Delhi District Court
Sh Keshav Jain vs Bses Rajdhani Power Ltd on 15 September, 2022
In the Court of Shri Ajay Kumar Malik : Additional Senior Civil Judge
of South West District at Dwarka Courts, New Delhi
CS SCJ. 238/2021
CNR No. DLSW03 000353 2016
In the matter of :-
Sh Keshav Jain,
s/o Late Sh Raj Kumar Jain,
r/o WZ-598, First floor,
Palam Village, New Delhi - 110045.
........Plaintiff
VERSUS
BSES Rajdhani Power Ltd.
(Through its MD/CEO)
BSES Bhawan, Nehru Place,
New Delhi- 110019.
.....Defendant
Date of institution : 22.03.2016
Reserved for Judgment : 14.09.2022
Date of decision : 15.09.2022
Suit for Declaration, Mandatory and Permanent Injunction
JUDGMENT
1. This is a suit for declaration, mandatory injunction and permanent injunction filed by plaintiff against the defendant for declaring the assessment bill for theft (meter tampering) dated 07.09.2015 bearing no. HNENR070920150119A0 for a sum of Rs. 31,657/- illegally, arbitrary and CS No. 238/2021 Page no. 1 of 10 malafidely raised by defendant upon plaintiff on electricity connection bearing CA no. 150814397 and meter no. 21642587 installed at house no. WZ-598, First Floor, Palam Village, New Delhi - 110045 and for restraining the defendant, its agents, successors, assigns etc. from disconnecting electricity connection.
Plaintiffs' Case
2. The case of the plaintiff as averred in the plaint is that in the year 2013 defendant installed electricity connection bearing CA No. 150814397 and meter no. 21642587 at the house of plaintiff bearing no. WZ-598, First Floor, Palam Village, New Delhi - 110045 and the nature of connection was Domestic (Residential) with sanctioned load of 3 KW. It is stated that on or around 07.05.2015 a fire broke out at premises of plaintiff due to which the electricity meter installed at the house of plaintiff was completely burnt. The matter was reported to defendant and on 07.05.2015 the defendant installed a new electricity meter bearing no. 26207674 and electricity was restored. It is stated that in the absence of plaintiff an inspection was done at the premises of plaintiff by the defendant's officials and thereafter, no notice or intimation was received by plaintiff from defendant's side. It is stated that after replacement of electricity meter, plaintiff is regularly paying the consumption charges as per bills raised by the defendant. It is further stated that on or around 11.03.2016 two officials of defendant visited plaintiff's house and handed over an alleged Assessment bill for theft (meter tampering) dated 07.09.2015 bearing no. HNENR070920150119A0 for a sum of Rs. 31,657/- to plaintiff. The said officials asked the plaintiff to pay the aforesaid bill by 25.03.2016 and threatened to disconnect the electricity in case of non failure to pay the CS No. 238/2021 Page no. 2 of 10 assessment bill. Thereafter, plaintiff tried to contact the defendant's office and requested them for providing details regarding the alleged assessment bill for theft but to no avail. It is stated that no notice or communication was ever received by plaintiff prior to 11.03.2016 from defendant regarding any proceeding, inquiry or lab test in respect to the impugned bill. It is stated that defendant's officials are threatening the plaintiff for disconnection of electricity and they had also visited the plaintiff's house on 15.03.2016 demanding the plaintiff to deposit the bill amount by 25.03.2016, failing which the electricity connection of plaintiff will be disconnected. It is stated that despite requests of plaintiff defendant's officials have failed to adhere to the same, hence the present suit.
Defendants' Case
3. Written statement has been filed on behalf of defendant wherein it has been contended that the plaintiff has deliberately and intentionally concealed material facts from the court. It is stated that on 27.05.2015 an inspection of connection having CA no. 150814397 installed at the premises of plaintiff was done by the authorized Enforcement Team at the premises of plaintiff and during inspection meter bearing no. 21642587 was found to be completely burnt and supply of electricity was restored through new electronic meter having no. 26207674. It is stated that a load of 4.800 KW for domestic purpose was found connected against sanctioned load of 3.000 KW under domestic category. It is stated that necessary videography of the inspection proceedings was also done by M/s Arora Photo Studio. It is stated that inspection report, meter details report, load report in form of Assessment of Connected Load and Seizure Memo vide BR-IR-0B- 104326 dated 27.05.2015 were prepared at the site. Representative of CS No. 238/2021 Page no. 3 of 10 plaintiff present during the entire process of inspection refused to sign and receive the reports. It is stated that a show cause notice dated 22.06.2015 for Suspected Theft of Electricity (meter tampering) was issued and the same was sent by speed post alongwith relevant documents and the plaintiff was requested to file reply by 16.07.2015 and to attend personal hearing on 23.07.2015. It is stated that when no response was received from plaintiff, again a Final Notice dated 24.07.2015 was issued to plaintiff to attend personal hearing on 24.08.2015 but no response was received from plaintiff. It is stated that the case was examined and it was found that meter no. 21642587 installed on 28.06.2013, at the time of inspection was found totally burnt and hence, conclusive evidence (artificial means) of Theft of Electricity has been detected. It is stated that consumption has increased after meter replacement and average monthly consumption from 22.05.2014 to 25.07.2014 was found only 455 units while recorded monthly consumption from 30.05.2015 to 29.07.2015 was found to be 945 units per month with new meter which corroborates that the meter was deliberately burnt to get rid of tampered element. It is stated as per the Speaking Order dated 28.08.2015 and Provisions of Tariff and DERC Regulations, DFO Enforcement raised Assessment Bill for Theft (Meter Tampering) having bill no. HNENR070920150119A0 amounting to Rs. 31,657/- with due date 22.06.2016 for payment.
