Delhi District Court
Shri Sukhbir Singh vs Tata Power Delhi Distribution Ltd on 6 July, 2020
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE (HQ)
TIS HAZARI COURTS, DELHI
CS No. 576/2018
SHRI SUKHBIR SINGH
S/o LATE SHRI BALWANT SINGH
R/o H.No. 226, G.F., GALI No. 9,
BAGH MURID KHAN,
PADDAM NAGAR, DELHI
.....PLAINTIFF
VERSUS
TATA POWER DELHI DISTRIBUTION LTD.
THROUGH ITS CHIEF EXECUTIVE OFFICER
HUDSON LANE, KINGSWAY CAMP,
DELHI 110009.
... ..DEFENDANT
Date of filing : 15.02.2018
First date before this court :30.07.2019
Arguments on appeal concluded on : 02.07.2020
Date of Decision : 06.07.2020
Appearance : Shri P.L. Kalra, counsel for plaintiff
Shri Ashok Kumar, counsel for defendant
JUDGMENT
1. Plaintiff has brought this suit seeking decree of declaration, declaring the inspection report dated 27.12.2017, meter testing report dated 17.01.2018, speaking order dated 07.12.2018 and bill of Rs. 3,74,464.60p as illegal, unjustified, null & void and not enforceable. Plaintiff has also sought in this suit a decree of permanent injunction, thereby restraining the defendant from disconnecting electricity supply into his premises. Upon service of summons, defendant entered appearance and filed detailed written statement which followed a replication from plaintiff. On the basis of pleadings, my learned predecessor framed issues on which trial was conducted. In view of Covid19 Suit No.576/2018 Sukhbir Singh vs TPDDL Page 1 of 12 pages lockdown, learned counsel for both parties opted to file written arguments and were also granted opportunity to address additional oral arguments, if so desired, through video conferencing, which opportunity was availed by only the counsel for defendant.
2. Briefly stated, factual matrix as pleaded by plaintiff is as follows.
2.1 Plaintiff is registered consumer of electricity vide electricity connection bearing CA No. 60017718622 for a sanctioned load of 6KW for non-domestic purpose, installed at house no. 226, ground floor, gali no. 9, Bagh Kare Khan, Padam Nagar, Delhi. The said electricity connection was installed by the defendant, acting as licencee under law, authorized to distribute electricity in the area concerned. Plaintiff continued to deposit all bills raised by the defendant for consumption of electricity. The last bill of Rs. 4,720/-, payable by 05.02.2018 also was cleared by plaintiff, thereby leaving no amount outstanding.
2.2 Suddenly on 27.12.2017, some officials of the Enforcement Department of defendant inspected the premises of plaintiff without any prior notice and seized meter No. 62135287 but prepared seizure memo on 17.01.2018 at 02:40pm. Defendant replaced meter No. 62175287 with new meter bearing No. 72254925 after inspection on 27.12.2017.
2.3 The officials of the defendant in their inspection report wrongly and illegally described the total load in the premises of plaintiff as 8.445 KW, though all bills received from office of the defendant reflected MDI reading much below the sanctioned load of 6 KW. In the inspection report, the defendant also wrongly recorded that the terminal and technical cover were found burnt and the carbonized scratches were found and the meter in-coming phase was found burnt.
Suit No.576/2018Sukhbir Singh vs TPDDL Page 2 of 12 pages 2.4 The officials of the defendant also prepared the Energy Meter Observation
Report dated 17.01.2018 to the effect that the meter seal bearing No. 226392 dated 27.12.2017 was found fixed and not disturbed. The Enforcement Department of the defendant recorded the maximum demand against the said meter to be 5.5720 KW. The Enforcement Department wrongly observed that the in-coming gland of meter box was found open and rubber of the gland was found cut; and that in-coming phase and terminal were found burnt, and carbonized scratches and burnt marks were found on meter terminal cover. It was wrongly recorded that the daily consumption was found zero on many days as per daily survey report.
