Delhi District Court
M/S.Goel Steel Corporation vs Bses Yamuna Power Ltd on 9 February, 2010
IN THE COURT OF SHRI SANJEEV JAIN
ADDITIONAL DISTRICT JUDGE (CENTRAL DISTRICT) DELHI
Suit no.296/05/99
Suit no.51/05/99
(Suit No.296/05/99)
Date of Institution: 30.3.99
Final Arguments heard on :04.01.10
Date of Decision: 09.02.10
M/s.Goel Steel Corporation
through its proprietor
Sh.S.K.Goel,
D26/B, Gali no.4, Near Post office,
Anand Parbat Indl.Area,
New Rohtak Road,
New Delhi.
... Plaintiff.
Vs.
BSES Yamuna Power Ltd.
through its CEO
Station/substation Building,
Kamla Market,
New Delhi.
... Defendant.
(Suit no.51/05/99)
Date of Institution: 4.10.99
Final Arguments heard on :04.01.10
Suit no.296/05/99 and Suit No.51/05/99 1
Date of Decision: 09.02.10
M/s.Goel Steel Corp.
through its proprietor
Sh.S.K.Goel,
D26/B, Gali no.4, Near Post office,
Anand Parbat Indl.Area,
New Rohtak Road,
New Delhi.
... Plaintiff
Vs.
BSES Yamuna Power Ltd.
through its Chief Executive Officer,
Behind Police Station, Andrews Ganj,
New Delhi.
... Defendant.
JUDGMENT
1 By this common judgment, I propose to dispose of suits bearing no.296/05/99 and no.51/99/05. For the purpose of evidence, both the suits were consolidated and common question of facts and law are involved in the matters.
Suit no.296/05/99 and Suit No.51/05/99 2 2 Brief facts of both the cases are that plaintiff M/s.Goel Steel Corporation is the registered consumer in respect of electricity connection bearing K.NO.0041140076 ( hereinafter referred as connection/electricity connection) at premises bearing no.D26/8, Gali no.4, Near Post office, Anand Parbat Indl.Area, New Rohtak Road, New Delhi (hereinafter referred "as premises"). Earlier, plaintiff filed a suit for permanent injunction in the year 1999 which was later on amended and relief of declaration was added by way of amendment. During the course of the proceedings, vide order dt.8.4.99 Ld.Civil Judge directed the defendant DVB to re inspect the premises within 60 days and to file the report. Premises was re inspected and the impugned bill was raised. After that suit bearing no.51/05/99 was filed by the same plaintiff for declaration, permanent injunction and mandatory injunction. In suit no.296/05/99, the plaint was returned under order 7 CPC on account of pecuniary jurisdiction and therefore, it was filed before the court of Ld.District Judge, whereas the suit no.51/05/99 was received by way of transfer. Suit no.296/05/99 and Suit No.51/05/99 3 3 As per the plaintiffs case, plaintiff obtained a valid municipal licence for carrying the business in the premises in question. Initially the sanctioned load was 50 HP. Plaintiff made an application to the defendant to enhance the load to 105 HP. For enhancement of load, Plaintiff deposited Rs.23,045/ vide receipt dt.31.12.95, Rs.17,284/ vide receipt dt.31.1.96 and Rs.12,284/ vide receipt dt.27.2.96. As per plaintiff, defendant had been charging at 105 HP load but had not come forward to replace the electricity meter accordingly. Plaintiff had been making regular payment of the bill.
