Delhi District Court
Sh.Pardeep Kr Gupta vs M/S North Delhi Power Ltd on 29 September, 2011
IN THE COURT OF MS.RUCHIKA SINGLA
CIVIL JUDGE-01(NORTH) : DELHI
Suit No. 927/2009
Unique ID No. 02401C0767202006
Sh.Pardeep Kr Gupta
S/o Late Sh.R.S.Gupta,
R/o Flat no.H-9, Plot no.52,
Parveen Vihar, Sector -9,
Rohini, Delhi-85
...... Plaintiff
Versus
M/s North Delhi Power Ltd.
Service through its CEO
C-2 Block, Keshav Puram,
Lawrence Road,
Delhi
...... Defendant
Date of institution of suit : 31.08.2006
Date on which reserved for judgment : 22.09.2011
Date of Judgment : 29.09.2011
JUDGMENT:
1. This is a suit for declaration and permanent injunction.
2. Briefly stated, the facts of the case as alleged by the Plaintiff are as follows.
2.1. The Plaintiff is a consumer of electricity K no. 44300123114A which is installed at his premises for domestic purposes with a sanctioned load of 8kw. On 22.01.2005, a team of the Pardeep Kr Gupta v. NDPL Suit No.927/2009 Page 1 of 12 Defendant company visited the premises of the Plaintiff and changed one old seal no.974879 with the new seal no.726930. 2.2. Then on 23.3.2006, certain officials of the Defendant company inspected the Plaintiff premises wherein, they allegedly found that the meter box seals and meter terminal were intact but the meter was found slow by 42 % on accu check. It was also alleged that the seal wire of the LHS ½ seal, LHS rivet of meter and clamp of meter body RHS were tampered. An inspection report was prepared and was got signed by the Plaintiff.
2.3. The Plaintiff was also issued a show cause notice dated 23.3.2006 calling the Plaintiff to visit the office of the Defendant on 30.3.2006. The Plaintiff appeared at the personal hearing and presented his case before the Defendant's officials. However, a speaking order was passed on 08.7.2006 and dispatched to the Plaintiff on 21.8.2006, clearly indicating manipulation on behalf of the Defendant. The Plaintiff also received a bill payable dated 21.8.2006 of Rs.86,253/-. 2.4. The speaking order has been passed arbitrarily. The Plaintiff was not committing dishonest abstraction of energy (hereinafter referred to as DAE). Hence, as the bill has not been rightly raised by the Defendant, the action of the Defendant is illegal and hence, the Plaintiff is entitled to the reliefs as claimed for.
3.1. Summons of the suit have been served upon the Defendant. The Defendant has admitted that there is a connection at the suit property. However, it is submitted that the Plaintiff is not a registered consumer of this connection and hence, the suit is not maintainable.
Pardeep Kr Gupta v. NDPL Suit No.927/2009 Page 2 of 123.2. Further, on 22.3.2006, the Plaintiff's premises were inspected and the connected load was found to be 8.195kw against the sanctioned load of 8kw. The meter box seals and meter terminal were intact but the meter was found slow by 42 % on accu check. The seal wire of the LHS ½ seal, LHS rivet of meter and clamp of meter body RHS were tampered and hence, a case of FAE was booked against the Plaintiff. Thereafter, a show cause notice was issued to the registered consumer with advice to attend the personal hearing on 30.3.2006, which was attended by the Plaintiff and on consideration of the representation of the Plaintiff, speaking order dated 08.7.2006 was passed. The impugned bill was raised as the Plaintiff was found indulged in FAE. As the bill has been raised as per the tariff provisions after observing principles of natural justice, the Plaintiff is not entitled to any relief that is claimed.
4. No replication was filed by the Plaintiff to the Written Statement of Defendant. On the basis of the pleadings of the parties, following issues were framed vide order dated 31.01.2008:
1. Whether the Plaintiff has no locus standi to file the present suit?
OPD.
