Delhi District Court
Sh.Rajesh Kumar Dalal vs North Delhi Power Limited on 17 December, 2013
IN THE COURT OF MS.RIYA GUHA :
CIVIL JUDGE13(CENTRAL) : DELHI
Suit No. 1243/2009
Unique I.D. 02401C0434082009
Sh.Rajesh Kumar Dalal,
S/o Sh.Sajjan Singh,
R/o M33, Vijay Nagar Colony,
Bawana, Delhi
.......Plaintiff
Versus
North Delhi Power Limited
Through its Principal Officer/Chief Executive Officer,
Service at
Office of
Enforcement Assessment Cell (EAC)
C2 Block, Keshav Puram, Lawrence Road,
Delhi
...... Defendant
Date of institution of suit : 03.10.2007
Date of Judgment : 17.12.2013
Judgment :
1. The present suit is for declaration and mandatory
injunction filed by the plaintiff against the defendant.
2. The brief facts of the case as stated in the plaint are that the
plaintiff is the user of the electricity connection with NL supply type
which had been installed by DESU department on 1222000 and the
Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.1 of 17
plaintiff was running his business of general store and was using
electrical appliances like one refrigerator, one ceiling fan and two
bulbs. Also the plaintiff is paying the bills regularly and no dues are
outstanding against him. The plaintiff further submits that the
electricity bills after the month of November 2006 reflects that after
installation of new electricity meter, the plaintiff has been having
almost uniform consumption and that also on the lower side.
3. That the premises of the plaintiff was inspected on
27102006 by the officials of the defendant who twisted the seal of the
meter. That when the plaintiff asked them not to use force while
applying the "plass", then the officials answered in anger that they
were doing their job and are competent to do so.
4. That the plaintiff was served a show cause notice dated
16062007 and the plaintiff replied to this notice on 22062007 and
also attended a personal hearing on the same date but his submissions
were not heard at all. Also the showcause notice was issued on
22062007 which was beyond the period of 30 days as laid down in
the DERC Regulations of 2007 which is applicable in the present case.
5. That the plaintiff received a speaking order dated
21072007 and dispatched on 31082007 and the defendant had
alleged that the plaintiff has committed dishonest abstraction of
energy. It is submitted that the meter was never tampered nor any seal
of meter was broken or damaged and the case of DAE was made out
without any basis. The load tolerance of 5% was not adjusted in the
plaintiff's case. Also in the impugned DAE bill the supply type was
shown as IP which is not correct as no misuse was attached with the
bill. Also, the latest bill issued by the defendant reflected a disputed
Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.2 of 17
amount of Rs.1871.59/ which is not correct. That the plaintiff had
applied for disconnection of the connection on 07082007 and duly
acknowledged by the defendant vide receipt dated 20082007 but the
connection was not disconnected. Hence, left with no other remedy
the plaintiff filed the present suit.
6. Via the present suit the plaintiff seeks the relief of
declaration against the bill amounting to Rs.49,971/ as null and void
and also the disputed amount of Rs.1871.59/ reflected in the bill of
August 2007 as null and void. Also the plaintiff has sought mandatory
injunction thereby directing the defendant to disconnect the
electricity supply and remove the meter vide K.no.41100133281 ,
installed at premises no.M33, Vijay Nagar Colony, Bawana, Delhi.
7. Summons of the suit was served on the defendant, upon
which defendant had appeared through its counsel and filed the
written statement stating therein that the connection was sanctioned
in the name of the plaintiff having sanctioned load of 2 KW for non
domestic category. That premises of the plaintiff was inspected on
27102006 by the enforcement team of the defendant. It is submitted
that the connected load was found as 2.24 KW which was more than
the sanctioned load of 2 KW. It is further submitted that meter
terminal seals were found nonexistent and both the half seals were
found tampered. A paper seal was dated 27102006 was pasted on the
meter to maintain status quo. Further the plaintiff was found using the
connection for running atta chakki. The inspection report was
prepared at the site and in the presence of the representative of the
consumer, but who refused to sign the same.
8. It is further submitted the previous consumption of the
Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.3 of 17
connection has no bearing on a case of DAE as the consumption can
be manipulated by tampering the meter. That the show cause notice
was prepared on the spot and the plaintiff was advised to attend the
personal hearing. The plaintiff was offered an opportunity of personal
hearing on 01112006 but noone came to attend the same.
