Delhi District Court
B.M. Mittal vs Ndpl Suit No. 53/13 on 10 September, 2013
B.M. Mittal Vs NDPL Suit No. 53/13
IN THE COURT OF MS. SHIVANI CHAUHAN; CIVIL JUDGE;
CENTRAL04, DELHI
Suit No. 53/13
UID No. 02401C0901392005
Date of institution:23.09.1999
Received by Transfer on 14.03.13
Date of pronouncement of the judgment: 10.09.2013
Decision: Decreed
Sh. B.M.L Mittal,
S/o Late Sh. Munshi Lal
R/o E10, C.C Colony,
Delhi110007 ....PLAINTIFF
Versus
North Delhi Power Limited
through its CEO,
Hudson Line, Kingsway Camp, Delhi ....DEFENDANT
SUIT FOR DECLARATION, RENDITION, MANDATORY AND
PERMANENT INJUNCTION
JUDGMENT
1. The plaintiff has filed the present suit for declaration, rendition, mandatory and permanent injunction.
Plaintiff's Case:
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2. Plaintiff states that the plaintiff is a permanent resident of Delhi and is one of the consumers of defendant no. 1 having electricity connection bearing K No. 1235344 (5H.P.) installed at the premises bearing no. 30/4, Libaspur, Delhi (hereinafter referred to as the 'suit property').
3. It is further stated that the said electricity connection was illegally and unlawfully disconnected by DESU, predecessorininterest of the defendant no.1, in pursuance to notice dated 12.04.1993.
4. Being aggrieved by the said disconnection, the plaintiff initiated appropriate legal action including filing of a Civil Writ Petition being CWP No. 5213/93 entitled: B.M.L Mittal Vs MCD & Anr before the Hon'ble High Court of Delhi and in the said writ petition, vide order dated 30.07.1996, respondent/DESU was directed to provide electricity connection to the extent of 5 H.P. to the plaintiff subject to the payment of the arrears, if any.
5. The plaintiff further contended that in pursuance of the said order dated 30.07.1996, the respondent/DESU raised a bill of Rs.33,350/ wherein the respondent claimed the amounts which were not legally payable by the plaintiff.
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6. The plaintiff filed an application being I.A No. 5610/96 in the pending writ petition. However, in order to get the electricity connection restored, the plaintiff paid the said amounts under protest and without prejudice to the rights and contentions and subject to final adjustment/decision.
7. Plaintiff further contended that in pursuance to the orders of High Court, the electricity connection was restored in the end of August 1996. However, there was leakage of the electricity current from the said meters through which the electricity of the plaintiff was restored.
8. The plaintiff filed series of complaints orally as well as in writing but the defendant failed to attend the complaints, the plaintiff filed a suit bearing no. 711/96 wherein MS. Kamini Lau, Ld. Civil Judge, vide its order dated 24.09.96 appointed a local commissioner to visit the suit property and report about the points referred to in the said order including the leakage of electricity current in the suit property.
9. That the local commissioner filed his report dated 27.09.96 confirming the leakage of the electricity current and giving the reading of the meter at the time of inspection. He also reported that the main Pronounced in the open court on 10.09.2013 Page no 3 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 meter through which there was leakage of electricity current has been removed and the supply to the suit property has been restored through Pilot meter No. 4 D900322W wherein the meter reading was reported as 12134.
10. That in spite of repeated requests of the plaintiff to raise the bill of the electricity connection as per actual reading and also to refund the amounts wrongfully charged by the respondents at the time of restoration of electricity in pursuance of orders of Hon'ble High Court.
11. The plaintiff approached the Bijli Adalat organized by the defendant for redressal of his grievances.
12. Vide order dated 15.12.1997, Bijli Adalat directed the defendants to raise the bill w.e.f 25.09.96 onwards as per reading in the pilot meter.
13. Despite of the said order of Bijli Adalat, the defendants failed to raise bill as per actual electricity consumption and further to give adjustments of the amounts paid in excess by the plaintiff.
