Smt. Bimla Gupta vs North Delhi Power Co. Ltd. [Along ...
2006 Latest Caselaw 1833 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 3429

1. The writ petitioners in these proceedings under Article 226 of the Constitution of India challenge electricity bills issued by the North Delhi Power Co. Ltd ( hereafter referred to as NDP L) on allegations of dishonest abstraction of electricity (DAE).

2. The petitioner in WP. 6104 of 2006 has a business in the premises A-11 Lawrence Road Industrial area New Delhi. These premises are served by electricity connection being K. No. 3210 3131842. The business is carried out in the name and style M/s Ajanta Food Industries. The petitioner in WP 8463 of 2006 too, is carrying on business in the same premises; in its case, it is manufacturing plastic pellets. The electricity meter in question in its Page 3430 premises is No. 321006015972. The meters in both the writ petitions were installed in 1988.

3. Sometime in April 2003, pursuant to an agreement or understanding entered into between the four industries situated in the same premises mainly A-11 Lawrence Road, a 400 KW transformer check meter was installed by the NDPL. The electricity connection to the other industrial unit, M/s. M. G. Polyblinds were energized on 1-8- 2003.

4. It is alleged by both the petitioners that sometime in June 2004 there was a complaint regarding stoppage of electricity supply. NDP officials had stated that there were some service line faults which required repairs/ replacement of cables. In the background of the petitioners' complaints, an inspection appears to have been carried out on 3 July 2004 by the NDPL officials. It is alleged that the officials were not authorized to do so, but had reached the premises only for the purpose of restoring electricity which had stopped, on account of the service line fault noticed by the petitioners on 26th of June, 2003.

5. Both the petitioners state the meters were found to be in order in every way along with the meters seal boxes and it is alleged that performance of the meters could not be checked as the electricity supply had been disconnected from the NDPL. LV mains. Yet, the same day a show cause notice was issued to by NDPL requiring the petitioners to reply by 8th July 2004 on allegations of dishonest abstraction of electricity. This was followed closely by the Bill dated 8th July 2004 issued on the basis of the same allegations. It is claimed that the notices issued on 3rd July 2004 were replied to a 12th of July 2004 by both the petitioners

6. On 13th of December 2005 the NDPL issued a speaking order and raised a final bill. The petitioners represented against the speaking order and also the final bill. They allege illegality in both the documents pointing out that the bills were exaggerated and untenable. On 20th February 2006 the NDPL disconnected electricity supply to the premises of both the petitioners. After giving issuing reminders and the representation, which were of no avail, the petitioners approached this Court, in these proceedings.

7. It is averred that the allegation of dishonest abstraction of electricity is unfounded and wrong. The petitioners placed reliance on the previous consumption pattern of electricity before the disputed period and stated that these do not show any marked distortion or fall in the consumption patterns to justify a conclusion of dishonest abstraction of electricity. It is also claimed that the meter in both the cases were found intact as is evident from a reading of the inspection reports. The petitioners allege that after the installation of the transformer meter there is a perfectly scientific basis of assessing actual consumption, which is recorded by the said transformer meter. As the actual consumption could be evaluated, on the basis of an objective yardstick there could be no recourse to notional consumption pattern, for the concerned period.

8. It is stated that in WP 6104/ 2006 the NDPL has billed on the basis of the sanctioned load which was much higher than the actual connected load. The sanctioned load for the premises in this case was 89.252 KW; Page 3431 the load found in the premises on the relevant date of inspection was 70.56 KW

9. Both the petitioners also allege that the bills issued to them do not give credit to the actual consumption, and amounts paid, but have given credit only to amounts paid, after applying the tariff multiplier of 1.5 mandated by the DERC regulations and the tariff of the relevant year. It is claimed that the bill ought to have been drawn up after giving credit to the actual units consumed and paid for and thereafter the relevant tariff provisions ought to have been applied to the concerned multiplier or load factor.

10. The NDPL in its response has denied the allegations of illegality in its approach; it is claimed that the inspection reports on both the cases clearly revealed that the meters were tampered. The inspection, it is averred, was carried out in the premises in the presence of the enforcement team which comprised of highly technical persons duly competent and fully equipped to carry out inspection. They detected irregularities in the meter; it was also alleged that the show cause notice and inspection report were prepared in the presence of the petitioners or their duly authorized representatives and handed over to them in both the cases. NDPL also alleges (and the the speaking order of the NDPL is relied upon for the purpose), to say that even though the meter were old, there was no question of any gap in them, or deficiencies. Under normal circumstances even the passage of time the cavities found in between the window meter glass and the meter body at the upper right and lower right side, through which thin plastic films could be inserted could not have arisen; the meter window glass was also found damaged on the upper right corner as well as on the right side and the meter window glass were loose. In addition scratches were observed on the meter disk. On the basis of these observations the NDPL acted within its rights to logically conclude that the petitioners had indulged in tampering, with a deliberate intention to manipulate the meter reading for the purpose of unlawful gain or advantage.

