Delhi District Court
Sh.Harinder Singh vs Delhi Vidyut Board on 4 February, 2012
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No.487/06/00.
Sh.Harinder Singh
S/o.Late Sh.Ram Singh
R/o.A-3/168, Sector-8,
Rohini, Delhi. .................Plaintiff
Vs.
Delhi Vidyut Board
Through its Chairman,
D.V.B. Shakti Sadan
New Delhi. ............Defendant
Date of institution : 19.07.2000.
Date of reservation : 06.01.2012.
Date of pronouncement : 04.02.2012.
JUDGMENT
01. The plaintiff filed the present suit for permanent injunction against the erstwhile DVB which has been unbundled and NDPL has stepped into its shoes.
02. In brief, the facts of the case as made out in the amended plaint are that plaintiff is the registered consumer of domestic light connection bearing no.RH/561/1230067/Y-544 from meter no.1507726 installed at the residence of the plaintiff situated at A-3/168, Sector-8, Rohini, Delhi. It is stated that the average consumption of electricity from the above noted domestic light connection is Rs.500/- - Rs.600/- charged bi-monthly and the plaintiff has regularly and punctually paid all the up to date bills to the defendant and no amount is outstanding towards the Suit No.487/06/00 Page 1 of page 11 plaintiff on account of the electricity energy consumption charges.
03. It is the case of the plaintiff that suddenly on 11.07.2000, the plaintiff received a handwritten bill mentioning "Provisional Bill against the FAE, Bill Code -58, DOI -06.07.2000/ENF[NW]" for an amount of Rs. 21,483/- and it was also mentioned that in case the said bill is not paid by 13.07.2010 then the plaintiff would be liable to pay a sum of Rs.32,225/-. It is stated that plaintiff was surprised to receive such exorbitant bill as the average consumption of electricity of the plaintiff was between Rs.500/- -- Rs.600/- p.m. It is further stated that even earlier, the plaintiff used to receive such exorbitant bills, as such, bill for the month of December 97 was raised by DVB for Rs.8034/- which after representation to the concerned office was reduced to Rs.55/- only, bill for the month of February 98 was raised by the defendant for Rs.8967/- which after representation was reduced to Rs.509/-, bill for the month of June 98 was for a sum of Rs.3412/- which was reduced to Rs.107/- and bill for the month of October 98 was for a sum of Rs.1420 was reduced to Rs.800/-.
04. It is further case of the plaintiff that on 12.07.2000 the plaintiff approached the concerned officials of the defendant along with his representation, but, was only told that some inspection had been carried out of the meter installed at the premises of the plaintiff on the basis of which, the said impugned demand has been raised against him. It is stated that plaintiff protested that no inspection had ever been carried out in respect of his meter and there has been no irregularity of any nature in respect of consumption of electricity but his such pleas appeared to fall on deaf ears and even the representation of the plaintiff was not accepted by officials of defendant.
05. It is further stated that on not getting any satisfactory reply or assurance from the concerned officials of the defendant, the plaintiff had then sent his representation to "The Chief Engineer, DVB, Sector-3, Suit No.487/06/00 Page 2 of page 11 Rohini, Delhi" by registered post but has not received any reply or the details and the cause or reason of the impugned demand. It is stated that the electricity meter, from where the energy is supplied by the defendant, has been installed on the ground floor in the stair case and has not installed inside the premises/house of plaintiff, as such, same is not in possession of the plaintiff, and the allegation if any of the defendant with regard to the tampering of the meter or its seal does not held any substance. It is stated that no inspection was ever carried out by the DVB officials and the premises of plaintiff and no inspection report has been furnished or supplied to the plaintiff in respect of the alleged inspection. It is further stated that the consumption of energy by the plaintiff from his domestic light connection is uniform for the last three years and the plaintiff has never defaulted in the payment of any of the bills raised by the defendant. Hence, the present suit for grant of decree of permanent injunction thereby restraining the defendant from disconnecting the domestic light connection bearing No.RH/561/1230067/Y-544 from Meter no.1507726 installed at the residence of the plaintiff and decree of declaration, declaring the order/recommendation made by the Asstt.Engineer for the action in respect of electricity connection No.No.RH/561/1230067/Y-544 from Meter no.1507726 installed at the residence of the plaintiff situated at A-3/168, Sector-8, Rohini, Delhi, as null & void and also to restrain the defendant from claiming any amount against the impugned demand/directions, by a decree of permanent injunction, is filed.