Thereafter an extended date of personal hearing was granted on
19052007 but again the plaintiff failed to appear. Thereafter again a
show cause notice dated 16062007 was sent to the plaintiff and an
opportunity for personal hearing was granted on 27062007 to which
the plaintiff attended. It is further submitted that a case of DAE was
established against the plaintiff on analysis of the consumption
pattern and the unequivocal finding of the inspection team. The
speaking order was thereby passed on 21072007 and a final DAE bill
of Rs.49,971/ was raised and served to the plaintiff which is as per law
and the plaintiff is liable to make the payment of the said bill.
Accordingly, the suit of the plaintiff may be dismissed as it is meritless.
9. Replication to the WS of the defendant filed by the plaintiff
reiterating the averments made in the plaint and denying those made
in the written statement, and on the basis of the pleadings of the
parties the following issue were framed on 05022008 :
1. Whether the suit is not maintainable in view of Section 41(h) & 14
of Specific Relief Act, 1963? OPD
2. Whether the plaintiff is entitled to a decree of declaration in respect
of electricity bill and the disputed amount as prayed for? OPP
3. Whether the plaintiff is entitled to a decree of mandatory
injunction as prayed for? OPP
4. Relief.
10. Thereafter, the matter was fixed for the plaintiff's evidence
Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.4 of 17
and the plaintiff deposed in the witness box as PW1 and relied on the
following documents :
Ex.PW1/1 Receipt of Rs.2115/ deposited for new
connection
Ex.PW1/2 A to
Ex.PW1/2 L Bills for the period 2005, 2006 and 2007
Ex.PW1/3 Inspection report dated 27102006
Ex.PW1/4 Copy of show cause notice dated 16062007
Ex.PW1/5 Reply dated 22062007
Ex.PW1/6 Speaking order dated 21072007
Ex.PW1/7 Impugned DAE bill
Ex.PW1/8 Acknowledgment receipt dated 20082007
11. The PW1 was duly crossexamined by the defendant's
counsel and thereafter the matter was fixed for defendant evidence.
The defendant produced in the witness box Mr.D.S.Dangwal who
deposed as DW1 and Mr.R.D.Prasad as DW2 and relied on the
following documents :
Ex.DW1/1 Inspection report dt.27.10.2006
Ex.DW1/2 Show cause notice dt.16.06.2007
Ex.DW1/3 Copy of consumption pattern
Ex.DW1/4 Personal hearing sheet dated 19052007
Ex.DW1/5 Show cause notice dated 16062007
Ex.DW1/6 Personal hearing sheet dated 27062007
Ex.DW1/7 Speaking order
Ex.DW1/8 Final DAE bill
12. The DWs were duly crossexamined by the plaintiff's
counsel. After closure of DE, the matter was fixed for final arguments.
After hearing final arguments and perusal of case file my issuewise
findings are as follows :
Issue No. 1 :
Whether the suit is not maintainable in view of Section 41(h) and 14
Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.5 of 17
of Specific Relief Act, 1963? OPD
13. Onus to prove this issue was placed on the defendant.
14. The issue has been framed in pursuance to a preliminary
objection raised by the defendant in its written statement that the
plaintiff is not entitled for the relief of injunction in view of section
41(h) and 14 of the Specific Relief Act,1963. However, the defendant
has not cited that what is the alternate efficacious remedy available to
the plaintiff to have his grievances addressed qua the bill and the
inspection under challenge which may render the present suit to be
barred by section 41(h) of the Act of 1963. Also, the court cannot
appreciate that how this matter falls in the ambit of the section 14 of
the Act which lays down situations where specific performance of
contracts cannot be enforced. No explanations or arguments to throw
light in this regard has been put forth by the defendant's counsel.
15. Hence, in the considered opinion of the court, the
defendant has failed to prove this issue.
16. Accordingly, this issue is decided against the defendant.
Issue No.2 :
Whether the plaintiff is entitled to a decree of declaration in respect
of electricity bill and the disputed amount as prayed for? OPP
17. Onus to prove this issue was placed on the plaintiff. The
plaintiff has sought the declaration that the bill amounting to Rs.
49,971/ be declared as null and void.
18. To prove his case, the plaintiff appeared in the witness box
and deposed as PW1 and reiterated on oath the averments made in the
plaint. It is deposed by the PW1 that since November 2006, that is
after installation of new meter, the bills which were being received
Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.6 of 17
were more or less uniform. For reference, the PW1 has relied on the
bills of the period 2005 to 2007 which are Ex.PW1/2 A to Ex.PW1/2 L.
19. It is further deposed by the PW1 that during the course of
the inspection on 27.10.2006, it was the defendant officials who
twisted the seal of the meter and inspite of the PW1's asking them to
not to use the plass, the officials did not stop and retorted with anger
that they are doing there work.