4 As per the version of plaintiff, the officials of defendants inspected the premises of plaintiff on 7.4.98 in the absence of plaintiff. It was observed in the inspection report that meter was moving in right direction in two phases but it was stopped on one phase. As per plaintiff, at the time of inspection, there was failure of electricity and therefore report was not correct. Plaintiff made a representation dt. 7.4.98, alleging that he was out of station at the time of inspection. When he returned on 7.4.98 at 1 PM, he noticed Suit no.296/05/99 and Suit No.51/05/99 4 a pasting on meter board. Plaintiff gave letter in the office of defendant on 7.4.98. Plaintiff was supplied the report of MTD department and copy of report of enforcement department in the th evening of 7 April 1998. Plaintiff made a representation dt 7.4.98. Plaintiff again made a representation dt. 15.4.98 to the officials of defendant, alleging that there was an electricity failure at the time of inspection dt.7.4.98 and therefore, the observations made in the inspection report were not correct. Plaintiff made a request for rechecking of the meter vide letter dt.16.4.98. Plaintiff wrote another letter dt.26.4.98 alleging that despite his request, the matter had not been rechecked. Plaintiff received a letter dt.25.9.98 which was pasted on his premises on 9.10.98 and was received by him on 12.10.98. Plaintiff was asked to appear before the defendant's official on 8.10.98. Plaintiff gave reply dt.12.10.98 mentioning therein that he received the notice only on 12.10.98. Official of the defendant again sent letter dt.28.10.98 and directed the plaintiff to produce the MCD licence and latest paid bills which were duly submitted by plaintiff on 13.11.98.
Suit no.296/05/99 and Suit No.51/05/99 5 5 The suit bearing no.296/05/99 was entrusted to the court of Sh.Sanjay Garg, the then Ld.Civil Judge. Vide order dt.8.10.98, direction was given to the defendant to inspect the premises within the period of 60 days and to file the report.
6 The meter was not rechecked within 60 days but it was checked on 24.6.99. In inspection report it was alleged that bottom seal of the meter was missing and accessibility to the pressure wire could be there. Plaintiff alleged that report dt.24.6.99 was falsely prepared to justify their wrong by the officials of defendant. As per plaintiff, in load report, the connected load was found as 78.33 KW which was not correctly calculated. The machinery lying in the premises was not checked with any scientific instrument and the machines which were not actually connected were considered in connected load. It is alleged by plaintiff that though he had deposited the charges for enhancement of load for 105 HP, the same was not considered.
Suit no.296/05/99 and Suit No.51/05/99 6 7 As per plaintiff's case, after preparation of false and fabricated report dt.24.6.99, notice dt.8.7.99 was issued to him, in which the allegation of inspection report dt.24.6.99 were repeated. The detailed reply dt.19.7.99 to the said notice was sent by defendant . It was stated by plaintiff that electrical or pilot meter could be installed at the premises to draw the comparative reading. Plaintiff stated that he be given opportunity of hearing on his representation. As per allegation of plaintiff, he was not granted any opportunity of hearing and no speaking order on his representation was passed, but still a demand of Rs.6,37,722.68 was raised. As per the case of plaintiff, defendant has illegally added NF charges as it was not leviable because plaintiff has got the valid municipal licence to carry his business. After receiving the impugned bill of Rs.6,37,722/, plaintiff filed the suit bearing no.51/05/99.
8 In Written statement to both the suits, it was alleged by the defendant that no valid municipal license was shown at the time of Suit no.296/05/99 and Suit No.51/05/99 7 inspection dt.7.4.98. As per the report of defendant, there was a sanctioned load of 37.20 KW. The total connected load was found 78.330 KW and the CT box bottom seal and the meter bottom seal were found missing. The meter was found stopped on one phase. As per defendant, show cause notice dt.25.9.98 was sent. The premises was again inspected on 24.6.99. As per MTD report, CT box bottom seal and meter box bottom seal were found missing. The meter was opened at the site and it was found that there was a big whole at the cable entry point which made the accessibility to the pressure wire and upward/downward movement to the cable. As per defendant, after approval of competent authority, the impugned bill was raised.
9 In replications to the written statements in both the suits, the material averments of the written statements were denied and contents of the plaints were reaffirmed as correct. Suit no.296/05/99 and Suit No.51/05/99 8 10 In suit no.296/05/99 following issues were framed vide order dt.24.7.01.
1. Whether the DVB conducted illegal inspection on 7.4.98 and can not raised any demand on this basis? (OPP)
2. Whether the plaintiff is entitled to decree of declaration as prayed?(OPP)
3. Whether the plaintiff is entitled to decree of mandatory injunction?(OPP)
4. Whether the plaintiff is entitled to decree of permanent injunction?
5. Relief.
In suit no.51/05/99 following issues were framed in the year 2000.
1. Whether the demand raised by the DVB is illegal? (OPP
2. Whether the plaintiff is entitled for the relief claimed? Suit no.296/05/99 and Suit No.51/05/99 9 (OPP)
3. Whether the plaintiff is found indulging into FAE and other irregularities at the time of inspection dt.24.6.99?(OPD)
4. Relief.
11 Vide order dt.18.10.01, it was directed by Ld.Civil Jude that for recording of evidence, files of cases are clubbed with suit no.377/99 and the evidence so recorded shall be read in other case also. 12 In support of its case Sh.S.K.Goel, Proprietor of the plaintiff appeared in the witness box. He supported his case on material averments and proved the relevant documents which includes the copy of municipal licence Ex.PW1/1, three receipts deposited for charge of enhancement of load Ex.PW1/2 to PW1/4, application by plaintiff to the AE of defendant Ex.PW1/5, inspection report Ex.PW1/6 and Ex.PW1/7, representation dt.16.4.98 Ex.PW1/8, representation dt.26.7.98 Ex.PW1/9, letter dt.25.9.98 by defendant to Suit no.296/05/99 and Suit No.51/05/99 10 plaintiff Ex.PW1/10, covering letters Ex.PW1/11 and PW1/12, representation dt.12.10.98 Ex.PW1/12, letter dt.28.10.98 Ex.PW1/13, letter dt.3.11.98 Ex.PW1/14, letter dt.13.11.98 Ex.PW1/15, receipt of an amount of Rs.200/ deposited by plaintiff for rechecking of meter Ex.PW1/16, paid bills Ex.PW1/17 to PW1/20, three letters written by plaintiff to defendant Ex.PW1/21 to PW1/23, inspection report Ex.PW1/24, letter dt.8.7.99 Ex.PW1/25, reply of letter dt.19.7.99 Ex.PW1/26, impugned bill of Rs.6,37,722.68 Ex.PW1/27, receipt of payment of Rs.3,50,000/ by plaintiff on 8.10.99 Ex.PW1/28.
In cross examination, PW1 admitted that amount of Rs.57,613/ was deposited by him in the year 1985 under the voluntary disclosure scheme. He stated that he do not remember whether he has given any affidavit or document stating therein that load of 105 HP has been used to his electronic connection. He admitted that inspection dt.7.4.98 was carried out and its copies Ex.PW1/6 and PW1/7 bears his signature. He stated that his signatures were taken under threat and the inspection was carried Suit no.296/05/99 and Suit No.51/05/99 11 out in his absence. He deposed that in respect of inspection dt.7.4.98 and notice pasted by defendant, he was informed by one labourer. He denied the suggestion that he was found using load of 78.33 KW against the sanctioned load of 37 KW. He denied the suggestion that Sh.Shiv Kumar Gupta was the registered consumer, whereas Mr.Goel was using the connection. He admitted that re inspection dt.26.4.99 was carried out by the official of defendant in his absence. However, he denied the allegations of tampering of meter and use of excessive load. He admitted that meter box bottom seal are missing.
13 In defendant evidence, Sh.S.S.Madan, JE deposed that he was working as a inspector in MTD department in the year 1998. He visited the premises of plaintiff on 7.4.88. At the time of inspection it was revealed that in the said premises six meters were installed, out of which one was the CT meter and remaining five were one the single phase meter. DW1 further stated that bottom seals of CT meter box were found missing and it was found stopped on one Suit no.296/05/99 and Suit No.51/05/99 12 phase. He stated that inspection report was prepared in his own handwriting which is proved as Ex.PW1/7 and the inspection was carried out in presence of the representative of Sh.S.K.Goel, who signed the report and accepted the same. The signature of representative of plaintiff has been proved at point B. The enforcement department also prepared their load report Ex.PW1/6 which bears the signature of the witness and his signature. During cross examination, PW1 stated that he do not know, whether the seal has fallen on or it had been broken.
13(a) DW2 Sh.Suresh Garg, Jr.Engg. stated that he along with inspection team visited the premises of plaintiff and inspection report Ex.PW1/24 had been prepared by him which bears his signature at point A. He stated that Sh.Arvind Goel was present at the site during inspection dt.24.6.99.
