Delhi District Court
Sh. Girdhari Lal vs North Delhi Power Limited on 21 May, 2012
IN THE COURT OF MS. RUCHI AGGARWAL:
CIVIL JUDGE, CENTRAL-02, DELHI.
UNIQUE ID NO. 0240IC0020602006
SUIT NO: 637/2006
Sh. Girdhari Lal,
A/E-102, Shalimar Bagh,
Delhi-110088. ........PLAINTIFF
VS.
North Delhi Power Limited,
Through its C.E.O.
Hudson Lines,
Kingway Camp,
Delhi. .......DEFENDANT
Date of Institution : 10.02.2004
Date of Reserving for Judgment : 15.05.2012
Date of Judgment: 21.05.2012
JUDGMENT
The plaintiff has filed the present suit for declaration and mandatory injunction against the defendants for getting the inspection report and bills declared as null and void and getting it quashed.
Plaintiff's version:-
2 The plaintiff is the registered consumer of electricity Suit No. 637/2006 Page 1 of 15 connection through K No. 504-1205930 D.L. and 504-1205949 D.L. having the sanctioned load of 11 K.W. and 4 K.W. respectively.
3 An inspection was carried out by the officers of Delhi Vidyut Board on 17.02.2001 and at the time of inspection the load was arbitrarily noted down as 31.75 K.W. and 10.96 K.W. against the sanctioned load of 11 K.W. and 1 K.W. The load of power plugs was written as 15 x 500 watts and light plugs was written as 25 x 60 watts against K.No. 1205930 and the load of power plugs against K.No. 1205949 was written as 9 x 500 watts and the load of light plugs was written as 10 x 60 watts, whereas as per the tariff these loads cannot be connected load.
Similarly, the load of A.C.s and geysers were also taken together as connected load, whereas the load of ACs and geysers cannot be taken as concurrently as per new tariff.
4 An inspection was also conducted by the Meter Testing Department of DVB on the same day and it was alleged that the seals were fictitious. These allegations are baseless as the seals were in the same condition as they were on the date of installation. Moreover, the plaintiff did not have any specimen of the seal and nor did he have any know how to satisfy itself about the genuineness of the seals fixed with the meters. The officials of the defendant did not even send the seals for Suit No. 637/2006 Page 2 of 15 examination to any independent laboratory to prove the allegations.
5 The plaintiff was not even given a show cause notice after the inspection and before raising the bills of Rs.1,06,375.30 and Rs. 33,324.05. These bills were served upon the plaintiff on 20.02.2001 at 5:30 P.M. and he was asked to make the payment within 48 hours. It also carried a threat that if the payment is not made within 48 hours, an additional 50% of the bill amount will be charged. It was also mentioned in the footnote of the provisional bill that if the payment is not made, the supply will be disconnected and FIR will be lodged. Thereafter, the plaintiff made representations to the Xen. (Enf.) North West on 27.02.2001 and also to the M.L.A. The MLA pursued the matter and got a reply from DVB stating:-
"Electricity theft cases are not booked on seal breakage alone. Seal breakage is only one of the several corroborative evidences taken together with other evidences like alteration of meter indicated accessibility of the meter dial by means of foreign object, past consumption pattern and other circumstantial evidence at site. The past consumption is a key factor. Before initiating any action a show cause notice is given to the consumer affording an opportunity for personal hearing to explain his view point and supporting documents if any during the personal hearing. All these factors are considered before giving to the conclusion of theft of electricity."
6 The only allegation in the present case was Suit No. 637/2006 Page 3 of 15 regarding fictitious seals and no foreign object or accessibility was found in the meter. Even the past consumption was not seen. No pilot meter was installed by the defendants and no consumption pattern was noted.
Defendants version:-
7 The defendant has stated in his written statement that the suit of the plaintiff is not maintainable as this Court has no jurisdiction to adjudicate upon a theft case being barred under Section 145 of Electricity Act. On merits the defendant has stated that at the time of inspection the connected load was found as 31.751 KWs against the sanctioned load of 1 KW against the connection K No. SB-504-1205930-U615-DL. It has been further stated that all the three half seals of the meter were found fictitious/both rivets were found tampered. It has been further stated that the recorded consumption was found as 785.65 UPM whereas the computed consumption on the connected load was found as 3048 UPM. The connected load was found as 10.960 KW against the sanctioned load of 1 KW vide connection K No. SB-504-1205940-U615-DL. Both the half seals of this meter were found fictitious and the recorded consumption was found as 394.69 UPM whereas computed consumption was found as 105.16 UPM.
