Delhi District Court
Sh Mohan Lal vs North Delhi Power Limited on 19 May, 2014
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 97/2014 & Suit No. 98/2014
IN THE MATTER OF:
Sh Mohan Lal
S/o Sh Net Ram,
R/o Khasra No. 49/11,
Samaipur, Delhi
Through General Attorney .....Plaintiff
VERSUS
North Delhi Power Limited
Grid Sub Station Building,
Hudson Line, Kingsway Camp,
Delhi.
....Defendant
Date of Institution of suit No. 97/2014 : 29.08.2001
Date of Institution of suit No. 98/2014 : 18.03.2002
Date of Reserving for Judgment: 09.05.2014
Date of Judgment : 19.05.2014
BOTH SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT:
1. Vide this common judgment, I shall decide two suit i.e. Suit No. 97/2014 & suit bearing No. 98/2014 both for permanent and mandatory injunction, filed by the plaintiff. Suit No. 97/2014 & Suit No. 98/2014 Page No. 1 of 29
2. The brief facts of the case bearing No. 97/2014 as per the plaintiff are that, the plaintiff is a registered consumer of electricity against electric connection bearing K No. SB/003/1233392 installed at the property bearing no. KH No. 49/11, Samaipur Delhi. Sh Arun Kumar is a duly constituted attorney of the plaintiff vide General Power of attorney dt. 27.10.99. Sh Arun Kumar is fully authorized to file any suit on behalf of the plaintiff regarding the electric connection mentioned above. Sh Arun Kumar is familiar with the facts of the present case. The suit is accordingly been signed, verified and filed by the said Sh Arun Kumar. It is further submitted that an alleged inspection was conducted by the officials of the defendant for the aforesaid electric connection on 8.9.2000, but no inspection report was prepared at site, nor any copy of the inspection report was pasted at site and further no copy of the inspection report was ever sent by regd. post to the petitioner by the respondent officials as required under the rules framed by the respondent itself. The alleged inspection was not conducted in the present of the plaintiff. The legality and validity of the alleged inspection is seriously challenged. It is further submitted that since Sept. 2000, the plaintiff had not received any regular monthly bill from the month of July 2001 only. This bill has been raised by leveling misuse charges on account of LPF and on minimum basis of alleged connected load of Suit No. 97/2014 & Suit No. 98/2014 Page No. 2 of 29 61.02 KW whereas the actual connected load at site is even less than 15 KW with adequate shunt capacitors. It is further submitted that the sanctioned load of the aforesaid connection is 3.73 KW and the meter and the cable line has also been installed as per the said sanctioned load. The plaintiff declared his connected load in voluntary disclosure scheme 1995 as 14.92 KW and deposited the required charges for replacement of meter and service line but the respondent officials have not replaced the same for the reasons best known to them. The raising the aforesaid bill for the month of July 2001 which included the arrears on minimum basis on the alleged connected load of 61.02 KW also is absolutely illegal and unenforceable under law. The petitioner was not given any show cause notice and opportunity of personal hearing before levying misuse charges on account of load violation and LPF. The action of the respondent is against the principals of Natural Justice and violative of provisions of law and their own policies. It is further submitted that the correctness of the alleged connected load of 61.02 KW is falsified from the fact that the meter and service line installed for a connection of 3.73 KW cannot bear the load of 61.02 KW even for a single minute and they would have burnt immediately had the petitioner put the connected load of 61.02 KW on the said meter and service line. But this has not happened till today. It is Suit No. 97/2014 & Suit No. 98/2014 Page No. 3 of 29 further submitted that after receiving the impugned bill, the plaintiff and the defendant officials on 24.07.2001 to apprise them about the true state of affairs but they refused to hear the same and asked the plaintiff to pay the bill. It is further submitted that the due date of the bill was 29.07.2001 but the defendant officials acting in most arbitrary and illegal manner disconnected the electricity supply of the plaintiff on 26/27.7.2001 by disconnecting the connection from the pole. After receiving the impugned bill, the plaintiff has applied for reinspection and has also submitted test report so that the truth may come on record. But the defendant officials have asked the plaintiff to pay the bill raised for the month of July 2001 to get the re inspection done vide letter dated 3.8.2001 received by the plaintiff on 27.08.2001. It is further submitted that the plaintiff visited the office of the defendant on 28.08.2001 to get the electricity restored but they refused to hear the plaintiff and rather threatened the plaintiff that they will continue to raise the future bills in the same manner inspite of disconnection. It is further submitted that the whole action of the defendant in raising the bill on the alleged connected of of 61.02 KW and also of disconnecting the connection even before due date is absolutely illegal, highly unjustified, and not sustainable in law. No show cause notice and opportunity of personal hearing of any nature was ever afforded by the defendant Suit No. 97/2014 & Suit No. 98/2014 Page No. 4 of 29 to the plaintiff before raising the impugned bill or before disconnecting the connection. Hence the present suit is filed by the plaintiff.
