Delhi District Court
Shantoo Chhabra vs . Bses Rajdhani Power Ltd. on 19 December, 2018
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Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
IN THE COURT OF VIVEK KUMAR AGARWAL, CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No: 94720/16
CNR No. : DLCT030000181993
Date of Institution: 21.08.1993
Date of Decision: 19.12.2018
Sh. Shantoo Chhabra
Khasra No. 73, Village Matiala,
Uttam Nagar, New Delhi.
...................Plaintiff.
Versus
B.S.E.S. Rajdhani Power Ltd.
Through its Chief Executive Officer,
Station / SubStation Building, Kamla Market, New Delhi
............Defendant.
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
Present : AR of plaintiff.
None for defendant.
JUDGMENT :
1. Before proceedings with the adjudication of the present suit, it is pertinent to
mention that previously the present suit was filed against Municipal Corporation
of Delhi as defendant, however, subsequently, defendant was substituted by the
present defendant as the application u/o 22 Rule 10 CPC moved by plaintiff was
allowed by Ld. Predecessor of the court vide order dt. 30.10.03 and thereafter, has
been contested by the present defendant only.
Civil Suit No: 94720/16 (Vivek Kumar Agarwal)
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Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
2. The present suit has been filed by the plaintiff through his attorney namely Anil
Kumar Malhotra seeking declaration of the notice dt. 19.08.1993 issued by
defendant as illegal and again seeking permanent injunction restraining the
defendant and their officials from disconnecting the electricity supply of the
plaintiff vide meter K.no. 1257032 and 1257385 installed in the premises no. 100,
khasra no. 33, village Matilala, Uttam Nagar, New Delhi (hereinafter called as
suit property).
Version of plaintiff :
3. Succinctly, the case of plaintiff is that he is carrying the business in the suit
property and had electricity connection bearing number as mentioned above on
the supply by the defendant and has been paying electricity charges as and when
the bills are raised from time to time. That on 21.02.1989, some officials of
defendant visited the premises of plaintiff and made a check of the meter and
report of some defect and gave threat to disconnect the electricity. That plaintiff
has filed a suit against the said threat and stay was granted by the court of Smt.
Mamta Sehgal, the then Ld. SubJudge, Delhi and said suit was pending at the
time of filing of the present suit. That plaintiff made representation to the
Executive Engineer of defendant on 27.02.1989 but same was not replied.
4. It is further stated that on 19.08.1993, the plaintiff received a notice at about 4:30
pm alleging that a team of vigilance had visited the suit premises on 08.06.1993
and found illegal abstraction of energy and that proceedings u/s 39 and 34 of
Indian Electricity Act r.w. Sec. 379 IPC will be initiated and that electricity will
be disconnected after expiry of 24 hours of the notice. It is stated that plaintiff
has not been given the copy of inspection allegedly carried on 08.06.1993 and that
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Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
no inspection was carried in the presence of plaintiff or his authorized
representative and allegation made in the said notice is not supported by any
document. Again, no show cause notice has been issued to plaintiff to explain the
position nor any facts have been disclosed to plaintiff regarding the allegations.
Again, since the last inspection no extra bill has been raised by defendant nor any
complaint has been lodged with the police. That plaintiff has been consuming the
same number of units of electricity after the first incidence till date. It is stated
that there is no provision for disconnection of electricity on the allegation of
illegal abstraction and again the electricity can be disconnected only when bill is
not paid by the consumer. It is further submitted that as plaintiff has been served
with the notice in question without any grounds and has been given threat of
disconnection, hence the present suit.
