Delhi District Court
Sh. Gurinder Singh vs Bses Rajdhani Power Ltd on 1 October, 2009
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE13: CENTRAL DISTRICT: DELHI
Suit No.113/07
Sh. Gurinder Singh,
S/o Sh. Darshan Singh,
D3/34, Mayapuri, Phase II,
New Delhi.
............Plaintiff
Versus
BSES Rajdhani Power Ltd.
Through its C.E.O.
Corporate, Legal & Enforcement Cell,
Opp. Ahuja Park, Near CPWD Office,
Behind Police Station, Andrewsganj,
New Delhi--1 10049.
.......... Defendant
Date of Institution: 12.10.2007
Arguments heard on: 24.9.2009
Date of Decision: 1.10.2009
: J U D G M E N T :
This suit for declaration, mandatory and
permanent injunction has been filed by the plaintiff
Gurinder Singh against the defendant BSES RPL. Briefly
the facts relevant to the disposal of the same are as under:
: 1 :
BRIEF FACTS:
Plaintiff's Case:
The case of the plaintiff is that he is a consumer in respect of the electricity connection bearing K. No. 2610 0B06 0010 installed in the premises bearing no. D3/34, Mayapuri, Phase II, New Delhi having a sanctioned load of 38.3 KW which is being used by him for carrying out the job work of Heat Treatment/Kneeling in the premises and the connected load of the plaintiff has always been within the sanctioned load. According to the plaintiff he has been regularly making payment of the electricity bills in respect of the meter installed in the premises. The officials of the defendant are stated to have inspected the premises of the plaintiff on 04.05.2007 and mentioned in the alleged inspection report that the connected load of the plaintiff installed in the premises is 029.092 KW. It was also mentioned in the inspection report that the meter that the meter box seals and hologram seals were found intact but the meter terminal seals, hologram seals and ultrasonic welding have been tampered. It was further alleged that the : 2 : team carried out accuracy check and found the meter to be slow by 53.67% and on segregation of the meter at site in presence of the consumer it was found that ultrasonic welding was tampered, four shunt wires were found connected between R, Y, B and N phase terminal inside the meter. Thereafter, a show cause notice was sent to which the plaintiff gave a detailed reply mentioning therein that the registered consumer of the connection in question is Shri. S.K. Anand and now the plaintiff is user and beneficiary of the connections. It was stated in the said reply that the connection was sanctioned for industrial purposes and the same was being used as such, and there was no misuse of electricity and that he never indulged in any kind of theft of electricity and consumed the same through the meter provided by the defendant. It was also mentioned that the plaintiff never tampered with the metering equipment and the meter reader had been visiting regularly and he had never pointed out any discrepancy in the meter of the metering equipment. The plaintiff has submitted in the reply that inspection was not done by any : 3 : authorized person as required by law and the team members did not show their ID cards or gave their visiting cards.
The plaintiff has further stated that the consumption pattern of the plaintiff has been uniform and therefore, it can never be a case of DAE and even the consumption pattern is required to be studied before and after inspection to arrive at any conclusion.
According to the plaintiff the meter was required to be tested at least for one hour and by following at least 1 KW which was not done and the meter was hardly checked for few seconds. It is pleaded that the inspection report was required to be prepared as per DERC guidelines and the meter was required to be checked by the Electrical Inspector as per DERC regulations, which was also not done. The plaintiff requested for supply of the photographs, CD, CMRI data and other details relied upon by the defendant to comment further in the matter. The plaintiff also made a representation dated 29.5.2007 mentioning therein that the copy of the CD and CMRI data given to the plaintiff did not disclose any tampering done : 4 : by the plaintiff and that in fact the seals on the meter box and meter were all right and were broken by the inspecting team.
