Delhi District Court
Balkishan Goyal vs North Delhi Power Limited on 31 January, 2012
IN THE COURT OF MS.RUCHIKA SINGLA
CIVIL JUDGE-01(NORTH) : DELHI
Suit No. 660/2008
Unique ID No. 02401C0428642006
Balkishan Goyal
Shop no.13, B.F.Market
Shalimar Bagh, Delhi
...... Plaintiff
Versus
North Delhi Power Limited
Through its CEO
Hudson Lines, Kingsway Camp,
Delhi-09
...... Defendant
Date of institution of suit : 17.05.2006
Date on which reserved for judgment : 23.01.2012
Date of Judgment : 31.01.2012
JUDGMENT:
1. This is a suit for declaration and permanent injunction.
2. Briefly stated, the facts of the case as alleged by the Plaintiff are as follows.
2.1. The Plaintiff is the registered consumer in respect of electricity connection K no.45300150088 Y which has been installed at Shop no.13, BF Market, Shalimar Bagh, Delhi having a sanctioned load of 7.44kw. The Plaintiff is running a sweet shop at these premises. 2.2. On 30.12.2005, the officials of the Defendant company visited the premises of the Plaintiff alleging that the connected load was 6.81kw against the sanctioned load of 7.44kw. The meter box seals were allegedly tampered. It was also alleged that the meter was slow by Balkishan Goyal v. BSES YPL Suit No.660/08 Page 1 of 10 55.49%. The Defendant issued a show cause notice to the Plaintiff, against which the Plaintiff represented by filling a representation on 04.01.2006.
2.3. The old meter of the Plaintiff was changed on 31.01.2006. Then again on 09.3.2006, the Defendant visited the Plaintiff's premises where they found the old meter to be intact. As per the consumption pattern of the Plaintiff, the Plaintiff is consuming 1150.92 units per month while the computed consumption is only 1123.65 units. In these circumstances also, it is clear that the Plaintiff is not indulged in theft of energy.
2.4. Thought the Plaintiff had filed a written representation, the same was not considered and the speaking order dated 22.02.2006 was passed. A bill of Rs.1,48,612/- was raised on the basis of alleged theft of energy. It is submitted that the Plaintiff was not indulged in theft of energy as alleged. The Plaintiff was forced to make part payment of Rs.30,000/- on account of threat of FIR and disconnection of supply. Hence, the present suit.
3.1. Summons of the suit have been served upon the Defendant. The factum of the meter at the suit premises is not denied. On 30.12.2005, the Defendant's joint team inspected the Plaintiff's premises where they found that the connected load was 6.81kw against the sanctioned load of 7.44kw. The meter box seals were also tampered and the meter was found to be slow by 55.49%.
3.2. On the basis of the inspection report, a show cause notice was issued to the Plaintiff and he was called for personal hearing on 04.01.2006. The Plaintiff attended the personal hearing and filed his representation which was duly considered & a detailed speaking order was passed on 22.02.2006. Thereafter, the impugned bill was raised which is liable to be paid by the Plaintiff.
Balkishan Goyal v. BSES YPL Suit No.660/08 Page 2 of 103.3. The premises were again inspected on 09.3.2006 and it was found that the IR no.65624 and 25 pasted by the inspection team on 30.12.2005 were torned. Upon accuracy check, the meter was found fast by 1.43%. The meter box was opened to check internal status of the meter. The meter box seals were found tampered. Upon opening, the terminal cover seals no.E454170 &69 were also found tampered. Hence, it is clear that the meter had been tampered again. 3.3. The Plaintiff requested the Defendant to settle the matter on payment of Rs.1,20,000/- in 4 equal fortnightly installments and the first installment was paid on 03.5.2006. Hence, it is prayed that the suit of the Plaintiff is not maintainable and the same may be dismissed.