8 It has also been stated that the show cause notices Suit No. 637/2006 Page 4 of 15 were issued by giving personal hearing on 23.03.2001 and the provisional bill was raised for an amount of Rs. 106375.30/- on 4x3 basis and Rs. 159562.95/- on 6x3 basis. On 24.02.2001 against the K No. SB-504-1205930-U615-DL and Rs.33324.05/- on 4x3 basis and Rs. 49986.08/- on 6x3 basis against the K No. SB-504-1205940-U615-DL. It has also been stated that speaking orders were passed and sent to the plaintiff on 08.06.2001.
9 Following issues were framed from the pleadings of the parties, vide order dated 03.07.2006:-
1. Whether the plaintiff is entitled for the decree of mandatory injunction as prayed for? OPP.
2 Whether the plaintiff is entitled for the decree of
declaration as prayed for? OPP.
3 Relief.
10 In order to prove his case, the plaintiff examined
himself as PW1 and reiterated the facts mentioned in the plaint.
In order to defend its case the defendant examined Sh. D.K. Gupta as DW1 and Sh. D.K. Rastogi as DW2.
11 After conclusion of trial, final arguments were addressed by the Ld. Counsels for both the parties.
12 I have carefully perused the record and given my Suit No. 637/2006 Page 5 of 15 considered thoughts to the arguments addressed by the Ld. Counsel for both the parties and my findings on various issues are as under:-
ISSUE NO. 1 & 2.
1 Whether the plaintiff is entitled for the decree of
mandatory injunction as prayed for? OPP.
2 Whether the plaintiff is entitled for the decree of
declaration as prayed for? OPP.
13 Since, both these issues are interconnected, I deem
it appropriate to decide both these issues together.
Onus to prove both these issues was on the plaintiff. Ld. Counsel for the plaintiff submitted that the defendants have not shown any tampering. The original monogram was compared with the sample monogram and the difference between the two has not been mentioned in the report of the inspection team of the defendant. The seals were not even sent to the laboratory for testing to prove the allegations of the defendant company. He further submitted that no show cause notice was issued to the plaintiff before receiving of the bill and no opportunity of personal hearing was given.
14 Ld. Counsel for the defendant submitted that the PW1 in his cross examination has admitted that the show cause Suit No. 637/2006 Page 6 of 15 notice was received and he was called for personal hearing on 23.03.2001. He further submitted that the connected load was more than the sanctioned load and if the usage is more than the sanctioned load then that is also theft. He also submitted that the seals were fictitious and the meter was tampered with, therefore, the plaintiff is liable to pay the bill amount.
15 In order to decide this issue, the following questions need to be answered :
1). Whether the principles of natural justice were adhered to?
2). Whether the allegations of the defendant can be concluded to be fraudulent abstraction of energy?
16 In order to determine if principles of natural justice were adhered to Regulations 25 and 26 of the Delhi Electricity Regulatory Commission (Performance Standards - Metering and Billing) regulations, 2002 should be seen.
17 Regulation 25 provides the procedure for booking a case of pilferage of energy. It provides that:
(i) The licensee, suo moto or on receipt of reliable information regarding commitment of any offence of theft/tampering/ dishonest abstraction of energy (DAE), shall promptly conduct inspection of consumer's premises. The inspection team shall carry a written authority signed by designated officer of the licensee.
(ii) The inspecting team shall prepare a report giving Suit No. 637/2006 Page 7 of 15 details such as connected load, condition of seals, working of meter and mention any irregularity noticed (such as artificial means adopted for dishonest abstraction of energy) as per format prescribed by the licensee.
(iii) The report shall clearly indicate whether conclusive evidence substantiating the fact that energy was being dishonestly abstracted was found or not. The details of such evidence should be recorded in the report and it should be clearly brought out whether the case is being booked for direct theft or DAE.
