Delhi District Court
Sh Krishan Kumar vs North Delhi Power Ltd. on 16 September, 2009
Civil Suit No.263/06/99
Sh Krishan Kumar Vs North Delhi Power Ltd.
IN THE COURT OF SH MUKESH KUMAR GUPTA SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI
Civil Suit No.263/06/99
(Old case : More than 10 years old)
Sh Krishan Kumar,
S/o Sh. Bhagwat Swaroop,
Village Kadipur, Khushak No.1,
Narela, Delhi
Through Sh. Roshan Lal ( Attorney), ........ Plaintiff
Vs
North Delhi Power Ltd.,
Successorininterest of the DVB,
Through its C.E.O.
Hudson Line, Kingsway Camp,
Delhi - 110009 ........ Defendant
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
Date of institution of suit : 16.01.1999
Date of assignment to this court : 17.01.2009
Date of hearing final argument : 31.08.2009
Date of Judgement : 16.09.2009
JUDGEMENT
1 By way of present judgement I shall conscientiously adjudicate upon the plaintiff suit for Declaration and permanent injunction against the defendant seeking a decree of declaration thereby declaring the 1 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
Joint inspection report alongwith Load Report vide Enf. P. No. 012010 & MTD Report vide P.No. 307/45928, all dated 03.06.1998 and consequent aforesaid assessment bill of Rs.2,62,303.58 ps and/or any other demand raised on the basis of said reports dated 03.06.1998 to be illegal, non enforceable/recoverable, null and void. The plaintiff has also prayed for a decree of permanent injunction thereby restraining the defendant, its officers from disconnecting the electricity supply of the plaintiff in respect of K.No.5111027805AP installed at Village Kadipur Khushak No.1, Narela, Delhi either on account of nonpayment of aforesaid assessment bill of Rs.2,62,303.58ps and /or any other demand alongwith the LPSC charges thereon, if any, raised, on the basis of and/or pursuant to the said report dated 03.06.1998.
2. Briefly stating the plaintiff is stated to have appointed Shri Roshan Lal as his attorney to file, verify & represent the present case. It is further the case of the plaintiff that he has obtained the electricity connection through K.No.5111027805AP installed at village Kadpur, Kushak No.1, Narela Delhi for the agriculture purpose and is also using the electricity connection purely for agriculture purpose only and there is no 2 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
misuse of the connection. It is further alleged that plaintiff is receiving the bills on agriculture tariff and he is making payment of the bill regularly and there is no outstanding bill pending against the plaintiff except the present disputed bill. It is the case of the plaintiff that on 12.01.1999, the plaintiff has received a bill amounting to Rs.2,62,303.58ps before the due date and Rs,.3,93,455.37ps after the due date. It is further the case of the plaintiff that since the bill was received on the due date itself but as per provision of law at least 15 days time should have been given for the payment of the bill and the same was not given in the present case, hence the bill is illegal and in the bill, it was alleged that an inspection was alleged to be carried out by the officers of defendant on 03.06.1998 but no such inspection was either carried out in the presence of the plaintiff or his authorized representative. It is further alleged that in the bill that the connected load was arbitrarily mentioned as 28.10 KW as against the sanctioned load of the plaintiff is 5 H.P. only and the connection was misused for other purpose then the agriculture the load of the plaintiff was never verified. It is further alleged that defendant has never been supplied with the copy of the alleged inspection report and no show cause notice or an opportunity of personal hearing was given to him which is against the 3 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
Principle of Natural Justice . It is further alleged in the plaint that consumption pattern was not considered by the defendant before raising the bill and no pilot meter was installed in order to counter check the actual consumption. It is further alleged in the plaint by the plaintiff that the cause of action arose in favour of plaintiff and against the defendant on 12.01.1999 when the present disputed bill was received and again when the inspection was alleged to be carried out and the cause of action is still subsisting . The plaintiff has therefore prayed for a decree of declaration and permanent injunction against the defendant .
3. Written statement to the suit of plaintiff was filed by the defendant in which the defendant has denied each and every allegation of plaintiff and has raised preliminary objections by contending that the connection is being misused by M/s Sona Metal Works for industrial purposes and not for agriculture purpose for which it was sanctioned as was found during the joint inspection carried out by officials of defendant on 03.06.1998. It is admitted in the written statement by the defendant that the bills mentioned in this para was given to the plaintiff for payment based upon inspection report dated 03.06.1998 which he is liable to pay. It is 4 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
contended by the defendant that an inspection by a joint expert team comprising of the staff of enforcement, MTD and Zone was carried out on 03.06.1998 at the premises of the plaintiff which was electrified for agriculture purpose against K. No.1027805 and keeping in view the factual position at site, load and meter testing reports were prepared vide enforcement proforma no. 012010 dated 03.06.1998 and the electricity connection was found being misused by M/s Sona Metal Works engaged in manufacturing and charging of battery plates. It is contended that meter half seals did not tally with the sample monogram of the defendant, hence were found fictitious. Inspection report was prepared in presence of the representative of the plaintiff who refused to put his signatures on the same. It is further contended that a show cause notice vide D. No. 62 dated 11.06.1998 was served upon the plaintiff and opportunity of personal hearing was granted to the plaintiff on 24.06.1998 and another show cause notice No. AE (Enf.)I/498 dated 07.09.1998 was also issued. Neither any reply to the aforesaid notice was stated to have been received nor anyone is stated to have come up for hearing on the date fixed. Hence the defendant has followed due process before raising the impugned bill. It is further contended by the defendant that consumption pattern of the 5 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
plaintiff was studied and recorded consumption was found very lower than the assessed consumption on connected load as recorded consumption was 299 units per month whereas consumption computed on connected load basis worked out to 4214 units per month. It is further contended that besides irregularities of misuse/subletting, LPF and theft of energy was noticed. Hence the bill was raised in view of these irregularities. It is prayed that the suit of the plaintiff be dismissed with costs. 4 Replication to the written statement of the defendant was filed by the plaintiff in which contention raised by defendant in the WS were specifically denied and contents of the plaint were reiterated as correct. The plaintiff has further prayed for decreeing the suit as prayed besides asking for a refund of amount deposited pursuant to orders of the court .
