Delhi District Court
Shri Krishan Kumar Ranga vs N.D.P.L on 7 September, 2015
IN THE COURT OF MS. SWARANA KANTA SHARMA: ASJ ( ELECTRICITY)
NW DISTRICT:ROHINI: DELHI
Suit no. M46/10
Unique ID no. 02404R0188242010
Shri Krishan Kumar Ranga
Son of late Shri Kehri
R/o Plot no. 17, Pocket7, Sector2,
Rohini, Delhi110085 .............Plaintiff.
Vs
N.D.P.L
Through its Chief Executive Officer,
office of EAC, EAC Building Sector3,
Rohini, Delhi110085. ...........Defendant.
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
AND MANDATORY INJUCTION
Date of institution : 04/08/2010
Date of reserving order : 31/08/2015
Date of pronouncement : 07/09/2015
Appearances
Sh. Manish Makkar ............Ld counsel for the plaintiff.
Sh. Subhash Tagra ............Ld counsel for the defendant.
JUDGMENT
1) Brief facts of the present suit for declaration and permanent injunction are that plaintiff is the registered consumer of electricity connection bearing K. no. 44100135124 installed at his house no. 17 Ground Floor Pocket7, Sector2, Rohini, Delhi which is domestic connection with CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 1 of 17 sanctioned load of 5.00KW.
2) The plaintiff's case is that he has been making payment of electricity charges regularly. On 06/08/2009 officials of the defendant company had visited his premises in his absence and had prepared some inspection report bearing no. 512371 and had issued a show cause notice bearing no. 135682. The officials had demanded the photocopies of the last paid bills. The wife of the plaintiff was present at home who was forced to go the market to get the photocopies of the bills. In the meantime a show cause notice and inspection report was prepared in the absence of anyone from the petitioner's side. The wife of the petitioner was forced to put her signatures on the papers given by the officials of the defendant company.
3) Written statement was filed by the defendant company wherein they have refuted the case of the plaintiff and have stated that plaintiff is not entitled to any relief since he has willingly and knowingly indulged in theft of electricity by way of dishonest abstraction of energy and has caused wrongful loss to the defendant company. They have also stated that the meter installed at the house of the plaintiff was found tampered with when the site was inspected and a load of 8.473KW was found connected against the sanctioned load of 5KW. It is also stated that as per consumption analysis it was found that average recorded consumption was 327.24 units per month and average computed consumption was found to be 480 per month. Thus, the recorded consumption was found to be low of just 68.18% of the computed CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 2 of 17 consumption. It is thus stated that bill raised by the defendant company is correct and as per law and same be ordered to be paid by the plaintiff and suit of the plaintiff be dismissed.
4) Replication was filed by the plaintiff to the written statement of the defendant wherein he has denied all the averments made by the defendant company.
5) On 07/02/2013, after completion of the pleading of the parties
following issues were settled:
i. Whether the plaintiff is entitled for a declaration, as
prayed for? OPP
ii. Whether the plaintiff is entitled for a decree of
permanent injunction,as prayed for ? OPP
iii. Whether the plaintiff is not entitled for a decree of mandatory injunction, as prayed for ? OPP iv. Relief, any .
