Delhi District Court
Sh.K.L.Kalra vs North Delhi Power Limited on 13 February, 2012
IN THE COURT OF MS.RUCHIKA SINGLA
CIVIL JUDGE-01(NORTH) : DELHI
Suit No. 117/2004
Unique ID No. 02401C5787342004
Sh.K.L.Kalra
S/o Sh.S.P.Kalra
R/o G-702, Rashmi Apartment,
Harsh Vihar,
Pitam Pura,
New Delhi-34
...... Plaintiff
Versus
North Delhi Power Limited
Grid Sub Station Delhi Hudson Lines,
Kingsway Camp,
Delhi-09
...... Defendant
Date of institution of suit : 23.02.2004
Date on which reserved for judgment : 18.01.2012
Date of Judgment : 13.02.2012
JUDGMENT:
1. This is a suit for permanent injunction.
2. Briefly stated, the facts of the case as alleged by the Plaintiff are as follows.
2.1. The Plaintiff is the consumer of connection bearing K no. 34400172303D installed at G-702, Rashmi Apartment, Harsh Vihar, Pitam Pura, New Delhi-34 with a sanctioned load of 4.78kw. 2.2. On 07.02.2004, the officials of the Defendant company visited the premises of the Plaintiff alleging that both the ½ seals of the meter were fictitious as they did not tally with the authenticated sample K L Kalra v. NDPL Suit No.117/2004 Page 1 of 9 monogram. It was also alleged that meter terminal seals does not exists. On these allegations, the impugned bill of Rs.93,805/- was raised on 07.02.2004 itself. Thereafter, they served upon the Plaintiff the 3 day show cause notice. It is submitted that the Plaintiff was not indulged in theft of energy as alleged. 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 07.02.2004, the Defendant's joint team inspected the Plaintiff's premises where they found that the connected load was 14.425kw against the sanctioned load of 4.78kw. Both ½ seals were also tampered and the meter terminal seals were found to be not existing. A paper IR seal duly signed by the joint team was pasted on the meter to maintain status quo. 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. The impugned bill was raised which is liable to be paid by the Plaintiff. However, the Plaintiff did not appear at the personal hearing. The suit was filed in the meanwhile, and the matter is still pending with the department. Hence, it is prayed that the suit of the Plaintiff is not maintainable and the same may be dismissed.
4. No replication was filed by the Plaintiff. On the pleadings of the parties, issues were framed vide order dated 15.02.2005:
1. Whether the suit of th Plaintiff is not maintainable without seeking relief of declaration?(onus on both parties)
2. Whether the Plaintiff is entitled to the relief of permanent injunction, as claimed?OPP
3. Relief.
5. Thereafter, the matter was fixed for Plaintiff's evidence. The Plaintiff got himself examined as PW1 but did not exhibited any document.
K L Kalra v. NDPL Suit No.117/2004 Page 2 of 96. Thereafter, the matter was fixed for Defendant's evidence. The Defendant got examined Sh.Naveen Kumar and Sh.S.K.Dass as DW1 and DW2 respectively and exhibited the following documents:
Ex.DW1/1 Copy of the inspection report Ex.DW1/2 Copy of the show cause notice dated 07.02.2004 Ex.DW1/3 Copy of the speaking order Ex.DW1/4 Copy of the bill Ex.DW1/5 Provisional theft bill of Rs.93,805/-
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 Whether the suit of th Plaintiff is not maintainable without seeking relief of declaration?(onus on both parties)
8. Onus to prove this issue has been placed on both the parties.
9. The counsel for Defendant has argued that the present suit fr injunction is not maintainable as the Plaintiff has not claimed the relief of declaration, which is a must in view of the judgment of Hon'ble High Court of Delhi in "Sarjiwan Singh Vs. DVB, 110 (2004) DLT 633". In view of the same, it is argued that the present suit is not maintainable.
10. Perusal of the impugned judgment shows that the Hon'ble High Court of Delhi has held that where the plaint does not prima facie show that the bill is illegal, simpliciter suit for injunction cannot be used as a device to defeat or delay the liability created. As a corollary, it would imply that where the plaint shows that the bill is prima facie illegal, declaration need not be sought.
