Delhi District Court
Sh. Jaswant Singh vs B.S.E.S Yamuna Power Ltd on 18 September, 2013
IN THE COURT OF SH. NEERAJ GAUR,
ACJ/CCJ/ARC, SHAHDARA, KARKARDOOMA COURTS, DELHI
Suit no.236/2009
Unique Identification No. 02402C0157952009
Sh. Jaswant Singh
S/o Sh. Tej Pal
R/o H107, New Silampur,
Shahdara, Delhi110053.
...........Plaintiff
Versus
B.S.E.S Yamuna Power Ltd.
Through its C.E.O.
Shakti Kiran Building,
Karkardooma,
Delhi110092.
..........Defendant
SUIT FOR DECLARATION AND PERMANENT INJUNCTION.
1. Date of institution of Suit : 13/05/2009
2. Judgment reserved on : 16/09/2013
3. Date of Judgment : 18/09/2013
4. Decision : Suit decreed.
Suit no.236/2009 Page no. 1 of 21
JUDGMENT
1. This is a suit for declaration and permanent injunction. Plaintiff has sought a declaration to the effect that the inspection report, show cause notice and speaking order passed by the defendant / BSES is null and void. He has also sought a restraint against disconnection of electricity on the basis of the inspection report, DAE bill etc. Plaintiff's case is that he is having three electricity connections in premises no. H107, New Seelampur, Shahdara, Delhi. The impugned electricity connection bearing K no. 12500B020052 is for industrial purposes having sanctioned load of 7.83 KW. The plaintiff is running an Atta Chakki in the premises. The regular electricity bills were being paid. On 01/02/2005, the plaintiff observed some sparking and smoke in the impugned meter. The matter was reported to the BSES and necessary charges for checking the meter were also deposited. The meter was changed on 16/06/2005. On 17/01/2009, some officials of BSES, under the garb of checking the meter conducted an inspection. The alleged inspection was done in violation of the guidelines of DESC Regulations 2007. In fact, some persons visited the premises and no inspection report was prepared at the site. No copy was provided to the plaintiff. The signatures of the plaintiff were taken on the blank printed formats. Subsequently, plaintiff received a second and final show cause notice dated 03/02/2009 alongwith copies of the Suit no.236/2009 Page no. 2 of 21 inspection report. This show cause notice was given without analyzing the consumption pattern. The plaintiff sent a written representation dated 03/03/2009. It was alleged in this show cause notice that the meter box plastic seal was found tampered and meter terminal seal was found missing at the time of inspection. It was further alleged that the consumer could use the supply by hooking the Terminal Incoming Service cable. The plaintiff's case is that as per the meter change report dated 16/06/2005, no seal was affixed on the meter at the time of installation on 16/06/2005. Subsequently plaintiff received a bill for a sum of Rs. 2,53,667/ alongwith speaking order dated 22/04/2009. The plaintiff has now challenged the validity of the inspection report, the speaking order and the bill stating that the same have been done in violation of DERC regulations and on the basis of the false inspection.
2. BSES filed its written statement. Their case is that the total connected load at the time of inspection was 8.28 KW as against the sanctioned load of 7.83 KW. They have alleged that the meter box plastic seals were found tampered and the meter terminal seal was found missing. The meter terminal cover was found smoky and one terminal screw was found missing. Thereby, the consumer could use the supply by hooking the terminal of incoming service cable. They have supported the inspection, show cause notice and other proceedings as having been in Suit no.236/2009 Page no. 3 of 21 conformity with the Regulations. BSES has averred that the show cause notice for dishonest abstraction of energy (DAE) was prepared by the inspection team on 17/01/2009 at the site. After establishing the case under DAE, the bill was duly raised after duly passing the speaking order dated 22/04/2009.
