Delhi District Court
R/O Khasra No.41/17 vs North Delhi Power Limited on 30 May, 2015
IN THE COURT OF MS. SWARANA KANTA SHARMA, ASJ (ELECTRICITY), NW
DISTRICT: ROHINI: DELHI.
CS No.52/12
Unique ID no.02404R0045532012
Title:
Shri Jaswant Verma S/o Sh. Silak Ram Verma
R/o Khasra No.41/17, Gali No.7,
Gautam Colony, Narela,Delhi.
.......Plaintiff
VERSUS
North Delhi Power Limited
Through its Commercial Manager,
Office of E.A.C., EAC Building,
Sector3, Rohini,Delhi. ........ Defendant
SUIT FOR PERMANENT INJUNCTION AND DECLARATION
Date of institution : 15.02.2012
Date of reserving order : 19.05.2015
Date of pronouncement : 30.05.2015
Appearances
Sh. Rakesh Kumar Sharma, ..............Ld counsel for the plaintiff.
Ms. Nandita, ..............Ld Counsel for the defendant company.
J U D G M E N T
(1) The plaintiff has filed this suit for permanent injunction and declaration alleging interalia that plaintiff has an electricity connection bearing K.No.43204249582 installed at premises in question i.e. Khasra CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 1 of 17 No.41/17, Gali No.7, Gautam Colony, Narela, Delhi belonging to him. It is the case of the plaintiff that he has been paying regular electricity bills to the defendant company in respect of the above mentioned electricity connection.
(2) The plaintiff has further stated in the plaint that he has been using this electricity connection for the purpose it was sanctioned for i.e. for domestic purpose and has never misused the electricity connection at any point of time.
(3) It is the case of the plaintiff that on 05.11.2011 at about 6:00 AM, some officials of the defendant company had visited the house of the plaintiff on the pretext of checking electricity Pole No. 514/71/12/11. The grievance of the plaintiff is that thereafter they had entered the house of the plaintiff and had started checking the meter installed in his house. After checking the meter in his presence, the meter was found "OK". In the meantime, one member of the team of NDPL officials had pulled down the MCB Switch and had started taking photographs. Thereafter he had again taken photographs after putting the MCB in 'On' mode. The plaintiff states that no official of NDPL had gone to the roof of the house. Therefore the case of the plaintiff is that since the NDPL officials could not find anything wrong with the electricity meter of the plaintiff, they had left the house without saying anything to him.
CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 2 of 17 (4) However, a false inspection report Ex.PW1/B was prepared which reflected that the electric meter installed at his residence had been tampered with. The plaintiff has thus filed the present suit with the prayer that on the basis of a false inspection report a false bill reflecting illegal charges has been raised and he is being threatened by the respondent that the electricity connection of the plaintiff will be disconnected in case he failed to make the payment of the said bill. The plaintiff has prayed that a decree of permanent injunction be passed restraining the defendant , their officials and associates not to disconnect the electricity connection bearing K. no. 43204249582 installed at the property of the plaintiff i.e Khasra no. 41/17, Gali no. 7, Gautam colony, Narela Delhi in his favour and against the defendant and decree of declaration in favour of the plaintiff in favour of the plaintiff and against the defendant thereby declaring the inspection report dated 05/11/2011 and the bill as null and void.
(5) Written statement was filed by the defendant company wherein they have taken preliminary objections amongst other objections wherein they have denied the averments made by the plaintiff. It is mentioned in the written statement by the defendant that as per DERC Regulation, 2007, the plaintiff was liable to keep the meter in safe custody and to maintain it properly and if enough steps are not taken to protect the meter from tampering or damage or misuse and if any irregularity is found in the meter for which the consumer has no satisfactory explanation, the consumer shall CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 3 of 17 be liable for the same. It is averred in the written statement that since in the inspection report dated 05.11.2011, it is clearly mentioned that at the time of inspection the meter's outgoing MCB was found in "off" position and the plaintiff was found using electricity supply directly from NDPL LV Mains at the premises and a load of 5.373 KW was found connected for the domestic purpose, the plaintiff was clearly guilty of committing theft of electricity and is thus, liable to pay the bill raised by the defendant company. It is also averred that the plaintiff is not entitled to either a permanent injunction or declaration from this Court, since he has not come to the court with clean hands.