06. Defendant/NDPL contested the present suit by filing detailed written statement to amended plaint, while taking preliminary objections that plaintiff has not come to the court with clean hands and has suppressed the material facts; plaintiff is not entitled to any discretionary relief under Indian Specific Relief Act, 1963; the relief of declaration can Suit No.487/06/00 Page 3 of page 11 only be sought within three years from the date of accruing the cause of action, as per provision of Section 3 of Limitation Act & Article 58 of Limitation Act, but, in this case, the plaintiff has moved the application u/o6 rule 17 CPC, after a gap of approximately more than nine years and sought the relief of declaration, which is highly time barred. On merits, the contents of the plaint have been denied, while submitting that an inspection was conducted by the joint team comprising enforcement, MTD and Zonal staff on 06.07.2000 in the presence of the representative of the plaintiff, who has associated with the joint team throughout the inspection proceedings but he has refused to sign the inspection report with malafide intention to get the relief in the garb of filing the present suit, accordingly, the remarks has been mentioned at the bottom of inspection report. It is submitted that the connected load was found 7.590 KW against the sanctioned load of 3.66 KW. It is further submitted that both the half seals of the meter were found tampered, accordingly after obtaining approval from the competent authority, the show cause notice & 24 hours show cause notice has been served to the plaintiff and he was requested to attend the personal hearing on 25.08.2000. Accordingly, he attended the personal hearing and made an endorsement on the bottom of 24 hours show cause notice to that effect. It is further submitted that consumption pattern of the plaintiff was studied and the recorded consumption was 202 units per month is found less than the computed consumption 728 units per month on the connection load of 7.590 KW. Accordingly, the billing advice has been sent to the office of the Director(EDP) for raising the theft demand and demand of Rs.21,487.25 has been raised as per Provisions of tariff, which is correct and legal and the plaintiff is liable to make the payment to the same, failing which supply of the plaintiff is liable to be disconnected due to non- payment of dues u/s 24(1) of the Indian Electricity Act 1910. It is prayed Suit No.487/06/00 Page 4 of page 11 by defendant that suit of the plaintiff be dismissed with heavy costs.
07. From the pleadings of the parties following issues were framed vide order dated 29.06.2001:-
1. Whether DVB conducted illegal inspection on 06.07.2000 and raised illegal impugned bill for Rs.32,255/- OPP.
2. Whether plaintiff is entitled to decree of permanent injunction ? OPP.
3. Whether plaintiff has not come to court with clean hands or suppressed the material facts ? OPD.
4. Relief.
08. Vide order dated 18.07.2011, an additional issue was framed as under:-
Issue No.(1) Whether the plaintiff is entitled to decree of declaration as prayed ? OPD.
09. In support of its case plaintiff examined himself as PW-1. On the other hand, defendant examined Sh.Anoop Nandi, Enf.North West, JE as DW-1, Sh.S.K.Taneja, JE Town Circle Project, NDPL as DW-2, and Sh.Balbir Singh, retired A.Manager Transco as DW-3.
10. I have heard ld.counsels for parties as well as perused the record and written submissions as filed on behalf of defendant. My issue wise findings are as under:-
Issue no. 1 and 2.
11. These issues are interlinked as such, taken up together. The onus to prove these issues was upon the plaintiff. PW-1 deposed that he is the registered consumer of K.No.1230067 for a sanctioned load of 3.66 KW. PW-1 further deposed that on 11.07.2007 he received a hand written bill of Rs.32,225/- which is Ex.PW-1/1. PW-1 deposed that neither the actual consumption of energy was mentioned nor any particular mentioned on the said bill and he contacted DVB authority, but Suit No.487/06/00 Page 5 of page 11 could not get any satisfactory reply and thereafter, he sent a representation, carbon copy of which is Ex.PW-1/2. PW-1 deposed that his average consumption of electricity is around 500-600 and earlier he received a bill of Rs.8275/- which was rectified in February 1998 and he was asked to pay Rs.509/- only and proved the copy of bill as Ex.PW-1/4 and 5. PW-1 further deposed that he had also replied the show cause vide reply Ex.PW-1/10 and no inspection was carried out of his meter and he was not given the copy of inspection report. In his cross examination, PW-1 admitted that the connection has been sanctioned for residential purpose with sanctioned load of 3.66 KW and he came to know about the fact of alleged inspection when he received the bill Ex.PW-1/1.
