Delhi District Court
Smt. Maya Devi vs B.S.E.S. Rajdhani Power Ltd on 21 March, 2013
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 387/10
IN THE MATTER OF:
Smt. Maya Devi
Flat No. 306, SectA,PKTC,
Vasant Kunj, New Delhi
.....................Plaintiff
VERSUS
B.S.E.S. Rajdhani Power Ltd.
Corporate Legal and Enforcement Cell
Andrews Ganj, opposite Andrews Ganj
Market, New Delhi49 ..............Defendant
Date of Institution: 03.05.2008
Date of Reserving for Judgment: 02032013
Date of Judgment : 21032013
SUIT FOR DECLARATION, MANDATORY AND PERMANENT
INJUNCTION
JUDGMENT: ( Exparte)
1. Vide this Judgment, I shall decide a suit for declaration, mandatory & permanent injunction filed by the plaintiff.
2. Brief facts of the case as per the plaintiff are that the plaintiff had purchased Flat No. 306, SectA, PKTC, Vasant Kunj, New Delhi in the year 2001 and shifted in the same in the year 2004, Suit No. 387/2010 Page No. 1 of 28 thereafter applied for a new connection with sanctioned load of 5.88 KW and the same was sanctioned vide K. No. 2521G2350240 and the plaintiff being a bonafide consumer regularly makes the payments of the electricity bills without any delay or fault. It is further submitted that the plaintiff is residing in the abovesaid premises with her only one unmarried daughter hence she has very less consumption of the electricity. It is further submitted that on the first week of October, 2007, one person namely Mr. Rampal Chaudhary claiming to be the official of the defendant started making threatening calls to the plaint stating that the meter of the plaintiff is defective one and running very slow and if the plaintiff does not oblige him a case of theft would be made against her and asked Rs. 25,000/ to settle the matter without any problem. On 28092007 some person claiming to be the officials of the defendant visited the aforesaid premises and tried to trespass of the house of the plaintiff stating that they had a complaint regarding slowness of the meter and they started using foul and abusive language against the plaintiff. In this circumstances the plaintiff was constrained to dial on 100 and thereafter the situated could be controlled with the help of local police. It is further submitted that , thereafter the plaintiff had to visit her native place Suit No. 387/2010 Page No. 2 of 28 in Haryana for two weeks and she returned from there found a impugned inspection report and a load report dt. 06102006 were pasted at her premises wherein it was alleged that the premises of the plaintiff was inspected on 06102007 wherein the plaintiff was indulged in theft of electricity. It is further submitted that the said report does not disclose the true state of facts and the same bers apparent false and motivated elements put forth with a view to implicate the plaintiff in the false case; in that the allegation in the inspection report has been as follows:
a) Meter terminal seal, meter half seals and hologram seals of single phase electronic installed at the premises were found tampered.
b) Meter was segregated and four nos. illegal resistances were found connected in series with phase CT and neutral CT ( 2 nos each) for suppressing recording of consumption.
c) On performing accu check meter was found 79.69% slow.
d) That the connected load was photographed as seen and load of internal house was assessed based on load pattern of MIG houses and localities and thus load of 18.866KW of domestic use was recorded against the sanctioned loan of 5.88 KW under DX category.
