Delhi District Court
Sh.Ashok Kr Agarwal vs North Delhi Power Limited on 21 February, 2012
IN THE COURT OF MS.RUCHIKA SINGLA
CIVIL JUDGE-01(NORTH) : DELHI
Suit No. 178/2009
Unique ID No. 02401C0289322009
Sh.Ashok Kr Agarwal
S/o Sh.Khushi Ram,
F. No.611, G.F. Pocket -6,
Sector-2, Rohini,
Delhi
...... Plaintiff
Versus
North Delhi Power Limited
Through its CEO
Hudson Lines, Kingsway Camp,
Delhi-09
...... Defendant
Date of institution of suit : 03.11.2006
Date on which reserved for judgment : 19.01.2012
Date of Judgment : 21.02.2012
JUDGMENT:
1. This is a suit for declaration, mandatory injunction and permanent injunction.
2. Briefly stated, the facts of the case as alleged by the Plaintiff are as follows.
2.1. The Plaintiff is a registered consumer of electricity connection bearing K no.44100137606 installed at property no.F No.611, G.F., Pocket No.6, Sector-2, Rohini, Delhi with a sanctioned load of 1kw. 2.2. An inspection was alleged to have been carried out at the Plaintiff's premises on 07.11.2005, where it was alleged that a connected load of 1.404 kw was found. Though the supply as used for domestic Ashok Kr Aggarwal v. NDPL Suit No.178/2009 Page 1 of 11 purposes, it was alleged that the same was used for commercial purposes. It was alleged that the Plaintiff was indulged in Dishonest Abstraction of Energy (hereinafter referred to as DAE) by insulating incoming neutral of the meter with the help of insulation tape. It was further alleged that a switch was found fitted inside the premises to manipulate the recorded consumption by using another neutral. However, these allegations are baseless. No show cause notice was issued to the Plaintiff nor any personal hearing was given but a speaking order dated 30.11.2005, alleging that one Mr. Mithilesh Kumar had attended the personal hearing. The speaking order has also been passed in a mechanical manner and the same is not enforceable. The consumption pattern was also not studied. But the impugned bill of Rs.41,254/- was raised against the Plaintiff.
2.3 The Plaintiff filed a complaint against the Defendant before the Consumer Forum but the Forum held that it had no jurisdiction to try the same. Hence, the Plaintiff filed the present suit.
3.1. Summons of the suit have been served upon the Defendant. The Defendant prayed for dismissal of the suit stating the the Plaintiff had no locus standi to file the present suit as he is not the registered consumer of the same. However, the factum of the meter at the Plaintiff's premises is not denied. On 07.11.2005, the Defendant's joint team inspected the Plaintiff's premises where they found that the Plaintiff was using the connected load of 1.404 kw against the sanctioned load of 1kw. The Plaintiff was found indulged in DAE by insulating incoming neutral of the meter with the help of insulation tape. A switch was found fitted inside the premises to manipulate the recorded consumption by using another neutral. The supply was also found to be misused for industrial purposes. 3.2. On the basis of the inspection report, a show cause notice dated 07.11.2005 was pasted on the premises as the representative Ashok Kr Aggarwal v. NDPL Suit No.178/2009 Page 2 of 11 present refused to take the copy of the same. The consumer was called for personal hearing on 11.11.2005 and accordingly, one Sh.Mithilesh Kumar appeared at the personal hearing. He sought time to file the reply by 14.11.2005, which was allowed. However, he did not appear. The consumption pattern was also analyzed, which was found to be not uniform. On the basis of the inspection, the speaking order dated 30.11.2005 was passed and the impugned bill was raised. Hence, the bill is payable by the Plaintiff and it is prayed that the suit of the Plaintiff may be dismissed.
4. Replication to the Written Statement of the Defendant filed by the Plaintiff reiterating the facts as mentioned in the plaint and denying the averments made in the Written Statement. Thereafter, on the pleadings of the parties following issues were framed vide order dated 25.8.2008:
1. Whether the Plaintiff is entitled to a decree of declaration? OPP
2. Whether the Plaintiff is entitled to a decree of mandatory injunction?OPP
3. Whether the Plaintiff is entitled to a decree of permanent injunction?OPP
4. Whether the suit of the Plaintiff is not maintainable in view of Section 42(5) & (6) of Electricity Act?OPD
5. Whether the Plaintiff has no locus standi to file the present suit?OPD
6. Relief.
5. Thereafter, the matter was fixed for Plaintiff's evidence. The Plaintiff got himself examined as PW1 and exhibited the following documents :
Ex.PW1/1 Copy of the speaking order
Ex.PW1/2 Copy of the bill dated 26.8.2005
Ex.PW1/3 Copy of the bill dated 20.12.2005
Note: There is no document exhibited as Ex.PW1/4 as
mentioned in the affidavit.
