Delhi District Court
Rakesh Kumar vs Bses Rajdhani Power Ltd. on 20 January, 2023
In The Court Of Ms. Paridhi Sharma, Administrative Civil Judge
cumCommercial Cases JudgecumAdditional Rent Controller,
South West District, Dwarka Courts, Delhi.
CNR No. : DLSW03000017642018
Rakesh Kumar versus BSES Rajdhani Power Ltd.
a) Civil Suit No. : 1651/2018
b) Name & address of the : Rakesh Kumar,
plaintiff S/o Late Nawal Singh Arya,
R/o RZ4, XBlock, New
Roshanpura, Najafgarh,
New Delhi110043.
c) Name & address of the : BSES Rajdhani Power
defendant Ltd., Through its Manager,
BSES Bhawan, Nehru
Place, New Delhi110019.
Date of Institution : 24.10.2017
Judgment pronounced on : 20.01.2023
Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 1/31
SUIT FOR DECLARATION, PERMANENT & MANDATORY
INJUNCTION
JUDGEMENT
1. Vide this judgment, I shall dispose of the instant civil suit filed by Rakesh Kumar (hereinafter referred to as "plaintiff") against BSES Rajdhani Power Limited (hereinafter referred to as "defendant company") for declaration, permanent and mandatory injunction.
2. Plaint: It is stated in the plaint that the plaintiff runs a public school in the name and style of Arya Kumar Convent School located in Durga Vihar, PhaseI, Najafgarh, New Delhi 110043 (hereinafter referred to as "premises in question"). It is averred that two nondomestic electric meters bearing numbers 21409623 and 40086923 are installed in the premises in question. It is averred that while, the first meter is installed in the name of the mother of the plaintiff, the other is in the name of the plaintiff himself. The plaintiff has stated that he applied for a new connection in his favour so that the load of the premises can be distributed and hence, electric meter bearing no. 40086923 was installed by the defendant company on 22.08.2015.
Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 2/313. It is further stated in the plaint that the plaintiff regularly pays the amount in respect of the bills raised by the defendant company. It is asserted that on 02.11.2016, the plaintiff became aware of the fact that there was a sparking in the meter registered in the name of the plaintiff's mother. The plaintiff allegedly reported the incident to the defendant company. It is averred that the officials of the defendant company visited the premises of the plaintiff and removed the burnt meter in the presence of the plaintiff on 05.11.2016 assuring the plaintiff that a new meter will be provided within a week. The defendant company provided a new meter to the plaintiff as promised.
4. The plaintiff has alleged that on 19.12.2016 at about 01:10 PM, the officials of the defendant company visited the premises of the plaintiff and inspected the same. It is averred that the officials of the defendant company videographed the premises of the plaintiff and raised a false and frivolous bill no. HNENR250120170049A0 dated 25.01.2017 amounting to Rs. 1,95,414/ alleging that the plaintiff has committed theft of electricity. On receipt of the same, the plaintiff approached the Enforcement Department and put forth his grievance but no heed was paid thereto by the defendant company.
5. It is further stated in the plaint that on 16.03.2017, the plaintiff filed a written complaint to the DGM, Enforcement Cell, Hari Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 3/31 Nagar, New Delhi. However, no action was taken thereon. The plaintiff has alleged that the defendant company failed to comply with the mandatory requirements as provided under The Delhi Electricity Act and hence, the bill in question, raised by the defendant company, is invalid, unlawful and unenforceable. The plaintiff has also alleged that the inspection report prepared by the officials of the defendant is arbitrary. The plaintiff has further contended that the officials of the defendant company threatened the plaintiff that they will disconnect the electricity supply in the premises in question in case the plaintiff fails to pay the outstanding dues in respect of the bill in question. Aggrieved thereby, the plaintiff has approached this court with the instant suit seeking a decree of declaration, permanent and mandatory injunction.
6. Relief sought: The following reliefs have been sought by the plaintiff in the instant suit:
i) pass a decree of declaration in favour of the plaintiff and against the defendant, thereby, declaring that the bills for theft of electricity bearing No. HNENR250120170049A0 dated 25.01.2017 of Rs.
