Delhi District Court
Jai Prakash vs Bses Rajdhani Power Ltd on 2 March, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL.
SESSIONS JUDGE (NW)-II: ROHINI DELHI
CS No. 80/2008
Jai Prakash
House No. 614,
Mandir Marg, Bhooto Wali Gali,
Village Nangloi,
Delhi-41
........ Appellant
Versus
1. BSES Rajdhani Power Ltd.
Service through its CEO
BSES Bhawan, Nehru Place,
New Delhi
2. Sh. Pradeep,
C-135, Laxmi Nagar,
Nangloi, Delhi
......... Defendants
Date of Institution: 8.5.2008
Arguments heard on: 9.2.2010
Date of Decision: 2.3.2010
-: J U D G M E N T :-
This suit for declaration and mandatory injunction
has been filed by the plaintiff Jai Prakash against the
defendants. Briefly the facts relevant to the disposal of the
same are as under:
1
BRIEF FACTS:
Plaintiff's Case:
The case of the plaintiff is that he is the registered consumer of the defendant at the above mentioned address with sanctioned load of 37.30 KW vide K.No.2630 0A060030 and in the month of August, 2007 the electricity meter got burnt pursuant to which a complaint was lodged to this effect and the defendant changed the existing meter with the new meter on 20.8.07. According to the plaintiff, in the month of August, 2005, the property was let out for godown purposes for two years and after vacated the same by the said tenant it was again let out in the month of November, 2007 to defendant no.2 who started his business/ workshop of molding machine/ plastic cutting machine. It is pleaded that the previous tenant and present tenant used to pay the electricity charges as per consumption regularly without any default as per meter reading/ consumption shown on the meter and has been making payment of the electricity bills as and when raised and received by them as per consumption recorded in the meters. 2
The plaintiff is stated to be the owner of the property is question where the electricity connection was installed and he used to receive rent of the property excluding electricity and water charges. On 13.12.07 an inspection was carried by the defendant officials in the absence of plaintiff and it was told to the staff of the tenant of plaintiff that they are on routine meter checking and after checking the meter they did not find any irregularity in the meter as the same was in proper condition after which they left the premises. It is alleged that in the month of March, 2008 the tenant of the plaintiff received the bill payable on 11.3.08 wherein they have demanded Rs.13,05,111/- with theft assessment charges showing the remark on the bill i.e "Meter Tempering". It is pleaded that neither the plaintiff nor his tenant ever touched the meter since the day of installation till day and the same is still in existence at the spot in the same position and has not been sent anywhere for testing. According to the plaintiff, the defendant has also claimed the connected load of 69.87 KW as per their assessment against the sanction load of 37.3 KW which is 3 patently wrong since the actual connected load in the tenanted premises of the plaintiff is 39,458 KW (approximately) against the sanctioned load 37.3 KW. The plaintiff has provided the details of the various installations alongwith their loads. It is further alleged that the plaintiff has arbitrarily raised the huge demand assessed on their presumption knowing fully well that the said load is much more than the sanctioned load of the plaintiff and the total connected load cannot be used at one time together and if all the items are being used at one time even then the total concocted load is approximately equal to the sanctioned load. According to the plaintiff, he has been paying the bills as per meter reading as raised by defendant and all the bills raised by the defendant were regularly made to the defendant by the plaintiff/ tenant since installation of the meter is the name of the plaintiff. According to the plaintiff, he visited the office of the defendant and requested them to correct the bill in their record but neither the defendant corrected the bill nor they disclosed how and on what basis they have calculated the energy charges in the bill and have 4 raised the bill arbitrary and illegally. It is alleged that the defendant has been threatening to disconnect the electricity supply on the basis of illegal, arbitrarily impugned demand and also threatened to lodge a FIR against the plaintiff if the impugned demand is not deposited. It is stated that the defendant wants to recover the impugned bill of Rs.13,05,111/- by coercive methods i.e by threat of disconnection of electricity supply and by lodging FIR since the officials of defendant visited the premises and threatened the plaintiff/ tenant that the supply will be disconnected in case he fails to pay the impugned bill till 27.4.2008. According to the plaintiff the defendant no.2 is a performa party and no relief has been claimed against him.
