Delhi District Court
Akshay Gera vs Bses Yamuna Power Ltd on 26 April, 2010
Akshay Gera
C/o M/s Ajay Industries & Trading,
A-28-C, Gali No. 4, Anand Prabat,
New Delhi. .... Plaintiff
Versus
BSES Yamuna Power Ltd.,
BSES Bhawan,
Nehru Place,
New Delhi-110019.
Through Its General Manager
Principal Officer. .... Defendant
Plaint presented on 22-12-2006
Arguments heard on 24-04-2010
Suit decreed on 26-04-2010
JUDGEMENT
1. The plaintiff has instituted the present suit for Declaration and permanent injunction against the defendant/BSES Yamuna Power Ltd. (hereinafter referred to as BSES YPL). In his suit the plaintiff has prayed for a decree of declaration declaring the inspection report/show cause notice/demand raised by the defendant to the extent of Rs. 6,06,898/- as null and void, without any basis, against the principles of natural justice, untenable in the eyes of law. He has also prayed for a decree of permanent injunction against the defendant restraining the defendant from enforcing the demand raised by it vide bill No. YMENF 15122020060056 dated 22.12.2006 for a sum of Rs. 6,06,898/- in respect of electricity connection bearing K. No. 11410B150010 installed at A-28-C, Gali No. 4, Anand Parbat, New Delhi and also from adopting any Page 1 of 11 S.C. Malik, ADJ-05 (Central), Delhi 26-04-2010 and consumer of electricity vide the aforesaid K. No. at his aforesaid address with a sanctioned load of 17.9 KW under IX category and the plaintiff was using the load within the sanctioned limits without committing any breach. The plaintiff received a show cause notice dated 06.10.2006 from the defendant and the same was duly replied by the plaintiff on 16.10.2006. Vide his said reply plaintiff challenged the validity of show cause notice on the ground that it was contrary to the factual position but ignoring the same, the defendant raised the impugned demand against the plaintiff. According to the plaintiff there was no Fraudulent Abstraction of Electricity (hereinafter referred to as FAE) and the allegations leveled in the show cause notice were solely based on the assumptions and presumptions and accordingly on the basis thereof no liability could be fastened on the plaintiff in any manner.
3. Since there was no FAE/DAE and the speaking order has been passed in this respect in a mechanical manner, the demand raised by the defendant as against the plaintiff as mentioned herein above is wholly untenable and baseless in the eyes of law. As a matter of fact the electricty meter in question in respect of the aforesaid K.No. of the plaintiff was giving accurate readings.
4. As per averments made in the plaint the allegations of difference in consumption pattern and meter accuracy are false and as a matter of fact the meter in question was fast and was recording consumption on a very higher side, no inspection report was made at the site, the demand raised by the defendant is fabricated. Plaintiff never refused to sign the inspection report as alleged. No acqua check was done. All the meter seals were Intact and OK. The load has Page 2 of 11 S.C. Malik, ADJ-05 (Central), Delhi 26-04-2010 same and hence the plaintiff has instituted the present suit for seeking the reliefs prayed for.
5. Defendant has contested the suit of the plaintiff by filing its written statement contending that plaintiff has not come to the court with clean hands. According to the defendant inspection of the subject premises was carried out on 23.09.2006. The plaintiff had been found indulged in theft of electricity but the plaintiff refused to sign the inspection report, show cause notice and did not allow the inspection team of the defendant to paste the same at the subject premises. According to the defendant at the time of inspection, meter hologram seals, ultrasonic welding, Meter terminal seal and half seal were found tampered and the meter was found slow by 28.90% as per acqua check. The meter in question was segregated in the presence of the plaintiff and two nos., illegal shunt wires were found inside the meter body connecting R phase outgoing with R phase incoming terminals and also Y phase incoming and outgoing shunt were found connected inside the meter and accordingly a case of dishonest abstraction of energy was booked. According to the inspection report connected load was found to be 29.738-KW as against the sanctioned load of 17.90-KW. Show cause notice was sent for hearing on 16.10.2006 and the same was availed by the plaintiff. After considering the facts of the case, speaking order dated 11.12.2006 was passed and accordingly the impugned theft bill was raised and plaintiff is liable to pay the same.
6. Replication was filed by the plaintiff whereby he denied the contents of the written statement and reaffirmed the case set up by him in his plaint.
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i) Whether the bill dated 22.12.2006 raised by the defendant for Rs. 6,06,898/- on the basis of inspection report is null and void?
ii) Whether the plaintiff is entitled to relief of declaration and permanent injunction as prayed?
iii) Relief?