13(b) DW Sh.P.K.Uppal stated that he carried out the inspection dt.7.4.98 along with MTD staff and his signatures are at point A on Suit no.296/05/99 and Suit No.51/05/99 13 report Ex.PW1/6. He deposed that during inspection, lower seal of the box was found missing along with other irregularities mentioned in report Ex.PW1/6. He also stated that re inspection was carried out on 24.6.99 and relevant report is Ex.PW1/24. During inspection dt.24.6.99, one phase of the meter was found stopped. He further deposed that when broken seals of the box were opened, one phase was visible like took by a hook and was found stopped earlier which had started giving readings. It was revealed that the phase was not showing reading earlier.
13(c) DW Sh.Surender Singh was the Member of Inspection Team during inspection dt.7.4.98. He stated that Sh.S.K.Goel was present at the time of inspection. The connected load was checked and load report Ex.PW1/6 was prepared. He stated that show cause notice dt.25.9.98 was issued which bears his signature at point E and thereafter, case was processed by Sh.N.K.Sharma, AE Enforcment. DW Surender Singh also deposed that two bottom seal of CT meter was found missing and meter was found stopped on one phase. Suit no.296/05/99 and Suit No.51/05/99 14 14 I have heard the Ld.counsels for parties. I have carefully gone through the pleadings of both the cases, testimony of witnesses and documents proved on record. I have carefully considered the written submissions filed by the parties and arguments advanced at bar. Issue wise discussions is as follows:
15 In order to avoid repetition, following issues are taken together for discussions.
Issue no.1:Whether the DVB conducted illegal inspection on 7.4.98 and can not raise any demand on this basis?(OPP) (suit no.296/99) Issue no.2:Whether the plaintiff is found indulging into the FAE and other irregularities at the time of inspection dt.24.6.99? (OPD) (Suit no.51/99) Issue no.3:Whether the demand raised by DVB is illegal?(OPP) (Suit no.51/99) Ld.counsel for plaintiff submitted that it has been proved that Suit no.296/05/99 and Suit No.51/05/99 15 plaintiff had not been indulging any kind of FAE and the electricity load used by the plaintiff was within the sanctioned limit. The notices sent to the plaintiff were duly replied by him. Even plaintiff had sent representation which are proved on record. Ld.counsel submitted that despite representations and replies, neither opportunity of hearing was not given to the plaintiff nor any speaking order was passed on the reply/representation. The defendant had not been able to prove any thing on record that plaintiff had ever indulged into any kind of FAE. In support of his arguments, Ld.counsel for plaintiff has relied on following cases.
1. MCD Vs. Ajanta Iron & Steel Co. 1990 RLR SC 250, It was held that, "DESU can not arbitrarily disconnect the electricity on the plea of theft of electricity without giving show cause notice"
2. Ramesh Kumar V/S.DESU 1995 RLR 488, it was held that, Suit no.296/05/99 and Suit No.51/05/99 16 "DESU can not disconnect the electricity without giving show cause notice. It can not claim that objection can be met by a post decisional hearing".
3.Sukhbir Singh Vs.DESU 1995 RLR 488, it was held that "DESU has no authority to issue demand notice on the basis of inspection report. one can do so only after detailed show cause notice and a reasoned order".
4. M/s.Rakesh Rubber Industries Vs. MCD 54(1994) DLT 156(DB) "Without giving opportunity of hearing to explain, the impugned bill by levy misuse charges can not be raised".
5. Ram Chandra Prasad Sharma & Others Vs. State of Bihar & Another 1967 SC 349. It was held that, "existence of perfected artificial means to render Suit no.296/05/99 and Suit No.51/05/99 17 abstraction possible must be established. Mere allegations about tampering of meter and control of accused over it not sufficient".
6. Jagarnath Singh Vs. H.Krishna Murthy & Anothers AIR 1967 SC 947, "existence of tampered meter as is found in the case does not amount to such artificial means for the abstraction of electricity as would make it an offence under Section 39 of Electricity Act".