3. On completion of pleadings, the following issues were framed on 13/05/2009:
1. Whether the suit is without cause of action? OPD
2. Whether the suit has been properly valued for the purpose of court fees and jurisdiction? OPP
3. Whether the plaintiff is entitled for the decree of declaration as prayed? OPD
4. Whether the plaintiff is entitled for the relief of permanent injunction? OPP
5. Relief.
4. The plaintiff examined himself as PW1 and he deposed the same facts as averred in the plaint. Copy of bill dated 09/01/2009 is Ex. PW1/1. Copy of meter change report dated 16/06/2005 is Ex. PW1/2. Copy of second show cause notice dated 03/02/2009 is Ex. PW1/3. Copy of reply dated 03/03/2009 is Ex. PW1/4. Copies of letter /request sent by the plaintiff dated 06/03/2009 and 03/03/2009 are Ex. PW1/5 and Ex. PW1/6 respectively. Copy of inspection report dated 17/01/2009 is Ex. PW1/7.
Suit no.236/2009 Page no. 4 of 21 Copy of Form of the Assessment of connected load is Ex. PW1/8. Copies of speaking order and the impugned bill are Ex. PW1/9 and Ex. PW1/10 respectively. PW1 was duly cross examined by the defendant.
5. Defendant examined Sh. Sanjay Sharma as DW1, who supported the case of the defendant regarding the inspection, speaking order, show cause notice and DAE bill. The inspection report is Ex. DW1/1. The DAE bill is Ex. DW1/2. The Assessment Load Report is Ex. DW1/3. Seizure memo is Ex. DW1/4. Meter detail is Ex. DW1/5. The first show cause notice dated 17/01/2009 is Ex. DW1/6.
6. Defendant also examined Sh. Amrish Mishra as DW2. He proved the second show cause notice as Ex. DW2/2, copy of dispatch register as Ex. DW2/3, speaking order as Ex. DW2/4, cumulative tamper status as Ex. DW2/5 (colly) and DAE bill as Ex. DW2/6.
7. Most of the issues are closely connected and I propose to decide them through common discussion. Arguments have been heard and record has been carefully perused.
8. Counsel for plaintiff argued that even as per the inspection dated 17/01/2009, no actual hooking was found. The defendant have raised a Suit no.236/2009 Page no. 5 of 21 DAE bill on wrong assumption. There was no basis with the defendant for assuming that the unit was working for 20 hours in a day but the DAE bill has been made on this wrong assumption. He argued that in case of suspected theft, it was necessary for the defendant to send the meter for laboratory test as per Regulation no. 52 (viii) of Delhi Electricity Supply Code and Performance Standards Regulations, 2007 (hereinafter referred to as 2007 Regulations).
9. The relevant observations mentioned in the inspection report are reproduced here under for the sake of convenience.
1. Meter box plastic seals both found tampered and refixed.
2. Meter terminal seal found missing.
3. Meter terminal cover found smoky and one number terminal screw found missing.
4. Consumer can use the supply by hooking the terminal of I/C service cable.
5. Meter checked by standard accua check, result found within the limit.
10. The show cause notice for booking in a case of DAE was on the basis of tampering and refixing of plastic seal and missing of meter terminal seal and cover screw. As regards the consumption pattern, the speaking order states as under: Suit no.236/2009 Page no. 6 of 21 "The consumption and MD recorded after meter change is 860 units with respect to the consumption recorded in February 2007 is 573 units."
"The average consumption pattern as per the computer module works out to be 33.38 percent which is less than the prescribed limits."
11. So it can be gathered from the speaking order that the basis of concluding that it was a case under DAE were the following factors:
1. Meter terminal cover was smoky.
2. Meter box plastic seal was found tampered.
3. Meter terminal seal was missing.
4. One meter terminal screw was missing.
5. The consumption pattern corroborated the suspicion of DAE.
6. After change of meter, the units consumed were 860 as against the consumption of 573 units recorded in February 2007.
7. Average consumption pattern as per computer module was less than the prescribed units.
12. Statutory Provisions: The 2007 Regulation do not provide any definition of DAE. However, direct theft and DAE have been defined in Regulation 2 (i) and (m) of DERC Regulation of 2002 as under: 2(i): Direct theft shall mean abstraction of Suit no.236/2009 Page no. 7 of 21 electric energy either through bypassing the meter by some arrangement external to it or through unauthorised tapping of the supply from the licensee's distribution network.
