Delhi District Court
Sh. R.K. Goel vs Delhi Vidyut Board on 24 July, 2013
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IN THE COURT OF MS. SHIVANI CHAUHAN; CIVIL JUDGE;
CENTRAL04,TIS HAZARI COURTS, DELHI
Suit No. 122/13
UID No. 02401C0413032002
Date of institution: 29.05.2001
Date of pronouncement of the judgment: 24.07.2013
Sh. R.K. Goel,
S/o late Sh. Dharam Bhushan Goel,
R/o H. No.23/4776, Ansari Road,
Daryaganj, New Delhi110002 ....PLAINTIFF
Versus
1. Delhi Vidyut Board,
Through its General Manager,
Shakti Sadan, Nehru Place,
New Delhi
(Now BSES Yamuna Power Ltd.)
2. The Assistant Engineer (P.S.)
Darya Ganj Circle,
Delhi Vidyut Board, Darya Ganj,
New Delhi110002.
3. The Executive Engineer (M.T.D.)
Delhi Vidyut Board, Shankar Road,
New Delhi.
Suit No. 122/13 Page 1 of 30
R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013
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4. The Executive Engineer (Enf.)
Delhi Vidyut Boards, Shankar Road,
New Delhi.
5. The Zonal Engineer, D.V.B.
Darya Ganj Circle, New Delhi110002. ....DEFENDANTS
SUIT FOR DECLARATION & PERMANENT INJUNCTION
JUDGMENT
1. The plaintiff has filed the present suit for declaration that the demand notes/provisional bills as alleged in the plaint be as null and void and that the defendant board, their associates, agents, and/or employees from recovering the amount mentioned in their impugned demand notes/provisional bills dated 24.05.2001 and disconnecting the electricity connection of the Plaintiff's premises bearing house No.23/4776, Ansari Road, Darya Ganj, New Delhi110002.
2. The case of the plaintiffs is that he is residing with his family at House No.23/4776, Darya Ganj, New Delhi110002 and the said premises is situated within old city of Delhi and first floor of the premises is occupied and the entire building is built on an area of 200 square yards.
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3. It has been averred on behalf of the Plaintiff that three electricity meters bearing K No.0093966, K. No.2143291 and K. No.2274914 have been installed in his premises and he is regularly paying the said electricity bills. It has been further averred on behalf of the Plaintiff that during the period 25.01.2001 to 28.03.2001, he has paid a sum of Rs.4,720/ with regard to the above mentioned bills.
4. It has been further averred on behalf of the Plaintiff that he has paid a sum of Rs.1,400/ towards the electricity bills, even for those floors, which are not even in use or are very often used and that shows the fastrunning of the meters. It has been further averred on behalf of the Plaintiff that the premises are being used only for residential purposes and there are no machines or heavy commercial/industrial instruments which consume large volume/quantity of electricity installed in his premises.
5. It has been further averred on behalf of the Plaintiff that sometimes in the year 2000, some officials of the Defendant board visited the premises of the Plaintiff and inspected the meters installed at the premises of the Plaintiff after breaking open the old seals and found them in order and resealed the said meters, however, his Suit No. 122/13 Page 3 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 4 complaint regarding fast running of the meter was not attended to by the Defendant board and he is paying the bills regularly for the readings mentioned in the meters. It has been further averred on behalf of the Plaintiff that he submitted an ApplicationcumAgreement along with the documents viz. Indemnity bond, affidavit of dues undertaking, affidavit regarding the domestic use of the electricity load, inspection note by the government, registered licensed contractor and engineer and the copy of the last paid bill etc. to the Defendant authorities regarding the present load in the premises in the month of April, 2001 and also made an application requesting them to increase the sanctioned load upto 10 K.W. in the premises. The Plaintiff further requested for installation of another new meter of 3 K.W. load in view of the electrical instruments/gadgets installed in his premises.
