team found total connected load of 48.66 KW as against sanctioned load of 11.94 KW and also found the connected load catering to three injection moulding machines and one cooling tower with pump. In his crossexamination, PW1 admitted that in the year 2006 his wife (plaintiff) did not hold any licence to run industry from the premises of plaintiff and he did not know whether his tenant defendant no. 4 held any such licence or not. Not only this, PW1 further stated in his cross examination that the factory in the premises of plaintiff was sealed by the MCD on 03.01.2007 on the grounds of pollution. It is clearly established that in the premises of the plaintiff, unauthorized industrial activity was being carried out with the help of machines and cooling tower operated by electricity being extracted from the said meter, but there is no evidence at all reflecting that the said meter had been got installed for industrial purpose.
10.4 Defendant no. 1 examined their Assistant Manager Sh. Vidyadhar Singh as DW1, who deposed in his chief examination that on 21.02.2006, as Engineer Trainee he was member of the joint inspection team which inspected the premises of plaintiff; that the said meter had been sanctioned in the name of plaintiff with a sanctioned load CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 18 of 26 pages of 11.94 KW for domestic purpose but in the course of inspection, a load of 48.66 KW was found connected for industrial purpose and meter box seals were found tampered by refixing the seal wire with adhesive and on accuracy check the meter was found slow by 69.21%. DW1 also deposed that the said inspection at the premises of the plaintiff was carried out by officials of defendant no. 1 in presence of Sh. Raj Kumar Jain, the defendant no. 4 tenant of plaintiff, who even signed the inspection report admitting the contents thereof without any protest and received a copy thereof as well. DW1 proved copy of the inspection report as Ex. DW 1/1, identifying his signatures on the same. In his crossexamination, DW1 stated that the seal wire can be fixed by putting adhesive and that tampering of the seal wire is tantamount to tampering of seal. Although DW1 was crossexamined extensively, his testimony remains unshaken.
10.5 Another witness examined on behalf of defendant no. 1 was their Manager Sh. Vipin Goyal, who in his testimony as DW3 deposed facts related to the abovementioned inspection as he was a member of the inspection team. In his testimony, DW3 proved on record the photographs of inspection dated 21.02.2006 as Ex. DW 3/1 (colly). DW 3 also was crossexamined but his testimony remained unshaken.
10.6 So far as the statement of PW1 that the subject connection had been sanctioned for industrial purpose, not only there is no shred of CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 19 of 26 pages document to support that statement, but even in none of her communications Ex. PW 1/7 to Ex. PW1/10 did plaintiff alleged that the subject connection had been sanctioned for industrial purpose. So, statement of PW1 in that regard appears to be not truthful.
10.7 Coming to the documentary evidence on record, the document Ex. PW1/4, renumbered as Ex. DW 1/1 before my learned predecessor is a copy of inspection report dated 21.02.2006. Original inspection report also was filed on record by learned counsel for defendant no. 1 alongwith other documents vide list dated 24.11.2017. As reflected from the said report, on 21.02.2006 a team of officials of defendant no. 1 conducted inspection of the premises of plaintiff and found that as against sanctioned load of 11.94 KW for domestic purpose, the connected load was 48.66 KW; the inspecting team found the tampering by way of refixing of seal wire with adhesive; on accuracy check, the said meter was found running slow by 69.21%; the connected load was found catering to three injection moulding machines and a cooling tower with pump for industrial purpose. As mentioned above, the inspection report was received by Sh. Raj Kumar Jain, defendant no. 4 tenant of plaintiff on the spot without recording any protest, thereby, admitting the contents of the inspection report. The document Ex. DW1/2 also is a part of joint inspection report dated 21.02.2006 observing that meter box seals were found tampered by refixing of seal wire with adhesive and the said meter was found slow by 69.21%. The CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 20 of 26 pages document Ex. DW 1/3 is the show cause notice dated 21.02.2006 which was served on the user Sh. Raj Kumar Jain, defendant no. 4, calling him upon to show cause why a case for dishonest abstraction of energy be not booked against him. The documents Ex. DW 3/1 (colly) are photographs of inspection proceedings.
10.8 Argument of learned counsel for defendant no. 1 that it is not possible to refix the meter box wire with adhesive has to be discarded in view of specific statement of the technical witness DW1 who categorically stated in his crossexamination that the seal wire can be refixed by putting adhesive.
10.9 Thus, the evidence on record conclusively establishes that on 21.02.2006 an inspection in the premises of the plaintiff was carried out by the officials of defendant no. 1, who found tampering of the meter seal wire and also found that as against the sanctioned load of 11.94 KW, the connected load was 48.66 KW catering to three injection moulding machines and a cooling tower with pump and that the said meter was found running slow by 69.21 %.
10.10 Clause 17 (iv) of the Regulations of 2002 clearly stipulates that the responsibility of keeping the meter under safe custody shall lie with the consumer. Plaintiff in the present case being the registered consumer was duty bound to ensure that the said meter, sanctioned in her CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 21 of 26 pages name was kept in safe custody and not tampered with or misused.
