Delhi District Court
Azrudin vs . Bses/ Ypl Yamuna Power Ltd. on 14 February, 2020
Azrudin vs. BSES/ YPL Yamuna Power Ltd.
Civil Suit No. 110/19
IN THE COURT OF RAHUL VERMA, CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No: 110/19
CNR No. : DLCT030079042018
Date of Institution: 27.09.2013
Date of Decision: 14.02.2020
Azrudin S/o Late Sh. Jahir Beg,
S/o T510, T/F Chamelian Road,
Bara Hindu Rao, Delhi110006.
............ Plaintiff
Versus
The BSES/YPL Yamuna Power Ltd.
Through its Manager / G.M.
Shakti Kiran Building,
Karkardooma, Delhi110032.
............ Defendant
SUIT FOR DECLARATION & PERMANENT INJUNCTION
Present: None.
JUDGMENT:
1) Present suit has been filed by the plaintiff seeking declaration and permanent injunction.
AVERMENTS IN THE PLAINT
2) It is the case of the plaintiff that he is the user/owner of the suit property and Smt. Poonam is a registered consumer of electricity connection vide CRN No.1130110270, CA No.100513481, old Meter No. 25114324 at a sanctioned load of 9 KW (nondomestic). The meter energisation date is 04/05/2007. Smt. Poonam was the tenant of the plaintiff and left the premises on September 2007. Since then the plaintiff is using the electricity paying the electricity bills regularly without any default.
3) On 18/10/2012 when the plaintiff found some spark in his meter no.
25114324, he went to the office of the defendant and gave the written Page 1 of 12 (Rahul Verma) Civil Judge07, Central, Delhi Azrudin vs. BSES/ YPL Yamuna Power Ltd.
Civil Suit No. 110/19complaint regarding the issue of burnt meter. The copy of acknowledgement of device replacement was issued by the defendant on the complaint of plaintiff. On 19/20/2012 the defendant officers reached the suit premises and changed the burnt meter through new meter and took the burnt meter in their custody and left the suit premises. On that day the defendant did not prepare any report regarding the issue of burnt meter change with new meter.
4) On 04/12/2012, defendant officer again reached at the suit premises and took the photographs of suit property. When the persons present at site raised questions about his inspection, the officer told that this inspection was only in routine manner and was as per the order given by his company. On that day the defendant officers neither prepared any type of documents nor gave any documents to the plaintiff.
5) On 15/05/2013, the defendant officers came to the plaintiff's address and gave some documents regarding the inspection. After going through the documents, the plaintiff observed that the load calculated by the defendant was wrong and was manipulated only for preparing the theft bill against the plaintiff. The load which was mentioned on the theft bill did not exist at the suit premises at any time. After that the plaintiff went to the office of the defendant and requested the officers to discharge him from the theft liability as he had nothing to do with this theft and he had no idea why the meter met with the spark and for what reason the meter got burnt.
6) No show cause notice was served upon the plaintiff after the inspection.
Further, the meter test lab report has not been provided by the defendant to the plaintiff. Further, in violation of DERC regulation 56, the defendant was not given the full credit of assessment.
7) On 19/10/2012 and 04/12/2012, the defendant officers did not give any documents to the plaintiff, the said officers did not prepare any document regarding the condition of meter, load, inspection etc. as per DERC regulation 52(iv). They did not give their visiting card and photo id card to verify their identity before entering the house for inspection as per regulation 52(iii). The defendant officers also violated the DERC regulation 52(ix) as Page 2 of 12 (Rahul Verma) Civil Judge07, Central, Delhi Azrudin vs. BSES/ YPL Yamuna Power Ltd.
Civil Suit No. 110/19the officers neither prepared the documents at the site nor gave any documents to the plaintiff and also never sent the complete documents by registered post to the plaintiff till date.
8) On 12.10.12, when the defendant officers checked the electricity meter, they did not find any tempering with the seal of the said meter except the sparking of the meter. Further, the meter reader had been visiting the premises regularly and no complaint was made by him regarding the tempering of the meter. The electricity meter was not seized by the officers of the defendant in presence of the plaintiff and no signatures of the plaintiff were obtained on the meter seizure memo. The inspection team booked the false theft case under the dishonest abstraction of energy. Further, the assessment bill for theft of electricity of Rs. 1,83,387/ vide till no. YMEMF130520130027A0 dt. 13.05.13 is false and frivolous. Hence, the present suit.