6) Plaintiff in support of his case has examined himself as PW1. He has tendered his evidence by way of affidavit Ex. PW1/1 and has filed documents Ex. PW1/A to Ex. PW1/J. He has stated in his evidence that he is the registered consumer in respect of electricity connection bearing no. 44100135124 which has been installed at property bearing Plot no. 17, CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 3 of 17 Pocket7, Sector2, Rohini, Delhi and the sanctioned load of said meter is 5KW. He further stated that he is a permanent resident of the aforesaid premises and has been using electricity meter for domestic purpose. He further stated that he has been paying the bills issued by the defendant company regularly. He further stated that plaintiff had purchased Air Conditioner on 01/08/2009 and proved the copy of the bill towards the purchase of second hand Air conditioner Ex. PW1/A. He further stated that meter of the plaintiff had got burnt on 05/04/2009 and he had lodged a complaint regarding the same at 7.5 AM vide complaint no. 55181463 with the respondent company. He further stated that despite complaint lodged with the company no one had attended the same. He had again lodged complaint bearing no. 5518/1478, however no one from the respondent company had attended to the complaint. Thereafter another complaint was lodged with the PCR by dialing 100 number which was registered. Thereafter Shri Vijay and Shri Murari Lal who are officials of the respondent company had visited the premises and had disconnected the electricity without assigning any reason. The plaintiff had again lodged a complaint with PCR when two more officials of the defendant company Sh. Bhuvneshwar and Sh. Anil Kumar had visited the premises and had given the direct supply to the plaintiff without any meter as per rules. On 06/08/2009 some officials from the respondent company had visited the premises of the plaintiff in his absence and had prepared illegal inspection bearing no. 152371 and had issued a show cause notice bearing no. 135682 on 06/08/2009. He has further stated that officials had demanded photocopy of the last paid bill and wife of the plaintiff who was present at CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 4 of 17 home was forced to go to the market to get the photocopies of the bills. In her absence a show cause notice and inspection report were prepared. Wife of the plaintiff upon her return was forced to put her signatures on the papers. The plaintiff had filed a detailed reply to the show cause notice on 10/08/2009 which was acknowledged by the respondent officials on 10/08/2009 and 11/08/2009. However, without considering the reply the respondent had again issued a show cause notice on 19/08/2009. The plaintiff appeared before the respondent's officials on 26/08/2009 alongwith his wife. However respondent company without considering the facts of the case had issued speaking order on 14/09/2009 and had also issued illegal bill amounting to Rs. 68,306/ without any justified reasons. He further stated that all the seals of the meter box, terminal and half seals were found intact and fixed by the officials of the respondent. He has stated that since he had purchased the Air conditioner in August, 2009 and had used it for few minutes and on the same day the meter was burnt and complaint was lodged with the respondent company, the load of the Air conditioner could not have been added in the inspection report.
On being crossexamined by Ld counsel for the defendant company Sh. Subhash Tagra, he stated that the meter was burnt on the night of 04/08/2009 and complaint was lodged regarding the same in the morning of 5th of August, on telephone. The complaint number was given by the defendant company on the phone and therefore he had not given any written complaint to the defendant company on 05/08/2009. He further stated that he had given several complaints in writing to the defendant company on different dates. He has stated that meter installed at his premises was burnt on CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 5 of 17 20/05/2009 also. He admitted that he had not given any written complaint to the defendant company since complaint was lodged from mobile phone. He stated that it is clerical mistake in para no. 5 of the affidavit that the meter was burnt on 05/04/2009. He stated that it was burnt on 20/05/2009. He stated that on 12/06/2009 a new seal was applied to his meter by the officials of the NDPL. He stated that at the time of inspection on 06/08/2009 the connected load was found to be 8.473KW and he had got installed three Air conditioners on 01/08/2009. He stated that electricity supply was restored after a new meter was installed few days after the inspection. He placed on record letters dated 27/08/2009 Ex. PW1/D1 and Ex. PW1/D2 to prove the same. He also placed on record intimation regarding case of theft of electricity booked against him Ex. PW1/D3.
7) After plaintiff's evidence was closed, the defendant company has examined two witnesses i.e DW1 Sh. Manoj and DW2 Sh. J.K. Sharma in support of their case.
8) DW1 Shri Manoj is Senior Manager with the defendant company who has tendered his evidence by way of affidavit Ex. DW1/A and stated therein that an inspection was carried out by the staff of the defendant company at the premises of plaintiff on 06/08/2009 and an inspection report was prepared. On the basis of the documents and inspection report he had issued a show cause notice to the plaintiff to appear before the aforesaid Cell on 13/08/09. Another show cause notice was issued on 19/08/2009 to file his CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 6 of 17 reply before passing the speaking order dated 14/09/2009. He has passed the speaking order as per DERC Rules, after considering the written submissions by the plaintiff.