8. Plaintiff has in support of his case examined himself only as PW1 and thereafter closed his evidence whereas the defendant has in support of his case examined two witnesses namely Sh. Ravinder Singh as DW1 and Sh. H.S. Semwal as DW2 and thereafter closed its evidence.
9. I have heard the arguments advanced by the parties, carefully perused the pleadings, evidence and documents proved on record. My issue wise findings are as under.
10. Since Issue Nos. 1 & 2 are inter-connected, they are taken up together for recording findings thereon.
11. As per records, factum of inspection dated 23.09.2006 is not in dispute.
12. In respect of the present case as the inspection was carried out on 23.9.2006, DERC (Performance Standards-Metering and Billing) regulations, 2002 (hereinafter referred to as the regulations) are applicable. The relevant provisions under the regulations which provided procedure to book and process the case of DAE/DT is reproduced as under:
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(i) The licensee, suo moto or on receipt of reliable information regarding commitment of any offence of theft/tampering/dishonest abstraction of energy (DAE), shall promptly conduct inspection of consumer's premises. The inspection team shall carry a written authority signed by designated officer of the licensee.
(ii) The inspecting team shall prepare a report giving details such as connected load, condition of seals, working of meter and mention any irregularity noticed (such as, artificial means adopted for dishonest abstraction of energy) as per format prescribed by the licensee.
(iii) The report shall clearly indicate whether conclusive evidence substantiating the fact that energy was being dishonestly abstracted was found or not. The details of such evidence should be recorded in the report and it should be clearly brought out whether the case is being booked for direct theft or DAE.
(iv) No case for DAE shall be booked only on account of one seal on the meter missing or tampered or breakage of glass window etc. unless corroborated by consumption pattern of consumer as per Regulation 26 (ii) given below and such other evidence as may be available..
(v) In case sufficient evidence is found to establish direct theft of energy, the licensee may lodge a report with the local police along with the material evidence including wires/cables, meter, service line etc. seized from the site, which shall be handed over to police.
The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times Page 5 of 11 S.C. Malik, ADJ-05 (Central), Delhi 26-04-2010 shall not remove the tampered meter but shall disconnect it from the supply and shall restore the supply through a new meter of appropriate rating. In such cases, the licensee shall check the connected load and consumer's installation, affix a numbered Johnson's paper seal on the tampered meter and shall also record the particulars of the same in the report.
(vii) While the report must be signed by each member of the joint team and the notice, if any, must be signed by an authorized signatory of the licensee and all these must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of each must be pasted at a conspicuous place in/outside the premises.
Simultaneously, the joint report, the assessment bill and the notice shall be sent to the consumer under Registered Post.
(viii) The consumer shall be served a 3 days show cause notice at the site as to why the case of DAE should not be booked against him/her. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
26. Personal hearing
(i) Within 4 working days from the date of submission of consumers' reply, if made within prescribed period, the licensee shall arrange a personal hearing with the consumer.
(ii) Before the personal hearing, the officer of the licensee, before whom personal hearing has to be given, shall analyse the case after carefully Page 6 of 11 S.C. Malik, ADJ-05 (Central), Delhi 26-04-2010 uniform and is not less than 75% of the assessed consumption where meter is less than 10 years old and not less than 65% of the assessed consumption where meter is more than 10 years old, no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within 3 working days and connection shall be restored through original meter.
(iii) During the personal hearing the licensee shall give due consideration to the facts submitted by the consumer and pass, within 15 days, a speaking order as to whether the case of suspected theft/DAE is established or not. In case of the decision that the case of suspected theft/DAE is not established, no further proceedings shall be taken and connection shall be restored through original meter.
(iv) Where it is established that there is a case of DAE, the licensee may lodge a report with the local police along with the material evidence including wires/cables, meter, service line etc. seized from the site, which shall be handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times the rates as per applicable tariff. The consumer shall be required to make the payment within 2 working days of its proper receipt. The licensee may, taking into consideration the financial position and other conditions of the consumer, extend the last date of payment or approve the payment to be made in installments. The amount, the extended last date and/or time schedule of payment/installments should be clearly stated in the speaking order. A copy of the speaking order shall be handed over to the consumer under proper receipt on the same day.
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14. A careful scrutiny of the inspection report reveals that the Meter box seals at the time of inspection were found to be Intact and OK and it is also not in dispute that meter in dispute was installed in the meter box. Thus in order to have access to the meter it is necessary to break or tamper the seals of the meter box.
