Delhi District Court
M/S Bhagwan & Sons vs . Ndpl on 12 August, 2013
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE-14, CENTRAL, THC, DELHI
M/S BHAGWAN & SONS Vs. NDPL
Suit No. 80/11
Unique ID No. 02401C0074862000
M/S BHAGWAN & SONS
THROUGH ITS PARTNER SH. KULDEEP KUMAR
SON OF LATE SH. BHAGWAN DASS
SHOP NO. 2-G, JAWAHAR NAGAR,
DELHI-110007.
...... PLAINTIFF.
Vs.
NORTH DELHI POWER LTD.
THROUGH ITS CHIEF EX. OFFICER
HUDSON LINES, KINGSWAY CAMP
DELHI-110009
..... DEFENDANT
DATE OF INSTITUTION OF THE CASE :07.07.2000
DATE ON WHICH RESERVED FOR ORDER :31.07.2013
DATE OF ORDER/ JUDGMENT :12.08.2013
CS No. 80/11
M/s Bhagwan & Sons Vs. NDPL Page No. 1 of 17
JUDGMENT:
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
1. The present suit has been filed on behalf of the plaintiff against the defendant for permanent injunction seeking to restrain the defendant from disconnecting the electricity supply. Later on the suit was amended to add the relief of declaration seeking the impugned inspection report and the demand to be declared as null and void.
2. In brief the facts of the case are that the plaintiff is the registered consumer in respect of electricity connection bearing K. No. 3082407 for non- domestic purposes for a sanctioned load of 10 KW. That the plaintiff is a registered partnership concern and suit has been filed by its partner. That the meter reader of the defendant visits the premises of the plaintiff for obtaining reading and he reported the higher authorities in February, 1998 that the meter is faulty and glass is broken. That plaintiff has never CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 2 of 17 committed any default and there is no dispute between the parties till the billing month of December, 1997.
3. It is further averred that plaintiff made a complaint in the office of defendant on 08.01.1998 regarding the broken glass and for replacement of meter. But defendant did not replace the meter till the end of December, 1999. Later, on 16.01.1999 the officials of the defendant visited the premises and noted down the working of existing meter and found that meter was checked on each phase and on external hearing load of 3 KW but did not check the accuracy of the meter and observed that both the seal of the meter were intact and OK and that the glass of the meter was found broken. That the plaintiff filed a complaint bearing no. 3049/99 before the Consumer Dispute Redressal Forum and an order dated 08.06.2000 was passed with the direction to the defendant to issue revised bill to the complainant for the period the meter was not in working condition and to refund the excess amount recovered.
4. That the plaintiff received a provisional final theft bill amounting to Rs. 1,45,660.21 payable on or before 13.07.2000 and Rs. CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 3 of 17 2,18,490.31 payable after the due date. That the said demand is illegal and liable to be withdrawn as no show cause notice has been issued prior to the service of the said demand and no opportunity of hearing was given to the plaintiff and the plaintiff has never committed any theft of electricity. Thus, the plaintiff is entitled to declaration and injunction as prayed for.
5. In WS filed on behalf of the defendant, it is stated that an inspection was conducted in the premises of the plaintiff on 25.10.1994 when the connection load was found to the tune of 14.814 KW. That the inspection load report was prepared on the spot but since MTD (Meter Testing Department) staff member was not available and hence the working condition of the meter could not be checked. The same was checked by MTD staff member along with member of Enforcement Cell on 16.01.1999 in the presence of the representative of the plaintiff. The MTD report was also prepared. On that basis the consumption pattern were analyzed the abnormal disparities found between the average recorded consumption and the computed consumption on the basis of connected load found at CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 4 of 17 the time of inspection dated 25.10.1994 when the connected load was found to be 14.814KW, a 24 hours show cause notice was sent to the plaintiff and the FAE bill was accordingly raised.
6. In replication besides the denial to the averments of the WS, it is stated that inspection was conducted on 25.10.1994 but it has been denied that the load found at the time of inspection was 14.814 KW and that the inspection report was prepared at site.
7. Vide order sheet dt. 06.09.2001 my Ld. Predecessor framed the following issues, which are as under:-
1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP.
2. Relief.
Later after the amendment another issue was framed on 17.10.2008 as under:-
1A. Whether plaintiff is entitled to relief of declaration, as prayed for? OPP.