2.5 Since the officials of the defendant did not issue any prior notice before conducting inspection, action taken by the defendant is illegal and arbitrary. Further, the officials conducting the inspection failed to join any local resident in the course of inspection, so the inspection report is liable to be set aside. The Assessing Officer of the defendant prepared the speaking order arbitrarily without issuing any show cause notice to the plaintiff. The observations recorded in the speaking order are factually incorrect.
2.6 Hence, the present suit.
3. In the written statement, the defendant denied the plaint contents and set up their version as follows.
3.1 The inspection team of the Enforcement Department of defendant visited the premises of plaintiff in his presence on 27.12.2017 and conducted the inspection after showing their identity cards. At the time of inspection, the electricity meter No. 62135287 for CA No. 60017718622 found installed in the said premises for a sanctioned load of 6KW for non-domestic purpose was found connected with connected load of 8.445KW for hosiery work at ground floor and first floor of the premises. During the said inspection, the inspection team also found that meter in-coming phase terminal and Suit No.576/2018 Sukhbir Singh vs TPDDL Page 3 of 12 pages terminal cover were burnt; that meter box outside gland was found open; and that meter pulse was blinking on load.
3.2 The inspection team of the defendant duly documented and photographed the above mentioned irregularities and prima facie found it to be a case of dishonest abstraction of electricity. Accordingly, inspection report dated 27.12.2017 and seizure memo dated 27.12.2017 were prepared, whereby in presence of plaintiff, single phase meter No. 62135287 in meter box with paper seal No. 226392 was seized in a plastic bag bearing sticker seal No. 117/23505.
3.3 Since the seized meter was suspected to have been tampered with, the inspection team also prepared the meter testing notice dated 27.12.2017 on the site of inspection and the same was accepted by plaintiff there itself.
3.4 On the request of the defendant, an accredited third party lab namely Electronics and Quality Development Centre Lab, B-177/178, GIDC Electronics Estate, Sector 25, Gandhi Nagar tested the meter in lab on 17.01.2018 in presence of the plaintiff and recorded that the in-coming gland of meter box was found open and rubber gland was found cut; that in-coming phase terminal was found burnt and carbonized; that scratch marks and burnt marks were found on meter terminal cover; and that daily consumption was found zero on many days as per daily survey report in the attached meter data.
3.5 On the basis of inspection report and lab report, it was inferred by the defendant that the meter in-coming phase being accessible, plaintiff had illegally connected illegal wire on the in-coming phase, bypassing the meter for suppressing the actual recording of consumption. Thus, a case of electricity theft under the provisions of Section 135 of the Electricity Act read with Chapter VII of DERC Supply Code and Performance Standard Regulations 2017 stood established.
Suit No.576/2018Sukhbir Singh vs TPDDL Page 4 of 12 pages 3.6 On the basis of above material, the Assessing Officer of the defendant
passed speaking order dated 07.02.2017 and the impugned bill dated 07.02.2018 for Rs. 3,74,464.60p was raised by the AFO (Enforcement).
3.7 Therefore, suit of plaintiff is liable to be dismissed.
4. Plaintiff filed replication to deny the contents of the written statement and reaffirmed the plaint contents.
5. On the basis of above pleadings, my learned predecessor framed the following issues:
1. Whether the plaintiff is entitled to the relief of declaration of inspection report dated 27.12.2017, speaking order dated 07.12.2018 and theft bill amounting to Rs. 3,74,464/- as null and void? OPP
2. Whether the plaintiff is entitled to relief of permanent injunction, as prayed for? OPP
3. Whether the plaintiff was found indulged in theft of electricity as stated in the written statement? OPD
4. Relief.
6. In support of his case, plaintiff examined himself as his solitary witness PW1. On the other hand, defendant examined four officials as DW1 to DW4. It would be appropriate to briefly traverse through the evidence so brought on record.
