Indian Kanoon - Search engine for Indian Law

2. After service of summons of present suit defendant put appearance and file the WS taking the objection therein that suit of the plaintiff is without cause of action and plaintiff has concealed material facts. It is pleaded that the plaintiff has concealed that during the inspection dt. 6.9.06 against K.No. 35300389269 at the premises of plaintiff, plaintiff was found indulging in DAE by tampering the electricity meter No. 40053664 wherein he had made the meter slow by 76.26% and also inserted 2 Numbers external PVC wires between I/C & O/G and neutral terminals of the meter in order to manipulate the consumption recorded by the meter. It is stated that at the time of inspection representative of plaintiff was present but refused to sign the inspection report. While denying the case of the plaintiff on merits it is denied that any of the official of the NDPL asked for bribe from the plaintiff. It is also pleaded that when inspection was carried out on 6.9.06 many irregularities were found like connection load was found to be 5.74 KW against the sanctioned load of 1 KW, meter was slow by 76.26%, two number external PVC wires were found inserted between I/C & O/G and neutral terminals of the meter. It is stated that due to above mentioned irregularities show cause notice was prepared by member of inspecting team and consumer was offered the opportunity of personal hearing on 12.9.06 which was extended for 21.11.06 and a written rely was submitted by plaintiff on 29.9.06. It is pleaded that personal hearing was not attended by he plaintiff and a number of show cause notice dt. 16.9.08, 4.10.08 and 30.10.08 and personal hearing was offered to the plaintiff but to no avail. It is pleaded that lastly in the interest of justice a fresh show cause notice dated 11.11.2008 was given which was served to plaintiff for opportunity of personal hearing on 19.11.08. Plaintiff thereafter turned up and made written and oral submissions. After considering the submissions of plaintiff and merits of the case speaking order was passed on 27.11.08 and accordingly final DAE bill was issued for amount of Rs. 25936/­ on 17.12.08.

9. ISSUE NO.(ii) "Whether this court has no jurisdiction to try and entertain the present suit ?

This issue apparently framed on objection taken in WS of defendant, NDPL. But I find Civil Suit seeking injunction & declaration regarding Inspection Report, Show­Cause Notice & consequent passing of speaking order & raising of DAE bill is maintainable. Moreover, defendant has not agitated on this issue, so this issue stands decided in favour of plaintiff.

Now after the above inspection PW 1 says that he was served with show cause notice Ex.PW1/6 & plaintiff stated to have replied to said notice, which is Ex.PW1/7. Perusal of these documents indicates that when NDPL called upon for explaining above said DAE, plaintiff in his reply has alleged regarding bribe asked by officials of NDPL. Evidently after giving personal hearing, NDPL passed speaking order which is Ex.PW1/8 as well as Ex.DW2/1. DW 2 is Pardeep Chauhan who passed said speaking order on 27.11.08. DW 2 says after considering materials & contention of consumer, he found that case of DAE was established as per regulations of DERC.

In this context it is important to examine the inspection report and speaking order of NDPL. Perusal of inspecting report indicates that two numbers PVC wires were found connected between I/C & O/G & Neutral terminal of Meter, it was also noted that from accuracy test result, it was found that meter was slow by 76.26 %. It is also noted in inspection report, that there were 2 Air Conditioners, 5 ceiling fans, one washing machine, one TV and one Fridge & total load was of 5.74 KW against sanctioned load of 1 KW. It be noted 6 officials of NDPL had singed this inspection report. Only challenge to this report is that within four days of installation, this inspection was done. Now it be kept in mind that it was not a case of Direct theft of energy, it was case of DAE (Dishonest abstraction of energy) As discussed above, DAE can be done, even by fixing some wire or some instrument to either slow down the meter or by some internal mechanism such as reversing the polarity of one phase of meter, changes in CT or PT etc. & such abstraction can be made at the time of installation of meter or immediately after installation, so that pattern of energy consumption must not abruptly change. Therefore, to argue that within four days of installation of meter inspection was done and DAE was found, create doubt. It does not create doubt specifically when as per regulation 25 & 26 & 52&53 of DERC, DAE is not alleged only on the basis of inspection report. Perusal of speaking order Ex.DW2/1 (Ex.PW1/8) would show, that all aspects were examined by DW2 Pardeep Chauhan who in his cross examination has stated that he has special knowledge & has done B­Tech (Electrical Engineering). Speaking order also deal with allegations of demand of bribe by officials of NDPL and it was noted that plaintiff had not supplied any document or details of person who demanded. Then so far as DAE keeping in mind inspection report it was noted in speaking order: