Delhi District Court
Bses Yamuna Power Ltd vs Sh. Shehroz Alam on 20 May, 2023
IN THE COURT OF SH. ARUN KUMAR GARG,
ADDITIONAL DISTRICT JUDGE-05, CENTRAL
TIS HAZARI COURTS, DELHI
RCA DJ No.56/19
CNR No.DLCT01-006513-2019
BSES Yamuna Power Ltd.
Through its Chief Executive Officer
BSES Substation Building,
Karkardooma, Delhi-92 .........Appellant
Versus
Sh. Shehroz Alam
S/o Sh. Anish Ahmed
R/o T-1011 (GF) S.P.Mukherjee Market,
Faiz Road, Karol Bagh,
New Delhi. ........Respondent
Date of Institution of appeal : 14.05.2019
Date of Judgment : 20.05.2023
REGULAR FIRST APPEAL UNDER SECTION 96 R/W
ORDER XLI OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE IMPUGNED JUDGMENT AND FINAL
ORDER DATED 01.04.2019 PASSED BY SH. PRASHANT
SHARMA, LD. SCJ-CUM-RC, TIS HAZARI COURTS, DELHI
IN CS NO.2953/18/11 TITLED AS SEHROZ ALAM VS. BSES
YAMUNA POWER LIMITED THEREBY DISMISSING THE
SUIT OF THE APPELLANT
JUDGMENT
1. By this judgment, I will dispose of the Regular first appeal filed by the defendant in Civil Suit No. 2953/18/11 against the impugned judgment and decree dated 01.04.2019 passed by Ld. SCJ-CUM-RC (Central), THC, whereby, the suit of plaintiff/respondent for declaration, mandatory and permanent injunction was decreed in favour of plaintiff/respondent.
RCA DJ No.56/19BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 1 of 26
2. The aforesaid judgment has been challenged by the appellant inter alia on the ground that Ld. Trial Court had no jurisdiction over the subject matter of the aforesaid suit in terms of provisions of Section 127 r/w Section 145 of the Electricity Act, 2003 and the impugned judgment is based on conjectures, surmises and stereotypes since Ld. Trial Court had posed an incorrect query i.e. "it was not categorically explained by the defendant/appellant as to how it was possible that one electricity meter no. 13911643 was removed on 04.10.2010 and again inspected on 28.04.2011?", while ignoring the inspection report which categorically stated that the meter was seized from the lab and not from the premises of respondent/plaintiff on 28.04.2011.
3. It has further been alleged by the appellant that Ld. Trial Court was wrongly swayed by the absence of signatures of the respondent/plaintiff on the inspection report dated 28.04.2011 overlooking the fact that no new discovery had taken place during the course of the inspection of the site on 28.04.2011 and the signatures of the respondents on the meter replacement receipt dated 05.10.2010 were distinctly admitted by the respondent. Moreover, according to appellant, in his reply dated 10.05.2011 to the show cause notice dated 28.04.2011, the respondent did not dispute the occurance of inspection and his knowledge as well as participation in the same.
4. Besides, as per grounds of appeal, Ld. Trial Court has uncharitably discredited the officials of the appellant as well as the documents prepared by them without their being any evidence suggesting vindictiveness, negligence or bad faith to the detriment of respondent. Another ground for challenging of the impugned judgment as per the appeal is that Ld. Trial Court RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 2 of 26 mistook the provisions of Section 52(viii) and (ix) of Delhi Electricity Supply Code and Performance Standards Regulations, 2007 to be applicable to the facts of the present case and hence, the inferences drawn by Ld. Trial Court owing to lack of compliance of the said regulations vitiated the impugned judgment. Besides as per the appellant, Ld. Trial Court has failed to appreciate that the relevant evidence could not have been excluded merely on the ground that search or seizure was allegedly illegal, even if, it is assumed for the sake of the arguments that the search and seizure by the officials of appellant was illegal.
5. It has further been alleged in the appeal that Ld. Trial Court has wrongly excluded the lab report dated 21.01.2011 from consideration on the premise that the appellant had failed to prove the same despite the fact that the same was ipso jure admissible in law being the expert opinion and it was incumbent upon the respondent to adduce evidence to disprove the same, in view of the statutory presumption arising in favour of the said report under the Provisions of the Electricity Act, 2003 and the rules framed thereunder.
6. Lastly, it has been alleged in the appeal that Ld. Trial Court has miserably failed to appreciate the true import of deposition of DW1 to DW3 and discredited their testimonies only on supposition while ignoring the fact that the plaint was grossly undervalued and the respondent paid deficient court fees on the same.