7. Ramesh Chander & Others Vs. State of Delhi & anothers 68(1997) 257 "No material was found to show dishonest abstraction of energy, the charges framed under sec.39 and 44 of theft of Electricity was quashed"
8. Jagdish Narayan Vs. NDPL 140 (2007) DT 307 Suit no.296/05/99 and Suit No.51/05/99 18 This case was pertaining to the electricity Act 2003. Wherein it was held that, "automatic presumption of DAE on the basis of external symtoms of tampering with analysis of consumption pattern not safe and error free method"
9. J.K.Steelomelt (P) Ltd. Vs. BSES R)L 140(2007) DLT 563 This case was also under the Electricity Act 2003 pertaining to section 135 of the Act. It was held that, "Apart from fact that two seals found missing, no tangible evidence to show tampering with internal mechanism of meter by consumer to make meter recording lesser consumption of electricity. Therefore, order holding consumer guilty of DAE was fond unsustainable".
16 Ld.counsel for plaintiff further stressed that in view of the above Suit no.296/05/99 and Suit No.51/05/99 19 cited cases and evidence of witnesses as neither hearing was granted to the plaintiff nor speaking order on the replies/representation/letters of plaintiff was ever passed, case of FAE is not made out. Ld. counsel stated that plaintiff has not been cross examined on material points and therefore, the material points of his testimony be deemed to be correct.
17 Ld.counsel for defendant submitted that PW1 has admitted that inspection dt.7.4.98 was conducted and he has proved the copies of representations Ex.PW1/6 and PW1/7. He also admitted that he has been informed by his labourer about inspection dt.7.4.98. Plaintiff failed to prove any documentary evidence, showing that he is proprietor of M/s.Goel Steel Corp. PW1 has admitted that he has not installed shunt capacitor of adequate capacity.
Ld.counsel for defendant submitted that DW1 Sh.S.S.Madan clearly stated that broken seals of CT meter was found missing and on checking, it was revealed that it was stopped on one phase. The copy of MTD report has been duly proved as Ex.PW1/7. Ld.counsel Suit no.296/05/99 and Suit No.51/05/99 20 for defendant submitted that during cross examination PW1 stated that he was not present in the factory premises at the time of both the inspections, whereas report Ex.PW1/7 shows his signatures on the report which makes the testimony of PW1 is unreliable. Ld.counsel submitted that DW2 prepared the load report dt.7.4.98 proved as Ex.PW1/6. DW Sh.P.K.Uppal also proved that premises was re inspected on 24.6.99 as per the orders of the court and proved the inspection report Ex.PW1/24. DW2 has clearly stated when XEN broken the seal, the phase was visible and the phase which was stopped earlier have started giving reading. This phase which was stopped was not showing any reading earlier. DW Suresh Garg proved MTD report dt.24.6.99 and DW4 Sh.Surender Singh, who was Member of the Joint Inspection Team dt.7.4.98 has duly supported the defendant case and proved the show cause notice dt.25.9.99 as Ex.PW1/10. As per testimony of DW4, it is clear that reply was filed by plaintiff and opportunity of personal hearing was granted, but plaintiff did not avail the same. It is stated that as per testimony of witnesses after issuing show cause notice and giving Suit no.296/05/99 and Suit No.51/05/99 21 personal hearing, the matter was processed and the impugned bill of Rs.6,37,722.68 was raised.
18 Ld.counsel for defendant further pointed out that in the case of Dinesh Kumar Vs. DVB 105(2003) DLT 739. It was held that, "use of electrical load, for industrial purpose without valid MCD license, shall be violative of the principle of schedule and condition of supply and shall be treated as misuse"
19 Ld.counsel for defendant pointed out that in the case of Bhasin Motors and Udham Singh case, it was observed by Hon.High Court that mere tampering of seals does not amount to a theft of electricity unless it is corroborated by consumption pattern. It is stated that case of Bimla Gupta was related to the Electricity Act 2003. In the case of Udham Singh Vs. BRPL 136(2007) DLT 500 , it was held by Hon.High Court, " Mere irregularities in meter seals, or breakage of Suit no.296/05/99 and Suit No.51/05/99 22 glass, etc.do not authorize to licensee to issue show cause notice assessing officer to observe consumption pattern before personal hearing granted to consumer (Regulation 25(iv) r/w Regulation 26(ii) petitioner premises inspected on three occasions - previous second inspection and report not in dispute
- seals observed intact and reports signed by Field Engineer - mere circumstances that CT box meter was missing itself could not lead to conclusive proof of tampering or DAE".
