Full Judgment Text
$~R-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision- 24.07.2019
+ RFA 1/2011
BSES YAMUNA POWER LTD. ..... Appellant
Through: Mr.Manish Srivastav, Adv.
versus
ASHOK KUMAR ..... Respondent
Through: Mr.Ujjwal Kr. Jha & Mr.B.P.
Agarwal, Advs.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. The present Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 assails the judgment and order dated
26.08.2010 passed by the learned Additional District Judge, Central,
Delhi in Suit No.74/06 whereunder the suit filed by the
respondent/plaintiff was decreed. The suit assailed the inspection
report dated 26.05.2006 as also the speaking order dated 22.06.2006
passed by the appellant, holding the respondent guilty of dishonest
abstraction of energy (DAE), and the consequential bill of
Rs.8,32,422/- and sought that the same be declared as inoperative. The
respondent further sought that the appellant be restrained from
disconnecting the electricity supply to his premises on the ground of
non-payment of the impugned bill.
RFA 1/2011 Page 1 of 14
2. The brief facts as emerged from the record may be noted at the
outset. The respondent, who is the proprietor of M/s. Apollo Rolling
Shutter Engg. Works, has been carrying out business at B-17D, Gali
No.9, New Rohtak Road, Anand Parbat, Delhi and obtained an
electricity connection, being K.No 11410B120014, from the appellant
for the said premises.
3. On 18.05.2006, due to a short circuit, the electricity meter
installed at the respondent’s premises got burnt and on a written
complaint made by him, the appellant replaced the said meter.
Subsequently, the appellant raised demand note of Rs.4,650/- towards
the said replacement which amount was duly paid by the respondent.
On 22.05.2006, some officials of the appellant/BSES conducted an
inspection at the premises of the respondent which was followed by
another inspection on 26.05.2006, during which, as per the
respondent, nothing amiss was found. Consequently, a new meter was
installed at the respondent’s premises on 26.05.2006. After the said
replacement, the appellant conducted an inspection of the removed
meter to detect any anomalies therein and an on-site inspection report
thereto, along with the accompanying observations, was prepared
which the respondent refused to sign. The observations in the on-site
inspection report dated 26.05.2006 read as under:
“As per reference from MLCC report out joint
inspection team has visited the site. At the site meter
was found burnt. After saggnigating the meter resistor
found in all the three incoming and outgoing phases.
The ultrasonic winding also found tampered and
refined. Hence it is a case of DAE. Necessary
photographs have been taken at site.”
RFA 1/2011 Page 2 of 14
4. Based on the said inspection report, the appellant issued a show
cause notice dated 26.05.2006, which was followed by another show
cause notice dated 01.06.2006 to the respondent. In response thereto,
the respondent submitted a detailed reply on 06.06.2006 and also
attended a personal hearing held in the office of the appellant on
08.06.2006. Consequent to this hearing, the appellant passed a
speaking order dated 22.06.2006 wherein, after observing that the
contention raised by the respondent was lacking in merits and was
liable to be rejected, it was held that the on-site inspection had
disclosed conclusive evidence of the respondent having tampered with
his electricity meter and being liable for DAE. It was, therefore, held
that DAE on the part of the respondent was established. Thus, as as
per the conclusions of the speaking order, the appellant raised a bill
for Rs.8,32,422/- against the respondent.
5. In these circumstances, the respondent instituted the subject suit
before the learned Additional District Judge pleading therein that no
case of DAE had been made out against him and that the
defendant/appellant had, before coming to the conclusion that the
respondent was guilty of DAE, not even examined his electricity
consumption pattern by downloading his CMRI data which would
have clearly established that no case of theft was made out against
him. It was also pleaded that the appellant had issued the impugned
speaking order and bill without even dealing with the pleas taken by
him in his detailed reply to the show cause notice.
6. Before, the trial court, the appellant/defendant contested the suit
RFA 1/2011 Page 3 of 14
by reiterating that a case of DAE was clearly made out against the
respondent on the basis of the inspection report itself. It was further
urged that the speaking order had been passed after considering all the
submissions of the respondent and, it was, therefore, prayed that the
suit be dismissed.