Issues
4. After completion of pleadings, vide order dated 26.07.2017, the following issues were framed by my learned Predecessor for trial :
i Whether the plaintiff was involved in theft of the electricity as CS No. 238/2021 Page no. 4 of 10 alleged in the inspection report dated 27.05.2015? OPD ii Whether the plaintiff is entitled for the suit of declaration? OPP iii Whether the plaintiff is entitled for mandatory injunction, as prayed ? OPP iv Relief Plaintiff's Evidence
5. Plaintiff has examined himself as PW1, who in his affidavit in evidence Ex. PW-1/A has stated and reiterated on oath the contents of the plaint. He has relied upon following documents :
i. Mark A is electricity bill.
ii. Ex. PW-1/1 is impugned bill dated 07.09.2015
iii. Ex. PW-1/2 (colly) is tracking report obtained from Indian Post
Website.
iv. Ex. PW-1/3 is certificate u/s 65B Indian Evidence Act.
6. Plaintiff's evidence was closed on 15.09.2017 and the matter was adjourned for defendant's evidence.
Defendant's Evidence
7. (i) Sh Rohit Garg, Assessing Officer, BSES RPL was examined as DW-1, who in his affidavit in evidence Ex.DW-1/A has stated and reiterated on oath the contents of the written statement. He has relied upon show cause notice dated 22.06.2015 and 24.07.2015 which are Ex. DW-1/1 and Ex. DW-1/2 respectively, Consumption pattern Ex. DW-1/3, Speaking Order dated 28.08.2015 dated Ex. DW-1/4 and assessed theft bill Ex.
CS No. 238/2021 Page no. 5 of 10 DW-1/5. (ii) Sh Mohit Yadav has examined himself as DW-2, who in his
affidavit in evidence Ex.DW-2/A has stated and reiterated on oath the contents of the written statement. He has relied upon Ex. DW-2/1(OSR) is Enforcement Inspection Report, Ex. DW-2/2(OSR) is Form for Assessment of Connected Load, Ex. DW-2/3(OSR) is Seizure memo dated 27.05.2015 and Ex. DW-2/4 is CD containing videography.
8. Defendant's evidence was closed on 04.06.2022 and final arguments were addressed by the parties.
9. I have gone through the judicial record.
10. Now I shall give my issue-wise findings.
(i) Issue no. (ii) and (iii) are interconnected, hence they are taken up jointly.
Issue no. Whether the plaintiff is entitled for the suit of
(ii) declaration? OPP Issue no. Whether the plaintiff is entitled for mandatory
(iii) injunction, as prayed ? OPP The onus to prove the issue no. (ii) and (iii) was upon plaintiff. In order to discharge his onus the plaintiff got examined himself as PW-1 and proved the Assessment Bill for theft (meter tampering) as Ex. PW-1/1 with net charges of Rs. 31,657.00/-. Ex. PW-1/1 shows the accrual of above amount under the heading of Net Theft Assessment Charges. PW-1 specifically deposed that no notice or communication was ever received by PW-1 prior to 11.03.2016. No show cause notice dated 22.06.2015 was CS No. 238/2021 Page no. 6 of 10 ever served upon PW-1 hence there was no occasion for deponent to file his reply against the alleged notice which was stated to be 22.06.2015. Hence, similar was the fate for alleged final notice dated 24.07.2015. PW also deposed that mere fact that consumption of electricity has increased after the replacement of meter is no proof of alleged burning of meter by plaintiff and increase or decrease in consumption can be attributed to various facts and circumstances.
