Delhi District Court
Also At: vs Bses Rajdhani Power Limited on 22 January, 2021
IN THE COURT OF MS NEELAM SINGH
ADDITIONAL DISTRICT JUDGE02, SOUTH EAST,
SAKET COURTS, NEW DELHI
Civil Suit No. 63/20
Sachitra Kumar Yadav
S/o Sh. Balbir Singh Yadav
Aged about 54 years.
R/o House No. 184
Near Kukki Chowk
Mehrauli, New Delhi110030
Also at:
Khasra No. 481, Ground Floor,
Fatehpur Beri, New Delhi110074
.......... Plaintiff
Versus
1. BSES Rajdhani Power Limited
[A company Incorporated under the
provisions of the Companies Act, 1956]
(Presented through Its Managing Directors)
Having its registered office at:
BSES Bhawan,
Nehru Place,
New Delhi110019
2. Nilamber Sharma
Assessing officer
Enforcement Cell,
Enforcement Office, Andrews Ganj,
New Delhi110019 ....... Defendants
CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 1 of 23
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
(a) Date of institution : 11.05.2018
(b) Final Arguments Heard : 22.01.2021
(c) Date of Judgment : 22.01.2020
JUDGMENT:
1. Vide this judgment, I shall dispose of the suit filed by the plaintiff for declaration and permanent injunction against the defendant company, BSES Rajdhani Power Ltd and its assessing officer. It is the case of the plaintiff that on 17.12.2012 he got installed the non domestic meter at Khasra no. 481, Ground Floor, Fatehpur Beri, New Delhi110074 from defendant no. 1 vide CA No. 150590447. It is the case that since the date of installation of connection, the plaintiff has been paying the bill from actual reading of the same. It is further submitted that since the date of installation of the connection till 18.11.2017 the defendant no. 1 never disputed the reading of the meter and officials of defendant no. 1 visited the premises of the plaintiff every month for taking the reading of the meter.
2. It is submitted that on 18.11.2017 when the plaintiff switched on the electricity board, the meter started burning and plaintiff immediately informed the defendant and requested for change of meter vide complaint no. 1711800755, CA No. 16 dt. 18.11.2017. Thereafter, new meter was installed by the defendant no. 1 and they starting sending bills for the new meter. It is submitted that in the first week of February, 2018, plaintiff was shocked to receive a letter dt. 19.02.2018 alongwith regular bill and in the said letter it was mentioned that the case has been examined and found that the meter no.
CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 2 of 2327163515 was installed on 17.12.2012. As per energy meter test / Analysis report, meter lead seal and hologram seal found burnt, meter found abnormally burnt, meter LCD found not OK, meter ID could not be identified. The defendant no. 2 has further mentioned that the electricity consumption with new meter has been increased in comparison to old meter.
3. It is further submitted that vide said letter dt. 19.02.2018 the defendant no. 2 illegally and arbitrarily established the theft under the Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Regulation, 2017 and section 135 and 138 of the Electricity Act, 2003 as amended in 2007. It is further submitted that thereafter vide bill no. AGENR 210220180021AO dt. 08.03.2018, the defendant no. 1 arbitrarily and illegally called upon the plaintiff to pay a sum of Rs. 4,23,698/ (Rupees Four Lakhs Twenty Three Thousand Six Hundred Ninety Eight Only). Thereafter, plaintiff has requested the defendant no. 2 to reinvestigate the matter but no action has been taken by the defendant no. 1. The theft bill raised by the defendant no. 1 for the amount of Rs. 4,23,698/ is illegal and hence, the present suit for declaring the bill as null and void and also for declaring the order dt. 18.02.2018 passed by defendant no. 2 as null and void and for permanent injunction thereby restraining the defendants not to disconnect the electricity supply to the premises of the plaintiff.