7. On 15.12.2006, based on the pleadings of the parties, the trial
court framed the following issues:-
“1. Whether the plaintiff has not come to the court with
clean hands? OPD.
2. Whether the plaintiff is entitled to the relief of
declaration, as prayed for? OPP
3. Whether the plaintiff is entitled to the relief of permanent
injunction, as prayed for ? OPP.”
8. After considering the evidence led on record and the
submissions of the parties, the trial court held that the appellant had
arrived at a conclusion that the respondent was guilty of DAE even
without discussing whether the alleged tampering of the meter was
corroborated by the electricity consumption pattern of the respondent.
The trial court further observed that the speaking order had been
passed by summarily stating that the contentions raised by the
respondent/plaintiff lacked merit. The trial court, therefore, decreed
the suit by observing as under:-
“10.2 Speaking order Ex.DW2/2 makes it clear that
consumption pattern was neither discussed nor
considered. There was no report from any independent
laboratory before the Assessing Officer. The contention
raised by the plaintiff in reply to show cause notice has
not been discussed in speaking order. Assessing Officer
Shri H.S.Semwal concluded speaking order by a single
stroke by saying that contention of consumer lacks merit
and is liable to be rejected. The onus was upon the
RFA 1/2011 Page 4 of 14
defendant to establish that, in fact, the meter was
tampered in a way to record lesser consumption than the
actual. In speaking order Ex.PW2/2, the Assessing
Officer stated that onus was upon the consumer to keep
the meter intact and in correct position. As per speaking
order Ex.DW2/2, there was no collateral evidence
before the Assessing Officer to really reach to the
findings that the meter was tampered in the manner that
it had recorded lesser consumption of units than the
actual consumption. In my opinion, the speaking order
Ex.DW2/2 does not fulfill the fundamental principle of
law to make out a case of DAE.
10.3 In view of the above findings, in preponderance
of probabilities, plaintiff has established that impugned
bill has been raised arbitrarily though there was no
material to make out the case of DAE, whereas
defendant has trailed to establish that, in fact, the case
of DAE was made out as there was no collateral
evidence showing theft of electricity. In my view,
plaintiff has established entitlement for the relief of
declaration as well as for permanent injunction.
Accordingly, issues are decided in favour of the plaintiff
and against the defendant.”
9. Aggrieved by the aforesaid judgment and decree, the present
appeal has been preferred by the appellant/BSES Yamuna Power Ltd.
10. Mr.Manish Srivastav, learned counsel for the appellant submits
that the trial court has erred in coming to the conclusion that no case
of DAE was made out against the respondent. He submits that the
present case is a blatant case of DAE as the inspection report dated
26.05.2006 clearly shows that the resistors were found to have been
illegally fixed in each of the three incoming and outgoing phases. He
submits that the very factum of the ultrasonic winding being tampered
and refined, in itself, also shows that the respondent had tampered
RFA 1/2011 Page 5 of 14
with the meter in a clever manner by preserving its seal. He further
submits that the lack of detailed reasons in the appellant’s speaking
order, for rejecting the respondent’s contention, would not be an
adequate reason to set aside the same especially once the inspection
report has confirmed the tampering of the meter. He, therefore, prays
that the impugned judgment be set aside.
