Delhi District Court
Shri Pradeep Sabharwal vs The C.O.O on 30 September, 2010
ID No. 02401C0788632007
IN THE COURT OF SHRI PANKAJ GUPTA
ADDL. DISTRICT JUDGE (CENTRAL13) : DELHI
Suit No.97/2009
Shri Pradeep Sabharwal
S/o Shri M L Sabharwal
Owner R/o E2/79, Chanakya Place,
Pankha Road, New Delhi .......... Plaintiff
VERSUS
The C.O.O.
B S E S Rajdhani Power Ltd.
At BSES Bhawan Nehru Place,
New Delhi19
Also at : Enforcement Officer
Andrews Ganj,
Delhi ..........Defendant
Date of Institution : 16.08.2007
Date when the case reserved for judgment : 29.09.2010
Date of Decision : 30.09.2010
J U D G M E N T
1. The plaintiff filed the present suit for declaration and permanent injunction against the defendant. Initially, the plaintiff filed the suit for declaration and permanent injunction against the defendant and prayed that the bill no. AGENR240720070110 for Rs. 11,08,923/ be declared null and void. Later, the plaintiff moved an application under Order 6 Rule 1 Pradeep Sabharwal vs. BSES RPL 17 of Code of Civil Procedure, 1908 (CPC) for amendment of the plaint which was allowed on 12.05.2008. Consequently, the plaintiff filed the amended plaint.
2. In the plaint, it is stated that the plaintiff is owner of property bearing no.E2/79, Chanakya Place, Pankha Road,New Delhi (the premises) and was using the same for storage of goods for few days in a month. The plaintiff had two electricity connections at the premises i.e. one is "non domestic connection" (K.no. 2650W2130212) (sanctioned load 1 KW) and another is "domestic connection" (K. no. 2650W2130174) (sanctioned load 3 KW). In December 2006, the plaintiff had shifted his entire work to Gurgaon, Haryana. Since then, the premises was lying vacant and not used for any purpose except when the premises was got repaired recently. Despite that the plaintiff received an electricity bill no. AGENR240720070110 for Rs. 11,08,923/ due date 27.07.2007 for the "Dishonest Abstraction of Energy" (DAE) ) for nondomestic connection. The said bill pertained to inspection dated 13.06.2007. In fact, none of the officials of the defendant visited the premises on the alleged date for inspection. Thereafter, the plaintiff informed the defendant that the premises was unoccupied and no one was using electricity but the officials of the defendant insisted the plaintiff to deposit the bill amount. It is also stated that during the present proceedings, the disputes were referred for mediation where the defendant specifically stated that entire bills against ID number RJ200707D0088 were withdrawn and "No dues certificate" as of date would be given. Accordingly, the matter was settled. Despite that the defendant issued another electricity bill AGENR121220070024 and notice on the same ID number for Rs. 6,66,679/ leveling the allegation for theft (meter tempering) which is 2 Pradeep Sabharwal vs. BSES RPL absolutely vague ground. Hence, the present suit for declaration that the impugned bill issued for non domestic connection be declared as null and void and also for injunction.