1,95,414/ (One Lakh Ninety Five Thousand Four Hundred Fourteen Rupees Only) issued by the defendant in respect of the electricity connection bearing K. No. 21409623 installed in the property bearing Kh. No. 404, 405 & 398, Durga Vihar, Ph1, Bengali Painter Wali Gali, Najafgarh, New Delhi Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 4/31 110043 amount to Rs. 1,95,414/ is illegal, unlawful and not enforceable in the eyes of law.
ii) pass a decree of mandatory injunction in favour of the plaintiff and against the defendant, thereby, directing the defendant not to disconnect the electricity supply of electricity connection bearing K. No. 21409623 installed in the property bearing Kh. No. 404, 405 & 398, Durga Vihar, Ph1, Bengali Painter Wali Gali, Najafgarh, New Delhi110043 with immediate effect.
iii) pass a decree of permanent injunction in favour of the plaintiff and against the defendant, thereby, restraining the defendant, its agents, employees, associates, workers, officers/officials and the person working on its behalf from further disconnecting the electricity supply of electricity connection bearing K. No. 21409623 installed in the property bearing Kh. No. 404, 405 & 398, Durga Vihar, Ph1, Bengali Painter Wali Gali, Najafgarh, New Delhi110043 on the basis of the alleged bill amounting to Rs. 1,95,414/ in any manner whatsoever, in the interest of justice.
iv) Cost of the suit/proceedings be also awarded in favour of the plaintiff and against the defendant.
v) Any other or further order as this court may deem fit and proper in view of the above facts and in the interest of justice.
Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 5/317. Written Statement: The defendant company filed written statement wherein it is stated that as per the record maintained, single phase electric meter bearing no. 21409623 was installed against customer application no. 150348122 at the premises in question and that the same meter was replaced with a meter bearing no. 40512935 by Meter Management Group (MMG) on 05.11.2016 as the old meter was found in suspected burnt condition. The defendant company has contended that vide the same notice, plaintiff was informed to join the testing of the burnt meter on 15.11.2016 and that necessary photographs of the burnt meter were captured in the premises in question.
8. The defendant company has further stated that the meter was abnormally burnt and was removed. It is averred that the same was seized and was sent to NABL laboratory in a sealed condition. The defendant company has asserted that the plaintiff was duly informed about the testing and removing of the meter vide notice bearing no. 360528 in order to ensure his presence. It is alleged that the plaintiff acknowledged the receipt of the same. The meter was tested in the laboratory on 01.12.2016 and the test/analysis report bearing no. BR161200048 dated 01.12.2016 revealed that the hologram seals were burnt and the LCD of the meter was not found okay. The defendant has contended that the NABL report concluded and declared that the meter was abnormally burnt and that after such revelations, the premises in question was Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 6/31 inspected on 19.12.2016 as per the mandatory requirement in order to assess the connected load.
9. The defendant has alleged that the security guard stationed in the premises in question did not allow the enforcement team to assess the connected load of the premises. It is averred that necessary videos of the resistance were captured by M/s Arora Photo Studio. It is further stated that the inspection report, meter detail report, load report in the form of assessment of connected load and seizure memo bearing no. BRIROB210743 dated 19.12.2016 were prepared at the site and were offered to the representatives of the plaintiff who disdained to receive and sign the same. Resultantly, the documents were conveyed to the plaintiff via speed post.
10. The defendant has asserted that a show cause notice dated 26.12.2016 was issued to the plaintiff for theft of electricity/meter tampering with a request to file the reply by 02.01.2017 and to personally attend the proceedings on 10.01.2017. The defendant has alleged that however, no response was received from the plaintiff and consequently, a final notice dated 11.01.2017 was issued to the plaintiff which also met the same fate. The defendant has alleged that the meter was found abnormally burnt and the consumption was found eccentric as the average monthly consumption from 23.11.2016 to 24.08.2016 was toning to 103 units Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 7/31 with the recorded consumption whereas the consumption from 22.10.2014 to 24.08.2015 was toning to 246 units per month. It is further alleged that after the meter replacement, the consumption was found exponential at a radical level and hence, a speaking order dated 19.01.2017 was passed by the Assessing Officer laying down the aforesaid observations and the conclusion that intentional burning of the meter in order to tamper with the evidence had taken place. The defendant has contended that accordingly, an assessment bill for theft dated 25.01.2017 was raised against the plaintiff. The defendant company has denied all the averments put forth in the plaint. With these contentions, the defendant company has sought dismissal of the suit.