Suit No. 387/2010 Page No. 3 of 28
3. It is further submitted that the aforesaid allegation mentioned in inspection report is false and fabricated hence liable to be dismissed. It is further submitted that the meter was installed at the common place of the premises and the same is not in the control of the plaintiff. It is further submitted that the load report is further false, fabricated as the same is based on assumption and presumption of the inspection team and far from the actual facts of the case. It is further submitted that the plaintiff immediately visited to the office of the defendant at Andrews Ganj and met with the concerned officials of the defendant and tried to appraise the real factum of the case and the official of the defendant directed her to file a reply of the show cause notice which is pasted on the premises and accordingly the plaintiff riled a reply vide letter dt. 22 102007. the plaintiff further requested to drop the proceeding against the plaintiff being against the provision of law. It is further submitted that without giving any consideration to the submission made by the plaintiff the defendant chose to act in most callous and predetermined manner whereby they already made up their mind driven by illmotive to frame a false case against the plaintiff and therefore, defendant in the most arbitrary and illegal manner passed the impugned speaking order dt. 27122007 and Suit No. 387/2010 Page No. 4 of 28 subsequently raised an assessment bill for theft ( meter tempering) having bill No. AGENR 160120080013 amounting Rs. 80778/. It is further submitted that the defendant is threatening the plaintiff continuously with regard to disconnection of the supply of the electricity and thereby trying to recover illegal demand in the form of supplementary bill for assessment for theft. Hence the present suit is filed.
4. On the other hand the defendant in its written statement has submitted that the plaintiff has suppressed the material fact, hence the plaintiff is not entitled to any discretionary relief. The defendant has denied the fact that in first week of October, 2007, one person namely Mr. Rampal Chaudhary claiming to be the official of the defendant started making threatening calls to the plaint stating that the meter of the plaintiff is defective one and running very slow and if the plaintiff does not oblige him a case of theft would be made against her. The defendant contended that an inspection of the premises in question was carried out by the Authorized Enforcement Inspection Team on 28092007 where single phase electronic meter bearing Meter No. 23490102 was found installed against No. 2521G2350240 in favour of Smt. Maya Devi during the inspection, the joint team checked the meter Suit No. 387/2010 Page No. 5 of 28 Accuracy through Standard Accuracy check instrument, meter was found slow by 79.69 %. But the plaintiff did not allow checking the internal status of the meter, hence, notice under section 163 of Electricity Act, 2003 was served upon the consumer. IR No. 2829 dt. 28092007 was pasted on the meter to maintain the status quo. Further another inspection was conducted on 06102007 in coordination of CISF and local police of PS Vasant Kunj, But, the subject premises was found locked. The load of 18.866 KW ( DX) was assessed based on load pattern of MIG houses and locality against sanctioned load of 5.88 KW ( DX). the supply was found being used by Smt. Maya Devi for domestic purpose. It is further contended that a load report in the form of assessment of connected load vide IR No. 6900, meter report in the form of inspection report ( meter detail) vide M.R. No. 2252 and inspection report Vide IR no. 7743 dt. 06102007 were prepared at site. Paper seal vide IR No. 2829 pasted on the tampered meter dt. 06 102007 to maintain the status quo. It is further submitted that on the basis of irregularities in the metering equipment, show cause notice dt. 06102007 regarding suspected Dishonest Abstraction of Energy ( D.A.E) was served to the plaintiff by post with request to attend the personal hearing on 22102007 as per the Tariff Suit No. 387/2010 Page No. 6 of 28 Provision and DERC Regulations. It is further submitted that In response to the show cause notice the plaintiff registered consumer, attended the personal hearing on 22102007 before the Assessing Officer and pleaded her case in details.
5. It is further contended that giving due considering outcome to personal hearing and after thorough analysis of the case, as the plaintiff had made the meter slow by 79.69 % by way of tampering in the metering equipment and conclusive evidences of theft of electricity i.e. four nos. illegal resistance were found connected in series with phase CT and neutral CT causing the meter slow. Conclusive evidences of theft were also detected by the inspection Team at site, the Assessing officer, thus reached the conclusion that it is a clear case of DAE under Delhi Electricity Supply Code and Performance Standards Regulations, 2007 and section 135 and 138 of the Electricity Act, 2003. thereafter a detailed speaking order has been passed by the assessing officer on 27122007, contents of same are correct, and the copy of the same was sent to the consumer.
6. It is further submitted that on the basis of speaking order dt. 27 122007 as as per provision of Tariff and DERC Regulations DFO (Enf) raised DAE bill of amounting to Rs. 80,778/ with due date Suit No. 387/2010 Page No. 7 of 28 29012008. thus the action of the defendant is correct and legal and has been taken as per law. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
7. The plaintiff has filed replication to the written statement filed by the defendant. In his replication the plaintiff has reaffirmed the contents made in the plaint and denied all the allegation made by the defendant in his written statement and further submitted that the suit of the plaintiff be decreed.
