Delhi District Court
Amit Kumar Yadav vs Bses Rajdhani Power Ltd And Ors on 28 May, 2024
IN THE COURT OF DISTRICT JUDGE -04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, DELHI
CNR NO. DLWT01-006807-2020
CIV DJ NO. 14/2021
Amit Kumar Yadav
S/o D.C. Yadav
R/o WZ-206A, Second Floor,
Village Madipur,
Delhi-110063. ....Plaintiff.
Versus
1. BSES Rajdhani Power Ltd.,
Through its CEO / Business Manager,
BSES Bhawan, Nehru Place,
New Delhi-110019.
2. The Assessing Officer/,
DGM (Enforcement)
Enforcement Office,
BSES Rajdhani Power Ltd.
Division Punjabi Bagh,
66 KV Grind Sub Stn,
Opp. Deen Dayal Upadhyay Hospital,
Hari Nagar, New Delhi-110064.
3. The SHO
P.S. Punjabi Bagh,
New Delhi-110026 ...Defendants.
SUIT FOR DECLARATION AND
PERMANANT INJUNCTION ANIL
CHANDHEL
________________________________________________________________ Digitally signed by
ANIL CHANDHEL
Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 1 of 42 Date: 2024.05.28
CIV DJ NO. 14/2021 16:58:20 +0530
DATE OF INSTITUTION : 24.12.2020
JUDGMENT RESERVED ON : 29.04.2024
JUDGMENT PRONOUNCED ON : 28.05.2024
Counsel for the Plaintiff :Mr. Siddhartha Yadav, Adv.
Counsel for the Defendant No.1 & 2: Mr. Jasbir Singh, Adv.
Counsel for the Defendant No.3 : None
JUDGMENT
1. The Plaintiff has filed the present suit for declaration and permanent injunction, against the Defendant. The Plaintiff has sought declaration of nullity with regard to the inspection proceedings, carried out by the Defendant No.1 and 2 and further prayers of permanent injunction against taking any action, in furtherance of the aforesaid proceedings.
2. The facts stated in the Plaint:
The facts, as set out in the plaint, are summed up in paras hereinbelow:
i. The Defendant No. 1 is a company and is the licensee / supplier of electricity at places inter-alia in ANIL ________________________________________________________________ CHANDHEL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 2 of 42 Digitally signed CIV DJ NO. 14/2021 by ANIL CHANDHEL Date: 2024.05.28 16:58:28 +0530 West District, Delhi. The Defendant No. 2 is the assessing officer/DGM enforcement, who has raised the impugned bill in the name of the Plaintiff by falsely naming the Plaintiff as the user of electricity.
ii. The Defendant no. 3 is the SHO of the Police Station, Punjabi Bagh, Delhi to whom a request has been made by the officials of the Defendant No. 1 & 2 to take action against the Plaintiff in respect of the alleged theft of electricity, at the first floor of the property in question.
iii. The father of the Plaintiff is the lawful owner and having physical possession of the property bearing No. WZ-0206A, Village Madipur, Delhi-110063 (hereinafter referred as said property). The said property comprises of ground floor, first floor and second floor having one room, bathroom and roof.
iv. The father of the Plaintiff is the registered consumer / user of the Defendant No.1, in respect of the electricity supply to the said property. In the aforesaid property, there are two shops and one room at the ground floor and non-domestic meter is installed in the name of the Plaintiff's father for the same. In the remaining part of the ground floor of the said property meant for domestic use, there is one room, latrine-cum-bath and a store for which a ANIL ________________________________________________________________ CHANDHEL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 3 of 42 CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 16:58:35 +0530 domestic electric meter No. 40802272, CA No. 102791774 with sanction load of 2.00KW for Domestic (Residential) tariff category was installed by the Defendant No. 1 company in the name of the Plaintiff's father. There is another domestic meter in the name of the Plaintiff's father for the first floor and the one room, bathroom at the roof of the property, i.e., second floor.
v. In the early morning of 23.11.2020 a team of the officials of the Defendant no. 1 & 2 along with some police officials had entered into the said property of the Plaintiff's father without disclosing their identity.
vi. The Plaintiff was not present at the home, when the alleged team of enforcement branch of the Defendant No. 1 has arrived at the said property. The Plaintiff had come later on, when the enforcement team had already carried out the alleged inspection.
vii. The officials of the Defendant Nos. 1 & 2 had removed the domestic electric meter No. 40802272 having C.A. No. 102791774 installed for the ground floor of the said property without following the due process of law, despite objections raised by the Plaintiff and thereby, disconnected the electricity supply of the ground floor. It is pertinent to mention that the officials of the Defendant No. 1 & 2 did not ________________________________________________________________ Digitally signed by Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 4 of 42 ANIL ANIL CHANDHEL CIV DJ NO. 14/2021 CHANDHEL Date:
2024.05.28 16:58:43 +0530 prepare any inspection or observation report nor prepared any seizure memo or any other documents at the spot. They removed the electric meter without seizure memo or without giving anything in writing despite requests made by the Plaintiff's father.
viii. No show-cause notice was given to the Plaintiff by the Defendant Nos. 1 & 2 before the aforesaid alleged assessment of bill of supply of electricity, which is not only absolutely false but also in violation of principles of natural justice.
ix. Subsequent to the above, on 26.11.2020, the Defendant No. 2 sent a postal envelope containing enforcement inspection report form for assessment of connected load, observation memo, seizure memo and a copy of intimation/recommendation to police (which is not legible). Surprisingly the seizure-memo indicates the name of the Plaintiff as user and a copy of intimation letter was also marked to him. A CD was also supplied in the above-mentioned envelope containing videography of the spot. The aforesaid documents were apparently fabricated by the officials of the Defendant in a back date as nothing was prepared by the officials of the Defendant Nos. 1 & 2 at the spot.
________________________________________________________________ ANIL
CHANDHEL
Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 5 of 42
CIV DJ NO. 14/2021 Digitally signed
by ANIL
CHANDHEL
Date: 2024.05.28
16:58:49 +0530
x. Pursuant to the above, on 03.12.2020, the Plaintiff
received an assessment bill No. HNENR
241120200005AO, dated 24.11.2020 for a sum of Rs.3,25,310/-, which was raised in the name of the Plaintiff.
xi. The Plaintiff submitted his objections dated 05.12.2020 / 07.12.2020 to the Defendant Nos. 1 & 2, wherein a request was also made to the Defendant No.2 to provide a personal hearing. However, neither any reply nor notice of personal hearing has been sent by the Defendant no. 2 to the Plaintiff till date.