Version of defendant :
5. Upon notice being issued, the defendant appeared through counsel and written
statement has been filed, in which preliminarily objections of concealment of facts
and suit being bad for want of legal notice u/s 478 of DMC Act are taken. Again it
is stated that suit has become infructuous as supply has already been disconnected
on 20.08.1993 from the feeing point. In reply on merits, it is admitted that the
plaintiff has electricity connection at the numbers mentioned in the plaint and that
they are registered for a load of 20HP and 0.5KW for IL. It is denied that said
connection has been used by plaintiff for manufacturing of rubber goods and that
he has been paying electricity charges as and when the bills are raised and it is
further stated the plaintiff is not making the paying on the basis of theft of energy
and has heavy loss to the defendant and he has committed breach of agreement
and violated the provisions of Indian Electricity Act, 1910 and accordingly,
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Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
supply of plaintiff is liable for disconnection due to irregularities noticed at the
time of inspection and defendant has every right to recover dues due to loss of
energy. Pendency of the other suit is stated to be matter of record. It is further
submitted that a joint inspection comprising enforcement department, vigilance
department and MTD etc. was carried out on 08.06.1993 and it was found that
plaintiff had shifted the service line and meter board illegally and accordingly, a
24 hours disconnection notice dt. 19.08.1993 was served to the plaintiff after
taking approval of competent authority and in compliance thereof the supply has
been disconnected on 20.08.1993. As premises were found locked, the service line
and meter could not be removed. All the other allegations of the plaint are denied
stating that plaintiff is trying to take advantage of his own wrong with the request
to dismiss the suit.
6. In pursuance of written statement, replication was filed on behalf of plaintiff, in
which, allegations of WS have been denied and averments of plaint have been
reiterated.
7. In view of pleadings of both the parties, following issues were settled vide order
dated 12.10.1999 :
I Whether the plaintiff has not come to the court with clean hands as
alleged in WS? OPD
II Whether the supply of the plaintiff was already disconnected on
20.08.1993 as alleged in WS?OPD
III Whether the plaintiff is entitled to the injunction as prayed for in plaint?
OPP
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Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
IV Relief.
8. To prove his case, the plaintiff examined his attorney namely Anil Kumar
Malhotra as PW1, who was duly cross examined by counsel for defendant and
thereafter, evidence on behalf of plaintiff was closed by attorney by statement dt.
03.07.02. Again, some documents were also tendered as Mark A to Mark C
including the notice in question dt. 19.08.1993.
9. On the other hand, the defendant has examined four witnesses including one K.
Singh, JE, office of Vigilance department as DW1, J.S. Arora, AE, Zone 2503 as
DW2, P.P. Gupta, AE, office of defendant as DW3 and one R.K. Ahuja, Asst.
Manager, Planning Department, Delhi Transco Ltd. as DW4. All the witnesses
were duly cross examined by counsel for plaintiff. Again, these witnesses also
tendered certain documents including copy of load report / record of inspection dt.
08.06.1993 as Ex. DW1/1 and Mark A (exhibited on 04.10.02), copy of show
cause notice as Ex. DW4/1 and Surcharge notice as Ex. DW4/2. Thereafter,
evidence of defendant was closed by court order dt. 24.10.05.
10. Arguments advanced by Ld. Counsel for plaintiff and Ld. Counsel for defendant
have been heard. File has been carefully and minutely issued and my issue wise
finding with reasons thereof are as under.
ISSUE No .1 :
11. The burden of proof to prove the said issue was upon the defendant. It has been
alleged in preliminarily objection no. 1 of WS that the plaintiff had not come to
the court with clean hands and has suppressed the material facts on record as the
plaintiff was found indulged in unauthorized and illegal authorities of fraudulent
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Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
abstraction of energy and thereby he caused heavy loss to the defendant. To prove
the said allegation, defendant has relied upon the testimony of witnesses examined
on behalf of defendant as DW1 to DW4 and the documents Ex. DW4/1 i.e. show
cause notice and Mark A i.e. inspection report. It is argued that DW1, who was
the member of the team, which inspected the site of the plaintiff has clearly
deposed that the connected load was found to be 168.34 KW and shunt capacitor
was found of inadequate capacity. It is argued that same has been further
corroborated by the other members of inspection team examined as DW2 and
DW3. Again, attention is drawn to the inspection report Mark A and the load
report i.e. Ex. Mark A (exhibited on 04.10.02), which clearly provides the
installation of excess load and unauthorized use of electricity by the plaintiff and
again subletting of connection by the plaintiff and accordingly, it is clear that it
was the case of illegal abstraction of energy by the plaintiff.