5. Vide order dated 08.08.01 as passed by ld predecessor of this court, the following issues were framed for adjudication : (1) Whether plaintiff is entitled to the decree for permanent injunction as prayed ? OPP.
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(2) Relief .
6. It is pertinent to point out that the suit as originally filed before the court on 18.1.1999 was a suit simplicitor for permanent injunction . However in view of judgement reported in 110 (2004)DLT 633 titled Sarjiwan Singh Vs Delhi Vidyut Board wherein which our Hon'ble High Court has held that where the sundry bill raised by the defendant is challenged by the plaintiff he is required to seek a decree of declaration in respect of the impugned bill. The Hon'ble court has further held that the plaintiff in such case is also required to pay an ad valorum court fee under the provision of Section 7 (iv) (c) of Court Fee Act. Accordingly the plaintiff in the instant case moved an application u/o 6 rule 17 CPC for amendment of the plaint on 12.3.2009 which was duly considered and allowed by this court vide order dated 12.03.09 itself and the plaintiff suit after amendment has become a suit for declaration and permanent injunction. Defendant on its part however did not filed any written statement to the amended plaint .
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7. Vide order dated 21.04.2009 of this court following additional issue was framed for adjudication : Additional Issue 1A Whether plaintiff is entitled to the decree of declaration as prayed for ?OPP.
8. Plaintiff in support of its case got examined three witnesses including himself as PW1. The plaintiff in his deposition reiterated the contents of plaint on oath and has deposed that he being the owner in possession of agricultural land in village Kadipur, has obtained the relevant Khasra Girdawaris for the year 199798 to 2000 2001 from the revenue department which got exhibited on record as Ex PW1/1 to PW1/4. As per the case of the plaintiff he has obtained the electricity connection for agricultural purposes through K No.5111027805 which he is stated to have been using strictly for agricultural purposes only. The plaintiff has further deposed that he has been regularly paying the bills as per actual consumption from time to time and the last paid bill got exhibited on record as Ex PW 1/5. The witness has further deposed that he suddenly received a theft bill to the tune of Rs.2,62,303.58 paise mark A 8 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
whereby which he was called upon to pay theft bill by 12.01.99 and on inquiry he was informed that the said bill mark A has been raised on the basis of inspection being carried out at his premises on 03.06.98 . Plaintiff has further deposed that no such inspection was ever carried out at his premises on or before 03.06.98 and he was never informed nor associated with the aforesaid inspection process. He has further stated that a wrong and false connected load of 28.10 KW has been shown against the sanctioned load of 5 HP. He has further stated that he was even allegedly found to be misusing the electricity connection for industrial purposes which is also false. He is stated to have approached the officials of DVB but of no avail. PW1 has further stated to have filed the instant suit through his attorney Sh Roshan lal by virtue of Special Power of Attorney dated 15.01.99 copy of which got exhibited on record as mark B. Plaintiff has further stated that in terms of order of ld Predecessor of this court a show cause notice was directed to be given but no proper show cause notice was given to him and even the defendant have lodged an FIR against him on 12.03.99. As per deposition of the witness the defendant DVB at that time also issued a show cause notice dated 26.7.99 Ex PW1/6 which was replied vide reply dated 04.08.99 Ex PW1/7. The witness has further 9 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
stated that reply was neglected and the demand made by the bill mark A was confirmed in the order dated 07.10.99 which is Ex PW 1/8. Plaintiff has further stated that in order to secure himself he also made an application for reinspection of the premises vide reply Ex PW1/9 but no inspection was ever carried out by DVB till date. He stated to have also given reminder Ex PW1/10 but of no avail. The witness further got exhibited the photographs mark D to F and has also stated that he has deposited a sum of Rs.1,96,727/ vide bill dated 18.05.99 towards the demand in terms of order of hon'ble court. Witness was cross examined at length by ld counsel for defendant who has raised various questions including the fact that the suit connection was found misused by M/s Sona Metal Works for manufacturing of battery plate at site to which witness replied that no such firm exist at all. The witness has further deposed that he has been doing an agricultural activities only on the suit land which has never been misused . He further stated that he never been associated or present at the time of alleged inspection on 03.06.98.