Defendant's Case:
In their written statement the defendant no.1 has stated that three phase electronic meter bearing No.27091466 installed against K.No.2630-0A06-0030 in favour Shri Jai Prakash, was replaced on 20.8.2007 as the meter was reported to be burnt and at the same time it was sealed in the presence 5 of consumer representative. Supply of the consumer was restored through new electronic meter bearing No.27099624 against the old meter of plaintiff and since the sealed old meter was suspected to be tampered, it was sent to the meter testing lab in sealed condition for further testing/ analysis under intimation to the consumer that he may witness the testing of the meter in a lab on 30.8.2007. It is stated that as per Meter Test/ Analysis Report No.27239 dated 6.9.07, the hologram seals of the meter was found burnt, meter was found totally burnt, accuracy of the meter could not be done due to burnt terminal, there was no display and the data could not be downloaded and testing lab observed meter deliberately burnt. On the basis of the Meter Test/Analysis Report dated 6.9.2007, the premises of the plaintiff was inspected by the authorized Enforcement Inspection Team on 13.12.2007 during which a load of 69.879 KW (IX) was found to be used by the plaintiff for industrial purposes sanctioned load of 37.3 KW (IX). A load report in the form of Assessment of Connected Load vide L.R. No.4053 and Meter Report in the form of inspection 6 report (Meter Detail) vide M.R. No.13231 were prepared at site. The representative of the plaintiff was present during the entire process of the inspection but refused to sign and receive the copy of meter report and load report. On the basis of the above irregularities in the metering equipment Show Cause Notice dated 13.12.2007, regarding suspected Dishonest Abstraction of Energy i.e DAE was served to the plaintiff along with the meter report and load report by post with request to attend the Personal Hearing on 24.12.2007 as per Tariff Provision and DERC Regulations but plaintiff did not avail the opportunity of personal hearing and thereafter a final notice dated 29.12.2007 was issued to attend the personal hearing on 8.1.2008 but again the plaintiff did not respond to show cause notice.
According to the defendant no.1, the consumption pattern was studied and it was found that the average recorded consumption for the period 9.4.07 to 20.4.08 shows an average recorded consumption of 219 units per month which has been found to be only 2.1% of the computed consumption. The new 7 meter bearing No.27099624 has recorded consumption of 4262 units per month during 17.11.2007 to 14.1.2008 and maximum demand of 30.72 KW on 19.12.2007 and 30.08 KW on 14.1.2008 which consumption recorded by meter No.27091466 is very low. Therefore, the Assessing Officer reached to the conclusion that it was a clear case of DAE under Delhi Electricity Supply Code and Performance Standards Regulations 2007 and Section 135 and 138 of Electricity Act, 2003 after which he passed a Speaking Order on 11.2.2008, establishing it as a case of DAE. On the basis of above Speaking Order dated 11.2.2008 and as per Provision of Tariff and DERC Regulations, DFO (Enf.) raised a DAE bill amounting to Rs.12,73,157/- with due date 11.3.2008 which is as per Tariff Provision and DERC Regulations and therefore, the plaintiff is liable to make the payment of DAE Bill. It is pleaded that the plaintiff had failed to make the payment of DAE bill within the stipulated period and accordingly a criminal complaint against plaintiff has also been filed before the Hon'ble Special Court under Provision of Electricity Act, 8 2003. A preliminary objection has been raised that the plaintiff has not approached the Hon'ble Court with clean hands and suppressed the material facts and hence he is not entitled to the discretionary relief of declaration and equitable relief of injunction as prayed and the suit of the plaintiff is liable to be dismissed.