15. As the seals of the box in which the meter was found were "Intact and OK" it is not possible to temper the meter after the installation of the meter. Hence the question of plaintiff's doing the tampering in the meter after its installation does not arise at all. The fact that it was not possible to access the meter without breaking the meter box seals is also evident from the testimony of DW 1.
16. DW1 has testified, "the front cover of the meter was opened and taken out. The meter box seals were broken after taking the photos".
17. Thus even the members of the inspection team had to put in enough labour in taking out the meter before checking the same. On a bare look at the photographs, I have no hesitation in holding that plaintiff could had no access to the metering equipment more so when the meter box seals were found intact and okay.
18. In view of my above discussion, it is ample clear that either a tampered meter as observed in the inspection report was installed or tampering in the meter was done in collusion/connivance with the officials of the defendant itself either at the time of its installation or otherwise as in meter installed in the Page 8 of 11 S.C. Malik, ADJ-05 (Central), Delhi 26-04-2010
19. The documents and evidence led by the defendant does not inspire confidence. As per the EX. PW1/4, which is an IR of 23.09.2006, only Meter hologram seal were found tampered whereas as per the inspection report of the same date, even ultrasonic welding and meter terminal as well as half seals were also found to be tempered.
20. The two reports which were apparently made on the same day do not tally with each other hence raises serious doubts on the working of the defendant and genuineness of the reports.
21. Further more, as per clause (vi) of regulation 25 it is ample clear that the inspection team shall not remove the tampered meter but in the present case the meter was seized/removed from the site on 23.09.2006 itself which is evident from the inspection report and testimony of DW1 and hence this act of the defendant cannot be held justified as the same is in defiance of DERC regulations. The best piece of evidence i.e. the meter in respect of which the allegations of tampering are being levied by the defendant, should have been retained at site. On account of removal of the meter from the site on the date of inspection itself, the adverse inference is liable to be drawn against the defendant.
22. If the defendant is really interested in booking cases of theft against the real culprits who indulge in theft of electricity then the defendant/its officials should not hesitate in following the rules and regulations framed on the subject in law. If the defendants are not following the rules as has been done in Page 9 of 11 S.C. Malik, ADJ-05 (Central), Delhi 26-04-2010 Vijay Kr who were members of the team took the photos whereas DW2 during his cross has testified that, "The negatives of said photos are not available as the same were taken from digital camera. The photographer was hired from outside the office." The inspection report finds mention that Necessary photography have been done by joint inspection team.
24. The above contradictions in the testimony of both the witnesses and the inspection report do not inspire any confidence in the photographs placed on record and accordingly they cannot be looked into to support the case of the defendant.
25. Though the plaintiff has admitted that inspection was carried out in his presence, show cause notice was duly served on him, hearing was attended by him, speaking order was also served upon him and the impugned bill was raised thereafter but still it does not give any right to the defendant to bye-pass the prescribed rules in booking and processing the case of theft against the plaintiff in as much as the defendant has wrongfully removed the alleged tampered meter from the site. In these circumstances the possibility of tampering in the metering equipment even at a later stage in the office of the defendant after its removal cannot be ruled out in the facts and circumstances of the present case.
26. In view of the above discussion, the plaintiff has successfully proved that the action of the defendant in booking the case of FAE/DAE against the plaintiff is illegal and against the procedure prescribed under the law in as much as the defendant has failed to adhere to the regulations and therefore Page 10 of 11 S.C. Malik, ADJ-05 (Central), Delhi 26-04-2010
27. Relief In view of my above findings on Issue Nos.1 & 2 both, the suit of the plaintiff stands decreed. The inspection report/show cause notice/demand raised by the defendant to the extent of 6,06,898/- are hereby declared as null and void and plaintiff is not liable to pay the theft bill and BSES-YPL, its officials, agents etc. The defendants is also permanently restrained from disconnecting the electricity supply of the plaintiff against K No. 11410B150010 installed at A-28-C, Gali No. 4, Anand Parbat, New Delhi on the basis of the inspection report dated 23.09.2006 and theft bill of Rs. 6,06,898/-.
28. Needless to say that amount deposited by the plaintiff pursuant to the interim orders passed by this court shall be refunded to the plaintiff within 60 days from the date of this judgment.
Parties are left to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Dictated and Announced in ( S.C. MALIK ) the open Court on 26-04-2010. ADJ-05 (Central) Delhi.
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