2(m): DAE shall mean abstraction of electrical energy where accessibility to the internal mechanism of the 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.
13. The definitions clearly imply that direct theft and DAE are mutually exclusive. There is no overlapping. A case covered under DAE can, under no circumstance, be covered under direct theft and viceversa. The graveman of DAE lies in the fact that by some means, the meter has been caused to record less energy than actually passing through it. In case, a person can byepass the meter by hooking the incoming cable, the same has to be dealt with under direct theft and not DAE. There is a third category of theft which is "suspected theft" as finding mention in various Regulations including Regulation 52 of 2007 Regulation. In the instant case, the meter was found completely OK and within the limits when Suit no.236/2009 Page no. 8 of 21 checked by Standard Accua Check. It implies that no tampering with the meter was done. The meter was recording the correct energy which was actually passing through it. The entire proceedings done by BSES were based on a suspicion that the consumer could use the supply by hooking the terminal of incoming service cable. The basis of this suspicion was the missing of terminal seals screws etc. BSES started their proceedings on assumption of a suspected theft but they ended up concluding that it was a case under DAE.
14. Regulation 52 (vi) of 2007 Regulation provides that no case of theft shall be booked only on account of seal on the meter is missing, tampered or breakage of glass window unless coroborated by consumption pattern of consumer and such other evidence as may be available.
15. Regulation 52 (viii) inter alia provides that the licensee shall also assess the energy consumption for past twelve months as per the assessment formula provided in Annexure XIII.
16. Regulation 52 (viii) also provides that in case of suspected theft, the authorised officer shall remove the old meter under a seizure memo and seal it in the presence of consumer. The licensee shall continue the Suit no.236/2009 Page no. 9 of 21 supply to the consumer with a new meter. The old meter shall be tested in a NABL accredited laboratory and the laboratory shall give a test report, in writing, which alongwith photographs/videographs shall constitute evidence thereof.
17. The proviso to regulation 52 (ix) states that in case of suspected theft, if the consumption pattern for the last one year is reasonably uniform and not less than the 75 per cent of the assessed consumption, no further proceedings shall be taken.
18. A consumption detail was filed by BSES during arguments which is being reproduced hereunder: Bill Month Consumption 03/2008 573 04/2008 751 05/2008 972 06/2008 626 07/2008 928 08/2008 709 09/2008 835 10/2008 818 11/2008 910 12/2008 646 01/2009 856 Suit no.236/2009 Page no. 10 of 21
19. In order to assess the consumption pattern, the BSES took into account the consumption of February 2008, which was 573 units. It was compared with the consumption of 860 units, which was recorded in February 2009 after the meter was changed. The question now arises whether a correct procedure was adopted for ascertaining the consumption pattern. As per Regulation 52 (vii), the licensee is to assess the energy consumption for past "12 months". The correct procedure should be to take into account the average consumption of past 12 months. The consumption detail filed by the defendant reflects that the average consumption for 30 days was 864 units. The meter readings of the months are by and large consistent and there is no abruptness in the consumption pattern. The study of consumption patten, as contemplated under Regulation 52, would certainly include any abrupt rise/fall in consumption so as to corroborate some dishonest abstraction of electricity by consumer. A consistency in consumption pattern would, on the other hand, be suggestive of no dishonest abstraction of any electricity. It seems that the defendant has completely overlooked this average consumption of past 12 months. Defendant has also overlooked the consumption of several other months including May, July and November 2008 when the consumption was above 900 units. It seems that the defendant has conveniently chosen the month of March 2008 which Suit no.236/2009 Page no. 11 of 21 was reflecting the least consumption while ignoring not only the consumption of other months, but also ignoring the average consumption.
20. The other basis for assessment of consumption pattern is the application of LDHF formula applied by the BSES. While applying this formula, the value of 'H' (i.e. Hours) is given as '20'. Counsel for BSES argued that the industry was running in two shifts and therefore, as per Annexure13, the 'H' has to be given value of '20'. On the contrary, counsel for plaintiff contended that the BSES had no basis to assume at that time or even today, that the industry was running in two shifts. He contended that in case of single shift industry, the value of 'H' could be '10'.