6.1 Plaintiff in his chief examination affidavit as PW1 deposed on oath the above mentioned contents of his pleadings and placed on record his documentary evidence as Ex. PW1/1 to Ex. PW1/14. In his cross examination before predecessor of this court, PW1 stated that he is engaged in job work of stitching clothes under the name and style M/s Dalal Hosiery from the premises in question which consists of a ground floor and a first floor; that he used to call employees as and when required to work and did not maintain any record of payments made to employees and also did not maintain any account books as he is not assessed to income tax, though he holds a PAN number; that Suit No.576/2018 Sukhbir Singh vs TPDDL Page 5 of 12 pages the inspection on 27.12.2017 was conducted by officials of the defendant in his presence and he also signed the inspection report Ex. PW1/1 and received a copy of the same; that at the time of inspection, 11 sewing machines, one interlock machine and grinder machine were found installed in his premises; that at the time of inspection, a water pump, four sealing fans and 7 tube lights also were found installed in his premises, but no cutting machine was found installed; that he did not remember having made any representation or objection before the defendant in respect of the connected load mentioned in inspection report Ex. PW1/1 (on being called upon to point out from judicial record if any objection had been filed him, the plaintiff expressed inability on the pretext of his being uneducated and rather went on to state that he could not understand the contents of his chief affidavit); that he had no enmity with the officials of the defendant; that at the time of inspection, in-coming phase terminal and terminal phase of electricity meter were found burnt; that the electricity meter was seized vide seizure memo dated 27.12.2017 Ex. PW1/DX1 in his presence by officials of the defendant and he also signed the same; that he had also received the notice Ex. PW1/5 of meter testing in the lab; that he had visited the third party lab and witnessed the meter testing on 17.01.2018 and even signed the lab report Ex. PW1/3 but never raised any objections regarding findings of the lab; that the observation of lab is correct to the effect that daily consumption was mentioned zero on many days; that the speaking order Ex. PW1/8 correctly mentioned his consumption pattern as 24.83%. Further cross examination of PW1 was recorded before this court, in which he stated that ten photographs marked as Mark X1 to Mark X10 do not depict his premises; that the photographs Ex. PW1/DX3 and Ex. PW1/DX4 are genuine photographs taken in the lab of the defendant; that he had lodged a complaint and his meter was changed, but he did not remember the day, month or year when he lodged the complaint though his meter was changed in the year 2018. PW1 denied the suggestions extended by learned counsel for defendant.
Suit No.576/2018Sukhbir Singh vs TPDDL Page 6 of 12 pages 6.2 One Senior Manager of defendant appeared as DW1 and deposed the above
mentioned facts as regards inspection carried out by him along with other officials at the premises of plaintiff. DW1 brought on record the documentary evidence Ex. DW1/1 to Ex. DW1/6. In his cross examination, DW1 placed on record a legible certified copy of inspection report as Ex. DW1/X1 and stated that he did not prepare site plan at the time of inspection; that the Maximum Demand Indicator (MDI) was found to be 4.75KW; that since the meter in question was supplying electricity to ground floor and first floor, floorwise connected load could not be ascertained; that at the time of inspection, public had gathered but despite his request nobody agreed to join the proceedings.
6.3 One Technical Assistant of Electronics and Quality Development Centre appeared as DW2 to prove on record the lab report as Ex. DW2/1 and certificate under Section 65B Evidence Act as Ex. DW2/2. In his cross examination, DW2 stated that he had personally tested the meter in this case in the presence of the consumer and there is no requirement to call any public person at the time of meter testing; that the meter was received by him in a sealed bag from the inspecting team and he tested the same on 17.01.2018; that during the period from 27.12.2017 to 17.01.2018 the meter remained in the store where it is not possible to tamper the meter.
6.4 The Assessing Officer of the defendant appeared as DW3 to prove on record the consumption pattern as Ex. DW3/1 and speaking order as Ex. DW3/2. In his cross examination, DW3 admitted that the in-coming phase terminal can get burnt and carbonized on account of burning of the meter, but clarified that in the present case scratch marks also were found by the lab which could not be caused by burning.
6.5 One Finance Manager of the defendant appeared as DW4 and deposed having prepared the final bill Ex. PW1/9 for dishonest abstraction of electricity. In his cross examination, DW4 reiterated that the bill Ex. PW1/9 was prepared by him on the basis of inspection report, the report of the Assessing Officer and the DERC guidelines.
