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[Cites 3, Cited by 0]

Delhi District Court

Sh.Gurbax Singh vs North Delhi Power Limited on 10 April, 2013

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IN   THE   COURT   OF   SH.   SHAILENDER   MALIK, 
SCJ/RC/NW/ROHINI COURTS, DELHI 


SUIT NO. 34/08


Sh.Gurbax Singh 
S/o Late Sh. Diwan Singh
R/O H.No. 27, Shri Nagar
Bharat Nagar, Ashok Vihar Road, 
New Delhi­52
                                             ....Plaintiff
Versus


North Delhi Power Limited
Through its Incharge
Office of Enforcement Cell (EAC)
NDPL Building, Sector­3, 
Rohini, Delhi­35
                                             ....Defendant
                             Date of Institution : 17.12.2008
                          Date of reserving judgment: 10.04.2013
                    Date of pronouncing judgment: 10.04.2013


 SUIT FOR DECLARATION AND PERMANENT INJUNCTION


J U D G M E N T :

1. This is a suit for relief of declaration and permanent injunction. Plaintiff is consumer of electricity Meter bearing No. 40053664 and K.No. 35300389269 installed 2 in the name of plaintiff at H.No. 27, Shiri Nagar, Bharat Nagar, New Delhi. It is stated that plaintiff was earlier working in electricity department for 40 years. Plaintiff stated to have been making regular payment of the bills as per consumption of electricity. It is further sated that the earlier meter of the plaintiff was burnt and therefore was replaced by defendant (NDPL) on 2.09.2006. thereafter some officials of the defendant came to the house of plaintiff on 3.09.2006 and allegedly demanded bribe from the plaintiff. Officials of defendant stated to have also visited the plaintiff on 4.09.06 and 5.09.2006 and on each of the occasion plaintiff stated to have not paid the alleged bribe as demanded by them. Since due to non­fulfillment of demand of the officials of the defendant, it is alleged that defendant had conducted illegal raid on 6.9.2006 in the premises of the plaintiff and thereafter plaintiff stated to have received show cause notice from office of NDPL and same was duly replied by the plaintiff and thereafter defendant passed a speaking order without giving any heed upon the reply of the plaintiff and illegally raised an unjustified bill worth Rs. 25,936/­. It is further stated in the plaint that there was no tampering of meter as well as seal was also proper. As such there was no dishonest abstraction of energy. Hence the present suit has been filed with the prayer for permanent injunction to restrain the defendant, NDPL or their associates from removing the electricity Meter bearing No. 40053664 and K.No. 35300389269 installed in the name of plaintiff at H.No. 27, Shiri Nagar, Bharat Nagar, New Delhi. Plaintiff has also sought decree of declaration declaring thereby that 3 speaking order and show cause notice as passed by the defendant, NDPL and raising of bill regarding the above said electricity Meter bearing No. 40053664 and K.No. 35300389269 to be null and void.

2. After service of summons of present suit defendant put appearance and file the WS taking the objection therein that suit of the plaintiff is without cause of action and plaintiff has concealed material facts. It is pleaded that the plaintiff has concealed that during the inspection dt. 6.9.06 against K.No. 35300389269 at the premises of plaintiff, plaintiff was found indulging in DAE by tampering the electricity meter No. 40053664 wherein he had made the meter slow by 76.26% and also inserted 2 Numbers external PVC wires between I/C & O/G and neutral terminals of the meter in order to manipulate the consumption recorded by the meter. It is stated that at the time of inspection representative of plaintiff was present but refused to sign the inspection report. While denying the case of the plaintiff on merits it is denied that any of the official of the NDPL asked for bribe from the plaintiff. It is also pleaded that when inspection was carried out on 6.9.06 many irregularities were found like connection load was found to be 5.74 KW against the sanctioned load of 1 KW, meter was slow by 76.26%, two number external PVC wires were found inserted between I/C & O/G and neutral terminals of the meter. It is stated that due to above mentioned irregularities show cause notice was prepared by member of inspecting team and consumer was offered the opportunity of personal hearing on 12.9.06 which was extended for 21.11.06 and a written rely was submitted by plaintiff on 4 29.9.06. It is pleaded that personal hearing was not attended by he plaintiff and a number of show cause notice dt. 16.9.08, 4.10.08 and 30.10.08 and personal hearing was offered to the plaintiff but to no avail. It is pleaded that lastly in the interest of justice a fresh show cause notice dated 11.11.2008 was given which was served to plaintiff for opportunity of personal hearing on 19.11.08. Plaintiff thereafter turned up and made written and oral submissions. After considering the submissions of plaintiff and merits of the case speaking order was passed on 27.11.08 and accordingly final DAE bill was issued for amount of Rs. 25936/­ on 17.12.08.