10.11 Section 135 of the Electricity Act defines theft as follows:
"135(1) Whoever, dishonestly,
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities, of a licensee or supplier, as the case may be;or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages of destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
................"
The factual findings of the inspection report as described above clearly establish that as on 21.02.2006, electricity was being stolen from the subject connection through the said meter in the premises of the plaintiff.
CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 22 of 26 pages 10.12 In view of above discussion, issue no. 2 is decided in favour of defendant no. 1 and it is held proved that on 21.02.2006, plaintiff was indulging in dishonest abstraction of energy as per the inspection carried out.
11. ISSUE NO. 3:
11.1 Plaintiff's resistance to pay the impugned bill Ex. PW 1/13 is mainly on the ground that the speaking order Ex. DW 2/5 dated 07.08.2009 was passed more than three years after the issuance of show cause notice Ex. DW 1/3 dated 21.02.2006 and on the ground that the impugned bill consists of a sum of Rs. 3,28,927/ towards misuse charges despite there being no allegation of misuse in the show cause notices or the speaking order. Both grounds of resistance must fail.
11.2 As reflected from record, the very first show cause notice Ex. DW 1/3 dated 21.02.2006 was prepared by the inspecting team on the spot itself and the same was served on the user defendant no. 4 Sh. Raj Kumar Jain. Thereafter, three more show cause notices dated 06.04.2007, 04.06.2008 and 19.06.2009 also were issued to the plaintiff and defendant no. 4 but they did not come forward for personal hearing, though, plaintiff continued to send responses Ex. PW 1/7 dated 13.06.2008, Ex. PW 1/8 dated 20.10.2008, Ex. PW 1/9 dated 25.03.2009 CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 23 of 26 pages and Ex. PW1/10 dated 25.05.2009, throughout taking a stand that it is defendant nos. 25 tenants who were misusing the electricity. Therefore, the speaking order dated 07.08.2009 cannot be rejected only on the ground that the same was not passed within 15 days of service of show cause notice.
11.3 Moreover, the show cause notices as well as the speaking order derive their sustainability from inspection report dated 21.02.2006.
The plaintiff having lost the remedy of declaration that the inspection report dated 21.02.2006 is null and void, now cannot challenge the show cause notices or the speaking order flowing from the same.
11.4 So far as misuse charges forming part of the impugned bill, contention of learned counsel for plaintiff is contrary to record. As mentioned above, the inspection report, the show cause notices and even the speaking order clearly record that as against the sanctioned load of 11.94 KW for domestic purpose, plaintiff was using connected load of 48.66 KW for industrial purpose. Therefore, it cannot be said that there was no misuse of electricity in the premises of plaintiff.
11.5 In view of above discussion, issue no. 3 is decided against plaintiff and it is held that plaintiff is liable to pay the impugned bill of Rs. 12,06,206/ raised by defendant no. 1.
CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 24 of 26 pages
12. ISSUE NO. 4:
In view of above findings, issue no. 4 is decided against plaintiff and it is accordingly held that plaintiff is not entitled to the relief of declarations as prayed in the plaint.
13. ISSUE No. 5:
13.1 Plaintiff sought a decree of permanent injunction, thereby restraining defendant no. 1 from transferring the outstanding dues of the impugned bill to the other electric connection installed in the premises of plaintiff.
13.2 The outstanding dues stand against the registered consumer and the premises in which the connection is installed and not against the individual meter. Meter is just a tool of computation of the amount of electricity consumed by the consumer. Charges under a bill are of consumption of electricity and not for use of meter.
13.3 In the case of Madhu Garg vs North Delhi Power Ltd, 129(2006) DLT 213 DB, Hon'ble Division Bench of the Delhi High Court observed thus :
"27. In our opinion an interpretation of the law which furthers the preservation and protection of public property ought to be adopted. If arrears of electricity charges outstanding in respect of electricity supply to a CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 25 of 26 pages premises were to be permitted to be equated with a contractual claim of damages, it would encourage dishonest consumers to raise some dispute or other in respect of such arrears and evade the consequences of non payment of electricity charges viz. disconnection/non resumption of supply."
13.4 In situations like the present case also, if the arrears claimed in the impugned bill are restrained from being transferred to the other connection held by the plaintiff in her premises, it would encourage her to continue to violate law and evade consequences of non payment. Therefore, injunction sought in this regard cannot be granted.
13.5 In view of above discussion, issue no. 5 is decided against plaintiff and it is accordingly held that plaintiff is not entitled to relief of permanent injunction as sought.
14. ISSUE No.6 (Relief) In view of above findings, suit of plaintiff is dismissed. Decree sheet be accordingly drawn and file be consigned to records leaving the parties bear their own costs.
Announced in the open court on
this day of 01st October, 2019 (GIRISH KATHPALIA)
District & Sessions Judge (HQs)
Digitally signed
by GIRISH Tis Hazari Courts
GIRISH KATHPALIA Delhi 01.10.2019
KATHPALIA Date:
2019.10.03
13:08:08 +0530
CS No. 723/2019 Suresh Kumari vs. North Delhi Power Ltd. Page 26 of 26 pages