(6) After completion of the pleadings following issues were settled in this case : ISSUES
1. Whether the plaintiff is entitled for a decree for declaration, as prayed for ? OPP
2. Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for ? OPP
3. Relief, if any.
(7) In support of his case the plaintiff has examined three witness. The plaintiff has examined himself as PW1 and has tendered his affidavit in evidence which is Ex.PW1/A. He has stated in his evidence that he is the CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 4 of 17 registered consumer of electricity connection bearing K. No. 43204249582 installed at his premises for domestic purpose. He stated that he has never misused the electricity for any other purpose and has been regularly making payment of the bills towards consumption of the electricity. He stated that on 05.11.2011 some officials of the defendant company had visited his house and had told him that they had come for a routine survey. Thereafter they had prepared a false inspection report Ex.PW1/B and had raised a false bill against him. It is stated that he had made several requests to the defendant company and the staff that there was no tampering with the meter, however, they have threatened to disconnect the electricity connection.
(8) On being crossexamined by learned counsel for the defendant company Shri K.B. Chaudhary, he stated that he was not present at his house when the inspection was conducted. He admitted that the photographs filed on record belonged to his house. He produced the bills paid by him towards electricity consumption charges for the billing period 11.09.2011 to 17.11.2011 Ex.PW1/DA. He denied that two single core of black colour wires of two meter length each were removed from his premises. He admitted that the meter reflecting photocopy of the photograph at serial No.2 and A2 belongs to his premises. He denied that on 05.11.2011 the meter installed at his residence was not in use and he was committing direct theft of electricity. He stated that his house CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 5 of 17 comprises of 2 & 1/2 floors. However, he also admitted that the bill Ex.PW1/DA pertains to the ground floor only. He admitted that the first floor of his house does not have any meter though he had applied for the same.
(9) PW2 Shri Bhagwan is the neighbourer of the plaintiff and stated in his affidavit that on 05.11.2011 at about 5:45 AM some NDPL officials had come for checking the electricity pole No.51471/12/11 and thereafter they had entered in the house of the plaintiff and had started checking meter installed in his premises. After checking the meter in his presence, the meter was found "OK" In the meantime, one member of the team of NDPL officials had pulled down the MCB Switch and had started taking photographs. Thereafter he had again taken photographs after putting the MCB switch in 'On' mode. He further stated that no official of NDPL had gone to the roof of the premises and since the NDPL officials could not find anything wrong with the electricity meter of the plaintiff, they had left the house without saying anything to him.
(10) On being crossexamined by learned counsel for the defendant company, he stated that he knows the plaintiff for the last 3 4 years. On 05.11.2011 at about 5:45 AM he had seen that some NDPL officials were standing outside the house of the plaintiff and were knocking the premises of the plaintiff. He then stated that the wife of the plaintiff had come CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 6 of 17 downstairs and had opened the door. Thereafter officials of NDPL had entered the premises of the plaintiff, however, they had not found any theft of electricity being committed by the plaintiff. He stated that the meter was checked by them and was found "OK". He denied that the inspecting team had tried to serve inspection report and seizure memo to the wife of the plaintiff but she had refused to accept the same.
(11) PW3 Smt. Darshana, tendered her evidence by way of affidavit and stated that she is wife of the accused. She stated similar facts as stated by the plaintiff in his statement regarding the raid.
(12) On being crossexamined by the learned counsel for the defendant company, she stated that 3 4 persons from her neighbourhood had also come to the house when the NDPL officials were at her house. One Shri Bhagwan had also come to her house at that time. She admitted that photograph at Sr. No.9 is of front portion of her house and the photograph at Srl No.A10 is reflecting meter installed at her house, photographs ar serial No.A2, A3 and A5 are of chajja and meter of their premises. The photograph at serial No.A11 was admitted to be the pole in front of her house. She denied that any wires were removed from her premises. She denied that theft of electricity was being committed at her premises at the time of inspection.
CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 7 of 17 (13) Plaintiff's evidence was closed vide order dated 06/03/2014. (14) The defendant company has examined four witnesses in support of their case.
(15) DW1 Shri Ashutosh Tyagi tendered his evidence by way of affidavit and stated that in the year 2011, he was posted as a Manager with the defendant company and was one of the members of the joint inspecting team, who had conducted inspection on 31.05.2012 at the premises of the plaintiff. He stated that inspection was carried out on 05.11.2011 at 5:30am and inspection report Ex.DW1/1 was prepared at the spot. He stated that during the course of the inspection, the joint team had observed that the meter outgoing MCB was in "off" position. They had found that direct theft of electricity was being committed by taking supply directly from NDPL LV Mains with the help of two single core wires black in colour and the load was running through these illegal wires. A load of 5.373 KW was found connected for domestic purpose. He stated that the wires were seized vide seizure memo Ex.DW1/2. Photographs of the spot were taken by Shri Vijay of M/s. Prakash Studio which were proved as Ex.DW1/3 (colly). (16) On being crossexamined by learned counsel for the plaintiff Shri Rakesh Kumar Sharma, he stated that he did not remember from whom he had received information regarding theft of electricity at the premises of the CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 8 of 17 plaintiff. He denied that inspection had been carried out in unlawful manner. He stated that premises is a three storied building, however, he did not remember the number of the rooms on each floor. He admitted that no family member had resisted the inspection initially, however, later on they had resisted the inspection. He admitted that he had not asked for any assistance from the police officials. He had not called police when the family members had started resisting. He admitted that he had not prepared any separate point wise report regarding the load. He admitted that hey had not taken the photographs of the point showing connection of direct theft inside the premises at the time of inspection. He identified the case property in the Court. He admitted that the meter installed at the premises was in "OK" condition but the same was not in use at the time of inspection. He admitted that the meter was not removed from the premises.