AVERMENTS IN THE WRITTEN STATEMENT
9) Upon service of summons, the defendant appeared and filed his WS. In the WS, it is submitted that on 19.10.2012, MMG removed single phase meter No. 25114324 (in a bag no. 316438 with seal no.89465) being suspected to be tempered as reading was not visible and meter found externally burnt. Thereafter, meter was sent to lab, Savita Vihar for thorough analysis and investigation. Supply was restored through new meter no. 11362861 at initial reading 01 on 19.10.2012. Consumer representative/ user was also advised to witness meter testing, vide letter No. 257512 dated 19.10.2012, duly acknowledged by consumer representative/ user, M. Azharudin but as he did not turn up. Hence the lab vide its report No. BY12/33514 dated 04.12.2012 has observed as follows:
* Meter plastic and Hologram seals found burnt.
* Meter LCD and meter LED not found ok.
* Meter body found burnt as per burning effect, it is externally burnt.
* Lab has concluded that meter found externally brunt.
* Lab has also captured the photographs of meter.
Page 3 of 12 (Rahul Verma)
Civil Judge07, Central, Delhi
Azrudin vs. BSES/ YPL Yamuna Power Ltd.
Civil Suit No. 110/19
10) On the basis of these findings, premises bearing No. T510, T.F. Chamelian Road, Bara Hindu Rao, Delhi110006 was inspected by enforcement inspection team on 11.02.2013. During the inspection against the connection CRN No. 1130110270 connected load of 6.790 KW/NX was found.
Registered consumer is Poonam but Mohd. Azaruadin was found as user of the connection (as stated during the inspection). At the time of inspection the user was using electricity through Meter No. 11362861 at reading 376KWH on first floor for commercial purpose. Another meter bearing No. 14163236 at the reading 14600 KWH was installed on the same premises for remaining floors. Videography of the new meter and load was done upto the possible extent. Old burnt meter was seized to maintain status quo. The inspection reports were prepared at site but the user refused to sign them, photo I.D. was also shown at site.
11) The inspection team prepared the inspection report vide ref. no. BYIR0B 006597 dated 11.02.2013 at site, seizure memo vide ref. no. BYIROB 0006597 dated 11.02.2013 vide which the single phase meter as per lab report dated 04.12.2012 was seized, and enforcement material receipt no. BYEMOA029680 dated 11.02.2013. The tempered meter was also seized. Inspection and seizure memo were refused to be signed by the user /consumer representative at site.
12) On basis of above irregularity, show cause notice dated 11.02.2013 was issued requesting consumer to attend personal hearing on 25.02.2013 but neither any reply was filed nor anyone attended the personal hearing. Therefore, second show cause notice dated 28.02.2013 for personal hearing on 04.04.2013 was served through speed post (which was duly delivered on 18.03.2013) as per delivery report of the postal authority. Thereafter another show cause notice dated 08.04.2013 for personal hearing on 25.04.2013 was served through speed post which was duly delivered by the postal authorities as per delivery report. However, none has appeared nor filed any reply, and the assessing officer was left with no alternative except to analyze the case exparte. Accordingly, the speaking order was passed on 29.04.2013.
Page 4 of 12 (Rahul Verma)Civil Judge07, Central, Delhi Azrudin vs. BSES/ YPL Yamuna Power Ltd.
Civil Suit No. 110/1913) Thereafter the Assessing Officer analyzed the case by considering the inspection report and lab report. The inspection was carried out in presence of the user in accordance with law and the inspection reports were offered to the user/consumers at site which was refused to be received by the user. Thereafter the reports were sent alongwith show cause notices dated 11.01.2013, 28.02.2013 and 08.04.2013. The Consumer/user did not reply to the show cause notices. As per lab observation, meter plastic and Hologram seals were found burnt, meter body found burnt as per burning effect it was externally burnt. Lab concluded that meter was externally burnt. Further, the responsibility for keeping the meter in safe custody lies with the consumer in accordance with the regulation 35 (III) of DERC. The average consumption pattern as per computer module works out to 52.23% which is less then the prescribed limit of DERC. The consumption recorded by the meter after replacement/change has increased 2.980 and 6.720 as per MDI which indicates that there was low recording of consumption prior to meter changed due to the reason of uses of tempering methods by consumer/user. The consumer failed to explain as to in what circumstances the meter was found externally burnt and why the recorded consumption was low and after the replacement of the new meter the consumption was drastically increased. All those facts further established that the meter was deliberately burnt by the consumer just to hide the tempering proof in the meter. The Assessing Officer reached the conclusion that D.A.E is established under regulation 52 and 53 of Delhi Electricity Supply Code 2007 and section 135 and 138 of Electricity Act, 2003. After that the Assessing Officer passed a speaking order dated 29.04.2013.
