Delhi District Court
Sh. N.B. Jain vs B.S.E.S. Rajdhani Power Ltd on 25 May, 2011
IN THE COURT OF MS. NEHA PALIWAL, DELHI CENTRAL06
TIS HAZARI COURTS, DELHI
SUIT NO. 192/10/04
In the matter of :
Sh. N.B. Jain,
s/o Sh. Ramesh Chand Jain,
R/o A10A, Green Park (Main) ... Plaintiff
versus
B.S.E.S. Rajdhani Power Ltd.
Through its C.E.O.
33 KBA station, Kamla Market,
ASAF Ali Road,
New Delhi. .... Defendant
Date of institution of the suit : 17.02.2004.
Date of reserving judgment/ order : 16.05.2011.
Date of pronouncement : 25.05.2011.
JUDGMENT:
1. By filing the present suit, the Plaintiff is seeking the recovery of Rs 36,429/ from the Defendant and a declaration that the impugned bill dated 12.08.1999 of Rs. 1,47,781/ is illegal, unlawful and not maintainable and the Plaintiff is entitled to the Suit no. 192/10/04 N B Jain vs B.S.E.S. 1 of 17 refund of Rs. 36,429/.
2. Briefly as per the Plaint the case of the Plaintiff is as under: The Plaintiff is residing on the first floor of House no. A10A, Green Park (Main), New Delhi since 16th July, 1999 (herein after known as the suit property). Prior to 16.07.1999, the Plaintiff was residing in house no. 1139, Vikas Kunj, Vikaspuri, New Delhi18 which was owned by the father of the Plaintiff. The property no. A10A, Green Park (Main), New Delhi was purchased by the Plaintiff and his wife in joint names on 11.01.1999 however, he shifted there on 16.07.1999 due to the Mid Academic session of his son and serious illness of his mother who expired on 1.07.1999. The Plaintiff is relying upon the electricity bills of the Vikas Kunj house and his affidavit and his father's affidavit to show that he shifted to the suit property situated at Green Park on 16.07.1999. By the electricity bills the Plaintiff wants to show that after he shifted the consumption of electricity in that house became nil.
3. It is the case of the Plaintiff that at the time when he shifted in the suit property the electricity in that premises was provided from meter no. 4D54311 (K.no. 1290575). It is the case of the Plaintiff that the consumption of electricity in this meter prior to his shifting was 23407 units during the period 20.04.1998 to 21.07.1999 and thus the monthly average consumption was 1564 units. After his shifting during the Suit no. 192/10/04 N B Jain vs B.S.E.S. 2 of 17 period 21.07.1999 to 15.11.1999 the total consumption was 7500 units during the period about 4 months giving average monthly consumption of 1875 units. It is the case of the Plaintiff that this fact shows that there is no theft of electricity as alleged by the then D.V.B. authorities.
4. It is the case of the Plaintiff that on 7.08.1999 the officials of the Delhi Vidyut Board carried out surprise inspection on the suit premises and came to the conclusion that there was theft of electricity. The meter was checked by the enforcement staff on that date and the report was prepared by the inspection team and the team observed that the said meter was found in order on all the three phases, its half seals 108648 to 108650 were also found intact, both axels were also found intact however, a cavity was found on the upper side of the half seal no. 106648 of the meter and scratches were observed on the dial plate of 10000 and 1000 figures.
5. It is the case of the Plaintiff that in that surprise inspection the electricity meter was found in proper working condition and it was not found out that electricity was being stolen. Its all three seals and both the axels and the glass were found in order. It is the case of the Plaintiff that the alleged defects could be caused by any official of the then D.V.B and the scratches on the dial plate may be existing at the time of installation of the meter.
Suit no. 192/10/04
N B Jain vs B.S.E.S. 3 of 17
6. It is further the case that on or about 12.08.1999, a bill for Rs. 1,47,781/ was received by the Plaintiff in joint names of (1) Shri S.K Sharma (2) M/s Hintek (3) and the Plaintiff. The bill was prepared on the basis of assumed theft of electricity to the tune of 8848 units charged @ Rs 15.91 paise per unit. Thus it is the case of the Plaintiff that the allegation of theft of electricity is illegal as the actual load was found to be 19.886 Kilo Watt as against the sanctioned load of 11 Kilo Watts.