The defendant had passed a Speaking Order mentioning therein that the meter No.27043911 was installed on 8.9.2004 and the meter terminal seals, meter half seals, ultrasonic welding and unidirectional screws of the meter have been found tampered an illegal shunts were found connected across R.Y.B. phase and neutral terminals causing the matter to be slow by 53.67%. It was also alleged in the speaking order that the current on the meter display was found as 25.17 Amperes on R Phase 20.66 Amp on Y phase and 20.04 Amp on B phase, whereas corresponding current on the Accucheck instrument were observed as 48.24 Amp on R Phase, 44.1 Amp on Y phase an 46.2 Amp on B phase. It was mentioned that this further corroborates with the slowness of the meter. It was alleged that out of 58 days, use of the connection has been for continuous industry for 41 days, and the consumer had observed 7 Nos. of weekly off although the same was not : 5 : on a particular day of the week and the rest 9 days working of the industry on an average has been 12.5 hours per day and therefore the plaintiff had been using the connection for continuous industry with 25 days in a month leaving apart a few days where the industry is running on an average of 12.5 hours per day. It was further alleged in the inspection report that the consumption record for the period 2.5.2006 to 29.3.2007 shows an average recorded consumption of 5017 units per month and it was stated that the assessed consumption based on continuous industry with 25 working day in a month and a tolerance of 5% in the connected load works out to 11.939 units per month and the average recorded consumption therefore, had been 50.5% of the assessed consumption. The defendant raised a bill to the tune of Rs.18,46,157/ in respect of the electricity connection mentioned above and the plaintiff was asked to pay the same by 26.9.2007, or else the defendant would disconnect the electricity of the plaintiff in respect of the electricity connection bearing K.No.26100B060010. It is alleged by the plaintiff that the defendant while preparing : 6 : the bill had wrongly and illegally taken the load of the machinery as 38.3 KW and had wrongly taken 30 working days in a month and 24 hours daily for the preparation of the bill, when according to defendants themselves, the plaintiff had been observing weekly holiday for which no adjustment has been given. It is further stated that the defendant has wrongly and illegally prepared the bill on 24 hours basis when the plaintiff has been carrying on the work only during the day hours and not out during night hours and more so as the industry of the plaintiff is not a continuous industry. It is further pleaded that as per the defendant, the plaintiff ought to have consumed 1,98,552 units for 24 hours, meaning thereby that the plaintiff ought to have consumed 8273 units per month and according to the allegations of the defendant, the plaintiff has been consuming 5017 units per month during the period 2.5.2006 to 29.3.2007. According to the plaintiff, he had made a complaint to the defendant on 30.12.2004 that the meter was not functioning properly and the meter should be checked and this complaint was made by the plaintiff in : 7 : writing. It is also stated that as per the version of the defendant itself, at the time of inspection the load of the plaintiff had been found to be 29.092 KW and if the formula for alleged dishonest abstraction of energy (DAE) is taken and the alleged load is taken as 29.092 KW and taking into consideration 10 working hours and 25 days in a month and 60 % load factor, the consumer would consume 4363 units per month and the Plaintiff has been actually consuming from 2.5.2006 to 29.3.2007, 56,399 units and the plaintiff has consumed on an average 5,127 units per month. It is further stated that as per the regulations of DERC Performance Standard Meter and Billing regulations, 2002, if the Consumer/Plaintiff' s consumption found and is not less than 75% of the said consumption where the meter is 10 years old, no further proceedings can be taken for the case of alleged DAE, and the matter would be dropped. It is pleaded that the consumption of the plaintiff clearly shows that if the bill is prepared as per the tariff and as per the Electricity Act, then no case of Dishonest Abstraction of Energy (DAE) can be made against the plaintiff and even : 8 : otherwise no case for DAE is made out against the plaintiff, since he has never indulged in any dishonest abstraction of energy and the case booked against the plaintiff is totally wrong and illegal and against the facts and even the regulations of the DERC Performance Standard Meter and Billing Regulations, 2002. According to the plaintiff the defendant has wrongly and illegally sent the huge bill to the plaintiff which he not liable to pay due to which reason he has approached this court.
Defendant's Case:
In their written statement the defendant has pleaded that an inspection of premises bearing No.D3/34, Mayapuri PhaseII, Janakpuri, New Delhi was carried out by enforcement team on 4.5.2007 where three phase whole current electronic meter bearing No. 27043911 was found installed against K. No. 26100B060010 in favour of R/C Shri. S.K. Anand. A load connected load of 29.092 LW (IX) was found connected against the load of 38.3 KW(IX).
The supply was found being used by Shri. S.K. Anand (as : 9 : stated) for industrial purpose. A load report in form of assessment of connected load vide LR No. 4678, meter report in form of inspection report (meter details) vide MR No. 1620, inspection report vide IR No. 482 dated 04/05/2007 were prepared at site. IR No. 67321 & 67322 were pasted on the tampered meter to maintain the status quo. As per the meter report dated 4.5.2007 following irregularities were found in the metering equipment:
1. Though meter box hologram & plastic seals were found intact, meter terminal seal, hologram seal, ultrasonic welding and unidirectional screws were found tampered.