14) On the basis of speaking order dated 29.04.2013 passed by Assessing Officer as per the provision of tariff and DERC Regulations, AFO (Enf.) raised D.A.E bill of Rs. 1,83,387/ with the due date 28.05.2013. As the D.A.E bill raised by AFO (Enf.) is in order as per the tariff provision and DERC regulations, therefore the plaintiff is liable to make the payment of D.A.E. bill. It is submitted that as the plaintiff has failed to make the payment of the Page 5 of 12 (Rahul Verma) Civil Judge07, Central, Delhi Azrudin vs. BSES/ YPL Yamuna Power Ltd.
Civil Suit No. 110/19bill with due date, and thus the electricity connection is liable to be disconnected as per provisions of Electricity Act, 2003. All the other averments of the plaint are denied with the request to dismiss the suit. REPLICATION
15) By virtue of the replication, averments of the plaint have been reiterated, and contents of the written statement have been denied. ISSUES
16) From the pleadings of the parties, following issues were framed by the Ld. Predecessor of this Court vide order dt. 16.07.14 :
1. Whether the plaintiff is involved in dishonest abstraction of energy by tampering the meter as per inspection report dt. 19.10.12? OPD
2. Whether the plaintiff is entitled to the relief of declaration and permanent injunction as prayed for? OPP
3. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed? OPP
4. Relief.
PLAINTIFF'S EVIDENCE :
17) To prove his case, the plaintiff examined himself as PW1 by tendering his evidence by way of affidavit Ex. PW1/A. He relied upon following documents : Mark A (Colly) Copy of electricity bills Mark B (Colly) Copy of acknowledgement of device replacement issued by defendant.
Mark C and Mark D Copy of theft bill and speaking order Mark A (Colly) Copy of electricity bills
18) During crossexamination, defendant put following documents to PW1 : Mark DX1 Copy of letter dt. 19.10.12.
Mark DX2 Inspection report dt. 11.02.13
Mark DX3 Show cause notice dt. 22.02.13
Page 6 of 12 (Rahul Verma)
Civil Judge07, Central, Delhi
Azrudin vs. BSES/ YPL Yamuna Power Ltd.
Civil Suit No. 110/19
Mark DX1 Copy of letter dt. 19.10.12.
Mark DX4 Show cause notice dt. 08.04.13
Mark DX5 Delivery report
Mark DX6 Delivery report
19) PW1 was duly cross examined by counsel for defendant. Thereafter, plaintiff's evidence was closed by counsel for plaintiff by way of separate statement dt. 07.11.17.
DEFENDANT'S EVIDENCE :
20) The defendant examined Ms. Ranjita, Senior Supervisor, BSES YPL Lab as DW1 by tendering her evidence by way of affidavit Ex. DW1/A. She relied upon the following documents : Ex. DW1/2 (OSR) Lab report dt. 04.12.12 Mark A Copy of letter no. 257512 dt. 19.10.12 Mark B Photograph of meter no. 25114324
21) Sh. Sanjay Arya, Senior Supervisor (O&M), BYPL was examined as DW2 by tendering his evidence by way of affidavit Ex. DW2/A. He relied upon the following documents : Already Mark DX2 Inspection report reference no. BY1ROB 006597/13 dt. 11.02.13 Mark 1 Copy of seizure memo Mark 2 Performa no. BYEMOA029680 dt. 11.02.13 about the seizure of the burnt meter no. 25114324
22) Sh. Randeep Kumar, GM (O&M), BYPL was examined as DW3 by tendering his evidence by way of affidavit Ex. DW3/A. He relied upon the following documents : Mark A Show cause notice dt. 28.02.13 Mark B Copy of speed post Mark C Copy of delivery track report Mark D Copy of final show cause notice Page 7 of 12 (Rahul Verma) Civil Judge07, Central, Delhi Azrudin vs. BSES/ YPL Yamuna Power Ltd.Civil Suit No. 110/19
Mark E Copy of speed post
Mark F Copy of delivery track report
Mark G Copy of consumption pattern
Mark H Copy of speaking order passed by deponent
Mark I Copy of D.A.E. bill
Ex.DW3/10 Certificate u/s 65B(4)(C) of IEA
23) DW1, DW2 and DW3 were duly cross examined by counsel for plaintiff.