3. On the other hand the defendant in its WS in suit bearing No. 97/2014 has contended that the suit of the plaintiff is sheer misuse of the process of law. Also, there is not cause of action in favour of the plaintiff. The suit is liable to be dismissed u/s 41 of the Specific Relief Act. It is further submitted that no notice has been served by the plaintiff before filing the suit. Also, the plaintiff has not come with clean hands and have concealed material facts from the Court. It is further submitted that an inspection was carried out at the premises of the plaintiff on 8.9.2000 by the staff of the defendant. It is submitted that the connected load was found as 61.009 KW which is more than the sanctioned load. It is further submitted that the seal were found tampered and and a case of FAE was booked against the plaintiff. It is further submitted that the load report was prepared at the sit in presence of the plaintiff but he refused to sign the inspection report. At the time of inspection the connected load was found as 61.009 KW and the bill was raised according to the load report which is legal and the plaintiff is liable to pay the same. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be Suit No. 97/2014 & Suit No. 98/2014 Page No. 5 of 29 dismissed.
4. From the pleading of the parties, in suit bearing No. 97/2014, following issues were framed vide order dt. 11112002 & 0205 2014:
i) Whether the plaintiff has not come to the court with clean hands and has suppressed material facts as alleged by the defendant? If so, its effect? OPD
ii) Whether the alleged inspection dt. 8.9.2000 is proper and valid? If so, its effect? OPD
iii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
iv) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP
v). Whether the plaintiff is not entitled to a decree of decleration, declaring the inspection report dated 8/9/2000 and the speaking orders or any other order and bills raised on the basis of the said inspection report as null and void? OPD"
vi) Relief.
5. The brief facts of the case bearing No. 98/2014 as per the plaintiff are that, the plaintiff is a registered consumer of electricity against electric connection bearing K No. SB/003/1233392 installed at the property bearing no. KH No. 49/11, Samaipur Delhi. Sh Arun Kumar Suit No. 97/2014 & Suit No. 98/2014 Page No. 6 of 29 is a duly constituted attorney of the plaintiff vide General Power of attorney dt. 27.10.99. Sh Arun Kumar is fully authorized to file any suit on behalf of the plaintiff regarding the electric connection mentioned above. Sh Arun Kumar is familiar with the facts of the present case. The suit is accordingly been signed, verified and filed by the said Sh Arun Kumar. It is further submitted that an alleged inspection was conducted by the officials of the defendant for the aforesaid electric connection on 8.9.2000, but no inspection report was prepared at site, nor any copy of the inspection report was pasted at site and further no copy of the inspection report was ever sent by regd. post to the petitioner by the respondent officials as required under the rules framed by the respondent itself. The alleged inspection was not conducted in the present of the plaintiff. The legality and validity of the alleged inspection is seriously challenged. It is further submitted that since Sept. 2000, the plaintiff had not received any regular monthly bill from the month of July 2001 only. This bill has been raised by leveling misuse charges on account of LPF and on minimum basis of alleged connected load of 61.02 KW whereas the actual connected load at site is even less than 15 KW with adequate shunt capacitors. It is further submitted that the sanctioned load of the aforesaid connection is 3.73 KW and the meter and the cable line has also been installed as per the said Suit No. 97/2014 & Suit No. 98/2014 Page No. 7 of 29 sanctioned load. The plaintiff declared his connected load in voluntary disclosure scheme 1995 as 14.92 KW and deposited the required charges for replacement of meter and service line but the respondent officials have not replaced the same for the reasons best known to them. It is further submitted that plaintiff challenged the aforesaid bill of July, 2001 in Civil Court in suit No. 432/2001 where the plaintiff prayed that the defendant be directed to raise bill on the basis of sanctioned load without LPF charges and also to restore the aforesaid electric connection of the plaintiff. It is further submitted that the court in that suit vide order dt. 29092001 directed the defendant to restore the electricity supply of the plaintiff within four days of the plaintiff depositing 60% of the impugned bill and also directed the defendant to conduct reinspection within 7 days from the restoration. Accordingly, the plaintiff deposited the amount of Rs. 69,58120 on 17102001, but the defendant did not obey the order of the court and neither restored the electricity nor conduct the reinspection. It is further