Suit No.576/2018Sukhbir Singh vs TPDDL Page 7 of 12 pages 7. No other evidence was adduced.
8. On behalf of plaintiff, it was argued that DW1 did not produce the duty list and admittedly did not prepare the site plan, so inspection cannot be relied upon. It was also argued that the present case is a case of burnt meter and not a case of dishonest abstraction of electricity, therefore the theft bill is liable to be quashed. It was further argued on behalf of plaintiff that statement of DW1 that the premises of plaintiff consists of ground floor, first floor and second floor is contrary to the factual position that the premises consist of only ground floor and first floor. It was also argued on behalf of plaintiff that admittedly, the meter was found burnt and daily consumption was found to be zero on daily basis, so it cannot be a case of theft of electricity. In the backdrop of aforesaid, it was argued on behalf of plaintiff that the speaking order as well as the impugned bill suffer non application of mind.
9. On the other hand, it was argued on behalf of defendant that material on record clearly proves that the plaintiff was indulged in dishonest abstraction of electricity, therefore, the suit is liable to be dismissed. It was argued on behalf of defendant that the consumption pattern of plaintiff found to be 24.83% is much lesser than the DERC prescribed limit of 75% and daily consumption was also found be zero on many dates, which factors in the light of the meter having been found burnt with scratch marks, establish that the plaintiff illegally connected illegal wires on the in-coming phase, bypassing the meter. It was further argued on behalf of defendant that at the time of inspection, connected load was found to be of 8.445KW as against the sanctioned load of 6KW. Learned counsel for defendant also referred to the cross examination of PW1 and contended that the plaintiff has admitted the entire case of the defendant in cross examination. On behalf of defendant, reliance was placed on the judgments in the cases of NDPL vs Bhasin Motors Pvt.Ltd., 1999 (2013) DLT 35 (DB) and Jagmodhan Mehatabsing Gujaral vs State of Maharashtra, 2006 (8) SCC 629.
Suit No.576/2018Sukhbir Singh vs TPDDL Page 8 of 12 pages
10. In the backdrop of above pleadings, evidence and arguments, my issuewise findings are as under :
ISSUE No. 3:
11. Onus to prove that plaintiff was found indulged in theft of electricity was on defendant.
12. As mentioned above, plaintiff does not dispute that the inspection team of defendant inspected his premises on 27.12.2017. It is also not disputed by plaintiff that he was present in the course of the said inspection. It is also not disputed by plaintiff that he signed the inspection report on the spot and was furnished a copy of the report but he never lodged any complaint before any authority alleging that the inspection report does not correctly mention the factual situation. It is also admitted case of plaintiff that a notice of meter testing in the third party lab was issued to him on the basis whereof he made himself present in the lab on 17.01.2018 and in his presence, meter was tested and meter testing report was furnished to him but he never lodged any complaint before any authority alleging that the meter testing report of the lab was incorrect. It is also an admitted case that the damaged meter was seized from premises of the plaintiff in his presence by the inspection team of the defendant and it is the same meter which was examined by the meter testing lab.
13. In the backdrop of above admitted facts, non production of duty list by the witnesses of the defendant pales into insignificance. Admittedly, there is not even a whisper in plaintiff's pleadings that signatures of PW1 Shri Sanjay Kumar, Senior Manager on the inspection report and seizure memo prepared on the spot were fabricated on some subsequent date.
Suit No.576/2018Sukhbir Singh vs TPDDL Page 9 of 12 pages
14. The only argument on behalf of defendant to repel the charge of electricity theft is that it is a case of the meter having been found burnt. Merely because a part of the meter is found burnt does not mean that it was a case of burnt meter and not theft of electricity. As mentioned above, there is unchallenged evidence on record that the inspection and lab reports delivered findings to the effect that in-coming gland of meter box was found open and rubber of the gland was found cut and in-coming phase terminal was found burnt and carbonized and scratch marks and burnt marks were found on the meter cover i.e., besides burnt marks, there were also scratch marks found on the meter; that the consumption pattern was found to be 24.83%, which is much lesser than the DERC prescribed limit of 75%; and that daily consumption was found zero on many dates. All these factors cumulatively establish that electricity was being extracted through the wires on the in-coming phase bypassing the meter in order to suppress the actual recording of consumption.