3. Notice of the suit was issued to the defendant. In response thereto, the defendant filed the written statement (WS) and stated that this Hon'ble Court has no jurisdiction to adjudicate the present suit. It is also stated that the premises was inspected by enforcement team on 13.06.2007 and load of 30.06 KW (NX) was found connected against sanctioned load of 1 KW (NX) and supply was found being used by the plaintiff for nondomestic purposes. The load report in the form of assessment of connected load vide LR No. 3037; meter report (Meter Detail) vide MR No. 6899; and Inspection Report vide IR No. 1987 all dated 13.06.2007 were prepared at site. The representative of the plaintiff was present during the inspection but he refused to sign and receive copies of the said reports. Photographs were also taken through the digital camera at site. As per meter report, meter half seals LHS and RHS were found tempered and meter K. No. 2650W2130212 was tested and found stopped. Consequently, show cause notice dated 13.06.2007 was issued regarding DAE along with the said reports and the plaintiff was called upon to attend the personal hearing on 03.07.2007. Inadvertently, the direct theft bill no. AGENR240720070110 for Rs. 11,08,932/ was raised, but the same had been withdrawn vide letter no. 26.09.2007 with a request to the plaintiff to attend the personal hearing on 10.10.2007. In response thereto, the plaintiff attended the personal hearing on 10.10.2007 before the Assessing officer and pleaded his case in details and also filed reply on 11.10.2007. The consumption pattern was studied and it was found that the average recorded consumption for the period 18.04.2006 3 Pradeep Sabharwal vs. BSES RPL to 09.06.2007 was 4.06% of computed consumption, which was very much on the lower side in comparison to computed consumption. Thus, the assessing officer reached the conclusion that it was a case of DAE and passed the speaking order on 12.12.2007. Consequently, the DAE bill for Rs. 6,66,679/ was issued. Hence, it is prayed that the suit be dismissed.
4. The plaintiff filed the replication and reiterated the averments made in the plaint.
5. On 19.08.2008 the following issues were framed by the Ld. Predecessor of this court :
(1) Whether the suit of the plaintiff is not maintainable in view of preliminary objection no.3 and 4?
(2) Whether the plaintiff has a cause of action to institute the present suit?
(3) Whether the impugned demand is illegal and the plaintiff is entitled to decree of declaration as prayed for?
(4) Whether the plaintiff is entitled to decree of permanent injunction as prayed for?
(5) Relief.
6. In support of his case, the plaintiff examined himself as PW1 and his affidavit in evidence is Ex.PW 1/A. The plaintiff relied upon his Election I Card which is Ex.PW 1/1; electricity bill which is Ex.PW 1/ 2; GPA dated Nil which is Ex.PW 1/ 3; order dated 15.09.2001 passed by Consumer Forum which is Ex. PW 1 /4; letter issued by DVB which is Ex.PW 1/5;
receipt dated 15.06.2004 which is Ex.PW 1/ 6; Form B R VI dated 4 Pradeep Sabharwal vs. BSES RPL 19.12.2006 issued by HSIDC which is Ex.PW 1/ 7; electricity bill issued by defendant for Rs.11,08,932/ which is Ex.PW 1/ 8, Mediation Order dated 22.12.2007 which is Ex.PW 1/ 9; letter dated 26.09.2007 and electricity bill for Rs.6,66,679/ issued by defendant which are Ex.PW 1/10.
7. The defendant examined Shri Sudip Bhattacharya and his affidavit in evidence is Ex. DW 1/ 1. He relied upon speaking order dated 12.12.2007 which is Ex. DW 1/A. Rajesh Singhal is examined as DW2 and his affidavit in evidence is Ex.DW 2/ 1. He relied upon Inspection Report which is Ex.DW 2/A, Form of connected load Ex.DW 2/B, Inspection Report (meter details) Ex. DW 2/C, photographs taken by digital camera Ex.DW 1/D1 to Ex. DW 1/D4; and Show Cause Notice which is Ex.DW 1/E.
8. I have heard the ld. counsels for the parties and have perused the material available on record.
ISSUE NO. 1
9. Onus to prove the issue no.1 was upon the defendant. But the defendant failed to lead any evidence to prove the same. Hence, the issue no. 1 is decided in favour of the plaintiff and against the defendant. ISSUE NO. 2, 3 AND 4
10. Onus to prove the said issues was upon the defendant. The issues no. 2, 3 and 4 are taken together for sake of convenience as they 5 Pradeep Sabharwal vs. BSES RPL involve common discussions.
11. Admittedly, the plaintiff subscribed 02 electricity connections, one for domestic purpose and another for non domestic purpose. In the present case, main dispute revolves around the inspection of electricity meter for 'Non Domestic Purpose' conducted by the defendant on 13.06.2007 and the proceedings initiated and the bill raised by the defendant in pursuance thereto.