11. On the other hand, Mr.Jha, learned counsel for the
respondent/plaintiff while supporting the impugned judgment states
that the trial court has rightly come to the conclusion that no case of
DAE was made out against the respondent. He draws my attention to
paragraphs 2(m) and 25(iv) the Delhi Electricity Regulatory
Commission (Performance Standard Meter and Billing) Regulations,
2002 (“2002 Regulations” for short) and submits that these
regulations mandate that before a consumer is booked for DAE, the
factum of his guilt should be corroborated by his consumption
pattern. The provisions of the 2002 Regulations deem it essential for
the appellant to show that the respondent’s electricity consumption
pattern substantiates the allegation of meter tampering levelled
against him. He further submits that without carrying out the said
exercise, the appellant was not justified in issuing any show cause
notice to the respondent or raising the bill in question. He contends
that even though the respondent had raised various grounds in his
detailed reply to the show cause notice, the appellant had
conveniently not dealt with any of them at the time of passing the
speaking order. He submits that in case the appellant had considered
the submissions made by the respondent in his detailed reply, he
RFA 1/2011 Page 6 of 14
would have been absolved from the charges levelled against him by
the appellant. This is also evident from the fact that after a full
fledged trial, the respondent, as on 28.09.2013, stands acquitted in the
criminal case being CC No. 11/07 filed against him by the appellant
in the Court of the Additional Sessions Judge, Special Court
(Electricity), Tis Hazari Court, Delhi. He places reliance on the
decisions of this Court in Mukesh Mehra vs. BSES Yamuna Power
Ltd., [168 (2010) DLT 6] and Bansi Lal vs. BSES Rajdhani Power
Ltd., [169(2010) DLT 678] in support of his contention that when
speaking orders do not even deal with the contentions raised by the
parties, as in the present case, the same cannot be sustained. He,
therefore, contends that the trial court was justified in decreeing the
suit.
12. I have considered the submissions of learned counsel for the
parties and, with their assistance, perused the record.
13. In order to appreciate the respondent’s contention that the
action of the appellant was contrary to the 2002 regulations, it would
be necessary to refer to Para 2(m) and Para 25(iv) of the same, which
read as under:-
“2. (m) Dishonest abstraction of energy (DAE) shall
mean abstraction of electrical energy where
accessibility to the internal mechanism of the metering
equipment and some collateral evidence is found to
support the conclusion that the meter has been caused to
record less energy than actually passing through it. It
shall also include any other means adopted by consumer
to cause the meter to stop or run slow (such as reversing
the polarity of one phase of poly phase meters, changes
in CT or PT etc).
RFA 1/2011 Page 7 of 14
25. Procedure for booking a case for pilferage of
energy
(iv) No case for DAE shall be booked only on account
of one seal on the meter missing or tampered or
breakage of glass window etc., unless corroborated by
consumption pattern of consumer as per Regulation
26(ii) given below and such other evidence as may be
available.”
14. The aforenoted extracts leave no manner of doubt that under the
2002 Regulations, before a person is held guilty of DAE, there must
be some collateral evidence to conclude that the meter has been
caused to record less energy than what is actually passing through it
and, for this purpose, the alleged tampering must be corroborated by
the consumption pattern of the consumer or any other such evidence
as may be available.
15. In the present case, despite the appellant being in a position to
examine the respondent’s consumption pattern did not make any
attempt to do so either before passing the speaking order or raising the
impugned bill, the appellant has miserably failed to lead any evidence
before the trial court to show the respondent’s consumption pattern
and therefore, the learned trial court was fully justified in holding that
no case of DAE against the respondent had been made out.
16. In order to appreciate the findings of the learned trial court that
the speaking order stood vitiated, it would be apposite to refer to the
respondent’s reply to the show cause notice and the speaking order
passed by the appellant based on which the liability of Rs.8,32,422/-
was sought to be fastened on the respondent. The reply dated
06.06.2006 furnished by the respondent reads as under:-
RFA 1/2011 Page 8 of 14
“I am in receipt of the above said show cause notice
which is illegal, arbitrary and unjustified on the
Following grounds:-
1. That the meter of the applicant got burnt in the
morning of 18/05/2006 due to short circuit and in this
regards, a complaint was made on 18.05.2006 vide No.
671685. A written complaint was also made vide no.
E114106050501 dated 18/05/2006.
2. That a demand note bearing No. 06050606 dated
18/05/2006 for Rs. 4,650/- was issued and the same was
paid on 18/05/2006.