11. The NDPL also states that the question of the petitioners placing reliance on the newly installed 400 KV transformer meter would not arise because the consumers are provided with individual meters and the billing of those connections is resorted to individually as per consumption meter installed in the premises. The contention of the petitioners that consumption was easily verifiable through the transformer meter installed has been rejected and denied.

12. The NDPL has also alleged that the analysis of the consumption pattern for the previous period showed that the electricity shown or recorded, to be consumed was found to be much lower than what was actually the electricity recorded by the average consumption computed, for the period. As per provisions of the DERC (Standards of Performance of Metering and Billing ) Regulations, if consumption is found to be less than the average recorded, it is claimed that the conclusion about the petitioners having indulged in dishonest abstraction of electricity were well founded

13. It has been lastly to contended by the NDPL that calculation of the bill in on the basis of sanctioned load though the connected load was lower was Page 3432 justified as it was duly supported by the Tariff provisions at that time. As regards the issue of granting credit to the units consumed and paid for it is averred that the NDPL has merely followed Regulation 26 (iv) and thereafter deducted the amounts as per Regulation 30(1).

14. Mr. Dalal, learned Counsel re-iterated the pleas taken in the writ petitions. He submitted that the inspection report could not be believed, and was prepared by ignoring the correct facts. At the time of inspection, the NDPL representatives did not notice any irregularity; yet a show cause notice was issued, and in both the cases, consumers were slapped with huge, exaggerated bills.

15. Counsel submitted that after installation of the check transformer in 2003, the NDPL could have conveniently recorded the consumption pattern as per the meter for that transformer, instead of resorting to notional calculation of the tariff load factor.

16. During hearing, strong exception was taken by counsel to the manner in which the Bill was raised. It was contended that as per Regulation 30(1), NDPL was duty bound to first arrive at a notional figure, based on the peculiar facts, and then, after giving credit to the value of the units billed and paid, the final amount ought to be drawn up, and the relevant multiplier had to be taken recourse to. Likewise, it was urged that the NDPL's insistence for billing on the basis of the sanctioned load, even when the connected load was less, was irrational, and unlawful.

17. Learned Counsel for the NDPL refuted the submissions of the petitioner, and stated that there was no warrant in the contention that the petitioner's meter readings were accessible through the 400 KW transformer meter. It was submitted that access through transformer meter would not arise because the consumers were provided with separate meters and billing for the connections is resorted to as per consumption meter installed in the premises. It was emphasized that the existence of cavities gaps in the meter glass and scratches on meter and the nature of allegations had not been refuted. These, coupled with the consumption pattern, made out a case for dishonest abstraction of electricity.

18. It was contended that the NDPL acted correctly in preparing the bill in the first case, on the basis of the sanctioned load, even if the connected load observed was lower, because the tariff order of the relevant year, for a part of the period permitted such calculation. As regards the contention that the NDPL ought to have first calculated the billed consumption in terms of the units for the previous six months, deducted the consumption from the computed consumption, and thereafter applied the factor mandated by the tariff order is concerned, Counsel for NDPL submitted that Regulation 26(iv) directed, in imperative terms, the electricity service provider to first calculate the bill payable as per the Tariff order, by applying the relevant misuse/ DAE factor, and thereafter, the question of giving credit, as per Regulation 30(1) would arise. It was submitted that while so computing, the NDPL acted with its powers in granting credit, in monetary terms, and not giving credit, or an adjustment to the units consumed.

Page 3433

19. The reply to the show cause notice, or indeed the pleadings, in these cases, do not disclose any serious contest as regards defects in the meter, and observations of the inspection team about gaps/ cavities, and the glass over the meter being loosened, with scratches, enabling insertion of a thin film, or device to stop, or slow the meter. Thus two questions arise for consideration, viz whether the NDPL acted correctly in billing on the basis of the higher criterion, i.e. sanctioned load, instead of giving heed to the connected load, which was lower. The defense of NDPL was that such calculation is permissible under the Regulations.