12. On the other hand, counsel for plaintiff has argued that the plaintiff had only
received a disconnection notice dt. 19.08.1993, placed on record as Mark C,
wherein it was alleged that premises were inspected on 08.06.1993, however, the
report of said inspection or any show cause notice was never served upon the
plaintiff and again, the plaintiff or his representative was not present at the time of
alleged inspection and accordingly, the said allegations are baseless and
disconnection notice was given without following the due procedure as provided
under Indian Electricity Act and the regulations. The counsel has drawn the
attention of the court to the crossexamination of DW1, wherein it has been
clearly admitted that the name of the representative of the consumer has not been
mentioned in the inspection report i.e. Ex. Mark A (exhibited on 04.10.02).
Again, he has further admitted that load of the machine was not checked by any
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Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
tong tester or by any scientific instrument and again that it was also not mentioned
in the load report that load of the machine was mentioned on the number plate.
Again, he has further admitted that the power factor was not checked with any
instrument and that they had not taken the instrument for checking the power
factor with them. He has further expressed his ignorance about the partnership
firm Malhotra Auto Products and that he had not seen any document of Malhotra
Auto Products at the spot. Again he has admitted that no show cause notice was
given to plaintiff. Again, referring to testimony of DW2, it is submitted that the
said witness stated in his examination in chief regarding the tempered seals and
meter seal being missing, however, in his crossexamination, he has expressed his
ignorance to tell about the duration since when the half seals and meter seals were
missing, though, he has admitted that the officials of department visit the premises
each month for taking the reading of meter and that he does not know if any
complaint was made by official of department in this regard. It is contended that
said witness has clearly admitted that copy of the inspection report was not
delivered at the site to the consumer and that same might have been sent by post.
Again, drawing attention of court towards crossexamination of DW4, it is
submitted that allegedly notice was sent under UPC, however, no postal receipt of
UPC has been placed on record and again the same was also not available in the
record brought by DW4. Same is the status of surcharge notice. It is argued that
DW4 has clearly admitted that no speaking order of show cause notice or
surcharge notice was passed and that in the surcharge notice Ex. Mark A
(exhibited on 04.10.02), it was nowhere mentioned if it was sent through UPC.
Counsel for plaintiff has further contended that the postal service through UPC is
very weak evidence and in this regard, he has relied upon authority of Delhi High
Court in case of "Shri Shiv Kumar vs Hansita" on 17 May, 2010. Again, the
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Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
counsel for plaintiff has relied upon following authorities regarding the procedure
to be adopted in the given facts :
(i) Sukhbir Singh vs. MCD 1994 Rajdhani Law Reporter (DB) 450
(ii) Ramesh Kumar vs. DESU 1995 Rajdhani Law Reporter (DB) 488
(iii) MCD vs. Ajanta Iron & Steel Co. 1990 Rajdhani Law Reporter (SC) 250
(iv) Ramesh Chander & Ors. vs. State of Delhi & Anr. (1997) DLT 257
(v) Jagdish Narain vs. NDPL & Anr. 140 (2007) DLT 307
(vi) Col. R.K. Nayar vs. BSES Rajdhani Power Ltd. 140 (2007) DLT 257
(vii) J.K. Steelomelt (P) Ltd. vs. BSES Rajdhani Power Ltd. 140 (2007) DLT
563
13. Heard. The whole version of defendant regarding Dishonest Abstraction of
Energy (DAE), reflected from the documents Ex. DW4/1, load report Ex. DW1/1
and the inspection report i.e. Mark A (exhibited on 04.10.02), is based upon the
installation of excess load, power factor of installation being below and legging
shunt capacitor or not installed / maintained properly and subletting of
connection for last three years. Since the defendant have tried to make out a case
of DAE, the provisions of the Act, the Rules and the Regulations require to be
first noticed. At the very outset it must be noticed that under the Act there is no
definition of Dishonest Abstraction of Energy. That is defined only in the
Regulations. The concept is nevertheless traceable to Section 135 of the Act
which reads as under:
Section 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
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licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing
transformer, loop connection or any other device or method which
interferes with accurate or proper registration, calibration or metering of
electric current or otherwise results in a manner whereby electricity is
stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire
or causes or allows any of them to be so damaged or destroyed as to
interfere with the proper or accurate metering of electricity, so as to
abstract or consume or use electricity shall be punishable with
imprisonment for a term which may extend to three years or with fine or
with both;
Provided that in a case where the load abstracted, consumed or used or
attempted abstraction or attempted consumption or attempted use
(i) does not exceed 10 kilowatt, the fine imposed on first conviction
shall not be less than three times the financial gain on account of such
theft of electricity and in the event of second or subsequent conviction
the fine imposed shall not be less than six times the financial gain on
account of such theft of electricity.
