Delhi District Court
Mohd. Ismail vs . Bses Page No.1 Of 13 on 29 August, 2019
Suit No. 1966/18
IN THE COURT OF DR. JAGMINDER SINGH
JSCC-cum-ADDITIONAL SENIOR CIVIL JUDGE
cum-GUARDIAN JUDGE, DWARKA COURTS, DELHI
Suit No. : 1966/18
In the matter of :
1) Mohd. Ismail,
S/o Abdul Jabbar,
R/o A-2/36, Chanakya Palce,
Uttam Nagar, 40 Feet Road, New Delhi-59.
........Plaintif
Versus
1) The BSES Rajdhani Power Ltd.
Through Its CEO
Near Andrews Ganj Market,
New Delhi-49.
......Defendant
Date of institution of the suit : 16.08.2016
Final Arguments Heard on : 28.08.2019
Date of Judgment : 29.08.2019
Final Order : DECREED
SUIT FOR DECLARATION & PARMANENT INJUNCTION
Mohd. Ismail Vs. BSES Page No.1 of 13
Suit No. 1966/18
JUDGMENT :
1. This is a suit for declaration & permanent injunction.
2. Brief facts necessary for the disposal of the present suit as stated in the plaint are that plaintiff is user and registered consumer of the electricity connection bearing CA No.103193661 at A-2/36, Chankya Place, Uttam Nagar, 40 Ft. Road, New Delhi i.e. suit premises. On 11.07.2016, defendant's officials reached at the suit premises and started making inspection and after some time they left without making any enquiry. After some days, plaintiff received an envelope and got surprise to see the direct theft bill of Rs.2,98,499/- which is totally false & fabricated. The load mentioned in the bill was also fabricated. The defendant company had violated the DERC Regulations 56. On 11.07.2016, the officers of the defendant had not given any documents to the plaintiff regarding the alleged inspection and violated the DERC Regulations 52 Mohd. Ismail Vs. BSES Page No.2 of 13 Suit No. 1966/18
(iv). They have also not shown their identity proofs and have violated the DERC Regulation 52 (iii) and 52 (ix). The officials of the defendant want to extort money from defendant by way of this false case. After receiving the theft assessment bill of Rs.2,98,499/-, plaintiff visited the office of defendant but plaintiff was not heard and they pressurized the plaintiff to make the payment. On 04.08.2016, the officials of the defendant threatened the plaintiff for disconnection of electricity. Therefore, present suit is filed with a prayer that the bill in question may be declared as null & void and defendants may be restrained from disconnected the electricity supply pertaining to domestic CA No.103193661 of the plaintiff.
3. On the suit of the plaintiff, notice was issued to the defendant. After appearance, WS was filed on behalf of defendant. On the basis of pleadings following issues were framed:-
(i) Whether the plaintiff was involved in theft of electricity as alleged in the inspection report dated 11.07.2016? (OPD).Mohd. Ismail Vs. BSES Page No.3 of 13 Suit No. 1966/18
(ii) Whether the plaintiff is entitled for the decree of declaration? (OPP).
(iii) Whether the plaintiff is entitled for the mandatory injunction, as prayed? (OPP).
(iv) Relief.
4. As the onus of main issue was upon the defendant, the matter was fixed for DE. Defendant had examined one witness as DW1 and DE was closed. Thereafter, matter was fixed for PE. Plaintiff had also examined one witness as PW1 and thereafter, PE was closed and matter was fixed for final arguments.
5. Final arguments heard. Ld. Counsel for plaintiff argued that no any inspection was conducted by the official of the defendant. No any direct theft was found at the spot by the official of the defendant. The defendant's official had only visited the suit premises and thereafter fabricated the story of alleged direct theft and overload or commercial activity at the suit premises. The defendant had not followed the necessary guidelines of DERC Regulations. Mohd. Ismail Vs. BSES Page No.4 of 13 Suit No. 1966/18 Defendant has failed to show any evidence that plaintiff was involved in the alleged direct theft. The bill in question raised by the defendant has been raised without any basis and only to extort money from the plaintiff. Therefore, the bill in question may be declared as null & void and defendant may be restrained from disconnecting the electricity of the plaintiff on the basis of non-filling the bill in question. Therefore, the suit is liable to be decreed.