20. The PW1 had further deposed that no any inspection report
was prepared at site. However, the PW1 was served with a showcause
notice dated 16.06.2007 which is Ex.PW1/5. It is deposed that prior to
notice Ex.PW1/4, the PW1 had never received any kind of notice.
However, it is admitted that the PW1 attended the personal hearing on
22.06.2007, but his explanation was not heeded to at all. Further
deposed that the PW1 received speaking order dated 21.07.2007 which
is Ex.PW1/6.
21. It is argued by the plaintiff that during the readings by the
meter reader, there was never any remark of tampering, and even the
electricity bills reflected so. It is also the case of the plaintiff that the
supply type was of NL which is duly reflected in the electricity bills,
but the impugned bill shows the supply type as IP which is without
any basis as no misuse was attached with the bill. It is also the case of
the plaintiff that the impugned bill shows the disputed amount of Rs.
1871.59/ which is without any basis.
22. It is not in dispute that the subject connection having
number 41100133281 is sanctioned in the name of the plaintiff for
nondomestic category with sanctioned load of 2 KW. It is also not
disputed that an inspection was carried out at the plaintiff's premises
Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.7 of 17
on 27.10.2006. It is also admitted by the PW1 that he was not present
at the site, but his mother was present during the inspection on his
behalf. However, he denied the suggestion that the inspection report
Ex.PW1/3 and the notice Ex.PW1/4 were given to his mother at site on
27.10.2006.
23. The defendant on the other hand produced DW2 Mr.Ram
Prasad who proved the inspection report as Ex.DW1/1 and the show
cause notice as Ex.DW1/2. Also, the defendant produced
Mr.D.S.Dangwal who proved the speaking order as Ex.DW1/7. The
defendant's counsel has argued that mere allegation of fictitious seals
are sufficient to prove FAE. It is further argued it is the responsibility of
the consumer to keep the meter in safe custody. The defendant has
heavily relied on the recent judgment titled " NDPL versus Bhasin
Motors Pvt.Ltd." pronounced on 21012013. In this case the H'ble
High Court of Delhi speaking through the pen of Justice V.K.Jain, had
held that tampering of seals and/or the meter by itself would be
conclusive evidence substantiating unlawful abstraction of energy in
case where no acceptable explanation is given by the consumer for the
seals or the meter having been found tampered with. It was held that
in the absence of any plausible reasons put forth by the consumer, the
irregularities in the meter/ seals are attributable to the consumer
alone.
24. As the inspection in the present case was conducted on
27102006 and therefore, the relevant regulations applicable in the
present matter is the DERC (Performance Standards Metering &
Billing) REGULATIONS 2002. The rule number 25 of the Regulations is
reproduced below:
Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.8 of 17
"PILERAGE OF ENERGY
25. Procedure for booking a case for
pilferage of energy (i) The licensee suo
moto or on receipt of reliable information
regarding commitment of any offence of
theft/tampering/dishonest abstraction of
energy (DAE), shall promptly conduct
inspection of consumer's premises. The
inspection team shall carry a written
authority signed by designated officer of the
licensee.
(ii) The inspecting team shall prepare a
report giving details such as connected load,
condition of seals, working of meter and
mention any irregularity noticed (such as,
artificial means adopted for dishonest
abstraction of energy) as per format
prescribed by the licensee.
(iii) The report shall clearly indicate
whether conclusive evidence substantiating
the fact that energy was being dishonestly
abstracted was found or not. The details of
such evidence should be recorded in the
report and it should be clearly brought out
whether the case is being booked for direct
theft or DAE.
(iv) No case of DAE shall be booked only on
account of one seal on the meter missing or
tampered or breakage of glass window etc.
unless corroborated by consumption pattern
of consumer as per Regulation 26(ii) given
below and such other evidence as may be
available.
(v) In case sufficient evidence is found to
establish direct theft of energy, the licensee
may lodge a report with the local police
along with the material evidence including
wires/cables, meter, service line etc. seized
from the site, which shall be handed over to
police. The licensee shall also asses the
Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.9 of 17
energy consumption for past six months as
per the Tariff Order and prepare final
assessment bill on 5 times the rates as per
applicable tariff. The consumer shall be
required to make the payment within 2
working days of its proper receipt.
(vi) In case of suspected DAE, the inspection
team shall not remove the tampered meter
but shall disconnect it from the supply and
shall restore the supply through a new meter
of appropriate rating. In such cases, the
licensee shall check the connected load and
consumer's installation, affix a numbered
Johnson's paper seal on the tampered meter
and shall also record the particulars of the
same in the report.
