Smt. Usha Goel vs Bses Yamuna Power Limited
2010 Latest Caselaw 3269 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 15th July, 2010.

+        W.P.(C) No.618/2008 & CM No.1212/2008 (for interim relief)

%

SMT. USHA GOEL                                                 ..... Petitioner
                              Through:     Ms. Neha Gupta, Advocate

                                         Versus

BSES YAMUNA POWER LIMITED                   ..... Respondent
                Through: Mr. Vikram Nandrajog & Mr. Sushil
                         Jaswal, Advocates.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                      No
2.       To be referred to the reporter or not?               No
3.       Whether the judgment should be reported              No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner by this writ petition seeks quashing of the order

dated 20th November, 2007 of the respondent holding the petitioner

guilty of dishonest abstraction of energy and quashing of the

bill/demand of Rs.23,23,608/- on the petitioner in pursuance thereto.

This Court vide order dated 25th January, 2008 which continues to be in

force while issuing notice of the writ petition stayed the said demand.

The parties were referred to Lok Adalat where the respondent gave a

proposal for settlement on payment of 70% of the impugned demand.

The same was not acceptable to the petitioner. The respondent has filed

the counter affidavit to which rejoinder affidavit has been filed by the

petitioner. The counsels have been heard.

2. The electric connection in question is in the name of M/s V.D.

Industries of which petitioner is the Proprietor and is for industrial

purposes. It is the case of the petitioner that on 22nd November, 1999 the

respondent replaced the manual meter with a mechanical CT meter; that

on 14th September, 2006 the mechanical CT meter was replaced with an

electronic meter; that however neither the box of the meter nor CT was

changed and the box and the CT are the same as installed in 1999; that

on 11th January, 2007 the petitioner complained of the meter not

showing the reading; the officials of the respondent visited the premises

of the petitioner on 12th January, 2007 and endorsed that the reading was

not visible; that on 6th April, 2007 the officials of the respondent again

visited the premises of the petitioner and again made an endorsement

"no download, no display show by meter"; that on 23rd April, 2007 a

new CT meter was installed along with box with new CT and the old

meter disconnected but retained at site; that on 27 th April, 2007 the

disconnected meter was again inspected though in the absence of the

petitioner; that in the assessment during the said inspection, without

getting the disconnected meter tested in lab, endorsement was made of

the petitioner indulging in DAE and "CT connection found short

deliberately" and the meter being found burnt. It is further the case of

the petitioner that the disconnected meter was taken away finally on 27th

April, 2007 after breaking the seal thereof and without resealing the

same.

3. The respondent in the speaking order impugned in this writ

petition has held that during the inspection on 27 th April, 2007,

connected load of 64.198 KW was found as against the sanctioned load

of 33.00 KW; the CT box and meter box seals were found tampered and

reaffixed; Y phase CT connection was found deliberately short and

meter disconnected; that the supply was restored through a new meter;

that the lab to which the petitioner's disconnected meter was sent has in

its report concluded that the LCD & LED of the disconnected meter was

"found not ok, accuracy of the meter could not be checked because of

the same being dead and CMRI data could not be retrieved". Though the

speaking order deals with the contentions of the petitioner in the reply to

the show cause notice, one of the reasons given is that on analysis of

consumption pattern a sudden increase in the recorded consumption after

replacement of the tampered meter was found. It has thus been held that

the same was clearly indicative of dishonest abstraction of energy.

4. The counsel for the petitioner has contended that the show

cause notice ought to have been issued within 30 days but was issued

thereafter; that the meter was sent to/received by the lab with the seal

broken and thus no reliance could be placed on the record of the lab.

Reliance is placed on Jagdish Narayan Vs. North Delhi Power Limited

140 (2007) DLT 307 laying down that mens rea or intention of

consumer to dishonestly abstract electricity must be proved conclusively

to bring home charge of DAE. It was further held that interference of

DAE should not be permitted to be drawn on mere fact that the meter

had been found with broken seals. Reliance is also placed on Udham

Singh Vs. BSES Rajdhani Power Ltd. 136 (2007) DLT 500 laying

down that inspection should precede assessment that consumer indulged

in DAE and mere irregularity in meter seals, or breakage of glass, do not

authorise issuance of show cause notice.

5. The counsel for the petitioner has further contended that the

meter in question was inspected earlier thrice on 12th January, 2007, 6th

April, 2007 and 23rd April, 2007 and no allegation as made on 27th April,

2007 of any such tampering was made. It is thus contended that the

inspection of 27th April, 2007 suddenly alleging tampering is bad.

6. The counsel for the respondent states that neither the data was

downloaded from the disconnected meter nor was the meter inspected

prior to 27th April, 2007. It is contended that the visits on 12 th January,

2007, 6th April, 2007 and 23rd April, 2007 were merely checks and

cannot be classified as inspection. It is further averred that it was quite

evident during the inspection on 27th April, 2007 as also borne out from

the photographs that the petitioner had tampered with the meter. It is

further urged that the petitioner has failed to explain the sudden surge in

consumption immediately after replacement of the meter.

7. The counsel for the respondent has also urged that the

disputed questions of fact raised cannot be adjudicated in the writ

petition and the appropriate remedy for the petitioner is to approach the

Special Courts constituted under Section 153 of the Electricity Act, 2003

as laid down by the Division Bench of this Court in B.L. Kantroo Vs.

BSES Rajdhani Power Ltd. 154 (2008) DLT 56.

8. The counsel for the petitioner in rejoinder has sought to

explain the sudden surge in consumption immediately on replacement of

the meter by contending that a new motor has been installed. The

counsel for the respondent however points out that the said explanation

was given after the speaking order was made and the respondent thus

had no occasion to deal with the same.

9. I am perturbed by the admitted sudden surge in consumption

immediately on replacement of the allegedly defective meter. The same

is prima facie indicative of DAE. It is too much of a co-incidence that a

new motor leading to increased consumption was installed at about the

same time as the removal of the allegedly defective meter and its

replacement with a new one. Leave apart the other contentions, this

alone is a factual dispute and if the petitioner is unable to satisfy that a

new motor in fact was installed, sudden increase in consumption without

any other parameter can only lead to one conclusion which is against the

petitioner. This Court in the exercise of writ jurisdiction would not come

to the assistance of such a consumer of electricity. There is nothing to

indicate that the petitioner before or immediately after installing the new

motor, if any, informed the respondent of the same or sought any

additional load for the same. In the circumstances, the said explanation

prima facie appears to be an afterthought.

10. The writ petition is therefore dismissed. The petitioner shall

however have the remedies available to her in law before the fora which

can go into such disputed questions. It is further clarified that nothing

contained herein shall be deemed to be an expression of view on the

merits of the case and which observations have been made purely for the

purposes of determining whether the writ jurisdiction should be

exercised or not. The petition is accordingly dismissed and the interim

order vacated. However, notwithstanding the same, the respondent shall

not disconnect the electric supply to the petitioner owing to non-

payment of the demand, subject matter of this writ petition, for a period

of four weeks from today. The said time is given to allow the petitioner

to approach the alternative forum and to apply for interim relief therein.

However, unless there is stay of disconnection from any other

forum/Court after four weeks herefrom and further if the petitioner fails

to pay the demanded amount, the respondent shall be free to disconnect

the electric supply to the petitioner.

The petition is disposed of.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 15th July, 2010 bs (Corrected and released on 26th July, 2010.)