Delhi District Court
Shri Nirmal Kumar vs North Delhi Power Limited; on 29 July, 2010
ID No.02401C1146262005
IN THE COURT OF SHRI PANKAJ GUPTA : ADDL. DISTRICT JUDGE
(CENTRAL-13) : TIS HAZARI COURT : DELHI
Suit No.125/2009
Shri Nirmal Kumar,
Sole Proprietor of
Mahalaxmi & Company,
S-60, Badli Industrial Estate Phase-I,
Delhi. .........Plaintiff
Versus
North Delhi Power Limited;
(A Tata Power and Delhi Govt. Joint Venture)
Grid Sub Station,
Hudson Lines,
Kingsway Camp,
New Delhi - 110009 .........Defendant
Date of Institution : 30.07.1997
Date when the case reserved for order: 28.07.2010
Date of Order : 29.07.2010
JUDGMENT :
1. The plaintiff filed the present suit for declaration and permanent injunction against the defendant. Initially, the plaintiff filed the suit for permanent injunction against the defendant before the court of Ld. Civil Judge, Delhi. Later, the plaintiff moved an application under Order 6 Rule 17 of Code of Civil Procedure, 1908 (CPC) for amendment of the plaint which was allowed on 05.10.2005 and the plaint was returned for want of pecuniary jurisdiction and was filed before this court.
2. In the plaint, it is stated that the plaintiff is the sole proprietor of M/s. Maha Laxmi and Company and is carrying on the manufacturing business from the premises bearing No.S-60, Badli Industrial Area, Delhi - 110 042 (the 1/8 Nirmal Kumar vs. NDPL said premises). The plaintiff got sanctioned load of 120 HP in respect of electricity connection bearing K. No.120670 (IP) and of 8 KW in respect of electricity connection bearing K. No.120671 (IL) in the said property. The said electricity connections were installed in the said premises in December 1996 and the plaintiff has been using the same as per sanctioned load. The said premises was inspected by the officials of erstwhile Delhi Electric Supply Undertaking (DESU) on 12.07.1991 and 14.12.1991 and the connected load was found as per sanctioned load. Later, officials of erstwhile Delhi Vidyut Board (DVB) were alleged to have inspected the said premises on 21-22.05.1992 and prepared a false and fabricated report. On 26.05.1992 the plaintiff made an application for re-inspection on deposit of proper fee as per rules and also filed objections of the inspection report. During the pendency of the same, the officials of DESU threatened to disconnect the electricity connection of the plaintiff. Consequently, the plaintiff filed a suit before the ld. District Judge, Delhi and restrain order was passed against the defendant from disconnecting the electricity supply. Subsequently, the officials of Enforcement Department (joint team) of erstwhile DESU carried out two inspections in the premises on 10.05.1996 and 21.05.1996 and no discrepancy of any kind was found that time.
3. In the plaint, it is also stated that the officials of defendant allegedly carried out an inspection on 18.03.1997, however, they had not supplied any copy of the inspection report to the plaintiff nor any signature of his representative was obtained. No inspection was carried out in the premises with any instrument. Immediately thereafter, the plaintiff applied for certified copy of the Inspection Report and got the same on 31.03.1997. The plaintiff filed objections to the said report with the Executive Engineer (Enforcement-I) DVB and stated that the machines were not checked with any instrument or tong tester and the rating of the machine had been wrongly mentioned and he also referred to the previous inspection reports and also pointed out the discrepancies in the Inspection Report comparing the same with earlier inspection reports. Simultaneously, the plaintiff applied for re-inspection of the premises on 03.04.1997 and also made a representation with the Chairman, DVB. Vide order dated 11.04.1997, it was directed to appoint a technical person 2/8 Nirmal Kumar vs. NDPL for reviewing the case of the plaintiff for passing a speaking order. The plaintiff also moved to the Bijli Adalat of the defendant challenging the Inspection Report dated 18.03.1997. The Bijli Adalat was constituted of 05 officials of DVB. However, the matter could not be proceeded as the file was not put up before the Bijli Adalat. In the meantime, the defendant issued a letter dated 09.06.1997 mentioning therein that the representation of the plaintiff was not correct and the recorded consumption of the plaintiff for the year 1996-97 is 7635 units per month when it should be 22559 units per month and hence, the plaintiff was indulged in fraudulent abstraction of energy and no relief could be granted to him. The defendant also threatened to lodge a criminal case against the plaintiff. During the pendency of the said suit, the defendant sent a bill of Rs. 19,95,128.30 to the plaintiff on the basis of the inspection report dated 18.03.1997, however, the said demand was stayed by the court. Hence, the present suit.
