Delhi District Court
M/S Rachna Sagar (P) Ltd. vs . Bses Yamuna Power Limited on 8 October, 2010
Suit No. 27/08
M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited
IN THE COURT OF SHRI S.C. MALIK: ADJ05 (CENTRAL) : DELHI
Suit No:27/08
IN THE MATTER OF
M/s Rachna Sagar (P) Ltd.
Through its Authorised Representative
Sh. A. K. Bansal,
At 79, F/F opposite Ansari Market,
Shyam Lal Road, Darya Ganj,
New Delhi110006 ...... Plaintiff
Versus
BSES Yamuna Power Limited
Service to be effected through its
Chief Executive Officer
Shakti Kiran Building
Karkardooma, Delhi ...... Defendant
SUIT FOR DECLARATION, PERMANENT AND MANDATORY
INJUNCTION
Plaint presented on 16.10.2008
Arguments heard on 08.10.2010
Judgment delivered on 08.10.2010
JUDGEMENT
1. The plaintiff has instituted the present suit against the defendant seeking the following reliefs:
a) A decree of declaration declaring inspection report dated 02.07.08, speaking order dated 18.09.2008 and the impugned theft bill of Rs.11,62,481/ as null and void and of no consequence;
b) a decree of permanent injunction restraining the defendant, its officials, agents employees etc. from taking any action on the basis of the aforesaid alleged inspection report, concerned speaking order and impugned theft bill; and
c) a decree of mandatory injunction directing the defendant to withdraw the aforesaid speaking order and the impugned theft bill of Rs.11,62,481/.
Page 1 of 15 S.C. Malik, ADJ05 (Central), Delhi
08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited
2. Briefly stated the case of the plaintiff as set up in the plaint is as follows: The plaintiff, a Private Ltd. company is registered consumer of the electricity vide connection bearing new K.No. 11200C090009 with a sanctioned load of 32KW for nondomestic (NX purpose) through meter No.17044185. The plaintiff is a good pay master, used to pay the bills as and when raised by the defendant. On 24.04.2006 the meter installed in the premises was replaced with a new meter by the defendant. However, after installation of the new meter consumption recorded in it went drastically down as compared to the consumption recorded by the old meter and as such plaintiff lodged a complaint in this respect vide its letter dated 10.10.2006. The letter was duly received by the defendant and after three months the said meter was replaced by the defendant in the month of January, 2007 vide meter change report dated 02.01.2007. Report dated 02.01.2007 finds a mention about the condition of service line and the meter to be OK. It further finds a mention that CT meter is present at site but the grievance of the plaintiff still remained unresolved. Its efforts for resolution of its grievance went in vain and the defendant kept on acting arbitrarily. Plaintiff also wrote a letter dated 23.06.08 which was duly acknowledged by the defendant vide receipt number 529 dated 24.06.2008 and the same complaint finds mention of letter dated 10.10.2006.
3. On 02.07.2008 officials of the defendant came at the site, replaced the meter. The plaintiff was under the impression that they had come in response to various complaints made by it. During replacement of the meter, the officials of the defendant asked for illegal gratification from the plaintiff but as the same was not given, the officials of the defendant got agitated and conducted an illegal inspection. The plaintiff was never informed by the officials of the defendant that they were conducting inspection in the subject premises. The plaintiff was shocked to receive a show cause notice dated 02.08.2008 which was alleged to be a 2nd show cause notice along Page 2 of 15 S.C. Malik, ADJ05 (Central), Delhi 08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited with inspection report, lab report and CD wherein the allegations of DAE were made against it. This notice was duly replied by the plaintiff and the hearing was also attended by it.
4. The plaintiff had never received any notice prior to the notice dated 02.08.2008 and hence the same purpurted to be a second show cause notice was false and frivolous. The inspection report dated 02.07.2008 was neither prepared at the site nor ever offered to the plaintiff for signatures at the site. In any case in the event of refusal, the same should have been pasted at site with a photograph of the same. Otherwise the same was required to be sent by registered post.