Ashok Kr Aggarwal v. NDPL Suit No.178/2009 Page 3 of 11
6. Thereafter, the matter was fixed for Defendant's evidence. The Defendant got examined Sh.A.K.Jain, Sh.Satish Kumar Gupta and Sh.Sandeep Khurana as DW1, DW2 & DW3 and exhibited the following documents.
Ex.DW1/1 Speaking order Ex.DW2/1 Copy of the inspection report Ex.DW2/2 Copy of the joint inspection report Ex.DW2/4 Copy of the show cause notice Ex.DW3/1 Bill Mark A Photographs (colly)
7. Thereafter, the matter was fixed for final arguments. I have heard the arguments of the counsel for parties and have gone through the record carefully. My issue-wise findings are as follows.
Issue no.1 & 3 Whether the Plaintiff is entitled to a decree of declaration? OPP Whether the Plaintiff is entitled to a decree of permanent injunction?OPP
8. Onus to prove these issues was upon Plaintiff. As both the issues are interrelated, they shall be disposed off together.
9. It is the case of the Plaintiff that the Plaintiff is the consumer of the electricity connection K no.44100137606 installed at property no.F No. 611, G.F., Pocket No.6, Sector-2, Rohini, Delhi. Further, it is the case of the Plaintiff that the Defendant allegedly carried out an inspection at the Plaintiff's premises on 07.11.2005 alleging that the connected load was more than sanctioned load and that the supply was being misused. On the basis of these allegations, the Defendant raised a bill for the month of August 2005 for Rs.41,254/-. No show cause notice or personal hearing was afforded to the Plaintiff and hence, it is alleged that the present bill is not payable by the Plaintiff. It is also averred that the consumption pattern Ashok Kr Aggarwal v. NDPL Suit No.178/2009 Page 4 of 11 of the Plaintiff is uniform and more than 100%. Hence, on this basis also, it is clear that the Plaintiff was never indulged in theft of energy.
10. The counsel for Defendant has argued that the inspection was conducted by the Defendant's official on the Plaintiff's premises on 07.11.2005 where they allegedly found the following discrepancies:
1. The connected load was found to be 1.404kw against the sanctioned load of 1kw.
2. The user was found indulged in DAE by insulating incoming neutral of the meter with the help of insulation tape.
3. A switch was found fitted inside the premises to manipulate the recorded consumption by using another neutral.
4. The supply was being consumed for IP purposes while the connection was commercial.
11. In view of the same, it is alleged that a show cause notice dated 07.11.2005 was issued to the Plaintiff. Further, it is submitted that the representative of the Plaintiff who was available at the spot refused to accept the same. Hence, the show cause notice was pasted on the wall of the Plaintiff's premises. It is also alleged that one Sh. Mithilesh Kumar alleging himself to be the owner of the property appeared at the personal hearing and sought time to file the reply but he did not appear later on.
The consumption pattern was also analyzed and it was found that the same was not uniform. Thereafter, the impugned bill was raised by passing a speaking order. In view of the above submissions, it is argued that the present bill is payable by the Plaintiff.
12. Firstly, the court must examine that whether the Plaintiff was involved in theft of energy as on the date of inspection or not. It is alleged by the Defendant that as on the date of inspection the following discrepancies were found:
1. The connected load was found to be 1.404kw against the sanctioned load of 1kw.Ashok Kr Aggarwal v. NDPL Suit No.178/2009 Page 5 of 11