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14. The plaintiff has been requesting repeatedly to the defendants to raise bill as per actual electricity consumption and further to give adjustments orally as well as in writing vide representations/reminders dated 27.02.98, 19.08.98, 21.08.98, 19.09.98, 21.09.98 and 02.01.99 but the defendants failed to do the needful.
15. The plaintiff in order to ensure timely payment of the bills, requested the defendants to send the bills to his residential address at E10, C.C Colony, Delhi1100 07 by registered post at his expenses but the defendants failed to do the needful despite various representations and reminders, and illegally and unlawfully raised a bill of Rs.50,290/ without any basis.
16. The plaintiff sent letter/reminder dated 27.02.99 requesting defendant no.2 for redressal of his grievance but no response was received from the defendants.
17. That the plaintiff has been running from pillar to post for redressal of his grievances including issuance of bill as per actual electricity consumption to enable him to pay the payment in time to avoid any complication but in vain.
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18. Even prior to restoration of the electricity in August/September 1996, the plaintiff has not been able to attend to his business activities for about 3 years prior thereto on account of illegal and unlawful disconnection of the electricity.
19. It is further contended that the plaintiff has consumed only about 7096 units from September 1996 when the electricity was set right and when the meter reading was 12134 uptodate when the current meter reading is 19230.
20. That the plaintiff had applied for enhancement of load from 5 H.P to 20 H.P and completed all the formalities but the defendants had not considered the request.
21. It is further contended that instead of listening to the grievances and sorting them out, the defendants raised a bill on 18.09.1999 for Rs.1,30,94576 paise without giving the details on which the said demand has been raised.
22. Although the said bill confirm the meter reading as 19224 it does Pronounced in the open court on 10.09.2013 Page no 6 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 not give any details whatsoever on the basis of which the said demand has been raised.
23. The plaintiff sent a representation dated 21.09.99 calling upon the defendants to give details/basis on which the bill of Rs.1,30,94576 paise has been raised and also personally visited the office of the defendant no. 2 but was not entertained. The plaintiff apprehends that the officials of the defendants are all out to again disconnect the electricity on flimsy grounds of non payment of the arbitrary demands of the defendants.
24. Further, it is submitted that the defendants on the one hand have failed to raise bill as per actual consumption and give the adjustment as also the details of the amounts overpaid and on the other hand have raised illegal and arbitrary demand of huge amount of Rs.1,30,94576 paise without any basis. There is serious apprehensions of the defendants disconnecting the electricity supply of the plaintiff. In the circumstances, the plaintiff left with no other equally efficacious remedy but to file the present suit, hence this suit.
25. That the copy of the inspection report and of the show cause Pronounced in the open court on 10.09.2013 Page no 7 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 notice has been supplied to the plaintiff on 26.09.2002. It is submitted that the allegation made against the plaintiff in the inspection report dated 18.09.1999 are absolutely wrong, false and incorrect.
Prayer in the suit :
1) Decree for declaration in favour of the plaintiff and against the defendants thereby quashing the demand raised by the defendant vide bill (due date 26.09.99) for Rs.1,30,94576 paise.
2) Decree for rendition of accounts in favour of the plaintiff and against the defendants thereby directing the defendants to render true and faithful accounts/details in respect of the amounts to which the plaintiff is entitled to refund in pursuance to the order of Hon'ble High Court dated 30.07.1996 and Bijli Adalat dated 15.12.1997 and further to pass a decree in respect of the said amount so found refundable to the plaintiff along with interest at the rate which is charged by the defendants from its consumers on delayed payment. The plaintiff undertakes to pay the requisite court fee on the said amounts as may be directed.
3) Decree of mandatory injunction in favour of the plaintiff and against the defendants thereby directing the defendants to raise bill in respect of the actual electricity consumption in pursuance to report dated 27.09.1996 of the Executive Engineer of the defendant and the decision dated 15.12.1997 of the Bijli Adalat.
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4) Decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants from disconnecting the electricity supply to the premises of the plaintiff through electricity connection bearing K No. 1235344 installed at premises No. 30/4, Libaspur, Delhi.
5) Award cost of the proceedings in favour of the plaintiff as against the defendants.