2. On meter display current was observed as 25.17 amp 0r R phase, 20.68 amp on Y phase whereas corresponding actual current at the same time shown by the accucheck instrument were found 48.24 amp on R phase, 44.1 amp on Y phase and 46.2 amp on B phase respectively.
3. Meter found slow by 53.67% while standard accuracy check.
: 10 :
4. In order to ascertain the internal status of the metering equipment as well as to detect any conclusive evidence, the inspection team segregated the meter in the presence of the consumer at site and it was observed that illegal shunt wires were found connected between R, Y, B & neutral terminals inside the meter to manipulate the consumption unauthorizedly, due to which meter was slow by 53.67%. In this way the consumer had manipulated the recorded consumption of the meter.
As such the meter was found tampered.
According to the defendant, the representative of the plaintiff was present during entire process of inspection and associated with the inspection team but he refused to sign and receive the copy of inspection reports i.e. meter report, load report and inspection report after which necessary videography was done at site by M/s Arora Photo Studio.
On the basis of above irregularities in the metering equipment show cause notice dated 4.5.2007 : 11 : regarding suspected Dishonest Abstraction of Energy i.e. DAE along with inspection report were served to the plaintiff by speed post with request to attend the personal hearing on 18.5.2007 as per the tariff provision 200506 and DERC regulations. In response to the show cause notice, Shri Gurender Singh, user of the connection attended the personal hearing on 18.05.2007 before the Assessing Officer and pleaded his case in details. As per the requirement of relevant inspection record by the plaintiff, video CD and CMRI of the meter downloaded at site were handed over to the plaintiff on 23.5.2007 under proper acknowledgment and personal hearing date was again extended on 30.5.2007. Keeping in view all facts of the case, circumstances giving due consideration to outcome to personal hearing and after through analysis of the case as the plaintiff had made the meter slow by 53.67% by way of tampering in the metering equipment and conclusive evidences of theft were also detected by the inspection team at site and CMRI data downloaded on 4.5.2007 also clearly shows that the meter was not : 12 : recording actual current at R, Y and B phases. The consumption pattern based on continues industry with 25 working days in a month given a tolerance of 5% was considered which was found 50.5% of the assessed consumption which is on very much lower side. The assessing officer thus reached the conclusion that it is a clear case of DAE under regulations 25 & 26 of Metering & Billing of DERC and section 135 & 138 of the Electricity Act, 2003. After that he passed speaking order on 05/09/2007, establishing it as a case of DAE. The speaking order passed by assessing officer is in order as per tariff provision and DERC regulations. On the basis of above speaking order dated 5.9.2007 and as per the provision of tariff and DERC Regulations, AFO (Enf.) raised DAE bill for a sum of Rs.18,46,67/ with due dated 26.09.2007 and as the DAE bill raised by AFO (Enf.) is in order as per the tariff provision and DERC regulations and therefore according to the defendants the plaintiff is liable to make the payment of DAE bill.
: 13 : A preliminary objection has also been raised that the plaintiff has not approached this Court with clean hands and suppressed the material facts as such he is not entitled to the discretionary relief of declaration and equitable relief of injunction as prayed and the suit of the plaintiff is liable to be dismissed. It is further stated that admittedly the registered consumer of the connection is Shri. S.K. Anand and as per inspection report the user was also found Shri. S.K. Anand as stated and the plaintiff is having no privity of contract with the defendant and moreover the plaintiff has not disclosed his locus standi and legal right to file the present suit, as such the suit filed by the plaintiff is not maintainable and is liable to be dismissed on this ground alone.
On merits, the defendants have denied all the allegations made against them and have reaffirmed that the impugned bill is legal and the plaintiff is liable to pay the same.
