Delhi District Court
Sh.Balbir Singh vs North Delhi Power Ltd on 20 March, 2012
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No.975/06/05.
Sh.Balbir Singh
S/o.Sh.Hazara Singh,
R/o.XVII/2241/2, Shiv Mandir,
Shadipur, Ndw Delhi-110008. .................Plaintiff
Vs.
North Delhi Power Ltd.
Through its Chief Executive Officer
Hudson Lines, Kingsway Camp,
Delhi-110009.
Service to be effected at
Sub-Station Building,
Tis Hazari, Delhi. ..............Defendant
Date of institution : 12.01.2005.
Date of reservation : 24.02.2012.
Date of pronouncement : 20.03.2012.
JUDGMENT
01. This is a suit for declaration with consequential relief of permanent injunction as filed by plaintiff against defendant.
02. In brief, the facts of the case as made out in the plaint are that plaintiff is the registered consumer in respect of electricity connection bearing K.No.33400064832E installed at XVII/2241/2, Shiv Mandir, Shadipur, New Delhi-100008 for a sanctioned load of 3 KW for domestic purpose. It is stated that meter against the abovesaid connection was installed about 40 years back and there has been no replacement of the meter and even no adverse remark was given by the respondent or it predecessors regarding the working of the aforesaid meter. It is Suit No.975/06/05 "Sh.Balbir Singh Vs. North Delhi Power Ltd." Page 1 of page 7 submitted that plaintiff has regularly been depositing the bills with the defendant. It is case of the plaintiff that defendant officials in a clandestine and illegal manner carried out an inspection at the premises of the plaintiff on 30.09.2004, however, no irregularity was found during the course of said inspection or intimated to the plaintiff but the defendant implicated the plaintiff in a case of DAE/theft of electricity falsely and wrongly in respect of said connection. It is submitted that defendant has alleged the connected load as 8.171/6.171 KW as against the sanctioned load of 3 KW which load was infact never been connected by the plaintiff. Defendant officials further wrongly and erroneously remarked that both half seals were found tampered while the same were genuine one and as already submitted the meter is old as back as 40 years and there has been impact of wear and tear of the long time over the meter and it has been wrongly alleged that the both half seals were found as tampered.
03. It is further case of the plaintiff that on the basis of said alleged inspection dt.30.09.2004 the defendant raised a DAE bill amounting to Rs.57,157.11 with due dated 27.12.2004, however, the plaintiff never committed any theft of energy and demand of theft bill is illegal, arbitrary and is not payable by the plaintiff to the defendant. The plaintiff has never used the alleged load of 8.171/6.171 KW rather the connected load was found much below. Hence, the present suit for decree of declaration to declare the alleged inspection report dated 30.09.2004 and impugned demand of Rs.57,157.11p in respect of K.No. 33400064832E installed at XVII/2241/2, Shiv Mandir, Shadipur, New Delhi-100008 as null and void and for a decree of permanent injunction to restrain the defendant from disconnecting the supply of abovesaid connection pursuant to impugned demand and illegal inspection dt. 30.09.2004, is filed.
04. Defendant/NDPL contested the present suit by filing detailed Suit No.975/06/05 "Sh.Balbir Singh Vs. North Delhi Power Ltd." Page 2 of page 7 written statement, while taking preliminary objections that plaintiff has not approached the court with clean hands and has suppressed the material facts; plaintiff is not entitled to any discretionary relief under the provisions of Indian Specific Relief Act, 1963; suit of the plaintiff is not maintainable in view of the fact that an inspection was carried out by the joint team on 30.09.2004 in the presence of representative of the plaintiff and connected load was found 8.171 KW against sanctioned load of 3 KW and both the half seals of the meter were found tampered. On merits, the contents of the plaint have been denied, while submitting that suit of the plaintiff be dismissed with costs.
05. Plaintiff filed the replication, whereby he denied the facts as mentioned in written statement while reaffirming the averments as made in the plaint.
06. From the pleadings of the parties following issues were framed vide order dated 25.03.2008 :-
1. Whether the suit of the plaintiff is not maintainable in its present form ? OPD.
2. Whether the plaintiff is entitled for a decree of declaration, in respect of the Inspection report dated 30.09.2004 and the impugned demand of Rs.57,157.11p, as prayed in the plaint ? OPP.
3. Whether the plaintiff is entitled for a decree of permanent injunction as prayed in the plaint? OPP.
4. Relief.
07. In support of its case plaintiff examined himself as PW-1. On the other hand, defendant examined Sh.Anurag Khurana, Commercial Manager (B.A.), Moti Nagar, NDPL, Delhi as DW-1 and Sh.Sandeep Khurana, Senior Officer, EAC, NDPL, Sector-3, Rohini, Delhi, as DW-2.
08. I have heard ld. Counsels for parties as well as perused the Suit No.975/06/05 "Sh.Balbir Singh Vs. North Delhi Power Ltd." Page 3 of page 7 record and written submissions as filed on behalf of both the parties. My issue wise findings are as under:-
Issue no. 1.
09. Onus to prove this issue was upon the defendant.
Ld.Counsel for defendant failed to show how present suit for declaration and consequential relief of injunction is not maintainable in the present form. Perusal of record shows that defendant in his written statement took the preliminary objection that present suit is liable to be dismissed as plaintiff has not approached the court with clean hands and suppressed the true and material facts from the court, however, no specific evidence is led by defendant to show as to which material facts have been concealed by the plaintiff from the court. In absence of any evidence to this effect, this issued is answered against the defendant and in favour of plaintiff.
Issue no.2 and 3.