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be
less than three times the financial gain on account of such theft of
electricity and in the event of second or subsequent conviction, the
sentence shall be imprisonment for a term not less than six months but
which may extend to five years and with fine not less than six times the
financial gain on account of such theft of electricity:
Provided further that if it is proved that any artificial means or means
not authorized by the Board or licensee exist for the abstraction,
consumption or use of electricity by the consumer, it shall be presumed,
until the contrary is proved that any abstraction, consumption or use of
electricity has been dishonestly caused by such consumer.
19. The procedure for conducted search and seizure operations is set out
under Sections 135(2), (3) and (4) which read as under:
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(2). Any officer authorized in this behalf by the State Government may
(a) either, inspect, break open and search any place or premises in which
he has reason to believe that electricity [has been or is being] used
unauthorizedly;
(b) search, seize and remove all such devices, instruments, wires and
any other facilitator or article which used for unauthorized use of
electricity;
(c) examine or seize any books of account or documents which in his
opinion shall be useful for or relevant to, any proceedings in respect of
the offence under Subsection (1) and allow the person from whose
custody such books of account or documents are seized to make copies
thereof or take extracts there from in his presence.
(3) The occupant of the place of search or any person on his behalf shall
remain present during the search and a list of all things seized in the
course of such search shall be prepared and delivered to such occupant
or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places
or domestic premises shall be carried out between sunset and sunrise
except in the presence of an adult male member occupying such
premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974),
relating to search and seizure shall apply, as far as may be, to searches
and seizure under this Act.
14. Regulation 2 (i) and 2 (m) of the Regulations define "direct theft" and "dishonest
abstraction of energy" respectively as under::
2(i) 'Direct theft' shall mean abstraction of electrical energy either
through by passing the meter by some arrangement external to it or
through unauthorized tapping of the supply from licensee's distribution
network."
2(m) 'Dishonest Abstraction of Energy (DAE)' shall mean abstraction of
electrical energy where accessibility to the internal mechanism of the
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Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
metering equipment and some collateral evidence is found to support the
conclusion that the meter has been caused to record less energy than
actually passing through it. It shall also include any other means adopted
by consumer to cause the meter to stop or run slow (such as reversing the
polarity of one phase of poly phase meters, changes in CT or PT, etc.).
15. The other relevant Regulations are 25 and 26 which read thus:
25 Procedure for booking a case of pilferage of energy
(i) The licensee, suo moto or on receipt of reliable information regarding
commitment of any offence of theft/tampering/ dishonest abstraction of
energy (DAE), shall promptly conduct inspection of consumer's
premises. The inspection team shall carry a written authority signed by
designated officer of the licensee.
(ii) The inspecting team shall prepare a report giving details such as
connected load, condition of seals, working of meter and mention any
irregularity noticed (such as artificial means adopted for dishonest
abstraction of energy) as per format prescribed by the licensee.
(iii) The report shall clearly indicate whether conclusive evidence
substantiating the fact that energy was being dishonestly abstracted was
found or not. the details of such evidence should be recorded in the
report and it should be clearly brought out whether the case is being
booked for direct theft or DAE.
(iv) No case for DAE shall be booked only on account of one seal on the
meter missing or tampered or breakage of glass window, etc., unless
corroborated by consumption pattern of consumer as per regulation 26(ii)
given below and such other evidence as may be available.