(iv) No case for DAE shall be booked only on account of one seal on the meter missing or tampered or breakage of glass window, etc., unless corroborated by consumption pattern of consumer as per regulation 26(ii) given below and such other evidence as may be available.
(v) In case sufficient evidence is found to establish direct theft of energy, the licensee may lodge a report with the local police along with the material evidence including wires/cables, meter, service line etc., seized from the site, which shall be handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on five times the rates as per applicable tariff. The consumer shall be required to make the payment within two working days of its proper receipt.
(vi) In case of suspected DAE, the inspection team shall not remove the tampered meter but shall disconnect it from the supply and shall restore the supply through a new meter of appropriate rating. In such cases, the licensee shall check the connected load Suit No. 637/2006 Page 8 of 15 and consumer's installation, affix a numbered Johnson's paper seal on the tampered meter and shall also record the particulars of the same in the report.
(vii) While the report must be signed by each member of the joint team and the notice, if any, must be signed by an authorized signatory of the licensee and all these must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of each must be pasted at a conspicuous place in/outside the premises.
Simultaneously, the joint report, the assessment bill and the notice shall be sent to the consumer under Registered Post.
(viii) The consumer shall be served a 3 day's show cause notice at the site as to why the case of DAE should not be booked against him/her. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
18 Regulation 26 provides for personal hearing. It provides that:
(i) Within 4 working days from the date of submission of consumer's reply, if made within prescribed period, the licensee shall arrange a personal hearing with the consumer.
(ii) Before the personal hearing, the officer of the licensee, before whom personal hearing has to be given, shall analyze the case after carefully Suit No. 637/2006 Page 9 of 15 considering all the documents, submissions by the consumer, facts on record and the consumption pattern, wherever available. The licensee shall also assess the energy consumption for past six months as per the Tariff Order. In case of suspected DAE, if consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption where meter is less than 10 years old and not less than 65% of the assessed consumption where meter is more than 10 years old, no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within 3 working days and connection shall be restored through original meter.
(iii) During the personal hearing the licensee shall give due consideration to the facts submitted by the consumer and pass, within 15 days, a speaking order as to whether the case of suspected theft/DAE is established or not. In case of the decision that the case of suspected theft/DAE is not established, no further proceedings shall be taken and connection shall be restored through original meter.
(iv) Where it is established that there is a case of DAE, the licensee [may] lodge a report with the local police along with the material evidence including wires/cables, meter, service line, etc. seized from the site, which shall be handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times the rates as per applicable tariff. The consumer shall be required to make the payment within 2 working days of its proper receipt. The licensee may, taking into consideration the financial position and other conditions of the consumer, extend the last date of Suit No. 637/2006 Page 10 of 15 payment or approve the payment to be made in Installments. The amount, the extended last date and/or time schedule of payment/installments should be clearly stated in the speaking order. A copy of the speaking order shall be handed over to the consumer under proper receipt on the same day.
19 From the perusal of the above regulations, it is clear that the inspection report signed by each member of the inspection team was required to be given to the plaintiff. The plaintiff in his cross examination has clearly deposed that no inspection was report was given to him. The defendant has also nowhere averred that the inspection report was given to the plaintiff after the completion of inspection. Moreover, DW2 in his examination in chief has stated that a provisional bill of FAE was handed over to the plaintiff. He has apparently not deposed that inspection report was handed over to the plaintiff. DW1 in his examination in chief states that inspection report was prepared and handed over to the plaintiff who refused to accept it. It is clear from the Regulations that if the plaintiff had refused to accept the inspection report, the inspection team should have pasted the inspection report on a conspicuous part of the premises. DW1 has not stated in his examination whether any such pasting was done. Therefore, this is the first violation of Regulation 25 of the 2002 Regulations.
20 Moreover, no show cause notice was given to the Suit No. 637/2006 Page 11 of 15 plaintiff before the raising of the provisional FAE bill. The defendant has clearly stated in paras 3-7 of reply on merits of its Written Statement that the bill was raised before the issuance of show cause notice. Although the Regulations do not make it clear if the show cause notice is to be issued prior to the raising of the provisional bill, but the object and spirit of the Regulations is clear on this aspect. It is crystal clear that the inspection report is to be given to the plaintiff and then the show cause notice and if the electricity department is not satisfied with the explanation and representation of the consumer then the consumer shall make the payment within the stipulated period of time. Therefore, it is natural that the bill should be raised and is payable after the plaintiff has been heard.