11. Issues framed: The court framed issues vide order dated 19.11.2018 which are as follows:
(i) Whether the impugned invoice dated 25.01.2017 of Rs.
1,95,414/ in respect of electricity connection bearing K. no. 21409623 installed at property bearing khasra no. 404, 405 & 392, Durga Vihar, Phase1, Bengali Painter Wali Gali, Najafgarh, New Delhi43 has been raised by defendant as per the applicable rules and regulations in respect of assessment of burnt meter? (OPD).
(ii) What are the reasons for burning of the electricity meter against the said electricity? (Onus on both the parties).
Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 8/31(iii) Whether the plaintiff is entitled to the decree of declaration in respect of bill dated 25.01.2017 of Rs. 1,95,414/ as illegal, unlawful and not legally enforceable in his favour and against the defendant? (OPP)
(iv) Whether the plaintiff is entitled to decree of permanent and mandatory injunction directing the defendant not to disconnect the electricity supply in respect of electricity connection bearing K no. 21409623 on the basis of impugned bill dated 25.01.2017? (OPP)
(v) Relief.
12. Evidence adduced by the plaintiff: Plaintiff got himself examined as PW1 and tendered his evidence by way of an affidavit which is Ex. PW1/A. The plaintiff relied on the following documents which are marked as Mark A to F.
13. PW1 was subjected to crossexamination wherein he inter alia testified that the premises in question on which the school is being run is in the name of his late mother. The plaintiff avouched that at present, there are two meters installed in the said premises, one of which is in the name of his deceased mother and that he is the registered owner of the other meter. The plaintiff clarified that meter no. 21409623 is in the name of his deceased mother and meter no. 40086923 is registered in his name.
Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 9/3114. The plaintiff avowed that he did not remember the exact date when representative of BSES had first visited the school for inspection of the burnt meter. The plaintiff admitted that the burnt meter was in the name of his deceased mother. The plaintiff deposed that he did not remember the exact date when the new meter was installed in the premises in question after the first meter was burnt. The plaintiff stated that he did not receive any notice from BSES to attend the proceedings of the lab testing of the burnt meter. The plaintiff testified that he received a show cause notice from the Assessing Officer for attending personal hearing after receipt of lab report by BSES. The plaintiff claimed that he had attended the office of the Assessing Officer in pursuance to the said notice.
15. The plaintiff further avouched that he can produce the bill pertaining to the month of August, 2015 in respect of the burnt meter, however, he added that he did not remember the bill amount. The plaintiff testified that he did not remember the bill amount in respect of the bill for the month of August, 2016 or for the month of December, 2016. The plaintiff denied the suggestion that he had deliberately burnt the meter and that the impugned bill was raised by the Assessing Officer after passing a speaking order on the basis of the lab report and other relevant material.
16. Defence evidence: Defendant company called and examined three witnesses to support its claims. All three witnesses Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 10/31 were subjected to crossexamination by the plaintiff. Their repsective testimonies are discussed hereinbelow.
17. Testimony of DW1, Mohit Awasthi: The said witness tendered his evidence by way of an affidavit which is Ex. DW1/1A. He relied on documents which are Ex. DW1/1A (colly) and Ex. DW 1/C. When subjected to crossexamination, DW1 inter alia testified that he had reported the fact that the meter was abnormally burnt since it was completely burnt from the backside. The witness added that though, the meter normally melts in case it catches fire, it does not completely burn. DW1 avouched that he has not mentioned the aforesaid detailed reasons in his test report. He denied the suggestion that he has not mentioned the same as the meter was not abnormally burnt.
18. DW1 avouched that they can ascertain that the meter was burnt due to sparking since it only melts at the point of terminal and is not completely burnt. DW1 stated that he cannot say whether there is any authoritative text regarding the aforesaid assessment. DW1 deposed that he had not clicked the photographs of the burnt meter on the spot. He voluntarily stated that he had clicked the photographs in his lab before he had started examining the meter. He denied the suggestion that photographs, Ex. DW1/A (colly) are manipulated.
Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 11/3119. DW1 further avouched that the meter in question was received by him from the MMG Department along with a forwarding letter. The witness testified that he has not annexed the forwarding letter along with his evidence by way of an affidavit. DW1 denied the suggestion that report, Ex. DW1/C is false and fabricated and that the same has been prepared by him without authorisation.
20. Testimony of DW2, Rahul Kaushik: The said witness tendered his evidence by way of an affidavit which is Ex. DW2/1 and relied on documents which are Ex. DW2/A to Ex. DW 2/F. During his crossexamination, the witness inter alia testified that he is working as Assistant Manager in Enforcement Department of the defendant company. DW2 avouched that he cannot produce the order from his superior to inspect the premises in question. DW2 voluntarily stated that he had visited the premises in question as per the verbal direction of the DGM who had handed over the copy of lab report to him.
21. DW2 avowed that there were a total of four persons in their team including himself as well as the driver who had visited the premises in question for inspection. DW2 stated that local police had not accompanied them. He denied the suggestion that he is not able to produce the order from his superior for inspection since he had visited the premises in question without any authorisation. He also denied the suggestion that he had visited the premises along Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 12/31 with his team members illegally. The witness admitted that the meter of which inspection was carried out by him was installed inside a room. DW2 claimed that videographer had also accompanied them. He stated that he did not know the name of the videographer and added that however, he was from Arora Agency. DW2 affirmed that he had instructed the videographer before entering into the premises to carry out the videography. DW2 stated that videography was not done by the videographer from the point of their entry into the premises till the time of their exit therefrom. The witness voluntarily clarified that he had stopped the videography on his own intermittently as and when there was resistance.
22. When recalled for further crossexamination, DW2 inter alia deposed that it is correct that at the time of the raid, the school was running. He also admitted that the meter shown in the CD is not burnt and that the same is in burning condition. DW2 avouched that he did not know who is removing the electric cable from the main supply shown in the CD dated 21.03.2017. DW2 asserted that CD placed on record was made by the videographer. He also admitted that sanctioned load and connected load are the same as per the summary sheet of the case. Upon being quizzed about any obstruction which was created during the inspection, the witness answered in the affirmative and testified that security guard/user present at the spot had created obstructions.
Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 13/3123. DW2 further avouched that the act of obstruction was covered in the CD prepared at the spot. He denied the suggestion that neither the security guard nor any official of the school had created obstructions while the premises in question was raided and which is why, the same was not recorded. DW2 reiterated that no police official was accompanying their team at the time of the raid. He avouched that he had not given any request to local police station for any assistance during the raid. DW2 admitted that neither he nor any official of the inspecting team had made a PCR call in regard to the obstruction created during the inspection. He denied the suggestion that no PCR call was made as no obstruction was created.
24. DW2 affirmed that the documents annexed with the written statement were prepared by him while sitting in the official car along with the other officials of their team. He denied the suggestion that the said documents were not prepared at the spot and therefore, same were not recorded. DW2 testified that the enforcement inspection documents (04 pages) were presented to the user. The witness clarified that full form of SDAE is "Suspected Dishonest Abstraction of Electricity". DW2 deposed that the raid was conducted because BSES suspected a case of SDAE on the basis of lab report which has been annexed with the documents. He testified that before conducting the inspection, lab report was shown to the user, namely, Arender. He stated that the entire raid was videographed but again stated that when the user obstructed, some Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 14/31 parts of the raid could not be videographed. Lastly, the witness denied various suggestions put to him.
25. Testimony of DW3, Vinod Kumar: The said witness tendered his evidence by way of an affidavit which is Ex. DW3/A and relied on documents which are Ex. DW3/A, DW3/B and DW 3/F. When subjected to crossexamination, DW3 avouched that he had given show cause notice to the plaintiff at the address of the plaintiff/user as per the guidelines of DERC Supply Code, 2007. He stated that he has not filed the said guidelines on record along with written statement. DW3 claimed that the show cause notice bears his signature.
26. DW3 further testified that it is correct that the connected load, that is, 5/nondomestic (LT) was cut by him. He denied the suggestion that the said connected load column had been cut by him to file a false and fabricated case against the user. DW3 deposed that he has not received any document in regard to SDAE case from any of his departments. He voluntarily clarified that he had received the lab report prepared by Lab Testing Department. DW3 affirmed that he used to assess the last one year consumption for CA no. 150348122 received from the Lab Testing Department. He again stated that he used to assess old meter consumption history as well as the new meter consumption history. The witness stated that he had issued two show cause notices and that he has Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 15/31 not mentioned the new and old meter consumption history in the said notices.