Plaintiff further got examined one Sh Krishan Kumar s/o Attar Singh who was stated to be his neighbour and who has deposed on similar lines as that of plaintiff and stated that the plaintiff has been using 10 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
the suit land only for the purpose of agriculture and no business activities was ever done or found engaged in on the aforesaid suit land on the datge of alleged inspection . Witness has further stated that he has never seen officials of DVB inspecting the said meter on the plaintiff land at any point of time. The witness was also cross examined at length by the ld counsel Sh Trishal for defendant who has tried to put a dent in the testimony of witness thereby asking about his presence on 03.06.98 at the suit land , as also raising questions regarding the witness being an interested witness.
Plaintiff finally got examined his attorney Sh Roshan Lal Dibang stated to be his real brother and coowner of agricultural land in question who has also deposed on similar lines as that of plaintiff and has stated that the connection supplied by DVB has been strictly used for agricultural purpose and has never been used for any industrial purposes or for manufacturing of battery plate as stated . He has reiterated that no firm in the name of M/s Sona Metal Works was ever operated from the suit land at any point of time. He further got exhibited the plaint with his signature at point A and Special Power of Attorney dated 15.01.99 as mark B . Witness was cross examined at length by ld counsel for defendant who has raised various questions regarding not only his capacity to deposed 11 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
before the court but also on Special Power of Attorney stated to be executed by the plaintiff in his favour . Witness has been specifically asked regarding Sh Ganesh Mishra attending personal hearing before the defendant.
Vide statement dated 05.04.02 evidence of the plaintiff was closed in affirmative by ld counsel .
9. Defendant in support of its case got examined only one witness namely Sh S S Antil who was stated to be posted as an inspector in Enforcement 1 at Shankar Road and was stated to be member of joint inspecting team which carried out an inspection in the suit premises of the plaintiff on 03.06.98 . Witness has stated that the inspection was carried out by the joint inspection team consisting of officials from Enforcement, MTD and Zonal Staff. Witness has stated that at the time of inspection suit connection was fount having meter No.4D9112235 which was used by one M/s Sona Metal works for manufacturing and charging of battery plate and connected load was found to be 28.095 KW. The witness has further stated that the entire inspection process was carried out in the presence of representative of plaintiff one Sh Chander Parkash who has refused to sign 12 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
or accept the report. The inspection report was stated to be prepared at site , the load report vide serial No.012010 dated 03.06.98 got exhibited on record as Ex DW1/1. The meter seals were stated to be found fictitious and the terminal cover were also found to be missing. The MTD report vide performa No.307/45928 was also stated to have been prepared by Sh Rajinder Yadav, Inspector MTD North West which got exhibited on record as ex DW1/2. The witness has further stated that as per record as show cause notice dated 26.7.99 was given by Sh G S Kale Assistant Engineer (Enforcement) to the plaintiff granting an opportunity of personal hearing on 04.08.99 , same got exhibited on record as Ex. DW1/3 and 4 . The witness has stated that the plaintiff has misused the connection and the case was processed by Sh G S Kale according to the report. Witness was cross examined at length by the ld counsel for plaintiff for quite sometime so as to put substantial dent in his testimony and nearly all the aspects of the inspection have been put to the witness including the MTD report, load report and even the factum of the representative of plaintiff being found on the spot. The witness has also been cross examined minutely on all the aspects regarding not only tampering seal, misuser , excess load but also of half seal and terminal cover .
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10. Vide statement dated 18.05.05 of the ld counsel Sh Gupta for the defendant the defendant evidence was closed .
11. It may be seen that at the time suit was filed in the year 1999 Delhi Vidyut Board (DVB) was in existence and was accordingly made defendant by the plaintiff. However the same was later on unbundled in the year 2003 and whereafter which the work of production, transmission and distribution was separated and segregated and was allocated to different corporation/agencies, e.g. North Delhi Power Limited (NDPL) being the distribution company in the instant case. Plaintiff has moved an application dated 02.03.09 u/o 1 rule 10 CPC which was treated as an application u/o 22 rule 10 CPC and the defendant DVB was allowed to be substituted by the successor in interest namely NDPL .
