Delhi District Court
M/S. Amit Electricals (India) vs North Delhi Power Ltd on 12 April, 2010
Civil Suit No.235/06/99
M/s. Amit Electricals (India) Vs North Delhi Power Ltd
IN THE COURT OF SH MUKESH KUMAR GUPTA SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI
Civil Suit No.235/06/99
(Old Case : More than 10 years Old.)
M/s. Amit Electricals (India),
through its Partner,
Shri Ashok Bhalla,
WZ555, Narvina Village,
New Delhi110028 ........ Plaintiff
Vs
North Delhi Power Ltd.,
Through its C.E.O.,
Station/Substation Building
Hudson Lines, Kingsway Camp,
Delhi110009. ........ Defendant
SUIT FOR DECLARATION AND RECOVERY OF Rs.1,97,104/
Date of institution of suit : 30.04.1999
Date of assignments to this court : 12.02.2009
Date of hearing final argument : 30.03.2010
Date of Judgement : 12.04.2010
JUDGEMENT
1 By way of present judgement I shall conscientiously adjudicate upon the plaintiff suit of declaration and recovery of Rs.1,97,104/ against the defendant seeking a decree of declaration thereby declaring the demand raised by the defendant to the tune of 1 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd Rs.2,41,728.36ps to be null and void and be ordered to be quashed alongwith the inspection report dated 18.03.1990 to be declared null and void and quashed. The plaintiff is also prayed for a decree for recovery of Rs.1,97,104/ against the defendants in respect of the bill raised by the Defendanterstwhile Delhi Vidyut Board in a wrong and illegal way which the plaintiff is stated to have paid under protest alongwith interest at the rate of 18% per annum on this amount from the date of institution of this suit till the realization of the amount. Plaintiff has also prayed for costs of the suit.
2. Eschewing prolix details to the pleadings crystallizing the same the plaintiff is stated to be a registered partnership firm under the Indian Partnership Act and Shri Ashok Bhalla S/o late Shri Amar Nath Bhalla is stated to be one of the registered partner of the plaintiff concern and he is further stated to be authorized to sign, verify and file the suit and as such the suit is stated to be signed, verified and filed by Shri Ashok Bhalla. It is further stated by the plaintiff in the plaint that plaintiff is registered consumer in respect of the electricity connection bearing K. No. 2121244360 installed in premises No. WZ555, Naraina Village, New Delhi 2 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd and the sanctioned load of the plaintiff in respect of the aforesaid electricity connection is 40 KW. It is further the case of the plaintiff that the plaintiff has been making regular payment of the electricity bills so received by the plaintiff and the plaintiff has been consuming the electricity below the sanctioned load. It is further the case of the plaintiff that on 18.03.2010 the official of the erstwhile Delhi Vidyut Board came to the premises on the plaintiff and without preparing any report at the site, wrongly and illegally removed the electricity meter in respect of electricity connection bearing K. No.2121244360 installed in premises No. WZ555, Naraina Village, New Delhi and at the time of visit of officials of DVB, neither the partners of the plaintiff concerned nor any authorised representative of the plaintiff concerned were present at the site. The plaintiff is stated to have approached the Chairman of erstwhile DVB against the illegal report of the officials but no action was taken by the chairman of erstwhile Delhi Vidyut Board and instead taking of action, the defendant is stated to have raised a wrong and illegal demand to the tune of Rs.2,41,728.36ps in respect of the electricity connection bearing K. No.2121244360 installed in premises No. WZ555, Naraina Village, New Delhi and this demand was raised on account of the alleged fraudulent abstraction of energy (FAE) which the 3 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd plaintiff has alleged to have never indulged into and the bill was directed to be paid by 28.03.1999. It is further the case of the plaintiff that in the report which was prepared by the MTD department of the erstwhile DVB, it was mentioned that the seals were found intact and the same tallied with the sample monogram. It is further the case of the plaintiff that under protest the plaintiff agreed to make the payment of this huge bill under the threat or duress and coercion and the part payment of Rs.1,20,865/ was made on 26.1999 and the remaining amount sum of Rs.76,239/ was paid by the plaintiff on 23.04.1999 which the defendants have no right to raise the demand on account of fraudulent abstraction of energy because the plaintiff has never indulged in the fraudulent abstraction of energy and the load of the plaintiff has always been within the sanctioned limit and even plaintiff has not touched the metering equipment at any point of time and the electricity supply of the plaintiff is stated to have been restored on 02.04.1999. It is further the case of the plaintiff that plaintiff has asked the defendants to pay back this amount of Rs.1,97,104/ to the plaintiff alongwith the interest at the rate of 18% per annum. The plaintiff has therefore prayed for a decree of declaration against the defendant thereby declaring the inspection report dated 18.03.1990 as null and void and the 4 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd demand raised by the defendant to the tune of Rs.2,41,728.36ps be declared as null and void be ordered as quashed. The plaintiff has also prayed for a decree of recovery of Rs.1,97,104/ against the defendant in respect of the bill raised by the defendant in wrong and illegal which the plaintiff has paid under protest and the defendants be further directed to pay the interest at the rate of 18% per annum on this amount from the date of institution of this suit till the realization of the amount alongwith costs of the suit.