4. Notice of the suit was issued to the defendant. In response thereto, the defendant filed the written statement (WS) and raised a preliminary objection that the plaintiff has not come to the court with clean hands and has suppressed the material facts from this Hon'ble court that the inspection was carried our on 18.03.1997 and the plaintiff was found using excess load more than 100 KW i.e LIP Load and was found indulged in fraudulent abstraction of energy by tempering with the meter and no shunt capacitor was connected to the system. It is also stated that an inspection was carried out on 18.03.1997 in the presence of the representative of the partnership firm. During the said inspection, the load report and MTD report was prepared at the site in the presence of representative of the plaintiff. The connected load was found to the tune of 125.328 KW and 3.180 KW -IP and IL connections respectively. At the meter box lower side seal found misused and upper side seal found fixed but not tally the sample monogram of authentication and meter found stopped, C.T. Box seals found missing in respect of IL meters. The plaintiff and its authorized representative had not signed the inspection report. A show cause notice dated 31.03.1997 was issued to the plaintiff. Subsequently, a speaking order was passed on 24.07.1997 and was sent to the plaintiff by registered post. The 3/8 Nirmal Kumar vs. NDPL defendant denied rest of the contents of the plaint. Hence, it is prayed that the suit may be dismissed.
5. The plaintiff filed replication and re-iterated the averments made in the plaint.
6. On 24.05.2006, the following issues were framed by the Ld. predecessor of this court:
(1) Whether the bill for sum of Rs. 19,95,128.30 on the basis of inspection report dated 18.03.1997 is null and void? OPP (2) Whether the plaintiff is entitled to relief of declaration and permanent injunction? OPP (3) Relief.
7. To prove his case, the plaintiff examined his attorney, Sh. Vinod Kumar who deposed as PW1. General Power of Attorney dated 23.07.1997 which is Ex.PW 1/1, record of inspection dated 23.07.1997 which is Ex.PW 1/2, record of inspection dated 14.12.1991 which is Ex.PW 1/ 3, record of inspection dated 21/22.05.1992 which is Ex.PW 1/ 4, Fee deposit slip which is Ex.PW 1/5, Inspection Report dated 10.05.1996 which are Ex. PW 1/6 and Ex.PW 1/6A, record of inspection dated 21.05.1996 which are Ex.PW 1/7 and Ex.PW 1/7A, record of inspection dated 18.03.1997 which are Ex.PW 1/8 and Ex.PW 1/8 A, telegram dated 20.03.1997 which is Ex.PW 1/9, letter dated 04.04.1997 which is Ex.PW 1/10, electricity bills which are Ex. PW 1/11 to Ex.PW 1/35, fee deposit slip dated 03.04.1997 which is Ex.PW 1/36, electricity bill dated 19.09.1997 which is Ex.PW 1/41 and order of Bijli Adalat dated 29.09.1997 which is Ex.PW 1/DX1.
8. The defendant examined Shri R C Kher the then General Manager [Commercial] NDPL and his affidavit in examination in chief is Ex.D-1.
9. I have heard the ld. counsels for the parties and have perused the material available on record.
4/8 Nirmal Kumar vs. NDPL ISSUES NO. 1 AND 2
10. Issue No.1 and 2 are clubbed together for the sake of convenience as they involve common discussion. Onus to prove issues no. 1 and 2 was upon the plaintiff.
11. In the present case, the main grievance of the plaintiff is against the inspection report dated 18.03.1997 and action taken by the defendant in pursuance thereto.
12. Counsel for the plaintiff strenuously pleaded that no inspection was carried on 18.03.1997, hence the inspection report prepared by the defendant is against the set procedure of law. Consequently, the demand raised by the defendant in pursuance thereto is illegal and is liable to be set aside. Counsel for the plaintiff placed much reliance on the order dated 29.09.1997 passed by the Bijli Adalat. In reply, counsel for the defendant pleaded that the inspection was carried out on 18.03.1997 and the plaintiff was found using excess load more than 100 KW i.e LIP load and was found indulged in fraudulent abstraction of energy by tempering with the meter and no shunt capacitor was connected to the system.
13. To prove his case, the plaintiff examined his power of attorney as PW-1. PW-1 proved General Power of Attorney dated 23.07.1997 Ex.PW 1/1, record of inspection dated 23.07.1997, 14.12.1991 and 21/22.05.1992 Ex.PW 1/2, Ex.PW 1/ 3 and Ex.PW 1/ 4 respectively. He also proved fee deposit slip Ex.PW 1/5, inspection report dated 10.05.1996 Ex. PW 1/6 and Ex.PW 1/6A, record of inspection dated 21.05.1996 Ex.PW 1/7 and Ex.PW 1/7A, record of inspection dated 18.03.1997 Ex.PW 1/8 and Ex.PW 1/8 A, telegram dated 20.03.1997 Ex.PW 1/9, letter dated 04.04.1997 Ex.PW 1/10, electricity bills Ex. PW 1/11 to Ex.PW 1/35, fee deposit slip dated 03.04.1997 Ex.PW 1/36, electricity bill dated 19.09.1997 Ex.PW 1/41 and order of Bijli Adalat dated 29.09.1997 Ex.PW 1/DX1.