12. I have heard the ld counsel for the parties and perused the entire record including the pleadings, documents and oral testimony of witnesses on record. I have given a thoughtful consideration to the aforesaid as also written submissions filed on record. The issue wise determination is as follows :
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Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
Additional issue : 1 A framed by the court on 21.04.09 The onus of proving this issue was on the plaintiff and since this issue involved an appreciation of entire fact and circumstances in respect of alleged inspection dated 03.06.98 and the impugned demand for Rs.2,62,303.58 paise which the plaintiff has questioned as being illegal , arbitrary null & void and nonenforceable/recoverable payable. Therefore the plaintiff has primarily questioned the alleged inspection report dated 03.06.98 and subsequent Fraudulent Abstraction of Energy (FAE ) bill with due date 12.01.99 for sum of Rs.2,62,303.58 paise mark X on various grounds both substantive as well the procedural . The plaintiff has stated that no inspection was ever carried out in his premises on 03.06.1998 in his presence or in presence of his representative . The plaintiff without prejudice to the aforesaid has further stated that the alleged inspection was neither carried out in accordance with law nor he was given any opportunity by way of show cause notice and opportunity of personal hearing to rebut the allegations, nor any speaking order has been passed by the defendant before raising the impugned bill. The plaintiff on the substantive aspects has stated that the plaintiff was never misusing the connection against K. No. 5111027805 which was granted for agricultural 15 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
purposes, for any other purposes other than agricultural purposes. Plaintiff has further vehemently reiterated that the connection was never misused for any industrial purposes as alleged or being used for production and manufacturing of battery plate by M/s Sona Metal Works as stated. Plaintiff has further questioned the connected load of 28.10 KW being shown in the impugned inspection report against a sanctioned load of 5 HP. The plaintiff has further questioned the allegation regarding shunt capacitor being found missing or half seals of the meter being found fictitious. The case of the plaintiff is that the entire inspection report resulting into the alleged theft bill for the sum of Rs.2,62,303.58 paise has been prepared by the defendant arbitrarily and without actual verification of connected load on site and in a way questioned entire process of inspection alleged to have been carried out on his premises on 03.06.908 thereby questioning the alleged inspection report including the load report and MTD report. Besides the plaintiff has also stated that he was never afforded any opportunity to refute the alleged inspection before raising the impugned bill which has raised without following the Principle of Natural Justice . The plaintiff has further raised the question regarding Fraudulent Abstraction of Energy (FAE) bill being raised against him on the grounds 16 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
that he was never handed over any show cause notice prior to receiving of the bill or given any personal hearing before receiving of such bill which is against the very Principle of Natural Justice namely Audi alteram partem . He has further stated that he was never given any opportunity to rebut the allegations and further during course of argument stated that nor he was handed over any final bill after passing of a speaking order . A catena of judgements has been relied upon by the plaintiff in this regard who has even stated that for the purpose of making out a case of Fraudulent Abstraction of Energy (FAE) showing of an artificial mean which obstructs recording of actual consumption in the meter is a must. The plaintiff has relied upon number of judgement which shall be discussed in forth coming paras including a recent judgement of Col. R K Nayyar V/s BSES Rajdhani Power Ltd reported in 140 (2007) DLT 257 where the criteria for booking cases for Dishonest Abstraction of Energy ( now called FAE) has also been laid down. The plaintiff has heavily relied upon the aforesaid judgement stating that tempering of seal to constitute a case of dishonest abstraction of energy is required to be based study of consumption pattern of the plaintiff for a stipulated period. 17
Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
12. Ld counsel for the defendant on the other hand however has relied vehemently upon the pronouncement of law laid down in 1996 (4) SCC 522 titled M P State Electricity Board Jabalpur Vs. Harsh Wood Products & Another and has stated that no show cause notice is required in case of theft or pilferage of energy and has without prejudice to the aforesaid stated that a show cause notice dated 26.07.1999 was given to the plaintiff in this case . The court shall consider all the aforesaid aspects carefully in the light of statutory provisions as also pronouncement of law laid down by the superior courts on this aspect from time to time.
13. It may be seen that the present case pertains to year 1999 which is governed by the Indian Electricity Act 1910 though after amendment the new Electricity Act 2003 has come in vogue alongwith the various rules and regulations and even the erstwhile Delhi Vidyut Board has been unbundled and is being replaced by interalia amongst others the distribution companies such as NDPL , BSES Rajdhani Power Ltd and BSES Yamuna Power Limited within the territory of Delhi . So the case in hand is primarily governed by the existing provision of law and perusal of entire Indian Electricity Act 1910 shows that fraudulent abstraction energy (FAE) 18 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
as is the case in hand has not been defined any where in the Act and the Act only mentions the provision of electricity pilferage and fraudulent abstraction of energy or electricity theft is to be covered within the purview of section 39 which deals with the theft of energy . Same is reproduced herein for the sake of reference .
39 . Theft of Energy : Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extent to three years, or with fine which shall not be less than one thousand rupees, or with both: and if it is proved that any artificial means or means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer . Careful perusal of aforesaid section shows that the word use in the section is 'dishonest abstraction' however reading of the same shows that such dishonest abstraction has to be shown by any means not authorized by the licensee (or the electricity company) for the purpose of such abstraction of such energy by the consumer. The court during the course of arguments has raised a querry regarding the procedure being followed by the erstwhile DVB in cases of fraudulent abstraction of energy . However it has been brought to the notice of the court that prior 19 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
to unbundling of DVB in 2003 there was neither any legal provision specifying as to what constitute a case of fraudulent abstraction of energy (FAE) nor any such procedure existed except the tariff guidelines from year to year which was used to calculate a theft bill on the basis of LDHF formula which has been described in clause 11 of the tariff for the year 199798( as is applicable to instant case) which lays down calculation for purpose of theft bills. While clause 11.1 deals with direct theft , clause 11.2 deals with pilferage of energy/ tampering of meter/seal and the energy consumption assessment formula and procedure for calculating the same is laid down in clause 11.1 and 2 in which 'L' stands for connected load in KW , 'D' stands for number of working days time month which is different for different categories. 'H' stands for supply for hours per day which is also prescribed for different categories of user for example in case of industrial units , same is taken to be 10 hours per day , 'F' stands for load factor which is taken different for different category which in the instant case can be 60%, though question of these tariff rules being formed a part of law or not is another issue which the court is otherwise not seized of in the instant civil original jurisdiction . Admittedly in the absence of any specific definition or procedure being laid down for 20 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
defining as to what constitutes a Fraudulent Abstraction of Energy (FAE) the court will have to resort to various pronouncements of law laid down by the superior courts, more particularly when the same has otherwise taken a concrete shape in a catena of judgements given by the superior courts but the basic underlying principle or the grundnorm remains the same which is Principle of Natural Justice which form the basis of evolved statutory law.
