Sumitra Devi vs Bses Rajdhani Power Ltd.
2010 Latest Caselaw 242 Del

     *        IN THE HIGH COURT OF DELHI AT NEW DELHI

     +        W.P.(C) 7148/2009


         SUMITRA DEVI                                      ..... Petitioner
                             Through     Mr. Jagat Rana, Advocate.

                    versus


         BSES RAJDHANI POWER LTD.                ..... Respondent
                          Through        Mr. Rajat Jariwal, Advocate.

         CORAM:
         HON'BLE MR. JUSTICE SANJIV KHANNA

                           ORDER

% 18.01.2010

1. The petitioner Smt. Sumitra Devi has filed the present writ petition for

quashing of the speaking order dated 9th February, 2009 and consequential

proceedings arising therefrom including the impugned bill of Rs. 24,19,260/-

raised by the respondent, BSES Rajdhani Power Ltd.

2. On 1st January, 2007, a three phase electricity meter for industrial use

was installed at the premises of petitioner at 190, Kamruddin Nagar, Delhi-41

for a sanctioned load of 11 KW.

3. On 7th July, 2008, officials of the respondent visited the said premises

and found that the meter was completely burnt and only remnants thereof

were found. These were taken away by the enforcement team and on 22nd

W.P.(C) 7148/2009 Page 1 October, 2008, a new meter was installed.

4. A show cause notice dated 7th July, 2008 for suspected theft of

electricity was issued to the petitioner requiring her to file reply by 14 th July,

2008 and attend personal hearing on 21st July, 2008. The petitioner did not file

any response or attend personal hearing. Another show cause notice dated

20th August, 2008 was issued requiring the petitioner to attend the personal

hearing on 2nd September, 2008. The petitioner did not respond to this show

cause notice also. Thereafter, the respondent raised a bill of Rs. 24,19,260/-

after passing an ex-parte speaking order holding, inter alia, that a case of

electricity theft was made out.

5. This demand was challenged by the petitioner in High Court by way of

W.P.(C) 208/2009. This writ petition was disposed of with a direction to pass a

fresh speaking order after providing CMRI data etc. and personal hearing. The

petitioner vide letter dated 27th January, 2009 submitted her response to the

show cause notice and contested the allegation of theft. By the impugned

speaking order dated 9th September, 2009, it has been held that a case for

theft of electricity was made out and accordingly bill of Rs. 24,19,260/- was

re-issued.

6. Counsel for the petitioner has raised four contentions. Firstly, the

petitioner had made complaint of sparking in the meter on 16th May, 2008 and

W.P.(C) 7148/2009 Page 2 the meter got burnt because of the sparking. In this connection, counsel for

the petitioner has relied upon Regulation 40 of Delhi Electricity Supply Code

and Performance Standards Regulations, 2007. Secondly, there is violation of

Regulation 43 of the said Regulations as the bill has not been raised according

to the said regulation and thirdly, the meter was not tested by NABL

accredited laboratory under Regulation 52(viii) and the CMRI data was also not

downloaded. Lastly, the meter testing report was not given to the petitioner.

Reference in this regard is made to the show cause notice dated 7th July, 2008.

7. Last two contentions have no merit as the show cause notice dated 7th

July, 2008 was issued on the date when the burnt meter parts or remnants

were removed from the premises of the petitioner. Till that time no CMRI data

was downloaded. The photographs of the burnt meter parts/remnants, which

form part of the speaking order, clearly indicate that nothing virtually

remained in the meter and the same was completely burnt. In the speaking

order, it is mentioned that inspection team got hold of some parts of burnt

meter and ashes; therefore, no data could be downloaded from the said meter

parts and ashes. In these circumstances, the meter could not to NABL

accredited laboratory or any another laboratory for downloading of CMRI

data. Thus question of report from certified laboratory or downloading of data

and furnishing thereof does not arise.