submitted that the plaintiff wrote a letter dt. 06122001 to the defendant in this regard, but the defendant did not do the requisite. It is further submitted that the electricity supply was restored on 22022002 and reinspection was done on 14032002 where the connected load was found to be 13.70 KW. It is further submitted that plaintiff has received the bill Suit No. 97/2014 & Suit No. 98/2014 Page No. 8 of 29 for the month of Feb. 2002 for Rs. 1,27,100/. Prior to this the plaintiff had not received any bill since July, 2001 On making inquiry it was revealed that the bill has been raised on the minimum basis on the connected load of 61 KW for six months and thereafter for Rs. 40 per month as meter rent as the supply was not restored. This bill itself shows that the electricity supply of the plaintiff was not restored by the defendant at least upto Feb. 2002. The defendant has also included a sum of Rs. 46,379 ( approx) as arrears which is in fact the stayed amount of the bill of July 2001. It is further submitted that the plaintiff is not liable to pay any minimum charges of the aforesaid connection from July 2001 to 22022002 as the plaintiff was illegally deprived of enjoying electricity by the defendant. The plaintiff is also not liable to pay LPF charges as the shunt capacitors installed are of adequate capacity and in working order. It is further submitted that the plaintiff visited the defendant office on 13032001 to request them to withdraw the bill but they refused to hear the plaintiff. It is further submitted that the defendant official visited the plaintiff's property on 15032002 for disconnecting the connection due to nonpayment of the bill raised for February, 2002. The plaintiff requested them that the bill is wrong but they refused to hear the same and left the premises asking the plaintiff to deposit the amount as per the impugned bill within two Suit No. 97/2014 & Suit No. 98/2014 Page No. 9 of 29 days failing which they will disconnect the electricity supply. Hence the present suit is filed by the plaintiff.
6. On the other hand the defendant in its WS in suit bearing No. 98/2014 has contended that the suit of the plaintiff is sheer misuse of the process of law. Also, there is not cause of action in favour of the plaintiff. The suit is liable to be dismissed u/s 41 of the Specific Relief Act. It is further submitted that no notice has been served by the plaintiff before filing the suit. Also, the plaintiff has not come with clean hands and have concealed material facts from the Court. It is further submitted that an inspection was carried out at the premises of the plaintiff on 8.9.2000 by the staff of the defendant. It is submitted that the connected load was found as 61.009 KW which is more than the sanctioned load i.e. 14.92. It is further submitted that the seal were found tampered and and a case of FAE was booked against the plaintiff. The bill of Rs. 1,27,100/ issued to the plaintiff is legal and as per law. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
7. From the pleading of the parties, in suit No. 98/2014, following issues were framed vide order dt. 16122003 :
i) Whether the alleged inspection dt. 8.9.2000 is valid and correct? If so, its effect? OPD Suit No. 97/2014 & Suit No. 98/2014 Page No. 10 of 29
ii) Whether the plaintiff is entitled to the decree for permanent injunction as prayed for? OPP
iii) Whether the plaintiff is entitled to the Decree for mandatory injunction as prayed for? OPP
iv) Relief
v) Whether the plaintiff is not entitled to a decree of declaration, declaring the inspection report dated 8/9/2000 and the speaking orders or any other order and bills raised on the basis of the said inspection report as null and void? OPD"
8. In both the cases common evidence was led and suit bearing No. 97/2014 ( 1129/06 Old number) was treated as leading case.
9. To prove his cases plaintiff has examined Sh. Arun Kumar as PW1. PW2 has filed his evidence by way of affidavit Ex. P1. In his affidavit PW1 has reiterated the facts mentioned in his plaint and relied upon the following documents:
i) GPA dt. 27101999 & 13052004 are Ex. PW1/1 & PW1/2.
ii) Bill for the month of July, 2001 is Ex. PW1/3. Iii) Letter dt. 01082001 made to the defendant is Ex. PW2/7.
iv) Reply to letter dt. 01082001 sent by the defendant to the plaintiff is Ex. PW2/8.
v) The reinspection report dt. 14032002 is Ex. PW2/9.
vi) Bill for the month of October, 1995 and June, 2000 are Ex. Suit No. 97/2014 & Suit No. 98/2014 Page No. 11 of 29 PW1/7 & Ex. PW1/8.
Vii) Office order dt. 11071996, 26021997 and 22101996 issued by DESU are Ex. PW1/9 to Ex.PW1/11 respectively. The PW1 was also crossexamined by the Ld. counsel for the defendant.
10. The plaintiff has also examined Sh. Sukhvir , AGIII, NDPL Badli Zone, Delhi who has brought the summoned record Ex. PW2/1 to PW2/6 pertaining the the application of the plaintiff and payment thereof. He also exhibited the documents Ex. PW2/7 to Ex. PW2/9 as above mentioned.