8. To support its contention Sh. Kuldeep Kumar appeared in the witness box as PW-1 and filed in affidavit in evidence. The CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 5 of 17 documents filed and relied upon by him are partnership deed Ex PW 1/1, registration form-B Ex PW 1/2, electricity bill Ex PW 1/3 to Ex PW 1/19 & Ex PW 1/24, letter dated 08.01.1998 regarding change of meter Ex PW 1/20, letter dated 13.10.1998 regarding change of meter Ex PW 1/21, letter dated 21.05.1999 Ex PW 1/22, letter dt. 02.06.1999 Ex PW 1/23, final theft bill Ex PW 1/25, current demand bills Ex PW 1/26 to Ex PW 1/28. On the other hand, defendant got examined Sh. M. M. Sharma as DW-1 his affidavit in evidence being Ex DW 1/A dt. 05.09.2007. The document filed on behalf of the defendant is inspection report mark C, mark A and show cause notice mark B.
9. I have heard the arguments and perused the record. My issue- wise disposal of the present suit is as under:-
10. Issue No. 1 and 1A:-
Issue No. 1:- Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP.
Issue No. 1A:- Whether plaintiff is entitled to relief of declaration, as prayed for? OPP.CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 6 of 17
Both issues involve common discussion hence, they are decided together. In the present case theft bill has been raised against the plaintiff allegedly on the basis that there is a hole/ gap i.e. tampering in the meter and meter and meter terminal cover was not found to be existing. That defendant has raised the said impugned theft electricity bill on the basis of abnormal disparities found in between the average recorded consumption and the computed consumption made on the basis of connected load found at the time of inspection dated 25.10.1994 when the connected load was found to be 14.814 KW. The date of inspection in respect of impugned bills is dated 16.01.1999 and admittedly the sanctioned load is 10KW.
11. It is the contention of the plaintiff that no show cause notice has been issued prior to the service of said demand and an opportunity of hearing has also not been provided to the plaintiff. That plaintiff has also contended that the glass of the meter was already broken and several letters have been written to the defendant to replace the CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 7 of 17 meter but the same was not done. The consumption complaint was also filed by the plaintiff in which the defendant was also held guilty of deficiency of service and was directed to issue a revised bill to the complainant for the period the meter was not in working condition till the meter is replaced and to refund the excess meter, if any, recovered from the complainant i.e. the plaintiff. The passing of the order by the Hon'ble Consumption Dispute Redressal Forum is not denied by the defendant. In the meter allegedly tampering was found on the date of inspection i.e. 16.01.1999 carried out by the officials of the Enforcement Cell MTD.
12. It is observed that in the affidavit in evidence Ex DW 1/A of the witness DW-1 appearing on behalf of the defendant, it is stated that during the inspection dt. 16.01.1999, on checking of the meter in question it was found that there was a created hole/ gap between upper and lower part of the body at meter in left hand side by cutting gasket though which digits/ dial is accessible, meter terminal cover found not existing. It is further stated that MTD report was prepared by Sh. R. K. Suneja, Superintendent Enforcement. The CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 8 of 17 witness DW-1 was cross- examined on this aspect on 08.01.2013 in which he stated that he does not know whether any artificial means to control the consumption of electricity were found in the meter at the time of inspection. The witness further volunteers to state that he does not belong to the MTD. The relevant portion of the cross- examination in this regard is reproduced as under:-
" I do not know whether any artificial means to control the consumption of electricity were found in the meter at the time of inspection. Vol. I did not belong to the MTD (Meter Testing Department). I do not remember whether any photographs were taken at the time of inspection. I do not remember whether the meter in question was tested by any laboratory on the date of inspection or subsequently. I did not pass any speaking order regarding inspection. Vol. The same is being done by my AE. I do not also remember who was present from the side of the consumer at the time of inspection."
It is pertinent to note that DW-1 was the same person who carried out the inspection on 16.01.1999 on behalf of the Enforcement. But he did not belong to the meter testing department (MTD). Further, the witness DW-1 has been asked whether he can produce any documentary evidence/ photographs regarding the hole/ gap in the meter to which he replied that there might be some photographs CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 9 of 17 placed in the inspection file but the same has not been brought. It is thus seen that whatever depositions have been made in the affidavit of DW-1 the same relates to the discrepancies/ defects allegedly found in the meter upon which the MTD report was even prepared. But the witness DW-1 examined by the defendant does not belong to the MTD and therefore has not been able to answer on any aspect regarding any kind of tampering with the meter. He even does not know whether any photograph was taken at the time of inspection or whether the meter was tested by any laboratory on the date of inspection or subsequently. The witness DW-1 has thus not been able to answer the relevant queries related to the alleged artificial means created in the meter. Even the relevant inspection file was not brought by the witness. It is further pertinent to note that any other witness such as the concerned AE was even not examined on behalf of the defendant especially in light of the above noted cross-examination of DW-1 wherein it was incumbent upon the defendant to have examined concerned official from the MTD who could depose about the alleged tampering with the meter. CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 10 of 17
13. The plaintiff has relied upon a number of judgments with regard to the discrepancies made out in the case of FAE/ DAE. The reliance is placed upon Col. R. K. Nayyar Vs. 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" .CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 11 of 17
21. The Hon'ble High Court of Delhi also relied upon the judgment of the Hon'ble Supreme Court of India in " Jagannath Singh Vs. Ramaswamy, (1966) 1 SCR 683" where the Hon'ble Court has held as under:
" An exposure of a stud hold 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 hold, 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."