It has been held in 1994 (54) DLT 156 titled Rakesh Rubber Industry Vs MCD that Dishonest Abstraction of Energy requires following of principle justice which involves giving show cause notice to consumer of provisional theft bill followed by personal hearing. Similar voice was echoed in pronouncement of law laid down by Delhi High Court in Sukhbir Singh Vs MCD 55 (1994) DLT 701 where the Hon'ble court has held :
We are of the view that before disconnection notice be issued , a detailed show cause notice ought to have been issued to the petitioner as to the manner in which demand has been arrived at. It is not proper for the respondent to have straightway issued a demand notice on the basis of inspection report .
The aforesaid principle of law has been variedly explained 21 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
in catena of judgements from time to time and more particularly as held in 136 (2007) DLT 500 Udham Singh Vs BSES Rajdhani Power Ltd where the court has held that in every case of theft cannot constitute a case of dishonest abstraction of energy which requires some collateral material or a conclusive proof about DAE . The hon'ble court has further held in a similar matter like case that mere existence of an irregular or fictitious seal could not be justified to make out a case of DAE. The inference led to study of the consumption pattern which is required to be done before the DAE/FAE can be booked by the defendant .
In another similar case reported in 140 (2007) DLT 563 titled as J K Steelomelt Pvt Ltd Vs BSES Rajdhani Power Ltd , Hon'ble High court has gone to the extent of saying that even existence of a artificial means for abstracting energy does not ipso facto make a case of FAE unless it is shown on record that a tampering has been done and further meter has been converted into a instrument for recording less than the units actually passing through it and in such case accucheck meter affords an easy method of proving that the consumer's meter is recording less unit then the actual units consumed .
The issue was further explained in another judgement of 22 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
Hon'ble High Court of Delhi reported in 142 (2007) DLT 116 where it has been held that the existence of LDHF formula in the tariff only provides the method of calculating or determining the quantum of penalty which cannot be termed as definition for the purpose of FAE. Further more in another important judgement as reported in 140 (2007) DLT 257 where the Hon'ble High Court has gone to the extent that mere tampering of seal is itself not sufficient to make out the case of Dishonest Abstraction of Energy and there has to be direct and conclusive evidence to establish complicity of consumer in tampering the meter before raising the demand which is punitive in nature. Finally it is not out of place to mention that hon'ble court has repeatedly held that show cause notice should be given to the consumer alongwith an opportunity of personal hearing before booking a case of DAE . ( Reliance placed on AIR 19992 Delhi 228 titled Suldeep Singh Dingra Vs MCD and Bimla Gupta Vs NDPL reported in 134 (2006) DLT 174.
The judgement on the various aspect of FAE (or DAE as it is called today after amendment of Electricity Act 2003) and the subsequent regulation are numerous , however the basic principle can be culled out as : 23 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
1. Every theft of energy cannot constitute a case of either direct theft or a FAE and electricity authority is required to proceed further to establish the same by following various steps.
2. Mere existence of a fictitious seal or tampering of seal does not constitute a case of theft or FAE.
3. The electricity authority is required to assess and compare the fictitious seal or tampering of seal with the standard monogram and may in appropriate case is also required to send it to a certified laboratory for verification.
4. The tampering of meter has to be substantiated by some cogent evidence so as to show on record that the meter of the consumer is recording less than actual consumption and in such case electricity authority is required to use the test meter or an accucheck meter so as to compare the units recorded with the consumer meter and such test meter.
5. The electricity authority is also required before declaring the case of direct theft or FAE that show cause notice is given to the consumer/user who is also afforded an opportunity to controvert the allegations as also the consumer is required to be given a chance of personal hearing followed by speaking order declaring that he is found indulging in FAE.
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The aforesaid list is only illustrative and not exhaustive and in a recent judgement of Delhi High Court it has been held that electricity company is required to afford the consumer an opportunity to cross examine the official who have carried out the inspection and prepared report at the time of personal hearing.
It may be seen that in the instant case while the plaintiff has examined himself , his neighbour and his brother and Special Attorney as PW1 to PW3 and has virtually deposed on all the aspects regarding the non compliance of procedural requirement of show cause notice , personal hearing and speaking order on one hand and has also questioned the substantive aspect of misuser , the connected load being found in excess of sanctioned load and the instance of theft of electricity by way of tampering of meter or in other words questioning the report Ex DW 1/1 and 2 regarding the half seals being found fictitious resulting into Fraudulent Abstraction of Energy (FAE) bill of Rs.2,62,303,58 paise . While the counsel for the plaintiff has vehemently argued on the aforesaid aspect for quite sometime while taking recourse to pronouncement of superior courts. The counsel for defendant Sh Hemant Gupta has primarily taken two objections one that the declaration prayed by the plaintiff is belatedly 25 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
time barred and has been prayed for at such a belated stage that it cannot be allowed. The second aspect is regarding the fact that prior to 2003 there was no provision for giving any show cause notice or an opportunity of personal hearing in case of theft of energy which was booked under section 39 of Indian Electricity Act 1910 or a FAE which was booked by the department on the basis of joint inspection report . Ld counsel Sh Gupta has even vehemently argued that dehors the aforesaid argument the plaintiff in the instant case was granted show cause notice not once but two times . One prior to raising of the bill and second after the case was filed. ld counsel Sh Gupta has also stated that even speaking order has been passed. The court shall be dealing with all these aspects one by one .