8. From the pleading of parties following issues were framed vide order dt. 03/6/2011:
i) Whether the plaintiff is suppressed the material fact ? OPD.
ii) Whether the plaintiff is entitled for a decree of declaration as preyed ? OPP.
iii) Whether the plaintiff is entitled to the decree to permanent injunction as prayed ? OPP.
iv) Whether the plaintiff is entitled to the decree of mandatory injunction as prayed ? OPP.
v) Relief
9. To prove his case plaintiff has examined herself as PW1 who has filed her evidence by way of affidavit Ex. PW1/A. The PW1 has Suit No. 387/2010 Page No. 8 of 28 reiterated the facts mentioned in the plaint and also relied upon the document which is as under:
i) Copy of the reading details, payment details, and meter detail ar Ex. PW1/1 Colly.
ii) Inspection report, meter details & Assessment of connected load dt. 06102007 are Ex. PW1/2 colly.
iii) Copy of speaking order dt. 27122007 is Ex. PW1/3.
iv) Copy of the Bill amount to Rs. 80778/ is Ex. PW1/4.
10. Further the plaintiff has examined Jyoti Sangwan as Ex. PW2 who has filed her evidence by way of affidavit Ex. P1 and relied upon the document which is computer downloaded copy reading details, payment details and meter details are Ex. PW2/1 colly.
11. After filling of the written statement the defendant did not defend its case, hence the defendant was proceeded exparte vide order dt. 04022012
12. I have heard Ld. counsel for both the plaintiff and perused the record & gone through the relevant provision of law.
13. My issue wise finding is as under:
14.Issue No. 1 Whether the plaintiff is suppressed the material fact ? OPD.
The burden of proving this issue was on the defendant but the Suit No. 387/2010 Page No. 9 of 28 defendant did not lead any evidence and was proceeded exparte. Thus this issue is decided in favour of the plaintiff and against the defendant.
15.Issue No. 2 Whether the plaintiff is entitled for a decree of declaration as preyed ? OPP.
At this juncture it would be relevant to discuss the relevant provisions of law. Section 135 of the Electricity Act deals with the theft of electricity which falls in Part XIV with the heading 'Offences and Penalties'. The same is as under:
"135. Theft of electricity.(1) Whoever, dishonestly,
(a) taps, makes or causes to be made any connection with overhead, underground or underwater lines or cables, or service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load Suit No. 387/2010 Page No. 10 of 28 abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use
(i) does not exceed 10 kilowatt, the fine imposed or first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less man six times the financial gain on account of such theft of electricity:
Provided further that if it is proved that any artificial means or means not authorised by the Board or licensee 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.
(2) Any officer authorised in this behalf by the State Government may
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been, is being, or is likely to be, used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, is being, or is likely to be, used for unauthorised use of electricity;
(c) examine or seize any books of account or Suit No. 387/2010 Page No. 11 of 28 documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under Subsection (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts there from in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searched and seizure under this Act."
16.There is also Section 126 for assessment, which falls in Part XII with the heading 'Investigation and Enforcement' and the same reads as under:
"126. Assessment.(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or Suit No. 387/2010 Page No. 12 of 28 in charge ,of the place or premises in such manner as may be prescribed.
(3) The person, on whom a notice has been served under Subsection (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:
Provided that in case the person deposits the assessed amount, he shall not be subjected to any further liability or any action by any authority whatsoever.
(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.
(6) The assessment under this section shall be made at a rate equal to one andhalf times the tariff applicable for the relevant category of services specified in Subsection (5).
Explanation.For the purposes of this section,
(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may Suit No. 387/2010 Page No. 13 of 28 be, designated as such by the State Government;
(b) "unauthorised use of electricity" means the usage of electricity
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv)for the purpose other than for which the usage of electricity was authorised."