27. Final Arguments: Final arguments were not heard on behalf of the plaintiff as despite grant of several opportunities, the plaintiff failed to advance the same. Learned counsel for the defendant navigated the attention of the court to the facts of the present case and the evidence adduced to support the claims put forth by the defendant company. Learned counsel emphasized the fact that the overwhelming documentary evidence filed on behalf of the defendant company duly substantiates its defence. Learned counsel relied on the lab report to support the claim that the meter was abnormally burnt and was tampered with by the plaintiff which resulted in raising of the impugned bill. Learned counsel contended that there is no illegality in the entire procedure which was adopted by the officials of the defendant company which led to the passing of the speaking order. In light of the said arguments, learned counsel submitted that the plaintiff has failed to cause the preponderance of probabilities to lie in his favour. Accordingly, the suit of the plaintiff be dismissed.
28. Appreciation of evidence and reasons for decision:
I have heard learned counsel for the defendant company, perused the material placed on record and considered the submissions advanced.Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 16/31
29. Taking the cumulative view of the facts expounded, the evidence spelt out and the arguments advanced, it becomes incumbent on this court to assay the law on the point of discharge of onus to prove and the axiom of the standard of proof in a civil dispute. A civil controversy is to be adjudged on the premise of preponderance of probabilities and the plaintiff, in order to render himself entitled to a decree in his favour, must discharge his burden to prove the fact which he asserts. That said, let us scrutinise the potentiality of the claims put forth by the plaintiff. Issuewise findings are as under:
(i) Whether the impugned invoice dated 25.01.2017 of Rs. 1,95,414/ in respect of electricity connection bearing K. no.
21409623 installed at property bearing khasra no. 404, 405 & 392, Durga Vihar, Phase1, Bengali Painter Wali Gali, Najafgarh, New Delhi43 has been raised by defendant as per the applicable rules and regulations in respect of assessment of burnt meter?
30. The onus to prove the said issue rested on the defendant. It is the case of the plaintiff that he is the consumer of a nondomestic electric meter which is installed in a public school. On 02.11.2016, the plaintiff became aware of the fact that sparking occurred in the said meter owing to which the meter got burnt. The plaintiff immediately reported the matter to the office of the defendant company who in turn, removed the meter and installed a Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 17/31 new one. The officials of the defendant company inspected the premises of the plaintiff and thereafter, sent the burnt meter for analysis to the Enforcement Department which concluded that the meter was abnormally burnt. The defendant, after assessment, raised a bill dated 25.01.2017 against the plaintiff amounting to Rs. 1,95,414/ on the pretext that the plaintiff committed theft of electricity. Conversely, the defendant company has pleaded that the meter was abnormally burnt and the report of NABL laboratory was considered and a speaking order was passed by the Assessing Officer on 19.01.2017 wherein it is stated that the meter was burnt intentionally in order to tamper with the evidence and conceal the factum of theft of electricity.
31. In order to substantiate the claims, the defendant company filed the inspection report which is Ex. DW2/B, various show cause notices issued to the plaintiff which are Ex. DW3/B, the speaking order which is Ex. DW3/F and lab report which is Ex. DW 1/C. As far as the inspection of the premises in question is concerned, the same was conducted on 19.12.2016 at 01:10 PM as per Ex. DW2/B. DW2, during his crossexamination, avouched that there were a total of four persons in their team including himself who had visited the premises in question for inspection. However, the inspection report referred to above divulges that the same has been signed by only three individuals. There is no reason brimming from the record as to why the fourth person, accompanying the team, did not sign the inspection report.
Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 18/3132. Further, at this stage, it is imperative to highlight the rules and regulations pertaining to inspection of premises by enforcement team when there is a suspected case of theft of electricity. Regulation 52(ix) of Delhi Electricity Supply Code and Performance Standards envisages that the inspection report shall be signed by the authorised officer and each member of the inspection team. It further provides that the same shall be handed over to the consumer or his or her representative at the site immediately under proper receipt. In the contingency where the consumer/his representative refuses to accept the report, the same shall be pasted at a conspicuous place in the premises in question and shall be photographed. Lastly, the regulation mandates that the said report, in such eventuality, shall be sent by registered post to the consumer.