First coming to the substantive aspect which can be further categorized in three sub heads viz. misuser, excess load and theft .
In so far as the contention raised by the plaintiff regarding misuser of agricultural connection for industrial purpose is concerned the plaintiff has vehemently argued that being agriculturist he has obtained an electricity connection with the sanctioned load of 5 HP strictly for agricultural purposes through K. No. 5111027805 and has never been found indulged in any activity except the agricultural use. The 26 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
plaintiff in this regard got proved the khasra Girdawaris for the year 199798 to 2000 - 2001 as Ex PW1/1 to PW1/4. It has been vehemently argued during course of arguments that as per Delhi Land Reform Act 1954 section 20,21 and 30 read with rules 54,56 and 64 to 68 of the DLR Rules lay down an obligation on the Revenue Authority to make record of the entries regarding the agricultural land in the khasra girdawari every four months alongwith the crops and if any misuser is to be found that misuser could have been shown in khasra girdawari itself. Ld counsel for the plaintiff in this regard states that even the relevant khasra girdawari shows that no industrial activities was taking place on the suit land during the aforesaid period and if it would have been found that the agriculturist is misusing the land in any manner the same will have its consequences under section 81 of Delhi Land Reform Act, 1954 which provides for vesting of such land in Goan Sabha. The court has perused the statutory provisions and the oral & documentary evidence on record. In this regard in the light of testimony it may be sen that Rule 54 of Delhi Land Reform Act provides entries to be made by patwari on the basis of field inspection and the entries has to be made every four months thereby specifying all the crops being found on the site. In this regard khasra girdawari of the relevant time at 27 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
the time of inspection Ex PW 1/1 shows the kinds of crops showed at land as gehu (wheat) alognwith the specific indication regarding the part of land being irrigated . It is further provided in section 30 of Delhi Land Reform Act 1954 that entries in Annual Register are to be presumed true until contrary is proved . Admittedly nothing has been said during cross examination of PW1 regarding the entires of khasra girdawari or even in the cross examination of PW3 who has also mentioned these khasra girdawari of relevant time . In any case if any deviation from agricultural activities was to be found on the spot as stated earlier the consequences of section 81 of Delhi Land Reform Act are very specific and such land in such case of misuser is bound to be vested in goan sabha . Nothing contrary to the aforesaid has been proved by the defendant. The plaintiff on its part in his examination has stated that he is owner and possession of agricultural land in respect of land has been doing agricultural activities in the land till date and the electricity connection has been used only for agricultural purposes for running a tubewell . The aforesaid has not been controverted by the defendant during cross examination of aforesaid witness which can also be seen from the testimonies of PW2 and 3 who has supported the case of plaintiff thereby stating that the land was only 28 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
used for agricultural purposes since beginning . The case of the defendant controverting the aforesaid case if that the plaintiff was found misusing the agricultural connection for industrial purposes by giving it to some Soma Metal Works who was found indulged in manufacturing and charging of battery plates . The witness of defendant Sh S S Anitl who was stated to be member of joint inspection team at relevant time who got exhibited the inspection report as Ex DW1/1 and DW1/2 which was stated to have been prepared by them on the spot thereby showing the user of the connection to be M/s Sona Metal Works and the industrial activities being shown as manufacturing and charging of battery plates. However during the cross examination DW1 himself stated that neither any instrument or machine , nor any raw material required for manufacturing of battery plates was found on the spot . The witness has clearly stated that no battery was found connected to the charging load during the course of inspection . Ld counsel for plaintiff between the course of arguments has even pointed out that the witness DW1 has himself stated that he had power to seize the article or to take photographs at the time of inspection but the same has not been done which leads to an adverse inference that no such activity was found. Though drawing an adverse inference as such would not be 29 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
appropriate but the fact that the witness DW1 has himself stated that there was only one rectifier found for battery charging with HP tube well of 3 HP and other light load an no other machine was found for charging the battery and the deposition of DW1 that he has no idea about the machines required for manufacturing of battery plates coupled with the admission that the rectifier can only be used for charging the battery and not manufacturing the plates or battery shows sufficient indication for an adverse inference . In other words if the court has to sift and weigh the available evidence on record namely testimony of PWs more strictly PW1 and 3 and cross examination of DW1 to arrive at a conclusion to the yardstick of preponderance of probabilities the court is of the considered opinion that while the plaintiff has been able to successfully show on record atleast to the yardstick that the plaintiff was found indulged in agricultural activities, the defendant has utterly failed to show that he was found misusing the agricultural connection for industrial purposes .