17 . Regulations 25 and 26 dealt with the aspect of theft/tampering/ dishonest abstraction of energy (DAE) and the same are as under:
"25. Procedure for booking a case for pilferage of energy.(i) The licensee, suo motu or on receipt of reliable information regarding commitment of any offence of theft/tampering/dishonest abstraction of energy (DAE), shall promptly conduct inspection of consumer's premises. The inspection team shall carry a written authority signed by designated officer of the licensee.
(ii) The inspecting team shall prepare a report giving details such as connected load, condition of seats, working of meter and mention any irregularity noticed (such as, artificial means adopted for dishonest abstraction of energy) as per format prescribed by the licensee.
(iii) The report shall clearly indicate whether conclusive evidence substantiating the fact that energy was being dishonestly abstracted was found or not. The details of such evidence should be recorded in the report and it should be clearly brought out whether the case is being booked for direct theft of DAE.
(iv) No case for DAE shall be booked only on account of one seal on the meter missing or tampered or Suit No. 387/2010 Page No. 14 of 28 breakage of glass window, etc. unless corroborated by consumption pattern of consumer as per Regulation 26(ii) given below and such other evidence as may be available.
(v) In case sufficient evidence is found to establish direct theft of energy, the licensee may lodge a report with the local police along with the material evidence including wires/ cables, meter, service line, etc. seized from the site, which shall be handed over to police.
The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times the rates as per applicable tariff. The consumer shall be required to make the payment within 2 working days of its proper receipt.
(vi) In case of suspected DAE, the inspection team shall not remove the tampered meter but shall disconnect it from the supply and shall restore the supply through a new meter of appropriate rating. In such cases, the licensee shall check the Connected load and consumer's installation, affix a numbered Johnson's paper seal on the tampered meter and shall also record the particulars of the same in the report.
(vii) While the report must be signed by each member of the joint team and the notice, if any, must be signed by an authorised signatory of the licensee and all these must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/ her representative to either accept or give a receipt a copy of each must be pasted at a conspicuous place in/outside the premises. Simultaneously, the joint report, the assessment bill and the notice shall be sent to the consumer under Registered Post.
(viii) The consumer shall be served a 3 days showcause notice at the site as to why the case of DAE should not be booked against him/her. The notice should Suit No. 387/2010 Page No. 15 of 28 clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
26. Personal hearing.(i) Within 4 working days from the date of submission of consumers' reply, if made within prescribed period, the licensee shall arrange a personal hearing with the consumer.
(ii) Before the personal hearing, the officer of the licensee, before whom personal hearing has to be given, shall analyze the case after carefully considering all the documents, submissions by the consumer, facts on record and the consumption pattern, wherever available. The licensee shall also assess the energy consumption for past six months as per the Tariff Order. In case of suspected DAE, if consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption where meter is less than 10 years old and not less than 65% of the assessed consumption where meter is more than 10 years old, no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within 3 working days and connection shall be restored through original meter.
(iii) During the personal hearing the licensee shall given due consideration to the facts submitted by the consumer and pass, within 15 days, a speaking order as to whether the case of suspected theft/DAE is established or not. In case of the decision that the case of suspected theft/DAE is not established, no further proceedings shall be taken and connection shall be restored through original meter.
(iv)Where it is established that there is a case of DAE, the licensee shall lodge a report with the local police along with the material evidence including wires/cables, meter, service line, etc. seized from the site, which shall be Suit No. 387/2010 Page No. 16 of 28 handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times the rates as applicable tariff. The consumer shall be required to make the payment within 2 working days of its proper receipt. The licensee may, taking into consideration the financial position and other conditions of the consumer, extend the last date of payment or approve the payment to be made in Installments. The amount, the extended last date and/or time schedule of payment/Installments should be clearly stated in the speaking order. A copy of the speaking order shall be handed over to the consumer under proper receipt on the same day."
