Delhi District Court
North Delhi Power Limited vs Sh. Shyam Lal Sharma on 23 October, 2018
IN THE COURT OF SH. M. P. SINGH, ADDITIONAL
DISTRICT JUDGE03, CENTRAL, DELHI
RCA No. 40/16
New RCA No. 61695/16
North Delhi Power Limited
(through its C. E. O.)
Registered Office At Hudson Line,
Kingsway Camp, Delhi ..... Appellant
Versus
Sh. Shyam Lal Sharma,
S/o Sh. Ram Narain Sharma,
R/O C14, PhaseII, D. S. I. D. C.,
Sultanpuri, Delhi 41 ..... Respondent
Appeal instituted on 22.12.2011
Date of decision 23.10.2018
JUDGMENT
1. Defendant is in appeal before this Court against judgment and decree dt. 15.10.2011 of Ld. Civil Judge whereby suit of plaintiffrespondent stood decreed in the following terms: In view of the above discussion, the suit of the plaintiff is decreed. The impugned bill Ex. PW1/1 is declared as null and void. The defendant is directed to restore the electricity supply of the plaintiff's connection K no. RH51516926744008 installed at C14, DSIDC Shed PhaseII, Sultanpuri, New Delhi within 2 weeks from the date of the order. Any amount paid by the plaintiff in respect of the impugned bill shall be liable to be adjusted or refunded to the plaintiff. However, as the plaintiff was found using the supply for industrial purposes without a valid MCD license, the defendant is at liberty to raise a fresh bill upon the plaintiff as per law.
2. Facts, as set out in the plaint, may be taken note of.
I) Respondent was a consumer of electricity connection - K RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 1 of 14 no. RH51516926744008 and meter no. 4C880080W installed at factory premises no. C14, DSIDC Shed, PhaseII, Sultanpuri, Delhi. The said meter had a sanctioned load of 7.5 HP. Respondent had been paying bills qua this meter regularly. Under a voluntary disclosure scheme, on 28.12.1995 respondent got enhanced the sanctioned load from 7.5 HP to 22.5 HP on payment of money. Respondent then submitted a test report dt. 22.12.1995 (Mark A). Vide letter no. A.E. (Zone) dt. 03.06.1997 (Mark B) it was directed that a CT meter shall be installed of adequate capacity of 22.5 HP instead of 7.5 HP. Notwithstanding this, concerned authorities allegedly installed no CT meter. Respondent continued to pay electricity dues on the basis of load being 22.5 HP, though actual connected load was lesser than 22.5 HP i.e. 15 HP.
II) On 04.8.1999, certain officials of Delhi Vidyut Board (DVB) raided respondent's factory premises and reported the connected load to be 28.80 KW i.e. 42 HP against the existing load which was follows: (a) One grinder - 5 HP,
(b) One blowing excluder (mixer) - 8 HP, (c) One water pump - 1 HP, (d) One compressor - 1 HP. (Total - 15 HP).
III) During the course of raid, DVB's officials also allegedly removed a wire/phase from the meter, rendering it useless. In this manner, respondent's electricity connection got snapped sans there being an official RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 2 of 14 disconnection. Respondent then received a show cause notice dt. 01.9.1999 (Ex. DW2/2), to which he responded vide his reply dt. 15.09.1999 (Mark D). In the show cause notice, DVB alleged that respondent's meter's seals were fictitious and threatened to disconnect the electricity and raise bill of hefty amount.
IV) Respondent avers that he committed no offence; that he did not put any fictitious seal; that DVB paid no heed to his reply dt. 15.09.1999 (Mark D); that he was never given any hearing; and that his factory premises was not re inspected to verify the connected load.