On being crossexamined by the Ld counsel for the plaintiff Sh.Manish Makkar he stated that he has no personal knowledge about the present case since he has not visited the premises in question nor he was member of raiding team. He admitted that plaintiff had filed on record the documents regarding the purchase of Air conditioner on 01/08/2009 however he had not mentioned the same in the speaking order. He stated that merely filing the bills does not prove that they were in use. He further stated that he was aware regarding the complaint lodged by the plaintiff regarding the burning of the meter Ex. PW1/G
9) DW2 Shri J.K. Sharma tendered his evidence by way of affidavit Ex.DW2/A and stated therein that the inspection was carried out as per DERC rules by the raiding team of Enforcement Cell at the premises of the plaintiff on 06/08/2009. He stated that he was Incharge of the raiding team and had prepared the inspection report and action report at the site which was signed by him. He stated that show cause notice was also issued to the plaintiff to appear before the Enforcement department on 03/09/2009.
On being crossexamined by Ld counsel for the plaintiff Shri Manish Makkar, he stated that on 06/08/2009 they had found that a paper seal was pasted on the meter by the staff of Zone no. 551 of defendant company which was removed by raiding team. He further stated that meter was not CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 7 of 17 sent to any Lab for its testing before issuance of the Show cause notice. He further stated that at the relevant time there was no procedure in NDPL for sending the meter for testing. He further stated that he has no knowledge whether the meter in question was sent to any lab after the inspection till date and that vide complaint no. 55181463 dated 05/08/2009, a complaint was registered regarding the burning of the meter in question with the NDPL. He stated that inspection report and show cause notice were prepared in the presence of officials of the concerned Police station who had been called by the PCR and PCR was called by the consumer. He stated that ASI Surender Singh and one Constable were present at the spot at the time of inspection. He proved the action report Ex. PW2/DA which bears the name of ASI Surender Singh but does not bear their signatures. He stated that inspection report dated 06/08/2009 Ex. PW1/B does not bear the signatures of police officials though it was prepared in their presence. He admitted that person who has passed the speaking order Ex. PW1/E had never called by him to assist him regarding the inspection in question before passing the speaking order. He further stated that the passing of the speaking order and preparing of the bill is the duty of the Enforcement Assessment Cell department which is separate from the Enforcement department. He further stated that he had never asked higher authorities to get the meter in question tested in any Lab. He admitted that he had not produced the shunt wires in the court till date. He admitted that they had again gone to the spot for inspection and he was having knowledge regarding the burning of the meter .
CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 8 of 17
10) Vide order dated 31/08/2015 defendant's evidence was closed .
11) Final arguments were heard. I have heard Ld counsels for the parties and have gone through the case file and documents placed on record carefully. My findings to the issues are as under. I shall decide issue no.1 first. ISSUE NO.1
12) I have gone through the case file and documents filed on record as well as the statements of the witnesses. The case of the defendant company is that premises of the plaintiff had been inspected on 06/08/2009, during which they had found that the plaintiff had been committing theft of electricity by tampering with the electricity meter. A perusal of inspection report shows that it is mentioned in the inspection report that the meter in question was found tampered as two shunts wires were found connected between incoming and outgoing phase and neutral of meter terminal at back side of meter terminal. It is also mentioned in the inspection report that the inspection was carried out in the presence of wife of the plaintiff who had refused to sign the same and had not allowed them to paste the inspection report on the wall. The contents of both the reports are not disputed by the defendant company since these documents were admitted to have been prepared by their officers.
13) It is not the case of the defendant company that there has been any mismatch in the consumption pattern of electricity or that consumer was not paying electricity bills regularly. It is however stated that as per consumption CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 9 of 17 analysis it was found that average recorded consumption was 327.24 units per month and average computed consumption was found to be 480 per month. The team members of the raiding team have however calculated the connected load on the basis of all the available electrical appliances installed at the house of the consumer which were not in use at the time of inspection. The plaintiff has filed on record, the bills towards purchase of Air conditioners a few days before the raid. The same have not been proved to be fake. Moreover, on the available cable in the house of the plaintiff, three air conditioners and all the other electrical appliances could not have functioned simultaneously.