In the case of Col.R.K.Nayyar Vs. BRPL 140(2007) DLT 257, it was held that, "consumption pattern can not lead to inference of FAE".
Ld.counsel for defendant pointed out that in the case of Udham Singh in LPA no.130/07 before Hon.High Court of Delhi, It was held Suit no.296/05/99 and Suit No.51/05/99 23 that, "Appellant will be at liberty to consider the matter after giving opportunity to the respondent. The amount of Rs.1 lac deposited by the respondent shall be adjusted in accordance with law towards the future demand. The appellant had become infructuous and therefore, Hon.High Court refrain from expressing any opinion on the merit of the case".
Ld.counsel submitted that opinion given by Ld. Single Judge in the case of Udham Singh should not be considered as exclusive opinion on the question of law. Similarly, in Jagdish Naryana Vs. NDPL, LPA was filed which was later on withdrawn and the interpretation of the legal questions involved were left open. Ld.counsel for defendant submitted that cases cited by Ld.counsel for plaintiff are not applicable in the facts and circumstances of the case as plaintiff has not been able to prove the material averments of Suit no.296/05/99 and Suit No.51/05/99 24 his case by leading a positive evidence. He has not been able to rebutt the evidence given by defendants witnesses.
20 The main question are, whether plaintiff has been able to prove the main averments of his cases by his evidence. PW1 stated during cross examination that inspection dt.7.4.98 on 26.4.99 were conducted in his absence. The inspection reports shows that he has signed the same. Defendant witnesses also stated that inspection report were signed by the representative of the plaintiff. This part of testimony creates a doubt about the authenticity and truthfulness of PW1. Let us take that the version of PW1 is correct to the effect that inspection dt.7.4.98 and 26.4.99 were carried out in his absence. If this version is accepted, whether plaintiff is in any position to prove the material facts of his case pertaining to the inspection carried out by officials, the observations recorded in inspection report, the connected load observed in the inspection report and the irregularities in working of meter.. In my opinion, if plaintiff was not present at the time of both the inspections, he has no first hand Suit no.296/05/99 and Suit No.51/05/99 25 information about the true facts and proceedings carried out during inspection dt.7.4.98 and 26.4.99. Rather, it is based on hear say evidence or on the basis of information received from the labour or his employees. If plaintiff as per his own version was not present during the inspection, he was not the best witness to dispute the correctness of the findings recorded in inspection report dt.7.4.98 and 26.4.99. Plaintiff should have examined the labourer or the employees, who were present at the time of both the inspections because they could have been the best witness to depose about the proceedings of the inspection reports. Plaintiff has not examined any such witness in support of his case. Therefore, if the testimony of plaintiff is taken as correct in respect of his absence at the time of inspections, his testimony can not be accepted in respect of the findings given in inspection report dt.7.4.98 and 26.4.99. In my opinion, if plaintiff was not present at the time of both the inspections, he is in no position what so ever to disprove the findings given by inspecting team.
Suit no.296/05/99 and Suit No.51/05/99 26 21 Question of burden of proof comes into the picture when no evidence has been lead by either party on a fact in issue. When the evidence has been lead by both the parties, court has to decide the case on its merits after reading the evidence as a whole. Defendant witness has clearly deposed in respect of inspection dt.7.4.98 and 26.4.99. It has not been disputed by plaintiff himself that inspections were carried out on 7.4.98 and 26.4.99. Plaintiff has not produced any evidence to disprove the allegations of defendant that meter seals were found broken, one phase of the meter was found stopped and plaintiff was found using excessive connected load. It has been specifically stated by defendants witnesses that when the meter was opened at the site, the one phase which was earlier stopped by plaintiff started giving reading. This part of the testimony makes it clear that internal mechanism of the meter was tampered with to show lessor consumption. Neither the testimony of defendant witnesses could not be impeached on this aspect nor any positive evidence has been produced by the plaintiff to disprove the claim of the defendant. In respect of the connected load, the claim of the Suit no.296/05/99 and Suit No.51/05/99 27 plaintiff was that he has deposited the various amounts to enhance the connected load which was not shown as enhanced. Secondly, that connected load was not correctly recorded. Thirdly, that no scientific instruments was used while calculating the connected load. If plaintiff was not present at the site, he was in no position to prove these averments of his case. Nothing has been brought on record to disprove the testimony of defendants witnesses that inspection report was correctly prepared. Defendant witness were acting in their official capacity. Nothing has been brought on record to show that they have any enmity or motive to prepare a false inspection report against the plaintiff. No plausible reason has been given by plaintiff to doubt the truthfulness of the testimony of defendants witnesses. Plaintiff has not been able to show that in fact the connected load was really enhanced at the site. As per the admitted case of plaintiff, though he deposited the required fees for enhancement of load, it was not really enhanced at the site. As per the case of the defendant, the sanctioned load was 37.20KW and defendant was found while using much more connected load. These facts has been Suit no.296/05/99 and Suit No.51/05/99 28 duly proved by defendant witnesses and their testimony could not be impeached on these material facts, whereas plaintiff has not been able to prove the enhanced load or that the connected load was not correctly calculated.