2. The user was found indulged in DAE by insulating incoming neutral of the meter with the help of insulation tape.
3. A switch was found fitted inside the premises to manipulate the recorded consumption by using another neutral.
4. The supply was being consumed for IP purposes while the connection was commercial.
13. Reference to the law in this regard is essential. It has been held in a number of cases that merely because the connected load is more than the sanctioned load, it does not by itself constitute a case of theft. It is held that artificial means or foreign material must be found. Counsel for Plaintiff has referred to the cross-examination of DW2 who was one of the members of the inspecting team. In his cross-examination, the witness stated that "it is correct that no artificial means in the meter was found at the time of inspection". It is argued that in view of this admission, no case of DAE can be booked against the Plaintiff. Counsel for Plaintiff has relied upon the judgment of Hon'ble Supreme Court "Jagannath Singh v. Ramaswamy, (1966) 1 SCR 683; Ram Chandra v. State of Bihar, 1967 CriLJ 409 and J.K. Steelomelt (P) Ltd. v. BSES Rajdhani Power Ltd. MANU/DE/7684/2007" that to bring home a case of DAE, some artificial means must be found. Other judgments of the Hon'ble High Court of Delhi in "Col. R.K. Nayar v. BSES RPL, (140) 2007 DLT 257; Udham Singh v. BRPL 136 (2007) DLT 500; Jagdish Narayan v. NDPL 140(2007) DLT 307; Bhasin Motors (I) P. Ltd. v. N.D.P.L. 142 (2007) DLT 116; Inderjit Singh v. NDPL in WP (C) no. 6585/2007 and Shyam Bihari Singhal v. BSES YPL in CS (OS) no. 1459/2006" have also been relied upon, where it has been held that mere tampering of seals does not make out a case of DAE.
14. However, in the opinion of the court, this is not suffice. At the time of inspection, the inspecting officials found that the user was found Ashok Kr Aggarwal v. NDPL Suit No.178/2009 Page 6 of 11 indulged in DAE by insulating an incoming neutral of the meter with the help of insulation tape and that a switch was found fitted inside the premises to manipulate the recorded consumption by using another neutral. Artificial means in the meter would refer to all such materials which are foreign to the meter. It is alleged by the Defendant that the insulation tape found in the wire of the meter is foreign substance. Counsel for Plaintiff has alleged that the seals of the meter were found intact and OK and hence, without tampering of the seals, the meter cannot be manipulated. Even if the same is deemed to be correct, the existence of the switch fitted in the premises of the Plaintiff to manipulate the recording cannot be ignored. Presence of such a switch clearly shows that there was an attempt to manipulate the recording of the meter. In the opinion of the court, the use of the insulation tape for insulation of the neutral as well as the presence of the switch inside the premises infer use of artificial means to manipulate the meter.
15. The counsel for Plaintiff has argued that the consumption pattern is consistent and hence the case of theft cannot be booked. However, it has been held that the analysis of consumption pattern is not conclusive or substantive proof. It can merely substantiate the physical evidence. Hence, even if the consumption pattern was within limits, it does not mean that theft cannot be committed. In the opinion of the court, the Plaintiff was indulged in DAE as on the date of inspection.
16. Further, counsel for Plaintiff has argued that the impugned bill which has been raised has been raised imposing two penalties. One for DAE and one for alleged misuse of supply. It is stated that the supply was not being misused and hence, the penalty is not payable by the Plaintiff.
17. The Defendant has argued that the connection was Ashok Kr Aggarwal v. NDPL Suit No.178/2009 Page 7 of 11 commercial and nature of the supply was being used for IP purposes. The counsel for Defendant has relied upon the testimony of PW1. In his cross examination, PW1 admitted that there was a machine which was being used at the suit premises, called a interlock machine. Further, it was admitted that the interlock machine was working since 2 months prior to the date of the alleged inspection. In view of the same, it is clear that the supply was being used for IP purposes and hence, misuse penalty is payable by the Plaintiff.
18. The counsel for Plaintiff has submitted that even if the same is correct the Defendant can levy only one penalty at a time i.e. the penalties for both the misuse and DAE could not be levied at the same time. Counsel for Plaintiff has relied upon the office order of the Defendant bearing no.IC-CCO/D07/10 dated 24.8.2007 in this respect. I have perused the office order. The impugned inspection was carried out on 07.11.2005. As per this office order, in the cases detected before 15.6.2007, the Defendant can impose the penalty for both the misuse and theft.