4. Replication to the Written Statement of the Defendant filed by the Plaintiff reiterating the facts as mentioned in the plaint and denying the averments made in the Written Statement. Thereafter, on the pleadings of the parties issues were framed vide order dated 23.01.2008:
1. Whether the Plaintiff is entitled to have a decree of declaration in his favour as prayed for?OPP
2. Whether the Plaintiff is entitled to have a decree of permanent injunction in his favour as prayed for?OPP
3. Relief.
5. Thereafter, the matter was fixed for Plaintiff's evidence. The Plaintiff got examined himself as PW1 and exhibited the following documents:
Ex.PW1/1 Copy of the show cause notice Ex.PW1/2 Copy of the representation dated 04.01.2006 Ex.PW1/3 Copy of the protocol report Ex.PW1/4 Copies of paid bills (colly) Ex.PW1/5 Copy of speaking order dated 16.02.2006 Ex.PW1/6 Copy of the bill Ex.PW1/7 to Copies of representations Ex.PW1/11 Balkishan Goyal v. BSES YPL Suit No.660/08 Page 3 of 10 Ex.PW1/12 Copy of receipt of Rs.30,000/- Ex.PW1/D1 Copy of the personal hearing Ex.PW1/D2 Letter dated 03.5.2006 Ex.PW1/D3 Copy of final assessment bill
6. Thereafter, the matter was fixed for Defendant's evidence. The Defendant got examined Sh.Anil Kr Jain and Md.Idris as DW1 & DW2 and exhibited the following documents:
Ex.DW2/1 Copy of inspection report (OSR) Ex.DW2/2 Joint inspection report (OSR) Ex.DW2/3 Show cause notice (OSR) Ex.DW2/4 Photographs (OSR)
7. Thereafter, the matter was fixed for final arguments. I have heard the arguments of the counsel for parties and have gone through the record carefully. My issue-wise findings are as follows.
Issue no.1 & 2 Whether the Plaintiff is entitled to a decree of declaration as prayed for? OPP Whether the Plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
8. Both the issues are discussed together as onus to prove these issues was upon the Plaintiff and they are interconnected.
9. It is the case of the Plaintiff that the Plaintiff is the consumer of the electricity connection which has been installed at his premises. This fact is not denied by the Defendant. It is an admitted fact that on 30.12.2005, certain officials of the Defendant company visited the premises of the Plaintiff where they allegedly found that the Plaintiff was indulged in DAE.
10. The Defendant submitted that upon this inspection, a case of Balkishan Goyal v. BSES YPL Suit No.660/08 Page 4 of 10 DAE was booked against the Plaintiff. Show-cause notice was issued and personal hearing was given to the Plaintiff, which is an admitted fact. It is further an admitted fact that a speaking order was passed on 22.02.2006. However, the Plaintiff has stated that the speaking order is not correct and has been passed without considering the representation of the Plaintiff. Further, it is stated that the speaking order has been passed in a mechanical manner and hence, the same is liable to be quashed.
11. The Defendant has strongly opposed the same. It is stated that after the passing of the speaking order, when the impugned bill was raised, the Plaintiff wrote to the Defendant company that Rs.1,20,000/- may be accepted against the impugned bill and the case may be closed. This letter is proved as Ex.PW1/D2. The Plaintiff has admitted to have written this letter in his cross-examination. It is argued by the counsel for Defendant that in view of this letter, the Plaintiff has accepted the bill and the speaking order. Hence, the Plaintiff is estopped from challenging the validity of the bill as well as the speaking order.
12. The Plaintiff has argued that though he had written this letter and had requested for installments, the same was only under a threat of disconnection of supply. It is stated that if the Plaintiff had not made the part payment, his supply would have been disconnected. This is quite true. If the payment had not been made by the Plaintiff, then there would have been an immediate disconnection of supply.
13. Now, the court must examine as to whether the Plaintiff was actually indulged in DAE on 30.12.2005 or not. On 30.12.2005 the following discrepancies were allegedly found at the time of inspection :
(i) The connected load was 6.81kw against the sanctioned load of 7.44kw.
(ii) The meter box seals were allegedly tampered.Balkishan Goyal v. BSES YPL Suit No.660/08 Page 5 of 10
(iii) The meter was slow by 55.49%.