4. Written statement has been filed on behalf of defendant by submitting that three phase electronic meter bearing no. 27163515, installed against CA No. 150590447 at House in Khasra No. 481, Ground Floor, Village Fatehpur Beri, New Delhi110074, was replaced on 22.11.2017 with new meter bearing no. 27219802 by MMG (Meter Management Group), CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 3 of 23 when meter bearing no. 27163515 was found in suspected burnt condition. It is submitted that since meter bearing no. 27163515 was found in suspected burnt condition, officials of defendant removed, seized and sent the old meter to NABL accredited laboratory in sealed condition. Plaintiff was duly informed vide testing of removal notice bearing no. 726553 dt. 22.11.2017 to attend the process of investigation / testing of meter and it bears the signature of plaintiff as acknowledgement. It is submitted that the old meter was tested in the laboratory on 02.02.2018. As per the meter test / Analysis report no. BCS/EM/TPI/17/626 dt. 02.02.2018, meter LED seal and hologram seal was found burnt, meter was found abnormally burnt, meter LCD was found not OK and Meter ID could not be identified. It is submitted that in conclusion, the laboratory declared that meter found abnormally burnt. Inspection of C.A. No. 150590447 was made by an authorized Enforcement Team on 03.02.2018. During inspection meter bearing no. 27219802 was found installed in the name of Sh. Sachitra Kumar Yadav, plaintiff and Sh. Pradeep was found to be user of the same. A load of 8.988 KW for non domestic purpose was found connected against sanctioned load of 11.00 KW under non domestic category. Necessary videography was done by M/s Arora Photo Studio. It is submitted that the Inspection Report, Meter Details Report, Load report of connected load and seizure memo vide BR IR0B233772 dt. 03.02.2018 were prepared at site and offered to the representative of plaintiff who refused to receive and sign the same. Subsequently, same were sent through speed post vide Speed post dispatch no. ED533313075IN. It is submitted that following the process as mandated under Chapter VII of Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Regulations, 2017 the visual observation of burnt meter was analyzed in lab and pattern of burning of meter indicated CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 4 of 23 that meter had been deliberately burnt to get rid of tampered element. Further recorded consumption was found to be on lower side. It is further submitted that consumption records for the period 26.10.2016 to 30.10.2017 showed an average recorded consumption of 167 units per month, which was found to be only 9% of the assessed consumption. Meter was found abnormally burnt and consumption of the meter had remained low, hence, it was evident that the meter was intentionally burnt to destroy the evidence of meter tampering. Thus, clear evidence of theft of electricity had been detected. Also after meter replacement, consumption had increased too many folds which corroborated that the meter was deliberately burnt to get rid of tampered element. Electricity consumption with new meter too had increased in comparison to the old meter over a similar period i.e. consumption with new meter found 157 units per month from 22.11.2017 to 27.01.2018 and consumption recorded with old meter was only 07 units per month in the period from 28.11.2016 to 27.01.2017 which further corroborate with the indication that consumer had deliberately and intentionally stolen the electricity. Consumption pattern was analysed and found non uniform with respect to MRD recorded in meter which also corroborated with the fact that consumer had attempted the theft from meter.
5. It is submitted that as per the finding the lab report, consumption pattern and as per the provisions of Regulations of Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Regulations, 2017 read with Section 135 / 138 of the Electricity Act, 2003 as amended in 2007, the assessing officer passed speaking order on 19.02.2018.
CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 5 of 236. Replication has been filed on behalf of Plaintiff reiterating the fact of his own case and denying the case of the defendant.
7. From the pleadings of the parties, following issues were framed :
1. Whether the suit is not maintainable in its present form? OPD
2. Whether the suit is without any cause of action? OPD
3. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
4. Whether the plaintiff is entitled to a declaration as prayed for? OPP 5 Whether the plaintiff is entitled for permanent injunction, as prayed for? OPP
6. Relief
8. In order to prove its case, the plaintiff examined himself by filing his affidavit in chief. His affidavit has been filed in the lines of his plaint. The witness has been cross examined in detail and the relevant extract of his cross examination is reproduced as under: "... I have read my affidavit before signing the same. I am not residing at Khasra No. 481, Ground Floor, Village Fatehpur Beri, New Delhi i.e. premises in question and I have only work in this premises. I was present at the premises at the same time of removal of the meter in question. I have seen copy of the meter CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 6 of 23 removal letter dt. 22.11.2017 which bears the signature of my son at point A and this letter is now exhibited as Ex PW1/D1. I did not visit the laboratory after removal of the meter. The meter was in total burnt condition at the time of removal. I have not visited the defendant's company office after removal of the said meter. At the time of removal of the meter, there were only three gadgets i.e. one grinding machine, one drill machine and one welding machine.