It is further stated that the plaintiff has filed the present suit for declaration and permanent injunction and is seeking direction/ declaration against the defendant to declare the demand of Rs.13,05,111/- whereas the net theft assessment amount is of Rs.12,73,157/-, as such the plaintiff is liable to pay the ad-valorem Court fee on the amount of Rs.12,73,157/- for the purpose of Court fee and jurisdiction.
On merits, the defendant no.1 has denied all the allegations made against them by the plaintiff. It is stated that as per videography the premises is being used for processing of PVC dana by installing PVC extruder, mixer machine, cutting machine and grinding machine with the connected load of 69.879 KW and during the inspection, plaintiff was found 9 indulging in DAE by way of tampering in the metering equipment.
ISSUES FRAMED:
On the basis of the pleadings of the parties, this court has vide order dated 30.9.3008 framed the following issues:
1. Whether the plaintiff has not approached this court with clean hands and had burnt the meter bearing No. 27091466 installed against K. No. 2630-0A06-0030 in favour of the plaintiff? (OPD)
2. Whether the plaintiff is entitled to the relief of declaration as asked for in the plaint? (OPP)
3. Whether the plaintiff is entitled to the relief of permanent injunction as asked for in the plaint? (OPP)
4. Relief.
EVIDENCE:
In order to prove his case the plaintiff has examined himself as his sole witness as PW1 and in his examination in 10 chief by way of affidavit he has corroborated what has been earlier stated in the plaint. He has placed on record the notice under Section 56 of Electricity Act, 2003 which is Ex.PW1/A; meter change report which is Ex.PW1/B; various paid electricity bills from January 2007 to February 2008 which are Ex.PW1/C to Ex.PW1/M. In rebuttal the defendants have examined as many as three witnesses. DW1 Saurabh Vashistha, GET has proved the lab report dated 6.9.2007 which is Ex.DW1/1 and the photographs of the burnt meter which are Ex.DW1/2 to Ex.DW1/4.
DW2 Ajay Sharma was the member of the inspecting team and in his examination in chief by way of affidavit he has corroborated what has been earlier stated in the written statement. He has placed on record the load report which is Ex.DW2/1; MTD report which is Ex.DW2/2; copy of the show cause notice dated 13.12.2007 which is Ex.DW2/3 and CD of the videography of the inspection which is 11 Ex.DW2/4.
DW3 Sudip Bhattacharya has in his examination in chief by way of affidavit has placed his reliance on the show cause notice dated 29.12.2007 which is Ex.DW3/1; copy of the receipt of speed post which is Ex.DW3/2; the consumption pattern/ reading detail which is Ex.DW3/3; speaking order dated 11.2.2008 which is Ex.DW3/4 and the impugned demand which is Ex.DW3/5.
FINDINGS:
I have heard the arguments advanced before me by the counsels for the parties and have gone through the records of the case. My findings on the various issues are as under: Issue no.1 Whether the plaintiff has not approached this court with clean hands and had burnt the meter bearing no. 27091466 installed against K. No. 2630-0A06-0030 in favour of the plaintiff?