14. The inspection report has been proved as Ex.DW2/1 & Ex.DW2/2. The Defendant also got examined Sh.Mohd.Idris as DW2 who was also a part of the inspection team. He proved the inspection reports. Perusal of these reports shows that these discrepancies were found. The counsel for the Defendant has argued that in view of the same, the case of DAE has been rightly booked against the Plaintiff.
15. The counsel for Plaintiff has relied upon a number of judgments passed including "Jagannath Singh v. Ramaswamy, (1966) 1 SCR 683, J.K. Steelomelt (P) Ltd. v. BSES Rajdhani Power Ltd. MANU/DE/7684/2007, Ram Chandra v. State of Bihar, 1967 CrilJ 409" stating that in these judgments the Hon'ble Courts were confronted with a similar question as is before this court and it was held that the consumer was liable to pay the bill as he was indulged in DAE. The counsel for Defendant has argued that these judgments did not apply to the facts and circumstances of the present case. The counsel for Defendant has relied upon the judgment passed by Hon'ble Supreme Court in "JMD Alloys Ltd. v. Bihar State Electricity Board AIR 2003 SC 1354" stating that in this judgment, the Hon'ble Supreme Court held that if the seals of the meter were found tampered, the consumer can be held liable for DAE.
16. However, perusal of the judgment shows that before the Hon'ble Supreme Court the aspect regarding the commission of DAE was not challenged. In this case, the assessment of the units was challenged stating that the relevant clause of tariff was not applicable. Further, the Hon'ble Supreme Court in this case, held that as the matter had been Balkishan Goyal v. BSES YPL Suit No.660/08 Page 6 of 10 decided by the competent authority by passing a speaking order, the decision was not open to judicial review as the principles of natural justice had been followed.
17. Further, the counsel for Defendant has relied upon another judgment of Hon'ble Supreme Court in case titled as "Jagannath Singh v. Ramaswamy, (1966) 1 SCR 683". The counsel for Defendant has referred to the observations made by the Hon'ble Supreme Court in this case which is reproduced as under:
"In the absence of proof that he used all reasonable means to ensure that the seal should not be broken, the liability of the appellant was absolute under r. 138 and so, he was rightly convicted The exposure of the stud hole was an artificial means for preventing the meter from duly registering the energy supplied, and since the appellant, having custody or control of the meter did not rebut the presumption under s. 44 that he willfully and knowingly prevented the meter from duly registering he was rightly convicted under that section.
But the High Court was in error in holding that the exposure of a stud whole on the meter cover without more, was an artificial means of abstraction and was prima facie evidence of dishonest abstraction by the appellant, under s.39
The effect of the last part of s.39 is that the existence of the unauthorized means for abstraction is prima facie evidence of dishonest abstraction. By tampering with the meter and causing it to record less than the units actually passing through it, a consumer may take un-recorded energy without paying for it and such unauthorized taking would be abstraction. A meter with an exposed stud hole, without more, is not a perfected instrument for authorized taking of energy and cannot be regarded as an artificial means for abstraction. The existence of artificial means for preventing the meter from duly registering, gives rise to the presumption, that the meter was prevented from duly registering, only for purposes of s.44, but that presumption cannot be imported into s.39."
18. However, in the opinion of the court, this judgment does not favour the Defendant. The complete judgment as given by the Hon'ble Supreme Court has to be read. The Hon'ble Supreme Court apart from given the above mentioned observations also held as under:
Balkishan Goyal v. BSES YPL Suit No.660/08 Page 7 of 10"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".
19. The counsel for Defendant has argued that in this case, the Hon'ble Supreme Court differentiated between the theft of energy and DAE. It is argued that in this matter, the Hon'ble Apex Court held that for purposes of Section 44, the existence of artificial means for preventing the meter from duly registering, gives rise to the presumption that the meter was prevented from duly registering. Section 44 applies to dishonest abstraction. However, it must be noted that Hon'ble Supreme Court held that the presumption shall arise when there was an existence of artificial means. Impliedly, existence of artificial means is essential. This case was discussed in detail by the Hon'ble High Court of Delhi in "Col. R.K. Nayar v. BSES RPL, (140) 2007 DLT 257" where the Hon'ble High Court held that:
"Although the above decisions were rendered in the context of a conviction in a criminal case, the proof necessary for inferring FAE or DAE can be no less considering that the element of 'dishonesty' brings in the concept of means read which is common to both FAE/DAE and the offence of theft of electricity. Moreover the consequence of a DAE for the consumer is that he has to pay the penalty which is five times the normal tariff".