12. Counsel for the plaintiff pleaded that in the month of December, 2006 the plaintiff shifted his business to Gurgaon, Haryana and the premises was lying vacant since thereafter. Hence, there was no question of consumption of electricity. The plaintiff is the owner of the premises where the electricity meters were installed. It is no where the case of the plaintiff that after December, 2006 the premises was occupied by some other person. The plaintiff's plea is that the premises was lying vacant as he shifted his business to Gurgaon and relied upon the certificate dated 19.12.2006 Ex.PW 1/ 7 issued by HSIDC. Perusal of the said certificate only reveals that the concerned authority permitted the plaintiff to occupy the said property. On the basis of the same, it cannot be said that the plaintiff had no connection with the premises.
13. Counsel for the plaintiff pleaded that none of the officials of the defendant visited the premises nor any inspection was done at the premises on 13.06.2007. As such, the impugned bill is illegal and is liable to be set aside. PW1 specifically deposed that at the time of inspection there was a person who was his representative and he received the information that the 6 Pradeep Sabharwal vs. BSES RPL inspection was carried out at the premises. The said statement clearly reveals that the defendant conducted inspection on 13.06.2007 and the plaintiff's representative was very much present at the premises. Not only that the said representative was well connected with the plaintiff that's why the plaintiff came to know about the inspection at the premises. Admittedly, the plaintiff attended the hearings at the office of the defendant. The plaintiff has failed to file any document to show that he ever disputed the fact of inspection before the officials of the defendant before filing the present case. Further, the plaintiff has completely failed to explain if the premises was vacated then what the said representative was doing at the premises. It is no where the case of the plaintiff that the alleged labour was his representative or his representative was there to watch the labour. It implies that the alleged labour and the representative are not the same persons. The defendant relied upon the photographs Ex.DW 1/D1 to DW 1/D4 to show that the premises was being used by the plaintiff and the machineries were lying there and labour was deployed at the premises. The plaintiff disputed the said photographs on the ground that the same do not pertain to the premises. However, the plaintiff has not filed his own photographs to rebut the same and also to show the status of the premises to prove his case. On perusal of the said photographs clearly reveals that the premises was being used for work and the machines were installed therein. The plaintiff though pleaded that he got some repair work done at the premises yet he has not mentioned the date when the repair was got done nor filed any document to substantiate the same. Hence, it can be held that even after 19.12.2006, the premises remained in the ownership and control of the plaintiff; was also being used for work purposes; the inspection was done on 13.06.2007 and some representative of the plaintiff was over there. As such, the plaintiff 7 Pradeep Sabharwal vs. BSES RPL concealed the material fact that the inspection was done on 13.06.2007 in the presence of representative.