3. Replication was filed on behalf of plaintiff wherein pleadings in the WS were controverted and case of the plaintiff was reiterated.

4. From the pleadings of the parties following issues were framed on 6.10.2009:

i) Whether the suit of the plaintiff is liable to be dismissed/rejected as not maintainable, as per applicable law?OPD.
ii) Whether this court has no jurisdiction to try and entertain the present suit ?OPD.
Iii) Whether the plaintiff is entitled to decree for permanent injunction as prayed for ?OPP.
iv) Whether the plaintiff is entitled to decree of declaration as prayed for ?OPP.
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v) Relief.
5. On behalf of plaintiff two witnesses were examined.

PW 1 Gurbax Singh, plaintiff and PW 2 son of plaintiff Sh. Gurinder Singh.

6. On behalf of defendant two witnesses were examined DW 1 Sh.Yogender Kumar and DW 2 Sh. Pradeep Chauhan.

7. I have heard Ld. Counsel for both parties and have gone through the record carefully. I have also perused the written arguments of plaintiff as placed on record.

8. My Issue­wise findings are as under :

ISSUE NO.(i) (Whether the suit of the plaintiff is liable to be dismissed/rejected as not maintainable, as per applicable law?) The onus to prove this issue was on defendant seeing the plaint & documents on record, since plaintiff is seeking declaration regarding show­cause notice served to him & thereafter passing of speaking order & Bill raised by NDPL to be null & void. I do not find, in any manner suit is devoid of cause of action nor it is agitated on behalf of defendant. So issue is decided in favour of plaintiff.

9. ISSUE NO.(ii) "Whether this court has no jurisdiction to try and entertain the present suit ?

This issue apparently framed on objection taken in WS of defendant, NDPL. But I find Civil Suit seeking injunction & declaration regarding Inspection Report, 6 Show­Cause Notice & consequent passing of speaking order & raising of DAE bill is maintainable. Moreover, defendant has not agitated on this issue, so this issue stands decided in favour of plaintiff.

10. ISSUE NO.(iii) & (iv) "Whether the plaintiff is entitled to decree for permanent injunction as prayed for ?"

"Whether the plaintiff is entitled to decree of declaration as prayed for ?"

Issue No. (iii) and (iv) are being taken up together. Onus of proving these issues is on plaintiff. So let us examine the evidence, led on behalf of plaintiff. PW 1 is plaintiff who in his affidavit of examination in chief has testified all those facts as averred in plaint. PW1 testified that earlier, meter was burnt on 27.08.2006 & Meter was replaced on 02.09.06. PW1 then says that official of NDPL came to his house on 3,4,&5 Sept. 2006 & demanded bribe. PW1 says he did not fulfill their demands & stated to have made complaints Ex.PW1/2 to PW1/5. PW1 says that due to non­fulfilling of their demand raid was conducted on 6.09.06 at his premises and show cause notice Ex.PW1/6 was given to him to which he filed reply Ex.PW1/7. PW1 says speaking order PW1/8 was passed, without paying heed to reply filed by him and thereafter Bill of Rs. 25936/­ Ex.PW1/9 was raised. PW1 says there was no tempering of meter as well as of seal, so there could not have been "Dishonest abstraction of energy". PW 1 further says allegation of slow running of meter, within 3 days of replacement of meter, clearly indicate malafide intentions of NDPL. On similar facts, PW2 Gurinder Singh has testified.

