Delhi District Court
Navyug CoOperative Group Housing ... vs Tata Power Delhi Distribution Limited on 15 December, 2014
IN THE COURT OF SH. CHANDRA BOSE, CIVIL JUDGE SENIOR DIVISION
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 104/14
ID No. 02401C0043261999
Navyug Cooperative Group Housing Society
Through its President
Office at: Plot No. 49,
Sector - 9, Rohini,
New Delhi - 110085. ............. plaintiff
vs.
Tata Power Delhi Distribution Limited
C. F. O.
33 KV SubStation,
Kingsway Camp, Hudson Lines, Delhi. .............. defendant
Date of Institution of Suit : 17111999
Date of reserve for judgment : 17112014
Date of announcement of Judgment : 15122014
SUIT FOR DECLARATION AND MANDATORY INJUNCTION.
Judgment :
1.The brief facts, as per averments of the plaint, are that the meter no. 902672 - R. H.571 was installed in the Pump House of the plaintiff society for pumping water from underground storage watertank to the tanks of individual flats. That the plaintiff society has always paid the bills in time without any delay. The table showing consumption and money paid is as under: Suit No. 104/14 1/13 Navyug Cooperative Group Housing Society v/s Tata Power Delhi Distribution Limited Sl. No. Month Sanctioned Meter Consumption Units. Money Load. Reading. Payable
1. Aug. 1996 14.08 48410 380 2250/ 48030
2. Oct. 1996 do 50700 2290 6659/ 48410
3. Dec. 1996 do 50700 2290 2250/
4. Feb. 1997 do 50700 Minimum 2250/
5. April 1997 do 50700 Minimum940 (P.L.) 6000/
6. June, 1997 do 50700 do 6000/
7. Aug. 1997 do 50700 Minimum 940 6000/ (Premises Locked).
8. Oct. 1997 do 50700 do 6000/
9. Dec. 1997 do 50700 do 6000/
10. Feb. 1998 do 50700 do 6000/
2. That from the perusal of the above mentioned table, it is clear that since April, 1997 no meter reading was recorded and the provisional bills were sent on the pretext of locked premises. However, the pump house was never locked where the meter was affixed. That after the installation of new meter the meter reading was sent after a period of one year i.e. from 25021998 to 25021999 which shows the callous and negligent approach of the officials of the defendant. That since August, 1996, there was sparking in the said meter, so the plaintiff society lodged a complaint against the defendant on 29081996 and again on 02 091996 in the office of the defendant at Sector13, Rohini for change or repair the said faulty meter as it was not properly functioning and the meter started sparking when the meter was used. But the defendant's officials at the office paid DAE fears to the complaints of the plaintiff society. That on 22 nd April, 1998, the officials of the defendant visited the plaintiff society and removed the faulty meter on the pretext that they would replace the same on that day itself and they took the signatures of the Vice President of the society on the blank form of record of inspection as the Suit No. 104/14 2/13 Navyug Cooperative Group Housing Society v/s Tata Power Delhi Distribution Limited same is required for the replacement of the meter who signed the same under good faith. The said form was later on filled up by the official of the defendant and plaintiff society received a show cause notice of the theft alongwith filled up form of record of inspection which was filled subsequently and the case of direct theft was made against the plaintiff society and a notice to that effect was sent to the plaintiff society on 23041998 and directed the society to pay a sum of Rs. 1,77,421.86/ within 48 hours. That there was no option left except to deposit the amount under protest on 24041998 because there is no electricity in the vicinity of the plaintiff society to boost the water. That after receiving the above said amount, the defendant again demanded a sum of Rs. 1,450/ on the pretext that the meter was burnt and needed replacement. That the plaintiff society was again forced to deposit illegal demand of the defendant for the replacement of the above meter as the electricity was cut off and thereby affected the water supply of the complex of the plaintiff society. That the said meter was never burnt but only was faulty. That the plaintiff society received two bills of new meter for the cycle 25021998 to 25 021999 as Rs. 32,570/ and another bill of Rs.13,280/ for the period from June, 1999 to 04081999. So average bill for 2 months works out to be Rs. 6,550/. The plaintiff has prayed to declare that the bill of Rs. 1,77,422/ and Rs. 1,428/ was illegal and there was no theft and it was a case of faulty meter and they should have charged from February, to April, 1998 as per the average consumption of previous bills and to direct the defendant to undo their wrongs by refunding the amount of Rs. 1,77,422/ and Rs. 1,428/ alongwith interest, which was illegally charged after deducting the two months charges raised on average consumption w.e.f. February to April, 1998 of previous bills, which is at the most of Rs. 6000/ per bill as the defendant is duty bound to maintain the meter in proper condition.
