Delhi District Court
Sh.Mehar Singh Gahlot vs Bses Rajdhani Power Ltd on 27 August, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No.98/06/98.
Sh.Mehar Singh Gahlot
Pole No.91, Khasra No.665,
Village Nawada, Delhi. .................Plaintiff
Vs.
BSES Rajdhani Power Ltd.
through its Chief Executive Officer,
Legal & Enforcement Cell,
Near CPWD Office,
behind Police Station,
Andrewsganj,
New Delhi-110049. .............Defendant
Date of institution : 28.05.1998.
Date of reservation : 30.07.2011.
Date of pronouncement : 27.08.2011.
JUDGMENT
01. The plaintiff filed the present suit for mandatory and permanent injunction against the erstwhile DVB which has been unbundled and BSES Rajdhani Power Limited has stepped into its shoes.
02. In brief, the facts of the case as made out in the amended suit for declaration, mandatory and permanent injunction are that plaintiff got electricity connection bearing K.No.1342118-IP and 1342126-IL with sanctioned load 10HP and 1 KW respectively, installed in premises bearing Pole no.91, Khasra No.665, Village Nawada, New Delhi. It is Suit No.98/06/98 Page 1 of page 14 stated that erstwhile DVB formulated a scheme in the year 1995 that the consumers who were interested in getting their load enhanced in Delhi, could apply under the said scheme and the plaintiff applied for the enhancement of electricity load from 10 HP to 40 HP in respect of electricity connection bearing K.No.1342118-IP and plaintiff deposited a sum of Rs.29076/- on 19.01.1996 and a sum of Rs.5175/- on 02.02.1996 with the defendants. It is the case of the plaintiff that the defendant did not come forward to enhance the load of the plaintiff in respect of above said electricity connection and instead the defendant wrongly and illegally sent one notice to the plaintiff dated 25.03.1997 wherein the plaintiff had been asked to appear for personal hearing on 07.04.1997. Request was made to the office of the defendant by letter dated 24.04.1997 that the date had already lapsed when the notice was received by the plaintiff. In this notice, which was sent to the plaintiff, it had been mentioned that load of 40.53 KW and 1.9 KW was found connected against the sanctioned load in respect of electricity connection bearing K.No.1242118-IP and 13422126 respectively and the other allegations were made regarding low consumption, meter half seals as well as rivets were found tampered and the user of the premises was M/s. Diamond Plast, of which firm, Mr.Hariom is the proprietor. It is stated that plaintiff filed a detailed reply, while specifically denying each and every allegation, while explaining his position and mentioning that M/s.Diamond Plast is a partner ship concern, wherein, plaintiff alongwith Ms.Amita Mahajan are the partners w.e.f. 01.11.1996 and the business has not taken off at all and it has a very low ebb and prayed the defendant to withdraw the notice.
03. It is further stated that unfortunately, the electricity meter Suit No.98/06/98 Page 2 of page 14 bearing no.28698 in respect of electricity connection bearing K.No. 1342118-IP was burnt on the night of 19.03.1998 and the plaintiff immediately approached the officials of erstwhile DVB on 20.03.1998 and has also given written representation to replace the electricity meter, but the officials of the erstwhile DVB did not come forward to replace the meter of the plaintiff. It is further stated that after filing of the suit, the defendant sent a wrong and illegal bill to the plaintiff for the sum of Rs. 2,93,477.85p showing as the arrears due from the plaintiff for the period September 1996 to February 1997 on the basis on some alleged inspection report dated 13.02.1997, requiring the plaintiff to make the payment of the said amount by 30.04.1998. It is submitted that even no such alleged inspection was carried out by the defendant and the demand has been raised only to harass the plaintiff and to extract money from the plaintiff in a wrong and illegal way. Hence, the present suit, for a decree of declaration thereby, declaring the demand raised by defendant to the tune of Rs.2,93,477.85p on the basis of wrong and illegal inspection report dated 13.02.1997 to be null and void and the same be ordered to be quashed and for a decree of mandatory injunction, directing the defendants to replace the electricity meter which has been burnt and to enhance the load of plaintiff in respect of electricity bearing K.NO. 1342118-IP for which plaintiff has already deposited the amount and for a permanent injunction to restrain the defendant from disconnecting the electricity connection bearing K.No.1342118-IP and 1342126-IL installed in premises bearing Pole No.91, Khasra No.665, Village Nawada, New Delhi, is filed.