(17) DW2 Shri Satish Chand Ahuja is the Power of attorney holder of the defendant company and has proved the assessment bill dated 22.11.2011 against the plaintiff EX.DW2/B. On being crossexamined by the learned counsel for the plaintiff, he denied that the bill in question is wrong and illegal. (18) DW3 Shri Umesh Sharma is also member of the raiding team and stated similar facts in his evidence by way of affidavit as deposed by DW1. CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 9 of 17 On being crossexamined by learned counsel for the plaintiff, he stated that one technician Shri Naveen Dutt and photographer Vijay were also with them at the time of inspection. He stated that the electricity was being stolen from a pole and the wire was coming inside balcony of the first floor. He admitted that this fact is not mentioned in the inspection report. He stated that the meter was in idle condition and no load was found running from it. He stated that the occupier had obstructed them from going to the upper floor. He stated that they had not called the local police as they had their own security staff. He stated that they had not taken photographs of the outside of the house due to obstruction created by the occupier. He denied that 5 KW load can be transmitted through a 10 mm copper wire. He denied that they had calculated running load as 5 KW. (19) DW4 Shri Vijay, photographer is the photographer, who stated that he was working as a photographer with M/s. Prakash Studio. He further stated that on 05.11.2011 he had accompanied the raiding team, who had inspected the premises of the plaintiff and had taken the photographs Ex,DW4/A1 to Ex.DW4/A9. He proved the CD of the photograph as Ex.DW4/B. On being cross examined by counsel for the plaintiff he stated that he had taken the photographs of electric pole and the "chajja" near the said pole. He had taken the photograph of the wire only inside the house and no other photograph. He further stated that he had taken the photographs CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 10 of 17 of the ground floor from the window and other photographs from the first floor as the "chajja" and pole were visible from the first floor. He stated that he had not been asked by Shri Ashutosh Tyagi to take the photographs of electric points and appliances. He further stated that he was not stopped by anyone from taking the photographs of the premises in question. (20) Defendant's evidence was closed vide statement of Sh. K.B. Chaudhary, Ld counsel for the TPDDL.
(21) Final arguments were heard on behalf of Ld counsel for the plaintiff and the defendant.
(22) Ld counsel for the plaintiff has stated that he has been falsely implicated in this case and that no theft was detected at his premises at any point of time. He also submits that testimony of witnesses is not trustworthy and be discarded. It is also submitted by the Ld counsel for the plaintiff that he has been paying bill towards consumption of electricity regularly and therefore he be granted relief sought for by him. (23) Ld counsel for the defendant on the other hand has refuted the claim of the plaintiff and has argued to the contrary.
(24) Having heard the rival contentions raised by learned counsel for the CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 11 of 17 plaintiff Shri Rakesh Kumar Sharma as well as learned counsel for the defendant company and having carefully gone through the record, my issuewise finding is as under: (25) Issue no.1 & 2 To decide these issues, I have to decide first as to whether the plaintiff was committing theft of electricity or not. The onus to prove issue no.1 & 2 was upon the plaintiff. Plaintiff in support of his claim has examined himself and his neighbourer as well as his wife. PW2 who is independent witness being the neighbourer of the plaintiff as well as plaintiff and his wife have clearly mentioned in their statements that one of the member of the NDPL had pulled down the MCB switch and had thereafter taken the photographs. He has also stated that NDPL officials had not found any irregularities in the premises or in the meter installed at the premises in question and therefore they had left the house without saying anything to them. The witnesses of the defendant have admitted in their crossexamination that plaintiff and his family members had not resisted any of the member of raiding team from entering their premises. PW2 has also stated that he was present at the site being a neighourer and he had seen that meter installed at the premises of the plaintiff was found to be "OK" . This fact regarding the meter being found "OK" has not been disputed by the witnesses of the defendant also.
(26) The defendant on the other hand have also admitted in their defence CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 12 of 17 that meter found at the spot was in "OK" position. However, it was found in "Off" position and was not registering consumption of the electricity. Though they have stated that direct theft of electricity was being committed with the help of wires which were duly seized vide seizure memo Ex.DW1/2; these wires were not produced in defence when defendant had examined their witnesses. They were crucial piece of evidence and should have been produced by the defendant.