Onus of proving this issue was upon the defendants who in their written statement had raised a preliminary objection that the plaintiff has not come to the court with clean 12 hands and has suppressed material facts due to which reason he is not entitled to any equitable relief. It is pleaded that a three phase electronic meter bearing no. 27091466 installed against K. no. 2630-0A06-0030 in favour of the plaintiff was replaced on 20.8.2007 in the presence of the representative of the consumer and the supply was restored through new electronic meter bearing no. 27099624 against the old meter of the plaintiff. The old sealed meter was suspected to be tampered and therefore, was sent to the lab for analysis/ testing in a sealed condition and the consumer was asked to witness the testing of the meter in lab on 30.8.2007 but he did not report there. The meter test/ analysis report no. 27239 dated 6.9.2007 was received according to which the hologram seals of the meter were found burnt, meter was found totally burnt, accuracy of the meter could not be done due to burnt terminal, there was no display and the data could not be downloaded and the testing lab observed that meter was burnt deliberately. On the basis of the aforesaid report, the premises of the plaintiff was inspected by the authorized Enforcement Inspection team 13 on 13.12.2007 during which a load of 68.879 KW (IX) was found to be used by the plaintiff for industrial purposes against the sanctioned load of 37.3 KW (IX). A load report in the form of Assessment of Connected Load vide LR No.4053 and meter report in the form of inspection report (meter detail) vide MR No. 13231 were prepared at the site in the presence of the representative of the plaintiff who refused to sign and receive the same. On the basis of the aforesaid irregularities in the metering equipment a show cause notice dated 13.12.2007 regarding suspected dishonest abstraction of energy i.e. DAE was served upon the plaintiff alongwith the meter report and the load report with request to attend the personal hearing on 24.12.2007 which opportunity he did not avail and a final notice dated 29.12.2007 was also given to him for personal hearing to which he again did not respond. It was, therefore, observed by the competent officer after analyzing the various reports and after studying the consumption pattern that the average recorded consumption for the period 9.4.2007 to 20.4.2008 shows an average recorded consumption of 219 14 units per month which has been found to be only 2.1% of the computed consumption and the new meter has recorded consumption of 4262 units per month during 17.11.2007 to 14.1.2008 and maximum demand of 30.72 KW on 19.12.2007 and 30.08 KW on 14.1.2008, showing that the consumption record by the meter no. 27091466 was very low and hence it was concluded that it was a case of DAE. A detailed speaking order was passed on 11.2.2008 on the basis of which the impugned demand for a sum of Rs.12,73,157/- was raised since the plaintiff had failed to make the payment of the same, a criminal complaint against the plaintiff was filed before the Ld. Special Court.
In order to discharge the onus upon it, the defendants have examined three witnesses namely Saurabh Vashistha, Ajay Sharma and Sudip Bhattacharya. DW1 Saurabh Vashistha is the witness from the BRPL Meter Testing Lab who has proved the lab report which is Ex.DW1/1 bearing the signatures of Manish Wadhani and Saurabh Purukayastha who had tested the meter and had now left the services of the 15 defendant. He has also proved the photographs of the burnt meter which are Ex.PW2/1 to Ex.DW2/4. According to him, despite the consumer having advised to watch the testing none had appeared on 30.8.2007. The request letter dated 20.8.2007 addressed to the consumer is Ex.PW1/DX1 to which there is no rebuttal. The witness has stated that on opening of the meter it was found that the hologram seals of the meter were found totally burnt, accuracy of the meter could not be done due to burnt terminal, there was no display due to which reason the data could not be downloaded. The said witness has not been cross-examined despite a specific opportunity granted in this regard and his entire testimony has gone unrebutted.
Sh. Ajay Sharma Manager (Enforcement) who was the member of the raiding team, has been examined as DW2 who has proved the load report running into three pages which is Ex.DW2/1; the MTD report which is Ex.DW2/2; show cause notice dated 13.12.2007 which is Ex.DW2/3 and the CD of the videography of the inspection done which has been 16 placed on record as Ex.DW2/4. The said witness in his cross- examination has very clearly deposed that at the time of the raid labourers were found working in the premises and he had also prepared the notice at the site on 13.12.2007 but the persons at the spot refused to receive the notice. According to him, he had not pasted the notice at the spot on account of resistance but had only made observations in the notice itself. He has deposed that all the machines were in running condition at the time of inspection and has denied the suggestion that they were not running at the relevant time. DW3 Sudip Bhataacharya, Manager (Enforcement) has passed the speaking order dated 11.2.2008 which is Ex.DW3/4 on the basis of which the impugned demand Ex.PW3/5 for a sum of Rs.12,73,157/- has been raised. He has specifically deposed that after considering the circumstances of the case and thorough analysis of the report placed before him, he had passed the speaking order. According to him, despite repeated notices the consumer did not attend the personal hearing being 17 offered to him. The witness has also deposed that he had studied the consumption pattern and found that the average recorded consumption for the period 9.4.2007 to 20.4.2008 shows an average recording consumption of 219 units per month which has been found only 21% of the computed consumption, which consumption pattern is Ex.DW3/3 and thorough analysis of the same would established the existence of DAE.