04. Defendant/BSES Rajdhani Power Limited contested the present suit by filing detailed written statement to amended plaint, while Suit No.98/06/98 Page 3 of page 14 taking preliminary objections that plaintiff has not come to the court with clean hands and has suppressed the material facts; suit of the plaintiff is not maintainable as the relief of declaration can only be sought within three years from the date of accruing the cause of action as per provision 3 of Limitation Act, but, in the present case, plaintiff has moved the application u/o 6 rule 17 after a gap of approximately more than six years and sought the relief of declaration which is highly time barred; plaintiff is not entitled to discretionary relief under Indian Specific Relief Act;On merits the contents of the plaint have been denied, while submitting that a joint inspection was conducted in the presence of the representative of the plaintiff and following irregularities were observed at site at the time of raid :-
1. Excess connected load to the tune of 40.50 KW/IP and 1.90 KW/1L.
2. Misuse of supply by way of subletting, the user was found M/s.Diamond Plast, Proprietor Sh.Hari Ram.
3. LPF-No shunt capacitor found installed at site.
4. Meter terminal cover found missing.
5. Half seals and rivets found fictitious of polyphase and single phase meter.
05. It is further submitted that plaintiff was also called for personal hearing, but, nobody attended the personal hearing. The consumption pattern of the plaintiff was analysed and the recorded consumption comes to only 382 Units per month for IP meter and the Nil consumption has been noticed against IL meter, whereas, the consumption computed on connected load basis comes to 7290 Units per month against IP meter and 342 Units per month for IL meter. Therefore, Suit No.98/06/98 Page 4 of page 14 it is prayed by the defendant that the suit of the plaintiff be dismissed with heavy cost.
06. Plaintiff filed the replication, whereby he denied the facts as mentioned in the written statement and reaffirmed the averments as made in the plaint.
07. From the pleadings of the parties following issues were framed vide order dated 16.02.2000:
1. Whether plaintiff is entitled for the relief claimed ? OPP.
2. Whether at the time of inspection on 13.02.1997, plaintiff was found indulging in to theft and other irregularities ? OPP.
3. Relief.
08. Vide order dated 19.01.2010 an additional issue was framed as under :-
Issue No.(1)(A) Whether the plaintiff is entitled to the decree of declaration as prayed for ? OPP.
Issue No.1 was also re-constructed for clarification as :-
Whether the plaintiff is entitled to the decree of permanent and mandatory injunction as prayed for ? OPP.
09. In support of its case plaintiff examined Sh.Hari Om, Power of Attorney of plaintiff, as PW-1. On the other hand, defendant examined Sh.Sanjeev Vats, AG-III, AEPS (D), Vikaspuri as DW-1, Sh.B.P.Sood, XEN, CTS, BSES as DW-2, Sh.B.D.Arya, JE, Zone-1003, Distt.
Janakpuri, BSES RPL as DW-3 and DW-4, Sh.Surender Kumar, AE-III, AFO office, Vikas Puri, as DW-5
10. I have heard ld. Counsels for parties as well as perused the record and written submissions as filed on behalf of both the parties. My Suit No.98/06/98 Page 5 of page 14 issue wise findings are as under:-
Issue no. 1 (A) and 2 .
11. These issues are interlinked as such, taken up together. Onus to prove these issues was upon the plaintiff. Ld.Counsel for plaintiff argued that the demand made by defemdamt on alleged FAE, vide bill Ex.DW-5/1, on the basis of alleged inspection dated 13.02.1997 is null and void. Ld. Counsel for plaintiff further argued that plaintiff himself applied for enhancement of load from 10 HP to 40 HP as per scheme of the erstwhile DVB and deposited the requisite amount, but the defendant without enhancing the load, falsely raised the bill of FAE on the basis of alleged false inspection.
12. PW-1 Sh.Hariom, deposed that he is the power of attorney of Sh.Mehar Singh Gahlot and is fully conversant with the facts and circumstances of the case and proved the Power of Attorney as Ex.PW-1/1. PW-1 further deposed that they had applied for enhancement of load from 10 HP to 40 HP in the year 1996 and deposited a sum of Rs. 29,076/- on 19.01.1996 vide receipt Ex.PW-1/2 and a sum of Rs.5,075/- dated 02.02.1996 vide receipt Ex.PW-1/3, but, defendant did not conferred to enhance the load of the plaintiff. PW-1 further deposed that he received notice dated 25.03.1997 Ex.PW-1/4 and gave the reply dated 24.04.1997 Ex.PW-1/5 in which the defendant wrongly and illegally noted down the load of the plaintiff as 40.53 KW and 1.9 KW respectively. PW-1 further deposed that he had never indulged in any kind of theft of electricity and his connected load is within the sanctioned load and he never touched the seals of the meter and metering equipments at any point of times. In his cross examination PW-1 confirmed that he was using the supply in the year 1997 as well as on 13.02.1997 in the Suit No.98/06/98 Page 6 of page 14 capacity of M/s.Diamond Plast. To a specific question as put by ld. Counsel for defendant, PW-1 confirmed that the work was being done by the partnership firm in the name and style of M/s.Diamond Plast.