7. Upon receipt of appeal, notice of the same was directed to be issued to the respondent vide Order dated 14.05.2019, which was duly served upon the respondent, whereafter, he entered RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 3 of 26 appearance on 17.08.2019 through his counsel. No reply, however, to the appeal has been filed by the respondent and hence, the final arguments were heard on behalf of both the parties after requisitioning the trial court record of the suit filed by the appellant giving rise to the impugned judgment. Besides, written submissions were also filed on behalf of both the parties.
8. In written arguments filed on behalf of the appellant, appellant has by and large re-emphasized the grounds taken by the appellant in his appeal, whereas, the respondent in his written arguments has by and large relied upon the reasoning given by Ld. Trial Court in the impugned judgment while decreeing the suit of respondent in his favour.
9. In support of his submissions, Ld. Counsel for appellant has relied upon the following judgments:-
i) NDPL Vs. Bhasin Motors Pvt. Ltd. 199(2013)DLT 35
ii) M/s Rudnap Export Import Vs. Eastern Associate Company and others AIR 1984 Delhi 20
iii) M.S.Sheriff Vs. State of Madras & Ors. AIR 1954 SC 397
iv) Prem Shankar KG Vs. Inspector of Police and Another Criminal appeal no.935/2002 decided by Hon'ble Supreme Court of India on 07.10.2002.
v) Narender Aggarwal Vs. BSES Rajdhani Power Limited WP(C) 1789/2011 decided by Hon'ble Delhi High court on 18.03.2011.
10. On the other hand, in support of his submissions, Ld. Counsel for respondent has relied upon the following judgments:
i) Jagdish Narayan Vs. NDPL & Anr. 140 (2007) DLT 307 RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 4 of 26
ii) Shyam Bihari Singhal Vs. BSES Yamuna Power Limited 179 (2011) DLT 774.
11. I have heard the submissions made on behalf of both the parties and have also carefully gone through the entire material available on trial court record, in the light of submissions made on behalf of the parties and the law laid down by the Hon'ble Supreme Court of India as well as Hon'ble High Court of Delhi in various judgments relied upon by Ld. Counsels for both the parties.
12. Bare perusal of the trial court record reveals that the suit, from which the present appeal arises, was filed by the respondent seeking a decree of declaration thereby declaring the inspection reports dated 28-04-2011, the alleged speaking order as well as the DAE Bill of Rs. 2,22,592/- in respect of electricity connection bearing K.No. 114047230627 installed at ground floor of premises bearing no. T-1011, S.P. Mukherjee Market, Faiz Road, Karol Bagh, New Delhi as null and void, illegal, invalid, unenforceable and non-recoverable, for a decree of permanent injunction restraining the appellant from disconnecting the electricity supply against the aforesaid connection and for mandatory injunction directing the appellant to make assessment of the defective/burnt meter under Regulation 43 of the Delhi Electricity Supply Code and Performance Standards Regulations, 2007. The suit was initially filled by the respondent in the Court of Ld. Special Judge(Electricity) on 03-10-2011.
13. The case of the respondent/plaintiff as per the plaint in the aforesaid suit was that he was a registered consumer of electricity RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 5 of 26 connection vide K. NO. 114047232627 installed at the ground floor of premises bearing no. T-1011, S.P. Mukherjee Market, Faiz Road, Karol Bagh, New Delhi against sanctioned load of 5KW for non-domestic purpose and had been regularly making the payment of all the electricity bills to the appellant on regular basis. The electricity meter installed against the said connection, according to respondent/plaintiff, was replaced by the appellant on 19-06-2009 with a new meter number 13911643 (hereinafter referred to as the meter in question) and since the aforesaid meter in question was burnt, the same was also replaced by the defendant with a new meter no. 11219013 on 04.10.2010 in pursuance to a complaint from the respondent dated 04.10.2010.
14. Subsequently, according to respondent/plaintiff, he had got the load against the said connection enhanced from 5KW to 11KW and accordingly the meter was once again replaced with a new meter no. 17061621 on 27.12.2010. It has further been alleged by the respondent in the plaint that as per the last bill raised by the appellant for the month of July 2010 in respect of meter in question, a reading of 4802 was reflected as on 08.07.2010 and the said bill was duly plaid by the respondent to the appellant. However, at the time of removal of meter in question on 04.10.2010 in the form of meter replacement it was mentioned that the meter reading of the meter in question was not visible and hence, according to him, there was a dispute qua consumption of electricity for the period 09-07-2010 to 04-10- 2010.