10. These issues are interlinked, as such, taken up together. Onus to prove these issues was upon the plaintiff. PW-1 Sh.Balbir Singh in his examination in chief deposed that on 30.09.2004 the officials of the defendant inspected the premises of the plaintiff in an illegal manner and both half seals of meter were genuine one but wrongly declared as tampered. PW-1 further deposed that the consumption recorded by the meter is in consonance with the load. PW-1 proved inspection report and show-cause notice and Ex.PW-1/7 and 8, while deposing that he was falsely implicated in DAE case, although, the plaintiff has not committed any kind of theft of electricity either through the meter or in other way. The copy of representation made by the plaintiff is proved as Ex.PW-1/9 and the original demand of DAE is exhibited as PW-1/11. In his cross examination PW-1 confirmed that the connection has been sanctioned for domestic purpose and on 30.09.2004 officials of NDPL visited the site.
Suit No.975/06/05 "Sh.Balbir Singh Vs. North Delhi Power Ltd." Page 4 of page 7 PW-1 confirmed that his sanction load is 3 KW and denied the suggestion that connected load was found as 8.171 KW.
11. DW-1 Sh.Anurag Khurana filed his examination in chief as Ex.DW-1/A and deposed that he was one of the members of joint inspecting team, who had conducted inspection on 30.09.2004 at the subject premises. DW-1 deposed that during the course of inspection, the connected load was found 8.171 KW/DX against the sanctioned load of 3.000 KW/DX and both half seals of the meter found tampered and proved the copy of inspection report and joint inspection report at Ex.DW-1/1 and 2. Copy of show-cause notice is proved as Ex.DW-1/3. In his cross examination DW-1 deposed that he cannot tell that terminal seals were installed or not as the same were installed by another department and voluntarily deposed that when they inspected the premises, terminal seals were not in existence. DW-1 further confirmed that they pasted the paper IR seals to maintain the status quo of the meter but the meter and other seals were not sealed in Pulinda.
12. DW-2 is Sh.Sandeep Khurana, who deposed that on the basis of inspection dated 30.09.2004, a personal hearing was granted to the consumer and he attended the personal hearing on 05.10.2004 and after considering the merits of the case speaking order Ex.DW-2/2 was passed and thereupon, the bill of Rs.53,066/- with due date 27.10.2004 i.e.Ex.DW-2/3 was raised as per provisions of tariff. In his cross examination, DW-2 confirmed that he was not the member of the inspecting team who conducted the raid on 30.09.2004. DW-2 confirmed that Ex.DW-2/1 and 2 are photocopies and does not bear his signature.
13. Ld.counsel for plaintiff argued that a case of FAE/DAE cannot be booked because of the fact that the connected load was found more than sanctioned load and that the seals were found tampered and drawn my attention in respect of an authority reported as 140 (2007) DLT Suit No.975/06/05 "Sh.Balbir Singh Vs. North Delhi Power Ltd." Page 5 of page 7 257 titled as Col.R.K.Nayyar (retd.) Vs. BSES Rajdhani Power Ltd.. Ld.counsel for plaintiff further argued that there is no evidence that the plaintiff has tampered with the meter in any manner that has enabled the plaintiff to either slow down the meter or make it record lesser units of consumption. In an authority reported as 140(2007) DLT 307, Jagdish Narayan Vs. North Delhi Power Limited & Anr., it was held by Hon'ble Justice Dr. S.Murlidhar and I quote:-
"Electricity Act, 2003 - Dishonest Abstraction of Energy (DAE) - "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 not safe and error-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 taken action on suspicion of DAE"
14. In another authority reported as 140 (2007) DLT 563 titled as J.K.Steelomelt Pvt. Ltd. V/s BSES Rajdhani Power Ltd, it was held by Hon'ble High Court "that merely because connected load is more than sanctioned load, cannot lead to automatic presumption that the entire connected load is being used by consumer throughout period - Impugned order holding petitioner a guilty of DAE unsustainable in law and set aside - Demand raised in impugned bill quashed....."
15. Adverting back to the facts of present case, admittedly, the final assessment bill for DAE i.e.Ex.PW-2/3 is raised due to two reasons that connected load was found more than sanctioned load and both half seals of the meter were found tampered. Apart from this, there is no tangible evidence to show tampering with internal mechanism of meter by the plaintiff to make meter recording lesser consumption of electricity. No Suit No.975/06/05 "Sh.Balbir Singh Vs. North Delhi Power Ltd." Page 6 of page 7 internal or exterior device was recovered by the joint inspection team to show that meter was recording less electricity then actually passing through it. The speaking order Ex.DW-2/2 talks about primarily that responsibility of the meter under safe custody lies with the consumer. In view of law as laid down by our own Hon'ble High Court, the demand of DAE raised vide bill Ex.DW-2/3 is not justified and cannot be resorted to. Accordingly, these issues are answered in favour of plaintiff and against the defendant.
Relief.
16. In view of my findings on the above issues, the suit of plaintiff is decreed and a decree of declaration is passed in favour of plaintiff and against the defendant thereby, declaring that demand of DAE raised vide bill Ex.DW-2/3 for Rs.57,157.11p in respect of electricity connection bearing K.No.33400064832E installed at XVII/2241/2, Shiv Mandir, Shadipur, New Delhi-100008 is not justified and cannot be resorted to. A decree of permanent injunction is also passed in favour of plaintiff and against the defendant, restraining the defendant from disconnecting the supply of electricity of the abovesaid connection of the plaintiff on the basis of Bill Ex.DW-2/3. Amount, if any, deposited by the plaintiff pursuant to court orders in respect of DAE bill Ex.DW-2/3 shall be adjusted in future demands raised against plaintiff in respect of subject connection. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open Court on 20.03.2012.
(S.K.MALHOTRA) SCJ/RC(NORTH)/DELHI.
Suit No.975/06/05 "Sh.Balbir Singh Vs. North Delhi Power Ltd." Page 7 of page 7