(vii) While the report must be signed by
each member of the joint team and the
notice, if any, must be signed by an
authorized signatory of the licensee and all
these must be handed over to the consumer
or his/her representative at site immediately
under proper receipt. In case of refusal by
the consumer or his/her representative to
either accept or give a receipt, a copy of each
must be pasted at a conspicuous place
in/outside the premises. Simultaneously,
the joint report, the assessment bill and the
notice shall be sent to the consumer under
Registered Post.
(viii) The consumer shall be served a 3 days
show cause notice at the site as to why the
case of DAE should not be booked against
him/her. The notice should clearly state the
time, date and place at which the reply has
to be submitted and the designation of the
person to whom it should be addressed. ''
25. The Regulations 2 (m) of the Regulations, 2002 define
Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.10 of 17
"dishonest abstraction of energy" as under:
2(m).'Dishonest Abstraction of Energy
(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 (such as
reversing the polarity of one phase of poly
phase meters, changes in CT or PT, etc.).
26. Since the defendant is seeking to make out a case of DAE,
the provisions of the Act, the Rules and the Regulations must first be
perused. Dishonest Abstraction of Energy has not been defined under
the Electricity Act. It is defined only in the Regulations.
27. As per Section 135(1) proviso 2, the respondent must prove
that "any artificial means or means not authorized by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer...." existed at the site. This implies that the initial burden has to be discharged by the defendant/ licensee.
28. In Jagdish Narayan Vs NDPL Ltd & Anr. 150 (2007) DLT 307, Hon'ble High Court has discussed that :
"Applying the above test, it has to be held that an automatic presumption of DAE on the basis of the external symptoms of tampering together with the analysis of the consumption pattern would not be a safe and error free method. Some other tangible evidence must been shown to exist. An accu check meter can be deployed to find out if the meter is in fact recording lesser Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.11 of 17 units. The analysis of the consumption pattern in terms of the Regulation 26 (ii) is merely corroborative and not by itself substantive evidence of DAE. The decision of this Court in Udham Singh v. BSES Rajdhani Power Ltd. 136 (2007) DLT500 is to the same effect. In fact, the formula is applied in terms of Regulation 25 (iv) read with 26 (ii) only for determining the penalty payable by the consumer once a case of either direct theft or DAE has been made out. The penalty formula cannot itself supply the proof of DAE or theft."
29. It has been further held that :
"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 teat all categories of consumers on the same footing when it proceeds to take 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 stair case, are tamper proof and outside the reach of any mischievous third party. It is one thing to require the 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 Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.12 of 17 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."
30. In this case, the plaintiff's stand has been that the seals were broken by the officials of the defendant while the inspection was going on. The same was submitted in the reply sent by the plaintiff dt. 22.06.2007and which is Ex.PW1/5. But the reasons put forth by the plaintiff were rejected while passing the speaking order which is Ex.PW1/6.
31. Though the plaintiff admittedly was not present during the course of inspection on 27.10.2006, but the plaintiff had deposed that no inspection report was prepared at site, nor any showcause notice prior to 16.06.2007 notice was sent to him. But during his cross examination, the PW1 admitted that the showcause notice was prepared at site, and he also stated that the person present at site, i.e. his mother refused to sign the same.
32. Also the PW1 firstly deposed that he attended personal hearing on 22.06.2007, but during his crossexamination, he made a turnabout and said that he did not remember whether he attended any personal hearing or not. His answers with respect to his attendance during the personal hearings granted to him are unspecific & vague.
33. So firstly there has admittedly no personal knowledge of the plaintiff that he has himself seen the officials of the defendant to deliberately tamper/break the seals with plass, and secondly, the PW1 Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.13 of 17 had evaded the specific questions put to him with respect to personal hearings.
34. In the recent judgment of NDPL Vs. Bhasin Motors LPA No. 1082/2007 & CM 9601/2007 the Hon'ble High Court has held the following :
"The seal of a meter can be tampered with only by intervention of a human being and not otherwise. Similarly the seals cannot go missing of their own and are necessarily removed by a human being. Likewise there can be no scratches on the dial unless an attempt is made to interfere with the functioning of the meter. Since as per Sub Regulation 17 (iv) the responsibility of keeping the meter under safe custody lie with the consumer and as per Regulation
(vii) during any inspection or on consumer complaint or suo moto, the licensee is required to ensure that the meter is not tampered/bypassed, it was for the respondent to explain how the meter box seal got tampered, cover seal went missing and scratches came on the dial plate.