K L Kalra v. NDPL Suit No.117/2004 Page 3 of 911. Before proceeding to examine that whether the bill is legal or not, let us see whether the bill is prima facie legal or not. The impugned bill has been raised on the allegations of DAE as allegedly, the following discrepancies were found in the Plaintiff's meter during the course of inspection on 07.02.2004:
(i) connected load was found to be 14.425kw against the sanctioned load of 4.78kw.
(ii) Both ½ seals were tampered.
(iii)The meter terminal seals were found to be not existing.
12. It is a well-settled by numerous judgments of the Hon'ble Supreme Court as well as by our own Hon'ble High Court that a case of DAE cannot be booked on the basis of these allegations alone(Col. R.K. Nayar v. BSES RPL, (140) 2007 DLT 257;Jagannath Singh v. Ramaswamy, (1966) 1 SCR 683;Ram Chandra v. State of Bihar, 1967 CriLJ 409; Harvinder Motors v. B.S.E.S. Rajdhani Power Ltd. 135(2006) DLT 198; Udham Singh v. BRPL 136 (2007) DLT 500; Jagdish Narayan v. NDPL 140 (2007) DLT 307; Bhasin Motors (I) P. Ltd. v. NDPL 142 (2007) DLT 116; Ram Chandra v. State of Bihar, 1967 CriLJ 409 and J.K.Steelomelt (P) Ltd. v. BSES Rajdhani Power Ltd. MANU/DE/7684/2007). Hence, prima facie, the bill raised is not legal. Further, in the present case, it is an admitted case that the impugned bill was raised before the grant of personal hearing and passing of speaking order. Hence, the principles of natural justice have not been followed in the present case. The bill is, hence, not legal on this ground also. In view of the same, seeking declaration is not a must in the present suit. Hence, this issue is decided in the favour of the Plaintiff.
Issue no.2 Whether the Plaintiff is entitled to the relief of permanent injunction, as claimed?OPP K L Kalra v. NDPL Suit No.117/2004 Page 4 of 9
13. Onus to prove this issue was upon Plaintiff.
14. The counsel for Defendant has argued that the present suit is not maintainable as the Plaintiff had filed a similar suit on the same cause of action before the court of Sh.Raj Kumar, the then Ld.Civil Judge and had withdrawn the same. Further, it is argued that the Plaintiff has failed to show that liberty had been granted to him to file a fresh suit. Hence, the present suit is not maintainable.
15. The Plaintiff has admitted that a suit on the same cause of action was earlier pending before Sh.Raj Kumar, the then Ld.Civil Judge. However, he has placed on record the certified copy of the order dated 20.02.2004 passed by Sh.Raj Kumar permitting the Plaintiff to withdraw that suit with liberty to file a fresh one. In view of the same, the objection is not tenable. The suit is maintainable.
16. 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 07.02.2004, certain officials of the Defendant company visited the premises of the Plaintiff where they allegedly found that the Plaintiff was indulged in DAE.
17. The Defendant submitted that upon this inspection, a case of DAE was booked against the Plaintiff. The impugned bill was issued to the Plaintiff alongwith show cause notice. As on the date of the filing of the suit, the matter was still pending with the department. But it is alleged by the Defendant that none appeared for the Plaintiff at the personal hearing and hence, a speaking order was passed on 07.5.2004. The Plaintiff in his cross-examination, has stated that he had gone for the K L Kalra v. NDPL Suit No.117/2004 Page 5 of 9 personal hearing but the officials refused to meet him. However, the Plaintiff has stated that the speaking order is not correct. Further, it is stated that the speaking order has been passed in a mechanical manner and hence, the same is not binding.
18. In the present matter, the case of DAE has been booked on the basis of the following discrepancies which were allegedly found at the time of inspection:
1. connected load was found to be 14.425kw against the sanctioned load of 4.78kw.
2. Both ½ seals were tampered.
3. The meter terminal seals were found to be not existing.
19. The inspection report has been proved as Ex.DW1/1. The Defendant also got examined Sh.Naveen Kumar as DW1 who was also a part of the inspection team. He proved the inspection report. Perusal of this report 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.