6. On the other hand, Ld. Counsel for defendant opposed the suit of the plaintiff. Ld. Counsel argued that when the raid was conducted by the official of the defendant at the suit premises for the purpose of inspection, the meter was found installed at the suit premises in the name of the plaintiff but the electricity was found being consumed directly tapping from BSES Bus-Bar with the help of illegal wires connected with MCB which was found in OFF condition through which the load of premises was found connected and running. Necessary Videography was also done by M/s Arora Photo Studio. The plaintiff refused to receive the Mohd. Ismail Vs. BSES Page No.5 of 13 Suit No. 1966/18 report at the spot and same was sent to him through speed- post as per the DERC Guidelines. As plaintiff was found using the electricity by way of direct theft, therefore, bill in question was raised. Plaintiff is liable to pay the amount of bill in question. The suit filed by the plaintiff is baseless and without any merit and is liable to be dismissed.
7. I have heard the submissions of both parties and perused the record including evidence as well as documents placed on record.
8. Issue no.(i) is that Whether the plaintiff was involved in theft of electricity as alleged in the inspection report dated 11.07.2016? Onus to prove this issue is upon the defendant. defendant had examined one witness as DW1 Sh. Saurabh Sharma, DET, BSES (Enforcement) who tendered his affidavit Ex.DW1/A and relied upon the documents i.e. Ex.DW1/1 which is enforcement inspection report dated 11.07.2016, Ex.DW1/2 which is form for assessment of connected load, Ex.DW1/3 is CD regarding video recording of inspection, Ex.DW1/4 Seizure memo, Mohd. Ismail Vs. BSES Page No.6 of 13 Suit No. 1966/18 Ex.DW1/5 the assessment bill for direct theft dated 12.07.2016. In affidavit Ex.DW1/A, it is stated by DW1 that on 11.04.2016 inspection was carried out at the premises of the plaintiff and he was part of the inspection team. It is also mentioned in the affidavit that other team members were Sh. Durgesh (Technician), Sh. Saurabh & Sh. Deepak Verma i.e. the videographer from M/s Arora Studio. However, during cross-examination, DW1 has stated that the police officials was also with them. It is not clarified by DW1 that how many police officials were with them at the time of inspection.
9. As per affidavit of DW1, at the premises of the plaintiff the electricity was found being consumed direction tapping from BSES Bus-Bar with the help of illegal wires connection with MCB. It is not stated that how many wires were used for the said illegal connection. Admittedly, the inspection team had not seized any wire from the spot. During cross-examination, DW1 had stated that police officials was with them but they did not help in seizure of Mohd. Ismail Vs. BSES Page No.7 of 13 Suit No. 1966/18 the illegal material from the spot. On the contrary in affidavit Ex.DW1/A, it is stated by DW1 that illegal material could not seized due to resistance created by representative of plaintiff and only after the intervention of official of Delhi Police, a connected load of premises has been taken. No any equipment is seized for using the said load. In the load report Ex.DW1/2, the equipments for load are mentioned as tubelight, ceiling fan, washing machine and submersible which are the equipments used for daily domestic use and does not seems to be used for any commercial activities. During cross-examination, it is admitted by DW1 that at the time of raid, no commercial activity was going on at the spot.
10. During evidence, DW1 had also placed on record CD regarding video-footage of the inspection i.e. Ex.DW1/3. The CD was played in the Court during evidence. After watching the same, it is admitted by DW1 in his cross- examination that in the CD no any resistance by the consumer has been recorded/seen. It is also admitted that in Mohd. Ismail Vs. BSES Page No.8 of 13 Suit No. 1966/18 the videography, the point of illegal tapping from the bus- bar is not covered. It is further admitted that the preparation of report by the raiding team is not shown in the CD. Therefore, in the evidence of DW1, no any corroborative evidence is filed that whether there was any wire at the spot, whether the wire was connected from the alleged bus- bar to the MCB of the plaintiff and whether the plaintiff was using the electricity by way of direct theft.