3. Written statement filed on behalf of the defendant wherein it is stated that the bill in question is more than one lac which is beyond pecuniary jurisdiction Suit No. 104/14 3/13 Navyug Cooperative Group Housing Society v/s Tata Power Delhi Distribution Limited of this Hon'ble court and the plaintiff has not affixed the proper court fee as per relief claimed by him. That the plaintiff has not come before this Hon'ble court with clean hands and suppressed the material facts on record, as the site was inspected on 22041998 and the supply through K. No. 5711228862 was being used directly by passing the meter terminal thus by making direct theft, the consumer violated the bylaws of DVB. Accordingly, as per DVB Policy, the meter/ service line were got removed and a bill amounting to Rs. 1,77,422/ was raised as per tariff provision and that an amount of Rs. 1,428/ was also taken as R.O. charged before restoring the supply as per DVB procedure. The connected load at the time of inspection was found as 17.068 KW. The load report was prepared at site vide I.R. No. 502099 and 502100 dated 22041998. The MTD report prepared vide perform No. 57988 dated 22041998 in the presence of the representative of the plaintiff. Hence, the action of the DVB is in order and the bills were correctly raised as per tariff provision. That the said bill is correct and fully payable by the consumer and as such the suit of the plaintiff is false and is liable for dismissal with costs. Rest of the averments have been denied.
4. No replication has been filed in the present suit.
5. From the pleadings of the parties, following issues were framed vide order dated 30072002 :
1. Whether the plaintiff is entitled to the relief of declaration as prayed? OPP
2. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP
3. Relief.
Suit No. 104/14 4/13Navyug Cooperative Group Housing Society v/s Tata Power Delhi Distribution Limited
6. In order to substantiate its case, PW1Sh. P.C. Jain filed his affidavit in evidence on behalf of the plaintiff and he was crossexamined on behalf of the defendant. PW2 Sh. Madan Mohan also examined on behalf of the plaintiff and he was crossexamined on behalf of the defendant. No other witness has been examined on behalf of the plaintiff.
7. To prove the defence of the defendant, DW1 Sh. S.S. Antil, tendered his affidavit in evidence and he was crossexamined on behalf of the plaintiff. No other witness has been examined and DE was closed at the request of the counsel for defendant.
8. I heard final arguments on behalf of the plaintiff and defendant. Written argument was also filed on behalf of the plaintiff.
9. I considered the submissions of ld. counsel for the plaintiff and ld. counsel for defendant and written submissions filed on behalf of the plaintiff and evidence on record. My issuewise findings are as under :
Findings on issue no. 1 : Whether the plaintiff is entitled to the relief of declaration as prayed? OPP
10. The onus of proving this issue was fixed on the plaintiff. The plaintiff has prayed for declaration that the act of the officials of the defendant was illegal as there was no theft of electricity and the bill of Rs. 1,77,422/ and Rs. 1,428/ be declared as illegal. It be also declared that the defendant should have charged from February to April, 1998 as per average of consumption of previous bills. It is submitted by ld. counsel for the plaintiff that no theft of electricity was being committed on behalf of the plaintiff. It is further submitted that no photographs have been filed on recorded to prove that the theft of electricity was being committed by Suit No. 104/14 5/13 Navyug Cooperative Group Housing Society v/s Tata Power Delhi Distribution Limited way of by passing the meter i.e. by connecting the incoming lead to the outgoing lead. It is further submitted that there is no dispute that the meter was faulty since December, 1996 as it was not recording the consumption and the plaintiff was receiving provisional bills on minimum basis upto February, 1998 and so there was no reason to commit theft of electricity on behalf of the plaintiff as alleged on 22 041998. It is further submitted that no seizure memo has been produced while it is the case of the defendant that the service line was removed. It is further submitted that permission for inspection was not brought on record on behalf of the defendant to prove that permission was taken for inspection of the premises of the plaintiff to detect the theft of electricity. It is further submitted that no public witness was asked to join the inspection team to prove that the theft of electricity was being committed at the premises of the plaintiff. It is further submitted that if the best document is available with the other side, then it is on the other side to produce the said document. It is further submitted that the payment of the bill was made under protest as is clear from the document Ex.PW1/14. It is further submitted that the signature on the document Ex.PW1/12 was obtained when it was blank. Ld. counsel for the plaintiff has relied upon a case law namely Jagan Nath Singh Vs B. S. Rama Swami, 1966 AIR 849 SC in support of his arguments that the onus of proving theft of electricity lies on the company of electricity who alleges the theft. He has also relied upon case law namely Gopal Krishnaji Ketkar Vs Mohamed Haji Latif, AIR 1968 SC 1413 in support of his arguments that adverse inference should be drawn against the defendant for nonproduction of photographs.