(v) In case sufficient evidence is found to establish direct theft of energy,
the licensee may lodge a report with the local police along with the
material evidence including wires/cables, meter, service line etc., seized
from the site, which shall be handed over to police. The licensee shall
also assess the energy consumption for past six months as per the Tariff
Order and prepare final assessment bill on five times the rates as per
applicable tariff. The consumer shall be required to make the payment
within two working days of its proper receipt.
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(vi) In case of suspected DAE, the inspection team shall not remove the
tampered meter but shall disconnect it from the supply and shall restore
the supply through a new meter of appropriate rating. In such cases, the
licensee shall check the connected load and consumer's installation, affix
a numbered Johnson's paper seal on the tampered meter and shall also
record the particulars of the same in the report.
(vii) While the report must be signed by each member of the joint team
and the notice, if any, must be signed by an authorized signatory of the
licensee and all these must be handed over to the consumer or his/her
representative at site immediately under proper receipt. In case of refusal
by the consumer or his/her representative to either accept or give a
receipt, a copy of each must be pasted at a conspicuous place in/outside
the premises. Simultaneously, the joint report, the assessment bill and the
notice shall be sent to the consumer under Registered Post.
(viii) The consumer shall be served a 3 day's show cause notice at the
site as to why the case of DAE should not be booked against him/her.
The notice should clearly state the time, date and place at which the reply
has to be submitted and the designation of the person to whom it should
be addressed.
26 Personal hearing
(i) Within 4 working days from the date of submission of consumer's
reply, if made within prescribed period, the licensee shall arrange a
personal hearing with the consumer.
(ii) Before the personal hearing, the officer of the licensee, before whom
personal hearing has to be given, shall analyze the case after carefully
considering all the documents, submissions by the consumer, facts on
record and the consumption pattern, wherever available. The licensee
shall also assess the energy consumption for past six months as per the
Tariff Order. In case of suspected DAE, if consumption pattern for last
one year is reasonably uniform and is not less than 75% of the assessed
consumption where meter is less than 10 years old and not less than 65%
of the assessed consumption where meter is more than 10 years old, no
further proceedings shall be taken and the decision shall be
communicated to the consumer under proper receipt within 3 working
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days and connection shall be restored through original meter.
(iii) During the personal hearing the licensee shall give due consideration
to the facts submitted by the consumer and pass, within 15 days, a
speaking order as to whether the case of suspected theft/DAE is
established or not. In case of the decision that the case of suspected
theft/DAE is not established, no further proceedings shall be taken and
connection shall be restored through original meter.
(iv) Where it is established that there is a case of DAE, the licensee
[may] lodge a report with the local police along with the material
evidence including wires/cables, meter, service line, etc. seized from the
site, which shall be handed over to police. The licensee shall also assess
the energy consumption for past six months as per the Tariff Order and
prepare final assessment bill on 5 times the rates as per applicable tariff.
The consumer shall be required to make the payment within 2 working
days of its proper receipt. The licensee may, taking into consideration the
financial position and other conditions of the consumer, extend the last
date of payment or approve the payment to be made in Installments. The
amount, the extended last date and/or time schedule of
payment/installments should be clearly stated in the speaking order. A
copy of the speaking order shall be handed over to the consumer under
proper receipt on the same day.
16. In order to draw a presumption of DAE against a consumer in terms of the second
proviso to Section 135(1), it must first be shown by the supplier or licensee that
"any artificial means or means not authorized by the Board or licensee exist for
the abstraction, consumption or use of electricity by the consumer. Till such time
this initial burden is not discharged by the supplier of electricity, the burden of
proof under the second proviso to Section 135(1) of the Act does not shift to the
consumer.
17. The scope of these provisions and regulations was discussed at length by Hon'ble
Delhi High Court in case of Smt. Jagdish Narayan (supra) as follows:
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What is central to the definition of theft under Section 135 of the
Act, which according to the respondent covers DAE as well is the
element of 'dishonesty'. Therefore the means read or the intention of the consumer to dishonestly abstract electricity must be proved "conclusively" to bring home the charge of DAE. Therefore the requirement of "conclusive evidence" in terms of Regulation 25
(iii) is consistent with the statutory mandate of Section 135(1). That can be established only by showing that the consumer was responsible for tampering the meter by some visible means. The external manifestations of tampering, as has been found in the inspections conducted in the present cases, can only raise a suspicion of DAE. That suspicion will have to be made good by some tangible evidence of physical means of tampering before the presumption can be drawn that it was the consumer who tampered the meter.
