Delhi District Court
Suit No.264/12 vs Tata Power Delhi Distribution Ltd on 7 November, 2014
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN, ADDL.
SESSIONS JUDGE, ROHINI COURTS, DELHI.
Suit No.264/12
Shri Surender Singh
Son of late Shri Sadhu Ram
R/o H.No.14, TypeI, Block M
New Police Line, Near Parade Ground
Gate No.8, Kingsway Camp
Delhi. ........ Plaintiff
Vs.
Tata Power Delhi Distribution Ltd.
Enforcement Assessment Cell
EAC Building, Sector3, Rohini
Delhi110 085
Also At:
Tata Power Delhi Distribution Ltd.
NDPL House, Hudson Lines, Kingsway Camp
Delhi110 009
Service through its Director/Commercial Manager
Delhi. ......... Defendant
SUIT FOR DECLARATION AND PERMANENT
INJUNCTION
DATE OF INSTITUTION : 09/11/2012
DATE OF HEARING ARGUMENTS : 16/10/2014
DATE OF JUDGMENT : 07/11/2014
J U D G M E N T
The plaintiff has filed this suit for declaration and permanent injunction alleging interalia that plaintiff has a electricity Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........1 connection bearing K.No.31100312913 having meter No.44015942 and the same is installed in the property of the plaintiff in his name. The plaintiff has been paying regular electricity bills to the defendant company in respect of of above mentioned electricity connection.
2. The plaintiff has been using his electricity connection for the purpose as it was sanctioned i.e. domestic purpose and he has never misused the electricity connection at any point of time.
3. The plaintiff was shocked and surprised when he received a speaking order dated 11.07.2012 from the defendant on 18.07.2012 containing baseless allegations against him as under:
(i) A load of 2.895 KW was found connected against the sanctioned load of 2 KW for domestic light purpose;
(ii) An illegal cooper made yellow colour PVC long shunt wire found connected from the common Bus Bar to MCB of said consumer to byepass the meter/or as long shunt for partial metering;
4. The plaintiff has submitted that all the electricity meters of the building are installed at one place and electricity supply is being provided to all the electricity meters of the building through only one main electricity wires. It is further submitted that the allegations of theft of electricity cannot be done in open space where the electricity meter of the plaintiff and other residents are installed. Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........2
5. The plaintiff gave reply dated 24.07.2012 to the show cause notice of the defendant and raised following objections:
(i) The alleged speaking order does not have the name and authority of the officer who has passed the speaking order.
(ii) That the plaintiff never refused to sign the alleged inspection report dated 31.05.2012 as on that date the flat of the plaintiff was closed and the plaintiff was not present at his flat and his family members were also not present on the alleged date in the flat.
(iii) The flat of the plaintiff is two room set, which is having two tube lights and there is no any exhaust fan as falsely alleged in the alleged inspection report and there are no other electrical appliances in the aforesaid property as falsely mentioned in the alleged inspection.
(iv) That the defendant falsely alleged in the speaking order that on dated 21.06.2012 the defendant issued show cause notice to the plaintiff for dated 05.07.2012 but the alleged show cause notice was never received by the plaintiff and the defendant made totally a false and concocted story with malafide intentions and ulterior motives just to harass and torture the plaintiff and just to extract money from the plaintiff Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........3 illegally and forcibly.
(v) The plaintiff never used the alleged load of 2.895 KW at any point of time and only used his electricity within sanctioned load.
(vi) That the plaintiff was not aware of the alleged inspection report and the alleged speaking order till 18.07.2012.
(vii) That it is possible that the inspection team of the defendant has put the alleged wire in the said electricity meter because the allegation of the defendant is without any public witness and without any document or proof.
(viii) That it is worth mentioning that the earlier sanctioned load of the electricity connection of the plaintiff was 1 KW and at the request of the plaintiff the same has been enhanced to 3 KW.
6. The defendant had sent a final assessment bill to the plaintiff for dishonest abstraction of energy in the sum of Rs.7,974/ including the cost of the meter of Rs.1,906/. It is submitted that the energy charges claimed by the defendant are totally false without any basis and justification.
7. The defendant did not give response to the reply filed by the plaintiff despite sending a reminder dated 03.09.2012 against the speaking order; that the defendant and its agents/employees are Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........4 illegally extending threat to disconnect the electricity supply and to lodge FIR against the plaintiff, hence the present suit has been instituted with the prayer to pass a decree of permanent injunction restraining the defendants and its agents from disconnecting the electricity supply to the premises of plaintiff. Further a decree of declaration for declaring the inspection report dated 31.05.2012; speaking order dated 21.06.2012 and final assessment bill dated 07.09.2012 as null and void.