While denying the bill as false and invalid, the Plaintiff has raised following objections to the above mentioned bill raised by the Defendant no. 2:
i.) The Plaintiff is neither the owner nor the registered user of the electricity in the said premises. The Plaintiff was not present at the home at the time of inspection by the enforcement team. He came later when the team was already inside the house.
ii.) The enforcement team did not carry out the procedure of inspection, search and seizure as prescribed under Regulation 61 & 62 of the above mentioned Regulation, ________________________________________________________________ ANIL CHANDHEL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 6 of 42 CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 16:58:55 +0530 which is apparent from the video recording, which also indicate that same ending and alteration has been done to the Video Recording. No compliance of regulation no. 62 was done and meter was neither seized nor sealed at the spot.
iii.) The enforcement team had entered into the premises forcefully without showing the visiting card and I-Card of the Authorized office. They did not handover the visiting Card to the Plaintiff's father or to the Plaintiff, who came to the premises later on.
iv.) A perusal of the video recording supplied by the enforcement team clearly shows that the enforcement team had entered into the premises forcefully without showing the visiting card and I-Card of the Authorized Officer. They also did not handover the visiting Card to the father of the Plaintiff. When the Plaintiff came to the premises later on, the authorized officer did not show his visiting card or I- card nor handed over the same to the Plaintiff.
ANIL CHANDHEL ________________________________________________________________ Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 7 of 42 Digitally signed by ANIL CHANDHEL CIV DJ NO. 14/2021 Date: 2024.05.28 16:59:02 +0530 v.) Neither any inspection report was prepared at the spot nor any seizure memo or form of assessment of connected load, observation report or any other documents were prepared at the spot, which is clear from the video recording.
vi.) The enforcement team had removed the electricity meter No. 40802272 supplying electricity to Ground Floor of the house, without giving anything in writing. No seizure memo was prepared at the spot which fact may be seen from the video recording.
vii.) A perusal of observation memo shows that the enforcement has made out a case alleging theft of electricity directly from the street light incoming cable illegally by two illegal wires, which is false. It has also been falsely stated therein that output of meter No. 40802272 was found off position. It stated that no evidence of direct theft was found as is apparent from the alleged seizure memo, supplied by the Enforcement team on 26.11.2020.
viii) In the observation report, it has been ________________________________________________________________ ANIL CHANDHEL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 8 of 42 CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 16:59:08 +0530 alleged that when the Team knocked the door, D.C. Yadav came to the balcony of the first floor, where the direct theft was arranged and removed the wires in front of the team and covered it inside the room.
There were no illegal wires connected from the street light, which is apparent from the Video recording. The entire story is fabricated and figments of their imagination which have no iota of truth. Moreover, admittedly nothing was done by the Plaintiff but a false case has been made out against the Plaintiff.
xii. Without prejudice to the objections made above, the Plaintiff had also pointed out in his objections, inter-alia, that an unbelievable and unjustifiable load of 14.206KW is shown against new CA No. 401279563 for Rs.325,310/- vide bill No. NHENR 241120200005A0 dated 24.11.2020 raised in his name. The form for assessment of connected load mentions the articles, most of which are not available at the Ground Floor of the premises, on which the case has been made. Even the first floor and second floor of the house do not have any articles shown in the assessment form and as such are not even seen in the video recording but have been mentioned with a ________________________________________________________________ Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 9 of 42 ANIL CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 16:59:13 +0530 view to increase load and raise heavy assessment amount, which had not been done in accordance with Regulations No. 62 and other provisions of the Regulation and Act. The assessment made and the above-mentioned bill raised by the Defendant is wrong and void.
xiii. The Defendant has alleged that the direct electricity theft was committed at the first floor, however, the Defendant had removed the electric meter installed for the ground floor of the said property without following the provisions of the Electricity Act, 2003 and The Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Regulations, 2017.
xiv. The Plaintiff is neither the owner of the premises nor can be categorized as a user of electricity. The Plaintiff has been wrongly named as user in order to implicate him in a false and whimsical case of theft of electricity, based on assumption and imagination of the officials of the Defendant Nos. 1 & 2 and without there being any incriminating evidence against the Plaintiff.
xv. The entire proceedings including the inspection of premises, the enforcement inspection report, form for assessment of connected load, observation memo, ________________________________________________________________ Digitally signed by Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 10 of 42 ANIL ANIL CHANDHEL CIV DJ NO. 14/2021 CHANDHEL Date:
2024.05.28 16:59:19 +0530 seizure memo and the letter of intimation to police are void ab initio. Nothing incriminating has been recovered from the Plaintiff and the case is not maintainable against the Plaintiff. Moreover, the proceedings are vitiated and void ab initio in view of non-compliance of the mandatory provisions of the Electricity Act, 2003 and The Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Regulations, 2017.xvi. The case made out by the Defendant Nos. 1 & 2
against the Plaintiff has no iota of truth but fragment of imagination of the officials of the Defendant nos. 1 & 2. The whole acts and deeds on the part of the Defendant nos. 1 & 2 are illegal, unjust and unwarranted and against the provisions of the Electricity Act & Regulations made thereunder and as such same are not legally maintainable and hence, liable to be declared as null and void.
xvii. The Plaintiff's father has also made representation to the Defendant Nos. 1 & 2 clarifying the facts including that he i.e. the father of the plaintiff is the owner and registered customer / user of the electricity in the said but all in vain.
ANIL CHANDHEL ________________________________________________________________ Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 11 of 42 Digitally signed by ANIL CHANDHEL CIV DJ NO. 14/2021 Date: 2024.05.28 16:59:25 +0530 xviii. The Plaintiff has the apprehension that the Defendants may make out a false criminal case of electricity theft against the Plaintiff and may also initiate recovery of money in respect of the above mentioned bill no. HNENR 241120200005A0 dated 24.11.2020 from the Plaintiff, the recovery of which cannot be made from the Plaintiff in view of the submissions mentioned above.
xix. Accordingly the Plaintiff has sought the declaration of nullity about the inspection/enforcement proceedings and consequential permanent injunction restraining the Defendant No.1 and 2 to act in pursuance of the aforementioned inspection proceedings.