3. Written statement to the suit of plaintiff was filed by the defendant in which the defendant has denied each and every allegation of plaintiff and has contended that the plaintiff has not approached the court with clean hands and the plaintiff was found indulging in direct theft by creating a gap between the window glass and body of the meter through which a thin plastic film can be inserted to stop the meter disc to manipulate the meter reading as such the service line and meter was removed at site and the suit is liable to be dismissed. The suit of the plaintiff is also stated to be not maintainable in view of the fact that the plaintiff has paid the theft demand raised against the connection without any protest. 5
Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd On merits, It is further averred in the written statement by the defendant that the electricity connection bearing K.No.124436 is registered in the name of M/s Amit Electricals and installed at WZ555, Naraina village, Delhi. It is further the case of the defendant is that the premises of the plaintiff was inspected on 18.03.1999 by a team of officials from the defendant comprising of enforcement, MTD, and Zonal Staff in the presence of representative of the plaintiff who associated with the inspecting team throughout. The load report was prepared at site and signed by each member of the team and the valid MCD licence as well the document regarding user of the supply was not shown at the site as such misuse charges were levied against the connection. It is further contended by the defendant that the representative of the consumer refused to sign the load report and MTD report and the same are reflected with the remarks in the reports and the plaintiff is liable to make good the loss on account of theft of energy in additional to other action against the plaintiff as per rules and after obtaining approval from the competent authority the demand for Rs.2,41,728.36ps were raised and served on the plaintiff for payment. It is denied that the payment made by the plaintiff was under the protest. It is prayed that the suit of the plaintiff be dismissed with costs. 6
Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd
5. Replication to the written statement was filed by the plaintiff in which he has reiterated the contents of the plaint and denying the contents of the written statement. It is further stated that the report prepared by the MTD Department of the defendants themselves the load of the plaintiff was within the sanctioned limits and nothing untoward was found in the report of MTD department of defendants and it is reiterated stated that the plaintiff has never indulged into any kind of fraudulent abstraction of energy. It is also contended that the allegation regarding the load report being prepared at site and signed by each member of the team is false and baseless allegation and no report was ever prepared at site and its is prayed that suit of the plaintiff be decreed with costs as prayed for.
6. Vide order dated 11.01.2001 as passed by ld Predecessor of this court, the following issues were framed for adjudication: ISSUES (1) Whether the plaintiff is entitled for recovery of Rs.1,97,104/ alongwith interest @ 18% per annum ? OPP.
(2) Whether plaintiff has not been come with clean hands and suppressed the material facts? If so, its effects,?
7
Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd (3) Whether the plaintiff was founding indulging in Fraudulent Abstraction of Energy (FAE, if so its effect?
(4) Whether inspection dated 18.03.1999 was
wrong and illegal, If so its effect,
(5) Relief .
6. It is pertinent to point out that the suit was originally filed was a suit simplicitor for recovery of Rs.1,97,104/ being the amount paid by the plaintiff in two instalments of Rs.1,20,865/ on 26.03.99 and Rs.76,239/ on 23.04.99 which is stated to have been paid pursuant to raising of impugned bill for Rs.2,41,728.36ps dated 22.03.99 with due date 28.03.99 pursuant to inspection dated 18.3.99 . The case of the plaintiff initially was that the aforesaid amount was paid under threat of disconnection and criminal action being initiated against him and hence the plaintiff is entitled to recovery thereof . However in view of judgement reported in 110 (2004) DLT 633 titled Sarjiwan Singh vs Delhi Vidyut Board wherein which our Hon'ble High Court has held that where the sundry bill raised by the defendant is challenged by the plaintiff he is required to seek a decree of declaration in respect of the impugned bill. The 8 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd Hon'ble court has further held that the plaintiff in such case is also required to pay an ad valorem court fee under the provision of Section 7 (iv) (c)of the Court Fee Act . Accordingly the plaintiff in the instant case moved an application u/o VI rule 17 CPC for amendment of the plaint on 05.08.06 thereby seeking amendment to certain paragraphs and well various clause beside the prayer clause of the plaint which was duly considered and allowed by the ld Predecessor of this court vide order dated 02.08.2007.