6. It has been further averred on behalf of the Plaintiff that on 24.05.2011, some officials of the Vigilance Department of the Defendant board conducted a raid at the premises of the Plaintiff in the garb of routine checking. It has been further averred on behalf of the Plaintiff that in the said inspection report, the joint inspection team failed to differentiate between the actual connected load and the cosmetic connected load and allegations of installation of electrical Suit No. 122/13 Page 4 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 5 gadgets i.e. A.C., geyser etc. above the sanctioned load besides the allegations of meters installed not being as per the specification of the Delhi Vidyut Board were leveled against the Plaintiff.
7. It has been further averred on behalf of the Plaintiff that on the basis of the inspection note, three demand notes (provisional bills) with arbitrary penalty were prepared and he was asked to make payment of those demand notes which stood at Rs.81,059/ by the due date i.e. 31.05.2001 and in case of failure in paying the amount by due date, and additional amount of Rs.40,530/ was also to be paid by the Plaintiff. It has been averred by the Plaintiff that this action of the Defendant amounts to pressuring the Plaintiff and is a coercive method.
8. It has been averred on behalf of the Plaintiff that he has already been paying the excessive amount of electricity bills as the meters were running fast and this fact has already been brought to the notice of the Defendant board but nothing has been done till date to rectify the meters. It has been further averred on behalf of the Plaintiff that the aforesaid demand/provisional bills raised by the Defendant board are arbitrary, unjustified and the Defendant board is not entitled to realize Suit No. 122/13 Page 5 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 6 any amount from him. Hence the present suit has been filed with following prayers: "a) Pass a decree for permanent injunction restraining the Defendant board, their associates, agents, and/or employees from recovering the amount mentioned in their impugned demand notes/provisional bills dated 24.05.2001.
b) Pass a decree of permanent injunction directing the Defendants, its agents, associates and/or employees not to disconnect the electricity connection of the Plaintiff's premises bearing house No.23/4776, Ansari Road, Darya Ganj, New Delhi110002.
b1) Declare the alleged demand notes/provisional bills as alleged in the plaint be as null and void;
c) Award the cost of the suit in his favour and against the Defendants."
9. WS has been filed on behalf of defendant wherein the defendant has taken the preliminary objection that initially, the Plaintiff has filed a suit for injunction simplicitor and moved an application for seeking the relief of declaration only in November, 2006, as such, the relief of declaration as sought for by the Plaintiff has become time barred. It has been further submitted on behalf of the Defendant that provisional FAE bills were raised in the name of Sh. Amir Singh, Smt. Kalawati Devii and Sh. Dharam Bhushan Gupta who are the registered consumer of the respective connections with whom the erstwhile Delhi Suit No. 122/13 Page 6 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 7 Vidyut Board/answering Defendant has privity of contract as such, the Plaintiff has no locus to file and challenge the FAE bills.
10. It has been submitted on behalf of the Defendant that the Plaintiff was involved in theft of electricity and the theft bills are raised in the name of respective registered consumer. It has been specifically denied by the Defendant that its officials have visited the premises for descaling the seals. The Defendant has submitted that these might be some private persons called by the Plaintiff himself for tampering with the meters. The Defendant has submitted that an inspection in the subject premises was carried out on 24.05.2001 and the load report dated 24.05.2001 was prepared vide proforma No.4436. As per load report, following were observed:
1. K.No: DG000/2143291/X411/DL Registered Consumer: Kalawati Devi User : R.K Goel Connected Load: 8.251 KW Sanctioned load :1 KW
2. K. No:DG000/2274914/X411/DL Registered Consumer: Amir Singh C/o Amir Book Depot Connected load: 0.909 KW Suit No. 122/13 Page 7 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 8 Sanctioned Load: 1 KW
3. K.No:DG000/0093966/X411/DL Registered Consumer: Dharm Bhushan User : R.K Goel Connected Load: 17.435 KW Sanctioned load: 1 KW
11. It has been further submitted on behalf of the Defendant that the MTD report was prepared vide performa No.146/21805 dated 24.05.2001 and as per the said report, following were observed:
1. K.NO.DG000/2143291/X411/DL Meter half seals found fictitious
2. K.NO.DG000/2274914/X411/DL Meter half seals found fictitious
3. K.NO.DG00/0093966/X411/DL Meter half seals found fictitious
12. It has been further submitted on behalf of the Defendant that provisional FAE bill No.10765 amounting to Rs.23,812/ (4 X 3) and Rs.38,718/ (6 X 3) against K. No.2143291, FAE bill No.10766 Suit No. 122/13 Page 8 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 9 amounting to Rs.1,172/ (4 X 3) and Rs.1,758/ (6 X 3) against K. No.2274914 and FAE bill No.10767 amounting to Rs.56,075/ (4 X 3) and Rs.84,113/ (6 X 3) against K No.0093966 issued to the Plaintiff for payment.