8. The defendant has filed the written statement wherein he took various preliminary objections including that the plaintiff did not approach the court with clean hands and has suppressed the material facts; the plaintiff has indulged in dishonest abstraction of energy and the suit filed is misused of the process of the court; that the plaintiff has tampered the meter for the purpose of committing dishonest abstraction of energy.
9. That an illegal copper yellow colour PVC long shunt wire found connected from the Common Bus Bar to MCB to bypass the meter for partial metering.
10. The plaintiff failed to reply to show cause notice and to attend the personal hearing despite giving opportunity.
11. In parawise reply all the above material contents of the plaint has been controverted and denied and the contents of the inspection report has been reiterated stating that plaintiff was guilty of Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........5 dishonest abstraction of energy. The contents of the reply to the speaking order has been controverted and denied.
12. In the replication to the written statement the plaintiff has controverted and denied the allegations made in the written statement and reiterated the stand taken in the plaint.
13. Out of the pleadings of the parties following issues were framed:
ISSUES
1. Whether the plaintiff is entitled for a decree for declaration, as prayed for?OPP
2. Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for?OPP
3. Relief, if any.
14. In support of his case the plaintiff has examined himself as PW1 and PW2 Shri Mahender Singh.
15. In support of its case defendant company has examined Shri Rajeev Sharma as DW1, Shri Sumit Kumar as DW2 and Shri S.C. Ahuja as DW3.
16. I have heard Ld. counsel for the parties and carefully examined the material on record. My findings issue wise is as under:
Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........6 ISSUE NO.1
17. The onus of this issue was upon the plaintiff. PW1 in his affidavit has stated that he has retired from Delhi Police and living with his son Mahender Singh in whose name the flat has been transferred; he is consumer of electricity connection bearing K.No. 311003312913 and having electricity meter No.44015942 installed in the aforesaid flat since long back in his name and is regularly paying electricity bills to the defendant. He has further stated that the speaking order dated 11.07.2012 was received by the plaintiff on 18.07.2012 and the contents of the same were false and baseless regarding allegations of connected load being 2.895 KW against the sanctioned load of 2.00 KW and further that an illegal copper PVC long shunt wire was used as long shunt to connect electricity from common bus bar to MCB of the plaintiff. It is reiterated that all the electricity meters of the building are situated and installed at one place and electricity supply was provided to all the consumers in the building through one main electricity wire; the theft of electricity cannot be committed in the open space where electricity meters were installed. He has further challenged the speaking order stating that the same did not bear the name and authority of any officer who had passed the speaking order. It is further deposed that the plaintiff has never refused to sign the alleged inspection report dated 31.05.2012 as on the said date the flat was closed as his family was not there. It Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........7 is further stated that the flat is two rooms set having only two tube lights and there is no exhaust fan and there is no electrical appliances so as to bring the connected load to 2.88 KW at any point of time. It is further deposed that the alleged electricity bill of Rs. 7,974/ was false, exhaustive, exorbitant as plaintiff has never misused the electricity connection at any point of time.
18. PW2 Shri Mahender Singh in his affidavit Ex.PW2/A has reiterated the same contents as were made by PW1 his father/plaintiff. In his cross examination PW2 has stated that on 31.05.2012 NDPL officials had inspected the premises in question in his absence; his family members were not present at the time of inspection and the house was locked. He clarified that at the time of inspection he along with his family had gone to his native village Mahendergarh (Haryana). Regarding show cause notices it is stated by him that he has never refused to receive the show cause notices at the time of inspection because the house was locked and nobody was present there. He has denied that the show cause notice dated 21.06.2012 for personal hearing was received on 05.07.2012. He however, stated that the speaking order along with bill dated 10.07.2012 was received. He further stated that he was residing at the second floor and the meter was installed at the common place along with other meters on the ground floor. He however, admitted that the MDI of the bills Ex.PW1/6 and Ex.PW1/7 dated 11.06.2012 Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........8 and 14.08.2012 was 3.46 KW and 5.60 KW. He further deposed that the meter shown in photograph marked A1 to A6 belongs to him but the shunt wires which are shown in the photograph are not connected to his meter as his meter box was locked. He has denied the suggestion that the yellow colour shunt wire which is shown in all the photographs was connected to his meter and was being used as long shunt to bypass the meter.