21 However, in the case at hand, admittedly the show cause notice was given after the raising of the provisional bill and the plaintiff, feeling harassed and threatened by the bills, immediately made the payment. Therefore, in the present case, there has been a clear violation of Regualtions 25 and 26 and the principles of natural justice.
22 Secondly, it is required to be seen if the plaintiff had fraudulently abstracted any electricity at all. For this, we need to see Regulation 2(m) that defines Dishonest Abstraction of Energy (DAE)' as "abstraction of electrical energy where Suit No. 637/2006 Page 12 of 15 accessibility to the internal mechanism of the metering equipment and some collateral evidence is found to support the conclusion that the meter has been caused to record less energy than actually passing through it. It shall also include any other means adopted by consumer to cause the meter to stop or run slow (such as reversing the polarity of one phase of poly phase meters, changes in CT or PT, etc.)."
23 Hon'ble Delhi High Court, in the case of Smt. Jagdish Narayan vs North Delhi Power Limited And Anr. 2007 (140) DLT 307, has dealt with DAE in depth. It was held in this case that an automatic presumption of DAE on the basis of the external symptoms of tampering together with the analysis of the consumption pattern would not be a safe and error free method. Some other tangible evidence must been shown to exist. An accuracy check meter can be deployed to find out if the meter is in fact recording lesser units. The analysis of the consumption pattern in terms of the Regulation 26 (ii) is merely corroborative and not by itself substantive evidence of DAE.
24 In the case at hand, only three half seals were found to be fictitious and both rivets were found to be tampered and connected load was found to exceed sanctioned load. DW1 in his cross examination has deposed that "no artificial means Suit No. 637/2006 Page 13 of 15 were found in the meter. The meter was running in the right direction and recording actual reading. No accuracy check was done by the team. There was no theft in the meter except that the seal was fictitious. It is correct that I have not mentioned in the report what was the difference between the original monogram and sample monogram. DW 2 has further deposed in his cross examination that "It is correct that we have not taken the photograph mentioned in the report... It is correct that at the time of inspection no artificial means was found to stop the moment of the meter. It is correct that the accuracy of the meter was not check. It is correct that the disc was moving in the right direction."
25 From the examination of the defendants' witnesses it is clear that the only fault that was found in the meter was that three half seals were found fictitious and both the rivets were tampered. No other supporting evidence is available that could prove that there was tampering with the meter and that the plaintiff was involved in fraudulent abstraction of energy. It has been clearly held by the Hon'ble Delhi High Court that mere tampering is not sufficient and conclusive evidence is required to prove abstraction of energy. Also, connected load exceeding sanctioned cannot be taken to be a proof that there was fraudulent distraction of energy. Therefore, in the present case, the defendants have not been able to establish fraudulent Suit No. 637/2006 Page 14 of 15 abstraction of energy. Accordingly, both the issues are decided in favour of the plaintiff and against the defendant.
Relief In view of my finding on above issues, the suit of the plaintiff is decreed and the inspection report and the bills are declared as null and void and the same are, hereby quashed. The plaintiff is also entitled to the refund of amount of Rs.1,06,375.30p. and Rs.33,324.05p. alongwith interest @ 8 % per annum from the date of deposit till its realisation. Costs of the suit are also awarded in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court (Ruchi Aggarwal) on this 21st day of May, 2012. Civil Judge, Central-02 Tis Hazari Courts,Delhi Suit No. 637/2006 Page 15 of 15 Suit No. 637/2006 21.05.2012.
Present: None.
Vide separate judgment of even date, the suit of the plaintiff is decreed and the inspection report and the bills are declared as null and void and the same are, hereby quashed. The plaintiff is also entitled to the refund of amount of Rs.1,06,375.30p. and Rs.33,324.05p. alongwith interest @ 8 % per annum from the date of deposit till its realisation. Costs of the suit are also awarded in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
(RUCHI AGGARWAL) CIVIL JUDGE, CENTRAL-02, DELHI/21.05.2012 Suit No. 637/2006 Page 16 of 15 Suit No. 637/2006 Page 17 of 15