Mukesh Mehra vs B.S.E.S. Yamuna Power Ltd.
2010 Latest Caselaw 942 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     W.P.(C) 5470/2008

%                              Date of decision : 18th February, 2010.

      MUKESH MEHRA              ..... Petitioner
                 Through Mr.Ravi D. Sharma, advocate.

                   versus


      B.S.E.S YAMUNA POWER LTD           ..... Respondent
                   Through Mr. Vikram Nandrajog, advocate.

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA


                               ORDER

1. The impugned speaking order dated 9th/10th July, 2008

holds that the petitioner is guilty of dishonest abstraction of electricity

for the following reasons :-

"Establishment of facts of Cases:

The case has been analysed and observed as under:

 In this case the date of inspection display was found hang. This fact has been mentioned on meter inspection Performa no.7374 as well as on seizure memo. This situation arises mostly in the cases where meter is tampered without any physical interference i.e. Electro Static Discharge (ESD) due to software disturbances as meter is not calibrated to face extreme high

WPC No.5470/2008 Page 1 voltage generated artificially.

 As per CMRI data download and analysis of consumption pattern it has been observed that extra ordinary and extreme high MD (KW) as 41.4 KW has been recorded on 23/08/2007. This extra feature also appears when meter is subjected to high voltages generated artificially.  As per CMRI data, meter RTC found faulty. This situation arises when meter is externally applying extra high voltage. This aspect also strengthens the fact in this case that meter has been applied with ESD.

 As per CMRI, power factor found recorded very low. CT tamper events recorded for seven times and magnetic tamper events also recorded for four times. As per CMRI data, meter LCD and LED found not o.k. Hence the case again confirms that ESD has been used with the sole motives of Dishonest Abstraction of Energy. Thus, conclusive evidence of Dishonest Abstraction of Energy is deducted.

 The average consumption as per module works out to 09.16% which is much less than the prescribed limit of DERC which is corroborative evidence of Dishonest Abstraction of Energy.

It is a case of Dishonest Abstraction of Energy wherein meter has been tampered without any physical interference. Thus the case is covered under clause 52(XII) as per SERC supply Code.

Final Proposal/Order:

In view of the evidence of tampering of seals, faulty of display and RTC, recording of low power factor, GT short tamper and magnetic tamper and extremely low recorded consumption pattern conclusive evidence of Dishonest Abstraction of Energy is substantiated against the consumer. Further consumer submission that he has not

WPC No.5470/2008 Page 2 tampered the meter does not absolve him from the case of Dishonest Abstraction of Energy. DAE is established under tariff schedule 2007 Regulation 52 & 53 of Metering & Billing Regulations of DERC and Section 135 & 138 of Electricity Act, 2003."

2. On the basis of the said Order, the respondent-discom has

raised the impugned bill of Rs.7,47,929/-.

3. Pursuant to complaint made by the petitioner on 14th

September, 2007 that the meter was not recording electric

consumption, the officers of the respondent-discom inspected the

meter on 19th September, 2007 and it was noticed that the meter

pulse and display was not working and therefore accuracy check was

not possible. It was also recorded that seals were removed for testing

and the meter terminal was found burnt. On 20th September, 2007 the

old meter was removed by the Enforcement Department and it was

recorded that the old terminal was found burnt.

4. Show cause notice dated 5th December, 2007 was issued to the

petitioner. The said show cause notice in addition to other

observations records that meter box seals, terminal seals and half

seals were found tampered. It further states that meter hologram

seals were found to be open. The impugned speaking order dated

9/10th July, 2008 records that there was evidence of tampering of

seals.

WPC No.5470/2008 Page 3

5. As noticed above, in the meter testing report dated 19th

September, 2007 there is no allegation of tampering of seals. In fact,

the meter testing report dated 19th September, 2007 specifically

states that seals were removed for testing. Thus, the officers of the

respondent-discom have themselves had removed the seals of the

meter for testing. The respondent-discom along with the counter

affidavit have filed inspection report dated 20th September, 2007. The

said inspection report records "no physical illegal evidence found

inside the meter by the joint team". It thereafter records that terminal

seals, ultrasonic welding and half seals were found tampered and

refixed. Obviously, this has reference to the removal of seals and

tests made by the meter testing team as recorded in their report

dated 19th September, 2007. This fact unfortunately has been

completely ignored and overlooked in the speaking order.

6. The speaking order further notes that CMRI data downloaded

on 23rd August, 2007 records extraordinary and high MDI as high as

41.4 KW. This may be correct but the officer passing the speaking

order should have addressed and examined the MDI (KW) for the

earlier period. MDI (KW) for the period between November 2006 to

August 2007 as per the details in the computer records of the

respondent-discom varies between 4.56 KW to 9.20 KW. It never

WPC No.5470/2008 Page 4 went into double figure. This factor has not been again accounted for

and is ignored. There are number of reasons why on a particular day

and time, the meter may record a high MDI like when a certain

special equipment is brought at site for repairs, etc. If high MDI (KW)

recorded on one day is an isolated incident, it may not be significant if

other data/MDI(KW) recordings over a period of time are satisfactory.

7. The speaking order records that Real Time Clock (RTC) was

found to be faulty. It is accepted that there can be number of reasons

why RTC may fail. The impugned order records one of the reasons

why the RTC can fail is when extreme high voltage current is applied.

However, it ignores that there can be other circumstances and

reasons why RTC can fail. The first paragraph of the reasons given in

the speaking order further records that the meter display was found to

be hanging and this mostly happens in cases where the meter is

tampered with. This again is a presumption or a possibility but not

certain or monolithic inference. The display can hang and malfunction

for various reasons. These may be a relevant factors, when there is

other material and evidence which justify and show tampering or

dishonest abstraction of electricity. RTC and display failure alone do

not indicate tampering or dishonest abstraction of electricity as a

universal affirmative rule and are not conclusive proofs. Probabilities

WPC No.5470/2008 Page 5 cannot take shape of proof itself and are not conclusions. The error

becomes apparent if we examine the reasons given by the laboratory

report when the meter was tested. The laboratory has opined that

the said failures may be due to heavy loads/imbalance load - due to

imbalance load condition. The reasons given in the laboratory test

report have not been considered and referred to in the speaking

order. They are completely ignored.

8. In view of the above, I find that the speaking order cannot be

sustained as it fails to take into consideration relevant and material

facts and is one sided. The same is accordingly quashed. The

impugned bill accordingly also fails and is set aside. No costs.

9. The amount deposited by the petitioner pursuant to the interim

order passed by this Court will be adjusted in the future bills of the

petitioner.

SANJIV KHANNA, J.

      FEBRUARY 18, 2010
      P/VKR/NA




WPC No.5470/2008                                                   Page 6