2. Whether the Plaintiff is entitled to a decree of declaration as prayed for?OPP
3. Whether the Plaintiff is entitled to a decree of permanent injunction as prayed for?OPP
4. Relief
5. Thereafter, the matter was fixed for Plaintiff's evidence.
Pardeep Kr Gupta v. NDPL Suit No.927/2009 Page 3 of 12The Plaintiff got examined Sh.Pardeep Kr Gupta as PW1 who exhibited the following documents:
Ex.PW1/A Copy of the report (OSR) Ex.PW1/B Bill dated 10.8.2006 Ex.PW1/DX1 Copy of the inspection report Ex.PW1/DX2 Show cause notice Ex.PW1/DX3 Speaking order
6. Then the matter was fixed for Defendant's evidence. The Defendant got examined 3 witnesses namely Md.Idris, Sh.Prem Kr Rai and Sh.Gaurav Mittal and exhibited the following document(s):
Ex.DW1/1 Inspection report Ex.DW1/2 Joint inspection report Ex.DW1/3 Show Cause notice Ex.DW2/1 Speaking order Ex.DW3/1 Bill Ex.DW2/P1 Bill dated 05.3.2005 Ex.DW2/P2 Bill dated 25.02.2006
7. Thereafter, the matter was fixed for final arguments. I have heard the arguments of both the parties and gone through the file carefully. My issue wise findings are as follows.
Issue No.1 Whether the Plaintiff has no locus standi to file the present suit?OPD
8. Onus to prove this issue was upon Defendant.
9. Counsel for Defendant has argued that Plaintiff does not have the locus standi to file the present suit as he is not the registered Pardeep Kr Gupta v. NDPL Suit No.927/2009 Page 4 of 12 consumer. However, the Plaintiff has alleged that he is the owner of the suit property which he purchased from Sh.Sunil Gupta in the year 2000. Further, he has alleged that he is the user of the subject connection since long and hence, he has the locus standi to file the present suit.
10. As the Plaintiff is the user of the electricity, the bill has been raised upon him and he shall be adversely affected if the electricity supply is disconnected, it cannot be said that the Plaintiff does not have the locus standi to file the present suit. Hence, this issue is decided in favour of the Plaintiff.
Issue no.2 & 3 Whether the Plaintiff is entitled to the relief of declaration as prayed for?OPP.
Whether the Plaintiff is entitled to a decree of permanent injunction as prayed for?OPP
11. Onus to prove these issues was upon Plaintiff.
12. It is an admitted fact that the Plaintiff's premises were inspected on 22.3.2006. It is alleged by the Defendant that at the time of inspection, the Plaintiff was found indulged in theft of electricity as the following discrepancies were found:
1. Connected load of 8.195kw was found against the sanctioned load of 8kw.
2. The meter was found slow by 42 % on accu check.Pardeep Kr Gupta v. NDPL Suit No.927/2009 Page 5 of 12
3. The seal wire of the LHS ½ seal, LHS rivet of meter and clamp of meter body RHS were tampered.
4. The computed consumption was found to be 45.59% of the recorded consumption.
13. The Plaintiff on oath alleged that he did not commit any theft of electricity by tampering the seals of the meter. It is noted that the connected load is found to be merely 0.195kw more than the sanctioned load. On account of such a mere discrepancy, the Plaintiff cannot be held liable for any violation of the tariff provisions.
14. As regards the other discrepancies, it is pertinent to note that the meter box seals and meter terminal seals were found intact. The other discrepancies which were found were noticed after segregation of the meter. In the speaking order Ex.DW2/1, the Defendant company observed that "since the external seals were found intact, it is construed that tampering must have been done or procured at the time of installation of the meter". DW1 & DW2 both deposed before this court that the internal side of the meter can be accessed without tampering or opening the meter seals and meter terminal seals.
15. DW1 further deposed that he could not say as to how a consumer could reach the inner side of the meter without tampering or breaking the meter seals and meter terminal seals. DW2 deposed that the consumer may have connived with the installation agency appointed with the Defendant or he could have put a duplicate seal on Pardeep Kr Gupta v. NDPL Suit No.927/2009 Page 6 of 12 the meter box.