18.The plaintiff is seeking relief of declaration that the inspection report dated 6/10/2007, load report dated 6/10/07 and show cause notice dated 6/10/2007 are illegal and bad in law.
19. The contention in this regard is that the defendant did not comply with the Regulation no. 52 of the DELHI ELECTRICITY SUPPLY CODE AND PERFORMANCE STANDARDS REGULATIONS 2007, which is as under: Chapter VII Theft and Unauthorised Use of Electricity Theft of Electricity
52. Procedure for booking a case for Theft of Electricity i The Licensee shall publish the list of the Authorized Officers of various districts, prominently in all the District Offices and the Photo ID Card issued to such officers shall indicate so.
Suit No. 387/2010 Page No. 17 of 28 ii An Authorized Officer, suo moto or on receipt of reliable information regarding theft of electricity shall promptly conduct inspection of such premises.
iii The inspection team of the Licensee, headed by such Authorised Officer shall carry along with them their Visiting Cards and Photo Identity Cards. Photo ID card should be shown and Visiting Card handed over to the consumer before entering the premises. Photo ID card of the Authorised Officer shall clearly indicate that he has been nominated as authorized officer as per provisions of section 135 of the Act.
iv The Authorised Officer shall prepare a report giving details such as connected load, condition of meter seals, working of meter and mention any irregularity noticed (such as tampered meter, current reversing transformer, artificial means adopted for theft of energy) as per format given in ANNEXEXI or as approved by the Commission from time to time.
v The report shall clearly indicate whether sufficient evidence substantiating the fact that theft of energy was found or not. The details of such evidence should be recorded in the report.
vi No case for theft shall be booked only on account of seals on the meter missing or tampered or breakage of glass window, unless corroborated by consumption pattern of consumer and such other evidence as may be available.
vii In case sufficient evidence is found to establish direct theft of electricity, Licensee shall disconnect the supply and seize all material evidence including wires/cables, meter, service line etc., from the premises and within two days from date of inspection, file a case against the consumer in designated Special Court as per the provisions of section 135 of the Act. Copy of filing shall be served on the consumer under proper receipt within two Suit No. 387/2010 Page No. 18 of 28 days of such filing. The Licensee shall also assess the energy consumption for past twelve (12) months as per the assessment formula prescribed in ANNEXEXIII and prepare final assessment bill on two times the rates as per applicable tariff and serve on the consumer under proper receipt.
viii In case of suspected theft, the Authorised Officer shall Remove the old meter under a seizure memo and seal it in the presence of the consumer/ his representative. The Licensee shall continue the supply to the consumer with a new meter. The old meter shall be tested in a NABL accredited laboratory and the laboratory shall give a test report, in writing, which alongwith photographs/ videographs shall constitute evidence thereof. The list of NABL accredited laboratories shall be notified by the Commission. The Authorised Officer shall record reasons to suspect theft in the premises in his report. ix The report shall be signed by the Authorized Officer and each member of the inspection team and the same must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in/outside the premises and photographed. Simultaneously, the report shall be sent to the consumer under Registered Post. Provided that, in case of suspected theft, if the consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption, no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within three days and connection shall be restored through original meter. x After detailed examination of the evidence and the consumption pattern of the consumer, if the Licensee is convinced that a primafacie case is made out for the abstraction, consumption or use of electricity dishonestly Suit No. 387/2010 Page No. 19 of 28 against the consumer, the Licensee shall, within seven days of inspection, serve on the consumer a seven days show cause notice giving reasons, as to why a case of theft should not be booked against such consumer giving full details for arriving at such decision and points on which reply to be submitted. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
xi Incase show cause notice is not served even after thirty days from date of inspection, the case of suspected theft shall be considered as dropped and no further action can be initiated against the consumer.
xii Theft will not be limited to physical interference with the meter found in physical inspection. It will also include theft committed by resorting to external methods such as remote control/ high voltage injection etc. which interfere with the accurate registration of energy consumed. Theft of electricity may be established by analysis of metering data downloaded by a third party authorized laboratory. In case theft of energy is determined by way of meter down load, the show cause notice will be sent to the consumer/user.