V) During pendency of the suit before Ld. Trial Court, on 01.06.2000 Ld. Civil Judge passed the following order, "Plaintiff says that he is being billed of 28.8 KW instead of 22.5 HP and reinspection has not been done by the DVB despite the fact that the plaintiff has applied for re inspection and the third phase of the meter is not working which has rendered plaintiff into trouble since he is not in a position to work or utilise the electricity. Considering the submissions of the parties, DVB is directed to conduct re inspection within a month from today and is further directed to either start the third phase so as to enable the plaintiff to use the electricity supply or install a new meter leaving the one which is already there and it is subject to the condition that plaintiff clears the dues as on date within a week from today and complies the formalities, if RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 3 of 14 any, in this regard. The DVB shall in turn comply the order within a week thereafter. Application stands disposed of accordingly. Adjourned to 20.09.00 for WS/reply. Attested copy be given dasti to parties for compliance." In compliance with this order, on 04.06.2000 respondent deposited Rs. 13,490/ (bill Ex. PW1/7) as the amount of formalities and the outstanding dues qua the meter for the period till 01.06.2000. Respondent's factory premises was inspected on 14.06.2000 and a CT meter of 22.5 HP was installed and on reinspection connected load was found to be 23.5 HP.
VI) A bill of Rs. 1,05,280/ (Ex. PW1/8) was then raised.
Appellant did not accept the charges for actual consumption as shown in CT meter that was installed on 14.06.2000. Respondent gave representation (Ex. PW1/9) for corrections in the bill, but in vain. Appellant sent the last bill of billing month July 2001 for Rs. 2,06,250/ (Ex. PW1/11) for the period from 04.05.2001 to 09.07.2001 showing consumption of 1250 units with due date of 28.07.2001, but since the next date of hearing before Ld. Trial Court was 27.07.2001, appellant disconnected the electricity on 25.07.2001 itself to make the suit infructous.
VII) During pendency of the suit, respondent's factory premises was again reinspected on 27.02.2001. Connected load was found to be 22.5 HP, i.e. sanctioned load. Respondent avers that appellant is liable to restore RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 4 of 14 the electricity connection and also liable to refund the excess of charges paid on the basis of connected load of 28.80 KW i.e. 42 HP and also the damages suffered by him. On these averments respondent sought the following reliefs in the suit: (a) Declaration that appellant's act in not accepting the actual bill as shown in CT meter and raising the illegal bill of Rs. 2,06,250/ and the act of electricity disconnection on 25.07.2001 is illegal and the bill of Rs. 2,06,250/ except the actual consumption shown in the CT meter is unenforceable, and (b) Mandatory Injunction to the appellant to immediately restore the electricity, withdraw the bill of illegal amount more than the amount shown in CT meter reading, to refund the amount received in excess on the basis of connected load of 28.87 KW i.e. 42 HP and to withdraw all LPSCs and other charges in the bill of July 2001.
3. DVB in its written statement averred that during a joint inspection on 04.08.1999 in presence of plaintiff's representatives connected load was found to be 28.807 KW with no shunt capacitor; that there was misuse of supply; that respondent showed no valid MCD license; that MTD and meter's seals were found fictitious; that half seals of poly phase meter was found fictitious; that an analysis of consumption pattern showed that respondent was indulging in FAE as his average recorded consumption was 931 units against computed consumption of 3132.05 units per month; that accordingly 24 RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 5 of 14 hours show cause notice for theft and another show cause notice for misuse and low power factor was sent to respondent with advisory to attend personal hearing on 15.09.1999; that based on the outcome of the show cause notice and personal hearing accorded to the respondent competent authority granted approval for taking action as per rules; that accordingly an assessment bill of Rs. 2,36,132.64/ on 4x3 basis and thereafter of Rs. 3,54,198.96/ on 6x3 basis was raised with due date as 21.07.2000; that respondent's unauthorised and illegal acts and omissions amounted to breach of agreement and contravention of provisions of Indian Electricity Act, 1910; that meter was replaced on 14.06.2000 and all 3 phases were made functional; and that the site was reinspected on 20.06.2000 in compliance with court order wherein supply was maintained through new meter and old meter was kept at site as evidence. Denying other averments, appellant sought dismissal of the suit.
4. Ld. Trial Court framed following issues:
1. Whether the Plaintiff is entitled to the relief of declaration as prayed for? OPP
2. Whether the Plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP
3. Relief
5. Respondent/plaintiff (PW1) was his sole witness. In defendant's evidence, two witnesses, namely M.K. Kochhar (DW1) and G.S. Kale (DW2) were examined.