7. It is further the case of the Plaintiff that the impugned bill threatened that if it is not paid by 17.08.1999 an FIR will be registered against all the three consumers for theft of electricity and the electric supply will be disconnected and the amount of bill if not paid within time will be raised to Rs 2,21,655/ from Rs 1,47,781/. It is the case of the Plaintiff that the threat of the bill is an arbitrary exercise of power and violative of principles of natural justice. Further more no show cause notice was given to the Plaintiff nor was the Plaintiff given any opportunity to explain his position and no notice of inspection was given.
8. It is the case of the Plaintiff even if the meter was defective in any manner it was the duty of the Defendant to change the same as the bills raised by the DVB were paid and the meter was moving.
9. It is the case of the Plaintiff that he being a senior govt. officer could not afford Suit no. 192/10/04 N B Jain vs B.S.E.S. 4 of 17 the risk of getting a false FIR registered against him for no fault of his. He even made several applications and representations to the officials of the Defendant however in vain. He was in turn handed over a bill of Rs 36,429/ and the same was paid by him on 17.08.1999 under coercion. Application dated 25.02.2000 was sent to the chairman of the DVB, reminder was also sent on 29.03.2000 but they proved to be of no consequence. Another application was given on 10.08.2001 and thereafter legal notice U/s 80 CPC was given to the Defendant.
10. It is the case of the Plaintiff that thereafter he filed a complaint bearing no. 908/2002 before the consumer forum but the same was dismissed by the Ld. Forum on 20.11.2003 and therefore the Plaintiff has filed the present case.
11. Thus the Plaintiff has prayed that a decree for recovery of Rs 36,429/ be passed in his favour against the Defendant along with the relief of declaration that the impugned bill dated 12.08.1999 of Rs. 1,47,781/ be declared as illegal, unlawful and not maintainable and the Plaintiff is entitled to the refund of Rs. 36,429/.
12. Written Statement was filed on behalf of the Defendant wherein preliminary objections were taken by the Defendant that the Plaintiff is estopped from recovering the amount of Rs 36,429/ from the Defendant as the Plaintiff has paid the amount voluntarily, without any coercion, as the Plaintiff being the user of the connection was Suit no. 192/10/04 N B Jain vs B.S.E.S. 5 of 17 found indulging in Fraudulent Abstraction of Energy as per the inspection report dated 7.08.1999. The Plaintiff has paid the amount as per law and can not recover the same.
13. It is the case of the Defendant that the present suit of the Plaintiff is barred by time and no exemption under Limitation Act has been pleaded and thus the suit is time barred. It is further their case that the registered consumer of the subject connection is Shri S.K Sharma and therefore the Plaintiff has no locus to file the present suit.
14. In their reply on merits, it is the case of the Defendant that, inspection report dated 7.08.2009 was prepared after inspection was carried out by a team of officials of the erstwhile DVB comprising of officials from enforcement, MTD and Zone. Load and MTD report was prepared at site in presence of the Plaintiff who signed and received the copy of the same. A cavity was existing on the upper side of seal of half seal no. L08648, and scratches were found on the dial plate of the 10000 and 1000 digits of the meter. On the basis of the said inspection, show cause notice was served on the registered consumer Shri S.K Sharma who attended the personal hearing held on 23.01.2001 before XEN (Enf.) South and submitted his representation.
15. It is the case of the Defendant that after giving due consideration, to the representation, and studying the consumption pattern the case was booked for FAE on the basis of the speaking order, and FAE bill was raised as per tariff provisions.
