Delhi District Court
Nand Lal vs . Tpddl on 13 July, 2018
1
Civil Suit No. 36/14
New No. 576743/16
Nand Lal Vs. TPDDL
IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA,
ADDITIONAL SESSIONS JUDGE (ELECTRICITY), NORTH
WEST DISTRICT, ROHINI COURT, DELHI.
Civil Suit No. 36/14
New No. 576743/16
Nand Lal Vs. TPDDL
Shri Nand Lal
S/o Late Shri Rameshwar Dayal,
R/o H.No. 661, Gali No. 7,
Ambedkar Colony, Haiderpur
Delhi1100088 ...........Plaintiff
Vs.
Tata Power Delhi Distribution Ltd.
through its Chief Executive Officer
Hudson Lines, Kingway Camp
Delhi.
........Defendant
Date of institution of the suit : 24.03.2014
Date of arguments : 25.05.2018
Date of the Judgment : 13.07.2018
JUDGMENT
1. The present Suit is for Declaration, Mandatory and Permanent Injunction.
Page 1 of 11 2 Civil Suit No. 36/14 New No. 576743/16Nand Lal Vs. TPDDL
2. In brief, the case of the plaintiff as made out in the plaint is that the plaintiff is the registered consumer of electricity connection vide CA No. 60001973654 installed at H.No. 661, Gali No. 8, Ambedkar Colony, Haiderpur, Delhi for a sanctioned load of 7.00 KW for Edomestic purpose. The plaintiff has been regularly making the payment of electricity bills to the defendant and the bills shows no irregularity against the said meter. To the knowledge of the plaintiff, a minor incident of sparking had taken place in the meter but no report was made by the plaintiff either to the defendant or the police as it was not a serious incident. The staff of the defendant had carried out the inspection on 09.10.2013 and made out a case of dishonest abstraction energy (DAE) against the plaintiff in a illegal manner. There was no tampering in the said meter, however the inspecting team had made a baseless unfounded observations in the inspection report. The plaintiff has submitted all the true facts in his representation dt. 24.10.13 to the defendant but the same was not at all considered while passing the speaking order dt. 27.12.13. The defendant on the basis of illegal inspection raised an illegal demand of Rs. 79,071/ against the plaintiff. On these allegations, it has been prayed that the alleged inspection report dt. 09.10.2013, alleged speaking order dt.
Page 2 of 11 3 Civil Suit No. 36/14 New No. 576743/16Nand Lal Vs. TPDDL 27.12.13, impugned bill of Rs. 79,071/ be declared null and void and the defendant be also restrained not to disconnect the said electricity connection.
In the written statement, the defendant has contended that the inspection was carried out by technical expert team of the defendant on 9.10.13 at the said premises. The necessary photographs were also taken during the inspection. The said inspection was carried out in the presence of the plaintiff and copy of the inspection report was served upon the plaintiff. At the time of inspection, following irregularities were found:
(a) Incoming phase meter terminal is accessible from gland of the meter box through which user can manipulate the consumption as and when required.
(b) One number of external switch and socket found near the meter box.
(c) Consumption pattern found low as comparison to connected load.
The plaintiff was found indulged into dishonest abstraction energy, when an inspection was carried out in respect of the said connection. Accordingly, the impugned bill was raised against the plaintiff. The defendant has denied the other Page 3 of 11 4 Civil Suit No. 36/14 New No. 576743/16 Nand Lal Vs. TPDDL allegations of the plaintiff and has prayed that the plaintiff has filed a false and frivolous case and it be dismissed.
3. From the pleadings of the parties, following issues were framed:
1. Whether the plaintiff is entitled for a decree for declaration as prayed for? (OPP)
2. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for ? (OPP)
3. Relief, if any.
4. I have heard the arguments on behalf of the plaintiff and on behalf of the defendant and perused the file.
In order to prove his case, the plaintiff has examined himself as PW1.