20. The object of the Electricity Act, 2003 as well as the Delhi Electricity Reforms Act, 2000, under which Regulations were framed, is to ensure generation and optimal distribution and utilization of electricity. Parliamentary intention no doubt was to ensure that transmission losses were minimized. One of the important methods of enforcing that intention was to recover higher tariff in cases of unauthorized use, pilferage, etc of electricity, by applying higher tariff. In this case, the allegations pertain to Dishonest Abstraction of Electricity, based on deficiencies in the meters installed, and the slow meter. While the NDPL may be justified in the facts of the case to levy DAE charges, and apply a higher factor while calculating amounts payable, yet there appears to be no rationale in ignoring that the connected load at a given time was less than the sanctioned load, and appropriately billing the consumer. No rule or compelling reason to ignore utilization at a lower capacity than the sanctioned load, and the relevant DAE factor, was disclosed, except that the tariff order at the relevant time, permitted such a course of action. If the contention of the respondent were to be accepted, in such circumstances, even if the connected load is less than half the sanctioned load, or where there is practically no connected load, nevertheless, the electricity company would be justified in recovering as if the entire sanctioned load is utilized, and recover the charges for DAE. As observed earlier, though the intention of electricity reforms in Delhi was to ensure efficient distribution and supply of electricity, yet that did not override the interests, and rights of the consumer to be billed in a rational manner, having regard to the actual load and the connected load on a given date. Any other interpretation would result in recovery of amounts which have no rational basis. On the other hand, Regulation 12(2) enjoins the licensee to bill on the basis of actual consumption.

21. As regards the second issue, i.e whether the units consumed and paid for by a consumer have to be first offset, before a bill for DAE is raised, on the basis of the computed consumption, it has to be noticed that the competing constructions are placed on the Regulations. Regulation 26(iv) provides that the licensee shall also assess the energy consumption for past six months as per the Tariff Order, and prepare final assessment bill on 5 times the rates as per applicable tariff. Regulation 30(i) on the other hand, reads as follows:

While making the assessment bill, the licensee shall give credit to the consumer for the payments already made by the consumer for the period of the assessment bill. The assessment bill shall be prepared after excluding the consumption recorded by the meter.

Page 3434

On the first reading, it seems there is a conflict between the two provisions, viz Regulation 26(iv) which directs preparation of the bill for DAE on the basis of five times the rates as per applicable tariff, and the mandate of Regulation 30(i). The conflict is sought to be resolved by the NDPL by stating that the direction of Regulation 26(iv) has to be first complied with, before the deduction under Regulation 30(i) is to be given. In the absence of the latter provision it such a contention was perhaps possible. However, Regulation 30(i) deals only with one aspect, i.e making of the assessment bill. Regulation 26(iv) on the other hand, talks of two distinct things, i.e enforcement measures, and the formula to be adopted while recovering the amounts, i.e 5 times the applicable tariff. However, the rule or method of preparing the bill is not the subject matter of Regulation 26(iv); it is Regulation 30(iv). Its sole purpose is to guide the electricity company as to the manner of making the assessment bill. In a sense, it directs that the consumption recorded in the meter has to be excluded. This interpretation is also reinforced by a reading of Regulation 12(2) which directs that the licensee shall raise bill for every billing cycle based on actual meter readings. There are two more considerations in favor of the interpretation placed by the petitioners. One, if the construction placed by NDPL were to be accepted, there would be two basis for one single bill, i.e computed consumption, which is derivative, or notional, and actual consumption, which is based on the reading, consumption actually paid for, and over which there is no controversy. This leads to anomalies. The second reason is that Regulation 30(i), in the scheme of the Regulations, occurs later, and deals specifically with the issue of manner of preparing the assessment (While making the assessment bill). Therefore, it talks of the time, when the licensee follows the formula indicated, but after giving effect to the specific direction to give credit to the actual consumption. This construction is more in consonance with logic and reason, and could also give effect and meaning to the term exclude, because the licensee would be then adopting one criteria or basis, i.e. units, exclude the actual units, consumed from the calculation of national/computed units and then apply the relevant factor. In other words, Regulation 30(i) requires exclusion of the units consumed, as per meter and paid for, while calculating the assessed consumptions, on which the relevant factor i.e. times as per Regulation 26(iv) would be applied. The amounts payable therefore, would not be based on two different criteria; ie one arrived at on the basis of notional computation, and the deduction made from it on the basis of actual consumption, in monetary terms, or money paid.

22. In the light of the above discussion, I am of the opinion that NDPL acted contrary to law in billing the petitioner on the basis of sanctioned load, when the connected load was lower ( in WP. 6104 of 2006). In both the petitions, the licensee, NDPL, was bound to first calculate the total actual consumption, in terms of units consumed and paid for, exclude them while computing consumption, in terms of Regulation 26(iv) and then apply the appropriate factor(s)/ parameters, on the balance units, while raising the bill. The methodology adopted in calculating the computed consumption first, and then deducting the units consumed/ amounts paid, is therefore, not correct.

Page 3435

23. The writ petitions are entitled to partly succeed. They are accordingly allowed; the impugned bills are quashed in the light of the above discussion. The NDPL shall prepare the bills, afresh, in terms of the above discussion, within 2 weeks from today. No costs.