20. In the above mentioned case, the Hon'ble High Court thus opined that even in cases of dishonest abstraction, the Defendant must prove that artificial means were existing before making out such a case against the Plaintiff. It was further held that case of FAE could be booked only on conclusive evidence of tampering that the user had done something to slow down or affect the recording of consumption. Further it Balkishan Goyal v. BSES YPL Suit No.660/08 Page 8 of 10 was held that a link should be established between physical evidence & consumer. It was also held that under Section 135 also, unless artificial means were found, FAE cannot arise. The initial burden of proof is on the respondent to show that the same exists.
21. In the present case, no artificial means were found. Hence, the case of FAE is not made out against the Plaintiff. Further, in case titled as "Harvinder Motors v. B.S.E.S. Rajdhani Power Ltd. 135 (2006) DLT 198", it has been held by the Hon'ble High Court of Delhi that the Defendant licensee shall not be entitled to issue show cause notice till the consumption pattern had been studied by it. In the present case, the consumption pattern had not been analyzed at all. Hence, the proceedings itself are liable to be vitiated as show cause notice could not have been issued at all at that time. Further, in Col. R.K.Nayar case, it was held that the case of FAE cannot be booked even if the consumption pattern was studied. It was held that the consumption pattern can at best substantiate the physical evidence which was found at the time of inspection. Hence, it is clear that it must be shown that artificial means were employed to manipulate the meter. The same has been reiterated in case titled as "Udham Singh v. BRPL 136 (2007) DLT 500; Jagdish Narayan v. NDPL 140(2007) DLT 307; Bhasin Motors (I) P. Ltd. v. N.D.P.L. 142 (2007) DLT 116 and J.K. Steelomelt (P) Ltd. v. BSES Rajdhani Power Ltd. MANU/DE/7684/2007".
22. In view of the above discussion, it is clear that the Plaintiff cannot be held to be indulged in FAE on 31.12.2005. The counsel for Defendant has argued that again on 09.3.2006, the Plaintiff was found to have tampered the meter. However, no such inspection report has been placed on record. Moreover, this inspection was carried out after the raising of the impugned bill. Hence, the same is not relevant to the facts Balkishan Goyal v. BSES YPL Suit No.660/08 Page 9 of 10 and circumstances of the present case.
23. Hence, the bill which has been raised by the Defendant company on the allegations of FAE is not payable by the Plaintiff. Hence, these issues are decided in favour of the Plaintiff.
Relief In view of the above discussion, the suit of the Plaintiff is decreed. The impugned bill of Rs.1,48,612/-, inspection report dated30.12.2005 and speaking order dated 22.02.2006 are declared as null and void. The Defendant is restrained from disconnecting the electricity supply of the Plaintiff's connection K no.45300150088 Y installed at Shop no.13, BF Market, Shalimar Bagh, Delhi for the non payment of this bill. Any amount paid by the Plaintiff in respect of the impugned bill shall be liable to be adjusted or refunded to the Plaintiff with simple interest @ 9% p.a. from the date of deposit till realization.
No order as to costs.
Decree-sheet be prepared accordingly.
File be consigned to record room.
Announced in the Open Court [RUCHIKA SINGLA]
Today on 31.01.2012 CIVIL JUDGE-01 (NORTH)
DELHI
Certified that this judgment contains 10 number of pages and all pages are signed by me.
[RUCHIKA SINGLA]
CIVIL JUDGE-01 (NORTH)
DELHI
Balkishan Goyal v. BSES YPL Suit No.660/08 Page 10 of 10
Suit No.660/08
31.01.2012
Present : None
Vide separate judgment of even date, the suit of Plaintiff is decreed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
[RUCHIKA SINGLA] CIVIL JUDGE01 (NORTH) DELHI Balkishan Goyal v. BSES YPL Suit No.660/08 Page 11 of 10