3. The facts stated in the Written Statement:
The Defendants were duly served with summons of the suit. The Defendant No.1 and 2 have entered appearance through their Counsel. The Defendant No.3 was also served, however has remained absent in the proceedings. The Defendant No.1 and 2 have filed a common written statement, wherein the averments of the plaint have been denied. The averments, made in the written statement of the Defendant No.1 and 2, are summed up in brief, in paras hereinbelow:
i. The Defendant No.1, on the basis of the Inspection Reports, Load Report, Seizure Memo (dated ________________________________________________________________ Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 12 of 42 ANIL CIV DJ NO. 14/2021 CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.05.28 16:59:32 +0530 23.11.2020) & Theft Bill, has already initiated and filed a Criminal Complaint before the Police Station Punjabi Bagh, as per the provisions of the Electricity Act, 2003 on 16.12.2020 for registration of FIR and same is under investigation.
ii. The Plaintiff has filed the suit with malafide intention which contains false averments and incorrect facts (as explained hereinafter) and as such the suit is liable to be dismissed on this ground alone with exemplary cost with regard thereto as per provision of Section 35A of CPC, 1908. The Plaintiff who is seeking equitable relief must prove his bonafide (viz. as viz. non-commission of theft of electricity) and should first come forward before this Court with clean hands.
iii. The present suit has been filed by the Plaintiff as counter blast to the Assessment Bill bearing No. HNENR241120200005A0 dated 24.11.2020 (for Direct Theft of Electricity) raised for a sum of Rs.3,25,310/- by the Defendant No.1. Under the garb of present false and vexation suit, the Plaintiff is trying to put an undue pressure, so that the answering Defendant indirectly succumb & do not the demand as raised vide supplementary / Assessment Bill dated 24.11.2020 for the Direct Theft of Electricity ("DT") ANIL ________________________________________________________________ CHANDHEL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 13 of 42 Digitally signed by CIV DJ NO. 14/2021 ANIL CHANDHEL Date: 2024.05.28 16:59:37 +0530 iv. The authorized inspection team of the Defendant No.1 inspected the premises of Plaintiff, i.e., WZ- 206-A, Ground Floor, Vill. Madipur Jwala Heri, New Delhi -110026 on 23.11.2020 at 7:30AM. During the aforesaid inspection, the joint inspection team found that the premises were being used by the Plaintiff, i.e., Amit Kumar Yadav s/o Dal Chand Yadav. At the time of inspection, Single phase Electronic Meter bearing No. 40802272 C/R-4218 KWH for Domestic purpose, whereas the Meter output was found in off position. The User was found indulged in direct theft of electricity with the help of two Nos. of illegal wire directly tapping from BSES Street Light Cable. As the team knocked the door, Plaintiff, i.e., D.C. Yadav (Registered Consumer) came at the balcony of the First Floor and removed the theft wires in front of the inspection team, and threw it inside a room at first floor. The connected load assessed in the presence of the Plaintiff and found to be 14.206 KW/DX/DT. The necessary Videography of the inspection being carried out at the site by the Photographer Mr. Hanish of M/s Arora Photo Studio through digital camera. The members of the inspection team seized the Meter No. 40802272 with C/R-4218 KWh and sent to store as material evidence, which fortifies the irregularities committed by the User/Plaintiff, whereas the illegal wires could not be seized due to the user resistance. On the basis of the inspection, the ________________________________________________________________ ANIL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 14 of 42 CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 16:59:43 +0530 Supplementary Bill for direct theft of electricity dated 24.11.2020 was prepared by following all the guidelines laid down by DERC, i.e., as per the billing advice submitted to the DFO Enf. The said Theft Assessment bill raised by the DFO Enforcement is in order having been raised as per the provisions of Tariff and Supply Code and the Plaintiff is liable to make the payment of the aforesaid Theft of Electricity Bill.
v. In view of the above, all the above-mentioned inspection was conducted & further respective theft bill was raised by following all the guidelines laid down by DERC, i.e., as per the billing advice submitted to the DFO Enfo. & as per the provisions of the Electricity Act. Thus, the aforesaid Inspection documents and Theft Bill cannot be declared as null and void and on the contrary the present suit deserves to dismissed at the threshold with exemplary cost to be awarded in favour of the Defendant No. 1 & 2.
vi. The Plaintiff has filed the present suit on mere conjectures and surmises as from the facts (as detailed herein under), would reveal that the Plaintiff i.e. Amit Kumar Yadav being the user, alongwith Dal Chand Yadav, being the registered Consumer of the Electricity supplied at the premises, has acted dishonestly, and with an intention to make unlawful ANIL ________________________________________________________________ CHANDHEL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 15 of 42 CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 16:59:50 +0530 gain and cause unlawful loss to the Defendant No. 1. The Plaintiff, Amit kumar Yadav, with dishonest intention has indulged in Direct Theft of Electricity and has acted with the intention of illegally abstracting and consuming electricity, without paying the applicable tariff for the same. As such, the present suit is without any cause of action against the Defendant No. 1 & 2 and is liable to be rejected out rightly as per the provision enumerated under order VII Rule 11 (a) of Code of Civil Procedures1908.
vii. In pursuance to the powers conferred by the provisions of Section 135 (2) of The Electricity Act, 2003 and on receipt of information from reliable sources regarding commitment of the Theft of Electricity, the authorized officers of the Defendant inspected the premises of the Plaintiff i.e. WZ-206- A, Ground Floor, Vill. Madipur, Jwala Heri, New Delhi -110026 at 07:30AM & during inspection Amit Kumar Yadav S/o Dal Chand Yadav along with Plaintiff were found indulged in Direct Theft of Electricity with the help of illegal wires, which were directly connected from BSES Street Light Cable and then feeded to the suit premises for Domestic Purposes. The raiding team consisted of:
(i) Shri Sachin Tomar, Asst. Manager.
(ii) Shri Rohit Singh, Dip. Engg.