6. Arguments heard. Record perused.
RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 6 of 147. Ld. Trial Court placing reliance on judgments reported as (1) Col. R.K. Nayar v. BSES RPL, 140 (2007) DLT 257, (2) Harvinder Motors v. BSES Rajdhani Power Ltd., 135 (2006) DLT 198, (3) Udham Singh v. BRPL, 136 (2007) DLT 500, (4) Jagdish Narayan v. NDPL, 140 (2007) DLT 307, (5) Bhasin Motors (I) P. Ltd. v. NDPL, 142 (2007) DLT 116, (6) J.K. Steelomelt (P) Ltd. v. BSES Rajdhani Power Ltd., MANU/DE/7684/2007, (7) Jagannath Singh v. Ramaswamy, (1966) 1 SCR 683, and (8) Ram Chandra v. State of Bihar, 1967 CrLJ 409 observed, "A collective reading of the above cases implies that to make out a case of FAE, it must be shown that there was any artificial means employed by the plaintiff to manipulate the meter and that the manipulation was done with an intention to commit theft. In the present case no artificial means were found to have been employed by the plaintiff. The defendant also could not show that the plaintiff had intention to commit FAE. In these circumstances, it cannot be said that the plaintiff was indulged in FAE." These observations of Ld. Trial Court cannot be sustained. The decision of Bhasin Motors (I) P. Ltd. v. NDPL (supra), which Ld. Trial Court placed reliance upon, was that of a Single Judge of Hon'ble Delhi High Court and which judgment has since been reversed in Letters Patent Appeal (LPA) by a Division Bench of Hon'ble Delhi High Court in NDPL v. Bhasin Motors Pvt. Ltd., 199 (2013) DLT 35 (DB). In NDPL v. Bhasin Motors Pvt. Ltd. (supra) Division Bench of Hon'ble Delhi High Court observed: RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 7 of 14 "6. The seal of a meter can be tampered with only by intervention of a human being and not otherwise. Similarly, the seals cannot go missing of their own and are necessarily removed by a human being. Likewise, there can be no scratches on the dial unless an attempt is made to interfere with the functioning of the meter. Since as per SubRegulation 17(iv) the responsibility of keeping the meter under safe custody lie with the consumer and as per Regulation (vii) during any inspection or on consumer complaint or suo moto, the licensee is required to ensure that the meter is not tampered/bypassed, it was for the respondent to explain how the meter box seal got tampered, cover seal went missing and scratches came on the dial plate.
7. In our view, if the seals and/or meter are found tampered and no plausible explanation for such an act is forthcoming from the consumer, that would be sufficient evidence to conclude dishonest abstraction of energy by the consumer in terms of Regulation 25(iii), provided tampering with the meter and/or seal is detected in the presence of the consumer or his representative and the details thereof are recorded in the report prepared at the spot in the presence of the consumer or his representative as the case may be.
8. In view of the provisions contained in Regulation 17(iv), even after conclusive evidence substantiating DAE in terms of Regulation 17(iii) is found, no case can be booked only on the ground of one seal on the meter missing or tampered or brokage of glass window unless it is corroborated by the consumption pattern of the consumer in terms of Regulation 26(ii). During the course of hearing, in terms of Section 26(ii), it is upon the consumer to satisfy the officer of the licensee, on the basis of the record available with him, that his actual consumption could not have been more than what was recorded by the meter. ....
9. The learned Single Judge held that LDHF Formula cannot be applied without first establishing that there was a DAE because the formula is meant only to RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 8 of 14 determine the quantum of penalty which is required to be levied in terms of Regulation 26(ii). In our opinion, the tampering of the seals and/or the meter by itself would be conclusive evidence substantiating unlawful abstraction of energy in a case where no acceptable explanation is given by the consumer for the seals and/or the meter having been found tampered with. Taking any other view would make it extremely difficult to establish unlawful abstraction of energy by dishonest consumers.