There was also one water motor of ½ (HP) horse power. LED bulbs were also there alongwith CCTV cameras. I was not present at side on 03.02.2018 when the company officials visited for taking the load. Pradeep is my labour working at the premises and he was present on 03.02.2018 who has told me over the phone for the inspection. The replaced meter had a sanctioned load of 11 KW for non domestic purpose. It is correct that I have not placed on record the receipts for payment of bills Ex PW1/B (colly). Vol. I have paid all the bills online. My labour made a complaint in the office of the BSES orally and on such complaint, the officer made an endorsement on Ex PW1/C, the said endorsement is now Ex P1.
It is correct that the complaint in writing is not CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 7 of 23 given. I cannot say if the endorsement Ex P1 does not bear the signature of any official. After this complaint, my meter was replaced within four days. It is wrong to suggest that endorsement Ex P1 is fabricated. It is wrong to suggest that after removal of the meter, the consumption of electricity has increased. Vol. I have placed on records the documents which suggest that the consumption was not increased. It is wrong to suggest that I deliberately tampered the meter and for that reason, it was burnt. It is wrong to suggest that I am deposing falsely..."
9. Thereafter, plaintiff has examined PW2 Sh. Rakesh Kumar Maurya, PW3 Sh. Kuldeep who are working with defendant company and they have proved certain documents as Ex PW2/1, Ex PW2/2 (colly), Ex PW2/3 and Ex PW2/4 which are the twelve regular bills, application to HOD regarding enforcement bill dt. 09.03.2018 and application to HOD regarding the bill in question. Similarly, PW3 has brought the complaint register regarding complaint No. 17111800755 which is a computer generated copy, copy of the same is Ex PW3/A (colly). Both these witness who were the witness for producing the record. In their cross examination, both have submitted that they did not have any personal knowledge of the case.
10. Plaintiff's evidence was closed and thereafter, defendant has examined three witnesses in support of its case.
CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 8 of 2311. DW1 Sh. Mohd. Zakariya has been examined by the defendant company by way of affidavit in chief. In his affidavit the witness has submitted that he was a member of joint inspection team and they inspected the premises in question. It is submitted by him that inspection was carried out by the joint inspection team on 03.02.2018 to assess the connected load of the premises in question and at the time of inspection the connected load was found to be 8.988 KW for non domestic use. It is submitted that necessary videography / photography of the premises regarding the inspection was taken. He has proved the inspection report as Ex DW1/1, Load report as Ex DW1/2, seizure memo as Ex DW1/3 and CE containing videography and photography alongwith certificate u/s 65 B of Indian Evidence Act.
12. This witness has been cross examined by Ld. Counsel for plaintiff. The relevant extract of his cross examination is as under: "...I alongwith Sh. Prashant Kumar, team leader, Sh. Amit VyasVideographer and Sh. Siya Ram Technician were there in the team. I was not aware about the sanctioned load for the premises in question, however, I have noted the entire load used on the date of inspection in my load report. It could be approximately 8.9 KW and I can tell the same correctly after seeing the load report which is 8.988 KW. It is wrong to suggest that I was aware about the sanctioned load for the premises in question. I cannot say as to how in para 3 of my affidavit the sanctioned load is CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 9 of 23 mentioned as I was not aware about the same during inspection. The inspection report, load report and seizure were prepared by team leader Sh. Prashant Kumar. During the inspection, there was nothing abnormal with the meter and the purpose of the team was just for taking load of the premises. It is wrong to suggest that I am deposing falsely.