11. On the other hand the defendants have examined Sh. V.K. Lavania as DW1 who has filed his evidence by way of affidavit Ex. DW1/A and relied upon the document Ex. DW3/P2 which is inspection report dt. 08092000.
12.Further the defendant has examined Sh. D.K. Rastogi ad DW2 , who has also filed his evidence by way of affidavit Ex. DW2/A and relied upon the documents Ex. DW3/P1 which is inspection report No. 9081 dt. 08092000. Further the defendant has examined Sh. Balbir Singh as DW3 who has also filed his evidence by way of affidavit Ex. DW3/A and relied upon the documents Ex. DW3/1 & 2 i.e. Notice No. 2990/777 & F 2990/93 dt. 09112000. All the defendant witnesses were also crossexamined by the Ld. Suit No. 97/2014 & Suit No. 98/2014 Page No. 12 of 29 counsel for the plaintiff. DW2 was partly crossexamined on 2301 2013, thereafter he stopped appearing. During crossexamination DW3 was also confronted with document Ex. DW3/P1 & DW3/P2.
13. I have heard the counsel for both the parties and gone through the record carefully and perused the relevant provision of law.
14. My issue wise finding is as under:
15. Issue no. 1 in CS No. 98/2010 ( Issue No. 2 in CS No. 97/2010) Whether the alleged inspection dt. 8.9.2000 is valid and correct? If so, its effect? OPD Issue no. 5 in both the cases : Whether the plaintiff is not entitled to a decree of declaration, declaring the inspection report dated 8/9/2000 and the speaking orders or any other order and bills raised on the basis of the said inspection report as null and void? OPD"
For the sake of convenience, both above issue are taken up together and decided first.
Before discussing the rival contentions of the parties, it is worthwhile to discuss the evidence led by the parties.
16.The plaintiff examined his AR Sh. Arun Kumar who stated in his crossexamination that he is doing the business of dual disk in the suit premises in the name and style of M/s. Garg Trader for which he has no municipal licence. He stated that the inspection was Suit No. 97/2014 & Suit No. 98/2014 Page No. 13 of 29 done in 2000 in his absence and came to know about the inspection on receiving of the bill. Neither show cause notice was sent nor personal hearing was afforded by the defendant. He stated that he is not regularly paying bills since incorrect bills were issued to him, regarding it he had met the officials of the defendant. He denied the case of the defendant in toto.
17.Pw2 Sh. Sukhvir stated in his evidence that the plaintiff had applied under the voluntary disclosure scheme, 1995 and the application and payment thereof are Ex. PW2/1 to Ex. PW2/6. He proved the letter dated 1/8/2001 as Ex. Pw2/7 and its reply as Ex. PW2/8. He proved the copy of the reinspection report as Ex. PW2/9. He stated that the plaintiff has deposited the charges of VDS, 1995.
18.DW1 Sh. V.K. Lavania stated in his crossexamination that it is wrong that on the date of inspection, the inspecting team was not carrying the original seal/sample monogram to compare with the affixed seal of meter no. 4D 904294. He stated that he had no proof to show that seals were issued to him prior to the inspection. He stated that in the report Ex. DW3/P2 the inspecting team did not prepare the comparative diagram of the affixed meter half seals with the original monogram seal. The manner in which the meter half seal and rivets is not mentioned in Ex. DW3/P2. He stated that he has no photograph of affixed meter half seal and the rivets and has Suit No. 97/2014 & Suit No. 98/2014 Page No. 14 of 29 no proof of any nature whatsoever to show the condition and status of the meter half seal and rivets as existing on 8/9/2000. No diagrams of rivets of the meter was prepared. He stated that he has no proof to show that the meter half seals were tempered. He stated that he had not checked the working of the meter as there was no electricity supply and meter was not checked on any other date there after by the team. He stated that there is no allegation against the plaintiff to the effect that the meter in question was recording less consumption as compared to the actual consumption. No artificial means or foreign material/object were found at the site to commit theft of electricity in any manner whatsoever. He admitted that at the time of inspection no theft of electricity was found at the site. He stated that no independent witness was called to join the inspection. The plaintiff was not present at the time of inspection. He stated that it is wrong to suggest that Ex. DW3/P2 was not prepared at the site however he has no proof in this regard. He admitted that the copy of inspection report Ex. DW3/P2 (MTD report) was not pasted at site. He stated that a person was working at the site but his name was not asked by the team and his statement was also not recorded as there is no such practice. He stated that he has no proof to show that no such person was present at the site. He denied that in Ex. DW3/P2 it has been wrongly and illegally Suit No. 97/2014 & Suit No. 98/2014 Page No. 15 of 29 mentioned 'refused to sign'.
