Delhi District Court
Sh. Gurpreet Singh (User) vs Tata PowerDdl on 13 October, 2015
IN THE COURT OF MS. SWARANA KANTA SHARMA: ASJ ( ELECTRICITY)
NW DISTRICT:ROHINI: DELHI
Suit no. 133/13.
Unique ID no. 02404C0346402013
Sh. Gurpreet Singh (user)
S/o Sh. Kulvinder Singh
R/o 78, First Floor
SFS, Dr. Mukherjee Nagar
Delhi110009 .............Plaintiff.
Vs
TATA POWERDDL
Through its C. E. O.
Station/ SubStation Building
Hudson Line, Kingsway Camp
Delhi110009 ...........Respondent.
SUIT FOR DECLARATION, MANDATORY & PERMANENT INJUCTION
Date of institution : 26/11/2013
Date of reserving order : 05/10/2015
Date of pronouncement : 13/10/2015
Appearances
Sh. Arun Kumar ............Ld counsel for the plaintiff.
Sh. Subhash Tagra ............Ld counsel for the defendant.
J U D G M E N T
1) Brief facts of the present suit for declaration, mandatory and permanent injunction are that plaintiff is the user and legal heir of owner of the CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 1 of 16 property bearing no. 78, First Floor, SFS Flats, Dr. Mukherjee Nagar, Delhi and user of K. No. 31400144127 with CA no. 60005397660 with meter no. 4512630 which has been installed at his premises with a sanctioned load of 5 KW. The case of the plaintiff is that the sanctioned load was never used for any illegal purpose and he has been paying electricity bill regularly as and when it was received from the defendant company. The case of the plaintiff is that he had received a bill in the month of June 2013 which indicated that the meter was running fast and he had therefore filed an application dated 16.07.2013 with the defendant company with a request for checking the meter and replacing the same with a new meter. It is further the case of the plaintiff that the officials of the defendant company had replaced it with a new meter on 26.07.2013 after removing the seals of the old meter and had replaced the old meter where the old meter was existing. The meter change report was prepared and it was mentioned that all the seals were intact and OK. It is further the case of the plaintiff that to his surprise he had received a show cause notice dated 04.10.2013 along with inspection report dated 29.07.2013 wherein it was falsely alleged that the load connected at the premises of the plaintiff was beyond the sanctioned limit. It is therefore prayed by the plaintiff that the inspection dated 24.07.2013, the inspection report dated 29.07.2013 and the bill raised on the basis of the same of Rs 57,373/ be declared null and void and be quashed.
2) Written statement was filed by the defendant company wherein they CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 2 of 16 have refuted the case of the plaintiff and have stated that the inspection report as well as the bill in question has been raised as per law and that the plaintiff was using unfair means to extract electricity. It is also alleged that connected load of 10.653 KW was found at the premises though the sanctioned load was only 5 KW. It is also stated that the seals of the meter were found broken. It is also alleged that at the time of inspection, following irregularities were observed at the site:
* A load of 10.653 KW was found connected against the
sanctioned load of 5 KW for Domestic Light purpose.
* During inspection two illegal holes were found on back
side of the meter opposite to incoming and outgoing
phase terminal respectively.
* After segregation black wire of incoming neutral was
found fixed on the terminal screw.
3) On 19.05.2014, after completion of the pleading of the parties
following issues were settled:
i. Whether the plaintiff is entitled for a declaration to the effect that the inspection report dated 29.07.2013 is null and void?
OPP ii. Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendant, its agents, employees, associates, officers/ officials not to disconnect the electricity supply of the plaintiff through K. No. 31400144127 CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 3 of 16 installed at H. No. 78, Ist Floor, SFS Flats, Dr. Mukherjee Nagar, Delhi? OPP iii. Whether the plaintiff had indulged in dishonest abstraction of energy during the inspection dated 29.07.2013? OPD iv. Relief, any .
4) Plaintiff in support of his case has examined himself as PW1. He has tendered his evidence by way of affidavit Ex. PW1/A and has filed documents Ex. PW1/1 to Ex. PW1/10. He stated therein that he is the user and legal heir of owner of the property bearing no. 78, First Floor, SFS Flats, Dr. Mukherjee Nagar, Delhi and user of K. No. 31400144127 with CA no. 60005397660 with meter no. 4512630 which has been installed at his premises with a sanctioned load of 5 KW. The plaintiff has stated that the sanctioned load was never used for any illegal purpose and he has been paying electricity bill regularly as and when it was received from the defendant company. He further stated that in the month of June 2013 he had received a bill towards consumption of electricity. The same reflected that meter was running fast therefore he had filed an application dated 16.07.2013 Ex. PW1/1 regarding the meter running fast and had requested for checking the meter and replacing the same with a new meter. The meter testing form was proved as Ex. PW1/2 and meter replacement form was proved as Ex. PW1/3. He further stated that the officials of the defendant had visited his premises on 24.07.2013 for testing the meter and had remarked 'MDI corrupted, meter needs replacement'. Therefore, the meter was replaced with a new meter on CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 4 of 16 26.07.2013 after removing all the seals of the meter box and they had replaced the meter where the old meter was existing. The meter change report was prepared wherein it was mentioned that seals of the meter were intact and OK. Thereafter on the pretext of checking load, the officials of defendant company had taken some photographs of the gadgets in the house and had calculated load of the junk which was lying disconnected in the house of the plaintiff despite his protests. It is stated that no inspection report was prepared neither his signatures were obtained on any document.