7. It may be seen that the suit was originally filed in the name of plaintiff against the defendant DVB which was later on unbundled in the year 2003 and the work of production, transmission and supply of electricity was segregated and assigned to various corporation/agencies and as such the distribution work was handed over to various distcoms for example NDPL in the instant case. The plaintiff has moved an application u/o 22 rule 10 CPC for substitution in the name of defendant which was duly considered and allowed by the Ld Predecessor of this court vide order dated 06.08.04 and as such the name of the defendant was substituted as NDPL in place of existing defendant D V B. 9 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd Though the amended plaint was filed by the plaintiff the defendant did not filed any written statement to amended plaint and the pleadings from the side of defendant continued as such.
8. Plaintiff in support of its case got examined one Sh Ashok Bhalla stated to be partner of plaintiff firm who has supported the case of the plaintiff by reiterating the contents of plaint on oath before the court . The witness has stated that the plaintiff concern being a partnership firm vide partnership deed Ex PW1/1 is a registered consumer of electricity from the defendant through K.No.2121244360 . Copy of Form No1 got exhibited on record as Ex PW1/2 and copy o Form A & B clearly specifying the name of deponent Sh Ashok Bhalla got exhibited on record as Ex PW 1/3 and 4 respectively. Witness has deposed that initial load of plaintiff was 5 KW which was enhanced to 40 KW in the year 1995 under the scheme of erstwhile against payment of necessary charges , the copy of receipt got exhibited on record as Ex PW1/5. The witness has reiterated that the plaintiff has been using the electricity as per law and has been paying the bill as raised by the defendant from time to time and all the bills upto date has been paid. Witness has further reiterated that on 18.03.99 10 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd certain officials of defendant visited the factory premises in the absence of any of the partner or responsible person and did not prepare any inspection report and has not prepared any inspection report at site, neither served any notice before inspection. The witness has further deposed that officials has removed electric meter and service line cable was also cut down against which the plaintiff has filed representation to Chairman of DVB on 19.03.99 copy of which got exhibited on record as Ex PW1/6 and witness has stated that the copy of inspection report was ultimately supplied with the impugned bill of Rs.2,41,728.36ps which are exhibited on record as Ex PW 1/7 and 8 respectively. The witness has reiterated that the load was found within the sanctioned limit and no irregularities were discovered either in the electric equipment or metering equipment and the plaintiff has never indulged in any kind of theft of electricity. The witness has finally reiterated that the plaintiff was made to pay a sum of Rs.1,97,104/ under the threat of lodging an FIR which was paid in two instalments of Rs..1,20,865/ and Rs.76,239/ , copy of paid bills got exhibited on record as Ex PW1/9 and 10 . The witness has finally stated that the suit is correct and the plaintiff is entitled to not only the recovery of amount paid but also an interest @ 18% per annum. The witness was cross examined at length 11 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd by ld counsel Sh Trishal for defendant who has asked questions about the officials present at the time of inspection on 18.03.99. Various suggestions regarding the irregularities being found including created gap between the window glass and body of the meter through which a thin plastic film can be inserted to manipulate the meter reading was also asked to which witness has answered in negative. The witness has reiterated that plaintiff was never indulged in any kind of theft of electricity and inspection report dated 18.03.99 was prepared later on and the demand raised is illegal.
9. Vide statement dated 24.07.02 of the plaintiff the evidence of plaintiff was closed in affirmative .
10. Defendant in support of its case got examined two witnesses both members of joint inspection team who inspected the premises of plaintiff bearing No. WZ555, Naraina Village, New Delhi on 18.03.99 . Sh N K Dhawan who was stated to be working as AE Zone (Enforcement) at the relevant time got examined before the court as DW1 who deposed in support of case of the defendant by deposing in support of the inspection dated 18.03.99 and the inspection report which got exhibited 12 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd on record as Ex PW1/7 and 8 respectively. Witness has stated that the connected load was found to be to the tune of 33.250 KW and the report was prepared by one Sh K K Sharma and the consumer was found using supply for two different units. The witness has stated that that inspection was conducted in presence of Executive Engineer and OSD and as per the direction of Executive Engineer (E) the meter and service line were removed . However during the cross examination the witness has admitted the sanction load to be 40 KW and the connected load of the plaintiff was found to be within sanctioned limit. Witness has categorically admitted that no show cause notice was ever given to the plaintiff before raising of the impugned bill. Witness has stated that he has studied the consumption pattern of the plaintiff before removing the meter. Witness has further admitted that the meter and service line was removed on the day of inspection itself and even no show cause notice was ever given before removal of the same. Witness has finally admitted that the representation was given by the plaintiff to the Chairman DVB which was also considered .