During the course of arguments, we specifically asked the learned counsel for the appellant as to how unlawful abstraction of energy was possible in a case of this nature and he explained that if the seals are tampered in the manner found in this case, it is possible for the consumer to temporarily stop running of the meter so as to avoid recording of consumption of electricity, during the period the meter does not run. According to the learned counsel, the consumer can, as and when he so desires, resume running of meter so that at the time of inspection by the officials of the licensee, the meter is found running. We, therefore, need to take interpretation which would discourage such dishonest practices on the part of unscrupulous consumers of electricity.
10. Reliance by learned Single Judge on the decision of the Supreme Court in Jagannath Singh @ Jainath Singh Vs. B.S. Ramaswamy & Anr. (1966) 1 SCR
885), is misplaced since that was a case of prosecution under Section 39 and 44 of Indian Electricity Act, 1910 whereas the case before us is a civil case, challenging the demand raised by the licensee on account of dishonest abstraction of energy. The standard of proof required in a criminal trial is proof beyond reasonable doubt, whereas the standard of proof required in a civil action is preponderance of probabilities."
8. In view of the aforesaid decision of Division Bench of Hon'ble Delhi High Court in NDPL v. Bhasin Motors Pvt.
RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 9 of 14Ltd. (supra) all the Single Bench judgments of Hon'ble Delhi High Court to the contrary, as mentioned by Ld. Trial Court in the impugned judgment, have to be taken to be no longer binding. It is pertinent to mention here that all the judgments of Hon'ble Delhi High Court that Ld. Trial Court relied upon were that of Single Benches. That apart, the Division Bench of Hon'ble Delhi High Court in NDPL v. Bhasin Motors Pvt.
Ltd. (supra) distinguished the Apex Court decision of Jagannath Singh (supra) which Ld. Trial Court had relied upon in the impugned judgment. Likewise, Apex Court decision in Ram Chandra (supra) too can be distinguished on exactly similar basis. Therefore, the very basis of law on which Ld. Trial Court proceeded is no longer sustainable.
9. DW1 and DW2 at the relevant time when the raid / inspection was carried out in respondent's factory premises were employed with DVB. DW1 in his evidence by way of affidavit deposed that he was a part of the joint team that had carried out the raid/ inspection at respondent's factory premises. He further deposed that during the course of the raid / inspection the actual connected load was found to be 28.807 KW against the sanctioned load of 7.5 HP; that shunt capacitor was not found installed; that respondent's representative could not furnish any MCD license; that electric supply was found to be being misused; and that half seal of the meter was found fictitious; that load and MTD reports (Ex.DW1/1 and Ex.DW1/2 respectively) were prepared at the site in presence of RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 10 of 14 respondent's representative who refused to sign on the inspection report. This witness was crossexamined, but nothing came in his crossexamination to doubt the veracity of his deposition. Respondent (PW1) in his crossexamination admits that his premises had been inspected on 04.08.1999, albeit in his absence. The evidence of DW1 proves that the actual connected load was 28.807 KW. It further proves that half seal of the meter was found fictitious with there being no shunt capacitor and the factory premises was being run without a valid MCD license and that there was misuse of electricity. Half seal of the meter being fictitious would, under the extant law, suffice to establish that there was dishonest abstraction of energy as held in NDPL vs. Bhasin Motors Pvt. Ltd. (supra).