3. That on 22/05/2006 an inspection was conducted
by the officer of the company and as per requirement of
clause 20(iii) (a) of DERC Regulation the supply was
given by passing the meter. Before supply bypassed the
meter was the meter was checked and no irregularities
were found at site.
4. That on 26/05/2006 an inspection was conducted
and at the time of inspection, all the seals of the meter
were found intact and O.K. and even no allegations
were made regarding tempering of seals of the C. T.
Meter or meter box, which shows that there was no
DAE.'
5. That since there was no allegations of tempering
of any seals and hence the meter was segregated at site
and at the time of segregation of the
meter nothing adverse was found inside the meter, due
to this reason, the meter was removed from the premises
by the officers of the company and
the same was taken away by the officers while taking the
premises.
6. That as per clause 25 (iv) of the regulations in
case of suspected DAE, the inspection team shall not
remove the tempered meter but shall disconnect it from
the supply and shall restore the supply through a new
meter of appropriate rating but in this case, since there
was no suspected DAE and hence the meter was
removed from site by the officer of the company on
26/05/2006.
RFA 1/2011 Page 9 of 14
7. That in the notice it was no where alleged that
any seal of the meter or meter box were found tempered
which show that there was no - DAE. However, in the
notice it was alleged that resistor found in each of the
incoming and outgoing which was going to the PCB but
in the notice it was not mentioned that what was affect of
these resistor on the meter.
8. That if there is no affect of the resistor on the
Meter and there cannot be a case of DAE as there was
no loss of energy and if there is affect of these resistor
on the meter then in the notice it was nowhere
mentioned that the meter was tested and the same was
found slow, which shows that the
company is making false allegations against the
applicant.
9. That once the seals of the meter box and C. T.
Meter found intact and O.K. then the consumer Is not at
all responsible for any resistor in the
Meter.
10. That in the notice it was also nowhere mentioned
That these resistor are an additional device because in
the electronic meter, there is a necessity of the resistor
to run the meter.
11. That at the time of inspection, the connected load
was found to be 33.528 KW. Against the sanctioned load
of 34.32 KW which shows that the applicant never
require additional load and there is no necessity indulge
in DAE.
12. That since the electronic meter was installed in
Premises of the applicant, the half hourly data can be
download from CMRI and from the data it can be
established that what was the exact load running at a
particular point of time and what was the consumption
recorded by time at that time and if the consumption of
the meter is not found in the consonance with the load
and use coupled with the tempering in the meter then
only a case of DAE can be booked otherwise not. The
company is required to supply the complete data so that
the detailed reply can be given.
RFA 1/2011 Page 10 of 14
It is therefore prayed to your good self that the complete
data may kindly be supplied to the applicant and a fresh
opportunity of personnel hearing be given to the
applicant and this notice be treated as null and void and
be quashed.”
The impugned speaking order passed by the appellant on
22.06.2006 reads as under:-
“SPEAKING ORDER
REF CASE ID: YM 29050600044
REF.K.NO: 1141 0B12 0014
METER No. 17034569
USER NAME: Apollo Rolling Shelter Engg. Works
R/C NAME: Apollo Rolling Shelter
ADDRESS: B-17 D Gali No.9, New Rohtak Road, Delhi
This has reference to the inspection of connection number
1141 0B12 0014 carried by the Enforcement Inspecting
Team of BYPL on 26/05/2006 when the following salient
observations were made on the meter number 17034569.
Total Connected Land of the premises found
33.528 KW under IX category use against the
sanctioned load of 34.32 KW under NF category.
Three phase whole current electronic meter
ultrasonic winding also found tampered and refixed.
Three phase whole current electronic meter
found deliberately burnt.
Three phase whole current electronic meter
segregated in front of the consumer and found resistors
in each of the incoming and outgoing phases which are
going to the PCB.
Photographs were taken meter was seized through seizure
memo as material evidence. The prima facie case of
Dishonest Abstraction of Energy was initiated against you.