14) The load of the Air conditioners purchased a few days prior to raid could not have affected the previous consumption pattern, which was low. Therefore the bill could not have been raised adding presumed consumption of electricity. Therefore, the accuracy of the computation of the connected load is doubtful.
15) It is admitted by DW2 Shri J.K. Sharma who is leader of the inspecting team that two police officials were also present at the spot at the time of inspection and when the inspection report and action report were prepared, however, he admitted that both the reports do not bear the signatures of those witnesses. The defendant company should have produced these two witnesses in support of their case if they were independent eye witnesses to the alleged theft of electricity. However, defendant has not produced these witnesses which throws a veil of doubt CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 10 of 17 on the veracity of their case.
16) Though it is the case of the defendant that the meter in question was tampered with, they have not sent the meter for testing to any laboratory. The defendant company on the other hand has argued that at the time of inspection there was no provision for sending the meter to any laboratory as no laboratory was assigned for such purpose. It is thus only on the basis of physical assessment that defendant wants to prove that meter had been tampered with. In my opinion neither the Court nor the members of raiding team are technically equipped to assess as to whether the meter had been tampered with or not in the absence of any such report from any technical lab.
17) Ld counsel for the plaintiff has further submitted that as per DERC Regulation 40 since it is the duty of the NDPL to restore the electricity within 6 hours of the complaint, as per law the officials of NDPL had restored the electricity on 05/08/2009 as the complaint was lodged by the plaintiff.
18) Ld counsel for the plaintiff submitted that as per section 63 of Delhi Electricity Supply Code and Performance Standards Regulations, 2007 the complaint can be lodged over the telephone to the Centralised Complaint Receiving Centre of the Licensee.
19) I have perused the section 40 as well as Section 63 of the Delhi Electricity Supply Code and Performance Standards Regulations, 2007 which CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 11 of 17 reads as under:
Section 40: Burnt Meter :
(a) In case the meter is found burnt upon inspection by the Licensee on consumer's complaint or otherwise, the Licensee shall restore connection in six hours upon receiving the complaint by bypassing the burnt meter after ensuring that necessary corrective action at site is taken to avoid future damage. New meter shall be provided by the Licensee/ consumer, as the case may be, within three days.
(b) The Licensee shall get the burnt meter removed from site/consumer's premises and test the same. If it is established, based on test results, that meter got burnt due to technical reasons e.g voltage fluctuation , transients etc. attributable to system constraints, the Licensee shall bear the cost of meter.
In case upon inspection of the consumer's installation and subsequent examination of the meter, it is established that meter got burnt due to reasons attributable to the consumer e.g tampering, defect in consumer's installation, meter getting wet due to falling of water, connection of unauthorised load by the consumer etc, the consumer shall bear cost of procuring and installing the new meter. The consumer shall also pay to the licensee the cost of the meter less the depreciation at the rate of 6% per annum (or the rate approved by the Commission for ARR purposes from time to time) from the date of CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 12 of 17 installation.
(c) In case the meter is found burnt and there is reason to believe that an official of the Licensee gave a direct connection, pending replacement of meter, a case of theft of energy shall not be booked. Consumer's complaint for replacement of burnt meter or the complaint regarding disruption in supply of energy shall be considered sufficient for this purpose. In case a consumer hinders replacement of burnt meter or does not intimate the licensee, the drawl of energy under such circumstance shall be dealt as per Part XIV of the Act.
Section 63: "63: Procedure for lodging complaint (1) Complaint can be lodged over the telephone to the Centralized Complaint Receiving Centre of the Licensee, giving the details of name, address, telephone no. if available and brief nature of the complaint. "
20) A perusal of these two sections makes it clear that a complaint can be lodged with the defendant company over the telephone to the Centralized Complaint Receiving Center. It is not disputed that such complaint had been lodged with the defendant company as complaint number has been given by the plaintiff and it is also not disputed that when the complaint was not attended too he had informed the PCR and only thereafter Shri Vijay and Shri Murari Lal who are officials of the respondent company had visited the CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 13 of 17 premises of the plaintiff. As per guidelines of DERC 40 (a), Respondent company had to restore the electricity supply by giving him direct supply by bypassing the burnt meter as interim measures till the installation of new meter.