19. In his cross examination PW2 has stated that he was not aware if any raid was conducted at his house on 31.05.2012. He further deposed that they were residing at second floor whereas meter was installed at ground floor in a separate room without any door which was accessible to anyone, but their meter was locked by them. Regarding the bill dated 29.06.2012 and 30.08.2012 having MDI 3.46 KW and 5.60 KW against the sanctioned load of 2 KW, he has stated that the MDI has been shown more than 2 KW wrongly because even after installation of new meter the MDI is always less than 2 KW. With regard to the photograph mark A1 shown to the witness i.e. PW2 he has stated that the photograph was not showing the shunt wire. He has further stated that the photograph was showing the MCB installed in his house and there was no shunt wire used by them.
20. DW1 Shri Rajeev Sharma in his affidavit Ex.DW1/A has reiterated the facts as alleged in the written statement. He deposed Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........9 that during the inspection the joint team observed that an illegal copper yellow colour PVC long shunt wire was found connected from common bus bar to MCB to bypass the meter for partial metering. A load of 02.895 was found connected against the sanctioned load of 2 KW for domestic purpose. Paper seal O. 151072 and 151073 dated 31.05.2012 signed by team pasted on meter box to maintain the status quo. The action report was also prepared at site on the basis of factual position and proved the copy of the same as Ex.DW1/2. Necessary photographs were also taken by Shri Pankaj of PCIPL to show the exact position.
21. In his cross examination by counsel for plaintiff it is stated that the inspected meter was installed in a common place at ground floor where other meters were also installed. He further deposed that he did not remember at what floor the plaintiff was residing. He further stated that they had inspected the meter premises at noon time on 31st day of 2012 as he did not remember the month. He further stated that he did not remember if plaintiff was called at the time of inspection. Further, he stated that he did not remember plaintiff was present on the spot or not; he could not identify the plaintiff or his family members present in the court; he did not remember whether he or his team visited the house of the plaintiff or not. He further stated that he did not took the Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........10 photographs of the load as the connected load was petty and no heavy load appliances like AC, Geyser were fitted. He further stated that he did not remember whether his supervisor inspected the site or he himself along with team visited the site to assess the load; when they visited the site the meter with meter box was locked. He further stated that the plaintiff at the time of inspection was tried to be served with the show cause notice but he refused to accept and sign the same. Accordingly it was sent through post to the plaintiff. But he cannot state the date of the show cause notice as it was done by other department; he did not remember by which mode the show cause notice was sent to the plaintiff.
22. DW2 Shri Sumit Kumar is the Assessing Officer of the defendant company who had passed the speaking order in this case. He had stated that a show cause notice was issued to the plaintiff for personal hearing on 08.06.2012 but he did not appear for personal hearing. He has proved the speaking order as Ex.DW2/4. He also stated that copy of the same was sent to the plaintiff through courier and proved the scan copy of the receipt of courier as Ex.DW2/5. The said scan copy was objected to by counsel for the plaintiff on the ground that nothing was mentioned in the written statement and copy was never supplied to him.
23. In his cross examination he had stated that show cause notice dated 21.06.2012 was sent to the plaintiff for personal hearing on Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........11 05.07.2012 through courier but the receipt of the courier was not available as the service report is sent to them by the courier agency through E.mail. The photocopy of the same is attached with his affidavit and the original of the same is with the courier company which was admittedly not brought by him and further stated that he cannot produce the same in future. He further admitted that the date 04.07.2012 mentioned on the receipt of courier is not clearly legible and the same cannot be confirmed from the courier company. He further admitted that the consignee number mentioned on the receipt is not legible which could be confirmed from the corporate office. He further admitted that in the courier receipt the address is mentioned as Model Town whereas plaintiff is residing at Kingsway Camp.
24. DW3 Shri S.C. Ahuja, is authorized reprentative and power attorney holdr of the defendant company. He has signed the written statement on behalf of the company.
25. In his cross examination he has stated that the receipt of courier was drawn from internet and contents on it was not legible and the original of the same was not produced. He further admitted that the name of the person who had received the show cause notice, date and time of service is not mentioned. He has admitted that a bill dated 30.05.2014 Ex.DW3/P1 having been issued by the defendant.
Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........12
26. It has been argued on behalf of counsel for the plaintiff that the cross examination of DW1 to DW3 clearly shows that no proof of service of show cause notice has been filed by the defendant. It is further argued that it is admitted by the witnesses that the address on the courier receipt (photocopy) is mentioned as Model Town whereas inspection was allegedly carried out at Kingswap Camp. It is, therefore, vehemently argued that no show cause notice has been served upon the plaintiff and the speaking order passed in the absence of show cause notice served upon the plaintiff is illegal and is liable to be declared as null and void. It is further argued that the deposition of DW1 clearly shows that no inspection was carried out as he had stated that he was not aware whether inspection was done at the place visited, by him or by his supervisor. Even in his cross examination he had contradiction and stated that he was not aware whether plaintiff or family members were called or present in the house whereas in the subsequent cross examination he had stated that show cause notice was served upon the plaintiff who refused to take the same and thereafter it was sent through courier. It is further argued that it is admitted by DW1 that no photograph of the connected load was taken which shows that no inspection was carried out in the premises as it was lying locked and a false case has been made by the defendant company to extort money. It is vehemently argued that in the light of the above deposition and Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........13 contradiction in the deposition by the defendant witnesses and consistency of the plaintiff and unassailed testimony of PW1 and PW2, the inspection report, speaking order and the bill in question is liable to be declared null and void.
27. It was also argued in the written arguments of plaintiff that the speaking order dated 11.07.2012 as per the deposition of DW2 show cause notice was pasted on 04.07.2012 for the purpose of personal hearing on 05.07.2012 which shows malafide and illegal intention of the defendant not to give proper time for personal hearing.
28. As per Section 126 of the Electricity Act, 2003 the Assessment Officer was required to serve a provisional assessment order on the consumer if he reach to the conclusion that such person was indulged in unauthorised use of electricity. Admittedly in this case no provisional assessment order has been served upon the consumer/plaintiff and only a final assessment order as contemplated by Section 126(3) has been sent to him which is mentioned as speaking order Ex.DW2/4 and it was despatched on 11.07.2012. No reason has been assigned by either of the witnesses or during arguments by counsel for defendant company as to whythe procedure provided under Section 126 (1) & (2) of The Electricity Act, 2003 has not been followed by the assessment officer before passing the final assessment order/speaking order. The authorised Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........14 representative of the defendant company informed me that they have stopped to pass a provisional assessment order since 2006 in order to avoid dispute between a provisional bill and final assessment bill. Ld. counsel for defendant company has failed to apprise me any such rules or orders for not following the mandate of Section 126(1) & 2 of the Electricity Act 2003, before passing a final assessment order under Section 126(3) of the Electricity Act.
29. I have also examined the photographs on record. The case of the defendant company is that the plaintiff has used a yellow colour illegal wire from the bus bar till the MCB for bypassing the meter or for partial metering. In case a meter has been bypassed the MCB of the consumer/plaintiff would be in down position. The photograph mark X1 was of the MCB but the MCB is not seen in it as a paper has been put before it by the inspecting team for the reasons best known to them. In the photograph placed on record the meter box is shown to be locked and it is not clear whether yellow colour wire was being used from main bus bar of the defendant till the MCB of the plaintiff for bypassing the meter or to consume electricity by partial metering or through meter.
30. The inspected team has recommended to the Manager (EAC) to process the DAE case as per rules.
31. DAE i.e. the dishonest abstraction of energy is defined into Electricity Act, 2003. However, the same is defined in Section 2 Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........15 Sub Section m of (The Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulations, 2002). The same is as under:
"Dishonest abstraction of energy (DAE)" shall mean abstraction of electrical energy where accessibility to the internal mechanism of the metering equipment and some collateral evidence is found to support the conclusion that the meter has been caused to record less energy than actually passing through it. It shall also include any other means adopted by consumer to cause the meter to stop or run slow (such as reversing the polarity of one phase of poly phase meters, changes in CT or PT, etc.)
32. The evidence on record does not bring the case of dishonest abstraction of energy within the four corners of sub section m of Section 2 of Regulations 2002 because admittedly there was no tampering of the meter or accessibility to the interinal mechanism of the metering by any artificial means. It is admitted by the witness that the meter was not sent for any test in the laboratory as it was not required in this case. The inspecting team itself is not sure whether there was bypassing of meter or not because the witnesses have stated that the yellow colour PVC wire were used by the plaintiff for bypassing the meter or for partial metering. Similarly in the final assessment order i.e. speaking order the findings shows that an illegal copper made yellow colour PVC long shunt wire found Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........16 connected from common bus bar to MCB of said consumer to by pass the meter/or as long shunt for partial metering.
33. In the inspection report it finds mentioned that consumer/plaintiff has refused to sign the inspection report and not allowed to paste the same on the wall. Those words seems to have been added later on as the same were in different ink and none of the witness has stated in that regard in their deposition. Admittedly there is no evidence on record to show that the show cause notice before proceeding for assessment of the consumer/plaintiff for dishonest abstraction of energy under Section 26 of the Electricity Act has been served upon the consumer/plaintiff so as to afford an opportunity of personal hearing before passing the final assessment order/speaking order. The deposition of defence witnesses as discussed above is not consistent and reliable as DW1 Shri Rajeev Sharma who is one of the raiding team member has failed to state that the plaintiff was present in the house at the time of inspection. His testimony suffers from various contradictions as discussed above and also pointed out in the written arguments by Ld. counsel for the plaintiff.