Suit no. 192/10/04
N B Jain vs B.S.E.S. 6 of 17
16. Thus they have prayed that the suit of the Plaintiff be dismissed with cost.
17. Replication was filed on behalf of the Plaintiff to the written statement wherein besides reaffirming the contentions in the plaint and denying the averments in the written statement it was stated that the preliminary objections of the Defendant with respect to the fact that the suit is barred by limitation were decided by the predecessor of this court vide order dated 25.02.2005 by which the application U/o 7 rule 11 was dismissed and it was held that the suit of the Plaintiff is not time barred.
18. As the Defendant had not appealed against the said order therefore the order dated 25.02.2005 has attained finality. It is further the case of the Plaintiff that he was given only three days time to make such heavy payment and if the Defendants are raising the contention of registered consumer why had they raised the bill in his name.
19. In the reply to the reply on merits, it is the case of the Plaintiff that the personal hearing was given to Shri S.K Sharma and the Plaintiff does not know what took place in that hearing and was kept in dark though he was made a party at the time of imposition of penalty. Thus the Plaintiff has prayed that his suit be decreed.
20. In the present matter an application U/o 7 rule 11 was filed by the Defendant which was dismissed vide order dated 25.02.2005 by the Ld. Predecessor of this court and in that it was held that the suit of the Plaintiff can not be said to be time barred.
Suit no. 192/10/04
N B Jain vs B.S.E.S. 7 of 17
21. Vide order dated 26.05.2005, issues were framed in this matter and they are as under :
1. Whether the Plaintiff has no locus standi to file the present suit?OPD
2. Whether the Plaintiff is entitled to a decree for declaration as prayed for in the plaint?OPP
3. Whether the Plaintiff is entitled to a decree of recovery of Rs 36,429.60/ as prayed in the plaint?OPP
4. Whether the Plaintiff is entitled for interest? If so, at which rate for which period?OPP
5. Relief.
22. Thereafter the matter was fixed for Plaintiff's evidence. Plaintiff in support of his case has examined himself as PW1 and in his affidavit has exhibited the following documents:
1. Ex.PW1/A : Copy of the sale deed dated 11.01.1999 whereby the suit property was purchased by the Plaintiff along with his wife in joint names.
2. Mark A : Affidavit of the Plaintiff stating that he has shifted in the suit property on 16.07.1999.
3. Mark B : Copy of the Affidavit of the father of the Plaintiff showing that the Plaintiff shifted to the suit property on 16.7.1999.
Suit no. 192/10/04
N B Jain vs B.S.E.S. 8 of 17
4. Ex.PW1/5 : Photocopies of the Nine electricity bills showing
consumption of electricity in respect of the Vikas kunj house. Originals of which were filed later in the court with permission.
5. Ex.PW1/6 : Copy of inspection report dated 7.08.1999.
6. Ex.PW1/7 : Copy of the impugned bill for Rs 1,47,781.46/
7. Mark C : Copy of the Application dated 16.08.1999
8. Ex.PW1/9 : Copy of the paid bill of Rs 36,429.60/paid on 17.08.1999.
9. Ex.PW1/10 : Copy of the Application dated 25.02.2000
10. Ex.PW1/11 : Copy of the reminder dated 29.03.2000
11. Mark D : Application dated 10.08.2011.
12. Ex.PW1/13 : Carbon copy of the legal notice u/s 80 CPC dated 22.01.2002
13. Ex.PW1/14 : Original postal receipt.
14. PW1/15 : Receipt of certificate of posting.
15. PW1/16 : Order passed by the Ld. Consumer forum on 20.11.2003.
23. Defendant in support of its case has examined Shri Kushal Singh, Investigation Officer Vigilance, BSES. He in his affidavit has relied upon the load report, Photocopy of which is filed and is marked A.
24. Issue wise findings in the present case are as under: Issue no.1: Whether the Plaintiff has no locus standi to file the present suit?OPD
25. The onus to prove this issue was on the Defendant.
26. It is the case of the Defendant that Plaintiff has no locus to file the present suit as Suit no. 192/10/04 N B Jain vs B.S.E.S. 9 of 17 Plaintiff is not the registered consumer of the suit property. However the Defendant is admitting that the Plaintiff has paid the amount of Rs 36,429/ on 17.08.1999 to them. It is the case of the Defendant that theft bills / FAE bills can be raised against the persons who is found to be in actual usage of the premises.