16. These are mere conjectures put forward by the Defendant. It is relevant that the Defendant has led no evidence to show that the Plaintiff actually employed any of the above mentioned methods to tamper the inner side of the meter. The law regarding the present situation is very clear. Reliance can be placed on "Col. R.K. Nayar v. BSES RPL, (140) 2007 DLT 257", where the Hon'ble High Court of Delhi has held that:
"An inference of fraudulent abstraction of energy must be based on some conclusion evidence that the user has tampered with the meter in a manner that has enabled such user to either slow down the meter or make it record lesser units of consumption. There must be a link established between the physical evidence of tampering noticed on inspection and the consumer. An inference of FAE should not be permitted to be drawn on the mere fact that a meter had been found with broken seals. An electricity meter is admittedly not kept enclosed in a tamper proof environment under the lock and key, with one meter is kept in a location that permits any person intending to do mischief to have easy access to the meter, then to fasten the charge of FAE on the consumer in the event of the meter being found tampered, is not being reasonable or even realistic. Something more would have to be demonstrated to infer an intention by the consumer to "fraudulently"
abstract electricity. In this context it is necessary to emphasise that the analysis of consumption pattern cannot constitute substantive proof of DAE in the absence of tangible physical evidence of DAE in the manner explained above. In other words, the analysis of consumption pattern can only corroborate what is found on physical inspection which can indicate whether the consumer has herself or himself employed a device or a method to dishonestly abstract electricity. It will not be open to the respondent, in the absence of any tangible evidence of DAE, to proceed on the basis of the consumption pattern to infer DAE".
17. The Hon'ble High Court of Delhi also relied upon the judgment of the Hon'ble Supreme Court of India in "Jagannath Singh Pardeep Kr Gupta v. NDPL Suit No.927/2009 Page 7 of 12 v. Ramaswamy, (1966) 1 SCR 683" where the Hon'ble Court has held as under:
"An exposure of a stud hole on the meter cover is an artificial means for preventing the meter from duly registering. For the purposes of Section 44, the existence of this artificial means gives rise to the presumption that the meter was prevented from duly registering but this presumption cannot be imported into Section 39. A meter with an exposed stud hole, without more is not a perfected instrument for unauthorised taking of energy, and cannot be regarded as an artificial means for 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 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."
18. The Hon'ble High Court of Delhi also relied upon the judgment of the Hon'ble Supreme Court of India in "Ram Chandra v. State of Bihar, 1967 CriLJ 409". In that case a wire had actually been inserted which had the effect of preventing the rotation of a disc despite that it was held that in addition to the above evidence, it was important to demonstrate that "the appellant would have knowingly done something to the meter which would have escaped detection of a meter reader and facilitated the abstraction of electricity." The Court set aside the conviction in that case.
19. The Hon'ble High Court of Delhi further held in R.K Nayar's case (Supra) that:
Pardeep Kr Gupta v. NDPL Suit No.927/2009 Page 8 of 12"Although the above decisions were rendered in the context of a conviction in a criminal case, the proof necessary for inferring FAE or DAE can be no less considering that the element of 'dishonesty' brings in the concept of mens rea which is common to both FAE/DAE and the offence of theft of electricity.
An accu check meter could have been used to detect if the meter was recording lesser energy than it should".
20. Same has also been held by the Hon'ble High Court in Harvinder Motors v. B.S.E.S. Rajdhani Power Ltd. 135(2006)DLT198; Udham Singh v. BRPL 136 (2007) DLT 500; Jagdish Narayan v. NDPL 140(2007) DLT 307; Bhasin Motors (I) P. Ltd. v. N.D.P.L. 142 (2007) DLT 116 and J.K. Steelomelt (P) Ltd. v. BSES Rajdhani Power Ltd. MANU/DE/7684/2007.
21. The counsel for Defendant has argued that a series of judgments have been passed by the Hon'ble High Court of Delhi on this law point starting from the case of "Udham Singh v. BRPL 136 (2007) DLT 500". Further, it is submitted that an LPA was filed against this judgment which was later on withdrawn. However, Hon'ble Division Bench pointed out that the observations of the Ld.Single Judge shall not be considered to be a conclusive opinion on merits. Hence, it is argued that the law point as held by the Hon'ble High Court of Delhi cannot be taken to be binding as the judgments above referred are in succession to the Udham Singh's case.