Show-cause notice for Dishonest Abstraction of Energy
was prepared at site vide letter dated 26/05/2006
RFA 1/2011 Page 11 of 14
requesting consumer also to attend personal hearing on
09/06/2006. Consumer refused to sign and refuse to accept
show cause notice. Show cause notice were given again on
01/06/2006 through speed post to appear before Assessing
Officer (Enf.) on 08/06/2006. Mr.Ashok Kumar attended
the personal hearing on 08/06/06 and submitted that he
was not aware of tampering of the meter.
As per DERC regulations, the responsibility of keeping the
meter under safe custody shall lie with the consumer. That
the contention raised by consumer has been found to be
lacking in merits and substance is liable to be rejected.
Else also, the onus to prove the contrary lies on the
consumer as per the regulations, which you have failed to
do in the present case. Your case falls well within the
ambit of Regulations 25 & 26 of the DERC (Performance
Standards Metering and Billing) Regulations as well as
Section 135 & 138 of the Electricity Act, 2003, as you
have deliberately damaged/destroyed your electric meter,
so as to interfere with the proper or accurate metering of
electricity.
It is observed that meter seals have been found tampering
& burnt. On segregation of the meter, internal circuitry
of the meter was found highly tampered. Thus,
conclusive evidence of Dishonest Abstraction of Energy
was detected at the time of inspection.
In view of the aforementioned facts, it is hereby logically
concluded that DAE is established.
DAE bill is to be raised as per Tariff Schedule, 2005-06
and Regulation 26 of Metering & Billing Regulations of
DERC. In case of default, further necessary action
including lodging of complaint FIR u/s 135 & 138 of the
Electricity Act, 2003 and disconnection of supply shall be
taken as per rules.
Consumer is required to get connected load of 33.528 KW
sanctioned.
BM (Div) restored supply through new electronic meter
keeping old meter at site as material evidence.”
17. Thus what emerges from the record is that the respondent had
submitted a detailed reply to the show cause notice, but the appellant,
RFA 1/2011 Page 12 of 14
while issuing the speaking order based on which the bill was raised,
has not dealt with any of the grounds raised by him. In my view, once
an opportunity to show cause is given, it is expected that the
competent authority would at least deal with the grounds raised
therein, howsoever briefly, before passing any final order conclusively
determining the liability of the consumer. In the present case, as
would be evident from a perusal of the respondent’s reply and the
impugned speaking order, the appellant has not even referred to any of
the contentions in the respondent’s reply and, therefore, evidently
there has been a blatant violation of the principles of natural justice.
In my view, on this ground alone, the speaking order and the
consequential bill are not sustainable and have been rightly declared
to be inoperative by the learned trial court.
18. At this stage, learned counsel for the appellant strenuously
urges that the matter be remanded back to the competent authority so
as to enable it to pass a fresh speaking order after considering the
pleas raised by the respondent in his reply. However, I am of the view
that once the appellant has not been able to demonstrate, even before
this Court, that any attempt was ever made to compare the consumer
pattern or refer to the CMRI records before holding the respondent
guilty of DAE, no useful purpose will be served in remanding the
matter back to the competent authority. There is yet another reason as
to why a remand at this belated stage is not deemed appropriate. Even
though I am conscious of the fact that acquittal in a criminal trial may
not be a bar to fasten a civil liability; in the facts of the present case,
the respondent having been acquitted in the criminal proceedings
RFA 1/2011 Page 13 of 14
initiated at the behest of the appellant, after a full-fledged trial,
coupled with the fact that nothing has been placed on record even
before this Court to show how the respondent can be held guilty of
DAE, no useful purpose would be served by remitting the matter back
to the appellant.
19. In view of my aforesaid conclusions, I do not deem it necessary
to refer to the decisions relied upon by the learned counsel for the
respondent.
20. For the aforesaid reasons, I have no hesitation in holding that
the learned trial court was completely justified in decreeing the
respondent’s suit.
21. The appeal, being meritless, is dismissed without any cost.
REKHA PALLI, J
JULY 24, 2019
gm
RFA 1/2011 Page 14 of 14