13. It has been further submitted on behalf of the Defendant that 24 hour show cause notice vide letter dated 29.05.2001 was served to the Plaintiff for personal hearing but no one appeared or no reply has been received so far. The Defendant has submitted that Plaintiff is not entitled for the relief of declaration which has become time barred by limitation and prayed that the suit may be dismissed with special cost.
14. Replication was filed by the plaintiff wherein she has denied the allegations of the defendants and reaffirmed the averments made in the plaint.
15. On the basis of the pleadings of the parties, following issues were framed by the court of ld. Predecessor on 28.08.2002 and one additional issue (1A) was framed on 13.02.2009: (1) Whether Plaintiff is entitled to decree of permanent injunction as prayed for? OPP Suit No. 122/13 Page 9 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 10 (1A) Whether the Plaintiff is entitled to decree of declaration as prayed for? OPP (2) Relief
16. In support of his case, the plaintiff Sh. R.K. Goel examined himself as PW1. PW1 relied upon documents Ex. PW1/1 to Ex. PW1/38.
Ex. PW1/1 is the copy of electricity bill dated 28.03.2001 issued in the name of Sh. Amir Singh Ex. PW1/2 is the copy of electricity bill dated 25.01.2001 issued in the name of Sh. Dharam Bhushan Gupta Ex. PW1/3 is the copy of the bill dated 28.03.2001 issued in the name of Smt. Kalawati Devi Ex. PW1/4 is the copy of application for change of name and load of additional in electric K.No.0093966X411DL Ex. PW1/5 is the application form and Iqrarnama Ex. PW1/6 is the indemnity bond Ex. PW1/7 is the Dues undertaking Ex. PW1/8 is the affidavit Ex. PW1/9 is the inspection notice Ex. PW1/10 is the electricity bill dated 29.07.2000 issued in the name of Sh. Dharam Bhushan Gupta Suit No. 122/13 Page 10 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 11 Ex. PW1/11 is the form for domestic/nondomestic service connection Ex. PW1/12 is the copy of application for change of name and load of additional in K.No. 2143291X411DL Ex. PW1/13 is the application for additional load against K. No.2143291 Book No.X411 (DL) Ex. PW1/14 is the application form and Iqraarnama Ex. PW1/15 is indemnity bond Ex. PW1/16 is dues undertaking Ex. PW1/17 is affidavit of Sh. Dharam Bhushan Gupta Ex. PW1/18 is the inspection notice Ex. PW1/19 is the copy of electricity bill dated 29.07.2000 issued in the name of Kalawati Devi Ex. PW1/20 is the application form signed by Plaintiff. Ex. PW1/21 is the letter dated 20.04.2011 addressed to AE, P.S., Ex. PW1/22 is the application form and Iqraarnama Ex. PW1/23 is the indemnity board of the Plaintiff Ex. PW1/24 is the dues undertaking given by the Plaintiff Ex. PW1/25 is the affidavit of Plaintiff Ex. PW1/26 is the inspection notice in respect of Plaintiff Ex. PW1/27 is the application form signed by Plaintiff Suit No. 122/13 Page 11 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 12 Ex. PW1/28 is the letter addressed to Plaintiff by the Defendant Ex. PW1/29 is the bill dated 27.04.2001 Ex. PW1/30 is the receipt dated 25.05.2001 Ex. PW1/31 to Ex. PW1/33 are the inspection notice in respect of Plaintiff Ex. PW1/34 is the inspection record.