19.The defendant examined DW2 Mr. D. K. Rastogi who was only partly crossexamined as he stopped appearing for deposing in the court. He stated in his crossexamination that he was working as JE, Enforcement in the year 2000. He was appointed in the DVB in 1993. His work was to check the connected load and to see what type of business was being run at the premises in question. He was not concerned with the checking of the meter. He did not check the meter in question himself. He never worked in the MTD department of the defendant. He had never checked any three phase meter of his own. He conducted the inspection with the joint team. He stated that the meter in question was not opened and no investigation/checking was done to ascertain whether there was any tempering in the meter or not. He stated that the meter seals were found fictitious and rivets were found tempered as mentioned in the inspection report Ex. DW3/P2. He stated that at the time of inspection, there was no electricity supply and the joint team had never inspected the meter in question again to confirm whether the electricity was being consumed fraudulently or not.
20.DW 3 Sh. Balbir Singh stated in his crossexamination that there is no proof to show that show cause notice Ex. DW3/1 & Ex. DW3/2 were ever sent to the consumer. He stated that he has nothing to Suit No. 97/2014 & Suit No. 98/2014 Page No. 16 of 29 show that the allegations in the inspection report are true. He stated that a labour was present at them site. The plaintiff/consumer and his representative was not at site. No independent witness was called to join the inspection. He stated that he signed the report Ex. Dw3/P1 & Ex. Dw3/P2 simply because same was prepared by his staff and he trusted them. He did not check the machines and number of machines personally which were lying installed at the premises personally. He did not check the connected load personally. Photographs were taken by the zonal office team. The connected load was 61.009 Kwt as per the load checking by the staff. He stated that the team was not having any instrument to check the capacity of the machines installed at the premises. The inspection report does not mention of taking of the photographs. He admitted that the report Ex. Dw3/P1 and Ex. Dw3/P2 were neither pasted at site not sent vide registered post. The service cable can bear the load only to a limited extent to its capacity. He stated that the sanctioned load was 14.92 Kwt. He stated that he cannot answer if the service cable found at the time of inspection could bear the load of 61.009kwt as he did not test the meter in question. He denied that the shunt capacitors of adequate capacity were installed in working condition on the date of the inspection.
21.The plaintiff in the instant case bearing Suit no. 97/2014 is seeking Suit No. 97/2014 & Suit No. 98/2014 Page No. 17 of 29 relief of mandatory injunction directing the defendant to restore the electricity supply of the plaintiff vide K no. SB/003/1233392 installed at Kh. No. 49/11, Samaipur, Delhi and to revise the impugned bill of July 2001 as per the sanctioned load for the current demand as well as for the arrears without LPF charges. The plaintiff is also seeking the relief of permanent injunction restraining the defendants from raising future bills till the electricity supply is restored.
22.The plaintiff in in the instant case bearing Suit no. 98/2014 is seeking relief of permanent injunction restraining the defendant from disconnecting the electricity supply of the plaintiff regarding K. No. SB/003/1233392 for nonpayment of the impugned bill amounting to Rs. 1,27,100 (Rs. 1,29,150/ after due date). The plaintiff is also seeking decree of mandatory injunction directing the defendant to revise the bill of February 2002 and to raise the same only for meter rent for the period during which the electricity connection bearing K. no. SB/003/1233392 remained disconnected and thereafter on the basis of the connected load of 13.70 KW and that the defendants raise the future bills on the connected load of 13.70 KW.
23.Before delving upon the rival contentions of the parties, it would be worthwhile to discuss certain precedents on this aspect. In Narinder Aggarwal vs Bses Rajdhani Power Ltd decided on 18 March, 2011 By Justice Rajiv Sahai Endlaw of the Hon'ble High Suit No. 97/2014 & Suit No. 98/2014 Page No. 18 of 29 Court of Delhi in W.P.(C) 1789/2011, it was held as under regarding dishonest abstraction of electricity:
17. This Court has in:
(a) Udham Singh Vs. BSES Rajdhani Power Ltd. 136 (2007) DLT 500.
(b) Jagdish Narayan Vs. NDPL 140 (2007) DLT 307.