DW2 Sh R C Sharma who was stated to be working as JE in MTD department at the time of inspection and was stated to be member of joint inspection team also deposed on similar lines as that of 13 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd DW1 and has stated that on reaching two meters were found existing , the seals of CT meter was found OK and even single phase , half seals were also checked and found OK. Witness has stated that a gap was found created between widow glass and body of meter was notice in the CT meter from which a disc can be accessed by using thin film for the movement of meter disc can be stopped. The witness has stated that the meter and service line were removed on the direction of Executive Engineer. Witness was also cross examined at length by ld counsel for plaintiff and question regarding identify of the persons present at the time of inspection and as to whether any attempts were made to know the identity of the representative present at the site at the time of inspection . Witness during cross examination has admitted that at the time of inspection no foreign material was found installed in the meter. Witness has finally stated that the case of Fraudulent Abstraction of Energy/ theft of electricity was made as per directions of Executive Engineer and after following due process of law.
11. Various opportunities were granted to the defendant to examine further witness and even costs were imposed. However the same was not done and vide order dated 09.12.04 as passed by ld Predecessor of 14 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd this court DE was closed by order .
12. I have heard the ld counsel for the parties and perused the entire record including the pleadings, documents and oral testimony of witnesses on record. I have given a thoughtful consideration to the aforesaid as also written submissions filed on record. The issue wise determination is as follows :
ISSUE No 2 Whether the plaintiff has not come to the court with clean hands & suppressed the material facts ?
Though the onus of proving this issue was not specified , however since the issue has been framed on the basis of preliminary objections taken by the defendant in the written statement it would be appropriate to put the onus of proving the same on the defendant. In any case the question of onus is not constant and the onus keeps on shifting once the party discharges the same to extent of preponderance of probabilities. Be that as it may the preliminary objection was taken in para 1 of written statement wherein it has been stated that the plaintiff has not approached the court with clean hands and suppressed the material facts. In this regard it may be seen that though the plaintiff has failed to lead any specific evidence as to how the plaintiff has not approached the court with 15 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd clean hands. It appears that the defendant was pointing out towards the alleged inspection dated 26.10.1999 wherein the plaintiff was allegedly stated to have been found in various irregularities with alleged theft of electricity . The testimony of DW1 and 2 in respect of alleged inspection is on record and even DW1 got exhibited the MTD report dated 18.03.99 which is stated to have been prepared on site as ExDW1/7 . However it may be seen that since the alleged inspection whether being carried out in accordance with law or after completing with procedural or substantive requirement is an issue pending adjudication before this court which the court shall be dealing with while adjudication of other issues including the issue of plaintiff regarding entitlement to the reliefs claimed. However on the basis of available record and in view of the aforesaid discussion of the court the court is of the considered opinion that in the absence of any specific evidence either oral or documentary in support of this issue, the defendant has not been able to discharge the onus in respect of this issue atleast to the extent of preponderance of probabilities. This issue is accordingly decided against the defendant and in favour of the plaintiff . ISSUE NO 3 & 4 (3) Whether the plaintiff was founding indulging in Fraudulent Abstraction of Energy (FAE). If so its effect?
(4) Whether inspection dated 18.03.1999 was wrong and illegal ? If so its effect, 16 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd These two issues are being tried together sine these two issues are interlinked and the out come of one issue will necessarily effect the out come of other. In any case these two issues involves appreciation of fact and circumstances of the case in respect of alleged inspection dated 18.03.99 and impugned demand for the sum of Rs.2,41,728.36 paise which the plaintiff has questioned as being illegal, arbitrary and not being carried out in accordance with law . These issues are further tried together in view of commonality of evidence which has come on record. Though the onus was not specified at the time of framing of issues, however the onus of proving these two issues are necessarily raised on the shoulder of the plaintiff who has to show on record that the plaintiff was not found indulging in Fraudulent Abstraction of Energy (FAE)/theft of electricity and the inspection dated 18.03.99 was wrong and illegal . The plaintiff has primarily questioned the alleged joint inspection being carried out by the officials of DVB dated 18.03.99 and in a way subsequent theft bill dated 22.03.99 with due dated 28.03.99 for a sum of Rs.2,41.728.36 paise on various ground both substantive as well as procedural . Plaintiff has categorically stated that the inspection was not carried out in the premises of plaintiff on 18.03.99 in his presence or in presence of any responsible 17 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd person authorized by him. The plaintiff has further stated that even otherwise the same was not carried out in accordance with law and the inspection report was not prepared on site. The plaintiff has stated that even the copy of inspection report was not supplied to him and immediately the meter was removed and the service line was disconnected by defendant.