13. Thereafter, defendant company examined Sh. Nilamber Sharma as DW2 who has passed the speaking order in this case. In his affidavit, he has submitted that he had examined the present case and found that three phase electronic meter no. 27163515 on which the inspection had been made, was installed on 17.12.2017. The meter was tested in laboratory on 02.02.2018. On analysis, the laboratory observed that meter seal and hologram seal found burnt, meter found abnormally burnt, meter LCD found not Ok, meter ID could not be identified. In conclusion, the laboratory declared that meter found abnormally burnt. Further, recorded consumption has been found to be on lower side. Consumption records for the period 26.10.2016 to 30.10.2017 showed an average recorded consumption of 167 units per month, which had been found to be 9% of the assessed consumption. Electricity consumption with new meter too has increased in comparison to the old meter over a similar period i.e. consumption with the new meter found 157 units per month from 22.11.2017 to 27.01.2018 and consumption recorded with old meter was only 07 units per month in the period from 28.11.2016 to 27.01.2017, which further corroborate with indication that consumer had deliberately and intentionally stolen the CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 10 of 23 electricity, consumption pattern was analysed and found non uniform with respect to MRD recorded in meter. This also corroborates with the fact that consumer has attempted the theft from meter. It is submitted that in light of records, he reached to the conclusion that it is a case of theft of energy (meter tampering) under Section 135 & 1388 of Electricity Act, 2003 as amended in 2007 and he passed speaking order on 19.02.2018 exhibited as Ex DW2/1 establishing it as a case of theft of electricity (Meter Tampering).
This witness has been cross examined and the relevant extracts of his cross examination is under: "...while passing the speaking order I have considered lab report, photographs, consumption pattern, meter technical specifications, load report and inspection report. The consumption patter was checked for the time immediately before one year from the date of removal of the meter in question and for the new meter, it was for approximately two months. It is correct that there was a demonetization on 08.11.2016 onwards. It is incorrect that if the pre consumption is considered for one year the post consumption is also to be considered for one year. It is correct that in a particular month if there is no work in the factory the consumption would come down. I cannot say if the factory of the consumer / plaintiff was closed in the month of November, December CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 11 of 23 and January due to demonetization.
I did not consider any CD for the fire in the factory of accused if any as the same was not produced before me. Plaintiff has not handed over any CD of the fire in his factory to me. As per the findings in the lab report, I came to know that meter in question is abnormally burnt. Abnormally burnt meter means if extra load is given in the meter it would burn technically. It is incorrect that abnormally burnt is burnt inside and not from the outside. It is mentioned in the load report that meter is abnormally burnt.
The laboratory is situated in Pushp Vihar. It is wrong to suggest that the laboratory has given a false and fabricated report about declaring the meter as abnormally burnt as the same was normally burnt during fire in the factory. It is correct that I have not seen the meter in question physically. (vol. I have seen the photographs of the burnt meter). It is correct that in my speaking order, I have not mentioned month wise preconsumption and I have only mentioned average preconsumption. I have mentioned the date for preconsumption i.e. from 26.10.2016 to 30.10.2017. As per the CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 12 of 23 speaking order the average preconsumption is 167 units per month and with the new meter, the post consumption is 157 units per month i.e. from 22.11.2017 to 27.01.2018. I have no knowledge if any official visited the premises of the plaintiff for working on new meter. It is wrong to suggest that the speaking order passed by me is passed in a mechanical manner without applying my mind and is based on false and fabricated report placed before me..."
14. Thereafter, defendant company has examined one Sh. Kunal Israni who has tested the meter in the laboratory. In his affidavit in chief, he has submitted that he has tested the meter bearing in question on 02.02.2018 at BRPL Laboratory,SubStation no. 15, Sector7, Pushp Vihar, New Delhi 17 and as such he is fully conversant with the facts and circumstances of the meter testing in the present case and is in a position to depose about the same. It is stated that one bag no. 062141 with BRPL bag Seal No. AA000973 vide BRPL Ref. No. 726553 dt. 22.11.2017 was received by him at BRPL Lab containing one Three Phase Meter Number not visible and after that he had tested the said meter 02.02.2018 and accordingly prepared Lab Report No. BCS Report No. BCS / EM /TPI/17/626 dt. 02.02.2018. The bag No. 062141 is exhibited as Ex DW3/1. The lab report dt. 02.02.2018 is exhibited as Ex DW3/2. The photograph clicked in the lab is exhibited as Ex DW3/3. The meter in question was resealed using seal No. BCS0628.