21. At the time of passing the speaking order, the BSES ought to have some prima facie material to assume that the unit was running in two shifts. However, no such material could be proved on record. The show cause notice Ex. PW1/3 is silent as regards the number of working hours, which implies that the plaintiff was not even asked to state the number of hours for which the industry was being run in a day. Even in the speaking order, it was not an established fact that the unit was running in two shifts. It means that the average consumption of 33.38 percent, as calculated by BSES as per their computer module is itself based on an Suit no.236/2009 Page no. 12 of 21 unfounded assumption that the unit was running in two shifts. If this value of '20' is substituted by '10', then the average consumption pattern would jump to approximately 67 % which is very near to the cut off of 75 %.
22. Regarding this two shifts theory, counsel for BSES argued that the plaintiff admitted during his cross examination that he open his shop at 9 9.30 am and close the same at about 7 8.00pm. Even if, this timing is taken into account, it makes about ten hours of opening the industry. It would be difficult to assume that immediately on opening at 9.00 am, the plaintiff starts his Atta Chakki or that the Atta Chakki keeps on running continuously till 8.00 pm. Some reasonable allowance has to be given while calculating the working hours in a day. This admission of the plaintiff is not giving any support to the defendant's case.
23. In view of the forgoing discussion, I hold that the procedure adopted by the defendant in ascertaining the consumption pattern is itself arbitrary and flawed. The assumption of running the Atta Chakki in two shifts at the relevant time is without any basis or proof. So the main basis on which the speaking order concluded that it was a case under DAE is incorrect and unfounded.
Suit no.236/2009 Page no. 13 of 21
24. The defendant, while passing the speaking order also relied upon the fact that meter terminal seal was found missing at the time of inspection. Counsel for the plaintiff drew my attention to the meter change report Ex. PW1/2. The relevant column of terminal seal is blank in this report, although the seal number of the seals put on boxes and window are very much mentioned. The defence witness Sh. Sanjay Sharma admitted during his cross examination that these relevant columns were left blank. The defendant has not placed on record any document mentioning the seal number of MD Seal and Terminal Seal which were fixed at the time of changing the meter. In these circumstances, no liability can be fastened with the plaintiff even in case the meter terminal seal was found missing at the time of inspection.
25. The meter was checked with an Accua check and was showing correct reading. So the meter was properly working. The meter was not sent for any laboratory test in gross violation of mandatory Regulation no. 52 (viii). Therefore, it cannot be established that the meter was in any way tampered with. The missing meter terminal seal is of no consequence because the defendant could not establish if at all any meter terminal seal was affixed at the time of its change. Even otherwise, as per Regulation 52 (vi) of 2007 Regulations, no case for theft could be booked only on account of seal on the meter missing or tampered unless corroborated by Suit no.236/2009 Page no. 14 of 21 consumption pattern. I have already discussed the flaws in the assessment of consumption pattern. The mandatory Regulation no. 52 (viii) was not followed. Taking into account all the facts and circumstances, I hold that the defendant was not correct in concluding that there was any dishonest abstraction of electricity. The conclusion drawn by the defendant in the show cause notices as well as speaking order was not only incorrect but arbitrary and based on conjectures. Consequently, the show cause notices, the speaking order and the consequent DAE bill raised by the defendant are liable to be declared as incorrect, invalid, null and void.
26. I can now conveniently proceed to give formal issuewise findings: Re Issue no. 1
27. This issue is regarding cause of action. The plaint did disclose a cause of action and the suit cannot be held to be bad for want of cause of action. The issue is decided against the defendant. Re Issue no. 3
28. In the light of discussion made herein above, I hold that the plaintiff is entitled to the decree of declaration as prayed for by him. The issue no. 3 is decided in favour of the plaintiff.