W.P.(C) 7148/2009 Page 3

8. Regarding the first contention, the petitioner in her reply dated 27 th

January, 2009, has herself mentioned that after complaint of sparking in the

meter was made, the same was attended to on 16th May, 2008. There is no

complaint after 16th May, 2008 till 7th July, 2008, when the meter got burnt. In

the reply dated 27th January, 2009, it is stated that "after sometime, in the last

week of June, 2008 sparking in the meter terminal again started.............". Thus,

the petitioner admits that after 16th May, 2008, sparking had stopped. Oral

submission of the petitioner that sparking had continued throughout even

after 16th May, 2008, is incorrect. No complaint of sparking was made by the

petitioner in the last week of June, 2008. The petitioner, therefore, cannot rely

upon Regulation 40 as the complaint with regard to the sparking in the meter

was attended to and the defect was rectified on 16 th May, 2008. The allegation

that due to rain the meter got burnt is dealt with in the speaking order and

rejected after making reference to the location of the meter and the

photographs taken at the spot do not show that there was any seepage of rain

water.

9. The last contention of the petitioner relying upon Regulation 43 is

misconceived. As per the speaking order, the petitioner had indulged in theft

of electricity and it is not a case of simple burning of meter. The impugned

order specifically records the consumption pattern and analysis of the data

W.P.(C) 7148/2009 Page 4 downloaded from the meter on different dates at the time of meter reading.

The finding of theft of electricity is not based upon burnt meter alone but on

the data, which was downloaded from the meter on several dates at the time

of meter readings. The speaking order discusses the said facts as follows:-

"The data, if pitted against the submissions made by the consumer, shows a number of inconsistencies in it. It shows that the meter has recorded maximum demand of 45.82 KW on 13.04.2008 while the case of the consumer is that he has stopped carrying out any major job after December 2007. It is to be noted that during inspection dated 07.07.2008 a connected load of 59.6 KW has been detected which matches with the maximum demand of 45.82 KW. The consumer did not reply when the matter is recording High Maximum Demand even in April 2008 why his consumption is so low from 21.11.2007 to 24.05.2008 (last reading available in database) on average 2200 units per month which is only 12.3% of the assessed consumption. The major findings about the indication of tampering with the meter have not been answered despite the service of CMRI data and the previous speaking order which reads as follows:

19.04.2008 has been examined and found that TAMPER STATUS REPORT shows repeated occurrences of CT OPEN. It further shows very less energy recorded by the meter during these tamper occurrences. For example, CT OPEN occurred on 23.01.2008 at 11.36 Hr. and restored on 27.01.2008 at 09.29 Hr. During this period meter reading increased by only 5 units (from 11156 to 11161). Next occurrence of CT OPEN recorded on 28.01.2008 at 08.13 Hr. Till that time meter has recorded 14 units (11161 to 11175). Similarly, from 28.01.2008 at 12.01 Hr. (after restoration of CT OPEN) to 31.01.2008 at 16.50 Hr. meter has recorded 178 units (11176 to 11354). CT OPEN was next recorded on

W.P.(C) 7148/2009 Page 5 01.02.2008 at 04.43 Hr. and restored on 04.02.2008 at 20.18 Hr. During this period meter has recorded only 07 units (11372 to 11379)."

The occurrences of CT OPEN events show a definite pattern and for the convenience of the consumer they have been specifically marked. But still no reply from the consumer is forthcoming.

It the consumer has not stated anything on these basic points then what did he say in his submission? It has pointed out a blank column in inspection report (4.11-which is relevant for cases pertaining to clubbing of load and not relevant in theft of electricity cases; prominently cut by a line across by the inspection team). Tried to exhort that actually no inspection took place on that date (making no comment on the elaborate video recording carried out on the date) and doubted the connected load recorded by the inspection team (notwithstanding the maximum demand recorded by the meter). These submissions are not sufficient to absolve the consumer from the case of deliberate burning of the meter after tampering with it. To put to rest any doubt about whether the meter has been deliberately burnt or not a few snap of the video recording carried out on 07.07,2008 is attached."

10. In view of the aforesaid findings, I do find any merit in the present writ

petition and the same is dismissed. I may note that the interim application

filed by the petitioner was dismissed vide order dated 1st May, 2009. Today

also counsel for the petitioner states that he has no instructions. The

findings/observations recorded in the present order are for the purpose of the

disposal of the writ petition and will not influence the criminal court, if any

proceedings are initiated under Section 138 of the Electricity Act, 2008 and the

W.P.(C) 7148/2009 Page 6 said court will independently apply its mind to the evidence produce by the

parties without being influenced by the observations made in this order.

SANJIV KHANNA, J.

JANUARY 18, 2010.

      NA




W.P.(C) 7148/2009                                                               Page 7