________________________________________________________________ Digitally
signed by
ANIL
Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 16 of 42 ANIL CHANDHEL
CHANDHEL Date:
CIV DJ NO. 14/2021 2024.05.28
16:59:56
+0530
(iii) Shri Ravinder, Tech.
viii. During the inspection, it was revealed that Amit
Kumar Yadav S/o Dal Chand Yadav (Plaintiff) was the User and Sh. Dal Chand Yadav being the Registered Consumer of the electricity supplied at the premises, at which the inspection was carried out by the members of raiding team. The inspection team was headed by Shri Sachin Tomar, Asst. Manager, and at the time of raid the Plaintiff was found using the electricity of Domestic (DX) Purpose.
ix. As per the direction of DGM Enforcement; pursuing the morning raid along with Police Official, the Joint Inspection team of Defendant No. 1 inspected the aforesaid premises of the Plaintiff. On inspecting the premises, the joint inspection team found that the premises was being used by the Plaintiff, i.e., Amit Kumar Yadav S/o Dal Chand Yadav, whereas Sh. Dal Chand Yadav was found to be the Registered Consumer of the Electricity Supply at the Suit Premises. Further at the time of inspection Plaintiff was indulged in Direct Theft of Electricity through BSES Street Light Cable with the help of two no. of illegal wires. During inspection, one single phase Electronic Meter Bearing No. 40802272 found installed at site, whereas the output of the meter was ________________________________________________________________ Digitally Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 17 of 42 signed by ANIL CIV DJ NO. 14/2021 ANIL CHANDHEL CHANDHEL Date:
2024.05.28 17:00:02 +0530 found in off position. As the inspection team knocked the door, Dal Chand Yadav (Registered Consumer) came at the balcony of the first floor where the DT was arranged and those theft wires in front of the inspection team and threw it inside the room of first floor. Thus whole load of the premises was found running illegally on direct theft for Domestic purpose. The necessary Videography of the inspection being carried out at the side by Photographer Mr. Hanish of M/s Arora Photo Studio through digital camera. The connected load of the premises was also checked and recorded as 14.206 KW/DX/DT. The members of the Inspection team disconnected the supply and removed and seized the electricity meter bearing No. 40802272, however the inspection team could not seized the illegal wires due to the user created heavy nuisance. The sketch depicting the mode of Theft was prepared on the Inspection Report by the Raiding Team members.
x. The user was present at the site the entire process but refused to sign the Inspection Report (Meter Detail), Load Report & Seizure Memo prepared by the members of the raiding team at the time of raid / inspection.
xi. The acts of the Plaintiff (being the Registered consumer) falls within the ambit of the provisions ________________________________________________________________ ANIL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 18 of 42 CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:00:08 +0530 contained in Section 135 read with Section 150 of the Electricity Act, 2003. All essential ingredients of the offence under the said sections of the Act was fulfilled. In view thereof, a presumption has to be drawn against the User also the Registered Consumer i.e. Plaintiff, that the Plaintiff has been guilty of offences under proviso to Section 135 (1) of the Electricity Act, 2003 since the Plaintiff was abating, the user for using the electricity illegally and dishonestly by employing means not authorized by the Defendant. The acts of the Plaintiff are more specifically covered under proviso to sub section (1) of Section 135 of the Electricity Act.
xii. The facts as disclosed above establish that the Plaintiff / Registered Consumer has acted dishonestly, and with an intention to make unlawful gain, and cause unlawful loss to the Answering Defendant. The Plaintiff with dishonest intention had employed a method, which resulted in a manner, whereby electricity was being stolen. The Plaintiff has acted with the intention of illegally abstracting and consuming electricity, without paying the applicable tariff for the same.
xiii. In view of the above, the Plaintiff / Registered Consumer has committed Direct Theft of Electricity, in terms of Section 135 read with Section 150 of the ________________________________________________________________ ANIL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 19 of 42 CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:00:14 +0530 Electricity Act, 2003. He was abating the user to use electricity illegally, by drawing the same dishonestly, from the Defendant's system. Consequently, an amount of Rs. 3,25,310/- (Rupees Three Lakhs Twenty Five Thousand Three Hundred and Ten Only) incl. LPSC is payable to be the Defendant by the User as well as the Plaintiff for the wrongful abstraction, consumption theft and use of electricity.
Therefore, an Assessment bill dated 24.11.2020 was raised against the Plaintiff. The same has been computed on the basis of the billing load and as per the applicable tariff. The supplementary bill dated 24.11.2020, the same was payable by the due date i.e. 09.12.2020, was made and sent to the Plaintiff.
xiv. The Defendant had assessed a civil liability of Rs.3,25,310/-(Rupees Three Lakh Twenty Five Thousand Three Hundred and Ten Only) against the Plaintiff in accordance with provisions of DERC Regulations.
xv. The Plaintiff has willfully neglected to pay the said amount as per the supplementary bill dated 24.11.2020, which was duly sent to the Plaintiff. The aforesaid acts and omission of the Plaintiff clearly show that Plaintiff was indulging in Direct Theft of Electricity for a very long time and by such act, a huge loss is caused to the Defendant. Such malafide ________________________________________________________________ ANIL CHANDHEL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 20 of 42 CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:00:21 +0530 acts and omissions of the Plaintiff herein squarely fall within the ambit of Section 135 read with Section 150 of the Electricity Act, 2003. The Plaintiff has been causing the pilferage of electricity as defined in the aforesaid section and is, therefore, liable for punishment and penalty prescribed under Section 135 of the Electricity Act along with civil liability as contemplated under Section 154(5) of the Electricity Act, 2003.
xvi. Instead of paying the aforesaid Assessment Bill, the Plaintiff has filed the present false, frivolous and vexation suit, praying inter alia for quashing of the Bill. Without prejudice to the above, the act of the Plaintiff (as explained above) does not give any right to the Plaintiff to seek any discretionary relief from this Court, as the person seeking any discretionary relief should come to the Court with the clean hand and bonafide intentions.
xvii. The Defendant No.1 and 2 have denied the contents of plaint in the parawise reply. However the physical situation of the property or the factum of meters installed on the ground, first and second floor, as stated in para No. 4 to 7 of the plaint, have not been denied by the Defendant No.1 and 2.
4. The facts stated in the Replication: Digitally signed by ANIL ANIL CHANDHEL ________________________________________________________________ CHANDHEL Date:
2024.05.28 17:00:27 Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 21 of 42 +0530 CIV DJ NO. 14/2021 4.1. The Plaintiff has filed the replication, wherein the Plaintiff has traversed the contents of the written statement of the Defendant No.1 and 2 and has made the necessary denials, reiterating the contents of the plaint.