In rebuttal the plaintiff Jai Prakash has examined himself as his sole witness as PW1 and in his examination in chief by way of affidavit he has corroborated what has been earlier stated in the main plaint in toto. In his cross- examination, he has admitted that at the time of inspection, the premises were under the tenancy of one Mr. Yadav who was running his moulding and plastic machines in the premises. According to him, two months prior to the date of inspection the said Mr. Yadav vacated the premises. He admits that since the year 2005 till 6.9.2007 Mr. Yadav was doing his industrial activities in the premises. He further admits that he has not 18 filed any rent agreement on record but has deposed that the rent is Rs.5,000/- per month excluding electricity and water charges. He has further admitted that the premises is still under the possession of another tenant namely Pradeep and that on 20.8.2007 the meter bearing no. 27091466 was changed. The witness has deposed that he is not residing in the premises and only visiting the premises occasionally. He has admitted that while changing the meter, the old meter was got sealed. According to him, neither he nor Mr. Yadav had visited the lab. He is unable to tell whether there was no display in the meter and also whether the meter was deliberately burnt and he was not visiting the premises which was being used by the tenant Mr. Yadav. The said witness in his cross-examination has not been able to give the details of the installations at the site and states that he does not know where the load mentioned against the various machines in para 11 of the affidavit has been taken. He is also not aware if extruder, cutting machine, mixture machine, grinder machine and cutter are lying installed in the premises or if any submersible pump is lying installed in 19 the premises.
Written synopsis of arguments have also been filed by both the parties. I have considered the rival contentions and the authorities placed on record which are as under:
1. Hasi Mazumdar & Anrs. Vs. The West Bengal State Electricity Board & Ors. reported in AIR 2006 Calcutta
59.
2. Usha Beltron Ltd. & anr. Vs. Bihar State Electricity Board & Ors. reported in AIR 2000 Patna 183.
It is settled law laid down by our Hon'ble High Court in the case of Jagdish Narain vs. NDPL, reported in 140(2007) DLT 307 that :
"Mens rea" or intention of consumer to dishonestly abstract electricity must be proved "conclusively" to bring home charge of DAE- Automatic presumption of DAE on basis of external symptoms of tampering together with analysis of consumption pattern nor safe and error-
20 free method. Inference of DAE should not be permitted to be drawn on mere fact that meter had been found with broken seals - It would be impermissible for respondent to treat all categories of consumers on same footing when it proceeds to take action on suspicion of DAE - Penalty formula itself cannot supply proof of DAE or theft - No indication from inspection reports that any device or "film" or "shunt" used to slow down meter - no accu-check apparatus used to determine if meter recording lesser energy than it should"
Therefore, no harassment should be caused to the consumer merely on the discovery of some signs of tampering and the appellant cannot be allowed to charge the consumer for DAE only on the same. In order to book a consumer under DAE a solid proof of theft would be required and mere statement of the witnesses of the department would not be sufficient in this regard. There should exist some collateral 21 evidence to show the intention and the attempt of the consumer to indulge into DAE.