22. However, it has been held in "N.Bhagavan Pillai v. State of Kerala AIR 2004 SC 2317" that when a higher bench does not give an Pardeep Kr Gupta v. NDPL Suit No.927/2009 Page 9 of 12 opinion on the merits of the case, the previous judgment stands as it is. Further, only the judgments of the Hon'ble High Court of Delhi have not been relied upon. Even if the judgments of the Hon'ble High Court cannot be considered to be binding, the judgment of Hon'ble Supreme Court in "Jagannath Singh v. Ramaswamy, (1966) 1 SCR 683" can be followed which is to the same effect as discussed above. Hence, the objection of the counsel for Defendant is not maintainable.
23. As discussed in the above mentioned case law, the Defendant must show that there was any artificial means employed by the Plaintiff to manipulate the meter or there was intention to commit DAE. In the present matter, none has been proved by the Defendant. Further, in the opinion of the court, when the external side of the meter was found intact and when there was no sufficient explanation/ evidence to show that the Plaintiff manipulated the meter from the internal side, the balance of probabilities lies towards the Plaintiff.
24. Hence, it could not be established that the Plaintiff was indulged in DAE. The Plaintiff has sought the declaration of the impugned bill Ex.PW1/8 as null and void. The bill had been raised on the basis of the alleged theft of electricity committed by the Plaintiff. It has already been held above that the Plaintiff was not indulged in theft.
25. However, the counsel for Defendant has argued that the Plaintiff is not entitled to any relief as the Plaintiff misled the court and concealed material facts. It is argued that in the plaint, the Plaintiff had Pardeep Kr Gupta v. NDPL Suit No.927/2009 Page 10 of 12 alleged that the inspection dated 22.3.2006 was conducted in his absence and the inspection report was also not supplied. Further, it was also alleged by the Plaintiff that he first came to know of the inspection when he received the impugned bill. The same was reiterated in his affidavit which had been sworn by him. However, in his cross- examination, he admitted that the inspection was carried out on 22.3.2006, that during the inspection one Sh. Balkishan was present, again, that during the inspection his wife Mrs. Devinder Kaur was present and that he reached the spot during the course of the inspection. He also admitted that the inspection reports dated 22.3.2006 were prepared at site in his presence. Hence, it is argued that the Plaintiff misled the court and hence, he is not entitled to any relief as claimed.
26. Perusal of the plaint reveals that the Plaintiff has alleged that the inspection dated 23.03.2006 was conducted in his absence and he reached the premises only after the completion of the inspection and the paper work. He has also stated in his plaint that he signed the inspection report. The same was reiterated in his cross examination. There is no concealment or misrepresentation of facts. Hence, this objection is not tenable. In these circumstances, these issues are decided in favour of the Plaintiff.
Relief In view of the above discussion, the suit of the Plaintiff is decreed and the impugned bill for Rs. 86,253/- and the inspection report dated 23.03.2006 are declared as null and void. The Defendant Pardeep Kr Gupta v. NDPL Suit No.927/2009 Page 11 of 12 is restrained from disconnecting the electricity supply of the Plaintiff's electricity connection bearing K no.44300123114A at Flat no.H-9, Plot no.52, Parveen Vihar, Sector -9, Rohini, Delhi-85 for non payment of this bill. As the bill has been declared as null and void, the Plaintiff is entitled to refund/adjustment of any amount which has been paid by him towards this bill along with simple interest @9% p.a from the date of deposit till its realization.
No order as to costs.
Decree-sheet be prepared accordingly.
File be consigned to record room.
Announced in the Open Court [RUCHIKA SINGLA]
Today on 29.9.2011 CIVIL JUDGE-01 (NORTH)
DELHI
Certified that this judgment contains 12 number of pages and all pages are signed by me.
[RUCHIKA SINGLA]
CIVIL JUDGE-01 (NORTH)
DELHI
Pardeep Kr Gupta v. NDPL Suit No.927/2009 Page 12 of 12
Suit No.927/2009
29.9.2011
Present : None
Vide separate judgment of even date, the suit of Plaintiff is decreed. No orders as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room.
[RUCHIKA SINGLA] CIVIL JUDGE01 (NORTH) DELHI Pardeep Kr Gupta v. NDPL Suit No.927/2009 Page 13 of 12