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14. In the present case, the testimony of the plaintiff has not been shattered at all in the cross examination by the defendant. In his cross examination, PW-1 categorically denied the suggestion that anybody on the plaintiff's behalf refused to sign the inspection report. PW-1 specifically deposed that the plaintiff moved the Bijli Adalat against the alleged inspection report dated 18.03.1997. Vide order dated 29.09.1997 Ex.PW 1/DX1, the Bijli Adalat specifically observed as under:
" In view of the above, Bijli Adalat decides that the rating of the motors should be taken as 60 HP. As regards FAE in view of the speaking order given by Shri R. C Kher, ACE [Stores], Bijli Adalat decides unanimously that Member [Tech.] may advise Shri R C Kher to review his speaking order in view of the consumption pattern and average consumption given above of period before and after 18.3.1997, when the seal was found fixed but did not tally with the sample monogram and declared fictitious. As regards joints in the cable if the consumer can steal electricity through the joints, Members of the Adalat were of the opinion then why the consumer should tamper the seals and the consumption would not normally exceed the minimum charges which works out to the minimum charges which works out to about 2500 units p.m. The review of the speaking order of Shri Kher should be made available within one month to the Bijli Adalat i.e. before the next sitting for final consideration of the case."
15. In order dated 29.09.1997 Ex.PW 1/DX1, the Bijli Adalat clearly pointed out the deficiencies existing in the speaking order and ordered to review of the speaking order passed by Shri R.C.Kher i.e. DW-1 and also directed that the copy of the same be made available within one month to it. Admittedly, the Bijli Adalat is constituted by the defendant comprised of specialized members who ordered to review the speaking order passed by the DW-1 in the present case. It is also an admitted fact that the defendant had not reviewed the speaking order nor taken any action in pursuance thereto. Admittedly the defendant had also not disputed the findings of the Bijli Adalat. Being so, no plausible explanation has been given by the defendant as to why the said order had not been complied with. On the other hand, the defendant also failed to justify its own action taken against the plaintiff. DW-1 in his cross examination deposed that he could not say as to what was the rating of the meter and 6/8 Nirmal Kumar vs. NDPL whether it was 60 HP. He admitted that in the earlier inspection reports dated 10.05.1996 and 21.05.1996, the capacity of the meter had been found to be 60 HP. He could not even deny that the Executive Engineer had admitted before the Bijli Adalat the rating of the motor to be 60 HP. He admitted that he had not studied the consumption pattern of electricity meter since the installation of the electricity connection. He also deposed that after 18.03.1997, he could not say as to what was the rating of the meter and whether it was 60 HP. As such, the defendant has completely failed to disclose the basis for passing the speaking order and taking action against the plaintiff. Despite all that during the pendency of the suit, the defendant sent a bill of Rs. 19,95,128.30 Ex. PW- 1/41 upon the plaintiff on the basis of inspection report dated 18.03.1997 without giving any show cause notice or personal hearing to the plaintiff. As such, the defendant has completely failed to show that it took the action against the plaintiff following the due process of law.
16. Further, no member of the inspection team has been examined to prove the inspection report. The only witness examined by the defendant is Shri R.C.Kher, GM Commercial who has passed the speaking order on the basis of which the impugned bill has been raised which officer was not the part of the inspection team and whose testimony does not find any independent corroboration from any other sources. As discussed above, DW-1 also failed to substantiate the speaking order passed by him. The allegation made against the plaintiff regarding the missing seals is not sustainable since the meter has not been checked at any point of time by any scientific instrument, hence no weightage could be given to the inspection report. So far as alleged joint in the service cable and the seals allegedly being fictitious, very strong observations were made by the Bijli Adalat. Otherwise also, the allegations made regarding the missing seals will not itself lead to the conclusion that the plaintiff had indulged into fraudulent abstraction of energy. As such, it can be held that the defendant has not been able to prove and substantiate the allegation. It is also proved that the defendant did not issue any show cause notice to the plaintiff nor granted any hearing to the plaintiff. Hence, it can be held that the defendant raised the demand on the basis of fraudulent abstraction of energy 7/8 Nirmal Kumar vs. NDPL without issuing any show cause notice and without taking any reply which amount to violation of principle of natural justice. Therefore, it can be held that the defendant did not comply with the order passed by its body nor followed the set procedure before taking the action and raising the bill against the plaintiff.
17. In view of the foregoing discussions, the issues no. 1 and 2 are decided in favour of the plaintiff and against the defendant. The plaintiff is held entitled to the relief of declaration and injunction as asked for in the plaint.
ISSUE NO. 3 (RELIEF)
18. The suit is allowed. I hereby declare the impugned bill Ex.PW1/41 amounting to Rs.19,95,128.30 raised on the basis of the inspection report dated 18.03.1997 as null and void. I also restrain the defendant, its employees, servants, agents, representatives and assigns from disconnecting the electricity supply of the plaintiff at suit premises bearing no. S-60, Badli Industrial Area, Delhi - 110 042 vide K. No.120670 (IP) and K. No120671 (IL) on account of non payment of the impugned demand. Parties to bear their own costs. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court, (PANKAJ GUPTA)
On 29th of July, 2010. ADJ(Central-13)/DELHI
29.07.2010
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