Thereafter, DE was closed in view of submissions of AR of defendant vide order dt. 05.09.18.
FINDINGS:
24) I have heard Ld. Counsel for the plaintiff and have perused the case file. My issuewise findings with reasons thereof are as under : Issue no.1: Whether the plaintiff is involved in dishonest abstraction of energy by tampering the meter as per inspection report dt. 19.10.12? OPD & Issue no.2: Whether the plaintiff is entitled to the relief of declaration and permanent injunction as prayed for? OPP
25) Since both the issues are interconnected, and can be disposed of on appreciation of common evidence and legal issues involved, the same are being taken up together.
26) The onus of proof of issue no. 1 was on the defendant and onus of proof of issue no.2 was on the plaintiff.
27) In the present case the plaintiff has sought the relief that speaking order and the assessment bill for theft be declared null and void and that the defendant be permanently restrained from disconnecting the electricity supply. On the other hand, the defendant has taken the defence that the case of Dishonest Abstraction of Energy against the plaintiff is justified.
28) Since the defendant has made a case of Dishonest Abstraction of Energy against the plaintiff, the definition of the same requires to be first noticed.Page 8 of 12 (Rahul Verma)
Civil Judge07, Central, Delhi Azrudin vs. BSES/ YPL Yamuna Power Ltd.
Civil Suit No. 110/19DERC Regulation 2(m) which defines "dishonest abstraction of energy" is read as under:
Regulation 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.)."
29) From the abovementioned definition, it is manifest that to prove dishonest abstraction of electricity, it is essential for the defendant to show, (i) the consumption pattern of the consumer, and (ii) some tangible evidence that there has been the tampering with or access by the plaintiff to the internal mechanism of the meter in a manner that would slow down the consumption.
30) Regarding the first requirement of consumption pattern, perusal of record shows that no evidence has been brought before this court to prove that after the change of the alleged tempered meter, the consumption of the plaintiff had increased through new meter. In fact, the comparison of consumption pattern prior to the burning of meter and subsequent to such burning of meter has not even been recorded. The speaking order Mark H does not mention anything about the consumption pattern. DW3 also admitted in his cross examination that in the speaking order he did not mention that he studied the consumption pattern of old burnt meter and new meter. Therefore, in absence of details of consumption pattern of old burnt meter and new meter, no case for Dishonest Abstraction of Energy can be made out. It was held in case of Narinder Aggarwal vs BSES Rajdhani Power Ltd, 2011 SCC OnLine Del 1395, that "the Assessing Officer is required to observe the consumption pattern of the consumer and in the absence of DAE having been established from the consumption pattern, no case for DAE can be made out." In the present case, it is clear that consumption pattern of old burnt meter and new meter was not studied by the Assessing Officer and the impugned speaking Page 9 of 12 (Rahul Verma) Civil Judge07, Central, Delhi Azrudin vs. BSES/ YPL Yamuna Power Ltd.Civil Suit No. 110/19
order dt. 29.04.2013 Mark H is silent regarding such consumption pattern. Therefore, no case of Dishonest Abstraction of Energy is made out against the plaintiff on this ground alone.
31) Further, regarding the second requirement of proving slowing down of the meter, it is pertinent to mention that no evidence has been led by the defendant to establish tempering in the internal mechanism of the meter in a manner that would slow down the consumption. Perusal of laboratory report Ex. DW1/2 shows that it merely mentions that meter was found externally burnt. It does not mention any reason for external burning of the meter. It also does not mention existence of tempering in the meter. Cross examination of DW3 is also relevant in this regard as he admitted that from the lab report he could not say anything about the slowness of the meter in question.