(c) J.K. Steelomelt (P) Ltd. Vs. BSES Rajdhani Power Ltd. 140 (2007) DLT 563.
held that before arriving at a finding of DAE, the Assessing Officer is required to observe the consumption pattern of the consumer and in the absence of DAE having been established from the consumption pattern, no case for DAE can be made out. It was further held that when the meter is not checked for accuracy, the finding of the DAE is flawed. The Courts have also held that mens rea or intention of the consumer to dishonestly abstract electricity must be proved conclusively to bring home the charge of DAE. It was further held that external manifestation of tampering can only raise a suspicion which cannot take the place of proof. This Court in Harvinder Motors Vs. BSES Rajdhani Power Ltd. AIR 2007 Delhi 85 further held that the proceedings for DAE have adverse consequences; the consumer is held liable to pay statutorily determined amountthe monetary liabilities are stiff. In the circumstances it was held that without putting the brief description of the consumption pattern to the consumer, there could be no proper hearing or compliance of principles of natural justice.
In J.K. Steelomelt (P) Ltd. Vs. BSES Rajdhani Power Ltd. 140 (2007) DLT 563, it was held as under:
21. This Court has in a series of decisions inUdham Singh v. BSES Rajdhani Power Ltd.136 (2007) DLT 500, Col.
R.K. Nayyar v. BSES(Judgment dated 18.4.2007 in W.P. (C) No. 2904 of 2005) and Smt. Jagdish Narayan v. NDPL (Judgment dated 18.4.2007 in W.P. (C) No. 10287 of 2005 etc.) interpreted the provisions of Section 135 of the Act read with the DERC Regulations. The relevant passages of the last mentioned judgment in Jagdish Narayan reads as under:
23. What is central to the definition of theft under Section 135 of the Act, which according to the respondent covers DAE as well is the element of 'dishonesty'. Therefore the means read or the intention of the consumer to dishonestly abstract electricity must be proved "conclusively" to bring home the Suit No. 97/2014 & Suit No. 98/2014 Page No. 19 of 29 charge of DAE. Therefore the requirement of "conclusive evidence" in terms of Regulation 25 (iii) is consistent with the statutory mandate of Section 135(1). That can be established only by showing that the consumer was responsible for tampering the meter by some visible means. The external manifestations of tampering, as has been found in the inspections conducted in the present cases, can only raise a suspicion of DAE. That suspicion will have to be made good by some tangible evidence of physical means of tampering before the presumption can be drawn that it was the consumer who tampered the meter.
24. The decision of the Hon'ble Supreme Court in Jagannath Singh v. B.S. Ramaswamy is illustrative although there the Court was concerned with a criminal conviction for the offence of theft of electricity under Sections 39 and 44 of the Indian Electricity Act, 1910. The approach to the requirement of proof of dishonest abstraction of energy is nevertheless relevant for the present case. The Hon'ble Supreme Court held that the existence of artificial means for abstracting energy can only give rise to a presumption that there had been a dishonest abstraction. The supplier would still have to show that the consumer is responsible for such tampering. In the said case, it was contended that the existence of an open stud hole on the meter was sufficient proof that dishonest abstraction of energy had taken place. In answer to that contention, the Hon'ble Supreme Court observed as under: "A meter with an exposed stud hole, without more, is not a perfected instrument for unauthorized taking of energy, and cannot be regarded as an artificial means of its abstraction. To make it such an artificial means, the tampering must go further, and the meter must be converted into an instrument for recording less than the units actually passing through it. A check meter affords an easy method of proving that the consumer's meter is recording less than the units consumed and is being used as an artificial means for abstraction of the unrecorded energy. To bring home the charge under Section 39, the prosecution must also prove that the consumer is responsible for the tampering. The evidence adduced by the prosecution must establish beyond doubt that the consumer is guilty of dishonest abstraction of energy."
25. 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.
Suit No. 97/2014 & Suit No. 98/2014 Page No. 20 of 29 Some other tangible evidence must be shown to exist. An accu check meter can be deployed to find out if the meter is in fact recording lesser 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) DLT 500 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.
1. In reiteration of the above judgments, it is held that in order to establish DAE through conclusive evidence, it is incumbent on the respondent to show, not merely with the reference to the consumption pattern, but by some other tangible evidence that there has been the tampering with or access by the petitioner to the internal mechanism of the meter in a manner that would slow down the consumption. This could be, for instance, in the form of an accuchek instrument being used to detect if the meter was recording lesser consumption than it should.
From the abovediscussed judgments it is manifest that to prove dishonest abstraction of electricity it is essential for the defendant to show, (i) the consumption pattern of the consumer
(ii) some tangible evidence that there has been the tampering with or access by the plaintiff to the internal mechanism of the meter in a manner that would slow down the consumption. This could be, for instance, in the form of an accuchek instrument being used to detect if the meter was recording lesser consumption than it should.