Ex. PW1/35 is the record of inspection Ex. PW1/36 is the electricity bill in the name of Sh. Amir Singh Ex. PW1/37 is the electricity bill in the name of Smt. Kalawati Devi Ex. PW1/38 is the electricity bill in the name of Sh. Dharam Bhuhsan Gupta
17. PW1 was duly crossexamined by Ld. counsel for the defendant.
18. In its defence, the Defendant examined Sh. H. C. Batra, DGM, BSES Rajdhani Power Ltd as DW1. DW1 led his evidence by way of affidavit Ex. DW1/AA and relied upon documents viz. Ex. DW2/1 to Ex. DW2/4, Ex. DW/6 to Ex. DW2/8.
Ex. DW2/1 is the record of inspection dated 24.05.2001 Ex. DW2/ 2 to Ex. DW2/4 are the copies of show cause notice Suit No. 122/13 Page 12 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 13 Ex. DW2/6 to Ex. DW2/8 are the copies of the bills
19. DW1 was duly crossexamined by Ld. counsel for the Plaintiff.
20. I have heard the Ld. Counsel for both the parties and perused the material available on record carefully. My issuewise findings are as under: Issue no 1: Whether Plaintiff is entitled to decree of permanent injunction as prayed for? OPP Issue no 1A: Whether the Plaintiff is entitled to decree of declaration as prayed for? OPP
21. Both these issues involve a similar discussion of law and facts, hence, for sake of brevity they are taken up together for discussion.
22. Onus to prove both these issues was upon the plaintiff.
23. Defendants have challenged the locus standi of the plaintiff to institute the suit. It is stated that the impugned bills were issued in the name of Sh. Amir Chand, Smt Kalawati Devi and Sh Dharam Bhushan Gupta and that in the absence of a power of attorney, the plaintiff has no locus standi to institute the present suit. Suit No. 122/13 Page 13 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 14
24. Perusal of the inspection report of K.NO.
DG000/2143291/X411/DL And K.NO. DG00/0093966/X411/DL shows that these connections are in the name of Must Kalavati Devi and Sh. Dharam Bhushan Gupta i.e, parents of plaintiff and the name of the plaintiff is recorded as the user of these electricity connections in respect of which impugned bills have been raised.
25. K.NO.DG000/2274914/X411/DL is in the name of one Sh Amir Chand.
26. Section 2 (15) of the Electricity Act :
"consumer" means any person who is supplied with electricity for his own use by a licensee or 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 includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be; "
27. It has been held by Delhi High Court in Mrs. Madhu Garg And Anr. vs North Delhi Power Ltd. on 22 March, 2006 that: Suit No. 122/13 Page 14 of 30
R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 15 "DERC being a statutory Commission is empowered under Section 28(2) of DERA to prescribe the terms and conditions for the determination of the supply of electricity. It is stated that the Tariff Order issued by the DERC is statutory in force and as such is binding on the respondent. Hence, supply of electricity to the premises cannot be made unless the outstanding dues are cleared, otherwise there will be violation of the statutory conditions laid down in the Tariff order.
The learned counsel for respondents has sought to distinguish the decision of the Supreme Court in Isha Marbles Case (supra) on the ground that in that case there was no statutory provision which empowered the authorities to refuse supply of electricity for outstanding dues against the previous owner. However, in the present case, there is a clear statutory provision embodied in the General Condition of Supply to that effect. We agree with this submission. In our opinion, the general conditions of supply is a piece of delegated legislation, and hence has statutory force.
In our opinion, there is no distinction between the purchaser of a premises who was aware that there were Suit No. 122/13 Page 15 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 16 outstanding electricity dues against the previous owner/tenant, and one who was not aware of it. In either case, the dues have to be paid by the new owner/occupant before supply can be continued / restored. This is because of the statutory provision contained in Clause 2 (iv) of the General Conditions of Supply which has been quoted above.