19. The counsel for Plaintiff also argued that at the relevant time, as per the policy of the Defendant, if the supply was misused for a purpose which had a higher tariff than the sanctioned purpose, then the misuse penalty could not be levied. It is argued that in those circumstances, the higher tariff would be payable. This aspect has also been covered vide this office order. As pointed out by the counsel for Plaintiff, in case the consumer is paying higher tariff, then the usage of the connection for other purposes then the sanctioned purposes shall not be termed as misuse. However, it is clarified in the office order that this provision shall apply only to cases which were detected on or after issuance of this order. The office order is dated 24.8.2007. Hence, this Ashok Kr Aggarwal v. NDPL Suit No.178/2009 Page 8 of 11 provision does not apply to the present case as the misuse was detected before the issuing of this office order. In view of the same, the penalty of the misuse is payable.
20. However, in the facts and circumstances of the present case, the bill is liable to be set aside as the principles of natural justice have not been followed in the present case. Admittedly, the Plaintiff was not present at site during the course of inspection. The Defendant has alleged that certain representatives of the Plaintiff were present. It is also alleged that the representative so present refused to accept the show cause and hence, the same was pasted on the Plaintiff's premises. However, this fact has not been proved by the Defendant. There is nothing on record to show that the Plaintiff was served with show cause notice. Hence, the bill is liable to be set aside. Hence, these issues are disposed off accordingly.
Issue no.2 Whether the Plaintiff is entitled to a decree of mandatory injunction?OPP
21. Onus to prove this issue was upon Plaintiff.
22. The Plaintiff has sought relief of mandatory injunction and that the Defendant may be directed to transfer the connection in the Plaintiff's name. However, the Plaintiff has not placed on record anything to show that it had applied with the Defendant for such name change and the Defendant had not taken any action against the same. Hence, the Plaintiff is not entitled to the present relief. However, he shall be at liberty to take appropriate steps with the Defendant in this regard. Hence, this issue is disposed off accordingly.
Issue no.4 Whether the suit of the Plaintiff is not maintainable in view of Section 42(5) Ashok Kr Aggarwal v. NDPL Suit No.178/2009 Page 9 of 11 & (6) of Electricity Act?OPD
23. Onus to prove this issue was upon Defendant.
24. The Defendant in its WS has taken an objection that the present suit is barred by Section 42(5) & (6) of the Electricity Act. However, during the course of the arguments, the counsel for Defendant submitted that the objection was taken inadvertently and that he does not press upon the same. Hence, this issue has become redundant. The same is disposed off accordingly.
Issue no.5 Whether the Plaintiff has no locus standi to file the present suit?OPD
25. Onus to prove this issue was upon Defendant.
26. The Defendant has taken the objection that the present suit is not maintainable as the Plaintiff does not have the locus standi to file the present suit as he is not the registered consumer of the electricity connection. However, the court does not agree. The connection is being used by the Plaintiff, the bill has been raised upon the Plaintiff and the Plaintiff shall be adversely affected if the electricity connection is disconnected. Moreover, the same has also been held in Virender Kr Jain v. MCD MANU/DE/ 8200/2007 by the Hon'ble High Court of Delhi. In view of the same, this issue is decided in favour of the Plaintiff.
Relief In view of the above discussion, the suit of the Plaintiff is decreed. The impugned bill is declared as null and void. The Defendant is directed to restrained from disconnecting the electricity supply of the Ashok Kr Aggarwal v. NDPL Suit No.178/2009 Page 10 of 11 Plaintiff's connection K no.44100137606 installed at property Shop no.F. No.611, G.F., Pocket No.6, Sector-2, Rohini, Delhi for the non payment of this bill. Any amount paid by the Plaintiff in respect of the impugned bill shall be liable to be adjusted or refunded to the Plaintiff with simple interest @ 9% p.a. from the date of deposit till realization. However, the Defendant shall be at liberty to initiate appropriate action against the Plaintiff as per law.
No order as to costs.
Decree-sheet be prepared accordingly.
File be consigned to record room.
Announced in the Open Court [RUCHIKA SINGLA]
Today on 21.02.2012 CIVIL JUDGE-01 (NORTH)
DELHI
Certified that this judgment contains 11 number of pages and all pages are signed by me.
[RUCHIKA SINGLA]
CIVIL JUDGE-01 (NORTH)
DELHI
Ashok Kr Aggarwal v. NDPL Suit No.178/2009 Page 11 of 11
Suit No.178/2009
21.02.2012
Present : None
Vide separate judgment of even date, the suit of Plaintiff is decreed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
[RUCHIKA SINGLA] CIVIL JUDGE01 (NORTH) DELHI Ashok Kr Aggarwal v. NDPL Suit No.178/2009 Page 12 of 11