He further stated that to his surprise he had received a show cause notice dated 04.10.2013 along with inspection report dated 29.07.2013. He further stated that the load mentioned in the inspection report is totally false since the load of the plaintiff was well within the sanctioned limit and sanctioned load was never exceeded. He further stated that as per inspection dated 24.07.2013 against the complaint filed by him dated 16.07.2013 the meter was declared defective since there is no remark by the previous inspecting team that the seals were tempered. It is further stated that to falsely implicate the plaintiff in a case of theft of electricity the inspecting team in their report dated 29.07.2013 have observed that two illegal holes were found in the backside of the meter opposite to IC/ OG or that on segregation black wire of IC neutral was found fixed on the terminal screw. It is further stated that the officials of the defendant have wrongly and illegally prepared a false inspection report dated 29.07.2013 and have raised illegal bill against him. He proved the inspection report as Ex. PW1/4, the show cause notice CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 5 of 16 dated 04.10.2013 as Ex. PW1/5. It is further stated that the consumption pattern clearly shows that it is more than 100% and as per DERC guidelines, no case of theft can be made out against a consumer who has consumption of more than 75%. He proved the bills as Ex. PW1/6 (seven in number). He stated that he had filed reply to the show cause notice on 21.10.2013 but the officials had not considered his reply. He stated that from the consumption pattern study of the last 14 months it is clear that the consumption comes to 1551 units per month which is about more than 300% of the sanctioned load and about 165% of the alleged connected load. It is therefore stated that in view of the same no case of Dishonest Abstraction of Energy is made out against him.
It is further stated that the meter was not sent to any Laboratory for checking as per DERC guidelines. It is therefore stated that the impugned bill dated 07.11.2013 Ex. PW1/9 be declared null and void.
On being cross examined by the Ld. Counsel for the defendant, he stated that meter is installed in the common area on the ground floor under the stairs. He stated that there are 8 meters in all in the premises where his meter is installed. He denied that inspection was carried out on 29.07.2013 by the officials of defendant. It is stated that the same was conducted at his request. He stated that his sanctioned load is 5 KW and admitted that at the time of inspection a load of 10.653 KW was found connected. He stated that he did not know whether two holes were found on the backside of the meter opposite to incoming and outgoing phase terminal. He did not know whether CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 6 of 16 a black color wire of incoming neutral was found fixed on the terminal screw. He stated that inspection report was not prepared in his presence. He denied that he had refused to sign the inspection report. He denied that he had ever received speaking order Ex. PW1/8. He stated that he did not know the consumption pattern of the meter as he is not a technical person. He stated that he had himself made payment to the defendant for getting the meter checked. He stated that the consumption pattern percentage mentioned in para 12 of Ex. PW1/A was calculated by his counsel after going through the bills.
5) Vide separate statement of Ld. Counsel for the plaintiff, PE was closed.
6) The defendant company has examined two witnesses in support of their case.
7) DW1 Sh. Vinod Kumar Singhal tendered his evidence by way of affidavit Ex. DW1 and stated therein that he is a Senior Manager of defendant company. He stated that the inspection was carried out as per DERC rules by the raiding party of the enforcement Cell at the premises of the plaintiff on 29.07.2013. He stated that during inspection irregularities were found and inspection report and action report was prepared at the site which were proved as Ex. DW1/1 and Ex.DW1/2 respectively. He stated that the bill was CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 7 of 16 raised as per rules against the plaintiff.