Plaintiff without prejudice to the aforesaid has further stated that the alleged inspection was neither carried out in accordance with law nor the plaintiff was given any opportunity by way of show cause notice or personal hearing to rebut the allegation , nor any speaking order has been passed in this record by the defendant before raising the impugned bill of Rs.2,41,728.36 paise with due date 28.03.99 . The plaintiff by way of its deposition of PW1 on substantive aspect has stated that the plaintiff has never misused the electricity given against K.No. 2121244360 with sanction load of 40 KW and has reiterated that the contents of the report prepared by defendant itself shows that the connected load was found within limits of sanctioned load. The plaintiff has further stated that it has always been paying the bills as per demands raised by the defendant from time to time and has stated that the plaintiff has always been paying the bills in accordance with law. The plaintiff has questioned the inspection 18 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd dated 18.03.99 being wrong and illegal and has stated that absolutely no irregularities were found on the site even at the time of inspection as half seals of meter were found intact. The meter seals and the rivets were also found intact after inspection. The plaintiff has vehemently submitted that if the entire electric meter equipment found intact it is not understandable as to how case of theft is made against him on the basis that a created gap was found between window glass and body of meter through which thin film can be inserted for stopping movement of reading. Ld counsel for plaintiff during course of arguments has vehemently stated that the aforesaid report and the impugned bill has been raised on surmises and conjunctures as no foreign material was found at the time of inspection. It has been further argued that even the aforesaid contention has been admitted by DW2 during his cross examination that the metering equipment was found intact and that no foreign material was found inserted in the meter equipment. Besides the aforesaid the plaintiff has questioned the alleged inspection on various procedural ground thereby stating that he was never supplied with the copy of inspection report or an opportunity to refute the allegation before raising the impugned bill of Rs.2,41,728.36 paise which was raised without following Principle of Natural Justice . Plaintiff has raised the 19 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd question regarding impugned bill being raised against him as the same stated to be against the very Principle of Natural Justice namely Audi alteram partem . Plaintiff has further submitted that neither any opportunity was afforded to him nor any speaking order was passed by defendant which was against Principle of Natural Justice as laid down in catena of judgements. Ld counsel Sh Malhotra during course of arguments has vehemently relied upon the pronouncement of law laid down in AIR 1967 SC 349 titled Ram Chandra Prasad Sharma & Ors Vs State of Bihar & Anr. in respect of non existence of perfected artificial material making Fraudulent Abstraction of Energy possible which is required to be established. Ld counsel for plaintiff has also relied upon the number of judgements which shall be discussed in forthcoming paras including recent judgement of Col. R K Nayyar V/s BSES Rajdhani Power Ltd reported in 140 (2007) DLT 257 where the criteria for booking cases for Dishonest Abstraction of Energy (now called FAE) has also been laid down. The plaintiff has heavily relied upon the aforesaid judgement stating that tempering of seal to constitute a case of dishonest abstraction of energy is required to be based study of consumption pattern of the plaintiff for a stipulated period.
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Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd
13. Ld counsel for the defendant Sh Rai on the other hand however has relied vehemently upon the pronouncement of law laid down in 1996 (4) SCC 522 titled M P State Electricity Board Jabalpur Vs. Harsh Wood Products & Another and has stated that no show cause notice is required in case of theft or pilferage of energy and has without prejudice to the aforesaid stated that a show cause notice was given to the plaintiff in this case and has vehemently argued that even otherwise in view of judgements of Hon'ble Patna High Court reported in AIR 2003 Patna 38, Bihar State Electricity Board Vs Kishori Devi , use of excess load itself constitute a theft and as such no separate requirement of any proceedings is required in this case . The court shall consider all the aforesaid aspects carefully in the light of statutory provisions as also pronouncement of law laid down by the superior courts on this aspect from time to time.
14. It may be seen that the present case pertains to year 1999 which is governed by the Indian Electricity Act 1910 though after amendment, the new Electricity Act 2003 has come in vogue alongwith the 21 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd various rules and regulations and even the erstwhile Delhi Vidyut Board has been unbundled and is being replaced by interalia amongst others the distribution companies such as NDPL , BSES Rajdhani Power Ltd and BSES Yamuna Power Limited within the territory of Delhi . So the case in hand is primarily governed by the existing provision of law and perusal of entire Indian Electricity Act 1910 shows that fraudulent abstraction energy (FAE) as is the case in hand has not been defined any where in the Act and the Act only mentions the provision of electricity pilferage and fraudulent abstraction of energy or electricity theft is to be covered within the purview of section 39 which deals with the theft of energy . Same is reproduced herein for the sake of reference .
39 . Theft of Energy : Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extent to three years, or with fine which shall not be less than one thousand rupees, or with both: and if it is proved that any artificial means or means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer .
Careful perusal of aforesaid section shows that the word use in the section is 'dishonest abstraction' however reading of the same 22 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd shows that such dishonest abstraction has to be shown by any means not authorized by the licensee (or the electricity company) for the purpose of such abstraction of such energy by the consumer. The court during the course of arguments has raised a quarry regarding the procedure being followed by the erstwhile DVB in cases of fraudulent abstraction of energy . However it has been brought to the notice of the court that prior to un bundling of DVB in 2003 there was neither any legal provision specifying as to what constitute a case of fraudulent abstraction of energy (FAE) nor any such procedure existed except the tariff guidelines from year to year which was used to calculate a theft bill on the basis of LDHF formula which has been described in clause 11 of the tariff for the year 199798( as is applicable to instant case) which lays down calculation for purpose of theft bills. While clause 11.1 deals with direct theft , clause 11.2 deals with pilferage of energy/ tampering of meter/seal and the energy consumption assessment formula and procedure for calculating the same is laid down in clause 11.1 and 2 in which 'L' stands for connected load in KW , 'D' stands for number of working days time month which is different for different categories. 'H' stands for supply for hours per day which is also prescribed for different categories of user for example in case of industrial units , 23 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd same is taken to be 10 hours per day , 'F' stands for load factor which is taken different for different category which in the instant case can be 60%, though question of these tariff rules being formed a part of law or not is another issue which the court is otherwise not seized of in the instant civil original jurisdiction. Admittedly in the absence of any specific definition or procedure being laid down for defining as to what constitutes a Fraudulent Abstraction of Energy (FAE) the court will have to resort to various pronouncements of law laid down by the superior courts, more particularly when the same has otherwise taken a concrete shape in a catena of judgements given by the superior courts but the basic underlying principle or the grundnorm remains the same which is Principle of Natural Justice which form the basis of evolved statutory law.
It has been held in 1994 (54) DLT 156 titled Rakesh Rubber Industry Vs MCD that Dishonest Abstraction of Energy requires following of principle justice which involves giving show cause notice to consumer of provisional theft bill followed by personal hearing. Similar voice was echoed in pronouncement of law laid down by Delhi High Court in Sukhbir Singh Vs MCD 55 (1994) DLT 701 where the Hon'ble court has held :
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Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd We are of the view that before disconnection notice be issued , a detailed show cause notice ought to have been issued to the petitioner as to the manner in which demand has been arrived at. It is not proper for the respondent to have straightway issued a demand notice on the basis of inspection report .
The aforesaid principle of law has been variedly explained in catena of judgements from time to time and more particularly as held in 136 (2007) DLT 500 Udham Singh Vs BSES Rajdhani Power Ltd where the court has held that in every case of theft cannot constitute a case of dishonest abstraction of energy which requires some collateral material or a conclusive proof about DAE . The hon'ble court has further held in a similar matter like case that mere existence of an irregular or fictitious seal could not be justified to make out a case of DAE. The inference led to study of the consumption pattern which is required to be done before the DAE/FAE can be booked by the defendant .
In another similar case reported in 140 (2007) DLT 563 titled as J K Steelomelt Pvt Ltd Vs BSES Rajdhani Power Ltd , Hon'ble High court has gone to the extent of saying that even existence of a artificial means for abstracting energy does not ipso facto make a case of FAE unless it is shown on record that a tampering has been done and further meter has 25 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd been converted into a instrument for recording less than the units actually passing through it and in such case accucheck meter affords an easy method of proving that the consumer's meter is recording less unit then the actual units consumed .
The issue was further explained in another judgement of Hon'ble High Court of Delhi reported in 142 (2007) DLT 116 where it has been held that the existence of LDHF formula in the tariff only provides the method of calculating or determining the quantum of penalty which cannot be termed as definition for the purpose of FAE. Further more in another important judgement as reported in 140 (2007) DLT 257 where the Hon'ble High Court has gone to the extent that mere tampering of seal is itself not sufficient to make out the case of Dishonest Abstraction of Energy and there has to be direct and conclusive evidence to establish complicity of consumer in tampering the meter before raising the demand which is punitive in nature. Finally it is not out of place to mention that hon'ble court has repeatedly held that show cause notice should be given to the consumer alongwith an opportunity of personal hearing before booking a case of DAE . ( Reliance placed on AIR 1992 Delhi 228 titled Sundeep Singh Dingra Vs MCD and Bimla Gupta Vs NDPL reported in 26 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd 134 (2006) DLT 174.