15. The aforesaid dispute, according to respondent/plaintiff, should have been resolved by raising a bill for the aforesaid period upon assessment of consumption as per Regulations 40 RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 6 of 26 and 43 of Delhi Electricity Supply Code and Performance Standards Regulations, 2007. However, according to him, suddenly a surprise inspection of the premises of respondent in respect of the said connection was conducted by the officials of appellant on 28-04-2011 and as per the inspection report dated 28-04-2011, the said inspection was claimed to be pertaining to the meter in question despite the fact that as on the date of alleged inspection the meter in question was not even in existence at the site. The aforesaid inspection, in respect of a non-exiting meter, according to the respondent, indicated malafide intention on the part of the officials of the appellant to harass the respondent by dragging him into a frivolous case so as to extort money from him.
16. The said inspection report along with other reports prepared by the appellant in respect of the meter in question, according to the respondent, were nothing but a result of manipulation on the part of officials of appellant with a malafide intention and carry no legal significance in the eyes of law. A show cause notice for suspected theft (meter tempering) of electricity was thereafter received by the respondent from the appellant, wherein, it was alleged by the appellant that meter in question was got tested on 21.01.2011 vide report no. BY10/39773 dated 21.01.2011 and upon testing of the meter, the MDI history data of the meter was found disturbed due to application of ESD-HF coil.
17. The respondent has categorically alleged in the plaint that he was never informed about the aforesaid testing of meter in question nor was he asked to join the testing at the lab of the appellant, which was not even an independent and Govt.
RCA DJ No.56/19BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 7 of 26 accredited lab. The appellant, according to respondent, has malafidely got the meter in question tested at its own lab so as to obtain a report of its own choice and requirement. Thereafter, according to respondent, the appellant on the basis of alleged inspection dated 28.04.2011 has raised an illegal demand of Rs.2,22,592/- with a due dated 27.06.2011 despite the fact that the load report dated 28.04.2011 in respect of an already removed meter could not have been read in the context of the said meter which was already removed on 04.10.2010, more so, when even the sanctioned load was enhanced w.e.f. 27.12.2010. He submits that admittedly no load report was prepared at the site at the time of removal of meter in question on 04.10.2010.
18. The aforesaid demand of the appellant, according to respondent, is illegal since the same has been raised by the appellant without any opportunity to the respondent and without taking into consideration the aforesaid facts including the fact that even as per the appellant, the seals of the meter in question were found intact and OK. Hence, according to him, there was no occasion for the appellant to raise the illegal demand on account of alleged theft of electricity by the respondent. The aforesaid demand, according to him, is also illegal, in as much as, as per the provisions of Regulation 52 of Delhi Electricity Supply Code and Performance Standards Regulations, 2007, no case of theft can even be booked only on account of seal of the meter having been found tempered or breakage of glass window.
19. Even otherwise, according to respondent, even as per the documents of the appellant, the connected load at the premises of the respondent/plaintiff was within the sanctioned limit as on the date of alleged inspection dated 28.04.2011 which was got RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 8 of 26 enhanced by the respondent from 5 KW to 11 KW way back in the month of December 2010. In his plaint, the respondent had denied that he had committed any theft of electricity and even the connected load, according to him, was well within the sanctioned limit and consumption of respondent was in consonance with the bills raised on the basis of the recorded consumption.
20. The meter test lab report dated 21.01.2011, according to respondent, does not specifically mention about the time for which the MD history data was found disturbed and even the copy of alleged MD history data, according to him, had not been supplied by the appellant to the respondent. Despite the fact that the demand raised by the appellant from the respondent through the impugned bill with due date 27.06.2011 was clearly illegal, according to respondent, the appellant had been threatening him of disconnection of the electricity supply of respondent due to which the respondent was constrained to file the aforesaid suit for declaration permanent and mandatory injunction.
21. On the other hand, appellant in his written statement to the suit of the plaintiff had objected to the maintainability of the suit on the ground that the same was not valued properly for the purpose of court fee and since the respondent/plaintiff was found stealing the electricity by tempering his meter, he was not entitled to the equitable relief of injunction. It is the case of the appellant as per the written statement that the single phase electricity meter in question was installed at the premises of respondent in his name, which was seized and sealed from the aforesaid premises on 05.10.2010 in order to test the same in lab while restoring the supply of respondent through a new meter.
22. The respondent, according to appellant, was duly informed RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 9 of 26 regarding the said testing, however, he had failed to turn up at the lab to witness the testing and hence, the meter in question was tested in its lab by the appellant on 21.01.2011. As per observations made in the said report, according to appellant, the input phase and neutral terminal were found burnt and from the CMRI data of the meter it was found that meter RTC and MD history data were disturbed due to application of ESD/HF Coil. The appellant had relied upon the lab test report in respect of the meter in question to contend that the meter in question was found tempered, whereafter, the officials of the appellant inspected the premises of respondent on 28.04.2011 and found that the said connection was being used by the respondent for non-domestic purpose and the connected load of 6.455KW was found connected against the sanctioned load of 11KW.