22. The Hon'ble High Court of Delhi also relied upon the judgment of the Hon'ble Supreme Court of India in " Ram Chandra Vs. State of Bihar, 1967 CriLJ 409" . In that case a wire had actually been inserted CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 12 of 17 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.
23. The Hon'ble High Court of Delhi further held in R. K. Nayyar's case (Supra) that:
" 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 'dishonestly' 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."
14. Another aspect noted in the facts of the case is that prior to the inspection in question, earlier inspection was carried on 25.10.1994 in which the defendant alleged that connected load was found to be 14.814 KW. It is not in dispute that meter was not tested on the said earlier date of inspection i.e. 25.10.1994. Now it is seen that CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 13 of 17 defendant has alleged in the WS that the FAE bill in question has been raised on the basis of abnormal disparities found in between the average recorded consumption and the computed consumption on the basis of connected load found at the time of earlier inspection dated 25.10.1994. It is here pertinent to note that earlier inspection report mark C ' ' dated 25.10.1994 nowhere mentions the said connected load of 14.814 KW. Moreover, the said inspection report has not even been proved by the defendant. Here, it is observed that after a long period of about five years another inspection which is in question, has been carried out and the bill demand has been raised on the basis of previous inspection wherein admittedly there was no testing of the meter and thus FAE bill in question has been raised without any basis. It is also noted in the final theft bill Ex PW 1/25 that it refers the date of inspection as 25.10.1999.
15. In light of above facts and the rulings applicable, it is here seen that the defendant has failed to prove that FAE was being committed by the plaintiff as on the date of inspection. CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 14 of 17
16. It is also argued by the counsel for the defendant relying upon Tarlok Singh Vs. Vinay Kumar Sabharwal (1996) 8 SCC 367, that the relief for declaration cannot be claimed in the present suit as the same was added by way of amendment after the expiry of the limitation period of three years and the said relief, being time barred, cannot be granted. Here, it is seen that the said relief of declaration is merely for declaring the impugned inspection report and the demand as null and void. There are no new facts averred for the said relief and the said relief flows directly from the same set of facts along with the relief of injunction and therefore cannot be said to be a new relief stricto sensu as substantive relief and the plaintiff cannot be denied of the same merely on the basis that it was added by way of amendment after the expiry of the period of limitation of three years. The said relief even did existed as on the date of filing of the present suit. Hence, this contention of the defendant does not hold any ground.
17. Another contention raised on behalf of the defendant that since the plaintiff did not pay any amount towards the demand raised on CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 15 of 17 4 X 3 basis or on 6 X 3 basis and even the due date for the payment of bill has expired and therefore the plaintiff ought to have valued the present suit on the higher amount as calculated on the basis of 6 X 3 basis and not on the basis of 4 X 3. Here, it is seen that the amount of bill payable at 4 X 3 is Rs. 1,45,660.21/- upon which the present suit has been valued and the court fees has been paid and the amount of bill on 6 X 3 basis is Rs. 2,18,490.31/- which is an amount payable after due date. In this context, the relief as claimed by the plaintiff is seen in which it is prayed that impugned inspection report and impugned demand are Rs. 1,45,660.21 and Rs. 2,18,490.31/- be declared as null and void. The plaintiff has claimed that both amounts be declared null and void. The amount with respect to the impugned theft bill has also not been paid by the plaintiff and therefore the present suit ought to have been valued at the higher amount i.e. at Rs. 2,18,490.31/-. The suit is accordingly valued on the said amount and the plaintiff is directed to deposit the deficit court fees for the same. In light of the above discussion, both issues no. 1 and 2 are decided in favour of the plaintiff and CS No. 80/11 M/s Bhagwan & Sons Vs. NDPL Page No. 16 of 17 against the defendant.
RELIEF In view of the above discussion, the suit of the plaintiff is decreed and the inspection report dated 16.01.1999 and the bills raised on its basis are declared null and void and the defendant is restrained from disconnecting the electricity supply from the electricity connection of the plaintiff bearing K. No. 3082407 installed at shop no. 2-G, Jawahar Nagar, Delhi-07 on account of said basis. This order shall be effective on the payment of the deficit court fees, as observed above, by the plaintiff.
In the circumstances of the case, no order as to costs. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Announced in open Court (PRANJAL ANEJA)
on 12.08.2013 CIVIL JUDGE-14, CENTRAL
THC/DELHI/12.08.2013
CS No. 80/11
M/s Bhagwan & Sons Vs. NDPL Page No. 17 of 17