11. No any other witness from the raiding team was examined by the defendant. No any police official accompanying the raiding team was examined by the defendant. PW1 in his cross-examination stated that he had not seen any police man with the inspecting team. There is no any complaint or 100 number call on behalf of the defendant regarding the alleged resistance by the plaintiff or his family members in the work of inspection team. The videographer is also not examined by the defendant to corroborate the fact that no proper videography was done because of the alleged resistance by the plaintiff or his Mohd. Ismail Vs. BSES Page No.9 of 13 Suit No. 1966/18 family members. Therefore, Court comes at the conclusion that defendant is failed to prove that the plaintiff was involved in theft of electricity as alleged in inspection report dated 11.07.2018. Issue no.(i) is accordingly, decided against the defendant and in favour of plaintif.
12. Issue no. (ii) is that Whether the plaintiff is entitled for the decree of declaration? Onus to prove this issue is upon plaintiff. As per prayer clause, plaintiff has sought declaration that all the reports including inspection report, seizure report, load report and the theft assessment bill in question of Rs.2,98,499/- may be declared as null & void. According to the defendant, the reports Ex.DW1/1 i.e. inspection report, Ex.DW1/2 i.e. load report, Ex.DW1/4 i.e. seizure memo have been prepared at the spot after conducting inspection at the suit premises of the plaintiff and on the basis of which the theft assessment bill Ex.DW1/5 was raised by the defendant. It has already been decided while adjudication upon issue no. (i) that plaintiff was not involved in theft of electricity as alleged in the Mohd. Ismail Vs. BSES Page No.10 of 13 Suit No. 1966/18 inspection report Ex.DW1/1. Therefore, the other reports, seizure memo & theft assessment bill in question i.e. Bill No. HNENRI120720160036A0 dated 12.07.2016 i.e. Ex.DW1/5 are also having no value or sanctity and therefore, these documents are declared as null & void. Issue no. (ii) is decided in favour of plaintif and against the defendant.
13. Issue no. (iii) is that Whether the plaintiff is entitled for the mandatory injunction, as prayed? Onus to prove this issue is upon plaintiff. In the wording of this issue, the word mandatory injunction is mentioned. However, in view of prayer clause(b) of the plaint, plaintiff is seeking permanent injunction for restraining the defendant's office from disconnected the electricity supply of the plaintiff bearing CA No.103193661 forcefully. It is mentioned by plaintiff in the plaint as well as in his affidavit Ex.PW1/A during evidence that office of the defendant is threatening the plaintiff to disconnect the electricity supply, if the plaintiff will not make the payment of the theft bill Mohd. Ismail Vs. BSES Page No.11 of 13 Suit No. 1966/18 Ex.DW1/5. Ex.DW1/5 is assessment bill for direct theft which was raised on the basis of the inspection report Ex.DW1/1. The inspection report by DW1 on the basis of the bill in question was raised, has already been declared as null & void as per the adjudication upon issue no. (ii). Therefore, the defendant cannot disconnect the electricity of the plaintiff in CA No.103193661 on non-making payment of the bill amount as mentioned in Ex.DW1/5 raised for the direct theft, subject to the condition that the plaintiff fulfills other requirements of a lawful user of the electricity and makes the payment of usage charge and other charges as per law regularly as prescribed by law for a regular user of the electricity. Therefore, the defendant is restrained from disconnecting the electricity of the plaintiff in CA No.103193661 on the basis of non-making the payment of the assessment bill of direct theft Ex.DW1/5, subject to fulfillment of other conditions as mentioned above. Issue no. (iii) is accordingly decided in favour of plaintif and against the defendant.
Mohd. Ismail Vs. BSES Page No.12 of 13 Suit No. 1966/18
14. Relief :- Suit of the plaintiff is decreed accordingly.
15. No order as to costs.
16. Decree sheet be prepared.
17. File be consigned to record room after due compliance.
Announced in the open court on this 29th day of August, 2019 Digitally signed by JAGMINDER JAGMINDER SINGH SINGH Date: 2019.08.29 16:33:58 +0530 (DR. JAGMINDER SINGH) JSCC-ASCJ-cum-Guardian Judge, Dwarka Courts : Delhi
Note: This judgment is having Thirteen pages and each page is bearing my signatures.
(DR. JAGMINDER SINGH) JSCC-ASCJ-cum-Guardian Judge, Dwarka Courts : Delhi Mohd. Ismail Vs. BSES Page No.13 of 13