5. Issues:
5.1 On the basis of the pleadings of the parties, the following issues were framed on 20.12.2021:
i. Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP.
ii. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPD.
iii. Relief. 6. The Plaintiff's Evidence: 6.1 The Plaintiff has led its evidence and has examined only one
witness in support of his case. The Plaintiff has himself appeared as the PW-1 and has exhibited the following documents in his examination-in-chief:
i. Exhibit PW-1/1: Copy of Enforcement Inspection Report dated 23.11.2020.
ii. Exhibit PW-1/2: Copy of Form for Assessment of ________________________________________________________________ ANIL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 22 of 42 CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:00:33 +0530 Connected Load.
iii. Exhibit PW-1/3: Copy of Observation Memo. iv. Exhibit PW-1/4: Copy of Seizure Memo. v. Exhibit PW-1/5: Original CD of the videography of the inspection.
vi. Exhibit PW-1/6(OSR): Copy of bill of supply for electricity.
vii. Exhibit PW-1/7(OSR)(Colly): Reply/objections dated 07.12.2020.
viii. Exhibit PW-1/8: Copies of three receipts of speed post and postal tracking report.
ix. Exhibit PW-1/9: Copies of previous electricity bills dated 24.11.2020, 23.09.2020, 22.08.2020 and 23.07.2020.
x. Exhibit PW-1/10: Certificate under Section 65-B of Indian Evidence Act.
The PW-1 has reiterated the averments of the plaint in his examination-in chief. The PW-1 was cross-examined by the Ld. Counsel for the Defendants No.1 & 2 and was discharged, upon conclusion of his cross-examination.
7. The Defendant's Evidence:
7.1 The Defendants have also examined only one witness in support of his case. The DW-1 is the manager of the Defendant No.1. The DW-1, in examination-in-chief, has relied upon the documents already exhibited by the PW-1:
________________________________________________________________ ANIL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 23 of 42 CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:00:38 +0530
i) Exhibit PW-1/1: Joint inspection report along with detail report.
ii) Exhibit PW-1/2: The loan report.
iii) Exhibit PW-1/4: Seizure memo dated 23.11.2020.
iv) Exhibit PW-1/6: Supplementary bill dated 04.11.2020.
The DW-1 has reiterated the averments made in the written statement of the Defendant No.1 and 2. The DW-1 was cross-examined by the Ld. Counsel for the Plaintiff and was discharged, upon conclusion of his cross-examination.
8. Submissions of the Parties.
8.1 After conclusion of the evidence, the Ld. Counsels for the parties have addressed their final arguments. The Ld. Counsel for the Plaintiff has submitted that the Defendant No.1 and 2 have failed to prove the legality of the inspection/enforcement proceedings. He has cited the provisions of the Electricity Act, 2003 as well as the Delhi Electricity Regulatory Commission (Supply Code & Performance Standards) Regulations, , 2017 to submit that the inspection was carried out in complete violation of the statutory provisions. He has further submitted that the DW-1 has failed to support the contentions of the written statement in his cross-examination. He has stated that since the inspection is per-se void & illegal; therefore, the Plaintiff is entitled to the prayers of the suit. Ld. Counsel for the ANIL ________________________________________________________________ CHANDHEL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 24 of 42 CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:00:44 +0530 Plaintiff has relied upon the judgment, passed by the Hon'ble High Court of Allahabad in, "Kamil Vs. State of U.P.:
2016(6)ADJ11."
8.2. Ld. Counsel for the Defendant No.1 and 2 has submitted that onus to prove the illegality of the inspection was upon the Plaintiff and the Plaintiff has to rebut the presumption of legality of the inspection. It is submitted that merely few contradictions would not vitiate the entire proceedings. It is submitted that the case at hand is one of the direct theft of electricity and perfect evidence cannot be expected, due to strenuous circumstances, under which such inspection are being conducted, as well as due to the resistance from the defaulters. Ld. Counsel for the Defendant No.1 and 2 has relied upon the following judgments:
i. Punjab State Electricity Board Vs. Ashwani Kumar:
2010(2)CLJ(SC)299;
ii. Adit Engineering Pvt. Ltd. Vs. State : 251(2018) DLT54;
iii. Lokesh Chandela Vs. State of NCT of Delhi:
2012CriLJ1418;
iv. Sushil Sharma Vs. BSES Rajdhani: 2011(1) CC665; v. Hiten P. Dalal Vs. Bratindranath Baneerjee:
2011(2)ACR1492(SC);
vi. Mukesh Rastogi Vs. NDPL: 2007(99)DRJ108; vii. Raju Vs. BSES Rajdhani: MANU/DE/1885/2016; viii. Udaiveer Singh Vs. BSES Rajdhani:
MANU/DE/0879/2016.
________________________________________________________________ Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 25 of 42 ANIL CIV DJ NO. 14/2021 CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:00:51 +0530
9. Conclusions on Issues & Reasons for such conclusions:
9.1. Issue No.1 Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP.
9.1.1. The onus to prove the Issue No.1 is upon the Plaintiff. The Plaintiff has sought declaration with regard to raid/inspection carried out on 23.11.2020. The main contentions are that the Plaintiff is not user of the electricity in the premises and further has not committed any theft of the electricity as alleged and the aforesaid raid /inspection was in complete violation of the provisions of the Electricity Act, 2003 as well as in violation of the Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Regulations 2017. Thus the core question to be decided for adjudication of the controversy, being subject-matter of present suit and for adjudication of the Issue No.1 can be culled out as follows:
"Whether the inspection/enforcement proceedings, dated 23.11.2020 carried out by the Defendant No.1 was legal and valid, in terms of the rules and statutory provisions?"
9.1.2. Before dwelling upon the aspects of adjudication of the above-mentioned question, it would be appropriate to ________________________________________________________________ Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 26 of 42 ANIL CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:00:58 +0530 adjudge the maintainability of the present suit. The present suit has been filed for challenging the inspection/raid carried out by the Defendant No.1 and touches upon the provisions of the Electricity Act, 2003. However the present suit is maintainable, in terms of the law laid down by the Hon'ble Supreme Court in, "North Delhi Power Limited Vs. Devinder Singh & Anr.: CA No. 20842 of 2017 (04.12.2017)", wherein it has been held that the Special Electricity Court acts as a Court of Sessions and has been set up only for trying the offences, which are committed under the Act. It has been held that the aforesaid Special Court would not have jurisdiction to entertain and adjudicate a civil suit. In the aforesaid matter, a civil suit challenging a theft inspection and consequent proceedings was filed before the Special Court under the provision of Electricity Act, 2003. The challenge to jurisdiction was rejected by the Hon'ble High Court of Delhi, by relying upon the judgment passed in, "B.L. Kantroo Vs. BSES Rajdhani Power Ltd.:
154(2008)DLT56". However upon appeal, the Hon'ble Supreme Court reversed the decision holding that the Special Court under the Act would not have jurisdiction to entertain a civil suit. Accordingly, the present civil suit is not barred under the provisions of the Electricity Act, 2003.