(27) The witnesses of the defendant have admitted in their cross examination that family members of the plaintiff had not resisted the inspecting team. However, in their crossexamination they have stated that after some time they had resisted the inspection and had not allowed them to go to the upper floor. At the same time they have not explained as to why assistance of police was not taken if there was resistance from the plaintiff and his family members from carrying out the inspection in fair manner. There is nothing on record to show that they had sought help of the police in this regard.
(28) One glaring discrepancy in the statement of the witnesses of the defendant is the defence taken by the defendant company that they were not allowed to go to the upper floor of the premises. The photographs filed on record i.e Ex DW1/3 to Ex. DW1/8 show that some photographs were taken from the first floor of the house itself. This belies the stand taken by CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 13 of 17 the defendant as well as deposition of the witnesses of the defendant. DW4 in his crossexamination has clearly admitted that he had taken the photographs of the ground floor from the window and other photographs from the first floor as the "chajja" and pole were visible from the first floor . He has also admitted that he was not stopped by anyone to take the photographs in the premises. This clearly reflects that he was not stopped from going to the first floor and taking photographs from the first floor of the building. This makes the testimony of the witnesses doubtful. (29) A perusal of the photographs through which the defendant wants to prove that theft of electricity was being committed show that these photographs do not prove that wires which are seen connected from the pole near the house of the accused were connected to any electrical appliances or for consumption of the electricity at the first floor of the house of the accused. It is a common knowledge that service line wires are also connected in the same manner by the Power Companies even for legal connection. The photographs are of the pole near the premises of the accused and some wires from the pole can be seen going across the first floor of the house of the plaintiff's and not necessarily inside the house of the plaintiff.
(30) I have already mentioned above that case property in this case was not produced even in the defence by defendant company. The meter CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 14 of 17 installed in the house of the plaintiff was found "OK". The witness examined by the plaintiff claimed that MCB was pulled down for taking photographs. The plaintiff is paying regular bill towards consumption of electricity. Therefore in my opinion the defendant has not been able to prove that plaintiff was indulging in direct theft of electricity. In view of the above, I am of the considered opinion that plaintiff has succeeded in proving that he was not committed direct theft of electricity during the inspection dated 05/11/2011. The inspection report dated 05/11/2011 is thus liable to be declared null and void.
(31) The relief of injunction is a discretionary relief. The person who approaches the court for the same needs to establish that a legal right exist in his favour having corresponding obligation upon the opposite party. The plaintiff is however, required to establish that the opposite party is adamant to violating his existing legal right and needs to be prevented from doing so. In this case the plaintiff has established that he has been using the electricity connection for domestic purpose and has never misused the same for any other purpose. He has established that the meter which was retained at the spot was not found tampered. The plaintiff has also established that the meter was installed at his residence was neither inspected nor had been found tampered with and further that he is regularly making the payment of the electricity bill from time to time raised by the defendant. The plaintiff is, therefore, entitled to the discretionary relief of CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 15 of 17 permanent injunction restraining the defendant, its employee, agents from disconnecting the electricity supply through K.No.43204249582 installed at premises in question i.e. Khasra No.41/17, Gali No.7, Gautam Colony, Narela, Delhi for not making the payment of the bill dated 22/11/2014 of Rs. 77,602/ which has been declared to be illegal and null and void. The issue No.1 & 2 are decided in favour of the plaintiff and against the defendant.
(32) Relief In view of the findings on issue no.1 and 2, the plaintiff is entitled to grant of declaration as well as permanent injunction as claimed for. Accordingly the decree of declaration is passed in favour of the plaintiff and against the defendant declaring the inspection dated 05/11/2011, final assessment bill dated 22/11/2014 of Rs. 77,602/ as illegal and null and void. Further a decree of permanent injunction is passed in favour of the plaintiff and against the defendant restraining the defendant its employees, agents or any other person representing it are restrained from disconnecting the electricity supply through K.No.43204249582 installed at premises in question i.e. Khasra No.41/17, Gali No.7, Gautam Colony, Narela, Delhi for not making the payment of the bill which is based on the illegal inspection dated 05/11/2011.
(33) In view of above terms, the suit of the plaintiff is decreed with no CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 16 of 17 orders as to costs. Decree Sheet be prepared accordingly.
ANNOUNCED IN THE OPEN COURT
th
ON 30 May, 2015.
(SWARANA KANTA SHARMA)
ASJ (ELECTRICITY) NW
ROHINI: DELHI.
CS No.52/12 (Shri Jaswant Verma Vs. NDPL) Page No..... 17 of 17