The decision of the Hon'ble Supreme Court in Jagannath Singh v.
B.S. Ramaswamy is illustrative although there the Court was concerned with a criminal conviction for the offence of theft of electricity under Sections 39 and 44 of the Indian Electricity Act, 1910. The approach to the requirement of proof of dishonest abstraction of energy is nevertheless relevant for the present case. The Hon'ble Supreme Court held that the existence of artificial means for abstracting energy can only give rise to a presumption that there had been a dishonest abstraction. The supplier would still have to show that the consumer is responsible for such tampering. In the said case, it was contended that the existence of an open stud hole on the meter was sufficient proof that dishonest abstraction of energy had taken place. In answer to that contention, the Hon'ble Supreme Court observed as under:
A meter with an exposed stud hole, without more, is not a perfected instrument for unauthorized taking of energy, and cannot be regarded as an artificial means of its abstraction. To make it such an artificial means, the tampering must go further, and the meter must be converted into an instrument for recording less than the units actually passing through it. A check meter affords an easy method of proving that the consumer's meter is recording less than the units consumed and is being used as an artificial means for Civil Suit No: 94720/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 15 Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
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.
Applying the above test, it has to be held that an automatic presumption of DAE on the basis of the external symptoms of tampering together with the analysis of the consumption pattern would not be a safe and error free method. Some other tangible evidence must been shown to exist. An accu check meter can be deployed to find out if the meter is in fact recording lesser units. The analysis of the consumption pattern in terms of the Regulation 26 (ii) is merely corroborative and not by itself substantive evidence of DAE. The decision of this Court in Udham Singh v. BSES Rajdhani Power Ltd. 136 (2007) DLT 500 is to the same effect. In fact, the formula is applied in terms of Regulation 25 (iv) read with 26 (ii) only for determining the penalty payable by the consumer once a case of either direct theft or DAE has been made out. The penalty formula cannot itself supply the proof of DAE or theft.
While on the aspect of external evidence of "tampering" in the form of broken seals or tampered seals, this Court would like to observe that an inference of DAE should not be permitted to be drawn on the mere fact that a meter had been found with broken seals. It would be impermissible for the respondent to treat all categories of consumers on the same footing when it proceeds to take action on a suspicion of DAE. Right now there is no secure measure to ensure that the electricity meters installed either in the basement of the building or on the ground floor near the stair case, are tamperproof and outside the reach of any mischievous third party. It is one thing to require the consumer to ensure that the meter is safe and secure. It is perhaps also necessary to ask if the supplier of electricity draws the attention of the consumer to such responsibility and insists that the consumer secures the meter with a lock with one duplicate key being handed over to the supplier. In an environment where it is not possible for a domestic consumer living in an apartment where the meter is installed in the basement Civil Suit No: 94720/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 16 Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
or ground floor to constantly keep a watch on his meter, it would not be reasonable to draw inference of DAE merely on the discovery of some signs of 'tampering'. Regulation 25 (iv) only goes a part of the way but does not fully appreciate the predicament of the consumer in such situations. Hopefully, the DERC and the supplier companies will work at improving the requirements for the consumers in this direction.
For the above reasons, it is held that in these cases, no inference of DAE by the petitioners could possibly have been drawn by the respondent on the basis of the materials that exist on record. The impugned speaking orders and the bills raised on that basis are not sustainable in law.
18. Again the procedure regarding the inspection report was discussed at length by Hon'ble Delhi High Court in case of Col. R.K. Nayar (Retd.) (supra) and held as follows : The documents dated 7.10.1998 hardly reads like an inspection report.