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Having given thoughtful consideration and appreciating the evidence as came on record, the term 'dishonest abstraction' is not defined in the Electricity Act, 2003. It is defined only under Regulation 2 of the DERC Regulations. The relevant clauses read 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.).

Thus it is clear from above stated definition, dishonest abstraction of energy (DAE) being one of the mode of electricity theft, require to be established not only by existence of the unauthorised means for abstraction which is only a prima facie evidence of dishonest abstraction, beside this in view of provisions of Section 126 of the Electricity Act, 2003, regulation 25 & 26 of DERC Regulations, in order to make out a case of dishonest abstraction of energy by the consumer, the decision making authority is expected to hold a proper enquiry affording a reasonable opportunity of hearing to the consumer against whom grave charges are made.

Now in facts of present case, inspection was done on 6.9.06. DW1 Yogender Kumar was member of inspecting team, DW1 says at the time of inspection plaintiff was present at the site and at the time of 8 inspection Meter No. 40053664, was found tampered and two external PVC wires between I/C & O/G & neutral terminal was found in order to manipulate the consumption & Meter was found slow by 76.26% as per accuracy test. DW1 also says load against the said connection was found to be 5.74 KW against sanctioned load of 1 KW. Reports are Ex.DW1/1 & DW1/2. Perusal of this report also mention above said facts. It is also mentioned in report that there were two A/C (Air­ conditioners), 5 ceiling fans, 1 Fridge, 1 TV, 1 Washing Machine & 6 points were found.

Now after the above inspection PW 1 says that he was served with show cause notice Ex.PW1/6 & plaintiff stated to have replied to said notice, which is Ex.PW1/7. Perusal of these documents indicates that when NDPL called upon for explaining above said DAE, plaintiff in his reply has alleged regarding bribe asked by officials of NDPL. Evidently after giving personal hearing, NDPL passed speaking order which is Ex.PW1/8 as well as Ex.DW2/1. DW 2 is Pardeep Chauhan who passed said speaking order on 27.11.08. DW 2 says after considering materials & contention of consumer, he found that case of DAE was established as per regulations of DERC.

Now after going through the evidences as come on record and evaluating the inspection reports, reply and complaints of plaintiff and speaking order passed. Let us now assess contentions raised on behalf of plaintiff. It is argued that admittedly meter was replaced on 2.09.06 and then inspection was done on 6.09.06 & thus within four days of installing new meter inspection 9 was done which indicates that inspection report Ex.PW1/D1 (or DW1/1 & 2) were false. It is also submitted that prior to date of inspection officials of NDPL asked for bribe.

Now taking this submission on the face of it, so far as allegations of demand of bribe made against officials of NDPL, I find even plaintiff himself has failed to establish same in his evidence because PW 1 says in his cross examination he did not make any complaint to police or defendant (NDPL) regarding bribe demands in first week of Sept. 2006. PW1 further says he do not know the name of officials of NDPL who demanded bribe. PW 1 says he did not see their identity card also. Similarly PW 2 in his cross examination says he is not aware of names of official who demanded bribe. Now seeking this evidence one can not conclude that if there was any demand for bribe or not. If on three occasions, according to plaintiffs some one asked for bribe, it is expected that plaintiff should have lodged complaint with police immediately. All the complaints Ex.PW1/3, Ex. PW1/4 & Ex.PW1/5 are complaints, made only after the inspection of meter. It is also admitted case that at the time of inspection, on 6.9.08 plaintiff was present at site when 6/7 officers of Inspection Team came to site. Even at that time plaintiff could have register his protest or complaint to Inspecting Team that officials of NDPL had been asking for bribe. But all the complaints regarding alleged demand of bribe were made only after inspection was already conduct on the premises of plaintiff. No doubt one can not rule out that menace of corruption in electricity department, but one who claim that on three 10 days some one demanded bribe from him and he refused,but why a prompt complaint was not made to police or NDPL. It is always easy to make allegations of demand of bribe, specifically when inspection was conducted. Moreover evidence of both PW1 and PW2 is most vague, they failed to specify as to who were those officials who allegedly demanded bribe.