Now coming to the second aspect of the connected load being found in excess of sanctioned load. It may be seen that the defendant has vehemently stated that the connected load was found to be 28.09 KW ( rounded to 28.10 KW) as against the sanctioned load of 5 HP. 30
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The defendant has stated the same on the basis of the inspection report Ex DW1/1 wherein the connected load is recorded to be 28.095 KW . It has been contention of defendant that plaintiff has been misusing the electricity connection for purpose other than agricultural purposes by using the same for manufacturing and charging of battery plate as the same was being used by one M/s Sona Metal Works . The aforesaid factum has to be seen by the testimony of witness on record. While PW1 in his examination in chief has clearly stated that the load of 28.10 KW has been shown as wrong and falsely . Defendant on its part during cross examination of DW1 has virtually broken down from his testimony thereby showing that neither any instrument nor any material or rawmaterial required for manufacturing of battery plates nor any manufactured battery plate or any battery put on charging was found during inspection. To the specific question raised in cross examination the witness has stated that the excess load was found , however he has not been able to state as to how he has checked the load at the relevant time to which he has stated that the existing load was checked on the basis of his personal knowledge in respect of tube well connections of 5 to 10 HP . The defendant witness in this regard has further failed to show as to how load report can be prepared at 31 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
the spot where the electricity was found failed at the time of inspection which is clearly indicated in the MTD report dated 03.06.98 Ex DW1/2. Admittedly no pilot meter or acqua cheque meter has been used and the court is at loss to understand as to how the connected load was measured to a precision of three decimal point in the eventuality of failure of supply at the time of inspection .
Finally coming to the aspect of theft or Fraudulent Abstraction of Energy (FAE) for which the bill Ex A for sum of Rs.2,62,303.58 paise on 4x3 basis has been raised. It may be seen that as already discussed in the earlier paragraphs mere tampering of seals or existence of fictitious seal does not ipso facto constitute a Fraudulent Abstraction of Energy (FAE) for which an artificial means employed to abstract, consume or use energy so as manipulated the same to record less energy consumption has been shown . The aforesaid preposition has also been discussed by the Hon'ble High Court of Delhi in 68 (1997) DLT 257 titled Ramesh Chander Vs State as also AIR 1967 SC 349 titled Ram Chander Prasad Sharma Vs State of Bihar , in AIR 1967 SC 947 Jagarnath Singh Vs. Krishna Muthy and Ors. The hon'ble court has gone to the extent stating that even the tampered meter does not ipso facto 32 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
lead to theft of energy unless artificial means use to augment process of recording less consumption is duly shown on record . Similar voice is raised in other preposition of law more recently 142 (2007) DLT 16 titled Bhasin Motors Vs N.D.P.L. It may be further seen that even if the entire deposition of DW1 is taken , DW1 has not been able to show as to how the meter was checked in the absence of any pilot or acqua check meter . DW1 in his deposition during cross examination has stated that he has not check the internal mechanism of meter so as to show alleged fact of tampering or less recording and has only relied upon the fact that half seals were found fictitious . Witness has stated that in case fictitious seal are put on meter in place of genuine seal the reading can be manipulated , however the witness has specifically stated during cross examination that the internal mechanism of meter has not been checked despite application for reinspection made by the plaintiff . Again the plaintiff has made clear and categorical statement in his deposition that he has never been indulged in theft of electricity at any point of time . In any case the consumption pattern of plaintiff was not studied which was requirement of law to arrive at or book a case of Fraudulent Abstraction of Energy (FAE) , and the plaintiff succeeds even on this count also. 33
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Before parting with the aspect of theft or FAE it may be seen that as per defendant one Chander Parkash who was stated to be representative of plaintiff was associated with the entire inspection process. However when asked about his credential regarding the fact that Chander Parkash has no relation , the witness has even got confused over his name as to Chander Parkash or Prakash Chander , though the same may be due to lapse of memory if recorded during the course of evidence. However the witness has categorically stated that he has not tried to call the registered consumer Sh Krishan Kumar at the time of inspection or has not even asked the aforesaid Chander Parkash as to whether he is representative of the plaintiff or not , nor he has checked his credential or identity as to whether he is a representative of plaintiff or not . In view of the aforesaid the defendant has not been able to substantiate the factum of either misuser or excess load or tempering the meter to dishonestly extract electricity against the plaintiff and the court is of the considered opinion that the plaintiff has been able to show that there was no misuser or excess load or tempering at the relevant time atleast to the extent of preponderance of probabilities .