Suit no.236/2009 Page no. 15 of 21 Re Issue no. 4
29. Since, I have already given a finding that the show cause notice, speaking order and the DAE bill were null and void, hence, the electricity of the impugned connection cannot be disconnected on the basis of show cause notice and the speaking order or for nonpayment of the impugned DAE bill with due date of 03/05/2009. The plaintiff is accordingly entitled to a permanent injunction as prayed for by him. This issue is decided in favour of the plaintiff.
Re Issue no. 2
30. This issue is regarding the valuation of the suit for the purpose of court fees and jurisdiction. Counsel for the defendant argued that the suit was to be valued on the basis of the impugned bill and appropriate court fees ought to be paid. He relied upon the judgment titled as 'Sarjiwan Singh vs. DVB', 110 (2004) DLT 633. Counsel for plaintiff argued that this judgment would be applicable only when the bill was prima facie legal. He argued that the bill was raised in an arbitrary manner without proper assessment. The bill was raised on an arbitrary assumption that the unit was being run in two shifts. The meter was not sent for laboratory examination in blatant violation of Regulation 52 (viii). He argued that Suit no.236/2009 Page no. 16 of 21 such an illegal bill could not be covered under the ratio of Sarjivan Singh's case (Supra).
31. I have given my due consideration on this aspect. I agree with Ld. counsel for the plaintiff that the bill was prima facie not legal. In these circumstances, I find no defect in the valuation of the suit as made by the plaintiff. The issue is accordingly decided against the defendant. Relief
32. In view of my findings on abovementioned issues, present suit is decreed in favour of the plaintiff and against the defendant. The following reliefs are granted in favour of the plaintiff and against the defendant:
1. Decree of declaration thereby declaring the Inspection Report dated 17/01/2009, Show Cause Notice dated 03/02/2009 and Speaking Order dated 22/04/2009 as illegal, null and void abinitio.
2. Decree of permanent injunction thereby restraining the defendant, its agents, officials etc. permanently from disconnecting the supply of the plaintiff through K. No. Suit no.236/2009 Page no. 17 of 21 12500B020052 on the basis of Inspection Report dated 17/01/2009, Show Cause Notice dated 03/02/2009 and Speaking Order dated 22/04/2009 and impugned bill (due dated:
03/05/2009).
3. Cost of the suit.
33. Decree sheet be prepared accordingly. Thereafter, file be consigned to record room.
(Announced in the (Neeraj Gaur)
Open Court on ACJ/CCJ/ARC, Shahdara, KKD, Delhi
18/09/2013) 18/09/2013
(This judgment contains 18 pages)
Suit no.236/2009 Page no. 18 of 21
Page no. 1 of 2
Suit no. 236/2009
Jaswant Singh vs. BSES Yamuna Power Ltd.
18/09/2013
Pr.: Counsels for both parties.
Vide my separate judgment of even date, present suit has been decreed in favour of the plaintiff and against the defendant. The following reliefs are granted in favour of the plaintiff and against the defendant:
1. Decree of declaration thereby declaring the Inspection Report dated 17/01/2009, Show Cause Notice dated 03/02/2009 and Speaking Order dated 22/04/2009 as illegal, null and void abinitio.
2. Decree of permanent injunction thereby restraining the defendant, its agents, officials etc. permanently from disconnecting the supply of the plaintiff through K. No. 12500B020052 on the basis of Inspection Report dated 17/01/2009, Show Cause Notice dated 03/02/2009 and Speaking Order dated 22/04/2009 and impugned bill (due dated:
Suit no.236/2009 Page no. 19 of 21
03/05/2009).
3. Cost of the suit.
Suit no.236/2009 Page no. 20 of 21
Page no. 2 of 2
Decree sheet be prepared accordingly. The plaintiff shall be entitled to the refund of amount paid while allowing the interim application under Order 39 Rule 1 and 2 CPC. In the alternative, the amount so deposited shall be duly adjusted in the future bills.
File be consigned to record room.
(Neeraj Gaur)
ACJ/CCJ/ARC, Shahdara, KKD, Delhi
18/09/2013
Suit no.236/2009 Page no. 21 of 21