13. DW-1 Sh.Sanjeev Vats, confirmed in his cross examination that the load was enhanced when supply was restored under the order by the court. DW-2 Sh.D.P.Sood, who was member of the joint inspection team, deposed that connected load was found to 40.53 KW on IP and 1.9 KW on IL as mentioned in Ex.DW-2/1. DW-2 further deposed that no shunt capacitor was installed and a letter was issued on 25.03.1998 for granting personal hearing, but, consumer did not attend. In his cross examination, DW-2 deposed that they noted down the load from the plates of the machine, but not noted the make and year of manufacturing of the machine and they noted down the load of machine, where there is no plate by own experience. To a specific question, as put by ld. Counsel for plaintiff, DW-2 deposed that he does not know whether Mehar Singh is one of the partner of M/s.Diamond Plast and Ms.Amita Mahajan is a second partner. DW-3 and DW-4 Sh.B.D.Arya, JE, are one and same person, who confirmed in his cross examination that he has not checked the load personally as he was only assisting the joint team and he has also not checked the meter. DW-5 is Sh.Surender Kumar, who prepared the theft bill on the basis of inspection dated 13.02.1997.
14. The inspection report Ex.DW-2/1 and DW-2/2 on the basis of which, the theft bill Ex.DW-5/1 was raised, shows the following irregularities as observed by the joint inspection team:-
1. Excess connected load to the tune of 40.50 KW/IP and 1.90 KW/1L.
2. Misuse of supply by way of subletting, the user was found Suit No.98/06/98 Page 7 of page 14 M/s.Diamond Plast, Proprietor Sh.Hari Ram.
3. LPF-No shunt capacitor found installed at site.
4. Meter terminal cover found missing.
5. Half seals and rivets found fictitious of polyphase and single phase meter.
15. Now, the question arises whether on the basis of above irregularities, the defendant is justified in raising the bill Ex.DW-5/1 for FAE or not.
16. In an authority reported as 140 (2007) DELHI LAW TIMES 563, titled as J.K.Steelomelt (P) Ltd. Vs. BSES Rajdhani Power Ltd., it was held by Hon'ble High Court and I quote:-
"Merely because connected load is more than sanctioned load, cannot lead to automatic presumption that entire connected load is being used by consumer throughout period - impugned order holding petitioner guilty of DAE unsustainable in law and set aside - Demand raised in impugned bill quashed - Further directions issued."
17. In another authority reported as 140 (2007) DELHI LAW TIMES 257, titled as Col.R.K.Nayar (Retd.) Vs.BSES Rajdhani Power Ltd., it was held by Hon'ble High court and I quote:-
"Consumption pattern by itself cannot lead to inference of FAE, it would have to corroborate what is detected on physical examination - Accu check meter to detect if meter was recording lesser energy than it should, not done"
18. In another authority reported as 2011 (122) DRJ 613, titled as Shyam Bihari Singhal Vs. BSES Yamuna Power Ltd, it was held by Hon'ble High court and I quote:-
"Electricity Act, 1910, Section 39, - Unlawful abstraction of energy -
Suit No.98/06/98 Page 8 of page 14 discussed - Suit for Declaration and Permanent Injunction by the plaintiff who is a consumer of electricity of the defendant - Inspection by the officials of defendant found paper seals put on plaintiff's electricity meter uprooted - Higher load found than the sanctioned load by officials of defendant - Unlawful abstraction of energy raised and bill raised to the plaintiff by the defendant on that basis - No evidence of actual tampering with the meter or even removal of the meter seal found - No artificial or external device for abstraction of energy found installed at the time of inspection - No attempt to study consumption patter of plaintiff - Bill quashed and plaintiff on account of non- payment of bill or for some other reason - To establish that the actual consumption of electricity by the required to prove on the basis of some rationale and scientific formula that the amount of energy consumed by the plaintiff was without it being recorded in the meter."