5. The falsehood of the case of DAE is further evident from the fact that inspection report speaks of the meter being slow by 94.46% when checked by acqua check but no acqua cheque result was ever made available to the plaintiff. Plaintiff itself complained about the slowness of the subject connection but the defendants in spite of redressing the grievance of the plaintiff have attributed a false case against the plaintiff itself by alleging that the subject connection was used as CT meter. However, it is pertinent to mention here that when the seals of the subject connection are found duly intact and OK as is evident from the CD supplied by the defendant then there can be no possibility of the plaintiff's tampering with the meter at all. Once the access to the internal mechanism of the meter is not possible, then the same cannot be tampered. Even otherwise at the time of installation of the subject connection on 02.01.07 by the defendant, the officials of the defendant themselves noted the presence of CT meter at site. Even the alleged ERDA Lab report signifies that the meter along with CT was within limits which again is in contrary to the defendant's own allegation that the meter is slow by (94.46%). The said lab report does not even attribute Page 3 of 15 S.C. Malik, ADJ05 (Central), Delhi 08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited any inherent defect, in the meter of the plaintiff. The subject meter when replaced with a new meter on 02.07.2008 was neither seized through a seizure memo, nor sealed. The plaintiff was never intimated or called upon to any such ERDA lab for the meter being tested in its presence. The load report dated 02.07.2008 has been prepared to raise a highly exorbitant bill and to extract money from the plaintiff. Plaintiff itself applied for enhancement of the load and the load of the plaintiff was enhanced from 22KW to 32KW. Had the plaintiff been using load as alleged by the officials of the defendant vide their inspection report dated 02.07.2008, he would have got the load enhanced to the same extent. The load or the rated capacity of the electrical equipments was not tested with the help of any gadgets or equipments and therefore, the same is based on whims and fancies of officials of the defendant. The load report dated 02.07.2008 has been made by including the load of even those equipments which were neither installed nor attached to the system and nor were they even in the working condition. However, the total Connected Load is about 27 KW.
6. The inspection was conducted in gross violation of The Electricity Act, 2003, and DERC Regulations as the same was not conducted in the presence of any witness of the locality. The defendant without complying with the principles of natural justice passed an illegal speaking order dated 18.09.2008 as it is silent upon the submissions of the plaintiff that the members of the inspecting team may be allowed to be crossexamined before resorting to any other further coercive action.
7. The plaintiff was served with an illegal theft bill of Rs.11,62,481/ in which the fixed charges of Rs.59,680/ are being Page 4 of 15 S.C. Malik, ADJ05 (Central), Delhi 08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited levied without any basis and legal mandate which in itself is grossly illegal.
8. The inspection was deliberately not conducted in the presence of two independent witness of the same locality. The theft bill is also liable to be quashed on the ground that the defendant while preparing the said bill has not given the benefit of units duly consumed and paid for by the plaintiff. Despite various requests, the defendant has failed to act upon the requests of the plaintiff and hence plaintiff has no other efficacious remedy in law but to approach this court by way of preferring the present suit.
9. The defendant has contested the suit of the plaintiff and has placed on record a written statement. It is contended by the defendant that the plaintiff has not come to the court with clean hands. An inspection of the subject premises was carried out on 02.07.2008 in the presence of Sh. Neeraj who refused to sign and receive the inspection report and show cause notice. He did not allow the members of the team to paste the same in the premises. At the time of inspection three phase whole current meter was found existing in the meter box along with CTs of 100/5 amp and seals were found in place. The meter accuracy was checked on standard aqua check in the presence of the user and the meter was found to be slow by 94.46% and the result was duly shown to the user. The CT meter box was segregated at site when certain ambiguities were observed. On the basis of the above, the inspecting team suspected that the meter has been deliberately disturbed to cover the recorded consumption and more so because the CT connections are not at all required in three phase whole current meter. The CT box with meter and CTs were seized at the site and were sent to the lab for testing.