As already observed, for this there is no requirement to prove that any artificial means was used by the consumer (respondent). This aspect of dishonest abstraction of energy finds corroboration from the consumption pattern of the consumer (respondent). DW2 in his evidence deposed that after considering respondent's representation (Mark D) he analysed the consumption pattern and it was found that the recorded consumption was only 931 units per month compared to the computed consumption of 3121 units per month. Relevant would it be to note here that DW2 was not cross examined as respondent's right to crossexamine him stood closed by order dated 09.05.2011 of Ld. Trial Court. These two circumstances corroborate each other and in terms of the ratio RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 11 of 14 decidendi of NDPL vs. Bhasin Motors Pvt. Ltd. (supra) dishonest abstraction of energy by the consumer (respondent) stands established. That apart, even the respondent (PW1) in his crossexamination conceded that as on the date of the inspection / raid, he did not have a valid MCD license. Given this, usage of electricity without a valid MCD license in the factory premises would be a case of misuse of electricity. The copy of the tariff of 1997 - 1998 of DVB would show in clause 8 thereof that use of industrial load without a license was considered as violative of Tariff and Conditions of Supply and was liable to be build at higher rates. Next, the evidence of DW 1 establishes that the actual load was 28.807 KW. Respondent (PW1) asserts that he had got enhanced the connected load from 7.5 HP to 22.5 HP way back in 1995. But, the fact of the matter is that the actual load that was found during the course of inspection / raid on 04.08.1999 was 28.807 KW and which was way beyond and above 22.5 HP. The fact that respondent had got enhanced the load to 22.5 HP does not in any manner explain the actual load of 28.807 KW that was found during the raid / inspection on 04.08.1999. Further, respondent (PW1) also admits in his crossexamination that shunt capacitor was not installed. The copy of the tariff of 1997 - 1998 of DVB would show in clause 10 thereof that noninstallation of shunt capacitor entailed as surcharge. Therefore, the crux of the matter is that the very case which the respondent - plaintiff had set up before Ld. Trial Court was contrary to the evidence that came forth on record.
RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 12 of 1410. DW2 G.S. Kale was posted as A.E. (Enf.) at the relevant time. DW2 deposed that on the basis of the inspection report dated 04.08.1999, he gave a show cause notice dated 01.09.1999 (Ex.DW2/2) and gave an opportunity of personal hearing to the consumer (respondent) on 08.09.1999; that he also issued 24 hours show cause notice (Ex. DW2/1) for the said date i.e. 08.09.1999; that in response thereto, the consumer (respondent) submitted his representation dated 15.09.1999 (Mark D); that after considering the representation he analysed the consumption pattern and it was found that the recorded consumption was only 931 units per month compared to the computed consumption of 3121 units per month and moreover the meter half seals were found fictitious; that he then sent the case for raising of assessment bill, disconnection of supply and for registration of FIR, if the consumer failed to make payment of the theft bill. It bears repetition to state that DW2 was not crossexamined as respondent's right to crossexamine him stood closed by order dated 09.05.2011 of Ld. Trial Court. It is pertinent to mention here that respondent (PW1) in his cross examination, stated, "It is correct that I received the show cause notice with advise to attend the personal hearing on dated 15.9.99....... I attended the personal hearing on dated 15.9.99. I also submitted the reply to the show cause notice but I have not brought the copy of the reply of the notice." It is thus manifest that the respondent was given opportunity of personal hearing and which he in fact attended and also gave his reply / RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 13 of 14 representation (Mark D). The deposition of DW2 thus remained unrebutted and unchallenged. Not only this, this also finds support from the crossexamination of respondent (PW1) as noted hereinabove.
11. Further, as rightly pointed out by Ld. Counsel for the appellant, the respondent - plaintiff has not challenged the theft bill(s). He has only challenged the bill of regular consumption of Rs. 2,06,250/ (Ex.PW1/11).
12. To sum up, the very basis on which the respondent - plaintiff brought the suit stands not proved. The facts set up in the suit stand disproved by the evidence brought on record.
13. Conclusion : In view of the discussion hereinabove, this appeal stands allowed. Judgment and decree dated 15.10.2011 of Ld. Trial Court stands reversed. Suit of plaintiff - respondent stands dismissed. Parties are left to bear their own costs. Decree sheet be drawn up. Trial Court Record (TCR) be sent back to the court below with copy of this judgment. Appeal file be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN MURARI Digitally signed by MURARI COURT ON 23.10.2018 PRASAD PRASAD SINGH Date: SINGH 2018.10.23 16:07:47 +0530 (M. P. SINGH) ADJ03 (CENTRAL) TIS HAZARI COURTS: DELHI/23.10.2018 RCA No. 40/16 New RCA No. 61695/16 NDPL Vs. Shyam Lal Sharma Page 14 of 14