On being cross examined by Ld. Counsel for the plaintiff Sh. Arun, he stated that he had not checked the previous record of the plaintiff when they had gone to inspect his premises. He stated that he did not know as to whether any request had been received from the plaintiff for checking the meter which was running fast. He admitted that Ex. PW1/1 has been issued by their office. He also admitted that meter testing form Ex. PW1/2 and document Ex. PW1/3 had been issued by their office. He admitted that the meter of the plaintiff was running fast as mentioned in Ex. PW1/3. He further stated that his Head of Department had directed him to inspect the premises of the plaintiff but no written order was given to him. He admitted that meter in question was not sent to any Laboratory since no such Laboratory was available with the NDPL at that time. He stated that he did not know that as to whether during the relevant time the meters used to be sent to Gujarat for testing in NABL Laboratories. He denied that he has prepared a false inspection report and has falsely implicated the plaintiff. He admitted that the sanctioned load of plaintiff was 5 KW. He denied that air conditioner and microwave were not installed at the premises of the plaintiff. He admitted that he had not used the clip on meter to check the connected load of the plaintiff. He admitted that all the electrical appliances can not be used at the same time. He admitted that plaintiff was present at the site. He stated that he had not studied the consumption pattern of the plaintiff.
He admitted that at the time of inspection the retained meter was CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 8 of 16 intact which was removed by him for inspection. He stated that he did not know whether all the seals were broken open by the meter testing department when he had visited the premises of the plaintiff for checking whether the meter was running fast. He stated that he could not say anything about seals affixed by NDPL at the time of inspection of the meter were broken by the meter testing department. He could not say if all the seals of the meter box of the plaintiff were found to be OK. He admitted that plaintiff can not have access to the inside seals of the meter. He admitted that he had not noted down the number of previous seals before inspection. He admitted that he had not compared the seal numbers with the previously installed seal numbers. He admitted that Ex. PW1/10 has been issued by his department.
8) DW2 Sh. S C Ahuja tendered his evidence by way of affidavit Ex. DW2/A and stated that he is the authorized representative of the defendant company and is well versed with the facts of the case. He stated that inspection was carried out as per DERC rules by the raiding team of the defendant company on 29.07.2013. He stated that he had not signed the written statement Ex. DW2/A. On being cross examined by the Ld. Counsel for the plaintiff, he stated that he has no personal knowledge of the present case and his statement is based on record. He admitted that he was not a member of the inspecting team.
CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 9 of 16
9) No other defence witness was examined and defendant's evidence was closed.
10) I have heard final arguments on behalf of Ld counsels for the parties and have gone through the case file and documents placed on record. I will decide issue no.3 first as the outcome of issue no.1, 2 & 4 shall depend on the finding of issue no.3.
11) Ld counsel for the plaintiff has stated that the plaintiff has been falsely implicated in this case and that no theft was detected at his premises at any point of time. He also submits that testimony of witness examined by defendant is not trustworthy and be discarded. It is also submitted by the Ld counsel for the plaintiff that he has been paying bills towards consumption of electricity regularly and therefore he be granted relief sought by him.
12) Ld counsel for the defendant on the other hand has refuted the claim of the plaintiff and has argued to the contrary.
13) Having heard the rival contentions raised by Learned Counsels for the plaintiff Shri Arun Kumar as well as Ld counsel for the defendant company and having carefully gone through the record, my issuewise findings are as under: CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 10 of 16
14) ISSUE NO.3 "Whether the plaintiff had indulged in dishonest abstraction of energy during the inspection dated 29.07.2013? OPD"
The onus to prove issue no.3 was upon the defendant. Let me examine the testimony of witnesses of the defendant as to whether defendant has been able to prove that the plaintiff had indulged in dishonest abstraction of energy.
15) As per testimony of DW1 Shri Vinod Kumar Singhal and the documents filed on record i.e inspection report. The inspection in this case pertains to meter no. 4512630 bearing K. no. 31400144127 which is the meter retained at site. It is not the case of the defendant that the electricity was being consumed through meter in question (old meter). It is also not the case of the defendant that the plaintiff was committing theft of electricity by illegal means. The case of the defendant is that following irregularities were found at the time of inspection: * A load of 10.653 KW was found connected against the sanctioned load of 5 KW for Domestic Light purpose.
* During inspection two illegal holes were found on back side of the meter opposite to incoming and outgoing phase terminal respectively.
* After segregation black wire of incoming neutral was found fixed on the terminal screw.
CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 11 of 16 On the basis of the same it was presumed that the plaintiff had been committing theft of electricity by dishonest abstraction of energy.
16) The plaintiff on the other hand has proved Ex. PW1/1 which is an application for checking the meter, Ex. PW1/2 which is meter testing form and Ex. PW1/3 which is meter replacement form. DW1 has admitted all the three documents having being issued by the department. It is thus proved with the help of Ex. PW1/1 that the plaintiff himself had lodged a complaint with the defendant company that meter was running fast and therefore it be replaced with a new meter. It has also been proved with the help of Ex. PW1/2 that meter no. 4512630 had been tested by the officials of the defendant company and it is clearly mentions in the remark column that "MDI was found corrupted and meter needs replacement'. This meter testing form and remarks are dated 18/07/2013. Therefore as on 18/07/2013 as per documents of defendant company itself the meter was giving incorrect reading and its MDI had been found to be incorrect and they advised that the meter needs replacement.