10. ERDA vide its report dated 24.07.2008 observed: Page 5 of 15 S.C. Malik, ADJ05 (Central), Delhi
08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited a. As per special observations i. The meter is whole current meter of type 20100 amps but is used as a CT meter because of which the recording of reading is not more accurate.
ii. Load imbalance hence CT short recorded many times iii. Consumption recorded in EBS is 20 times less as CTs of 100/5 amp ratings are used.
b. The lab interalia concluded that meter is not a CT meter but is used as a CT meter.
11. CMRI data has also been downloaded. Accordingly a case of DAE was booked. Connected load was found to be 69.388KW against the sanctioned load of 32KW. As show cause notice dated 02.07.2008 was refused to be accepted, another notice dated 02.08.2008 was sent to the plaintiff for hearing on 20.08.2008. Plaintiff submitted a written representation on 20.08.2008. After considering the facts of the case and representation of the plaintiff, speaking order dated 18.9.08 was passed and final bill was raised which is fully payable by the plaintiff.
12. Defendant further submitted that analysis of recorded consumption pattern clearly indicates that on earlier occasion when meter No. 0102543 was in existence, the consumption was in four digits but immediately after replacement of this meter, when meter no(s). 17039502 and 17044185 were installed, there was a drastic drop in the recorded consumption. From the above, it is clear and established beyond reasonable doubt that consumer with a sole intention to reduce the recorded consumption has tampered the meter by getting the CTs installed illegally. Page 6 of 15 S.C. Malik, ADJ05 (Central), Delhi
08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited
13. Defendant further contended that Sh. A.K.Bansal is not competent and authorized to institute the present suit. The defendant had already replaced the meter on 02.01.2007 before the complaint dated 23.06.2008 but after the complaint dated 10.10.2006. The seals of the meter were got replaced by the plaintiff himself and plaintiff had created evidence in its favour in a preplanned manner. The consumption of the plaintiff was low due to illegal installation of CTs in three phase whole current meter. No illegal gratification was ever asked for by the officials of the defendant. The inspection was duly videographed. The load mentioned in the report was duly found installed at site and is duly videographed as well. Speaking order is legal, justified, a reasoned one and passed after considering the facts of the case and representation of the plaintiff and hence plaintiff is liable to pay the theft bill which was raised on account of plaintiff's indulgence in theft of electricity.
14. Replication to the written statement of the defendant was placed on record on behalf of the plaintiff wherein the plaintiff has denied the case of the defendant as set up in the written statement and has reaffirmed the averments made by the plaintiff in the plaint.
15. On 06.02.2010 after hearing Ld. counsel for the parties, on the pleadings of the parties, the following issues were framed:
(i) Whether the plaintiff was indulging in Dishonest Abstraction of Energy as alleged? OPD
(ii) Whether the CT connection in the ratio of 100:5 were provided by the defendants themselves much before the alleged date of inspection? OPP
(iii) Whether the plaintiff is entitled to the decree of declaration as prayed for ? OPP
(iv) Whether the plaintiff is entitled to the decree of permanent and mandatory injunction as prayed for? OPP Page 7 of 15 S.C. Malik, ADJ05 (Central), Delhi 08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited
(v) Relief?
16. The plaintiff in support of its case has examined only Sh. A.K.Bansal, the Manger of the plaintiff as PW1 and has thereafter closed the plaintiff's evidence. On the other hand, the defendant in support of its case has examined three witnesses namely, Sh. Raj Singh as DW1, Sh. Sanjay Garg as DW2 and Sh. Sunil as DW3 and thereafter closed its evidence.
17. I have heard the arguments advanced by Ld. counsel for the parties, carefully perused the pleadings, evidence and documents proved on record.
18. My issue wise findings are as under :
Issue nos. 1 & 2 are inter connected hence are taken up together for recording findings thereon.
As per records, factum of inspection dated 02.07.08 is not in dispute.