9.1.3. Whether the inspection/enforcement proceedings, dated 23.11.2020 carried out by the Defendant was legal and valid, in terms of the rules and statutory provisions?
ANIL ________________________________________________________________ CHANDHEL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 27 of 42 Digitally signed by CIV DJ NO. 14/2021 ANIL CHANDHEL Date: 2024.05.28 17:01:03 +0530 i. The present case is stated to be a direct theft case by the Defendant No.1, under Section 135 of the Electricity Act, 2003. The Chapter VII of the Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Regulations 2017 provides the rules, which are relevant for the inspection/raid in such cases. In terms of Regulation 55 sub rule 3 and 4, the Licensee/company is duty bound to issue photo identity cards to their Officials, which would clearly indicate their designation. The officers of the Licensee are mandated to videograph the inspection, including the refusal acceptance or denial by the consumer of photo visiting card, signing of inspection report, signing of seizure memo etc. The relevant part of Regulation 55 is being reproduced hereinbelow:
"(2) The Licensee shall publish on its website, the list of the Assessing officers under section 126 of the Act, the Authorized officers under sub-section (2) of section 135 of the Act and the officers authorized by the Commission to disconnect supply under sub-section (1A) of Section 135 of the Act and shall display such list at prominent locations in its local offices.
(3) The Licensee shall issue photo identity cards to all the Assessing officers and Authorized officers specifically indicating their designation and details of authorization.
(4) During the inspection of premises, in all cases, the assessing officer or the authorized officer as the case may be, shall cause to videograph the entire proceedings, till the completion of inspection at the premises: Provided that the videograph shall include acceptance or denial by the consumer of photo visiting ________________________________________________________________ ANIL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 28 of 42 CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:01:09 +0530 card, signing of inspection report, signing of seizure memo etc. (5) The Licensee shall maintain and submit record of all cases booked under Section 126 of the Act and Section 135 of the Act to the Commission on monthly basis."
The Regulation 56 provides that the Inspecting Officials will carry their photo visiting card/identity cards and show the same to the consumer before entering the premises. The relevant part of regulation 56 is being reproduced hereinbelow:
"56. Inspections of the premises and electrical installations by Assessing Officer:-
(1) The Assessing officer shall promptly conduct inspection of any premises either suo-moto or on receipt of information regarding unauthorized use of electricity thereat: Provided that the Assessing officer may avail the assistance of employees of the Licensee for conducting inspection.
(2) The Assessing officer shall carry his visiting card bearing his photograph and photo identity card issued under Regulation 55(3).
(3) Photo ID shall be shown and the visiting card bearing his photograph shall be handed over to the consumer before entering the premises.
(4) The Assessing officer shall prepare an inspection/site report as per the provisions under these Regulations."
Regulation 57 further provides for seizure of material evidences during the inspection in the following manner:
ANIL ________________________________________________________________ CHANDHEL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 29 of 42 CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:01:15 +0530
57. Preparation of Report by Assessing officer:-
(1) In the event of detection of unauthorized use of electricity, the Assessing officer shall prepare a detailed Report at site, in the manner as prescribed in the Commission‟s Orders.
(2) All the material evidences such as tampered meter, etc. and the documentary evidence, which are relevant to the case found during the inspection, shall be seized under a seizure memo and sealed in the presence of the consumer or his representative and be kept as a proof along with photography and video recording of the premises.
(3) A detailed description of the material seized, including date, time and place and name & address of witnesses to the seizure shall be recorded on the exterior of the cover and signatures of all witnesses shall be affixed on the sealing points: Provided that if the witness refused to sign, the same shall be recorded in the report and captured in the videograph.
(4) The Inspection Report shall be signed by the Assessing officer and a copy of the same shall be handed over to the consumer or his representative at the site immediately under proper acknowledgement. The other persons present at site may also sign the inspection report.
(5) If consumer or his representative at site refuses to acknowledge and/or accept the copy of the report, a copy of the report shall be pasted at a conspicuous place in or outside the premises and photographed and video recorded. Another copy of the same report shall be sent to the consumer under Registered Post or Speed Post or electronically on the same day or on the next day of the inspection.
(6) The Inspection report shall form the basis for further action as per the provisions contained in Regulations."
ANIL ________________________________________________________________ CHANDHEL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 30 of 42 CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:01:21 +0530 Similarly the Regulation 60 also casts an obligation upon the Authorized officer about identifying himself to the consumer, before entering the premises and preparation of an inspection report, in the following manner:
"60. Inspections of the premises and electrical installations by Authorized officer:-
(1) The Authorized officer shall promptly conduct inspection of any premises either suo-moto or on receipt of information regarding theft of electricity:
Provided that the Authorized officer may avail the assistance of employees of the Licensee for conducting inspection.
(2) The Authorized officer shall carry his visiting card bearing his photograph and photo identity card issued under Regulation 55(3).
(3) Photo ID shall be shown and visiting card bearing his photograph shall be handed over to the consumer or the occupier of the premises before entering the premises and take the acknowledgment.
(4) The Authorized officer shall prepare an inspection report as per the provisions under these Regulations."
ii. In the present case the Plaintiff has stated in the plaint as well as in the examination in chief that the Plaintiff was not present in the premises and subsequently arrived on the spot. It is stated that the Plaintiff is neither the registered owner nor the user of the electricity meters in the premises. It is stated that the official did not show their photo visiting cards/identity ________________________________________________________________ ANIL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 31 of 42 CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:01:26 +0530 cards and nothing incrimating was found at the premises. It is further stated that though the theft of electricity was alleged at the first floor, however the meter of ground floor was removed. It is stated that no receipt of the meter was given. It is stated that no report was prepared at the spot and the same was subsequently shared with the Plaintiff. It is stated that the Plaintiff has filed objections against the Assessment Bill dated 24.11.2020, however no opportunity of hearing was afforded to the Plaintiff.
iii. The Plaintiff has been cross-examined by the Defendant No.1 and 2, however nothing has been extracted from the Plaintiff. The Plaintiff was confronted with the case of the Defendant No.1 and 2, which the Plaintiff has denied.
iv. The Defendant No.1 and 2 have stated in the written statement that the Plaintiff was the user and his father was the registered consumer. It is stated that the father of the Plaintiff was caught directly committing theft of the electricity by using two wires from the first floor. It is stated that the photography and videography was done of the inspection, by a professional photographer, being part of the team. It is stated that the relevant evidence could not be seized due to the resistance of the Plaintiff and his father. It is stated that the Plaintiff and his father refused to sign the report.
v. The Defendant No.1 and 2 has examined only one witness to prove their contentions. The DW-1 is the head of the team, ________________________________________________________________ Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 32 of 42 CIV DJ NO. 14/2021 ANIL CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:01:32 +0530 which has conducted the inspection on 23.11.2020. The DW- 1's cross-examination places a question mark over the legality of the inspection carried on 23.11.2020.
vi. The cross-examination of DW-1 reveals that the I-card of the DW-1 does not disclose his designation as the manager or that he is employed in the enforcement branch. He states that he was not working as Manager on 23.11.2020, i.e., the day of inspection. He further states that he did not remember his designation on 23.11.2020. The witness could not point out any document, pursuant to which the inspection was conducted. He further could not point any document whereby he was authorized to conduct the inspection. In the written statement it was stated that the inspection was conducted on account of some reliable information received about the theft, however in the cross-examination, the witness states that there was no such information from any source and he was not aware as to why the aforesaid fact has been mentioned in the affidavit. The witness states that the inspection was conducted during the mass raid, in the village Madipur. No document was pointed out for conducting the mass raid. The witness was further not aware of the procedure of inspection in cases related to theft.
vii. Thus, the facts as emerging on record are that the name and designation of the Officers conducting the raid/inspection is not disclosed to the consumer. The Sole witness himself is not sure about his designation on the date of inspection and his ________________________________________________________________ ANIL CHANDHEL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 33 of 42 CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:01:38 +0530 current I-card does not display his designation and the same is a violation of the Regulation 55, 56 and 60. It is surprising that the head of the investigation team is not aware of his designation on the date of inspection.
viii. The witness was the head of the raiding/inspecting team. The head of the inspecting team should be aware of his designation as well as the legal procedure of the inspection. The inspection is regulated by the law and therefore, before conducting such an inspection, it is pre-emptory to be aware of the rules pertaining to the same. Even if the specific rules are not mathematically remembered, at least the substantive practical knowledge of the rules would suffice, however the cross examination of the witness points out his lack of knowledge about such rules. The relevant part of the cross- examination is being reproduced hereinbelow:
"The procedure of inspection and preparation of report of a premises in case of theft is given in Section 135 of the Electricity Act. I do not know, if any procedure is mentioned in electricity regulation. Again said, it is mentioned in DERC regulation but I do not know where it is written. I do not know the rule number, in which the procedure is prescribed, but I am aware of the procedure.
Q. Please tell the complete procedure of inspection and preparation of report in case of raiding of premises for electricity. What do you have to say?
Ans.: Under Section 135 of the Electricity Act, 2003, as being authorized officer, whenever in my area, theft is running, we book the premises."
The witness has also stated that he is not aware if under ________________________________________________________________ Digitally Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 34 of 42 signed by ANIL CIV DJ NO. 14/2021 ANIL CHANDHEL CHANDHEL Date:
2024.05.28 17:01:44 +0530 regulation 61 of the DERC Regulations, 2017, it is required to photograph or videograph the refusal of the person as well as the pasting of the inspection report at the premises. Thus the witness has failed to establish that he was substantively aware of the procedure of the inspection.
ix. Further the witness has stated that he had tried to affix the inspection report at the premises, however public persons gathered did not allow them to paste the report at the premises. The witness was not sure whether the same could be seen in the video. Strangely, the witness has also stated in the cross-examination that no resistance has been shown by the Plaintiff or his father during the inspection. The video does not show any attempts to either prepare or affix any report at the premises.
x. If the video, i.e., Exhibit PW-1/5 is examined, the same starts with the Officials stating that the Plaintiff's father is removing the wire. The alleged act of removing the wire is not visible, though their appears to be some movement on the balcony, however its extremely difficult to comprehend from the visuals in the video whether two wires or any wire is connected to commit theft of electricity. Though in conversation of official, the reference is only to one wire. The Official thereafter enters the premises without disclosing their names and identity. The officials, time and again requested the Plaintiff's father to open one particular room, however the Officials were not permitted to go inside that room. The ________________________________________________________________ Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 35 of 42 ANIL CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:01:50 +0530 Officials stated that the removed wire was in that room. The entire inspection was peaceful, except the part where the access to the room was blocked by the Plaintiff's father. In the remaining inspection, there was no protest or resistance on the behalf of the Plaintiff or his father. The aforesaid videography in Exhibit PW-1/5 is stated to be provided to the Plaintiff by the Defendant and the Plaintiff has stated the same to truncated and fabricated, however has also relied upon the same. Though there is no certificate under Section 65B of the Indian Evidence Act, 1872, in support of the Exhibit PW1/5, however, the Defendant No.1 and 2 have also not challenged the Exhibit PW1/5. Thus the Exhibit PW1/5 has been proved against the Defendant No.1 and 2.
xi. The people in the video are largely the Plaintiff's father, family members and the inspection team. The removal of the meter is not resisted to. However time and again, it was requested to give in the writing the reason for removal as well the factum of removal. The Video indicates that despite the requests for written reasons/receipts, nothing in writing was shared. The Plaintiff's father was not even asked to sign the report/receipt for removal and in fact no such report was prepared, at the spot. The video captures the events from entry till the team went away with the meter, however the team is not even seen to make an attempt to prepare any report or get the same signed by the Plaintiff or his father.
xii. Though the conduct of the Plaintiff's father in not letting the ________________________________________________________________ ANIL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 36 of 42 CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:01:58 +0530 official in one particular room appears suspicious, however the officials in video were not bearing their Identity cards nor had introduced themselves by designation. The PW-1 has not been confronted with the aforesaid part in the cross
-examination and remaining entire proceedings were without any opposition. Therefore, the aforesaid factor alone is not sufficient to sustain the inspection. The team had a police official in it and therefore, if it was of the view that the incriminating evidence was in that particular room, it should have introduced themselves and should have legally tried to obtain the evidence.
xiii. Therefore, the inspection was not conducted in terms of the applicable rules. The witness of the Defendant has failed to establish the legality of inspection in his cross-examination.. No other team member has been examined from the team. The violation of regulations 55, 56, 57, 60 and 61 of the Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Regulations 2017 is writ large on the face of the inspection.