In our view, if the seals and/or meter are found tampered and no plausible explanation for such an act is forthcoming from the consumer, that would be sufficient evidence to conclude dishonest abstraction of energy by the consumer in terms of Regulation 25 (iii), provided tampering with the meter and/or seal is detected in the presence of the consumer or his representative and the details thereof are recorded in the report prepared at the sport in the presence of the consumer or his representative as the case may be.
Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.14 of 17 In view of the provisions contained in Regulation 17 (iv) even after conclusive evidence substantiating DAE in terms of Regulation 17 (iii) is found, no case can be booked only on the ground of one seal on the meter missing or tampered or brokage of glass window unless it is corroborated by the consumption pattern of the consumer in terms of Regulation 26(ii). During the course of hearing, in terms of Section 26 (ii), it is upon the consumer to satisfy the officer of the licensee on the basis of the record available with him, that his actual consumption could not have been more than what was recorded by the meter."
35. Now in this case inspection is not disputed. Also it is proved that the plaintiff was not present personally during the inspection. The plaintiff himself admits that his mother, who was present at site refused to accept the inspection report. Also there can be no basis for the plaintiff himself to say that the defendant's officials had deliberately tampered/broken the seals during inspection, as he himself was not present during same. The plaintiff did not produce his mother in the witness box to prove such allegations.
36. Perusal of the relevant rules and regulations shows that defendant had conducted the inspection under Rule no.25 of DERC Regulations 2002, and had then proceed to grant personal hearing an pass the speaking order as per Regulation no.26 of the DERC Regulation, 2002.
37. Also as per the judgment of "NDPL Vs. Bhasin Motors", the inspection was conducted in the presence of the representative of the plaintiff. No plausible explanation was offered by the plaintiff. If any Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.15 of 17 explanation at all was offered by the plaintiff, but the same was based on hearsay and the plaintiff had no personal knowledge of the same.
38. Hence, the plaintiff has failed to prove his case and the defendant has rightly raised the impugned bill.
39. Accordingly, this issue is decided against the plaintiff.
Issue No.3 :
Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for? OPP
40. Onus to prove this issue was placed on the plaintiff.
41. The plaintiff has sought the mandatory injunction for direction to the defendant to immediately disconnect the electricity supply and remove the electricity meter vide subject connection number 41100133281. It is the case of the plaintiff that he had applied for disconnection on 07.08.2007 and which was acknowledged by the defendant on 20.08.2007. The acknowledgment receipt is Ex.PW1/8.
42. In response to the same the defendant's stand is that the DAE demand raised by the defendant is legitimate and the defendant company has every right to take legal action against the plaintiff.
43. However, apart from producing the receipt Ex.PW1/8, the plaintiff has not shown or proved anything to show what steps he had taken when the electricity was not disconnected and has merely made bald averment that the plaintiff shall not be liable for any electricity charges including meter rent after 07.08.2007. However, the plaintiff has not produced or proved any letter sent or request made for disconnection and has only relied on an acknowledgment receipt. In such scenario, the plaintiff has failed to show that he has any grievance w.r.t. the defendant having not responded to his Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.16 of 17 disconnection request. Also it is pertinent to observe that the request for disconnection admittedly was made in the year 2007 i.e. after the inspection dt.27.10.2006. It can be assumed that since an inspection was conducted qua the present meter, hence, the plaintiff's request for disconnection was not at par with any other normal request for disconnection or removal of meter. During the time the plaintiff has moved his request for disconnection, the internal proceedings of the defendant were already going on w.r.t. raising the impugned demand. Hence, it cannot be said that the defendants have unjustifiedly not acceded to the plaintiff's request. Hence, the plaintiff has failed to discharge his onus and this issue is decided against the plaintiff.
Relief :
44. In view of the above discussion, the suit of the plaintiff stands dismissed. No order as to costs.
45. Decreesheet be prepared accordingly.
46. File be consigned to Record Room.
Announced in the Open Court [RIYA GUHA] Today on 17.12.2013 CIVIL JUDGE13(Central) DELHI Certified that this judgment contains 17 number of pages and all pages are signed by me.
[RIYA GUHA] CIVIL JUDGE13(CENTRAL) DELHI Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.17 of 17 Suit No.1243/2009 17.12.2013 Present : None Vide separate judgment of the even date, the suit of the plaintiff stands dismissed.
No order as to costs.
Decreesheet be prepared accordingly.
File be consigned to record room after due compliance.
[RIYA GUHA] CIVIL JUDGE13(CENTRAL) DELHI/17.12.2013 Rajesh Kumar Dalal Vs. NDPL Suit No.1243/2009 Page No.18 of 17