In our opinion, whenever a person purchases a property, it is his duty to find out whether there are outstanding electricity dues in relation to the premises or not, and he cannot be allowed to say later that he was unaware of the fact that there were electricity dues of the previous owner / tenant. 16.In view of the General Condition of Supply, it is the duty of the new owner/occupant to himself make enquiries and find out whether there was such dues or not. The General conditions of Supply are statutory in nature (being delegated legislation), and hence the question of bonafide or malafide does not arise, and in either case the new owner/occupant of the premises has to pay the dues against the previous owner / tenant,Page 1121 if he wishes the electric supply to be continued/restored. Suit No. 122/13 Page 16 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 17 It is obvious that the purpose of framing Clause 2.1 (iv) of the General Conditions of Supply was that many persons against whom there were huge electricity dues tried to avoid payment of the same by selling / transferring the property, and in this way the electricity department/electricity company could not recover its dues. In our opinion, there is no illegality or unconstitutionality in subclause (iv) of Clause 2 of the General Condition of Supply.
It may be mentioned that in Hyderabad Vanaspati Ltd. v. A.P. State Electricity Board AIR 1998 4 SCC 1715, the Supreme Court took the view that even in the absence of a contract the terms and conditions of supply will be governed by the statutory Regulations and they will applicable to the consumers who will be bound by them.
28. Under Clause 2.1 (iv) of the General Conditions of Supply contained in the tariff order 199798 and 200102 which has been framed by the Delhi Electricity Regulatory Commission, it has been specifically stated that supply of electricity is subject to the condition that the applicant deposits development charge, advance consumption deposit and all such charges as may be applicable including outstanding dues against the premises and / or disconnected Suit No. 122/13 Page 17 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 18 connection."
29. Thus, it is clear that as per the Regulations framed by DERC, all dues are against the premises in question and not against any specific person and are recoverable form the current owner/occupier/ subsequent purchaser of the concerned premises.
30. If the plaintiff were to apply for a new connection, in that event the defendants would also empowered to recover the outstanding dues from the plaintiff irrespective of the fact whether the plaintiff was in use and occupation of the premises and had not used the electricity against such bill. Drawing analogy from this, plaintiff would be entitled to maintain the suit against the dues raised against entire House No 23/4776, Darya Ganj, New Delhi110002 as he is the user/occupier and in possession of the same.
31. The factum of inspection is not disputed. However, the manner in which the inspection was carried out is challenged before this court. Plaintiff has alleged that impugned inspection was not carried out as per the procedure and also that he had already applied for the enhancement of load on a date prior to the inspection in question. Suit No. 122/13 Page 18 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 19
32. As per the inspection report, the seals on the meters was allegedly found to be fictitious on the ground that they did not belong to the DVB Lab.
33. Defendants have argued that mere allegation of fictitious seals are sufficient to prove FAE. Plaintiff has argued that mere allegation is not sufficient as the consumption pattern was neither checked nor proved.
34. Section 135 of the Act reads as under:
Section 135 Theft of electricity (1) Whoever, dishonestly,
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both;
Provided that in a case where the load abstracted, consumed or used or attempted abstraction or attempted consumption or Suit No. 122/13 Page 19 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 20 attempted use
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity.
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that if it is proved that any artificial means or means not authorized by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
35. The procedure for conducted search and seizure operations is set out under Sections 135(2), (3) and (4) which read as under:
S.135.(2). Any officer authorized in this behalf by the State Government may
(a) either, inspect, break open and search any place or premises in which he has reason to believe that electricity [has been or is being] used unauthorizedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which used for unauthorized use of electricity;
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(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under Subsection (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts there from in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.
s34. Regulations 2 (i) and 2 (m) of the Regulations define "direct theft" and "dishonest abstraction of energy" respectively as under::
2(i). 'Direct theft' shall mean abstraction of electrical energy either through by passing the meter by some arrangement external to it or through unauthorized tapping of the supply from licensee's distribution network."
2(m). 'Dishonest Abstraction of Energy (DAE)' shall mean abstraction of electrical energy where 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.).