: 14 : ISSUES FRAMED:
On the basis of the pleadings of the parties this court has framed the following issues:
1. Whether the plaintiff has no locus standi to file the present suit? (OPD)
2. Whether there has been an unauthorized manipulation of the consumption by the plaintiff by tampering the meter as alleged on the written statement? (OPD)
3. Whether the plaintiff is entitled to the relief of declaration and permanent injunction as asked for in the plaint? (OPP)
4. Whether the plaintiff is entitled to the relief of mandatory injunction as asked for in the plaint?
(OPP)
5. Relief.
EVIDENCE:
In order to prove his case the plaintiff Gurinder Singh has examined himself as his sole witness as PW1. He has in his examination in chief by way of affidavit : 15 : corroborated what has been earlier stated in the plaint. He has placed on record the inspection report which is Ex.PW1/1; copy of the show cause notice which is Ex.PW1/2; replies to the show cause notice which are Ex.PW1/3 & Ex.PW1/3A; the impugned bill for a sum of Rs.18,46,157/ which is Ex.PW1/4; speaking order which is Ex.PW1/4A; copy of the complaint dated 30.12.2004 which is Ex.PW1/5; copies of the bills for the period from May 2006 to March 2007 which are Ex.PW1/6 to Ex.PW1/16; the paid bills which are Ex.PW1/17 to Ex.PW1/33 (the document Ex.PW1/30 is not on record); consumption pattern chart which is Ex.PW1/34; copy of the order dated 5.10.2007 passed by the Delhi High Court which is Ex.PW1/35 and the disconnection notice which is Ex.PW1/36.
In rebuttal the defendants have examined two witnesses. DW1 Sudip Bhattacharya has in his examination in chief by way of affidavit corroborated what has been stated in the written statement. He has placed on record the : 16 : video CD of the inspection which is Ex.DW1/1; the various photographs of the inspection which is Ex.DW1/2 to Ex.DW1/10; the load survey data alongwith the tamper status report which is Ex.PW1/11; copy of the reading details for the period 2.5.2006 to 4.5.2007 which is Ex.DW1/12; consumption detail sheet for the abovesaid period which is Ex.DW1/13; copy of the speaking order which is Ex.DW1/14 (already Ex.PW1/14A) and copy of the DAE bill which is Ex.PW1/15 (already Ex.PW1/4).
DW2 Rajan Gujar is the electrician who accompanied the inspecting team and has in his examination in chief by way of affidavit corroborated the testimony of DW1. He has proved the inspection report vide I.R. No.482 which is Ex.DW2/1; load report prepared vide LR No.4678 which is Ex.DW2/2 and the MTD report vide MR No.1620 which is Ex.DW2/3. He has identified the signatures of Sh. Amit Kumar and Sh. Akshat Saxena on the aforesaid documents who according to the witness have left the services of the defendant.
: 17 : FINDINGS:
I have heard the arguments advanced before me by the counsels for both the parties and have gone through the records of the case. My findings on the various issues are as under:
Issue no.1 Whether the plaintiff has no locusstandi to file the present suit?
Issue no.2 Whether there has been an unauthorized manipulation of the consumption by the plaintiff by tampering the meter as alleged in the written statement?
Both the issues are clubbed together for the sake of convenience involving common discussion. Onus of proving both the issues was upon the defendant. In the written statement the defendant has raised a preliminary objection that the plaintiff has no locus standi to file the present suit since the registered consumer of the connection bearing K. No.26100B060010 is one Sh. S.K. Anand and during inspection of the premises bearing no. D3/34, Mayapuri, PhaseII, Janakpuri, New Delhi carried out on : 18 : 4.5.2007 a three phase whole current electronic meter bearing no.27043911 was found installed in respect of the aforesaid K No. and the supply was found to be used by S.K. Anand for industrial purposes. The plaintiff has however, denied that the supply was being used by S.K. Anand. Further, it is also the case of the defendant that during the inspection a connected load of 29.092 KW (IX) was found connected against the sanctioned load of 38.3 KW (IX). The load report in the form of assessment of connected load vide LR No.4678, meter report in the form of inspection report (meter details) vide MR no. 1620, inspection report vide IR No.482 dated 4.5.2007 were prepared at site and IR No.67321 and 67322 were pasted on the tampered meter to maintain the status quo. As per meter report dated 4.5.2007 the following irregularities were found in the metering equipment:
1. Though meter box hologram and plastic seals were found intact, meter terminal seal, hologram seal, ultrasonic welding and unidirectional screws were found tampered.
: 19 :
2. On meter display current was observed as 25.17 amp on R phase, 20.68 amp on Y phase and 20.04 amp on B phase whereas corresponding actual current at the same time shown by the accucheck instrument were found 48.24 amp on R phase, 44.1 amp on Y phase and 46.2 amp on B phase respectively.