The defendant has examined Shri D.K. Rastogi as DW1, Shri Aditya Prakash Mishra as DW2 and Shri Monu as DW3.
ISSUE NO. 1 and 25. Issue No. 1 and 2 are taken together as they have to be decided on the basis of same evidence on record.
To decide both the issues, it has to be seen whether the plaintiff was indulged in DAE as alleged by the defendant.
PW1 has proved his affidavit tendered into evidence as Page 4 of 11 5 Civil Suit No. 36/14 New No. 576743/16 Nand Lal Vs. TPDDL Ex. PW1/A. In Ex. PW1/A, PW1 has deposed on the same lines as per his allegations made in the plaint. He has proved the representation made to the defendant as Ex. PW1/1, inspection report as Ex. PW1/2, Speaking order as Ex. PW2/3, imputed bill as Ex. PW1/4, paid electricity bills as Ex. PW1/5 (collectively).
In cross examination, PW1 has deposed that he has mentioned in his affidavit that he informed inspecting team about the minor incident of sparking which took place in the meter. On 9.10.14 the entire inspection proceedings took place in his presence. The photographs are Ex. PW1/D1 to Ex. PW1/D23.
DW1 has proved his affidavit tendered into evidence as Ex. DW1/A. He has proved the inspection report, show cause notice and the photographs.
In cross examination, DW1 has deposed that meter box seal, meter terminal seal and half seal were found fixed and OK at the time of inspection. The meter was not removed from the spot and not sent to NABL accredited Laboratory for testing. They had not seized any wire manipulating instrument, meter, socket box from the site. They had not found any wire connected from meter to socket or with IC phase meter terminal. He has not mentioned working of meter in question and accuracy check on inspection Page 5 of 11 6 Civil Suit No. 36/14 New No. 576743/16 Nand Lal Vs. TPDDL report. No artificial means were found inside the meter during inspection to manipulate the recorded consumption. No accuracy check of the meter was done as the same was not required. They had not received any complaint regarding the theft of electricity in the said premises.
DW2 has proved his affidavit tendered into evidence as Ex. DW2/A. DW2 has deposed that on 24.10.13 the plaintiff has appeared and attended the personal hearing and submitted his written submissions in response to the show cause notice dt. 9.10.13 which is Ex. DW1/2. As per the consumption analysis, recorded consumption was found 53.35% low. After considering the case, he has passed the speaking order which is Ex. DW2/1 and final bill was raised against the plaintiff which is Ex. DW2/2.
DW3 is the photographer and he has proved his affidavit tendered into evidence as Ex. DW3/A. He has proved the photographs taken at the spot at the time of inspection as Ex. DW3/1 to Ex. DW3/23.
6. From the material on record, it is evident that the case of the defendant is that the plaintiff was user of electricity at the said premises and has committed the theft of electricity by tampering the said meter and thereby involved in the DAE.
Page 6 of 11 7 Civil Suit No. 36/14 New No. 576743/16Nand Lal Vs. TPDDL DW1 was the member of the inspecting team and therefore he is the material witness of the case. The inspection report has been proved on record as Ex. PW1/2. As per Ex. PW1/2, the following irregularities were observed which are as follows:
a) Incoming phase meter terminal is accessible from gland of the meter box through which user can manipulate the recorded consumption as and when required.
b) One number of external switch and socket found near the meter.
c) Consumption pattern found low as comparison to connected load.
It has been observed by the Hon'ble High Court in Jagdish Narayan Vs. NDPL 140 (2007) Delhi Law Times 307 as follows: "21. In order to draw a presumption of DAE against a consumer in terms of the Second Proviso to Section 135 (1), it must first be shown by the supplier or licensee that "any artificial means or means not authorized by the Board or licensee exist for the abstraction, consumption or Page 7 of 11 8 Civil Suit No. 36/14 New No. 576743/16 Nand Lal Vs. TPDDL use of electricity by the consumer..............." Till such time this initial burden is not discharged by the supplier of electricity, the burden of proof under the Second Proviso to Section 135(1) of the Act does not shift to the consumer.