Defendant's version :
26. Written Statement has been filed on behalf of the defendant wherein the defendant has taken the objection that the plaintiff has not come before this court with clean hands and suppressed the material facts on record as the site of the plaintiff was inspected by the joint team on 18.09.1999 in the presence of the plaintiff when the plaintiff was found connected the load of 14.062 KW + 0.72 KW against the Sanctioned Load of 5 HP and misuse was also found from agricultural purpose to industrial purpose etc.
27. Apart from these the plaintiff also was found indulged in theft of electricity and was found sticker seal found tempered. Also one seal found missing and other found tempered.
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28. Defendant further objected that the plaintiff is not entitled for the relief claimed as the plaintiff has not affixed the proper court fees as per relief claimed and as such the suit of the plaintiff is not maintainable and liable for dismissal with cost.
29. Defendant further objected that the plaintiff is not entitled for the relief of injunction and as such the suit of the plaintiff is not maintainable and liable for dismissal with cost.
30. Plaintiff filed replication and reaffirmed the averments made in the plaint.
31. On the basis of pleadings of the parties, following issues were framed by the court of Ld. Predecessor vide order dated 08.12.2009: (1) Whether the suit of the plaintiff is not maintainable in its present form? OPD (2) Whether the plaintiff has not approached the court with clean hands and suppressed the material facts? OPD (3) Whether the plaintiff is entitled to decree of declaration as prayed for? OPP Pronounced in the open court on 10.09.2013 Page no 10 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 (4) Whether the Plaintiff is entitled to decree of mandatory injunction as prayed for? OPP (5) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP (6) Whether the plaintiff is entitled to decree for rendition account and if yes to what extent? OPP (7) Relief.
32. In his evidence, Sh. B.M.L. Mittal, Plaintiff examined himself as PW1 and led his evidence by way of affidavit Ex. PW1/A and relied upon the documents Ex. PW1/1 to Ex.PW1/6, Ex.PW1/8 to Ex.PW1/9, Ex.PW1/11 to Ex.PW1/13 and Ex.PW1/15 to Ex.PW1/17. Ex. PW1/7, Ex.PW1/10 and Ex.PW1/14 were deexhibited as the same were not on judicial record.
Ex. PW1/1 is the copy of order of Writ Petition filed before the Hon'ble High Court of Delhi Ex. PW1/2 is the copy of bill of August 1996 Ex. PW1/3 is the copy of complaint dated 17.09.1996 Ex. PW1/4 is the copy of order passed by Ms. Kamini Lau, Civil Judge, Delhi dated 24.09.96 Ex. PW1/5 is the copy of report dated 27.09.1996 filed by Sh. Sushil Kumar, Executive EngineerD Pronounced in the open court on 10.09.2013 Page no 11 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 Ex. PW1/6 is the copy of order passed by Bijli Adalat dated 15.12.1997 Ex.PW1/8, Ex. PW1/9, Ex. PW1/11 & Ex. PW1/12 are representations/reminders of various dates Ex. PW1/13 is the bill for Rs.50,290/. For October 1998to 8 January 1999 Ex. PW1/15 is the provisional theft bill for the month September 1999 (undated) for Rs. 1,30,945.76/, due date:
26.09.99.
Ex. PW1/16 is representation dated 21.09.1999 Ex. PW1/17 is the letter received by the Plaintiff from defendant