19. In an authority reported as 140(2007) DLT 307, Jagdish Narayan Vs. North Delhi Power Limited & Anr., it was held by Hon'ble Justice Dr. S.Murlidhar and I quote:
" ...Para 32. While on the aspect of external evidence of "tampering" in the form of broken seals or tampered seals, this Court would like to observe that an inference of DAE should not be permitted to be drawn on the mere fact that a meter had been found with broken seals. It would be impermissible for the respondent to treat all categories of consumers on the same footing when it proceeds to taken action on a suspicion of DAE. Right now there is no secure measure to ensure that the electricity meters installed either in the basement of the building or on the ground floor near the staircase, are tamper-proof and outside the reach of any mischievous third party. It is one thing to require the Suit No.98/06/98 Page 9 of page 14 consumer to ensure that the meter is safe and secure. It is perhaps also necessary to ask if the supplier of electricity draws the attention of the consumer to such responsibility and insists that the consumer secures the meter with a lock with one duplicate key being handed over to the supplier. In an environment where it is not possible for a domestic consumer living in an apartment where the meter is installed in the basement or ground floor to constantly keep a watch on his meter, it would not be reasonable to draw inference of DAE merely on the discovery of some signs of 'tampering'. Regulation 25(iv) only goes a part of the way but does not fully appreciate the predicament of the consumer in such situations. Hopefully, the DERC and the supplier companies will work at improving the requirements for the consumers in this direction."
20. Adverting back to the facts of present case, none of the defendant witnesses have deposed that the meter seals were fictitious or that they compared the meter seals with the sample monograms or were sent to the laboratory to get opinion that the seals were fictitious or not. MTD report Ex.DW-2/2 itself shows that the raiding team found the meter disc moving in right direction on each phase. It is not the case of the defendant that meter was not working properly or there was any foreign device due to which, the meter was recording less energy than actually passing through it. Therefore, for the irregularities as observed vide inspection report Ex.DW-2/1 and Ex.DW-2/2, the demand of F.A.E. vide bill Ex.DW-5/1, is not justified.
21. Ld. counsel for plaintiff further drawn my attention in respect of an authority reported as 176 (2011) DLT 1 titled as Lalit Gulati Vs. Govt. of NCT of Delhi and judgment in WP(C) no.2206/2011 Suit No.98/06/98 Page 10 of page 14 titled as Rajender Prasad Vs.Govt. Of Delhi and Ors. and argued that as the bill Ex.DW-5/1 pertains to DVB period, the plaintiff is also entitled to the benefit of notification dated 16/19 May 2008, whereby, the dues pertaining to DVB period were waived off. Ld. counsel for defendant argued that defendant was not a party in the case relied upon by the ld.counsel for plaintiff and same is not applicable in respect of bills pertaining to FAE as the notification dated 16/18 May 2008 is in respect of sale of the electricity. In view of my findings that the bill Ex.DW-5/1 on the ground of FAE is not justified, the case of the plaintiff is also covered by the judgment of 176 (2011) DLT 1 (Supra).
22. The next contention of ld.counsel for defendant was that the relief of declaration is time barred as plaintiff filed the application u/o 6 rule 17 CPC was filed after a gap of approximately more than six years and as per section 3 of Limitation Act, the period of limitation qua relief of declaration is three years. On the other hand, ld. counsel for plaintiff argued that although the plaintiff amended his plaint, but in case of a bill which prima facie appears to be illegal, there is no need to seek the declaration to declare an illegal bill as illegal and the suit cannot be dismissed on the ground that declaration was not sought within limitation. Perusal of record shows that plaintiff filed the application u/o 6 rule 17 CPC, in view of law laid down by Hon'ble High Court in a case titled as Sarjivan Singh Vs. DVB, which was allowed by ld. Predecessor vide order dated 11.05.2009, and no appeal or revision was filed against that order. Now, the question arises that even if as per pleadings in the plaint, the impugned bill is prima facie illegal, still a simplicitor suit for injunction is not maintainable and plaintiff has to seek the relief of declaration or not ?