23. The inspection report and the load report, according to appellant/defendant was prepared by the officials of appellant at the site, who also took photographs at the spot with digital camera and seized the meter in question from the lab, whereafter, a show cause notice was issued to the respondent to be replied by 05.05.2011 directing him to attend the personal hearing on 12.05.2011. Since, according to appellant, the respondent has refused to receive the copy of all the reports offered by the officials of appellant, the same were later on sent to the respondent by speed post and another show cause notice directing him to file reply and to attend personal hearing on 24.05.2011 was served upon the respondent. Not only, according to appellant/defendant, the respondent/plaintiff had filed a reply to the said show cause notice but he had also attended the personal hearing before the assessing officer on 24.05.2011.
RCA DJ No.56/19BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 10 of 26
24. Thereafter, according to appellant, considering all the facts and circumstances of the case, a speaking order dated 31.05.2011/02.06.2011 was passed by the assessing officer in terms of which the case of theft was established against the respondent/plaintiff and it was found that the average recorded consumption was only 29.95% of the actual consumption, which was also inconsistent in view of the fact that the recorded consumption after meter replacement has increased considerably. A theft bill of Rs. 2,22,592/-, according to appellant, was thereafter raised against the respondent, however, he has failed to pay the same and hence, according to appellant, the suit filed by the respondent was liable to be dismissed.
25. A replication to the aforesaid written statement was thereafter filed by the respondent reiterating the averments made by the him in his plaint and denying the contrary averments made by the appellant in his written statement.
26. Ld. Trial Court has thereafter settled three issues on the basis of pleadings of the parties vide order dated 04.05.2012 and adjourned the matter for PE.
27. Respondent/plaintiff has thereafter examined himself as PW1 i.e. as the sole witness in support of his case and after his cross-examination by Ld. Counsel for appellant, PE was closed and the matter was adjourned for DE. However, before any witness could be examined on behalf of the appellant, vide order dated 01.10.2018, the aforesaid suit was transferred from the Court of Ld. ASJ (Special Electricity Court) to the Court of Ld. Senior Civil Judge(Central) THC, in view of judgment of Hon'ble Supreme Court dated 04.12.2017 in civil appeal no. 20842/2017 for want of jurisdiction.
RCA DJ No.56/19BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 11 of 26
28. The appellant has thereafter examined three witnesses in support of its case. Shri R.S. Dutta, one of the officials of the appellant who was present at the time of inspection dated 28.04.2011, was examined by the appellant as DW1, whereas, assessing officer Shri Munish Nagpal was examined as DW2. Shri Prasanjit, Senior Manager of BSES Yamuna power Limited in whose presence the meter in question was tested at the lab, has been examined as DW3. The matter was thereafter adjourned for final arguments.
29. After hearing final arguments on behalf of both the parties, Ld. Trial Court, vide impugned judgment and decree dated 01.04.2019, has decreed the suit of respondent in his favour primarily on the ground that provisions of Section 52 (ix), 52(viii) and 53(ii) of Delhi Electricity Supply Code and Performance Standards Regulations, 2007 were not complied with by the officials of appellant at the time of inspection, at the time of lab test of the meter in question and at the time of passing of the speaking order. In view of the aforesaid violations, according to Ld. Trial Court, all the proceedings conducted by the appellant before raising the demand through impugned theft bill stood vitiated.
30. It was further observed by Ld. Trial Court that it was beyond its imagination as to how the electricity meter in question, which was admittedly removed from the premises of respondent on 04.10.2010, could have been inspected and the seized at the said premises on 28.04.2011. In view of the aforesaid fact coupled with the fact that the report Ex.DW-1/2 to Ex.DW-1/4 did not bear the signatures of either the respondent or any independent witness or even of all the officials of the RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 12 of 26 inspection team, Ld. Trial Court had drawn an inference that the said reports and all other documents were prepared by the officials of appellant while sitting in their office. It has further been observed by Ld. Trial Court while decreeing the suit of respondent that admittedly upon alleged refusal of receipt of the said report by the respondent, the same were not affixed at the premises of respondent nor there was any proof of dispatch of the same by the appellant to the respondent through speed post, in as much as, the original of the postal receipt Ex. DW2/2 had not been produced by the witnesses examined by the appellant.