14. Counsel for the plaintiff strenuously pleaded that merely due to the fact that seals were tempered, it cannot be held that the plaintiff was liable for DAE. He also pleaded that no test was conducted on the meter nor any equipment was used to check whether the same was tempered, hence, the inspection report is of no consequence and the bill is liable to be set aside. Specific case of the defendant is when the premises was inspected, the meter seal was found tempered and disk was stopped though the electricity was being used in the premises. The defendant examined DW1, who was the assessing officer and DW2 who was one of the member of the Inspection team which conducted the inspection on 13.06.2007. DW2 deposed that he was member of team and at the time of inspection he personally saw the particular electricity meter was in stopped condition and the seal of the meter was found tempered. However, the supply of the electricity of the premises was running through the meter. He also participated in checking the connected load. One suggestion was given by the plaintiff that he was not the part of the inspection team but no suggestions to the contrary were given to rest of the statements. DW2 specifically deposed that the inspection took 45 minutes and copy of the report was not received by the consumer. No suggestion to the contrary is given. DW2 specifically deposed that they had not used any equipment during the inspection of the premises because it was visually found that meter was in stopped condition and the entire load of the electricity of the premises was used through the meter. In reply to a specific question, he deposed that there was no movement in revolving disk of the meter in question that's why the equipment being used for testing the meter 8 Pradeep Sabharwal vs. BSES RPL could not be used. No suggestion was given to DW2 that the meter was not in stopped condition and accu check could be conducted. He also deposed that as per the photographs the premises was in full use of electricity and tube lights, steam generators were found in running condition and motor was also in running condition. No suggestion to the contrary is given. In the Inspection Report Ex.DW 2/A, it was specifically mentioned that when the meter was tested it was found stopped and supply was being used and the wire was going in the premises and a case of DAE was observed. Meter detail Ex.DW 2/C reveals that meter half seal LHS was tempered and RHS was fictitious and the meter was stopped. The connected load report Ex.DW 2/B clearly mentions that the equipments and machinery were attached with the meter and consuming the electricity. As discussed above, the photographs Ex.DW 1/D1 to DW 1/D4 show that the presence of workers and machinery at the premises at the time of inspection. The plaintiff has failed to file any document to show that he disputed the fact that the disk was not stopped. It is also not the case of the plaintiff that the disk was stopped due to some faults in the meter or he ever complained to the defendant that the disk was stopped and the defect be rectified. Then the question arises, if the electricity was being used in the premises then how could the disk be stopped and the meter was not recording the consumption of the electricity. Further, it is no where the case of the plaintiff that once he shifted his work, as alleged the said electricity meter was disconnected or he made any application for disconnection thereof. It is the own case of the plaintiff that he applied for enhancement of sanctioned load. It implies that the plaintiff was in need of more electricity that's why he applied for enhanced sanctioned load to run his business.
9 Pradeep Sabharwal vs. BSES RPL
15. Counsel for the plaintiff pleaded that by mere tempering of the seals of the electricity meter is not sufficient to establish the case of DAE and relied upon (i) J K Steelomelt (P) Ltd. vs. BSES Rajdhani Power Ltd. Reported in 2007 (140) DLT 563; (ii) Bhasin Motors (I) P. Ltd. vs. NDPL 2007 (142) DLT 116; and (iii) Bansi Lal vs. BSES Rajdhani Power Ltd. 2010 (169) DLT 678. In the said judgments, it was held that mere tempering of the seals of the electricity meter without further tests is not sufficient to hold that the consumer is liable for DAE. In the present case, it is the specific case of the defendant that not only the seals were tempered but also the disc was found stopped. As discussed above, the inspection was carried out on 13.06.2007 in the presence of the representative of plaintiff. It is also proved that the disc was stopped and the electricity was being consumed through the meter in the premises of the plaintiff. It is also proved that the show cause notice was served upon the plaintiff and the hearings were attended by him. Even otherwise, it is not the case of the plaintiff that the defendant violated the principal of natural justice. It is no where the case of the plaintiff the inspection report, load report etc. are incorrect. It is also not the case of the plaintiff that the speaking order dated 12.12.2007 Ex. DW 1/A is incorrect and illegal. The plaintiff has also not prayed that the said inspection report and the speaking order dated 12.12.2007 be declared null and void. It implies that the plaintiff was very much satisfied with the inspection report, load report, meter report and the speaking order. Admittedly, the speaking order was passed on the basis of the said reports and the representation made by the plaintiff. Not the least, the plaintiff has not challenged the findings given in the speaking order. Therefore, once the inspection report, meter report, load report and speaking order are correct and sustainable in law then the bill i.e. the outcome of the said documents cannot be illegal. Even otherwise, 10 Pradeep Sabharwal vs. BSES RPL except a plea that the premises was vacant, the plaintiff has not made even a single averment to show how the bill is illegal. In the judgments relied upon by the plaintiff, the common allegations were that there was tempering in the seal of the meter, the disc was found moving slow and the petitioner therein challenged the inspection report, the speaking order and the bill in question. Unlike in the present case, the disc was found stopped and the plaintiff has not challenged the inspection report and the speaking order. Hence, the said judgments are not applicable in the present case.