32) Clearly, no case of dishonest abstraction of electricity is made out against the plaintiff.
33) Now, coming to the contention of the defendant that presumption of DAE shall be drawn against the plaintiff in view of second proviso to S. 135 of Electricity Act, 2003, it would be pertinent to refer to the said provision which reads as under:
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.
34) Bare reading of the aforesaid provision shows that the presumption of DAE cannot be drawn unless it is shown that any artificial means or means not authorized by the Board or licensee exist for the abstraction. Reliance is placed in this regard on the judgment of Jagdish Narayan v. North Delhi Power Limited, ILR (2007) 2 Del 957 : (2007) 140 DLT 307, where it was held that :Page 10 of 12 (Rahul Verma)
Civil Judge07, Central, Delhi Azrudin vs. BSES/ YPL Yamuna Power Ltd.Civil Suit No. 110/19
"21. In order to draw a presumption of DAE against a consumer in terms of the second proviso to Section 135(1), it must first be shown by the supplier or licensee 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.........." Till such time this initial burden is not discharged by the supplier of electricity, the burden of proof under the second proviso to Section 135(1) of the Act does not shift to the consumer."
35) Perusal of record shows that no evidence has been brought before this court to conclude that the plaintiff used some artificial means or means not authorized by Board for abstraction of energy. Therefore, no presumption of dishonest abstraction of energy can be drawn against the plaintiff.
36) On the basis of the foregoing judgments and the discussions made above, it is clear that it has not been proved that the plaintiff was found indulged in illegal abstraction of energy from the old meter. Consequently, the impugned speaking order dated 29.04.2013 Mark H holding that the plaintiff is guilty of DAE is unsustainable in law and is accordingly declared null and void. Further, the assessment bill for theft bearing no. YMENF 130520130027A0 for a sum of Rs.1,86,139/ with due date 28.05.2013 is also declared null and void.
37) Consequently, the plaintiff is also entitled to the permanent injunction thereby restraining the defendant from disconnecting the electricity supply of the plaintiff with respect to the speaking order dated 29.04.2013 Mark H only. It is made clear that, other than the said speaking order dated 29.04.2013 Mark H, nothing in this order shall restrain the defendant from taking action as per law in case of any other default or wrongdoing.
Issue no. 3: Whether the plaintiff is entitled to the relief of mandatory injunction as prayed? OPP
38) The onus of proof of this issue was upon the plaintiff.
39) Perusal of pleadings shows that the aforesaid issue has been incorrectly framed as the plaintiff has not sought any relief of permanent injunction in the present suit.
Page 11 of 12 (Rahul Verma)Civil Judge07, Central, Delhi Azrudin vs. BSES/ YPL Yamuna Power Ltd.
Civil Suit No. 110/1940) Therefore, no finding is required to be given on this issue. ISSUE No. 7 Relief :
41) In view of the findings on the aforesaid issues, the suit of the plaintiff is hereby decreed and the plaintiff is entitled to the following reliefs:
(a) A decree of declaration is hereby passed in favour of plaintiff and against the defendants to the effect that the impugned assessment bill for theft bearing no.YMENF 130520130027A0 dt.13.05.2013 Mark C and speaking order dated 29.04.2013 Mark H are hereby declared null and void, having no sanctity in the eyes of law.
(b) a decree of permanent injunction is also passed in favour of the plaintiff and against the defendants, thereby restraining the defendants, its agents, workers, employees etc. from disconnecting the electricity supply acting under the impugned assessment bill for theft dt. 13.05.2013 Mark C and speaking order dated 29.04.2013 Mark H, which have already been declared as null and void.
42) No order as to costs.
43) Decree sheet be prepared accordingly and file be consigned to Record Room
Digitally
signed by
after due compliance. RAHUL
RAHUL
VERMA
VERMA Date:
2020.02.15
17:29:21
+0530
Pronounced in open court: (Rahul Verma)
Dated: 14.02.2020 Civil Judge07, Central,
Tis Hazari Courts, Delhi
Note : This Judgment contains twelve pages and all the pages have been checked and signed by me.
(Rahul Verma) Civil Judge07, Central, Tis Hazari Courts, Delhi Page 12 of 12 (Rahul Verma) Civil Judge07, Central, Delhi