As per Section 40 (b) of the DERC Regulations, it is also the duty of the licensee to have removed the meter from the site immediately and to get it inspected. As per Regulations 40(c) in case meter is found burnt and there is no reason to believe that an official of the Licensee had given a direct connection, pending connection replacement of meter, a case of theft of electricity shall not be booked against the consumer in this regard as per section 40(c) on a consumer's complaint for replacement of burnt meter has to be considered sufficient for this purpose.
21) Therefore this too points out that on the date of inspection there was direct supply through meter of the plaintiff which had burnt and the officials of the defendant company had given him direct supply till the installation of new meter, if this claim of the plaintiff was wrong the defendant company should have produced in the witness box concerned witnesses who according to the plaintiff had given direct supply as interim measure.
22) Moreover, the meter in question was not removed from the site nor produced in the court as case property to prove that meter box seals were tampered with. Since case property was not produced in the court neither court had any occasion to see the case property, or observe tampering or CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 14 of 17 absence of the seals of the meter in question. The defendant company could have produced the said meter in their defence which is crucial evidence which they have failed to do. I am therefore, of the opinion that the defendant has failed to prove that plaintiff had been indulging in dishonest abstraction of energy by tampering of meter.
23) In view of discussions made above, since there is no report regarding the tampering of meter, the inspection report is against DERC regulations and in absence of case property, I hold that the defendant wants to prove its case on the basis of presumption which is not permissible in Law. Issue no.1 is thus decided in favour of the plaintiff and against the defendant. Issue no.2
24) Since issue no.1 has been decided in favour of the plaintiff and against the defendant there is no need to decide issue no.2 in detail and it is declared that the inspection report dated 06/08/09 is null and void. Issue no.3
25) The relief of injunction is a discretionary relief. The person who approaches the court for the same needs to establish that a legal right exist in his favour having corresponding obligation upon the opposite party. The plaintiff is however, required to establish that the opposite party is adamant to violating his existing legal right and needs to be prevented from doing so. In this case the plaintiff has established that he has been using the electricity CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 15 of 17 connection for domestic purpose and has never misused the same for any other purpose. The plaintiff has also established that the meter in question was burnt and supply was restored by officials of defendant company as per DERC Regulations and further that he is regularly making the payment of the electricity bill from time to time raised by the defendant. The plaintiff has further succeeded in proving that the inspection report dated 06/08/2009 was illegal. It is also established while deciding issues that plaintiff was not indulging in dishonest abstraction of energy during the inspection dated 06/08/2009, hence he is, entitled to the discretionary relief of permanent injunction restraining the defendant, its employees, agents from disconnecting the electricity supply through K. no. 44100135124 installed at his house no. 17 Ground Floor Pocket7, Sector2, Rohini, Delhi for not making the payment of the bill dated 10/05/2012 which has been declared to be illegal and null and void.
Relief
26) In view of my findings of issues, the plaintiff is entitled to grant of declaration as well as permanent injunction as claimed for. Accordingly the decree of declaration is passed in favour of the plaintiff and against the defendant declaring the inspection dated 06/08/2009, final assessment bill dated 14/09/2009 of Rs. 68,306/ as illegal and null and void.
27) Further a decree of permanent injunction is passed in favour of the plaintiff and against the defendant restraining the defendant its employee, CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 16 of 17 agents or any other person representing it are restrained from disconnecting the electricity supply through K. no. 44100135124 installed at his house no. 17 Ground Floor Pocket7, Sector2, Rohini, Delhi for not making the payment of the bill which is based on the illegal inspection dated 06/08/2009.
28) In view of above terms, the suit of the plaintiff is decreed with no order as to costs. Decree Sheet be prepared accordingly. ANNOUNCED IN THE OPEN COURT ON 07th September, 2015.
(SWARANA KANTA SHARMA) ASJ (ELECTRICITY) NW ROHINI :DELHI:(M) CS/ M no. 46/10 (Sh. Krishan Kumar Ranga Vs TPDDL) Page no...... 17 of 17