20.The contention of the plaintiff is that no visiting card and ID proof was shown to the plaintiff by the inspecting team. Further, neither the meter was sealed nor seizure memo was prepared in her presence. The plaintiff was not at home and inspection was done behind her back. Nothing has come on record to disprove the said contention of the plaintiff. Thus, since the defendant has not followed the mandate of Regulation no. 52 of the DELHI Suit No. 387/2010 Page No. 20 of 28 ELECTRICITY SUPPLY CODE AND PERFORMANCE STANDARDS REGULATIONS 2007, thus, the inspection report dated 6/10/2007, load report dated 6/10/07 and show cause notice dated 6/10/2007 are declared illegal and bad in law.
21.The plaintiff is seeking declaration that the speaking order dated 27/12/2007, Ex. PW 1/3 holding that the plaintiff is guilty of DAE be declared unsustainable in law and is illegal. Further, the assessment bill for theft bearing no. AGENR160120080013 for a sum of Rs. 80,778/ with due date 29/1/2008 be also declared illegal. Before discussing the same it would be worthwhile to discuss certain precedents on this aspect. In Narinder Aggarwal vs Bses Rajdhani Power Ltd decided on 18 March, 2011 By Justice Rajiv Sahai Endlaw of the Hon'ble High Court of Delhi in W.P.(C) 1789/2011, it was held as under regarding dishonest abstraction of electricity:
17. This Court has in:
(a) Udham Singh Vs. BSES Rajdhani Power Ltd. 136 (2007) DLT 500.
(b) Jagdish Narayan Vs. NDPL 140 (2007) DLT 307.
(c) J.K. Steelomelt (P) Ltd. Vs. BSES Rajdhani Power Ltd. 140 (2007) DLT 563.
held that before arriving at a finding of DAE, the Assessing Officer is required to observe the consumption Suit No. 387/2010 Page No. 21 of 28 pattern of the consumer and in the absence of DAE having been established from the consumption pattern, no case for DAE can be made out. It was further held that when the meter is not checked for accuracy, the finding of the DAE is flawed. The Courts have also held that mens rea or intention of the consumer to dishonestly abstract electricity must be proved conclusively to bring home the charge of DAE. It was further held that external manifestation of tampering can only raise a suspicion which cannot take the place of proof. This Court in Harvinder Motors Vs. BSES Rajdhani Power Ltd. AIR 2007 Delhi 85 further held that the proceedings for DAE have adverse consequences; the consumer is held liable to pay statutorily determined amountthe monetary liabilities are stiff. In the circumstances it was held that without putting the brief description of the consumption pattern to the consumer, there could be no proper hearing or compliance of principles of natural justice.
22.In J.K. Steelomelt (P) Ltd. Vs. BSES Rajdhani Power Ltd. 140 (2007) DLT 563, it was held as under:
21. This Court has in a series of decisions inUdham Singh v. BSES Rajdhani Power Ltd.136 (2007) DLT 500, Col. R.K. Nayyar v. BSES(Judgment dated 18.4.2007 in W.P. (C) No. 2904 of 2005) and Smt. Jagdish Narayan v. NDPL (Judgment dated 18.4.2007 in W.P. (C) No. 10287 of 2005 etc.) interpreted the provisions of Section 135 of the Act read with the DERC Regulations. The relevant passages of the last mentioned judgment in Jagdish Narayan reads as under:
23. What is central to the definition of theft under Section 135 of the Act, which according to the respondent covers DAE as well is the element of 'dishonesty'. Therefore the means read or the intention of the consumer to dishonestly abstract electricity must be Suit No. 387/2010 Page No. 22 of 28 proved "conclusively" to bring home the charge of DAE. Therefore the requirement of "conclusive evidence" in terms of Regulation 25 (iii) is consistent with the statutory mandate of Section 135(1). That can be established only by showing that the consumer was responsible for tampering the meter by some visible means. The external manifestations of tampering, as has been found in the inspections conducted in the present cases, can only raise a suspicion of DAE. That suspicion will have to be made good by some tangible evidence of physical means of tampering before the presumption can be drawn that it was the consumer who tampered the meter.