The case of the defendant is that the plaintiff was using a whole current meter as a CT meter resulting into recording of less consumption hence plaintiff was indulging in theft of electricity whereas the case of the plaintiff is that it is the plaintiff only who had complained regarding recording of low consumption and the meter which had been allegedly used as a CT meter, had been installed by the defendant itself and the same is evident from Meter Change Report dated 02.01.2007 which is Ex. PW1/3. Page 8 of 15 S.C. Malik, ADJ05 (Central), Delhi
08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited
19. I have carefully perused the Meter Change Report dated 02.01.2007 Ex.PW1/3 which is not in dispute and the same contains remarks, "OK. CT meter present at site" against the column Condition of service line and therefore, it is ample clear that the Meter installed at site in respect of which the inspection was carried out which was alleged for being used as a CT meter, is a CT meter.
20. The case of DAE against the plaintiff is booked solely on ERDA report dated 24.07.2008 which has concluded that the "meter is not a CT meter but is used as a CT meter" i.e. the plaintiff was using a whole current meter as a CT meter whereas the defendant has not checked its own record i.e. meter change report dated 02.01.2007 Ex. PW1/3 which clearly states that the meter bearing No.17044185 is a CT meter. Thus the stand of the defendant itself is contradictory and in such circumstances, the plaintiff should not and cannot be penalized on the said account.
21. PW1 during his cross examination has clearly testified that no inspection report and show cause notice were prepared at site on 02.07.2008. He was present at the time of inspection. CTs were installed by BSES itself as is evident from meter change report Ex. PW1/3. He has further denied the indulgence of the plaintiff in theft of electricity or that plaintiff is liable to pay the theft bill.
22. DW1 during his cross examination has testified "It is correct that factum of preparation of inspection report and show cause notice is not revealed in Ex.DW1/3. It is correct that I was not aware, whether the department had installed the CT at the subject premises or not against the subject connection." ........ "The officials of MMG department were called for replacement of meter. I did not inquire from the officials whether the CTs are installed by them or not. ..... It is correct that EX PW1/3 bears the same Page 9 of 15 S.C. Malik, ADJ05 (Central), Delhi 08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited meter number which was checked on 02.07.2008 and against which the case has been booked. Ex. DW1/2 was issued on the same day without awaiting the lab report as the meter was found slow by 94.46%. Aqua check report was not offered to the consumer as he refused to sign and accept the same. It is correct that we were not carrying any instrument to print the aqua check test result. ...... No print out was taken but the same was shown to the representative through gadget carried out by us....... It is correct that there is no mention of meter being seized vide seizure memo in the inspection report. ........ It is correct that no letter was issued to the plaintiff to witness the testing/desealing of meter in the lab. ........ It is correct that all the seals during the inspection were in place. ...... It is correct that seals were not tampered as per the inspection report. It is correct that the present case has been booked as a three phase whole current meter being used as a CT meter. It is correct that had it been a case where the CTs are installed by the department, then the present case would not have fallen under the DAE category. ....... It is correct that meter was recording 20 times less consumption due to installation of CTs against the subject connection. The load was mentioned on the basis of my information. It is correct that load was not tested through tong testor or through any other testor.."
23. DW2 during his cross examination has testified "It is correct that representative of the plaintiff filed a detailed reply pursuance to show cause notice issued for personal hearing. I cannot say whether the reply was received by me or not. ..... Ex.PW1/10, reply to show cause notice was received by me through Dak of our office on 20.08.2008. ....... It is also correct that consumer must have received the notice after 30 days from the date of inspection."
He has also testified that he cannot say whether the show cause notice issued on 02.07.2008 without awaiting the conclusion of the lab report is illegal and should not have been issued but he has admitted that Page 10 of 15 S.C. Malik, ADJ05 (Central), Delhi 08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited plastic and hologram seals were found OK and LD/LED were found OK as per lab report. He has admitted that Ex.PW1/8 does not find mention of breakage of any seal and that there is no mention of acqua check report in the column enclosures of Ex.DW2/1.He has testified that as there is no separate acqua check report, the same was neither provided to the consumer and nor placed on record. He has also admitted that contention of the para No. 16 of reply Ex.PW1/10 are not dealt with in the speaking order.