34. The other witnesses are DW2 Shri Sumit Kumar who is assessing officer and DW3 Shri S.C. Ahuja, is the authorised reprentative of the defendant company who are not raiding team members. The testimony of DW1 Shri Rajeev Sharma, is, therefore, Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........17 not found consistent and reliable to conclude that inspection was carried out in the premises of the plaiontiff on 31.05.2012 by the inspecting team. The deposition of the plaintiff and his son PW2 Shri Mahender Singh is consistent and reliable and remained unchallenged in cross examination wherein they have stated that they were not in the house on the alleged date as they had gone to their native village at Mahendergarh (Haryana). Their deposition finds credence from the fact that DW1 Shri Rajeev Sharma has stated that they had not taken the photographs of the connected load. In case the house was opened and plaintiff was present the photograph of the connected load must have been taken by the photographer whose name is mentioned in the inspection report. From the above discussion it becomes crystal clear that the plaintiff has succeeded in proving by preponderance of probability that his premises was not inspected by the members of the raiding team of the defendant company on the date of inspection. Further that he has not used any yellow colour PVC wire from bus bar to MCB for by passing the meter or partially metering. The plaintiff has further succeeded in proving that the show cause notice was not served upon him before passing the final assessment order/speaking order and he has not been afforded an effective opportunity to file the objections. Thus, in view of above discussions, the final assessment order/speaking order dated 11.07.2012 is liable to be delcared null Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........18 and void. In view of the nature of evidence discussed above, the inspection at the premises in question by the inspecting team has not been established. Therefore, the inspection report daed 31.05.2012 Ex.DW1/1 is liable to be declared as null and void. Similarly the speaking order dated 11.07.2012 which has been passed on the basis of an unproved inspection report and in violation of Section 126 of the Electricity Act and further without following the principle of audialterm partem i.e. without giving effective hearing to the plaintiff is also liable to be declared null and void. Thus, issue No.1 is decided in favour of the plaintiff and against the defendant. ISSUE NO.2
35. 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 is the registered consumer of the electricity in the premises bearing No. H.No.14, Type1, Block M, New Police Line, Near Parade Ground Gate No.8, Kingsway Camp, Delhi110 009 where a meter has been installed by the defendant and further that he is regularly making the payment of the electrcitiy bill from time to time raised by the defendant. The plaintiff has further succeeded in Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........19 proving that the inspection dated 31.05.2012 was illegal and subsequent proceedings i.e. final assessment order i.e. speaking order dated is also found to be issued illegally to the plaintiff. It is also established while deciding issue No.1 that plaintiff is not bound to pay the bill dated 10.07.2012 for a sum of Rs.7.9074/, the plaintiff is, therefore, entitled to continuous electrcitiy supply installed by the defendant. He is, therefore, entitled to the discretionary relief of pemanent injunction restraining the defendant, its employee, agents from disconnecting the electricity supply through K.No.31100312913 at the premises of the plaintiff i.e. H.No.14, Type1, Block M, New Police Line, Near Parade Ground Gate No.8, Kingsway Camp, Delhi110 009 for not making the payment of the bill dated 10.07.2012 which has been declared to be illegal and null and void. The issue No.2 is decided in favour of the plaintiff and against the defendant.
Relief.
36. In view my findings on issues No.1 and 2, 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 defenant declaring the inspection dated 31.05.2012, final assessment bill dated 10.07.2012 as illegal and null and void. Further a decree of permanent injunction is passed in favour of the plaintiff and against the Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........20 defendant restraining the defendant its employee, agents or any other person representing it are restrained from disconnecting the electricity supply through K.No.31100312913 at the premises of the plaintiff i.e. H.No.14, Type1, Block M, New Police Line, Near Parade Ground Gate No.8, Kingsway Camp, Delhi110 009 for not making the payment of the bill which is based on the illegal inspection dated 31.05.2012.
In view of above terms, the suit of the plaintiff is decreed with costs. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY ON 07.11.2014.
(RAJ KUMAR CHAUHAN) ASJ (ELECTRICITY) (NORTH WEST DISTRICT) ROHINI COURT:DELHI Suit No.264/12 (Surender Singh Vs TPDDL ) Page no........21