Applying the settled principles to the facts of the present case, firstly it is evident from the record that the sanctioned load of the premises of the plaintiff was 37.3 KW and the plaintiff had inducted one Mr. Yadav as tenant who was carrying on the industrial activities in his premises and running the moulding and plastic machines. Secondly it is also evident from the testimony of PW1 that said Mr. Yadav was inducted in the year 2005 and had been using the premises for industrial activities till September 2007 after which one Mr. Pradeep was inducted in the mother of November 2007. Thirdly it is an admitted case of the plaintiff that on 20.8.2007 the meter bearing no. 27091466 was changed since the burnt meter report was lodged by the tenant. Fourthly it has been proved by the defendant that while changing the meter, the burnt meter was sealed for the purposes of testing/ analysis vide memo dated 20.8.2007 bearing the signatures of son of 22 Mr. Yadav and a letter Ex.PW1/DX1 was handed over to the representative of the plaintiff at the spot who was asked to witness the testing in the lab on 30.8.2007 despite which neither the plaintiff not his representative visited the lab. Fifthly the lab report which has been proved by DW1 and the photographs Ex.DW2/2 to Ex.DW2/4 proved that the meter had been duly opened and tested in the lab and the hologram seals were found burnt; accuracy of the meter could not be done due to burnt terminals; there was no display and the data could not be downloaded which to which reason the lab observed that the meter was deliberately burnt. Sixthly it is admitted by the plaintiff that his tenant had been doing the work of plastic moulding by using extruder in the tenanted premises. Though in his examination in chief by way of affidavit PW1 has mentioned the details of the installations/ appliances alongwith their load yet in his cross-examination he has stated that he does not know from where the load mentioned against the various machines had been taken. On 23 the other hand it is evident from the testimony of DW2 who had inspected the premises, that he has duly proved that the load report wherein the load against each of the installation has been mentioned that that on the date of inspection the connected load was found to be 69.879 KW as against the sanctioned load of 37.30 KW. Seventhly DW3 has placed on record the consumption pattern which reveals that before replacing the meter on 20.8.2007 the recorded consumption was negligible and the plaintiff himself has placed on record the bills for the month of January 2007 showing the consumed units as 226, in February 2007-498 units, March 2007-189 units, in April 2007 - 335 units, May 2007 -193 units, June 2007 240 units and in July 2007 - 670 units which bills are Ex.PW1/C to Ex.PW1/I respectively. The witness DW3 has duly proved that the average recorded consumption for the period 9.4.2007 to 20.4.2008 shows an average recorded consumption of 219 units per month which has been found to be only 21% of the computed consumption, as evident from the 24 consumption pattern/ reading details which are Ex.DW3/3. Lastly the service of the show cause notices have been duly proved by the defendants on the basis of which he had been offered an opportunity for personal hearing despite which he did not avail of the same only after which the speaking order Ex.DW3/4 was passed and the impugned demand had been raised.
The aforesaid material placed on record conclusively show that there is sufficient collateral and corroborative evidence to prove the conclusions of the defendant of dishonest abstraction of energy on the basis of which the impugned demand Ex.DW3/5 has been raised. Issue is hereby decided in favour of the defendants and against the plaintiff.
Issue no.2 Whether the plaintiff is entitled to the relief of declaration as asked for in the plaint?
Issue no.3 Whether the plaintiff is entitled to the relief of permanent injunction as asked for in the plaint? 25 Both the issues are clubbed together for the sake of convenience involving common discussion. Onus of proving both the issues was upon the plaintiff. In view of my detailed findings with regard to the issue no.1, I have already held that the plaintiff was indulging into dishonest abstraction of energy, The defendant has proved that the demand was raised by them only after affording an opportunity of hearing to the plaintiff and in accordance with the existing tariff which aspect the plaintiff has not been able to rebut or controvert. I, therefore, hold that the plaintiff is not entitled to any relief of declaration and mandatory injunction as asked for in the plaint. Issues are decided in favour of the defendants and against the plaintiff. Relief:
In view of my findings with regard to the various issues, I hereby hold that the plaintiff is not entitled to any relief of declaration and mandatory injunction as asked for in the plaint.
26
Suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 2.3.2010 ASJ(NW)-II: Rohini 27 Jai Prakash Vs. BSES RPL CS No. 80/2008 2.3.2010
Present: Sh. N.S. Yadav, advocate for the plaintiff.
None for the defendants.
Arguments have been heard by the undersigned and therefore, in view of the directions of the Delhi High Court bearing No. 24/DHC/Gaz./G-1/VI.E.2 (a)/2010 dated 8.2.2010, orders were to be pronounced by this court.
Today vide my separate detailed order dictated and announced in the open court, but not yet typed, the suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
(Dr. Kamini Lau) ASJ (NW)-II: ROHINI 2.3.2010 28