33. PW1 was duly crossexamined by ld. counsel for the plaintiff.
34. In its evidence, defendant examined Sh. D.K. Rastogi as DW1. DW1 relied upon documents Ex. DW1/1 and Ex. DW1/2.
Ex. DW1/1 is the inspection record Ex. DW1/2 is the record of inspection
35. DW1 was duly crossexamined by ld. counsel for the plaintiff.
36. Heard Ld. Counsels for both the parties and perused the material available on record carefully. The issuewise findings are as under: Pronounced in the open court on 10.09.2013 Page no 12 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 Issue No.(1) Whether the suit of the plaintiff is not maintainable in its present form? OPD
37. The onus to prove this issue was upon the defendant. No evidence has been led by the defendant on this issue. Thus, in the absence of any contrary evidence. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Issue No.(2) Whether the plaintiff has not approached the court with clean hands and suppressed the material facts? OPD
38. The onus to prove this issue was upon the defendant. No evidence has been led by the defendant on this issue. Thus, in the absence of any contrary evidence. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Issue No.(3) Whether the plaintiff is entitled to decree of declaration as prayed for? OPP Issue No.(4) Whether the Plaintiff is entitled to decree of mandatory injunction as prayed for? OPP Pronounced in the open court on 10.09.2013 Page no 13 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 Issue No.(5) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP
39. All these issues involve similar discussion of law and facts. Hence, for the sake of brevity, they are taken up together for discussion.
40. Plaintiff has challenged the Provisional theft bill/ FAE (Ex.PW1/15) raised by the defendant to the tune of Rs. 1,30,945.76/. The bill is as such, undated, however the same is for the month of September 1999, (due date 26.09.1999) in respect of K.No 1235344 at property bearing no. 30/04, Libaspur, Delhi.
41. The electricity of the plaintiff was disconnected on 14.04.1993 on the ground of misuse. The same was subsequently restored by the Hon'ble High Court vide order dated 30.04.1996 upon payment of dues. The dues of Rs.33,350/ were paid under protest and electricity supply was restored in end of August 1996.
42. It is an admitted fact that there was a leakage of the meter installed in the premises of the plaintiff from which the supply was restored and complaints were made to the defendant. Consequent to Pronounced in the open court on 10.09.2013 Page no 14 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 nonredressal of his complaints, plaintiff filed a suit before Ms. Kamini Lau, the then Civil Judge, whereby it was confirmed that the electricity current has been removed from the faulty meter and the supply was restored through Pilot Meter and the reading was reported as '12134' through Local Commissioner's report.
43. The plaintiff approached the Bijli Adalat vide its order dated 15.12.1997 (Ex. PW1/6) which directed the defendant to raise bills as per the reading of the Pilot Meter w.e.f 25.09.1996. However, the defendant failed to raise the bills as per the readings of Pilot Meter.
44. An inspection was carried out at the premises of the plaintiff by Enforcement Department on 18.09.1999 and a case of FAE was booked against the plaintiff.
45. As per the inspection report, the Sticker seal was pasted on plaintiff's meter, one seal was found missing, and the other seal was found tampered. The shunt capacitor was not in working order and thus, the impugned bill is stated to have been raised.
46. Section 135 of the Act reads as under:
Section 135 Theft of electricity (1) Whoever, dishonestly, (a) taps, makes or causes to be made any connection with overhead, underground Pronounced in the open court on 10.09.2013 Page no 15 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 or under water lines or cables, or service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both;
Provided that in a case where the load abstracted, consumed or used or attempted abstraction or attempted consumption or attempted use
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity.
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
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.
47. The procedure for conducted search and seizure operations is set out under Sections 135(2), (3) and (4) which read as under:
S.135.(2). Any officer authorized in this behalf by the State Government may Pronounced in the open court on 10.09.2013 Page no 16 of 27 B.M. Mittal Vs NDPL Suit No. 53/13
(a) either, inspect, break open and search any place or premises in which he has reason to believe that electricity [has been or is being] used unauthorizedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which used for unauthorized use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under Subsection (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts there from in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4)The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.
48. Regulations 2 (i) and 2 (m) of the Regulations define "direct theft" and "dishonest abstraction of energy" respectively as under::
2(i). 'Direct theft' shall mean abstraction of electrical energy either through by passing the meter by some arrangement external to it or through unauthorized tapping of the supply from licensee's distribution network." 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.).
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49. The other relevant Regulations are 25 and 26 which read thus:
Regulation. 25 Procedure for booking a case of pilferage of energy
(i) The licensee, suo moto or on receipt of reliable information regarding commitment of any offence of theft/tampering/ dishonest abstraction of energy (DAE), shall promptly conduct inspection of consumer's premises.
The inspection team shall carry a written authority signed by designated officer of the licensee.