33. The plain reading of the aforementioned regulation reveals that the said regulation envisages mandatory compliances. At the cost of repetition, the inspection report is not signed by all the persons who were part of the inspection team who had conducted the inspection of the premises in question. Further, there is no shred of evidence adduced on behalf of the defendant company that when the representative of the plaintiff refused to accept and sign the report, the same was affixed at some conspicuous part of the site in question. No photograph, as is mandatorily required to be captured of such affixation, has also not been placed on record. In fact, there is no pleading to the effect in the written statement filed by the defendant company that such mandatory requirement was complied Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 19/31 with. There is also no evidence on record to show or suggest that the copy of the inspection report was sent to the plaintiff via registered post. None of the witnesses examined by the defendant company produced the acknowledgement card/postal receipts in respect of the documents which were allegedly sent via speed post to the plaintiff. In the absence of such evidence, it can be said that the mandatory requirements of regulation 52(ix) were violated by the inspection team during the alleged inspection of the premises in question.
34. Additionally, the inspection team did not involve any public person or an independent witness while the inspection was being conducted. The inspection team could have invited the neighbours to join the inspection proceedings as independent witnesses. No effort was made by the inspection team to join public persons in the alleged inspection for the purposes of transparency. The revelation of this fact also causes dubiety to lurk around the alleged inspection conducted by the enforcement team.
35. The defendant ambitiously relied on a CD placed on record which is Ex. DW2/A to reinforce the fact that inspection was carried out at the premises in question and that resistance was offered by the representative of the plaintiff while the same was being conducted. In view of the constraints of the law, argument of Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 20/31 learned counsel and reliance placed on the CD cannot be accepted for the reasons given hereafter.
36. Pertinently and admittedly, an unnamed videographer recorded the inspection proceedings at the site in question which was subsequently copied to the CD which is placed on record. Thus, the witnesses examined by the defendants are not the maker of the video or the contents of the CD. The defendant company did not call and examine the author of the abovementioned recording and CD and hence, the very admissibility of the CD, which is Ex. DW2/A, is questionable. It was incumbent upon the maker of the CD to take the witness stand and go through the rigours of crossexamination.
37. Hon'ble Parent High Court observed the same in a judgement pronounced in H C Lekh Raj (8090/DAP) v. Govt. of NCT of Delhi OA No. 2387/2008. It was held in the said case that:
"CD is not to be treated as a document unless the maker of it is examined and this has not been proved either by primary or secondary evidence. The decision of the Apex Court in Ram Pal Singh Bisen (supra) clearly mentions such evidence as not admissible even in disciplinary proceedings".Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 21/31
38. Similarly, in James Eazy Franky v. DRI, CRL. A.No. 372/2009, Hon'ble Delhi High Court held that:
"96. The appellant, in his statement dated 06.01.2009, tendered under Section 313 Cr.P.C. had denied the allegations. As regards to his statement, he talked of some retractions Ex.DXZ and Ex.DXZ
1. According to him, he had retracted the statement when he was produced before the Court. This is contrary to judicial record. It is also not understood as to how the alleged retractions were exhibited. No document can be exhibited unless the maker thereof enters the witness box and faces the cross examination." (emphasis supplied)
39. Likewise, the copy of photographs adduced in evidence which are Ex. DW1/A are also inadmissible in evidence as the same are photocopies and are thus, not primary evidence. No Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 22/31 application was moved on behalf of the defendant company to adduce secondary evidence of the photographs placed on record. In the absence of any such plea, the photographs, Ex. DW1/A cannot be relied upon.