Suit No.98/06/98 Page 11 of page 14
23. In Sarjivan Singh Vs. DVB 110 2004 DLT 633, it was held as under and I quote:
"Para no.6 In the present cases the Defendant has raised electricity bills. There may be instances where on a bare perusal of the facts before the Court, either contained in the plaint or in the Written Statement, and the documents placed by the parties, the preponderant position is what is stated in the plaint. It is not expected of the Court to proceed on any other avenues. Let us assume that a bill is raised in respect of consumption for a particular period for which payment has already been made. Would it still be necessary for the Plaintiff to seek a declaration? The answer must be in the negative. Where, however, the plaint does not disclose facts which, prima facie, show the illegality of the demand, the mere filing of a Suit for injunction simplicitor cannot be used as a device to defeat or delay the liability thereby created."
24. In another authority reported as 145(2007)DLT 390, NDPL Rajdhani Power Ltd. Vs. Manoj Kumar the similar position was again considered and it was held as under and I quote:
"2. Counsel for the petitioner urged that the order of this Court, in Sarjiwan Singh V. Delhi Vidyut Board, 110 (2004) DLT 633 puts the case of the petitioner in an impregnable position. Its relevant para is reproduced as hereunder:
"7. In these circumstances the Order dated 25.09.1997 in Suit No.79 1/1997 does not disclose any error in the exercise of jurisdiction: CR No.1186/1997 is accordingly dismissed. Reference Nos. 1/1998, 2/1998 and 6/ 1998 are disposed of by holding that where a bill has been raised by the Electricity Department, which is prima facie legal, a Suit No.98/06/98 Page 12 of page 14 declaration must be prayed for to the effect that the bill is incorrect or illegal before the plaintiff can legally pray for an injunction against the recoveries made on the basis of such bills.".
3. It must be borne in mind that the stress is on prima facie legal bill. Similar view was taken in a recent case titled as North Delhi Power Limited v. Ganesh Aggarwal, CRP No.72/2006 dated 2nd November, 2006 passed by this Court. The Authority of Sarjiwan Singh Vs. Delhi Vidyut Board (supra) was considered and it was held that the only exception carved out in para 7 of the judgment (quoted above) is that the Court must be satisfied that the bill is prima facie legal."
25. Thus, the crux of above law settled by our own Hon'ble High Court is that where the bill raised by electricity department is prima facie legal, a declaration is required to be sought to the effect that bill is incorrect or illegal but, where the bill prima facie appears to be illegal, there is no need to seek the relief of declaration to declare that bill as illegal, therefore, the authorities as relied upon by ld.counsel for defendant are not helpful in the present facts and circumstances of the case. Accordingly, I find no force in the contention of ld. Counsel for defendant that suit of plaintiff is liable to be dismissed as the relief qua declaration of the impugned bill, which was allowed vide order dated 11.05.2009, is time barred, when from the pleadings itself the bill appears to be illegal. Accordingly, these issues are decided in favour of plaintiff and against the defendant.
Issue No.1.
26. Onus to prove this issue was upon the plaintiff. The plaintiff has prayed for decree of mandatory injunction to replace the electricity meter and to enhance the load of the plaintiff in respect of electricity Suit No.98/06/98 Page 13 of page 14 connection bearing K.No.1342118-IP installed in premises no.Pole no.91, Khasra No.665, Village Nawada, New Delhi, and for a decree of permanent injunction to restrain the defendant from disconnecting the electricity. DW-1 Sh.Sanjeev Vats, confirmed in his cross examination that the load was enhanced when supply was restored under the order of the court. Therefore, as the load has already been enhanced and supply was restored, no relief of mandatory injunction as prayed is required. In view of my findings on issue no.1 that bill Ex.DW-5/1 is unjustified, defendant is hereby restrained from disconnecting the electricity connection bearing K.No.1342118-IP installed in premises no.Pole no. 91, Khasra No.665, Village Nawada, New Delhi in respect of dues of bill Ex.DW-5/1. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
Relief.
27. In view of my findings on the above issues, the suit of plaintiff is decreed alongwith costs and a decree of permanent injunction is passed, restraining the defendant from disconnecting the electricity connection of the plaintiff through bearing K.No.1342118-IP installed in premises no.Pole no.91, Khasra No.665, Village Nawada, New Delhi, on the basis of bill Ex.DW-5/1. Payment, if any, deposited by plaintiff, in respect of bill Ex.DW-5/1, pursuant to order of the court shall be adjusted in future bills against the abovesaid connection of the plaintiff. Decree sheet be prepared accordingly. File be consigned to record room. Announced in open Court on 27.08.2011.
(S.K.MALHOTRA) SCJ/RC(NORTH)/DELHI.
Suit No.98/06/98 Page 14 of page 14