During cross examination of PW-1 the defendant has suggested that on 27.05.2015 at the time of inspection by BSES team, meter was found in burned condition. Hence, the factum of burning of meter is not in dispute. During cross examination of DW-1, the DW-1 has specifically admitted that no postal receipts sending of the said show cause notices to the plaintiff have been placed on record. DW-1 further stated in cross examination that on the basis of inspection report he detected that the meter was run by artificial means of theft of electricity. DW-1 also stated that only on the basis of consumption pattern and load report they declared the meter has been deliberately burned. DW-1 also stated that as per the inspection report Ex. DW-2/2 no burnt meter was seized at the site and no other meter was seized from the premises of plaintiff. DW-1 admitted the suggestion that as per Speaking Order Ex. DW-1/4 the meter was shown seized. DW-1 denied the suggestion that meter was found at the site in burnt condition and it was intentionally not shown seized by the officials of BSES in the inspection report as the meter got burned on its own. The depositions of DW-1 itself clarifies that no meter was seized from the premises of plaintiff. Apart from alleged burned meter there is nothing tangible material found by officials of defendant or even alleged by CS No. 238/2021 Page no. 7 of 10 officials of defendant through which theft of electricity was made by plaintiff. It is admitted fact on the part of defendant that only on the basis of consumption pattern and load report they declared that meter had been deliberately burned. The defendant has only made assumptions regarding the alleged theft of electricity by the plaintiff. In the entire pleadings and even in the evidence by way of affidavit of defendant, it is no where stated that it is typographical mistake in the inspection report Ex. DW-2/2 that the meter has been seized by defendant and that it is mere typographical mistake by the Steno of defendant. DW-1 gave this explanation voluntarily when the fact is confronted by Ld counsel for plaintiff by referring to Ex. DW-2/2. Ex. PW-1/1 is assessment bill for theft (meter tampering) which is off shoot of Ex. DW-2/2 and the crux of Ex. DW-2/2 is the seizure of electricity meter from the premises of plaintiff whereas, as per admission by DW-1, no such meter was ever seized at the time of inspection of the premises of plaintiff. If we keep aside, the factum of seizure of meter, then the only basis for allegation of theft by the plaintiff is the electricity consumption pattern at the premises of plaintiff. The changes observed in the consumption pattern of electricity inspired the DW-1 to make allegation of theft of electricity by plaintiff and mere presumption or opinion by any person cannot lead to culpability of offence or illegal act by any person. Changes in the pattern of consumption can be due to various factors including the use or non use of various electrical gadgets or leakage of electricity due to different reasons or wish of the consumer to use the quantum of electricity at any particular point of time. Hence, there are no legs to the presumption by defendant that there was theft or tampering of meter by the plaintiff which are, obviously, the basis of impugned bill Ex. PW-1/1. In the light of evidence lead and admissions made by DW-1 the CS No. 238/2021 Page no. 8 of 10 preponderance of probability tilts in favour of plaintiff. The plaintiff has successfully discharged his onus to prove the issue no. (ii) and (iii). Hence, the assessment bill for theft (meter tampering) dated 07.09.2015 bearing no. HNENR070920150119A0 for sum of Rs. 31,657/- as illegal and arbitrary.
Defendant is hereby restrained from disconnecting the electricity connection from the premises of plaintiff for the reason of non payment of bill Ex. PW-1/1.
Issue no. Whether the plaintiff was involved in theft of the electricity
(i) as alleged in the inspection report dated 27.05.2015? OPD
(ii) The onus to prove this issue was upon defendant but the chronological perusal of record shows that vide order dated 05.03.2019 Ld District & Sessions Judge, South West District, Dwarka has withdrawn the present matter from the court of Ld ADJ, South West and transferred the same to this court, then presided by Sh Jagminder Singh, Ld JSCC ASCJ/GJ, South West for trial. It is on the record that on 26.07.2017 Ld ASJ/Special Electricity Court framed the issue in the matter containing the issue no. (i) also. In view of orders passed by Hon'ble Supreme Court of India in Civil Appeal no. 20842 of 2017 dated 04.12.2017 several observations were made. As this court has no jurisdiction to adjudicate the theft of electricity, so this issue cannot be decided by this court.
11. Relief In view of my aforesaid findings on issue no.(ii) and (iii), the suit is decreed in favour of plaintiff and against defendant.
CS No. 238/2021 Page no. 9 of 10 No order to costs. Decree sheet be prepared.
File be consigned to the record room after due compliance.
Digitally signed by AJAY AJAY KUMAR
Announced in the Open Court KUMAR MALIK
Date: 2022.09.15
on 15.09.2022 MALIK 16:12:09 +0530
(Ajay Kumar Malik)
Additional Senior Civil Judge
South West District: Dwarka Courts: New Delhi
CS No. 238/2021 Page no. 10 of 10