40. What further renders the defence of the defendant bizarre and suspicious is the fact that the show cause notices placed on record which are Ex. DW3/B and allegedly sent to the plaintiff to witness the testing and analysis of the burnt electric meter in the NABL laboratory have not been annexed with any convincing proof of delivery. Merely, internet generated tracking reports have been filed which have neither been marked nor exhibited in evidence. Certificate under section 65 B of The Indian Evidence Act, 1872 has also not been filed alongwith. No postal receipt/acknowledgement card has been filed to substantiate the factum of sending the notices to the plaintiff on the address of the plaintiff. In the absence of any cogent proof of service of notices, delivery thereof cannot be presumed. The plaintiff has categorically denied during his cross examination that he did not receive any notice from BSES to attend the testing of the burnt meter. No suggestion was put to the plaintiff that he did receive the said notice. Avowal of the plaintiff in this regard is uncontroverted and unchallenged and there is nothing on record to discredit the same.
Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 23/3141. As far as the lab testing report of the electric meter is concerned, the same categorically specifies that the consumer was not present at the time of testing. Thus, the burnt meter was tested in the absence of the plaintiff which violates the right of the plaintiff to witness the testing procedure and the conclusion arrived at pursuant to such testing.
42. Finally, speaking order, Ex. DW3/F was passed on 19.01.2017, that is, eight days after granting personal hearing to the plaintiff. At this juncture, it is pertinent to refer to Regulation 53(ii) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007. The same is reproduced herein below for clarity:
"During the personal hearing, the licensee shall given due consideration to the facts submitted by the consumer and pass, within three days, a speaking order as to whether the case of theft is established or not. Speaking order shall contain the brief of inspection report, submission made by consumer in his written reply and oral submissions during personal hearing and reasons Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 24/31 for acceptance or rejection of the same."
43. Adverting to the facts of the instant matter, at the cost of repetition, the speaking order was passed after a lapse of eight days from the date of sending of notice dated 11.01.2017. No reason has been furnished to explain the delay of five days. It is stated in the speaking order, Ex. DW3/F that despite service of notices, the plaintiff failed to attend the personal hearing. However, as has been observed earlier, service of such notices have not been proved by the defendant company. Thus, the speaking order was passed in violation of Regulation 53(ii) as cited above.
44. In view of the reasons spelled above, it is hereby adjudged that the impugned invoice dated 25.01.2017 in respect of electricity connection bearing no. 21409623 installed at the premises in question was raised by the defendant without following the applicable rules and regulations in respect of assessment of burnt meter. Accordingly, issue no. (i) is decided against the defendant company and in favour of the plaintiff.
(ii) What are the reasons for burning of the electricity meter against the said electricity connection?
Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 25/3145. The onus to prove the said issue was shouldered by both the parties. Whereas, the plaintiff has asserted that the meter burnt due to sparking, the defendant has pleaded that the same was burnt abnormally and that such abnormal burning is attributable to tampering with the meter so as to conceal theft of electricity. Though, the plaintiff has not explained the attending circumstances which resulted in sparking, the fact that he promptly intimated the office of the defendant company about the occurrence of the incident, reinforces the bona fides of the plaintiff. No question was put to the plaintiff during his crossexamination to cull out the reasons for sparking which resulted in the burning of the meter. The testimony of the plaintiff in this regard has not been impeached by the defendant and there is no reason emanating from the record which would propel the court to infer that the version of the plaintiff is liable to be disbelieved.
46. Conversely, the version of the defendant is unsubstantiated. The burden to prove a fact is on the person who asserts the same in view of section 103 of The Indian Evidence Act, 1872. No reason has been specified in the lab report, Ex. DW1/C as to the causation of the abnormal burning of the meter. The entire lab report is silent about the cause and effect sequence of the events in question. It is not stated in the said report that the burning of the meter was a deliberate attempt and that the same evidenced tampering with the meter. It cannot be ruled out that the said burning may have been accidental.
Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 26/3147. Further, while the meter was being tested and analyzed, no external artificial means was found therein which had the effect of slowing down the consumption pattern of electricity via the burnt meter. Also, no device was recovered from the burnt meter or from the premises in question which could indicate that the plaintiff tampered with the electric meter to abstract the consumption of electricity. No physical evidence was found by the officials of the defendant company either during the inspection or during the testing of the meter in the lab which could show that due to the insertion of external conductor in the meter input terminal, the flow of electricity was abstracted. The defendant has failed to prove that there was some conclusive evidence to suggest or infer that the plaintiff tampered with the electric meter and committed theft of electricity.