(ii) The inspecting team shall prepare a report giving details such as connected load, condition of seals, working of meter and mention any irregularity noticed (such as artificial means adopted for dishonest abstraction of energy) as per format prescribed by the licensee.
(iii) The report shall clearly indicate whether conclusive evidence substantiating the fact that energy was being dishonestly abstracted was found or not. the details of such evidence should be recorded in the report and it should be clearly brought out whether the case is being booked for direct theft or DAE.
(iv) No case for DAE shall be booked only on account of one seal on the meter missing or tampered or breakage of glass window, etc., unless corroborated by consumption pattern of consumer as per regulation 26(ii) given below and such other evidence as may be available.
(v) In case sufficient evidence is found to establish direct theft of energy, the licensee may lodge a report with the local police along with the material evidence including wires/cables, meter, service line etc., seized from the site, which shall be handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on five times the rates as per applicable tariff. The consumer shall be required to make the payment within two working days of its proper receipt.
(vi) In case of suspected DAE, the inspection team shall not remove the tampered meter but shall disconnect it from the supply and shall restore the supply through a new meter of appropriate rating. In such cases, the licensee shall check the connected load and consumer's installation, affix a numbered Johnson's paper seal on the tampered meter and shall also record the particulars of the same in the report.
(vii) While the report must be signed by each member of the joint team and the notice, if any, must be signed by an authorized signatory of the licensee Pronounced in the open court on 10.09.2013 Page no 18 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 and all these must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of each must be pasted at a conspicuous place in/outside the premises. Simultaneously, the joint report, the assessment bill and the notice shall be sent to the consumer under Registered Post.
(viii) The consumer shall be served a 3 day's show cause notice at the site as to why the case of DAE should not be booked against him/her. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
50. Since the respondents are seeking to make out a case of DAE, the provisions of the Act, the Rules and the Regulations must first be perused. Dishonest Abstraction of Energy has not been defined under the Electricity Act. It is defined only in the Regulations.
51. To establish a presumption of DAE against a consumer Under Section 135(1) proviso 2, the respondent must prove 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...." existed at the site. This initial burden has to be discharged by the respondent.
52. The decision of the Hon'ble Supreme Court in Jagannath Singh v. B.S. Ramaswamy wherein Lordships have illustrated the approach to the requirement of proof of dishonest abstraction of energy which is Pronounced in the open court on 10.09.2013 Page no 19 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 relevant to the instant case."The Hon'ble Supreme Court held that the existence of artificial means for abstracting energy can only give rise to a presumption that there had been a dishonest abstraction. The supplier would still have to show that the consumer is responsible for such tampering."
53. The Hon'ble Supreme Court has further held that:
"A meter with an exposed stud hole, without more, is not a perfected instrument for unauthorized taking of energy, and cannot be regarded as an artificial means of 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."
54. The above mentioned judgment of Hon'ble Supreme Court was also discussed by Hon'ble High Court in Jagdish Narayan Vs NDPL Pronounced in the open court on 10.09.2013 Page no 20 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 Ltd & Anr. 150 (2007) DLT 307 : Hon'ble High Court has discussed that :
"Applying the above test, it has to be held that an auto matic presumption of DAE on the basis of the external symptoms of tampering together with the analysis of the consumption pattern would not be a safe and error free method. Some other tangible evidence must been shown to exist. An accu check meter can be deployed to find out if the meter is in fact recording lesser units. The analysis of the consumption pattern in terms of the Regulation 26 (ii) is merely corroborative and not by itself substantive evidence of DAE. The decision of this Court in Udham Singh v. BSES Rajdhani Power Ltd . 136 (2007) DLT 500 is to the same effect. In fact, the formula is applied in terms of Regulation 25 (iv) read with 26 (ii) only for determining the penalty payable by the consumer once a case of either direct theft or DAE has been made out. The penalty formula cannot itself supply the proof of DAE or theft."