12. DW-1 Sh.Anoop Nandi who was member of Inspecting team, deposed that connected load was found 7.59 KW. No misuse was detected and proved the load report as Ex.DW-1/1. In his cross examination DW-1 confirmed that he has mentioned two geasers in his report.
13. DW-2 is Sh.S.K.Taneja, JE, who was also member of the Joint Inspecting team, and proved the inspection report as Ex.DW-2/1. DW-2 deposed that half seals of single phase meter was found tampered. DW-2 confirmed that they never took photograph of the tampering and denied the suggestion that no inspection was carried out.
14. DW-3 is Sh.Balbir Singh, who processed the case, and proved the copy of approval as Ex.DW-3/1. In his cross examination, DW-3 confirmed that copy of inspection report was not sent with the show cause notice.
15. Now, the question comes to decide, whether the demand of Rs.21,487.85 raised vide theft bill i.e.Ex.PW-1/D-1 is illegal ? It is admitted case of the parties that the subject connection was sanctioned for domestic purpose with a sanctioned load of 3.66 KW. DW-1 in his Suit No.487/06/00 Page 6 of page 11 cross examination has also admitted that no misuse was detected at the time of joint inspection on 06.04.2000. The inspection report Ex.DW-1/1 alongwith MTD report on the basis of which the defendant raised the theft bill Ex.PW-1/D-1 shows that following irregularities:-
1. Connected load was found 7.19 KW
2. Meter half seal found tampered, hence, FAE.
16. If connected load was found more than sanctioned load, same cannot led to automatic presumption that entire connected load was being used by consumer throughout period or a ground for raising a bill for theft. Reliance is placed upon an authority reported as 140 (2007) DLT 563 titled as J.K.Steelomelt (P) Ltd. Vs. BSES Rajdhani Power Ltd.
17. In an authority reported as 2011 (122) DRJ 613 titled as Shyam Bihar Singhal Vs. BSES Yamuna Power Ltd., it was held by Hon'ble High Court and I quote:-
"Electricity Act, 1910 Section 39, - Unlawful abstraction of energy - discussed - Suit for Declaration and Permanent Injunction by the plaintiff who is a consumer of electricity of the defendant - Inspection by the officials of defendant found paper seals put on plaintiff's electricity meter uprooted - Higher load found than the sanctioned load by officials of defendant - Unlawful abstraction of energy raised and bill raised to the plaintiff by the defendant on that basis- No evidence of actual tampering with the meter or even removal of the meter seal found - No artificial or external device for abstraction of energy found installed at the time of inspection - No attempt to study consumption pattern of plaintiff - Bill quashed and defendant restrained from disconnecting electricity supply to the plaintiff..."
18. Adverting back to the facts of the present case, Inspection Suit No.487/06/00 Page 7 of page 11 report Ex.DW-1/1 and MTD report shows that meter disc was found moving in right direction. No photographs of the tampered seals were taken. No artificial means were found at the time of inspection to show that meter was recording less energy than actually passing through it. Only due to the reason that connected load was found more than sanctioned load or that half meter seals were found tampered, in absence of any collateral material or conclusive proof about theft, the defendant was not justified in raising the bill for theft. Therefore, the demand raised pursuant to inspection report Ex.DW-1/1 vide bill Ex.PW-1/D-1 on account of theft, is illegal. Thus, plaintiff is also entitled for decree of injunction as prayed. Accordingly, these issues are decided in favour of plaintiff and against the defendant.
Issue No.3.
19. Onus to prove this issues was upon the defendant. However, defendant has not led any evidence to show how the plaintiff has not come to the court with clean hands or suppressed the material facts. In absence of any evidence in this regard, this issue is decided against the defendant and in favour of plaintiff.
Addl.Issue no.1.