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36. The other relevant Regulations are 25 and 26 which read thus:
Regulation. 25 Procedure for booking a case of pilferage of energy
(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 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.
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(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 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.
37. Since the respondents are seeking to make out a case of DAE, the provisions of the Act, the Rules and the Regulations must first be perused. Dishonest Abstraction of Energy has not been defined under the Electricity Act. It is defined only in the Regulations.
38. To establish a presumption of DAE against a consumer Under Section 135(1) proviso 2, the respondent must prove that "any artificial means or means not authorized by the Board or licensee Suit No. 122/13 Page 23 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 24 exist for the abstraction, consumption or use of electricity by the consumer...." existed at the site. This initial burden has to be discharged by the respondent.
39. The decision of the Hon'ble Supreme Court in Jagannath Singh v. B.S. Ramaswamy wherein Lordships have illustrated the approach to the requirement of proof of dishonest abstraction of energy which is relevant to the instant case."The Hon'ble Supreme Court held that the existence of artificial means for abstracting energy can only give rise to a presumption that there had been a dishonest abstraction. The supplier would still have to show that the consumer is responsible for such tampering."
40. The Hon'ble Supreme Court has further held that:
"A meter with an exposed stud hole, without more, is not a perfected instrument for unauthorized taking of energy, and cannot be regarded as an artificial means of its abstraction. To make it such an artificial means, the tampering must go further, and the meter must be converted into an instrument for recording less than the units actually passing through it. A check meter affords an easy method of proving that the consumer's meter is recording less than the units consumed and is being used as an artificial means for abstraction of the unrecorded Suit No. 122/13 Page 24 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 25 energy. To bring home the charge under Section 39, the prosecution must also prove that the consumer is responsible for the tampering. The evidence adduced by the prosecution must establish beyond doubt that the consumer is guilty of dishonest abstraction of energy."
41. The above mentioned judgment of Hon'ble Supreme Court was also discussed by Hon'ble High Court in Jagdish Narayan Vs NDPL Ltd & Anr. 150 (2007) DLT 307 : Hon'ble High Court has discussed that :
"Applying the above test, it has to be held 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 accu 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. The decision of this Court in Udham Singh v. BSES Rajdhani Power Ltd . 136 (2007) DLT 500 is to the same effect. In fact, the formula is applied in terms of Regulation 25 (iv) read with 26 (ii) only for determining the penalty payable by the consumer once a case of either direct theft or DAE has been made out. The penalty formula cannot Suit No. 122/13 Page 25 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 26 itself supply the proof of DAE or theft."
42. It has been further held that :
"While on the aspect of external evidence of "tampering" in the form of broken seals or tampered seals, this Court would like to observe that an inference of DAE should not be permitted to be drawn on the mere fact that a meter had been found with broken seals. It would be impermissible for the respondent to treat all categories of consumers on the same footing when it proceeds to take action on a suspicion of DAE. Right now there is no secure measure to ensure that the electricity meters installed either in the basement of the building or on the ground floor near the stair case, are tamperproof and outside the reach of any mischievous third party. It is one thing to require the consumer to ensure that the meter is safe and secure. It is perhaps also necessary to ask if the supplier of electricity draws the attention of the consumer to such responsibility and insists that the consumer secures the meter with a lock with one duplicate key being handed over to the supplier. In an environment where it is not possible for a domestic consumer living in an apartment where the meter is installed in the basement or ground floor to constantly keep a watch on his meter, it would not be reasonable to draw inference of DAE merely on the discovery of some signs of 'tampering'."
43. Now coming to the facts of the instant case, no photographs of Suit No. 122/13 Page 26 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 27 the meter and the seals were taken at the time of the inspection. No details of the alleged external material found at the site has been proved. Meter was not checked. Consumption pattern was also not checked. Seizure memo of the meter was not prepared. In these circumstances, there is a total dearth of evidence qua alleged meter tampering. Therefore it is not possible to verify the respondent's version of what transpired at the time of inspection. The respondent failed to establish that the user/registered user of the electricity connection had anything to do with the alleged tampering of the meter and therefore the impugned bills were illegally raised.