3. Meter found slow by 53.67% while standard accuracy check.
4. In order to ascertain the internal status of the metering equipment as well as to detect any conclusive evidence the inspection team segregated the meter in the presence of the consumer at site and it was observed that illegal shunt wires were found connected between Y,R,B and neutral terminals inside the meter to manipulate the consumption unauthorizedly, due to which meter was slow by 53.67%. In this way the consumer had manipulated the recorded consumption of the meter and as such the meter was found tampered.
In order to discharge the onus upon them the : 20 : defendants have examined Sudip Bhattacharya Dy. Manager (Enforcement) as DW1 and Rajan Gujar Electrician with the Enforcement as DW2. I have gone through the testimonies of both the witnesses. DW1 Sudip Bhattacharya was not a member of the inspection team and had also not visited the site during the inspection. He had only afforded personal hearing to the plaintiff and passed the speaking order being the Assessing Officer. He has placed on record the video CD of inspection which is Ex.DW1/1; the photographs which are Ex.DW1/2 to Ex.DW1/10; the load survey data alongwith the tamper status report which is Ex.DW1/11 (collectively); copy of the reading details for the period 2.5.2006 to 4.5.2007 which is Ex.PW1/12; the consumption detail sheet for the said period which is Ex.DW1/13; copy of the speaking order dated 5.9.2007 which is Ex.DW1/14 bearing the signatures of DW1 at point A (also relied upon by the plaintiff who has exhibited the same as Ex.PW1/4A) and copy of the impugned demand for a sum of Rs.18,46,167/ : 21 : which is Ex.DW1/15. In his crossexamination the witness DW1 has stated that he has no personal knowledge of the site or of the inspection report dated 4.5.2007 and had only examined the case on the basis of the inspection report of the inspecting team being the Assessing Officer. The witness DW1 is unable to tell the name of other members of the inspection team. DW1 has testified that the meter was removed but he did not send the meter to the competent laboratory for the scientific examination of the meter since it was not his duty. According to him, Akshat Saxena has left the job but with regard to the other members he is not aware as to whether they are available or not. He has testified that he was not present at the site so he did not see the use of accua check machine personally but according to the witness he had seen the video recording showing that the accqua check machine was being used by the inspection team. According to DW1 the said video recording was recorded by M/s. Arora Photo Studio. He has denied that the CMRI data has been manipulated.
: 22 : In so far as DW2 is concerned he is an electrician and was a member of the inspecting team. DW2 is qualified till 10th and has done his ITI (Electrician). The said witness has admitted that the documents i.e. the inspection report prepared at the site which is Ex.DW2/1; assessment of the connected load vide LR no.4628 which is Ex.DW2/2 and the MTD report vide MR No.1620 which is Ex.DW3/2 do not bear his signatures. According to the witness he cannot read the said documents but can only read the names and figures mentioned on the same. According to him he was a member of the inspecting team on 4.5.2007 alongwith Sh. Akshat Saxena, Sh. Amit Kumar and one photographer whose name he does not member and another Electrician Pawan. In his crossexamination DW2 initially stated that all the seals of the meter box were in order but thereafter again volunteered that they had been fiddled with. DW2 is unable to tell what has been mentioned by the Engineer in the report. He has however, stated that the meter was opened at the site and the videography of the internal parts were done and the extra : 23 : copper wire was also videographed at the spot. According to the witness, the accuracy check was also done and the CMRI data was also downloaded and they had expand about half or quarter to half an hour at the spot. He has stated that the Sikh gentleman who is the plaintiff before this court had informed them about the name of S.K. Anand.
I have gone through the documents placed on record by the defendants which has been denied by the plaintiff who has examined himself as his sole witness. I have also gone through the photographs and the CD which is Ex.DW1/1. I so far as the first aspect with regard to the locus standi of the plaintiff is concerned, as per the provisions of Section 2 (15) of the Electricity Act the consumer would cover any person who is supplied with the electricity for his own use by a licensee of the government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and include any person whose premises are for the time being connected for : 24 : the purpose of receiving electricity with the works of a licensee, the government or such other person, as the case may be. The witnesses of the defendants have admitted that it is the plaintiff Gurinder Singh who was found at the spot during the inspection and all dealings with the department had been done by Gurinder Singh. Reply to the show cause notice was also given by Gurinder Singh who has in his testimony stated that even the payments of the electricity bills have been made by him. It was Gurinder Singh who had attended the personal hearing on the basis of the show cause notice and therefore, being the user of the electricity the plaintiff is covered within the definition of consumer as provided and is a consumer in respect of K. No.2610 0B06 0010 and therefore, he has the locus standi to file the present suit.