22 Ld.counsel for plaintiff submitted that no personal hearing was given to the plaintiff on his replies and representation. Defendant witnesses has clearly deposed that show cause notice was issued to the plaintiff and personal hearing was afforded which was not availed by the plaintiff. Under the rules, personal hearing has to be given to the consumer. But, it is for the consumer to avail it. Documents proved on record clearly revealed that personal hearing was given after issuing the show cause notice which was not availed by the plaintiff. In my opinion, it will not be justified to say when ever any representation is given by the consumer, a separate personal hearing and show cause notice is required. If every time show cause notice has to be given and personal hearing has to be afforded, then every consumer will keep on making repeated representations and Suit no.296/05/99 and Suit No.51/05/99 29 will never allow the officials of defendant to conclude the proceedings and to raise the impugned bills. In my opinion, it has been duly proved on record that as required under the law, the show cause notice was given and personal hearing was provided to plaintiff which was not availed by him and it was not required to give separate personal hearings for every reply and representations after conclusion of proceedings.
23 Ld.counsel for plaintiff has cited several cases in support of his contentions. As far as the legal proposition decided in different cases is concerned, there cannot be any dispute. But, every case by the superior court has been decided in certain facts. In my opinion, plaintiff has not been able to prove the material averments of his case and therefore, the cases cited by Ld.counsel for plaintiff can not help the cause of the plaintiff.
24 There is clear evidence by defendants witnesses that during inspection dt.26.4.99, it was observed that one of the phase of the Suit no.296/05/99 and Suit No.51/05/99 30 meter in question was stopped to show lessor consumption reading. Using more connected load then the sanctioned load itself comes within the category of "dishonest abstraction of energy". It has been duly proved by defendant that plaintiff was found using more connected load then the sanctioned load.
25 In the light of the above findings, in my view, the plaintiff has failed to prove the material averments of its case in both the suits bearing suit no.296/05/99 and no.51/05/09) and therefore, above mentioned issues are decided against the plaintiff and in favour of the defendant.
26 Issue.4:Whether plaintiff is entitled for the relief claimed? (OPP)(Suit no.51/05/99) Issue.5:Whether the plaintiff is entitled to decree of declaration as prayed for?(OPP)(suit no.296/05/99) Issue.6:Whether the plaintiff is entitled to decree of mandatory injunction?(OPP)(Suit no.296/05/09) Suit no.296/05/99 and Suit No.51/05/99 31 Issue no.7:Whether the plaintiff is entitled to decree of permanent injunction?(OPP) (Suit no.296/05/99) In the light of the above findings, in my view, plaintiff has not been able to establish his case for any relief either in suit no.296/05/99 or in suit no.51/05/99. Therefore, above mentioned issues are decided in favour of defendant and against the plaintiff. 27 Relief.
In the light of above findings, the suit no.296/05/99 and suit no.51/05/99 are hereby dismissed with cost. Decree sheet be prepared accordingly. File be consigned to R/R after due compliance.
(SANJEEV JAIN) Additional District Judge:Delhi (Central District) Announced in open court on 09.02.10 Suit no.296/05/99 and Suit No.51/05/99 32 Suit no.296/05/99 and Suit No.51/05/99 33