31. So far as the lab report dated 21.01.2011 is concerned, the same has been rejected by Ld. Trial Court inter-alia on the ground that the person who had tested the meter in question was not examined by the appellant in view of categorical disposition of DW3 that he had not tested the meter in question. The Speaking Order passed by the DW2 has been rejected by Ld. Trial Court on the ground that the same does not contain brief of submissions made by the respondent in his reply to the show cause notice and also of his oral submissions as per Regulation 53(ii) of 2007 Regulations. Moreover, as per Ld. Trial Court, the Speaking order does not state the reason for acceptance or rejection of the claims of the respondent and the only observation regarding the claim/submissions of respondent, which can be found in the speaking order, is that the consumer contention is not acceptable. No specific reason for rejection of the contention of consumer were mentioned by the assessing officer in the speaking order.
32. Besides, as per Ld. Trial Court, admittedly there was nothing illegal in the connected load having been found as 6.455 RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 13 of 26 KW against a sanctioned load of 11 KW. Ld. Trial Court has referred to the cross-examination of DW1, who had conceded that the finding of connected load less than the sanctioned load can't be considered to be misuse of electricity. Ld. Trial Court has further observed that although adverse remark was made by the appellant regarding the meter in question having been found to be used for non-domestic purpose, however, DW-1, during his cross-examination has conceded that the meter in question was in fact meant for commercial use.
33. Ld. Trial Court has further noted another contradiction in the testimony of DW1 regarding alleged issuance of show cause notice by him to the respondent. It was also observed by Ld. Trial Court that all the three witnesses examined by the appellant were lacking in the knowledge with regard to the relevant facts of the case. The testimony of DW-3 has also been rejected by Ld. Trial Court additionally on the ground that although he had deposed that the meter in question was tested in his presence but the said deposition did not help the cause of appellant as he did not explain as to what had he observed in the aforesaid test. His deposition regarding the plastic seal and hologram seal on the meter in question having been found OK, according to Ld. Trial Court, probablises the plea taken by the respondent that the meter in question was not tempered with.
34. It was further held by Ld. Trial Court that the testimony of DW3 did not throw any light upon the procedure adopted by the appellant for testing the meter in question. On the basis of appreciation of entire evidence available on record, Ld. Trial Court has concluded in para no.27 of the impugned judgment that in the net result appellant had failed to probablise his case of RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 14 of 26 theft of electricity through the testimonies of its witnesses, whereas, the respondent had been able to probablise his case not only on the basis of his own testimony but also on the basis of cross-examination of the appellant's witnesses.
35. The grounds of challenge to the impugned judgment and decree dated 01.04.2019 of Ld. Trial Court have already been noted hereinabove.
36. In the light of submissions made on behalf of the parties, the point arising for determination by this Court in the present appeal is as to whether the appellant has been able to justify its demand of Rs.2,22,592/- against the respondent as per the theft bill with due date 27.06.2011 on the basis of the evidence in the form of testimonies of DW1 to DW3 coupled with the documents tendered by them in their evidence and whether Ld. Trial Court has erroneously rejected the testimonies of DW1 to DW3 and the documents tendered by them in their evidence on the basis of conjectures and surmises.
37. As has already been observed hereinabove, Ld. Trial Court has found it reasonably improbable that the inspection of meter in question was conducted by the officials of appellant at the premises of respondent on 28.04.2011 since the same had already been removed from the site on 05.10.2010(sic 04.10.2010). The aforesaid fact, coupled with the fact that most of the reports allegedly prepared by the officials of the respondent at time of inspection dated 28.04.2011 were not bearing the signatures of the respondent, Ld. Trial Court drew an inference that the said reports were prepared by the officials of appellant, while sitting in their office.
38. No doubt, while arriving at the first of the aforesaid RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 15 of 26 conclusion, Ld. Trial Court seems to have ignored the averments made by the appellant in para no.5 of its written statement that the meter in question was seized by the officials, who had inspected the premises of respondent on 28.04.2011, from the lab of the appellant and a similar deposition in para no. 3 of the evidence by way of affidavit of DW1, however, it is also significant to note that in the seizure memo dated 28.04.2011 (Ex. DW1/3) regarding seizure of the meter in question, there is no whisper about seizure of the said meter from the lab. In fact, it has been categorically stated in the said seizure memo that the meter was seized from the premises during the inspection carried out on 28.04.2011 at the said premises.
39. Be that as it may, even if it is assumed for the sake of arguments that the meter in question was seized by the inspection team from the lab of appellant on 28.04.2011, there was no occasion for appellant to obtain the signatures of the respondent on the said seizure memo and the inspection report (meter details). Moreover, if the said meter had already been seized from the premises of the respondent on 05.10.2010, at the time of replacement of the meter in question with a new meter, there was no reason for the officials of the appellant to inspect the premises of respondent to prepare a report of the connected load on 28.04.2011, since admittedly after replacement of the meter in question on 05.10.2010, the sanctioned load against the aforesaid connection was enhanced from 5 kw to 11 kw.