44. Defendants had also admitted that Plaintiff had made an application of change of name and load enhancement application with the Divisional office of defendant no 1 prior to the date of inspection. They have defended the impugned inspection on the ground that it was independently carried out by Enforcement which is based at Shanker Road.
45. Load enhancement is applied for only in those cases where the actual consumption of electricity is more than the sanctioned load. No Suit No. 122/13 Page 27 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 28 prudent man whose consumption is less than the sanctioned load would apply for load enhancement. If the intention of plaintiff would have been malafide, he would not have applied for load enhancement but would have continued to use electricity as such. But this was not so in the instant case. The bonafide of the plaintiff stands proved from the fact that the application for enhancement of load was made prior to the impugned inspection.
46. The defendants, on the other hand, kept sitting on the application and carried out the impugned inspection.
47. Plaintiff has no concern with the internal working of the defendant and interdepartment communication and working procedures of the defendant. Thus, the argument advanced by Ld. Counsel for defendant that the inspection was carried out by the Enforcement which is based at Shanker Road and not by the Divisional Office where application was made is devoid of merit.
48. The act of the defendants of carrying out the inspection despite there being an application for enhancement of load and before the disposal of the same, tantamounts to taking benefit of their own wrong Suit No. 122/13 Page 28 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 29 which is in complete contravention of the principles of natural justice and is not permissible under the Law.
49. In the light of above mentioned discussion, both these issues are decided in favour of the plaintiff and against the defendants. Relief:
The suit of the plaintiff is decreed and a decree is passed in following terms:
(i) The Defendant board, their associates, agents, and/or employees are restrained from recovering the amount mentioned in their impugned demand notes/provisional bills dated 24.05.2001 in respect of K No.0093966, K. No.2143291 and K. No.2274914.
(ii) The Defendants, its agents, associates and/or employees are restrained from disconnecting the electricity connection of the Plaintiff's premises bearing house No.23/4776, Ansari Road, Darya Ganj, New Delhi110002 against K No.0093966, K. No.2143291 and K. No.2274914 in respect of bills dated 24.05.01 Suit No. 122/13 Page 29 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 30
(iii) The demand notes/provisional bills dated 24.05.01 against K No.0093966, K. No.2143291 and K. No.2274914 are declared as null and void.
Costs of the suit are also awarded in favour of the plaintiff and against the defendant.
Decree sheet be drawn accordingly.
File be consigned to record room after due compliance. Announced in the open court today i.e. on 24.07.2013 (Total pages 1 to 30) (Shivani Chauhan) Civil Judge/THCCentral04/24.07.2013 Suit No. 122/13 Page 30 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 31 Suit No. 122/13 24.07.2013 Present: None.
Vide my separate judgement of even date, announced and dictated in the open court, the suit of the plaintiff is decreed and a decree is passed in following terms:
(i) The Defendant board, their associates, agents, and/or employees are restrained from recovering the amount mentioned in their impugned demand notes/provisional bills dated 24.05.2001 in respect of K No.0093966, K. No.2143291 and K. No.2274914.
(ii) The Defendants, its agents, associates and/or employees are restrained from disconnecting the electricity connection of the Plaintiff's premises bearing house No.23/4776, Ansari Road, Darya Ganj, New Delhi110002 against K No.0093966, K. No.2143291 and K. No.2274914 in respect of bills dated 24.05.01
(iii) The demand notes/provisional bills dated 24.05.01 against K No.0093966, K. No.2143291 and K. No.2274914 are declared as null and void.
Suit No. 122/13 Page 31 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013 32 Costs of the suit are also awarded in favour of the plaintiff and against the defendant.
Decree sheet be drawn accordingly.
File be consigned to record room after due compliance.
(Shivani Chauhan) Civil Judge/Central04/24.07.2013 Suit No. 122/13 Page 32 of 30 R. K. Goel vs Delhi Vidyut Board Pronounced in the open court on 24.07.2013