55. It has been further held that : "While on the aspect of external evidence of "tampering" in the form of broken seals or tampered seals, this Court would like to observe that an inference of DAE should not be permitted to be drawn on the mere fact that a meter had been found with broken seals. It would be impermissible for the respondent to treat all categories of consumers on the same footing when it proceeds to take action on a suspicion of DAE. Right now there is no secure measure to Pronounced in the open court on 10.09.2013 Page no 21 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 ensure that the electricity meters installed either in the basement of the building or on the ground floor near the stair case, are tamperproof and outside the reach of any mischievous third party. It is one thing to require the consumer to ensure that the meter is safe and secure. It is perhaps also necessary to ask if the supplier of electricity draws the attention of the consumer to such responsibility and insists that the consumer secures the meter with a lock with one duplicate key being handed over to the supplier. In an environment where it is not possible for a domestic consumer living in an apartment where the meter is installed in the basement or ground floor to constantly keep a watch on his meter, it would not be reasonable to draw inference of DAE merely on the discovery of some signs of 'tampering'."
56. On the date of inspection the plaintiff was not present at the spot. There are no details about any representative of plaintiff being present at the time of inspection nor does the same find any mention in Ex. DW.1/A.
57. There is no proof of tendering of any document relating to inspection to any representative of the plaintiff at the spot.
58. Moreover, copy of DW1/1 and DW1/2 was not pasted at the site on the date of the inspection and there is no evidence of any person obstructing the defendant's officials from pasting these documents at the site. Even, copy of these two documents was not sent to Pronounced in the open court on 10.09.2013 Page no 22 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 plaintiff/registered consumer under registered cover.
59. The defendant's officials did not inspect the half seals, terminal seals, and other lead seals of the meter no 4D900322W or 4C 962896. Further, they did not conduct any accucheck of this meter even subsequent to the inspection.
60. There is no written authorization by the Defendant's department directing/ authorizing the concerned officials to carry out inspection at plaintiff's premises on 18.09.1999.
61. Neither any photographs of the site and the meter no 4D 900322W or 4C962896 or the shunt capacitor were taken nor any sketch thereof was prepared by the officials of the defendant. Even the alleged tampered sticker seals were not produced by the defendant despite the fact that the meter is the property of the defendant.
62. There is no proof regarding correctness of DW1/2 ie, the inspection report. There was no finding of or allegation that the meter was not recording the actual consumption.
63. Moreover, DW1, during his crossexamination has admitted that there was no passage of electricity through Meter no 4C962896.
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64. The electricity connection was initially an agricultural connection but the same was restored by the High Court as an Industrial Connection. Therefore, the allegations of misuse are not made out.
65. In these circumstances, there is a total dearth of evidence qua alleged meter tampering, Dishonest abstraction of electricity and theft of electricity. Accordingly, all these issue are decided in favour of the plaintiff and against the defendant.
Issue No.(6) Whether the plaintiff is entitled to decree for rendition account and if yes to what extent? OPP
66. The electricity of the plaintiff was firstly disconnected on 14.04.1993 on the ground of misuse. The same was subsequently restored by the Hon'ble High Court vide order dated 30.04.1996 upon payment of dues. The dues of Rs.33,350/ were paid under protest and electricity supply was restored in end of August 1996.
67. It is an admitted fact that there was a leakage of the meter installed in the premises of the plaintiff from which the supply was restored and complaints were made to the defendant. Consequent to Pronounced in the open court on 10.09.2013 Page no 24 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 nonredressal of his complaints, plaintiff filed a suit before Ms. Kamini Lau, the then Civil Judge, whereby it was confirmed that the electricity current has been removed from the faulty meter and the supply was restored through Pilot Meter and the reading was reported as 12134 through Local Commissioner's report.
68. The plaintiff approached the Bijli Adalat vide its order dated 15.12.1997 (Ex. PW1/6) which directed the defendant to raise bills as per the reading of the Pilot Meter w.e.f 25.09.1996. However, the defendant failed to raise the bills as per the readings of Pilot Meter.
69. The defendants have not specifically denied their liability to revise the bills as per the order of Bijli Adalat. They have merely averred that the plaintiff was supposed to withdraw the court case before the revision of the Bills. In these circumstances, it can be stated that the defendant admitted its liability to revise the Bills in compliance of Ex. PW1/6.