He has also admitted that if CTs are installed along with the meter in the ratio of 100:5 and then 100 Amp current is passing through it and the meter will record only 5 Amp. He has, however, testified that he cannot comment that the meter will record 95% less consumption due to installation of CTs' in the above said ratio (1005=95). He has also admitted that had the recorded consumption been multiplied by 20, then the observation of less consumption does not carry any weight. He has testified that he cannot comment on the Meter change report Ex.PW1/3.
24. DW3 during his cross examination has admitted that he was not a summoned witness, he had come to depose on behalf of the company through an information given to him and that the validity of his Icard was only from 12.11.2009 to 31.03.2010 and that the inspection was carried out prior to validity of his Icard. He has also admitted that at the time of his deposition he was not in possession of any document so as to show that on 02.07.2008 he was working with the said studio. He has also testified that he had not issued any letter/certificate to BSES to show that the videography was done by him on 02.07.2008."
25. It is clear from the testimony of DW1 that as per the inspection report, none of the seals were tampered with and it is clear from the testimony of DW2 that plastic and hologram seals were found OK and that LD/LED were also found OK as per lab report. It is also clear that no letter Page 11 of 15 S.C. Malik, ADJ05 (Central), Delhi 08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited was issued to the plaintiff to witness the testing of the meter and hence the defendant has also violated the principles of natural justice.
26. Inspection report clearly reveals that the case was booked for DAE subject to lab report and as such the defendant could not issue a notice on 02.07.2008 for personal hearing without awaiting for lab report. Therefore issuance of the said notice clearly proves that the case of DAE against the plaintiff has been booked in an illegal manner and the same cannot be sustained in the eyes of law.
Further if the defendant was sure of DAE on 02.07.2008 itself then it should not have sent the meter to lab. In that case, the show cause notice issued on 02.08.2008 is beyond the stipulated period of 30 days as mentioned in regulations and hence there is violation of regulation 52(xi).
DW1 has further admitted that the present case had been booked as a three phase whole current meter was being used as a CT meter and that had it been a case where CTs are installed by the department, then the present case would not have fallen under the DAE category.
27. As no tampering was observed in the meter as per testimony of the witnesses and as it has also been proved on record vide EX PW1/3 that there existed a CT meter prior to inspection on 02.07.2008, then defendant is not justified in booking a case of DAE against the plaintiff. None of the witness have been able to prove that the Ex.PW1/3 is a forged and fabricated report or that the same had been issued at the instance of the consumer only. The witness has admitted that Ex.PW1/3 bears the same meter number which was checked on 02.07.2008 and against which the case had been booked. The same clearly proves that meter change report Ex.PW1/3 is issued by the defendant and is binding upon it.
Page 12 of 15 S.C. Malik, ADJ05 (Central), Delhi
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28. From the testimony of DW1 it is clear that the load was mentioned on the basis of his information and was not checked through tong testor or any other testor. It raises serious doubt on the working of the defendant as defendant is a statutory body and it is not expected to act in a whimsical manner and note down the load on guess work without checking the load by scientific instruments. Hence the inspection report prepared by the defendant is not worth placing reliance. From the testimony of DW1 it is also clear that acqua check result was not offered to the consumer on the ground that he refused to accept it and the inspecting team was not carrying any instrument to print the same. If the inspecting team was not carrying any instrument to print the acqua check result, how the same could have been offered to the plaintiff so as to make him to refuse to accept the same. It only proves that no acqua check result was ever offered to the plaintiff.
29. It appears, DW3 who did the videography was not authorized to do the videography on 02.07.2008 as his Icard was not valid for 02.07.2008 hence the CD filed on record cannot be termed to be a legal one as the same was not done by an authorized photographer. Further more, DW 3 has clarified that he had not issued any letter/certificate to the BSES to show that photography was done by him on 02.07.2008 hence the CD placed on record cannot be looked into as the same has not been duly proved on record in accordance with law.