23. What is central to the definition of theft under Section 135 of the Act, which according to the respondent covers DAE as well is the element of 'dishonesty'. Therefore the mens rea or the intention of the consumer to dishonestly abstract electricity must be proved "conclusively" to bring home the charge of DAE. Therefore the requirement of "conclusive evidence" in terms of Regulation 25 (iii) is consistent with the statutory mandate of Section 135 (1). That can be established only by showing that the consumer was responsible for tampering the meter by some visible means. The external manifestations of tampering, as has been found in the inspection conducted in the present cases, can only raise a suspicion of DAE. That suspicion will have to Page 8 of 11 9 Civil Suit No. 36/14 New No. 576743/16 Nand Lal Vs. TPDDL be made good by some tangible evidence of physical means of tampering before the presumption can be drawn that it was the consumer who tampered the meter".
25. Applying the above test, it has to be held that an automatic presumption of DAE, on the basis of the external symptoms of tampering together with the analysis of the consumption pattern would not be a safe and error free method. Some other tangible evidence must been shown to exist. An accu check meter can be deployed to find out if the meter is in fact recording lesser units. The analysis of the consumption pattern in terms of the Regulation 26(ii) is merely corroborative and not by itself substantive evidence of DAE." DW1 has deposed that meter box seal, meter terminal seal and half seal were found fixed and OK. No artificial means were found inside the meter during inspection to manipulate the recorded consumption. No accuracy check of the meter was done. They had not seized any wire manipulating instrument, meter, Page 9 of 11 10 Civil Suit No. 36/14 New No. 576743/16 Nand Lal Vs. TPDDL socket box from the site. They had not found any wire connected from meter to socket or with IC phase meter terminal. The meter was not sent to NABL accredited lab for testing.
7. From the evidence on record, it is evident that there is no record of lab or checking of meter by the accu check to show that the said meter in fact was tampered and was recorded lesser unit. The seals of the meter were found OK. No artificial means were found inside the meter during inspection to manipulate the recorded consumption. No wire was found connecting from meter to socket or with IC phase meter terminal.
In view of the aforesaid judgment, in order to made out the case of DAE against the plaintiff, the defendant has to show that the plaintiff was responsible for tampering the meter by some visible/physical means.
From the evidence on record as discussed above, as no visible/physical means for tampering the meter has been found at the spot, so the defendant has failed to prove that the plaintiff was involved in DAE. Moreover, the only fact that the consumption pattern was found low does not in any way prove that the plaintiff was involved in DAE through the said meter.
In view of the established fact that as the plaintiff was Page 10 of 11 11 Civil Suit No. 36/14 New No. 576743/16 Nand Lal Vs. TPDDL not involved in DAE, so impugned inspection report, impugned speaking order, impugned electricity bills were declared null and void. Accordingly, issue No. 1 and 2 are decided in favour of the plaintiff and against the defendant.
Issue No. 38. In view of the findings on issue No. 1 and 2, a decree of declaration is passed in favour of the plaintiff and against the defendant declaring the inspection report dt. 9.10.13, speaking order dt. 27.12.13, electricity bills of Rs. 79,071/ as null and void qua the plaintiff.
Further, a decree of permanent injunction is passed in favour of the plaintiff and against the defendant restraining the defendant from disconnecting the electricity supply in respect of electricity connection vide CA No. 60001973654. No order as to costs. Decree sheet be prepared. File be consigned to Record Digitally signed by Room. RAJNEESH RAJNEESH KUMAR GUPTA KUMAR GUPTA Date: 2018.07.13 13:26:39 +0530 Announced in the open court (Rajneesh Kumar Gupta) today i.e. 13.07.2018 ASJ (Electricity) North West District Rohini Courts Delhi Page 11 of 11