In this context it is important to examine the inspection report and speaking order of NDPL. Perusal of inspecting report indicates that two numbers PVC wires were found connected between I/C & O/G & Neutral terminal of Meter, it was also noted that from accuracy test result, it was found that meter was slow by 76.26 %. It is also noted in inspection report, that there were 2 Air Conditioners, 5 ceiling fans, one washing machine, one TV and one Fridge & total load was of 5.74 KW against sanctioned load of 1 KW. It be noted 6 officials of NDPL had singed this inspection report. Only challenge to this report is that within four days of installation, this inspection was done. Now it be kept in mind that it was not a case of Direct theft of energy, it was case of DAE (Dishonest abstraction of energy) As discussed above, DAE can be done, even by fixing some wire or some instrument to either slow down the meter or by some internal mechanism such as reversing the polarity of one phase of meter, changes in CT or PT etc. & such abstraction can be made at the time of installation of meter or immediately after installation, so that pattern of energy consumption must not abruptly change. Therefore, to argue that within four days of installation of meter inspection was done and DAE was 11 found, create doubt. It does not create doubt specifically when as per regulation 25 & 26 & 52&53 of DERC, DAE is not alleged only on the basis of inspection report. Perusal of speaking order Ex.DW2/1 (Ex.PW1/8) would show, that all aspects were examined by DW2 Pardeep Chauhan who in his cross examination has stated that he has special knowledge & has done B­Tech (Electrical Engineering). Speaking order also deal with allegations of demand of bribe by officials of NDPL and it was noted that plaintiff had not supplied any document or details of person who demanded. Then so far as DAE keeping in mind inspection report it was noted in speaking order:

"As all other seals were found intact on your meter and two PVC wires were found inside your meter, it appear that the shunt was placed at the time of installation of meter at your behest. As you are the only beneficiary of such tampering and there is no reason that something is done by any body which ultimately benefits you. Further a well calibrated meter was installed at tour sight in your presence, it is not feasible for any body else to insert two external shunt in your meter, without your knowledge, especially when you are a technical person, retire from DVB. Allegations by you are an after thought, as you are being caught in inspection and booked for DAE."

Speaking Order indicate that DW2 also assessed energy consumption pattern for past 12 months and then it was also noted that as per DERC regulations responsibility to keep meter safety & safe custody lies on consumer.

Taking the evidence of PW 1 and PW 2 nothing could came out in their evidence, show that inspection report and speaking order as passed, in any manner is 12 incorrect or manipulated. Rather I find inspection as conducted & thereafter issuance of show cause notice and giving repeated opportunity for personal hearing and thereafter passing of speaking order was strictly as per regulations of DERC and provisions of Electricity Act 2003. I do not find any illegality or irregularities in these proceedings. Thus for the reasons discussed above these issues stand decided against plaintiff.

11. RELIEF In view of my findings on the abovesaid issues suit stands dismissed. Decree sheet for dismissal be prepared accordingly. File be consigned to record room. Announced in the open Court On 10.04.2013 (SHAILENDER MALIK) SCJ/RC/NW/ROHINI/DELHI 13 Suit No.34/08 10.04.13 Present. None.

Vide my separate judgment of even date suit of the plaintiff is dismissed. Decree sheet for dismissal be prepared accordingly. File be consigned to record room.

(SHAILENDER MALIK) SCJ/RC/NW/ROHINI/DELHI 10.04.13