24. The decision of the Hon'ble Supreme Court in Jagannath Singh v. B.S. Ramaswamy is illustrative although there the Court was concerned with a criminal conviction for the offence of theft of electricity under Sections 39 and 44 of the Indian Electricity Act, 1910. The approach to the requirement of proof of dishonest abstraction of energy is nevertheless relevant for the present case. The Hon'ble Supreme Court held that the existence of artificial means for abstracting energy can only give rise to a presumption that there had been a dishonest abstraction. The supplier would still have to show that the consumer is responsible for such tampering. In the said case, it was contended that the existence of an open stud hole on the meter was sufficient proof that dishonest abstraction of energy had taken place. In answer to that contention, the Hon'ble Supreme Court observed as under: "A meter with an exposed stud hole, without more, is not a perfected instrument for unauthorized taking of energy, and cannot be regarded as an artificial means of its abstraction. To make it such an artificial means, the tampering must go further, and the meter must be converted into an instrument for recording less than the units actually passing through it. A check meter affords an easy method of proving that the Suit No. 387/2010 Page No. 23 of 28 consumer's meter is recording less than the units consumed and is being used as an artificial means for abstraction of the unrecorded energy. To bring home the charge under Section 39, the prosecution must also prove that the consumer is responsible for the tampering. The evidence adduced by the prosecution must establish beyond doubt that the consumer is guilty of dishonest abstraction of energy."
25. Applying the above test, it has to be held that an automatic presumption of DAE on the basis of the external symptoms of tampering together with the analysis of the consumption pattern would not be a safe and error free method. Some other tangible evidence must be shown to exist. An accu check meter can be deployed to find out if the meter is in fact recording lesser units. The analysis of the consumption pattern in terms of the Regulation 26 (ii) is merely corroborative and not by itself substantive evidence of DAE. The decision of this Court in Udham Singh v. BSES Rajdhani Power Ltd.136 (2007) DLT 500 is to the same effect. In fact, the formula is applied in terms of Regulation 25 (iv) read with 26 (ii) only for determining the penalty payable by the consumer once a case of either direct theft or DAE has been made out. The penalty formula cannot itself supply the proof of DAE or theft.
22. In reiteration of the above judgments, it is held that in order to establish DAE through conclusive evidence, it is incumbent on the respondent to show, not merely with the reference to the consumption pattern, but by some other tangible evidence that there has been the tampering with or access by the petitioner to the internal mechanism of the meter in a manner that would slow down the consumption. This could be, for instance, in the form of an accuchek instrument being used to detect if the meter was recording lesser consumption than it should.
Suit No. 387/2010 Page No. 24 of 28
23.At this point, it would be worthwhile to reproduce the relevant portion of the speaking order dated 27/12/2007, Ex. PW1/3, which is as under: "Inspection of connection No. 251G2350240 was made by authorized enforcement team on 28092007 and on performing the accuracy check with standard accu check instrument meter was found 79.69 % slow. Consumer did not allow the inspection team to proceed further. Notice under section 163 Electricity Act, 2003was served to the consumer. IR No. 2829 dt. 28092007 was pasted on the meter to maintain status quo. Further inspection was held on 06102007 in coordination of CISF and local police, Vasant Kunj. The premises was found locked. The meter was removed ans segregated in presence of local police and four nos. illegal resistances were found connected in series with phase CT and neutral CT ( 2 nos. each) for suppressing recording of consumption. The connected load was phtographed as seen and load of internal house was assessed based on lad pattern of MIG houses and locality and thus load of 18.866 KW for domestic use was recorded against sanctioned load of 5.88 KW under DX category. Meter terminal seals, meter half seals and hologram seals of single phase electronic meter No. 23490102 installed of this connection, were found tampered. Primafacie it is a case of theft of electricity.