20. The counsel for Plaintiff has relied upon a number of judgments alleging that in view of the above mentioned discrepancies, no case of DAE is made out. Reliance can be placed on "Col. R.K. Nayar v. BSES RPL, (140) 2007 DLT 257", where the Hon'ble High Court of Delhi has held that:
"An inference of fraudulent abstraction of energy must be based on some conclusion evidence that the user has tampered with the meter in a manner that has enabled such user to either slow down the meter or make it record lesser units of consumption. There must be a link established between the physical evidence of tampering noticed on inspection and the consumer. An inference of FAE should not be permitted to be drawn on the mere fact that a meter had been found with broken seals. An electricity meter is admittedly not kept enclosed in a tamper proof environment under the lock and key, with one meter is kept in a location that permits any person intending to do mischief to have easy access to the meter, then to fasten the charge of FAE on the consumer in the event of the meter being found tampered, is not K L Kalra v. NDPL Suit No.117/2004 Page 6 of 9 being reasonable or even realistic. Something more would have to be demonstrated to infer an intention by the consumer to "fraudulently" abstract electricity. In this context it is necessary to emphasise that the analysis of consumption pattern cannot constitute substantive proof of DAE in the absence of tangible physical evidence of DAE in the manner explained above. In other words, the analysis of consumption pattern can only corroborate what is found on physical inspection which can indicate whether the consumer has herself or himself employed a device or a method to dishonestly abstract electricity. It will not be open to the respondent, in the absence of any tangible evidence of DAE, to proceed on the basis of the consumption pattern to infer DAE".
21. The Hon'ble High Court of Delhi also relied upon the judgment of the Hon'ble Supreme Court of India in "Jagannath Singh v. Ramaswamy, (1966) 1 SCR 683" where the Hon'ble Court has held as under:
"An exposure of a stud hole on the meter cover is an artificial means for preventing the meter from duly registering. For the purposes of Section 44, the existence of this artificial means gives rise to the presumption that the meter was prevented from duly registering but this presumption cannot be imported into Section 39. A meter with an exposed stud hole, without more is not a perfected instrument for unauthorised taking of energy, and cannot be regarded as an artificial means for 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."
22. The Hon'ble High Court of Delhi also relied upon the judgment of the Hon'ble Supreme Court of India in "Ram Chandra v. State of Bihar, 1967 CriLJ 409". In that case a wire had actually been inserted which had the effect of preventing the rotation of a disc despite that it was held that in addition to the above evidence, it was important to demonstrate that "the appellant would have knowingly done something to the meter which would have escaped detection of a meter reader and facilitated the abstraction of electricity." The Court set aside the conviction K L Kalra v. NDPL Suit No.117/2004 Page 7 of 9 in that case.
23. The Hon'ble High Court of Delhi further held in R.K Nayar's case (Supra) 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 mens rea which is common to both FAE/DAE and the offence of theft of electricity.
An accu check meter could have been used to detect if the meter was recording lesser energy than it should".
24. Same has also been held by the Hon'ble High Court in Harvinder Motors v. B.S.E.S. Rajdhani Power Ltd. 135(2006)DLT198; 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.
25. Hence, the Defendant has failed to prove that DAE was being committed by the Plaintiff as on the date of inspection. Hence, the bill is not payable by the Plaintiff. Therefore, the Plaintiff is entitled to the relief as claimed for. This issue is 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.93,805/- is declared as null and void. The Defendant is restrained from disconnecting the electricity supply of the Plaintiff's connection K no.34400172303D installed at G-702, Rashmi Apartment, Harsh Vihar, Pitam Pura, New Delhi-34 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 K L Kalra v. NDPL Suit No.117/2004 Page 8 of 9 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 13.02.2012 CIVIL JUDGE-01 (NORTH)
DELHI
Certified that this judgment contains 09 number of pages and all pages are signed by me.
[RUCHIKA SINGLA]
CIVIL JUDGE-01 (NORTH)
DELHI
K L Kalra v. NDPL Suit No.117/2004 Page 9 of 9
Suit No.117/04
13.02.2012
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
K L Kalra v. NDPL Suit No.117/2004 Page 10 of
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