40. Admittedly, no report in respect of connected load was prepared at the site by the officials of appellant on 05.10.2010. In fact, the appellant has failed to examine any witness to prove the replacement of meter in question with a new meter on RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 16 of 26 05.10.2010 and seizure/sealing of the meter in question. Although in the appeal as well as the written submissions filed on behalf of the appellant, it has been alleged that seizure report dated 05.10.2010 in respect of meter in question has been filed by the respondent himself, which can be relied upon by the appellant without any formal proof of the same in view of the authoritative pronouncement of Hon'ble Delhi High Court in AIR 1984 Delhi 20, however, on a bare perusal of the trial court record reveals that no report regarding the replacement/seizure of the meter in question (or for that matter of sealing of the same) has been placed on record by the respondent and in fact, a photocopy of the same has been annexed by the appellant along with the list of documents filed on its behalf and the same was not even tendered in the evidence by any of the witnesses examined on behalf of the appellant.
41. In the absence of proof of sealing of the meter in question by the officials of appellant, at the time of replacement of meter in question on 05.10.2010, in the presence of respondent, in my considered opinion, the appellant cannot be permitted to rely upon the fact of mention of bag number and seal number in the energy meter test report Ex. DW3/2 to contend that the meter in question was in the same condition, at the time of examination of the same in the lab of defendant/appellant, in which the same was seized from the premises of respondent. In fact, there is no whisper in the entire report Ex.DW3/2 that the alleged seal of meter in question, which was placed at the time of seizure of the meter from the site on 05.10.2010, was found to be intact at the time of its examination at the lab.
42. Under the aforesaid circumstances, even if, it is assumed RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 17 of 26 for the sake of arguments that the meter was seized and sealed by the officials of the appellant from the premises of respondent on 05.10.2010 in his presence, the appellant has failed to prove that the said seal remained intact and the meter was not tampered until its examination on 21.01.2011 while it remained in the custody of appellant during 05.10.2010-21.01.2011. The aforesaid fact, coupled with the fact that no notice informing respondent about the date of examination of meter in question at the lab of the appellant/defendant has been proved by the appellant, renders the entire report Ex.DW3/2, including the observations made therein, doubtful.
43. It is no doubt true that DW-3 has tendered a copy of notice dated 05.10.2010, purportedly issued by one Sunil on behalf of appellant to the respondent informing the later about the date of testing of the removed meter in question as Ex.DW3/1, however, a bare perusal of the aforesaid document shows that the date fixed for de-sealing and inspection of the meter in question at the lab of defendant was thereby fixed as 13.10.2010 between 10.30 a.m. to 4.00 p.m., however, even as per case of the appellant, the meter in question has been tested at the defendant's lab only on 21.01.2011 and no notice of the aforesaid date had ever been served by the appellant upon the respondent.
44. Thus, in my considered opinion, whatever be the reasons given by Ld. Trial Court for rejection of the meter test report Ex.DW3/2, the said report was also liable to be rejected for the aforesaid reasons.
45. It is next contended by Ld. Counsel for the appellant that Ld. Trial Court has wrongly held that the report Ex.DW3/2 has not proved since the appellant had failed to examine any person RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 18 of 26 as a witness who had tested the aforesaid meter. While arriving at the said finding, according to him, Ld. Trial Court has ignored the testimony of DW-3 that the meter was in fact tested in his presence and it was he, who had approved the report Ex.DW3/2.
46. A bare perusal of the impugned judgment shows that although in Para 18 of the same, Ld. Trial Court has referred to the testimony of DW-3 during his cross examination that he had not tested the meter in question and had observed that the person who had tested the meter was not examined by the defendant/appellant, however, in Para 26 of the impugned judgment, Ld. Trial Court has dealt with deposition of DW-3 that the meter was tested in his presence. Ld. Trial Court has specifically observed thereafter that the aforesaid deposition did not help the cause of appellant as the witness did not explain as to what has been observed in the aforesaid test. The very admission on the part of DW-3 that the plastic seal and the hologram seal of the meter in question was found to be O.K., as per Ld. Trial Court, had probablised the fact that the meter in question was not tampered with.
47. It has further been observed by Ld. Trial Court with respect to the aforesaid statement of DW-3 that since DW-3 has failed to throw any light upon the procedure adopted by the appellant for testing the meter in question, his testimony is not sufficient to assist the case of appellant.
48. I am in complete agreement with the aforesaid reasoning given by Ld. Trial Court. In my considered opinion, in view of the observations made by Ld. Trial Court in Para 26 of the impugned judgment, it cannot be held that Ld. Trial Court has wrongly discarded testimony of DW-3 as a proof of the meter test RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 19 of 26 report dated 21.01.2011. I do not find any force in the submission made on behalf of the appellant that the document Ex.DW3/2 being a formal document expressing the expert opinion, there was no need for the appellant to prove the same, rather, the onus was upon the respondent to adduce evidence to disprove the same.