48. Further, paragraph two of the written statement mentions the fact that the enforcement team was not allowed to asses the connected load of the premises when the team inspected the premises in question. In view of such pleading, it is not ascertainable as to how the defendant company calculated the amount mentioned in the impugned bill raised against the plaintiff. Even if it is presumed that the plaintiff had illegally installed a device to abstract the flow of electricity and reduced the consumption thereof, the parameters on which the amount of bill is assessed is questionable. There is no logical basis on which the arithmetic is Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 27/31 done by the defendant company while raising the impugned bill against the plaintiff. Also, the defendant company has failed to explain the assessment of the bill on the basis of the consumption pattern. Even otherwise, since the defendant has failed to prove that the plaintiff deliberately burnt the meter to conceal the factum of theft of electricity, the defendant did not have any reason to assess the impugned bill on the basis of average consumption pattern.
49. In view of the above cited reasons, it cannot be said that the plaintiff tampered with the meter owing to which the same got burnt. It could have been a consequence of sparking or may have been an accidental burning. The defendant company has not been able to discharge the onus to prove the said issue. Accordingly, the instant issue is decided against the defendant. Since the assertion of the plaintiff that the meter got burnt due to sparking is unchallenged, there is no reason to discard the said assertion. Hence, the instant issue is decided in favour of the plaintiff.
(iii) Whether the plaintiff is entitled to the decree of declaration in respect of bill dated 25.01.2017 amounting to Rs. 1,95,414/ as illegal, unlawful and not legally enforceable in his favour and against the defendant?
Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 28/3150. The onus to prove the instant issue rested on the plaintiff. Since it has been established that the defendant has not been able to prove the factum of tampering with the meter or the fact that all the rules and regulations were followed while assessing the burnt meter, the impugned bill dated 25.01.2017 cannot be said to have been raised validly and lawfully against the plaintiff. Accordingly, the plaintiff is entitled to a decree of declaration in respect of the aforementioned bill to the effect that the said bill is null and void except to the extent of actual consumption of electricity by the plaintiff. In other words, the defendant is obligated to remove/subtract the demand of impugned bill from the regular monthly bills raised against the plaintiff. In view of the above, instant issue is decided in favour of the plaintiff and against the defendant company.
(iv) Whether the plaintiff is entitled to decree of permanent and mandatory injunction directing the defendant not to disconnect the electricity supply in respect of electricity connection bearing K no. 21409623 on the basis of impugned bill dated 25.01.2017?
51. Needless to say, an undisrupted electricity supply is a basic amenity for every household/premises. If the plaintiff regularly pays the legal dues to the defendant company for the electricity consumption, defendant company cannot disconnect electric supply of the plaintiff against meter no. 21409623. The defendant company Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 29/31 is permanently injuncted from disconnecting the electricity connection of the plaintiff on account of nonpayment of the impugned bill. With these observations, instant issue is also decided in favour of the plaintiff and against the defendant company.
(v) Relief.
52. The issue qua relief is contingent upon decisions on material issues that is, issues no. (i), (ii), (iii) & (iv) in the present suit. Since the said issues have been adjudged in favour of the plaintiff, plaintiff is entitled to the following reliefs as claimed by way of the instant suit:
Decree of declaration in respect of bill dated 25.01.2017 amounting to Rs. 1,95,414/ in respect of electricity connection bearing no. 21409623 installed at property bearing Khasra no. 404, 405 and 392, Durga Vihar, Phase 1, Bengali Painter Wali Gali, Najafgarh, New Delhi110043 to the effect that the said bill is null and void except to the extent of actual consumption of electricity by the plaintiff. The defendant shall remove the demand of dues under the impugned bill from the regular monthly bills against the plaintiff.
Further, as long as the plaintiff continues to pay the regular bills for the consumption of electricity, defendant shall not disconnect the electricity supply of meter bearing No. 21409623.Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 30/31
Defendant company is permanently injuncted from disconnecting the electricity connection of the plaintiff on account of nonpayment of impugned bill.
53. Conclusion: In view of the reasons spelled above, present suit of the plaintiff is hereby decreed. Parties to bear their own costs.
54. Decreesheet be prepared accordingly.
Announced in the open court today i.e. 20.01.2023 Paridhi Sharma ACJCCJARC/South West Dwarka Courts: New Delhi Civil Suit No. 1651/18 Rakesh Kumar versus BSES Page 31/31