17) With the help of Ex.PW1/3 which is meter replacement form, it is proved that a new meter was provided to the plaintiff on 29/07/2013. It is mentioned in this form that old meter i.e no.4512630 was found faulty and therefore needed change. It is also mentioned with this document that meter display was faulty. Therefore on the date of inspection i.e 18/07/2013 the CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 12 of 16 NDPL officials had not found any irregularities in the meter in question. Neither they had found any seals tampered with as alleged in the later inspection dated 29/07/2013. It therefore creates doubt that if the old meter was found faulty as per old report of the defendant company, why no illegality was noticed by the inspection team which had carried out the inspection of the meter in question on 18/07/2013 and how they had found the irregularities and illegalities mentioned in the later report dated 29/07/2013. Therefore either of the reports dated 18/07/2013 prepared by the old officials of the defendant or inspection report dated 29/07/2013 was correct.
18) The meter in question has not been sent to any lab neither it has been produced in the court to prove that the plaintiff had indulging in dishonest abstraction of energy. The consumption analysis report was also not filed to prove any discrepancy in the consumption analysis to prove dishonest abstraction of energy at the relevant point of time.
19) Even otherwise on the date of inspection the electricity was not being consuming through meter in question i.e old meter therefore it could not be proved that plaintiff had indulged in dishonest abstraction of energy at the premises i.e house bearing no. 78, First Floor, SFS Flats, Dr. Mukherjee Nagar, Delhi. The burden to prove this issue was on the defendant who has failed to discharge this burden. Therefore, issue no. 3 is decided against the defendant and in favour of the plaintiff.
CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 13 of 16 20) Issue no. 1
"Whether the plaintiff is entitled for a declaration to the effect that the inspection report dated 29.07.2013 is null and void? OPP"
Since issue no.3 has been decided in favour of the plaintiff and against the defendant there is no need to discuss issue no.1 in detail and it is declared that the inspection report dated 29/07/2013 is null and void.
21) Issue no.2 "Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendant, its agents, employees, associates, officers/ officials not to disconnect the electricity supply of the plaintiff through K. No. 31400144127 installed at H. No. 78, Ist Floor, SFS Flats, Dr. Mukherjee Nagar, Delhi? OPP "
The relief of injunction is a discretionary relief. The person who approaches the court for the same needs to establish that a legal right exist in his favour having corresponding obligation upon the opposite party. The plaintiff is however, required to establish that the opposite party is adamant to violating his existing legal right and needs to be prevented from doing so. In this case the plaintiff has established that he has been using the electricity connection for domestic purpose and has never misused the same for any other purpose. The plaintiff has also established that the meter in question CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 14 of 16 was old meter and load was transferred to the new meter and further that he is regularly making the payment of the electricity bill from time to time raised by the defendant. The plaintiff has further succeeded in proving that the inspection report dated 29/07/2013 was illegal. It is also established while deciding issues that plaintiff was not indulging in dishonest abstraction of energy during the inspection dated 29/07/2013, hence he is, entitled to the discretionary relief of permanent injunction restraining the defendant, its employees, agents from disconnecting the electricity supply through K.No. 31400144127 installed at the premises of the plaintiff i.e. House no.78, Ist Floor, SFS Flats, Dr. Mukherjee Nagar, Delhi for not making the payment of the bill dated 07/11/2013 which has been declared to be illegal and null and void.
22) RELIEF In view of the findings on issue no.1 and 2 the plaintiff is entitled to grant of permanent injunction as claimed for. Accordingly a decree of declaration is passed in favour of the plaintiff and against the defendant declaring the inspection dated 29/07/2013, final assessment bill dated 07/11/2013 of Rs. 57,373/ as illegal and null and void.
23) Further a decree of permanent injunction is passed in favour of the plaintiff and against the defendant restraining the defendant its employee, agents or any other person representing it are restrained from disconnecting CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 15 of 16 the electricity supply through K.No. 31400144127 installed at the premises of the plaintiff i.e. House no.78, Ist Floor, SFS Flats, Dr. Mukherjee Nagar, Delhi for not making the payment of the bill dated 07/11/2013 which is based on the illegal inspection dated 29/07/2013.
24) In view of above terms, the suit of the plaintiff is decreed with no order as to costs. Decree Sheet be prepared accordingly.
25) File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON 13 TH OCTOBER, 2015.
(SWARANA KANTA SHARMA)
ASJ (ELECTRICITY) NW
ROHINI :DELHI:(M)
CS no. 133/13 (Gurpreet Singh Vs TPDDL) Page no...... 16 of 16