The case has been examined and found that the meter No. 23490102 on which the inspection has been made was installed on 22102006. Meter seals have been found tampered. On segregation of the meter, four illegal resistances were found connected in series with phase CT and neutral CT causing the meter to be slow by 79.69 %. Thus conclusive evidence ( artificial means) of Theft of Electricity were detected at the time of inspection. Suit No. 387/2010 Page No. 25 of 28 It is the responsibility of the consumer to keep the meter in safe custody. Consumer has been beneficiary of the tampered slow meter. Consumer submissions do not absolve her from the case of theft of electricity.
24.From the abovediscussed judgments it is manifest that to prove dishonest abstraction of electricity it is essential for the defendant to show, (i) the consumption pattern of the consumer (ii) some tangible evidence that there has been the tampering with or access by the plaintiff to the internal mechanism of the meter in a manner that would slow down the consumption. This could be, for instance, in the form of an accuchek instrument being used to detect if the meter was recording lesser consumption than it should. In the instant case, the defendant relied on the consumption pattern of the neighbouring houses and were influenced by the inspection report wherein it was mentioned that meter seals have been found tampered and four illegal resistances were found connected to slow down the meter by 79.69%. Clearly, the defendant did not take the assistance of accuchek instrument, which affords an easy method of proving that the consumer's meter is recording less than the units consumed and is being used as an artificial means for abstraction of the unrecorded energy. On the basis of the foregoing judgments and the discussions made above, clearly, the impugned speaking order dated 27/12/2007, Ex. PW1/3 Suit No. 387/2010 Page No. 26 of 28 holding that the plaintiff is guilty of DAE is declared unsustainable in law and is accordingly declared illegal. Further, the assessment bill for theft bearing no. AGENR160120080013 for a sum of Rs. 80,778/ with due date 29/1/2008 is also declared illegal.
25.Issue No. 3 Whether the plaintiff is entitled to the decree to permanent injunction as prayed ? OPP.
The plaintiff also seeks permanent injunction that the defendant is not to disconnect the electricity supply of the plaintiff bearing K No. 2521G2350240. Since in view of findings in issue no. 2 above, the speaking order dated 27/12/2007, Ex. PW1/3 holding that the plaintiff is guilty of DAE is declared unsustainable in law and is accordingly declared illegal. Further, the assessment bill for theft bearing no. AGENR160120080013 for a sum of Rs. 80,778/ with due date 29/1/2008 is also declared illegal, thus, the plaintiff is also entitled to the permanent injunction thus the defendant is hereby restrained from disconnecting the electricity supply of the plaintiff bearing K No. 2521G2350240 with respect to the speaking order dated 27/12/2007, Ex. PW1/3 only. It is made clear in respect of any default on the part of the plaintiff except vizaviz speaking order dated 27/12/2007, Ex. PW1/3 there is nothing in this order to restrain the defendant to take action as per law. Suit No. 387/2010 Page No. 27 of 28
26.Issue No. 4 Whether the plaintiff is entitled to the decree of mandatory injunction as prayed ? OPP.
The plaintiff also seeks mandatory injunction directing the defendant to withdraw all actions taken or purported to be taken on the basis of the inspection report made on 6/10/2008. An injunction of such a nature is barred by S. 41 (a) and (b) of the Specific Relief Act and thus the plaintiff is not entitled to the relief of mandatory injunction prayed for.
27.Relief In view of the foregoing discussion, the suit is decided in afore discussed terms. Costs of the suit is passed in favour of the plaintiff.
Decree sheet be prepared accordingly. File be consigned to the record room.
Announced & signed in the ( Snigdha Sarvaria) open court on 21032013. Civil Judge/Central05 Delhi Suit No. 387/2010 Page No. 28 of 28