49. It is significant to note that the entire case of the appellant regarding theft/dishonest abstraction of energy by the respondent is based upon the meter test report Ex.DW3/2, which in turn is the basis for not only the speaking order Ex.DW2/4, but also, of the impugned bill and hence, in my considered opinion, it was incumbent upon the appellant to prove the same as per procedure established by law. This Court has already noted several discrepancies in the process from removal of meter from the site to preparation of meter test report, in addition to the violation noted by Ld. Trial Court of the provisions of Delhi Electricity Supply Code and Performance Standards Regulations, 2007 in the impugned judgment. The same are thus collectively sufficient to discard the aforesaid meter test report Ex.DW3/2.
50. A bare perusal of the report Ex.DW3/2 shows that no basis of the observations as well as the reasons recorded in column (h) thereof has been given in the aforesaid report. Although, it is sought to be contended by Ld. Counsel for the appellant that CMRI data down loaded from the meter in question had indicated disturbing of meter RTC and MD history data due to application of ESD/HF Coil, however, it is significant to note that the meter test report Ex.DW3/2 is not accompanied by the alleged CMRI data. Although the appellant has relied upon the CMRI data Ex.DW3/3 in support of the observation made in the RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 20 of 26 energy meter test report Ex.DW3/3, however, a bare perusal of the aforesaid document Ex.DW3/3 shows that the date and time of copying the aforesaid data as per the aforesaid document was 12.02.2011 at 2.17 p.m., whereas, the alleged lab report is dated 21.01.2011.
51. Appellant has failed to examine any expert who could have testified as to the process which was adopted by the examiner at the time of preparing the energy meter test report to arrive at the conclusion that meter RTC and MD data of the meter in question were disturbed due to application of ESD/HF Coil. It was only along with his written submissions in the present appeal that Ld. Counsel for the appellant has annexed copy of the Minutes of Meeting of the officials of appellant with representatives of SECURE, however, in my considered opinion, the said Minutes cannot be looked into by the Court in support of energy test report Ex.DW3/2, since the same were not tendered in evidence on behalf of appellant and hence, the respondent had no opportunity to cross examine the witness as to contents of the said Minutes.
52. Moreover, a bare perusal of the Annexure-1 to the aforesaid Minutes shows that the observations made therein were merely valid in respect of single phase energy meters manufactured and delivered by Genus Power to the appellant from its Jaipur and Haridwar Works, however, a bare perusal of the document Ex.DW3/3 shows that the meter in question was admittedly manufactured by Shenzhen Kaifa Technology Company Ltd. and was supplied by Pal Motor Electronics Pvt. Ltd. Since the Court has already found the meter test report Ex.DW3/2 to be deficient in proving tampering of meter by the RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 21 of 26 respondent, the speaking order Ex.DW2/4, which is based on the aforesaid meter test report, consequentially falls to the ground.
53. I am in complete agreement with the observation made by Ld. Trial Court regarding violation of Regulation 53(ii) of Delhi Electricity Supply Code and Performance Standards Regulations, 2007 by the assessing officer in passing the aforesaid speaking order. It is once again significant to note that the speaking order has been passed by DW-2 by finding the inspection report and the lab report in order on the ground that the case has been duly photographed with respect to the connected load, meter and meter position as per the circumstances. It has already been observed herein-above that the photographs of the connected load were allegedly taken by the officials of the defendant/appellant on 28.04.2011 and not on the date of actual seizure of the meter in question from the site i.e. on 05.10.2010, which aspect has been ignored by the Assessing Officer while passing the speaking order.
54. It is no doubt true that as per Clause 35(iii) of the Delhi Electricity Supply Code and Performance Standards Regulations, 2007, responsibility for keeping the meter safe lies with the consumer, however, in my considered opinion, the aforesaid Regulation would mean that in case of any external manifestation of tampering with the meter box seal etc., if the consumer does not bring the same immediately to the notice of the licensee, onus to explain the tempering is on the consumer. In the case in hand, admittedly all the seals of the meter in question were found intact at the time of alleged seizure of the same as well as during its testing in the defendant's lab and hence, the onus was not upon the respondent to prove that the RTC and MD data of the meter RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 22 of 26 in question were not disturbed, but it was for the appellant to prove that the RTC and MD Data were disturbed and also that it was disturbed due to application of ESD/HF-Coil by the respondent, more so, when the appellant has even failed to prove the observations made in the meter test report by leading any cogent evidence.