20. The onus to prove this issue was upon the defendant. Ld.Counsel for defendant vehemently argued that the relief of declaration is time barred as the application of plaintiff u/o 6 rule 17 CPC was filed after a gap of approximately more than nine years and as per section 3 of Limitation Act, the period of limitation qua relief of declaration is three years. On the other hand, ld. counsel for plaintiff argued that although the plaintiff amended his plaint, but in case of a bill which prima facie appears to be illegal, there is no need to seek the declaration to declare an illegal bill as illegal and the suit cannot be dismissed on the ground that declaration was not sought within limitation. Perusal of record shows Suit No.487/06/00 Page 8 of page 11 that plaintiff filed the application u/o 6 rule 17 CPC, which was allowed by this court vide order dated 24.02.2011 and no appeal or revision was filed against that order. Now, the question arises that even if as per pleadings in the plaint, the impugned bill is prima facie illegal, still a simplicitor suit for injunction is not maintainable and plaintiff has to seek the relief of declaration or not ?
21. In Sarjivan Singh Vs. DVB 110 2004 DLT 633, it was held as under and I quote:
" Para no.6 In the present cases the Defendant has raised electricity bills. There may be instances where on a bare perusal of the facts before the Court, either contained in the plaint or in the Written Statement, and the documents placed by the parties, the preponderant position is what is stated in the plaint. It is not expected of the Court to proceed on any other avenues. Let us assume that a bill is raised in respect of consumption for a particular period for which payment has already been made. Would it still be necessary for the Plaintiff to seek a declaration? The answer must be in the negative. Where, however, the plaint does not disclose facts which, prima facie, show the illegality of the demand, the mere filing of a Suit for injunction simplicitor cannot be used as a device to defeat or delay the liability thereby created."
22. In another authority reported as 145(2007)DLT 390, NDPL Rajdhani Power Ltd. Vs. Manoj Kumar the similar position was again considered and it was held as under and I quote:
"2. Counsel for the petitioner urged that the order of this Court, in Sarjiwan Singh V. Delhi Vidyut Board, 110 (2004) DLT 633 puts the case of the petitioner in an impregnable position. Its relevant para is reproduced as hereunder:
"7. In these circumstances the Order dated 25.09.1997 in Suit No. 79 1/1997 does not disclose any error in the exercise of jurisdiction: CR Suit No.487/06/00 Page 9 of page 11 No.1186/1997 is accordingly dismissed. Reference Nos. 1/1998, 2/1998 and 6/ 1998 are disposed of by holding that where a bill has been raised by the Electricity Department, which is prima facie legal, a declaration must be prayed for to the effect that the bill is incorrect or illegal before the plaintiff can legally pray for an injunction against the recoveries made on the basis of such bills.".
3. It must be borne in mind that the stress is on prima facie legal bill. Similar view was taken in a recent case titled as North Delhi Power Limited v. Ganesh Aggarwal, CRP No.72/2006 dated 2nd November, 2006 passed by this Court. The Authority of Sarjiwan Singh Vs. Delhi Vidyut Board (supra) was considered and it was held that the only exception carved out in para 7 of the judgment (quoted above) is that the Court must be satisfied that the bill is prima facie legal."
23. Thus, the crux of above law settled by our own Hon'ble High Court is that where the bill raised by electricity department is prima facie legal, a declaration is required to be sought to the effect that bill is incorrect or illegal but, where the bill prima facie appears to be illegal, there is no need to seek the relief of declaration to declare that bill as illegal. Therefore, I find no force in the contention of ld. Counsel for defendant that suit of plaintiff is liable to be dismissed as the relief qua declaration of the impugned bill, which was allowed vide order dated 24.02.2011 is time barred, when from the pleadings itself the bill appears to be illegal. Even otherwise, my findings on the issue no.1 and 2 to the effect, the demand vide bill Ex.PW-1/D1 is illegal, as such, plaintiff is entitled to declaration as sought. Accordingly, this issue is decided against the defendant and in favour of plaintiff.
Relief.
24. In view of my findings on the above issues, a decree of declaration is passed in favour of plaintiff and against the defendant Suit No.487/06/00 Page 10 of page 11 declaring that the demand raised pursuant to inspection report Ex.DW-1/1 vide bill Ex.PW-1/D-1 on account of theft is illegal and a decree of permanent injunction is passed in favour of plaintiff and against the defendant, thereby restraining the defendant from disconnecting the domestic light connection bearing No.RH/561/1230067/Y-544 from Meter no.1507726 installed at the residence of the plaintiff situated at A-3/168, Sector-8, Rohini, Delhi, on account of demand raised vide bill Ex.PW-1/D1. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open Court on 04.02.2012.
(S.K.MALHOTRA) SCJ/RC(NORTH)/DELHI.
Suit No.487/06/00 Page 11 of page 11