15. Most importantly, there is not even a shred of document or even pleadings of plaintiff to show as to how and when the meter got burnt, and as to whether the plaintiff lodged a complaint with the electricity department. It is the duty of the consumer under DERC Regulations to keep the meter in safe custody.
16. Section 135 of the Electricity Act contemplates that where it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
17. In the case of Bhasin Motors (supra), Division bench of the Hon'ble Delhi High Court held that tampering of the seals and/or meter by itself would be conclusive Suit No.576/2018 Sukhbir Singh vs TPDDL Page 10 of 12 pages evidence substantiating unlawful abstraction of energy in a case where no acceptable explanation is given by the consumer for the seals and/or the meter having been found tampered with. It was further held that since the meter is in the custody of the consumer, he has to explain as to how the tampering in the meter was found and consumer has also to explain the reasons for low consumption pattern. In the present case, plaintiff has not come up with any explanation as to how and when the burnt and scratch marks appeared on the meter installed in his premises. Plaintiff has also not explained as to how is it that the daily consumption was zero on many days.
18. As regards plea of the plaintiff that prior to the inspection, no notice was issued to him, the plea is being mentioned to be out rightly rejected, because issuance of notice prior to the inspection would completely frustrate the purpose of inspection by giving opportunity to the wrong doer to cover his misdeeds. In the case of Jagmodhan (supra) the Hon'ble Supreme Court also took a view that there is no provision of law stipulating advance notice before conducting the inspection.
19. To summarize: the unchallenged evidence on record clearly proves that in presence of plaintiff an inspection was carried out by the enforcement team of defendant; that report of the inspection team was supplied to the plaintiff on the spot but he never raised any objection about correctness of the same; that the meter installed in the premises of the plaintiff was seized in his presence and he was furnished a copy of the seizure memo as well as notice of the meter testing; that the meter testing was conducted by an accredited third party lab in presence of plaintiff and despite having received a copy of the lab testing report plaintiff never objected to the correctness thereof; and that the inspection and lab reports delivered findings to the effect that in-coming gland of meter box was found open and rubber of the gland was found cut and in-coming phase terminal was found burnt and carbonized, and scratch marks and burnt marks were found on the meter cover and daily consumption were found zero on many days, which cumulatively Suit No.576/2018 Sukhbir Singh vs TPDDL Page 11 of 12 pages indicate that plaintiff illegally connected illegal wires on the in-coming phase bypassing the meter in order to suppress actual recording of consumption; and that plaintiff has not come up with any explanation as regards the above irregularities.
20. In view of above discussion, issue no. 3 is decided in favour of defendant and it is accordingly held proved that plaintiff was found indulged in theft of electricity.
ISSUES No. 1 and 221. In view of findings on issue no. 3, issues no. 1 and 2 are decided against plaintiff and it is accordingly held that plaintiff is not entitled to the relief of declaration qua the inspection report dated 22.12.2017, speaking order dated 07.12.2018 and theft bill amounting to Rs. 3,74,464/- as null and void and further it is accordingly held that plaintiff is not entitled to the relief of permanent injunction as prayed.
ISSUE No. 4 (RELIEF)
22. In view of above findings, it is held that plaintiff is not entitled to any of the reliefs prayed for in the plaint. Accordingly the suit is dismissed with costs in favour of defendant.
23. Decree sheet be accordingly drawn and file be consigned to records.
Announced through videoconferencing
due to Covid19 lockdown
on this day of 06th July, 2020
(GIRISH KATHPALIA)
Digitally signed by
GIRISH GIRISH KATHPALIA
District & Sessions Judge (HQs)
Tis Hazari Courts Delhi 06.07.2020
KATHPALIA Date: 2020.07.06
17:03:55 +05'30'
Suit No.576/2018
Sukhbir Singh vs TPDDL Page 12 of 12 pages