This witness has been cross examined in detail and the relevant CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 13 of 23 extract of his cross examination is under: "...I am electrical engineer and I am specialized in my profession. I cannot say exactly the bag no., because it was an old case.
I also cannot tell the new number on which I have tested the sealed instrument. It is wrong to suggest that bag Ex DW3/1 was received by me in opened condition and same was handed over to the concerned department in opened condition and that is why I do not remember the seal number. I cannot say how much percentage the meter was burnt. It is correct that Baroda Calibration Services has no connection with BRPL. It is correct that cause of burning of meter differ from case to case i.e. loose connection, over load, by act of god etc. At this stage, one sealed bag no. 062141 with seal of BCS 0628 is produced and opened which contents one plastic seal bearing no .
BRPL/AA000973. The carry handle of the said bag is already broken down before opening the sealed bag. It is correct that cause of burning may be due to manufacturing defect. It is also correct that LED was not tested. Data of meter could also not be downloaded. I do not remember the date of manufacturing of meter in question. The identity of burnt meter is in CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 14 of 23 question. I have seen such type of burning due to internal circuit. The cause of burning of the meter due to loose connection of conductor can be one of the reasons. I have no idea when the meter in question was sent to the office of the electricity provider. The meter in question was tested in Delhi. I cannot say whether the meter in question was ISI Mark or not due to burning condition of the meter. The representative of BRPL were also present at the time of testing of meter in question. I have tested the meter in question on 01.02.2018. However, I have mentioned in my affidavit Ex DW3/A that the meter in question was tested on 02.02.2018. (vol. I have tested the meter on 01.02.2018 and the report was prepared on 02.02.2018 after taking the approval). I was not provided any CD regarding the fire in the factory of the plaintiff by any person either any official of BSES or plaintiff. I cannot say about the consumption pattern. It is wrong to suggest that the reason for burning of the meter in question have no connection with tempering of the meter in question or that false and fabricated case has been planted against the plaintiff. It is wrong to suggest that I am deposing falsely.
CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 15 of 23Thereafter, defendant's evidence was closed.
15. I have heard the Ld. Counsel for the parties and perused the entire record carefully. My findings on the aforesaid issues are as under : Issue No. 1 Whether the suit is not maintainable in its present form? OPD
16. Onus to prove this issue was upon the defendant. Nothing of the sort has been placed on record by the defendant in order to prove that the suit of the plaintiff is not maintainable in its present form. No arguments has been rendered by the defendant as to how the suit of the plaintiff is not maintainable when the same is filed. In absence of any cogent evidence / arguments, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE No.2 Whether the suit is without any cause of action? OPD
17. Onus to prove this issue was upon the defendant. It has been held in catina of cases by Hon'ble Supreme Court as well as by our own Hon'ble High Court that cause of action is bundle of facts which give rise to a dispute in favour of one person against the other. In the present case, there are a number of circumstances and facts giving rise to the cause of action in favour of the plaintiff and against the defendant. Cause of action as per plaintiff has arisen for the first time when the bill in question dt. 19.02.2018 has been raised by defendant no. 2 and thereafter, on 08.03.2018 when defendant no. 1 called upon the plaintiff to pay the theft bill and also on 09.03.2018 and 14.03.2018 when the defendant company further demanded for payment of theft bill. The defendant has not produced any evidence / CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 16 of 23 arguments in support of this issue and accordingly, I am of this considered opinion that the suit of the plaintiff is not without any cause of action and this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 3Whether the suit has been properly valued for the purpose of court fees and jurisdiction? OPD
18. During the evidence and at the time of arguments, nothing of any sort has been placed / pleaded on record to the effect that the suit has not been properly valued for the purpose of court fees and jurisdiction. The theft bill in question is for an amount of Rs. 4,23,698/ and plaintiff has paid the advoluram court fees of Rs. 7000/. Accordingly, I am of the considered opinion that this issue is also decided against the defendant and in favour of the plaintiff.