55. Since the impugned bill was solely based on the speaking order, which, in turn, had been passed while solely relying upon the inspection report, meter test lab report and assessment of the connected load as on 28.04.2011, which documents have either been held irrelevant by this Court or have been held to be not proved as per law, the impugned bill raised on the basis of the aforesaid speaking order was liable to be declared as null and void and the same has rightly been declared by Ld. Trial Court as null and void in the impugned judgment.
56. Before parting with the order, I would like to note that the judgments relied upon by the Ld. Counsel for appellant are of no assistance to the case of the appellant, who has failed to prove the dishonest abstraction of electricity by the respondent by leading any cogent evidence, since the same were rendered by Hon'ble High Court as well as by Hon'ble Supreme Court in altogether different facts and circumstances.
57. So far as the judgment of Hon'ble Delhi High Court in NDPL Vs. Bhasin Motors Pvt. Ltd. (supra) is concerned, it is worth noting that in the aforesaid case an upper seal of the meter box was found to be tampered, cover seals were found missing and cracks were found on the dial plate during inspection by the officials of NDPL in the presence of the representative of the consumer and the consumer had failed to offer any explanation RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 23 of 26 for the aforesaid discrepancies in the meter in response to show cause notice duly served upon him. It was under the aforesaid circumstances that Hon'ble Delhi High Court has arrived at a finding that the licensee had been able to prove the dishonest abstraction of electricity by the consumer in terms of Regulation 25(iii) of 2002 Regulations, which is similar to the Regulation 35(iii) of 2007 Regulations. On the other hand, in the case in hand, it has already been held that at the time of replacement of meter in question by the appellant on 05.10.2010 all the seals of the meter in question were found to be in place and no cogent evidence has been led on behalf of the appellant to prove tampering of meter by the respondent by application of ESD/HF Coil and even the connected load report was not prepared at the time of replacement of the meter and the same was prepared more than six months after replacement of meter when the sanctioned load had already been enhanced from 5 KW to 11 KW.
58. So far as the judgments of Hon'ble Supreme Court in M.S.Sheriff's case (Supra) and Prem Shanker's case (Supra) are concerned, the same, in my considered opinion, are not relevant to the facts of the present case, in as much as, Ld. Trial Court while decreeing the suit of the respondent in his favour has not relied upon the judgment passed by Ld. Special Court(Electricity), in criminal case pertaining to theft of electricity by the respondent.
59. So far as the judgment of Hon'ble Delhi High Court in Narender Aggarwal's case (Supra) is concerned, in my considered opinion, the same is also not of any assistance to the appellant, in as much as, it was categorically held by Hon'ble RCA DJ No.56/19 BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 24 of 26 Delhi High Court in the aforesaid judgment that finding of DAE in the absence of checking the meter for accuracy and in the absence of consumption pattern of the consumer cannot be considered to be correct. It was further held by Hon'ble Delhi High Court in the aforesaid judgment that recording of MDI more than once in a month by itself cannot be indicative of the meter having been tempered by application of external ESD and the same is required to be corroborated with the consumption pattern after the change of meter and the question whether recording of MDI more than once in a month by itself is indicative of tempering by application of external ESD needs to be proved by the licensee through cogent evidence.
60. In the case in hand, it has already been observed hereinabove that the appellant has neither proved the recording of MDI by the meter in question more than once in a month nor has the appellant been able to prove that RTC of the meter in question was found to be disturbed.
61. In view of the aforesaid discussion, in my considered opinion, Ld. Trial Court has rightly discarded the documents relied upon by the appellant in support of its plea of dishonest abstraction of electricity by the respondent through the meter in question and has rightly decreed the suit of the plaintiff in his favour. The present appeal is thus without any merit and is liable to be dismissed.
62. The appeal is thus dismissed and the impugned judgment dated 01.04.2019 of Ld. SCJ-cum-RC, Central District, Tis Hazari Courts in CS 2953/2018/11 is upheld. In the peculiar facts and circumstances of the present case, the parties are left to bear their own costs.
RCA DJ No.56/19BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam Judgment dated 20.05.2023 Page 25 of 26
63. Decree sheet be prepared accordingly.
Announced in the open court on this 20th day of May, 2023.
This judgment consists of 26 number of signed pages. ARUN Digitally signed
by ARUN KUMAR
KUMAR GARG
Date: 2023.05.20
GARG 16:11:53 +05'30'
(ARUN KUMAR GARG)
Additional District Judge-05,
Central District, Tis Hazari Courts, Delhi.
RCA DJ No.56/19
BSES Yamuna Power Ltd. Vs.Sh. Shehroz Alam
Judgment dated 20.05.2023 Page 26 of 26