11. On the other hand, Ld. counsel for the defendant submits that the present case is a case of direct theft by way of bypassing meter and not a case of DAE. Therefore, the question whether the meter was defective or whether complaint was booked in that regard is not relevant in this case. It is further submitted that once the payment has been made on the bill raised on the basis of Suit No. 104/14 6/13 Navyug Cooperative Group Housing Society v/s Tata Power Delhi Distribution Limited inspection, then there nothing remains in the matter. It is further submitted that the submissions of the counsel for the plaintiff that payment was made under protest is without support of any document. It is further submitted that the plaintiff was not stopped from challenging the bill and had ample opportunity to approach the court. It is further submitted that it is the Tariff Provision that if consumer makes payment, then no FIR will be lodged and so the plaintiff has utilised the benefits of that Provision, that is why no FIR was lodged. It is further submitted that the citation relied by the counsel for the plaintiff is of DAE. It is further submitted that in case of direct theft of electricity, there is no need to give show cause notice or study consumption pattern. It is further submitted that no complaint was made by the plaintiff to the defendant regarding alleged having obtained the signature on the document Ex. PW1/12 when it was allegedly blank. It is further submitted that the supply of water through water pump is nondomestic. It is further submitted that if the plaintiff was aggrieved with the Tariff Provision, then he should have challenged the same through writ.
12. I considered the submissions of the counsel for the plaintiff and counsel for the defendant as submitted above.
13. It has come in the affidavit of DW1 that at the time of inspection on 22042008, meter service line was removed and necessary photographs were also taken. It has been stated during crossexamination by DW1 that no photographs have been filed on record. Therefore, it is proved that photographs were taken at the spot but not filed on record.
14. In case law Gopal Krishnaji Ketkar Vs Mohamed Haji Latif (supra), it has been held that :
"in case of nonproduction of documents, the court should draw inference against such party not Suit No. 104/14 7/13 Navyug Cooperative Group Housing Society v/s Tata Power Delhi Distribution Limited withstanding the fact that the onus of proving does not lie on such party".
15. In view of case law Gopal Krishnaji Ketkar Vs Mohamed Haji Latif (supra), I am of the view that the adverse inference may be drawn against the defendant due to nonproduction of photographs.
16. PW1P.C. Gupta has stated in para 10 of his affidavit that the officials of the defendant visited the plaintiff society and removed faulty meter on the pretext that they would replace the same on that very date and took the signatures of Vice President on the form as the same is required for replacing the meter and Vice President had signed the same under good faith. It is an admitted fact that the officials of the defendant had visited the plaintiff society on 22042008 and had removed the faulty meter and the Vice President had signed on the inspection report Ex. PW1/12 which the plaintiff claims to be blank at the time of signing the same. If the inspection report Ex. PW1/12 was blank why the Vice President of the society had signed it. He could have and should have refused to sign the same stating that it is blank. Even if the document Ex. PW1/12 was signed by the Vice President of the plaintiff society when it was blank, then complaint could have been made on behalf of the plaintiff society in that regard but it had not done so. Affidavit of Sh. Mukesh Singh, Vice President of the plaintiff society has been filed on record but he was not produced and examined in the court on behalf of the plaintiff society and no opportunity was given to the defendant to crossexamine him on this point. Had he been examined on behalf of the plaintiff, the defendant would have crossexamined said witness on these points and whether inspection report Ex. PW1/12 signed by him was blank or not and why he had signed blank report Ex. PW1/12.