There are no signatures of the team of officers who visited the premises. There is no signature of the petitioner or even an endorsement that he refused to sign. In fact, it is not even in the standard format. In the circumstances, the petitioner is justified in doubting if such inspection took place at all. Moreover, the presumption that is sought to be drawn in the present case is completely belied by the fact that, after the two inspections on 1.8.1998 and 7.10.1998 (a fact that remains disputed) the I.G. (Enforcement) of the DVB had on 24.12.1998 asked for a re examination of the case, a fact that is not denied by the respondent. Nowhere in the pleadings or even in the written submissions filed by the respondent is it actually explained whether in fact that re examination took place. By merely reiterating what was found at the time of inspection in the Speaking Order, the respondent does not add to the understanding whether the petitioner can be held to be guilty of DAE.
19. In view of the aforesaid discussion, let me advert to the allegation of defendant Civil Suit No: 94720/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 17 Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
against the plaintiff regarding DAE and to appreciate, if the defendant has been successful to prove the said allegation, as per the law discussed above. From perusal of the inspection report in question i.e. Ex. Mark A (exhibited on 04.10.02), it is very apparent that the whole case of defendant to come to the conclusion of DAE and unauthorized use is installation of excess load, subletting of connection, power factor being below and shunt capacitor not installed. As discussed by Hon'ble High Court of Delhi, the defendant is required to prove that the officials of defendant came to the conclusion of excess load only after the same was duly checked by the instrument / apparatus, which is used to determine that the load was in excess against the sanctioned load, however, surprisingly, there is nothing mentioned on the said inspection report, if any scientific instrument was used by officials of defendant in this regard. Surprisingly, one of the officials of inspection team, examined as DW1 himself has deposed that load of the machine was not checked by an tong tester or by any scientific instrument and that same was mentioned on the number plate. This is highly unreasonable that the officials of defendant came to such conclusion that load of the machine was in access against the sanctioned load without checking the same only on the basis of number plate of the machine and moreover, as deposed by him, nothing has been mentioned in the inspection report, if the officials of the inspection team came to this conclusion on the basis of the load mentioned on the number plate. No explanation has been given on behalf of defendant for not checking the load by any scientific instrument. Same is the position with regard to the power factor and DW1 has clearly deposed that power factor was not checked with any instrument. Surprisingly, as deposed by DW1, there is instrument available to checking the power factor, however, same was not taken by the team and in these circumstances, I am unable to understand, how the inspection team came to the Civil Suit No: 94720/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 18 Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
conclusion that power factor was below. Again, regarding the allegation of sub letting of connection for last three years, it is to observe that as deposed by DW1 in his examination in chief, connection was found sublet to M/s. Malhotra Auto Product, however, nothing such has been mentioned in the inspection report i.e. Ex. PW4/2. Again, DW1 himself in his crossexamination has failed to depose anything about the said firm Malhotra Auto Products and that he had not seen any document of that firm at spot. Accordingly, the defendant has further failed to establish the said allegation of subletting as no evidence has been led in this regard. Lastly, coming to the allegation of shunt capacitor being of inadequate rating as mentioned in the show cause notice Ex. DW4/1, it is to observe that there is no indication from the inspection report that that the 'shunt' was used to slow down the meter. There is nothing in the inspection report to show, if any accu check apparatus was used to determine, if meter was recording lesser energy than it should. As deposed clearly by DW1, no scientific instrument was used or even taken by the inspection team and therefore, the said allegation also is without any substance. Last but not the least, regarding the allegation of broken seal, as deposed in examination in chief of DW2, though not mentioned in the inspection report or in the show cause notice, it is to observe that as discussed above, no presumption of DAE can be drawn on the mere fact that meter was found with broken seals. Once the defendant has failed to establish the basic requisites to prove DAE, the only factum of broken seal, as alleged, is of no help to the defendant. Moreover, said allegation is without any substance as same was not mentioned in the inspection report Ex. Mark A (exhibited on 04.10.02).
20. In view of aforesaid discussion, I come to the conclusion that defendant has completely failed to prove the allegations of DAE, as mentioned in preliminarily Civil Suit No: 94720/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 19 Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
objection of WS and accordingly, isuse no. 1 is decided against the defendant and in favour of plaintiff.