16. Counsel for the plaintiff pleaded that earlier the defendant issued a bill for direct theft which was subsequently withdrawn and the defendant issued another bill for DAE without giving any opportunity of being heard to the plaintiff. Case of the defendant is that the plaintiff was booked for DAE and show cause notice was issued to that effect however, due to inadvertence, the bill was issued for direct theft which was subsequently withdrawn and a fresh bill for DAE was issued to the plaintiff. Now the question arises, whether principal of natural justice was followed by the defendant in the present case. As discussed above, the inspection was done in the presence of the representative of the plaintiff. Perusal of show cause notice Ex.DW 2/A reveals that the same was issued for DAE. In the said notice the date of inspection and the fact that the meter was found stopped was clearly mentioned. Along with the said notice, inspection report, load report and meter test report were enclosed. Vide the said notice the plaintiff was called upon for personal hearing. Subsequent thereto, the electricity bill Ex.PW 1/ 8 was issued for direct theft. Vide letter dated 26.09.2007 Ex./PW 1/10, the said bill was withdrawn and the date 10.10.2007 was fixed for personal hearing for DAE. DW1 specifically deposed that the plaintiff filed 11 Pradeep Sabharwal vs. BSES RPL the reply vide letter dated 11.10.2007 in response to the hearing fixed for 11.10.2007. No suggestion to the contrary is given. Consequently, the speaking order dated 12.12.2007 Ex.DW 1/A was passed and bill Ex.PW 1/10 was issued. In the speaking order it was specifically mentioned that the plaintiff attended the hearing on 10.10.2007 and admitted that the sewing machine and other items were lying there but were not being used. The fact remains that the show cause notice was issued for DAE though the first bill was issued for direct theft which was subsequently withdrawn and a fresh bill was issued on hearing the plaintiff. In view of the foregoing discussions, it can be held that not only the representative of the plaintiff was present at the time of inspection but also the plaintiff attended the hearing and filed the reply to the show cause notice issued by the defendant. Merely because, the first bill was wrongly issued for direct theft, in itself is not sufficient to vitiate the entire proceedings once the contents of the show cause notice were known to the plaintiff and he filed the reply in response thereto. As such, there is no violation of principal of natural justice.
17. Counsel for the plaintiff strenuously pleaded that once the defendant settled the matter before the Mediation Cell on 22.12.2007, the defendant is bound by the same. Mediation is a voluntary and non binding process. Hence, once the defendant backed out from the mediation settlement, it showed its intention not to follow the settlement but to proceed with the suit, which it did also. Therefore, there is no substance in the said plea of the plaintiff.
18. Counsel for the plaintiff also relied upon the order dated 15.09.2001 passed by the Consumer Dispute Redressal Forum Ex.PW 1/ 4 12 Pradeep Sabharwal vs. BSES RPL and pleaded that earlier also, the defendant levied the misuse charges against the plaintiff and the same were set aside by the forum. Perusal of the order reveals that the said misuse charges were levied in respect to the domestic connection in the year 2000. On the contrary, in the present case, the plaintiff is booked for DAE with respect to non domestic connection pertaining to the period 2007 which is entirely a different cause of action. Hence, the said order has no relevance in the present case.
19. In view of the foregoing discussions, the plaintiff has completely failed to discharge his onus to prove the issues no. 2 to 4. Therefore, the issues no. 2, 3 and 4 are decided against the plaintiff and in favour of the defendant.
ISSUE NO. 5 (RELIEF)
20. In view of the foregoing discussions, the plaintiff is not entitled to the decree as prayed for. Therefore, the suit is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court, (PANKAJ GUPTA)
On 30th of September, 2010. ADJ(Central13)/DELHI
30.09.2010
13 Pradeep Sabharwal vs. BSES RPL
14 Pradeep Sabharwal vs. BSES RPL