24.The case of the defendant is that a connected load of 61.009KW Suit No. 97/2014 & Suit No. 98/2014 Page No. 21 of 29 against the sanctioned load of 14.92 KW was found at the site on the date of inspection on 8/9/2000 and the half meter seals were found fictitious and the rivets were found tampered. Therefore, a case of FAE was booked against the plaintiff and bills according to the connected load found at the spot were raised on the plaintiff. Thus, clearly, the actions of the defendant in raising the bills after the inspection, disconnection of electricity connection etc. were taken by the defendant on the basis of the inspection held on 8/9/2000 and the inspection report. The burden to prove the inspection report as true and correct as is manifest from the issue no. 2 was on the defendant.
25.As is clear from the depositions of the defendant witnesses, admittedly, the defendant did not take the assistance of and instrument viz. accuchek instrument etc., which affords an easy method of proving that the consumer's meter is recording less than the units consumed and is being used as an artificial means for abstraction of the unrecorded energy. DW3 stated that he did not check the machines and number of machines personally which were lying installed at the premises. He did not check the connected load personally. The connected load was 61.009 Kwt as per the load checking by the staff. He stated that the team was not having any instrument to check the capacity of the Suit No. 97/2014 & Suit No. 98/2014 Page No. 22 of 29 machines installed at the premises. The DW3 did not prove his statement that photographs were taken by the zonal office team during inspection by placing on record the photographs. Admittedly, no photographs were taken during the inspection as is evident from the statements of DW1 and DW2. Admittedly, neither the plaintiff nor his representative was present at the time of inspection. The story of presence of a worker/employee has not been proved by the defendant. Admittedly, the inspection report was neither pasted at the site nor sent to the plaintiff nor the registered post has been proved on record. DW3 stated that he cannot answer if the service cable found at the time of inspection could bear the load of 61.009kwt as he did not test the meter in question.
26.DW2 has categorically stated that He did not check the meter in question himself. He stated that the meter in question was not opened and no investigation/checking was done to ascertain whether there was any tempering in the meter or not. He stated that the meter seals were found fictitious and rivets were found tempered as mentioned in the inspection report Ex. DW3/P2. He stated that at the time of inspection, there was no electricity supply and the joint team had never inspected the meter in question again to confirm whether the electricity was being Suit No. 97/2014 & Suit No. 98/2014 Page No. 23 of 29 consumed fraudulently or not.
27.DW1 has stated in his evidence that he had not checked the working of the meter as there was no electricity supply and meter was not checked on any other date there after by the team. He stated that there is no allegation against the plaintiff to the effect that the meter in question was recording less consumption as compared to the actual consumption. No artificial means or foreign material/object were found at the site to commit theft of electricity in any manner whatsoever. He admitted that at the time of inspection no theft of electricity was found at the site. He stated that no independent witness was called to join the inspection.
28.Further, admittedly, the proof of original seal being carried at the time of inspection has not been proved by the defendant. Thus, how did the allegations of FAE against the plaintiff surfaced has not been explained and proved by the defendant.
From the aforesaid it is thus clear that the defendant has failed to inspire confidence in the inspection report dated 8/9/2000 and the basis of the inspection report has not been proved by the defendant. On the basis of the foregoing judgments and the discussions made above, clearly, the impugned inspection report dated 08/09/2001, Ex. DW3/P2 Suit No. 97/2014 & Suit No. 98/2014 Page No. 24 of 29 holding that the plaintiff is guilty of DAE is declared unsustainable in law and is accordingly declared illegal. Further, the assessment bill for theft raised by the defendant for a sum of Rs. 1,15,950 / with due date 29072001 & bill dt. February, 2002 for a sum of Rs. 1,27,100/ are also declared illegal.
Therefore, these issues are accordingly decided in favour of the plaintiff and against the defendant.
29. Issue no. 1( in CS No. 97/2014) Whether the plaintiff has not come to the court with clean hands and has suppressed material facts as alleged by the defendant? If so, its effect? OPD The burden to prove this issue was on the defendant however, the defendant has neither led any evidence in this regard nor otherwise proved this issue. This issue is accordingly decided in favour of the plaintiff and against the defendant.
30.Issue no. 2 in CS No. 98/2014 ( issue No. 3 in CS No. 97/2014) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP Issue no. 3 in CS No. 98/2014 ( issue No. 4 in CS No. 97/2014) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP Suit No. 97/2014 & Suit No. 98/2014 Page No. 25 of 29 Above Issues being interrelated are being taken up and decided together.