17. For the reasons as above I do not agree with the submissions of ld.
Suit No. 104/14 8/13Navyug Cooperative Group Housing Society v/s Tata Power Delhi Distribution Limited counsel for the plaintiff that the inspection report Ex. PW1/12 was blank when it was signed by Vice President of the plaintiff society.
18. DW1S. S. Antil has stated in his affidavit that on 22041998 the inspection was carried out and consumer was found indulged in direct theft of electricity by way of bypassing the existing meter and MTD report Ex. DW1/1 was prepared and Sh. Mukesh Singh had signed on it at point 'B'. He has also stated that meter service line was removed by the then AEZone. During cross examination he has stated that on 22041998, he was deputed at Shankar Road Office in Enforcement Department. He has also stated that there was only direct theft of electricity at the time of inspection and no tempering of the meter was found. By the testimony of DW1, it has been proved by the defendant that there was theft of electricity by bypassing the meter. No reason has been shown by the plaintiff to reject the testimony of DW1S. S. Antil. Therefore, I am of the view that the testimony of DW1S. S. Antil can not be rejected.
19. In view of the testimony of DW1S. S. Antil and the inspection report Ex. PW1/12, I am of the view that, even if the photographs have not been produced on record and adverse inference may be drawn on the account there is sufficient ground to hold that plaintiff has committed theft of electricity.
20. Since it has proved on record by the evidence of Sh. S. S. Antil and inspection report Ex. PW1/12 that theft of electricity was being committed at the premises of the plaintiff society, I am of the view that even if, there is evidence on record that meter was faulty and was not recording the consumption and the plaintiff was receiving the provisional bills on minimum basis from December, 1996 Suit No. 104/14 9/13 Navyug Cooperative Group Housing Society v/s Tata Power Delhi Distribution Limited upto November, 1998, it can not be said that there was no theft of electricity at the premises of the plaintiff. Unless, it is proved on behalf of the plaintiff that the testimony of Sh. S. S. Antil is untrustworthy, it can not be held that there was no theft of electricity at the premises of the plaintiff and there was no reason to commit the theft of electricity.
21. Even if no seizure memo has been produced in the court, it does not mean that service line was not removed from the site. As per inspection report Ex. PW1/12, meter and service line were removed. Therefore, preparing seizure memo but not producing the same in the court does not affect in any manner the testimony of DW1 that the direct theft of electricity was being committed.
22. It is submitted by the ld. counsel for the plaintiff that no permission was taken by the defendant to detect the theft of electricity and the said permission, if any, was not brought on record. I considered the submissions of ld. counsel for the plaintiff in this regard. It does not affect in any manner the testimony of DW1 and the case of the defendant as a whole regarding detection of theft of electricity at the premises of the plaintiff even if the permission taken by the inspecting team was not brought on record. The inspection report / MTD report Ex. DW1/1 proved that the officials of the defendant had visited the premises of the plaintiff and Sh. Mukesh Singh had signed the same at point 'B'. Even if no public witness was asked to join the raid by inspecting team, it is not the reason to disbelieve the testimony of DW1S. S. Antil. Public witnesses avoid to join such raids due to coming to the court for evidence. Therefore, on the basis of having not requested by inspecting team from public to join in the raid does not render the case of the defendant unbelievable. Since, the testimony of DW1 is trustworthy, there is no reason to reject his testimony.
Suit No. 104/14 10/13Navyug Cooperative Group Housing Society v/s Tata Power Delhi Distribution Limited
23. In case law Jagannath Singh @ Jainath Singh, Sohari Lal vs. B. S. Ramaswamy (Supra), it has been held that the onus of proving theft of electricity lies on the company of electricity who alleges the theft. I agree with the submissions of ld. counsel for the plaintiff that in view of case law Jagannath Singh @ Jainath Singh, Sohari Lal vs. B. S. Ramaswamy (Supra), the onus of proving theft of electricity in the present case is on the defendant.