xiv. One more aspect is that there were multiple meters in the premises. The theft was stated to be at the first floor, whereas the meter of ground floor was seized. The load estimate has been prepared randomly and not at the spot. It is stated in the written statement that the load estimate was prepared in presence of the Plaintiff's father, however the video, i.e., Exhibit PW-1/5 belies the aforesaid fact. The video does not ________________________________________________________________ ANIL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 37 of 42 CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:02:04 +0530 connect the aforesaid devices as well as well with the meter seized or wire stated to be used has to be shown. The entire video shows some random pictures/conversations. Even if it is a case of theft, it does not give power to the inspecting team to conclude a whimsical amount and the same has to be relatable to the devices plugged to the wire stated to be used for illegal use or theft of the electricity. The Defendant No.1 and 2 did not make any attempt to prove the sketch of the theft in the Court. The basis for estimation of the load for concluding the amount of Rs.3,25.310/- has not been established on record. There is no nothing on record to show that the load estimation has been made in terms of formula stated in Appendix-I of Delhi Electricity Regulatory Commission Regulations, 2017. Merely randomly mentioning the devices and stating an entry against them would not by itself prove the same.
xv. Further the seizure and sealing of the meter has to be in terms of DERC Regulations, however nothing is visible from the video whether the aforesaid procedure was followed. The seized meter has been stated to be sent to store, however no document has been produced, whether the same was sent to the store/accredited laboratory for examination. There is nothing on record to conclude that the meter was in off-load position.
xvi. Thus the Defendant No.1 has failed to establish the legality of the inspection as well as the basis of the bills issued to the ________________________________________________________________ ANIL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 38 of 42 CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:02:10 +0530 Plaintiff. Another important aspect is that no material has been produced to show that the Plaintiff was the user of the electricity in the premises. The identity of the Plaintiff on the spot or in video has not even been attempted to be established by the Defendant No.1 and 2. Interestingly, the allegations of theft are against the father of the Plaintiff. It can be seen in video, i.e., the Exhibit PW1/5 that the name of the Plaintiff and his father was asked from the Plaintiff's father, which he had readily disclosed. It has not asked from the Plaintiff's father as to who else except him was using the electricity in the premises. Further the Plaintiff's father has himself not disputed or disowned his liability of being the registered owner/user of the electricity of the premises. Therefore, the basis for terming the Plaintiff as user is completely missing in the facts asserted by the Defendant No.1 and 2.
xvii. Therefore, on account of the preponderance of the probabilities, it has to be concluded that the inspection/enforcement proceedings, dated 23.11.2020 carried out by the Defendant No.1 and 2 were not legal and valid, in terms of the rules and statutory provisions, as discussed hereinabove and the answer to question, as framed above is in the negative.
9.1.4. Therefore, the Plaintiff has proved his entitlement for the declaration to the extent that enforcement proceedings carried out by the officials of the Defendant No.1 and 2 on ________________________________________________________________ Digitally signed by Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 39 of 42 ANIL ANIL CHANDHEL CIV DJ NO. 14/2021 CHANDHEL Date:
2024.05.28 17:02:16 +0530 23.11.2020 are null void and the enforcement inspection report, form for assessment of connected load, observation memo, seizure memo are null and void. However the Plaintiff cannot be granted a declaration about the intimation issued to the Defendant No.3 to take an action under the provisions of the Electricity Act, 2003. The reason for the same is that the aforesaid proceedings, though are on the basis of the afore-mentioned documents, but still are criminal in nature. A civil court in civil suit cannot restrict the parties from taking criminal course of action, however futile the same may be. The remedies against the aforesaid proceedings lies in the domain of the criminal law. However it is clarified that no action for civil recovery would lie against the Plaintiff, in terms of the aforesaid inspection proceeding or assessment bill issued by the Defendant No.1 and 2. The Issue No.1 is accordingly, decided.
9.2. Issue No.2. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPD.
9.2.1. The Plaintiff has sought permanent injunction against the Defendants from taking any action against the Plaintiff emanating from the inspection proceedings dated 23.11.2020 or documents in pursuance thereof as well as any proceedings in pursuance of the assessment Bill No. HNENR 241120200005A0 dated 24.11.2020. The Plaintiff has already proved that the aforementioned inspection has ________________________________________________________________ ANIL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 40 of 42 CHANDHEL CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:02:23 +0530 not been conducted in accordance with the applicable rules and declaration of nullity with regard to the inspection proceedings as well the assessment Bill No. HNENR 241120200005A0 dated 24.11.2020 has been awarded.
Therefore, the Plaintiff is also entitled to a permanent against any civil proceedings for recovery arising out of the aforesaid inspection proceedings dated 23.11.2020 as well as from the assessment Bill No. HNENR 241120200005A0 dated 24.11.2020.
9.2.2. However the Plaintiff is not entitled to any permanent injunction in so far as he seeks a restraint against the Defendants from availing the remedies, which falls within the purview of the criminal law. A Civil Court can-not pass any injunction thereby restraining the party from availing the criminal remedies and any such injunction is barred under Section 41(d) of the Specific relief Act, 1963. Therefore, the Plaintiff is entitled to a permanent injunction, only against the civil proceedings. The Issue No.2 is accordingly decided.
10. Relief:
Accordingly, the suit of the Plaintiff is decreed and a decree for declaration is passed thereby declaring that inspection/enforcement proceedings carried out by the officials of the Defendant No.1 and 2 on 23.11.2020 are null void and the enforcement inspection report, form for assessment of connected load, observation memo, seizure memo as well as the assessment Bill No. HNENR 241120200005A0 ANIL ________________________________________________________________ CHANDHEL Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 41 of 42 CIV DJ NO. 14/2021 Digitally signed by ANIL CHANDHEL Date: 2024.05.28 17:02:29 +0530 dated 24.11.2020 are null and void. A decree for permanent injunction is also passed thereby restraining the Defendants permanently from initiating any civil proceedings for recovery arising out of the aforesaid inspection proceedings dated 23.11.2020, consequent document as well as from the assessment Bill No. HNENR 241120200005A0 dated 24.11.2020. The decree sheet be drawn accordingly. The files be consigned to record room after due compliance.Digitally signed by ANIL CHANDHEL
ANIL CHANDHEL Date:
2024.05.28 17:02:37 +0530 Announced in the open Court (ANIL CHANDHEL) today on 28th of May, 2024 DISTRICT JUDGE-04 WEST DISTRICT THC/DELHI/28.05.2024 ________________________________________________________________ Amit Yadav Vs. BSES Rajdhani Power Ltd. & Ors. Page No. 42 of 42 CIV DJ NO. 14/2021