27. In the present matter therefore it cannot be said that the Plaintiff has no locus standi to file the present suit as the Defendant company as per their policy raise bill for theft and FAE on those persons who are found to be in actual user of the said meter and not against the registered consumers only. As it is admitted by the Defendant that the impugned bill was raised against the Plaintiff also and the Plaintiff has paid an amount to the tune of Rs. 36,429/ to the Defendant therefore the Plaintiff has a locus standi to file the present suit as he has a cause of action in his favour.
28. This issue is thus decided in favour of the Plaintiff and against the Defendant. Issue no.2 Whether the Plaintiff is entitled to a decree for declaration as prayed for in the plaint?OPP
29. The onus to prove this issue was on the Plaintiff.
30. It is the case of the Plaintiff that the impugned bill raised by the Defendant was an illegal and arbitrary exercise of power and was containing threats of getting FIR Suit no. 192/10/04 N B Jain vs B.S.E.S. 10 of 17 registered in case of non payment. It is the case of the Plaintiff that he was not given an opportunity of getting heard no show cause notice was given to him and despite various representations he was coerced to pay the amount of Rs. 36,429/ to the Defendant (his 1/3rd share of the impugned bill).
31. Plaintiff in support of his case is showing the original bills of his earlier Vikas Kunj address showing consumption of electricity and showing that after his shifting to the suit property the consumption of electricity was nil and is also filing his affidavit and the affidavit of his father given by them to the electricity department. Though all the documents filed by the Plaintiff are photocopies except the electricity bills of the Vikas Kunj address the Defendant has admitted that Plaintiff has paid the amount of Rs 36,429/ and has further admitted the factum of the inspection report and the raising of the impugned bill on the ground that there was fraudulent abstraction of energy and a cavity was found on the upper side of the seal of half seal number L08648 and scratches were found on the dial plate of the 10000 and 1000 digits of the meter.
32. It is further the case of the Defendant that show cause notice was served on the registered consumer who attended the personal hearing and after his hearing and seeing the consumption pattern FAE bill was raised.
33. Before deciding the present issue it is necessary to dwell into the law relating to Suit no. 192/10/04 N B Jain vs B.S.E.S. 11 of 17 fraudulent abstraction of energy as laid down in a catena of judgments.
In "Col. R.K. Nayar (Retd.) v. BSES Rajdhani Power Ltd., 140 (2007) DLT 257", the Hon'ble High Court of Delhi held that : "This Court is of the view that an inference of fraudulent abstraction of energy must be passed on some conclusive evidence that the user has tampered with the meter in a manner that has enabled such user to either slow down the meter or make it record lesser units of consumption. There must be a link established between the physical evidence of tampering noticed on inspection and the consumer. An inference of FAE should not be permitted to be drawn on the mere fact that a meter had been found with broken seals. An electricity meter is admittedly not kept enclosed in a tamper proof environment under the lock and key, with one key retained by the consumer and the other by the supplier of the electricity. If a meter is kept in a location that permits any person intending to do mischief to have easy access to the meter, then to fasten the charge of FAE on the consumer in the event of the meter being found tampered, is not being reasonable or even realistic. Something more would have to be demonstrated to infer an intention by the consumer to "fraudulently" abstract electricity. In this context it is necessary to emphasize that the analysis of consumption pattern cannot constitute Suit no. 192/10/04 N B Jain vs B.S.E.S. 12 of 17 substantive proof of DAE in the absence of tangible physical evidence of DAE in the manner explained above. In other words, the analysis of consumption pattern can only corroborate what is found on physical inspection which can indicate whether the consumer has herself or himself employed a device or a method to dishonestly abstract electricity. It will not be open to the respondent in the absence of any tangible evidence of DAE, to proceed on the basis of the consumption pattern to infer DAE."