ISSUE No. 2 :
21. The burden to prove the same again was upon the defendant, however, no evidence has been led by the defendant to prove that supply of plaintiff has been already disconnected on 20.08.1993. Nothing has been so alleged on behalf of plaintiff. Moreover, even if the supply has been disconnected on behalf of defendant in pursuance of the disconnection notice, same is illegal in view of the findings of issue no. 1. Accordingly, this issue is decided also against the defendant and in favour of the plaintiff.
ISSUE No. 3 :
22. The burden to prove this issue is upon the plaintiff. It is argued by counsel for plaintiff that as the defendant has failed to prove DAE by the plaintiff and again as the defendant failed to follow the due procedure before issuing the disconnection notice in question, the said notice is liable to declared null and void and consequently, plaintiff is also entitled for injunction.
23. Heard. It is to observe that the disconnection notice in question dt. 19.08.1993, has been placed on record by plaintiff as Mark C. The genuineness of said notice is not in dispute and rather has been specifically admitted by defendant in para no. 6 of the WS. Accordingly, it is clear that this is notice in question, which has been challenged by the plaintiff. As discussed in findings of issue no. 1, it is clearly established that defendant has failed to prove DAE on part of plaintiff.
Civil Suit No: 94720/16 (Vivek Kumar Agarwal)
CJ07(C)/THC/Delhi
20
Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
24. It is to further observe that defendant has also failed to prove if the plaintiff was served with the detailed show cause notice and the inspection report and that inspection was carried out in presence of plaintiff or in presence of his authorized representative. As deposed by DW4, copy of notice was sent under UPC, however, the defendant has failed to place on record any receipt of said UPC. Moreover, as rightly pointed out by counsel for plaintiff, service through UPC is not very reliable, as observed in authority of Shiv Kumar (supra). Again, as reflected from the inspection report i.e. Mark A (exhibited on 04.10.02), there is no signature of plaintiff or of his any authorized representative in the column of 'Consumers Signature' to show that inspection was carried out in the presence of plaintiff or his authorized representative. Moreover, DW1 has clearly deposed in his crossexamination that name of representative of consumer is not mentioned in the said report. Accordingly, it can be safely concluded that the defendant failed to follow the due procedure before issuing the disconnection notice to the plaintiff. Undoubtedly, the issuance of disconnection notice without service of detailed show cause notice is not proper as discussed in authority of Sukhbir Singh (supra).
25. In view of aforesaid discussion, I come to the conclusion that the plaintiff has successfully proved his case that the notice in question issued by defendant without following the procedure of law and on the basis of the allegations, which have not been proved, is not legal and consequently, is liable to be declared as null and void. Again, the plaintiff is also entitled for injunction restraining the defendant or its officials from disconnecting the electricity supply of plaintiff installed in the suit premises vide meter K. no. 1257032 and 1257385. Accordingly, issue no. 3 is decided in favour of plaintiff and against the Civil Suit No: 94720/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 21 Shantoo Chhabra vs. BSES Rajdhani Power Ltd.
defendant.
ISSUE No. 4 Relief :
26. In view of findings of all the above issues, suit of the plaintiff is hereby decreed to the effect that the disconnection notice dt. 19.08.1993, issued by defendant, placed on record as Mark C is hereby declared as null and void and without any effect and again the defendant and its officials are restrained from disconnecting the electricity supply of plaintiff installed in the suit premises vide meter K. no. 1257032 and 1257385. It is further made clear that if electricity supply has been disconnected by officials of defendant in pursuance of said disconnection notice dt. 19.08.1993, same is liable to be restored and be restored within 15 days from date of decree.
27. Decree sheet be prepared accordingly. File be consigned to record room after due Digitally signed compliance.
by VIVEK
VIVEK KUMAR
KUMAR AGARWAL
Date:
AGARWAL 2018.12.22
17:04:41 +0530
Pronounced in open court: (Vivek Kumar Agarwal)
Dated: 19.12.2018 Civil Judge07, Central,
Tis Hazari Courts, Delhi
Note :This Judgment contains twenty one pages and all the pages have been checked and signed by me.
(Vivek Kumar Agarwal)
Civil Judge07, Central,
Tis Hazari Courts, Delhi
Civil Suit No: 94720/16 (Vivek Kumar Agarwal)
CJ07(C)/THC/Delhi