30. Even otherwise as all the seals were found OK it was not possible for the plaintiff to install the CTs on its own until the same is installed by the defendant itself at the time of installation of the meter. In such a case plaintiff cannot be penalised for any wrongful act of the defendant.
31. DW2 has further admitted that he has not dealt with the contentions of the plaintiff whereby plaintiff had requested to provide him an opportunity to cross examine the members of the inspection team while Page 13 of 15 S.C. Malik, ADJ05 (Central), Delhi 08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited passing the speaking order and as such the speaking order is also not sustainable in the eyes of law and is liable to be set aside.
Reference in this regard has been made to law laid down in RPL Vs MANOJ KUMAR CM (M) 825/2007 and "SIMLA DEVI Vs BSES RPL WP(C) 14772/2006 wherein it has been held that .......... . although, the respondent requested for an opportunity to crossexamine the members of the inspecting team, yet, the request made by him fell on deaf ears. The order in question is conspicuously silent about this request. An opportunity to crossexamine the witness should have been provided because personal hearing granted to the consumer is not an empty formality...........The adjudicating authority was, however, duty bound to examine the request of a consumer for permission to cross examine the witness and pass a reasoned order on the same, if the request was being rejected.
32. The documents prepared and placed on record by the defendant to justify the booking of case of DAE against the plaintiff do not inspire any confidence.
In view of my above discussion it is ample clear that the meter was installed by BSES itself in the premises and the same was a CT meter in view of Meter Charge Report Ex.PW1/3 and hence the observations of lab report do not hold any water and are set aside as being illegal. The plaintiff has successfully proved that the action of the defendant in booking the case of DAE against the plaintiff is illegal, unjust and against the procedure prescribed by law and therefore, inspection report dated 02.07.2008, speaking order dated 18.09.2008 and impugned theft bill are accordingly set aside and cannot be enforced against the plaintiff. Issue Nos.1 & 2 are accordingly decided in favour of the plaintiff and against the defendant. Page 14 of 15 S.C. Malik, ADJ05 (Central), Delhi
08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited 33. Issue Nos. 3 & 4 In view of the above detailed discussion and my findings on issue Nos. 1 & 2, the issues Nos.3 & 4 are also decided in favour of the plaintiff and against the defendant and accordingly the plaintiff is entitled to the relief of declaration, permanent and mandatory injunction as prayed for.
34. Relief In view of my findings on issue Nos.1 to 4, suit of the plaintiff is decreed. The inspection report dated 02.07.2008, speaking order dated 18.08.2008 and demand raised by the defendant vide impugned bill for Rs.11,62,481/ are hereby declared as null and void. The defendant, its officials, agents etc. are permanently restrained from taking any action on the basis of aforesaid inspection report, speaking order and impugned theft bill. The impugned theft bill raised against the plaintiff stands withdrawn.
In view of judgments in "Sunita Rathore Vs. NDPL CM(M) 2680/2005 and in "Ram Singh Vs. BSES -RPL CM (M) 627/2003 relied upon by Ld. counsel for the plaintiff, he is entitled to interest on the excess amount deposited by him pursuant to the interim orders of the court.
Needless to say that amount deposited by the plaintiff pursuant to the interim orders passed by this court shall be refunded by the defendant to the plaintiff within a period of 45 days from today failing which the same shall be refunded by the defendants along with simple interest from the date of deposit thereof @ 6% p.a. Decree sheet be prepared accordingly.
Page 15 of 15 S.C. Malik, ADJ05 (Central), Delhi
08.10.2010 Suit No. 27/08 M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited File be consigned to record room.
Dictated and Announced in ( S.C. MALIK )
the open Court on 08102010. ADJ05 (Central)
Delhi.
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08.10.2010
Suit No. 27/08
M/s Rachna Sagar (P) Ltd. Vs. BSES Yamuna Power Limited Page 17 of 15 S.C. Malik, ADJ05 (Central), Delhi 08.10.2010