Finally coming to the procedural aspect as raised by the 34 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
plaintiff in the instant suit . The plaintiff has stated that he was never given show cause notice or an opportunity to rebut the allegations or even no speaking order was passed before the impugned bill for sum of Rs.2,62,303,58 paise was raised against him . The deposition of PW1 in this regard is clear and categoric which states that he was not even supplied the relevant documents including the inspection report . Ld counsel for defendant Sh Gupta has vehemently argued that the entire requirement of Principle of Natural Justice was complied with as the plaintiff was granted show cause notice Ex DW1/3 on 26.7.99 alongwith another show cause notice Ex DW1/6 of the same date both signed by Sh G S Kale Assistant Engineer Enforcement whereby which the plaintiff was called upon to appear before him on 04.08.99 alongwith his replies and document. Ld counsel Sh Gupta has vehemently argued that even the plaintiff has replied vide reply dated 04.08.99 Ex PW1/7 and speaking order dated 07.10.99 Ex PW 1/8 was passed. However careful perusal of aforesaid shows that the show cause notice was given only after the plaintiff approached the court and the show cause notice was given in terms of order dated 05.02.99 of Ld Predecessor of this court. But was not given prior to raising of impugned bill mark A . As discussed earlier, 35 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
serving of a show cause notice prior to raising a theft bill is must . Reliance placed on 55( 1994) DLT 70 (Supra) . Even otherwise the argument of ld counsel Sh Gupta for defendant is taken it may be seen that Ex PW 1/6 itself shows that some show cause notice dated 11.06.98 was given to the plaintiff . However that notice has not surfaced the record. No plausible explanation as to why the same has been withheld has been shown by the defendant during its evidence both oral or documentary on record. Further more even if the speaking order dated 07.10.99 Ex PW1/8 which has been made after the plaintiff has filed his reply Ex PW1/7 is seen the same shows that nothing has been considered at all by the competent authority at the time of consideration of aforesaid record or even the reply in which the plaintiff has asked for supply of inspection report and the speaking order appears to have been passed in the most mechanical manner thereby virtually reiterating the contents of inspection report . The speaking order is not clear even in respect of the representative of plaintiff being Ganesh Jha or Ghanshyam Mishra . No care has been taken even to rectify the aforesaid error. More so when the question regarding the representative has been asked by the ld counsel for defendant during cross examination of PW2 . Be that as it may no bill 36 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
pursuant to aforesaid show cause notice has been raised and for the purpose of impugned bill no show cause notice has been given to the plaintiff which is an essential ingredient for raising such an FAE bill .
In view of the aforesaid discussion and findings of the court on all the aspects the court is of the considered opinion that the inspection dated 03.06.98 cannot be held to be carried out in accordance with law and the inspection report dated 03.06.98 being prepared strictly in accordance with the provision of Electricity Act 1910 and the tariff provisions as in vogue . The inspection report and the impugned bill cannot sustain the rigours of law both on procedural as well as substantive counts and in view of the discussion held the court is of the considered opinion that the plaintiff has been able to succintly show on record that the inspection carried out by the officials of DVB on 03.06.98 was illegal and arbitrary and the impugned demand of Rs.2,62,303.58 paise vide bill mark A is illegally and arbitrarily raised without following due process of law as prescribed. Accordingly the plaintiff has succeeded on both aspects . The inspection report dated 03.06.98 and the impugned bill of Rs.2,62,303.58 paise Ex Mark A against K.No.5111027805AP are declared to be illegal, unjustified, arbitrarily null and void and raised without following due 37 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
process of law. This issue is accordingly decided in favour of the plaintiff and against the defendant .
ISSUE No 1 The onus of proving this issue was on the plaintiff who has prayed for decree of permanent injunction against the defendant from disconnecting the supply of electricity in respect of K No.5111027805AP installed at village Kadipur Khushak No1 Narela, Delhi on account of non payment of impugned assessment bill of Rs.2,62,303.58 paise or any other demand alongwith the LPSC charges pursuant to inspection report dated 03.06.98 . Plaintiff has duly supported its case as discussed earlier by his oral testimony as PW1 and in view of the findings of the court on additional issue No.1A where the court has held that the plaintiff has been successful in establishing its case to the extent of preponderance of probabilities and the plaintiff is entitled to the relief of declaration in respect of inspection report dated 03.06.98 and impugned bill. The plaintiff shall also be entitled to consequential relief of permanent injunction as prayed for. Contrary to aforesaid defendant has utterly failed to show anything contrary on record that the plaintiff is not entitled to such relief 38 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
from the court. Accordingly this issue is also decided in favour of the plaintiff and against the defendant .
RELIEF In view of the aforesaid discussion and findings of the court the court is of the considered opinion that plaintiff has been successful in establishing its case to the extent of preponderance of probabilities for the relief claimed in the suit . The impugned inspection report dated 03.06.1998 carried out by the official of defendant (erstwhile DVB) in respect of K No.5111027805AP installed at village Kadipur Khushak No1 Narela, Delhi is declared illegal , unjustified, null and void. The inspection report dated 03.06.1998 and the bill for Rs.2,62,303.58 paise Mark A are accordingly quashed . Defendant its official, agents etc are permanently restrained from taking any action on its aforesaid inspection report or on its bill dated 03.06.1998 . They are further restrained from disconnecting the electricity supply of K No.5111027805AP installed at village Kadipur Khushak No1 Narela, Delhi on the basis of inspection report dated 03.06.1998 or non payment of bill mark A except in accordance with law . Suit of the plaintiff is accordingly decreed with the direction that the 39 Civil Suit No.263/06/99 Sh Krishan Kumar Vs North Delhi Power Ltd.
amount deposited pursuant to order of the court by the plaintiff be adjusted against the future consumption of electricity and demand raised by defendant . Suit of the plaintiff is accordingly decreed . However in the specific fact and circumstances of the case leaving the parties to bear their own respective costs. Decree sheet be drawn accordingly. File be consigned to record room after due completion ., (MUKESH KUMAR GUPTA) DATED 16.09.2009 SCJ/RC(NORTH)DELHI ANNOUNCED IN THE OPEN COURT .
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