70. However, this revision of bill cannot extend to the period prior to the date of order of Hon'ble high court as the plaintiff could have prayed for the relief of revision of bills upto that period before High Court itself. The relief to this extent gets barred by principles of Order 2 Rule 2 Code of Civil Procedure,1908. The issue stands decided Pronounced in the open court on 10.09.2013 Page no 25 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 accordingly.
Relief: In the light of above discussion, the suit of the plaintiff is decreed as follows:
(1) a decree of declaration is passed in favour of the plaintiff and against the defendants. The Provisional theft/DAE bill Ex. PW1/15 for for Rs.1,30,94576/ is declared null and void.
2) A decree for rendition of accounts in passed in favour of the plaintiff and against the defendants thereby directing the defendants to render true and faithful accounts/details in respect of the amounts to which the plaintiff is entitled to refund as per directions contained in order of Bijli Adalat dated 15.12.1997 (Ex. PW1/6) within 30 days from the date of the decree . The amount so found refundable to the plaintiff shall adjusted equally in the next six bills raised against the plaintiff.
3) A decree of mandatory injunction in favour of the plaintiff and against the defendants, the defendants are directed to raise bill in respect of the actual electricity consumption of the Pilot Meter / any subsequent meter installed in the premises.
4) A decree of permanent injunction is passed in favour of the plaintiff. The defendants are restrained from disconnecting the electricity supply to the premises of the plaintiff through electricity Pronounced in the open court on 10.09.2013 Page no 26 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 connection bearing K No. 1235344 installed at premises No. 30/4, Libaspur, Delhi if the plaintiff makes timely payment of the electricity bills as per actual consumption.
Deficient court fees on the decreetal amount be deposited by the plaintiff within 15 days from the date on which accounts are rendered by the defendant.
Decree sheet be drawn accordingly. The decree shall be executable upon deposit of the deficient of court fees.
File be consigned to record room after due compliance. Announced in the open court today i.e. on 10.09.2013 (Total pages 1 to 27 ) (Shivani Chauhan) Civil Judge/THCCentral04/10.09.2013 Pronounced in the open court on 10.09.2013 Page no 27 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 Suit No. 53/13 10.09.2013 Present: None.
Vide my separate judgment of even date, announced and dictated in the open court, the suit of the Plaintiff is decreed and (1) a decree of declaration is passed in favour of the plaintiff and against the defendants. The Provisional theft/DAE bill Ex. PW1/15 for for Rs.1,30,94576/ is declared null and void.
2) A decree for rendition of accounts in passed in favour of the plaintiff and against the defendants thereby directing the defendants to render true and faithful accounts/details in respect of the amounts to which the plaintiff is entitled to refund as per directions contained in order of Bijli Adalat dated 15.12.1997 (Ex. PW1/6) within 30 days from the date of the decree . The amount so found refundable to the plaintiff shall adjusted equally in the next six bills raised against the plaintiff.
3) A decree of mandatory injunction in favour of the plaintiff and against the defendants, the defendants are directed to raise bill in respect of the actual electricity consumption of the Pilot Meter / any subsequent meter installed in the premises.
4) A decree of permanent injunction is passed in favour of the plaintiff. The defendants are restrained from disconnecting the Pronounced in the open court on 10.09.2013 Page no 28 of 27 B.M. Mittal Vs NDPL Suit No. 53/13 electricity supply to the premises of the plaintiff through electricity connection bearing K No. 1235344 installed at premises No. 30/4, Libaspur, Delhi if the plaintiff makes timely payment of the electricity bills as per actual consumption.
Deficient court fees on the decreetal amount be deposited by the plaintiff within 15 days from the date on which accounts are rendered by the defendant.
Decree sheet be drawn accordingly. The decree shall be executable upon deposit of the deficient of court fees.
File be consigned to record room after due compliance.
(Shivani Chauhan) Civil Judge/Central04/10.09.2013 Pronounced in the open court on 10.09.2013 Page no 29 of 27