In so far as the second aspect regarding unauthorized manipulation of the consumption by tampering the meter is concerned, the main argument of the plaintiff is that DW1 was not present at the site and was not the member of the inspecting team and DW2 is only an : 25 : electrician and not the signatory to any of the reports, therefore, the defendants have failed to prove the said inspection and the reports in accordance with law which cannot be read into evidence. On merits the Ld. Counsel for the plaintiff has vehemently argued that the plaintiff had never indulged into dishonest abstraction of energy and his load during the inspection was found within the sanctioned limits. Ld. Counsel has placed his reliance on the following authorities:
1. MCD Vs. Ajanta Iron & Steel Co. reported in 1990 RLR SC 250.
2. Ramesh Kumar Vs. DESU reported in 1995 RLR
488.
3. Sukhbir Singh Vs. MCD reported in 1994 RLR (DB) 450.
4. M/s. Rakesh Rubber Industries Vs. MCD reported in 54 (1994) DLT 156 (DB).
5. Ram Chandra Orashad Sharma & Ors. Vs. State of Bihar & anr. reported in AIR 1967 SC 349.
6. Jagannath Singh Vs. H. Krishna Murthy & anr.
reported in AIR 1967 SC 947.
: 26 :
7. Ramesh Chander & Ors. Vs. State of Delhi & anr.
reported in 68 (1997) DLT 257.
8. Jagdish Narayan Vs. NDPL reported in 140 (2007) DLT 307.
9. J.K. Stelomelt (P) Ltd. Vs. BSES Rajdhani Power Ltd. reported in 140 (2007) DLT 563.
The Ld. Counsel appearing on behalf of the defendant on the other hand has placed his reliance on the video recording of the inspection, CD of which is placed on record and the CMRI data. I have considered the testimony of PW1. It is evident that in his crossexamination PW1 has admitted that he is doing the job work of heat treatment/ kneeling of CupCone of ball bearing for the last 34 years for which treatment he used the furnace. He further admits that at a time about small pieces of 100 and 50 big pieces can be heated in the furnace and in one day about 700800 pieces are heated and usually the furnace take 45 minutes to 150 minutes for a single operation of heat treatment of 50 100 pieces. He has further admitted that he heated about 30,000 to 40,000 pieces in a month. PW1 has also admitted : 27 : that the inspection was carried out in the premises on 4.5.2007 and also that he was present at the time of inspection. He admits that during the inspection a load of 29.092 KW was found installed but he is unable to tell whether the meter was found slow by 53.67%. He has admitted that the meter was segregated at the time of inspection and that after the inspection, paper seal was pasted on the meter to maintain status quo. The witness Gurinder Singh has admitted having received the show cause notice after which he attended the personal hearing and also the personal hearing sheet dated 18.5.2007 which is Ex.PW1/DX1 bear his signatures at point A. He has further admitted that he had received the video CD and CMRI downloaded data on 23.5.2007. The witness has also admitted that a second reply dated 29.5.2007 was given to him and also the personal hearing attended by him on 30.5.2007. The plaintiff Gurinder Singh has admitted that the Assessing Officer had played the video recording and also apprised about the tampering of the meter but according to him, he has denied the same.