34. In Jagannath Singh v. Ramaswamy, (1966) 1 SCR 683 where the Hon'ble Supreme Court of India has held as under: "An exposure of a stud hole on the meter cover is an artificial means for preventing the meter from duly registering. For the purposes of Section 44, the existence of this artificial means gives rise to the presumption that the meter was prevented from duly registering but this presumption cannot be imported into section
39. 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 for 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 Suit no. 192/10/04 N B Jain vs B.S.E.S. 13 of 17 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".
35. Going by these case laws it is categorically clear that in order to show that a person is indulging in FAE the Defendant company has to show some tangible evidence linking the consumer with the fraudulent abstraction, only the analysis of consumption pattern which is done in the present case cannot constitute substantive proof of FAE in the absence of tangible physical evidence of FAE. The tangible physical evidence is to be more than scratches or a cavity as alleged in the present matter.
36. Defendant is exhibiting the load report as Mark 'A' and is stating that the inspection was carried out in the presence of the Plaintiff and is further showing the signatures of the Plaintiff in the said document.
37. Though the said document is only marked however it is no where the allegation of the Plaintiff that the inspection was done at his back his case is that he was not given an opportunity to show cause which fact is also confirmed by the Defendant as it is the Suit no. 192/10/04 N B Jain vs B.S.E.S. 14 of 17 case of the Defendant also that the show cause notice was only given to the registered consumer.
38. In view of the law discussed above besides showing the consumption pattern the Defendant is required to show something extra to show the complicity of the Plaintiff in fraudulent abstraction of energy. Here it is nobody's case that the Plaintiff has tampered with the meter in a manner that has enabled him to either slow down the meter or to make it record lesser units of consumption. The meter was found in a good working condition and besides inspection report there is nothing on record shown by the Defendant.
39. In view of the same this issue is decided in favour of the Plaintiff and the Plaintiff is entitled to the decree of declaration that the impugned bill dated 12.08.1999 for Rs. 1,47,781/ is illegal and unlawful and the Plaintiff is entitled to the refund of Rs. 36,429/.
40. This issue is decided in favor of the Plaintiff and against the Defendants. Issue no .3 Whether the Plaintiff is entitled to a decree of recovery of Rs 36,429.60/ as prayed in the plaint?OPP
41. The onus to prove this issue was on the Plaintiff.
Suit no. 192/10/04
N B Jain vs B.S.E.S. 15 of 17
42. In view of the findings in issues no.2 as it is held that the impugned bill is illegal and unlawful and that the Plaintiff is entitled to the refund of Rs. 36,429/ therefore this issue is also decided in favour of the Plaintiff and the Plaintiff is entitled to the recovery of Rs.36,429/ from the Defendant no. 1.
43. This issue is decided in favor of the Plaintiff and against the Defendant. Issue no.4 : Whether the Plaintiff is entitled for interest? If so, at which rate for which period?OPP
44. In view of the findings in issue no.2 and 3 as the Plaintiff is entitled to the recovery of Rs. 36,429/ the Plaintiff is also entitled to the interest over the said amount. Thus the Plaintiff is awarded interest @ 9 per cent from the date of deposit of that amount with the Defendant till the recovery of the suit amount. Issue no. 5: Relief
45. In view of the findings in issues no. 1, 2, 3 and 4 the suit of the Plaintiff is decreed and the bill dated 12.08.1999 for Rs. 1,47,781/ is declared as illegal and unlawful and the Plaintiff is entitled to the recovery of Rs 36,429/ along with interest @ 9 per cent p.a. from the date of deposit of that amount with the Defendant till the recovery of the said amount.
Suit no. 192/10/04
N B Jain vs B.S.E.S. 16 of 17
46. Cost of the suit are also awarded to the Plaintiff.
47. Decree sheet be prepared accordingly.
48. File be consigned to record room.
Announced in the open court on this 25th day of May, 2011.
(Neha Paliwal) Civil Judge6 Delhi/25.05.2011 Certified that this judgment contains 17 (seventeen) pages and each page bears my signature.
(Neha Paliwal)
Civil Judge06
Delhi/25.05.2011
Suit no. 192/10/04
N B Jain vs B.S.E.S. 17 of 17