24. I agree with the submissions of ld. counsel for the defendant that the present case is a case of direct theft of electricity by bypassing the meter i.e. by connecting the incoming lead to the outgoing lead and not a case of DAE. Therefore, the question whether meter was defective or whether complaint was booked in that regard is not relevant in the present case.
25. I do not agree with the submissions of ld. counsel for the defendant that once the payment of the bills have been made of the bills raised on the basis of inspection, then there remains nothing in the matter because the payment of the bill was made by the plaintiff under protest as it is clear from the document Ex. PW 1/14.
26. It is submitted by the ld. counsel for the defendant that in case of direct theft of electricity there, is no need to give show cause notice and to study consumption pattern. I agree with the submissions of ld. counsel for the defendant that there is no need to give show cause notice and to study consumption pattern as this is done only in case of DAE. Therefore, if the show cause notice was not given to the plaintiff and consumption pattern was not studied, the plaintiff can not take advantage of the same in any manner as the present case is a case of direct theft of electricity and not of DAE.
Suit No. 104/14 11/13Navyug Cooperative Group Housing Society v/s Tata Power Delhi Distribution Limited
27. It is submitted by the ld. counsel for the defendant that the supply of water through water pump falls in the category of nondomestic and therefore tariff provision for the category of nondomestic is applicable and if the plaintiff has any grievance with that, the plaintiff should have challenged the same through writ. On the perusal of bills Ex. PW1/1 to Ex. PW1/10 and Ex. PW1/10A to Ex. PW1/10B, it is observed that the category of supply of electricity has been mentioned as NL i.e. nondomestic light/ power. It shows that the supply of electricity falls in the category of nondomestic and I agree with the submissions of ld. counsel for the defendant that if the plaintiff had any grievance with the tariff provisions in the present case, it should have challenged the same through writ.
28. The case laws namely Jagdish Narayan vs NDPL, 2007 (140) DLT 307; Ramesh Chand vs. State of Delhi, 68 (1997) DLT 257; Shyam Bihari Singhal vs BSES Yamuna Power Ltd., 2011 (122) DRJ 113; Udham Singh vs. BSES Rajdhani Power Ltd, 2007 (136) DLT 500 and Bhasin Motors vs NDPL, 2007 (142) DLT 116 are not applicable to the present case as the case laws relied by the ld. counsel for the plaintiff are relating to the cases of DAE and the present case is the case of direct theft of electricity.
29. In the light of above discussions and reasons therein, it is held that the plaintiff has failed to prove that there no theft of electricity was being committed while it has been proved by the defendant that direct theft of electricity was being committed in the premises of the plaintiff when the inspection was carried out and therefore, the plaintiff is not entitled for relief of declaration that the act of the officials of the defendant was illegal and the bill of Rs.1,77,422/ and Rs.1428/ was illegal and the defendant should have charged from February to April, 1998 as per the average of consumption of previous bills. This issue is decided against the plaintiff.
Suit No. 104/14 12/13Navyug Cooperative Group Housing Society v/s Tata Power Delhi Distribution Limited Findings on issue no. 2 : Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP
30. The onus of proving this issue was fixed on the plaintiff. It is prayed by the plaintiff that directions be given to the defendant to undo their wrongs by refunding the amount of Rs.1,77,422/ and Rs.1428/ alongwith interest, which was illegally charged after deducting two months charges raised on average consumption w.e.f. February to April, 1998 of previous bills. In view of my findings on issue no. 1, it is held that the defendant is not entitled to the relief of mandatory injunction as prayed. Therefore, this issue is decided against the plaintiff.
Relief
31. In view of my findings on the issues as above, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance.
Announced in the open court (CHANDRA BOSE)
on the 15th day of December, 2014 Civil JudgeSenior Division
Central District, Delhi.
Suit No. 104/14 13/13
Navyug Cooperative Group Housing Society v/s Tata Power Delhi Distribution Limited