: 28 : From the testimonies of the various witnesses and the material placed on record it is evident that firstly the inspection dated 4.5.2007 is admitted. Secondly the video CD of the inspection dated 4.5.2007 which is Ex.DW1/1 also showing the presence of the plaintiff and the photographs Ex.PW1/DX3 to Ex.PW1/DX17 which tally with the video recording and the remaining photographs Ex.DW1/2 to Ex.DW1/10 have been duly proved. Thirdly it is evident from the inspection report duly corroborated by the video recording that during the inspection the meter terminal seals, hologram seal, ultrasonic welding and unidirectional screws were found tampered. Fourthly the accucheck instrument was used during the inspection which aspect finds a corroboration from the video recording placed before the court showing that the display current was observed as 21.17 amp on R phase, 20.69 amp on Y phase, and 20.04 amp on B phase whereas the corresponding current shown by the accu check instrument was 48.24 amp on R phase, 44.1 amp on : 29 : Y phase and 46.2 amp on B phase and the meter was found slow by 53.67% with the help of standard accuracy check. Fifthly DW2 has proved that meter was segregated in the presence of the consumer a fact duly admitted by the plaintiff and also proved from the video recording and it was observed that illegal shunt wires were found connected between Y, R, B and neutral terminals inside the meter. Dw1 has proved that it is on account of these illegal shunt wires so connected to the R,Y,B and neutral terminal that the consumption was manipulated. Sixthly the show cause notice dated 4.5.2007 has been admitted by the plaintiff and so are the replies given by him and the aspect that he had been given a personal hearing and also provided with a copy of the CD and the CMRI data. Seventhly the CMRI data downloaded at the site has not been placed on record by the plaintiff but has been brought on record by the defendant which data is Ex.DW1/11 as downloaded in the office of the BSES copy of which the plaintiff admits he has received. I have gone through the said data and also the : 30 : load survey data alongwith tamper status report which is Ex.DW1/11 (collectively) and copy of the reading details for the period 2.5.2006 to 4.5.2007 which is Ex.DW1/2 and the consumption details of the aforesaid period which is Ex.PW1/13 and it is evident from the consumption pattern for the period 2.5.2006 to 4.5.2007 that 5017 units were being consumed per month which is approximately 50.5% of the assessed consumption which is less than 75%. The computer data which has been placed on record has gone unrebutted and uncontroverted and except for the vague suggestion to the extent that the said data has been manipulated, the plaintiff has not been able to place on record any material to prove the said manipulation. Lastly the plaintiff admits that he is the beneficiary of the connection in question. The inspection report, MTD report and the load report prepared at the site have been duly corroborated from the computer data down loaded and also the photographs and videography done at the spot which videography also shows the presence of the plaintiff at the : 31 : spot at the time of inspection and there is a presumption of its correctness. The said videography also very clearly shows the number of the connection and the meter and the details at the time of segregation and also the alleged tampering showing the illegal shunts for manipulation of the consumption.
Therefore, in view of the aforesaid I hereby hold that the defendant has been able to prove and substantiate the allegations of unauthorized manipulation of consumption by the plaintiff by way of tampering the meter. Issue no.1 is decided in favour of the plaintiff and against the defendants. Issue no.2 is decided against the plaintiff and in favour of the defendants. Issue no.3 Whether the plaintiff is entitled to the relief of declaration and permanent injunction as asked for in the plaint?
Issue no.4 Whether the plaintiff is entitled to the relief of mandatory injunction as asked for in the plaint?
Both the issues are clubbed together for the sake of convenience involving common discussion. Onus of : 32 : proving both the issues was upon the plaintiff. In view of the my detailed findings with regard to the issue no.2, I have already held that the defendant has been able to prove that the plaintiff had been indulging in unauthorized manipulation of the consumption by tampering of the meter and had been served a valid show cause notice to which he had given reply on two occasions and had also been given a detailed hearing only after which a speaking order was passed and the impugned demand was raised as per the existing tariff and DERC guidelines. In view of the above, I hereby hold that the plaintiff is not entitled to any relief of declaration, mandatory injunction and permanent injunction as asked for in the plaint. Issues are decided against the plaintiff and in favour of the defendants. Relief:
In view of my findings with regard to the various issues, I hereby hold that the plaintiff is not entitled to any relief of declaration, mandatory injunction and permanent injunction as asked for in the plaint.
: 33 : Suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 1.10.2009 Addl. District Judge: Delhi
: 34 :
Gurinder Singh Vs. BSES RPL
Suit No. 113/2007
29.9.2009
Present: Plaintiff in person.
Sh. Ashok Kumar, advocate for the defendant. Order is partly dictated but could not be completed due to lack of time. Be relisted for orders on 1.10.2009.
(Dr. Kamini Lau) ADJ: DELHI/ 29.9.2009 1.10.2009 Present: Plaintiff in person.
Sh. Ashok Kumar, advocate for the defendant. Vide my separate detailed order dictated and announced in the open court but not yet typed, the suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
(Dr. Kamini Lau) ADJ: DELHI/ 1.10.2009 : 35 :