The case of the plaintiff is that earlier connected sanctioned load of the connection K. no. SB/003/1233392 was 3.73 KW and the plaintiff under the Voluntary Disclosure Scheme, 1995 admitted having been using the connection load of 14.92 KW and also deposited the requisite charges in this respect. This has been proved by the witness PW2 vide Ex. PW2/1 to Ex. PW2/9. According to the plaintiff he had never used the load beyond the sanctioned load and even the service cables for the sanctioned load are not of the capacity to bear the load of 61.009 Kwt. The Dw3 has stated after going through the office order dated 22/10/1996, Ex. DW3/P3, that it was issued by erstwhile DESU. According to this office order wires/cables of different varieties/gauge is installed as per the sanctioned load. Meaning thereby that the cable for sanctioned load of 14.92 KW cannot bear the load of 61.009 Kwt. In this regard, the relevant portion of the said office order is reproduced as under: B) For three phase connections: Meter size Cable Size
1. Loads above 10 KW and upto/ Poly phase 4 x 25 Sq. MM including 15 KW ( 20 HP) 3x (3060)Amps
2. Loads above 15 KW ( 20 HP) L.T.C.T 4 x 50 Sq. MM and upto/including 37 KW ( 50 HP) Meter 3x 100/5 Amps
3. Loads above 37 KW ( 50 HP) L.T.C.T 4 x 95 Sq. MM and upto/including 56 KW ( 75 HP) Meter Suit No. 97/2014 & Suit No. 98/2014 Page No. 26 of 29 3x 100/5
4. Loads above 56 KW ( 75 HP) L.T.C.T 4 x 150 Sq. MM and upto/including 100 KW ( 134 HP) Meter 3x 200/5
31.Since, the inspection report dated 8/9/2001 has already been declared as null and void as discussed int he findings of issue No. 1 & 5 of CS No. 98/2014 and issue No. 2 & 5 of CS No. 97/2014 and also considering the fact that there is nothing on record in the form of photographs etc except the inspection report dated 8/9/2001 to show that the connected load was beyond the sanctioned load, it is manifest that there is nothing on record to prove that the plaintiff has been using connected load of 61.009 Kwt.
32.On the other hand, even the plaintiff has also not proved that he has been using the sanctioned load of 5 HP. Further, since the plaintiff has already disclosed his consumption in the Voluntary Disclosure Scheme, 1995 and in the absence of anything on record to show that the sanctioned load was not 14.92 KW, it is held that the sanctioned load is of 14.92 KW.
33.Since, the inspection report dated 8/9/2001 has already been declared as null and void thus all the orders and bills raised by the defendant on the basis of the said inspection report is also null and void. The bill for a sum of Rs. 1,15,950 / with due date 29072001 & bill dated February, 2002 for Rs. 1,27,100/ are Suit No. 97/2014 & Suit No. 98/2014 Page No. 27 of 29 also declared as null and void. The defendant is directed to raise the bills on the basis of the sanctioned load of 14.92KW for the period from July 2001 onwards. The 60% amount paid by the plaintiff pursuant to order dated 29092001 in the sum of 69,58120 to the defendant towards restoration of electricity shall be refunded to the plaintiff by the defendant alongwith interest @ 6% per annum from the date of receipt of said 60% amount from the plaintiff till realisation.
The plaintiff is thus entitled to the decree of permanent and mandatory injunction prayed for. These issues are accordingly decided in favour of the plaintiff and against the defendant.
34.Relief In view of the abovesaid, the suit of the plaintiff is decreed. Hence , a decree of declaration & Mandatory & Permanent injunction is passed in favour of the plaintiff and against the defendant. The inspection report dated 08/09/2001 Ex. DW3/P2 holding that the plaintiff is guilty of DAE is declared unsustainable in law and is accordingly declared illegal, null and void. Further, the assessment bill for theft raised by the defendant for a sum of Rs. 1,15,950 / with due date 29072001 & bill dated February, 2002 for Rs. 1,27,100/ are also declared as null and void.
Suit No. 97/2014 & Suit No. 98/2014 Page No. 28 of 29 The defendant is directed to raise the bills within two months of this order on the basis of the sanctioned load of 14.92KW for the period from July 2001 onwards which shall be paid by the plaintiff within 2 months of raising of the said bills. The 60% amount paid by the plaintiff pursuant to order dated 29 092001 in the sum of 69,58120 to the defendant towards restoration of electricity shall be refunded to the plaintiff by the defendant alongwith interest @ 6% per annum from the date of receipt of said 60% amount from the plaintiff till realization.
The defendant is directed to not to disconnect electricity on the basis of the inspection report dt. 08092000, although, there is no bar upon the defendant to take action against the plaintiff on the basis of any other cause of action or inspection report or nonpayment of bills raised etc. Cost of the suit is also awarded to the plaintiff. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 19.05.2014 Civil Judge/Central05/Delhi Suit No. 97/2014 & Suit No. 98/2014 Page No. 29 of 29