The judgement on the various aspect of FAE (or DAE as it is called today after amendment of Electricity Act 2003) and the subsequent regulation are numerous , however the basic principle can be culled out as :
1. Every theft of energy cannot constitute a case of either direct theft or a FAE and electricity authority is required to proceed further to establish the same by following various steps.
2. Mere existence of a fictitious seal or tampering of seal does not constitute a case of theft or FAE.
3. The electricity authority is required to assess and compare the fictitious seal or tampering of seal with the standard monogram and may in appropriate case is also required to send it to a certified laboratory for verification.
4. The tampering of meter has to be substantiated by some cogent evidence so as to show on record that the meter of the consumer is recording less than actual consumption and in such case electricity authority is required to use the test meter or an accucheck meter so as to compare the units recorded with the consumer meter and such test meter.
5. The electricity authority is also required before declaring the case of direct theft or FAE that show cause notice is 27 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd given to the consumer/user who is also afforded an opportunity to controvert the allegations as also the consumer is required to be given a chance of personal hearing followed by speaking order declaring that he is found indulging in FAE.
The aforesaid list is only illustrative and not exhaustive and in a recent judgement of Delhi High Court it has been held that electricity company is required to afford the consumer an opportunity to cross examine the official who have carried out the inspection and prepared report at the time of personal hearing.
In the instant case it may be seen that PW1 Sh Ashok Bhalla the partner of plaintiff firm during his deposition has clearly stated that the electricity bill in respect of electricity connection bearing K.No.212 1244360 installed in premises No. WZ555, Naraina Village, New Delhi has been paid by the plaintiff upto date and as per actual consumption raised by the defendant or its erstwhile predecessor in interest from time to time. Plaintiff has further shown his bonafide thereby showing that the load was enhanced from 5 KW to 40 KW in the year 1995 after deposit of necessary charges vide receipt Ex PW1/5. The witness during the course of evidence has stated that the officials of DVB inspected the company premises on 28 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd 18.03.99 when no responsible officer or partner was present except some staff and electricity meter was removed and service line cable was cut down. The plaintiff stated to have been made representation to this effect the very next date on 19.03.99 which has been exhibited on record as Ex PW1/6 has also admitted by DW1 during the course of his cross examination. The witness has further stated that a copy of inspection report was annexed with the bill and has also filed the same on record as Ex PW 1/7 and 8 . The amount of Rs.1,97,104/ paid in two instalments got exhibited on record as Ex PW1/9 and 10. During the cross examination of PW1 the defendant has failed to put a substantial dent in the testimony of PW1 in respect of either alleged inspection or allegation that a gap was created between the window glass and body of meter through which thin plastic film can be inserted in order to manipulate the meter reading. The deposition of witness that the amount was paid under the threat of lodging an FIR is also categoric and has not been substantially challenged during the course of cross examination or even during the defendants evidence. Though the allegations has been made by the plaintiff that even during inspection the meter seals , half seal were found intact and no irregularities were found in meter equipment which was also admitted during cross 29 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd examination of DW2 without absence of any foreign material , how can a theft bill be raised . Pronouncement of law in this regard laid down in AIR 1967 SC 349 (Supra) in respect of existence of perfected artificial being rather fraudulent abstraction possible is clear. Hon'ble court has succintly held that mere allegation about tampering of meter and control of plaintiff over it is not sufficient enough to make out the case for theft of energy. The aforesaid pronouncement of law has been reiterated recently by our own Hon'ble High Court of Delhi in 140 (2007) DLT 563 (Supra) wherein it has been held that electricity department is required to show tampering of meter equipment to the extent of existence of artificial means being used to effect the recording of actual consumption of the equipment or the fact the meter has been converted into a machine for recording slow down consumption. The defendant during the course of examination of its witnesses have failed to show as to how a case of automatic electricity of theft was booked against plaintiff alongwith impugned bill of Rs.2,41,728.36 pasie with due date 28.3.99 without complying with the requirements of law. Merely the fact that the defendant has stated that the consumption pattern of the plaintiff was studied thereby concluding the same low consumption that too on site without any supporting material is 30 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd not sufficient enough to show that the plaintiff was found indulging any theft of electricity. In any case no documents showing that the consumption pattern was studied though the same got studied on site only has been brought to the notice of the court during the entire evidence of the defendant or even during cross examination of plaintiff witness. The defendant appears to have shown extreme haste in removing the mere and disconnecting the service line of the plaintiff without actual recording the reasons thereof or if at all the reasons for doing the same were recorded the same has not been brought to the notice of the court. It is settled preposition of law that existence of power to do something is one thing and justification to do so is another. The defendant has utterly failed to satisfy the requirement of later part.