ISSUE No. 4Whether the plaintiff is entitled for declaration as prayed for?OPP
19. Onus to prove this issue was upon plaintiff and plaintiff has sought a declaration to the effect that order dt. 19.02.2018 passed by defendant no. 2 whereby defendant no. 2 has established the theft done by the plaintiff under the Delhi Electricity Regulatory Commission, 2017 and Section 135 and 138 of Electricity Act, 2003 as null and void. Plaintiff has also sought declaration for declaring the Bill No.AGENR 210220180021AO issued by the defendant no. 1 on 08.03.2018 for Rs. 4,23,698/ (Rupees Four Lakhs Twenty Three Thousand Six Hundred Ninety Eight Only) as null and void. It is the case of the plaintiff that he has installed the electricity meter from the defendant and he was paying regular bill. Thereafter on 18.11.2017 when he switched on the board, the electricity meter started burning and he CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 17 of 23 informed the defendant company by making a complaint. It is the case of the plaintiff that old meter was replaced with the new meter by the defendant company and thereafter, he received a letter dt. 19.02.2018 issued by defendant no. 2 to the plaintiff and the same was regarding the theft of electricity as it was informed to the plaintiff by the defendant company that the meter was found abnormally burnt and accordingly, this case was booked for theft. Thereafter, vide bill no. AGENR 210220180021AO dt. 09.03.2018, plaintiff was called upon to make a payment of Rs. 4,23,698/ It is the case of the plaintiff that defendant company has acted arbitrarily and did not consider his submission. It is the case of the plaintiff that he has requested the defendant no. 1 to reinvestigate the case but defendant company never paid any heed to his request. It is the case of the plaintiff that due to demonetization in 2016, he did not work during the period 28.11.2016 to 28.01.2017 and for that reason the reading has come lesser in the period in question.
20. Perusal of record shows that plaintiff has not led any evidence in this regard that he was not working for the above said period. Plaintiff has admitted in his cross examination that he was present at the time of removal of the meter in question. He has also submitted that meter was in total burnt condition at the time of removal. He has also admitted in his cross examination that he has not placed on record the receipt of the payment of bill Ex PW1/B (colly). He has also admitted the fact that he has not made any complaint in writing. Perusal of record shows that other two witnesses examined are the witnesses of producing the record of electricity bills, complaint etc. CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 18 of 23
21. On the other hand, defendant has proved that a joint inspection team inspected the premises of the plaintiff and assess the load at the premises of the plaintiff for non domestic use. I have gone through the cross examination of PW1 who has submitted that at the time of inspection, there was nothing abnormal with the meter and the witness is submitted here about the replaced / new meter as load was taken after removal of the old meter by the defendant company.
22. PW2 Sh. Nilamber Sharma has been examined by the defendant company who has passed the speaking order Ex DW2/1. I have gone through the speaking order in detail. It has been recorded in the speaking order that as per energy testing / analysis report no. BCS/EM/TPI/17/629 dt. 02.02.2018 meter lead seal and hologram seal found burnt, meter was found abnormally burnt, meter LCD found not OK and meter ID could not be identified due to burning. It has been recorded in the speaking order that as per visual information of the burning meter analysis in the laboratory and pattern of burning indicates that the meter was deliberately burnt to git rid of tampered elements. It is further recorded that the consumption has been found to be lower side. It is recorded that the consumption with new meter was found 157 units per month from 22.11.2017 to 27.01.2018 and consumption recorded with old meter was only 7 units per month in the period from 28.11.2016 to 27.01.2017 which further corroborates the indication that the consumer had deliberately and intentionally stolen the electricity. It is further recorded in the speaking order that the consumption pattern was found non uniform which further suggests that the consumer had attempted the theft from the meter. It is argued by Ld. Counsel for defendant that the responsibility is of the consumer to keep the meter in safe custody.
CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 19 of 2323. I have gone through the inspection report, load report, seizure memo and lab report which has concluded that the meter was found abnormally burnt. The provision regarding theft case has been mentioned u/s 135 of the Electricity Act, 2003. Section 135 of the Electricity Act, 2003 is reproduced is under:
135. Theft of electricity [(1) whoever, dishonestly,
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be, 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 damages or destroyed as to interfere with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 20 of 23 for which the usage of electricity was authorized.
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.
24. It is submitted by Ld. Counsel for defendant that theft of the electricity can be done in two ways, (1) direct theft from the pole, (2) distraction of the energy from the meter by using some external force to slow down the meter. It is argued by Ld. Counsel for defendant that when a pressure is exerted on the meter in question for stopping the meter system to count the reading low then at times the meter burns abnormally and the same has happened in the present case as well whereby the laboratory has declared the meter abnormally burnt. After going through the documents placed on record by the parties, I am of the considered opinion that speaking order has been passed by assessing officer by considering all the documents mentioned above and is a reasoned one. On the basis of consumption pattern, a bill of Rs. 4,23,698/ has been raised by the defendant.
25. In view of the above discussions, I am of this considered opinion that plaintiff has failed to bring home the case in his favour and the speaking order as well the theft bill no. AGENR 210220180021AO could not be declared as null and void rather the speaking order is reasoned one. Accordingly this issue is decided in favour of the defendant and against the plaintiff.
ISSUE NO. 5Whether the plaintiff is entitled for permanent injunction, as CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 21 of 23 prayed for? OPP
26. In terms of finding given in issue no. 4, plaintiff is not entitled for any permanent injunction restraining the defendant to disconnect the electricity and this issue is decided against the plaintiff.
Relief
27. Though plaintiff has examined himself as PW1 but nothing has been placed on record substantially to prove that theft bill in question is null and void. In fact a detailed discussion has been made in the above mentioned para that the team from MMG has removed the meter bearing no. 27163515 from the premises of the plaintiff and they replaced the same with a new meter and the old meter was sent to the laboratory wherein laboratory has given detailed report which I have already discussed above declaring the meter as tampered. Once the meter is declared as tampered then the team was constituted by defendant company to visit and inspect the premises of defendant company for the purpose to take load and needless to say the load 8.988 kw was duly admitted by the plaintiff during his cross examination. On the basis of load report, consumption patter and laboratory report which have not been challenged by the plaintiff in any manner yet the court has examined the said documents and found the same in corroboration with the speaking order and accordingly, the theft bill for amounting of Rs. 4,23,698/ has been raised against the plaintiff. Hence, the theft bill in question cannot be declared as null and void in any manner.
Plaintiff in the prayer clause has also prayed for giving direction to the defendant not to disconnect the supply. Every consumer is entitled for a valid electricity supply from the electricity distribution companies subject to paying regular dues and subject to compliance of provisions of Electricity CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 22 of 23 Act, 2003 once the consumer is indulged in direct theft or DAE case and if the same has been duly proved by the defendant company he is liable to pay charges for his own wrongs. It has been held by Hon'ble Apex court and Hon'ble High Court of Delhi that electricity is a national asset and if theft is found then the dues must be paid and since this court has declared that the theft bill is legal and valid so plaintiff is liable to pay the same.
Considering upon the above mentioned facts and circumstances, I am of the considered opinion that plaintiff has failed on all account in proving the facts of his case. Although a lot of averments have been made by the plaintiff in his plaint but nothing has been placed on record in order to substantiate his submissions and the suit of the plaintiff is readily failed for want of evidence.
28. Decree sheet be prepared accordingly and thereafter, file be consigned to records after due compliance.
Announced in the open Court (Neelam Singh )
on 22.01.2020 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 63/20 Sachitra Kumar Yadav vs. BSES Rajdhani Power Ltd. Page 23 of 23