Finally coming to the procedural aspect of law in respect of FAE case plaintiff has stated that he was never given any show cause notice or opportunity to rebut the allegations or even speaking order was passed before impugned bill for Rs.2,41,728.36 paise was raised against him. Deposition of PW1 is clear and categoric who has stated that he was never supplied with the relevant documents and was deprived of knowledge regarding the contents of inspection report . Though the defendant has tried 31 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd to refute the same thereby stating that a show cause notice was sent to the plaintiff. However no show cause notice has been shown on record neither the mode and manner in which the same was served upon the plaintiff has been shown on record . There has been absolutely no whisper in all through the testimony of defendant witnesses regarding the show cause notice or the mode and manner in which the same was served upon the plaintiff and in the absence of aforesaid the court can draw an adverse inference that either the same was not raised or same was never served upon the plaintiff. As discussed earlier it has been no more res integra that serving of show cause notice before raising the theft bill is must. Reliance placed on 55 (1994) DLT 70 (Supra) .
In view of the discussion and findings of the court on all the aspects the court is of the considered opinion that the inspection dated 18.03.99 cannot be held to have been carried out in accordance with law and the inspection report dated 18.03.99 being prepared strictly in accordance under provisions of Electricity Act 1910, and tariff provisions as in vogue then. Having said so the plaintiff cannot be held to be found indulged in a Fraudulent Abstraction of Energy (FAE) /theft of electricity on the basis of aforesaid inspection . The inspection dated 18.03.99 and the 32 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd impugned bill dated 22.03.99 cannot sustain the rigorous of law both on procedural as well as substantive counts and in view of the aforesaid discussion the court is of the considered opinion that while the plaintiff has been successful in showing that the inspection dated 18.03.99 was wrong and illegal and he was not found indulged in Fraudulent Abstraction of Energy (FAE)/ theft of electricity . The defendant has failed to show anything to the contrary that the inspection dated 18.03.99 was carried out strictly in accordance with law or the plaintiff was found indulging in Fraudulent Abstraction of Energy (FAE)/ theft of energy. Effect of aforesaid is that the inspection dated 18.03.99 and the subsequent bill raised on the basis of aforesaid inspection dated 22.03.99 for a sum of Rs.2,41,728.36paise are declared to be null, void and is accordingly quashed. These two issues are accordingly decided in favour of the plaintiff and against the defendant.
ISSUE No1 (1) Whether the plaintiff is entitled for recovery of Rs.1,97,104/ alongwith interest @ 18% per annum ? OPP.
The onus of proving this issue was on the plaintiff who has examined its partner Sh Ashok Bhalla in support of its case and in view 33 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd of discussion held in respect of issue No3 and 4 and findings of the court on aforesaid issue , the court is of the considered opinion that the defendant ought not have raised the bill of Rs.2,41,728.36 paise against the plaintiff on the basis of inspection report dated 18.03.99 at the premises of plaintiff against K. No.2121244360 . The plaintiff has categorically shown to have paid a sum of Rs.1,20,865/ and Rs.76,239/ against threat of lodging an FIR which is also stated to have been lodged against the plaintiff and the paid bill in respect of aforesaid has also been duly proved on record as Ex PW1/9 and 10 respectively. Nothing contrary to the aforesaid has been shown on record by the defendant to show that the bills were legally raised, accordingly the plaintiff is entitled to recover a sum of Rs.1,97,104/ against the defendant. In so far as the interest component has prayed at the rate of 18% is concerned the court is of the considered opinion that there is no specific agreement to pay aforesaid interest on such amount, however since the money of the plaintiff was retained by the defendant for such a long time provision of section 34 read with provision of Interest Act will come into play and the court is of the considered opinion that the interest of justice would be met if the plaintiff is granted interest at the nominal rate of 6% on the aforesaid amount from the date of such payment till date of this 34 Civil Suit No.235/06/99 M/s. Amit Electricals (India) Vs North Delhi Power Ltd order. This issue is accordingly decided in favour of the plaintiff and against the defendant.
RELIEF Relief In view of the aforesaid discussion and findings of the court the court is of the considered opinion that the plaintiff has been successful in establishing its case atleast to the extent of preponderance of probabilities. The inspection dated 18.03.99 and the consequent FAE/ theft bill of Rs.2,41,728.36 paise is declared to be illegal, null and void and is accordingly quashed. Plaintiff is entitled for recovery of Rs.1,97,104/ with interest @ 6% per annum against the defendant from the date of such payment till the date of decree. In the specific fact and circumstances of the case parties are left to bear their own respective costs. Decree sheet be drawn accordingly. File be consigned to record room after due completion .
(MUKESH KUMAR GUPTA)
DATED 12.04.2010 SCJ/RC/(NORTH/DELHI.
ANNOUNCED IN OPEN COURT.
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