Sh. Vijay Bali vs Bses Yamuna Power Ltd. & Ors.
2010 Latest Caselaw 4653 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 4th October, 2010.

+       W.P.(C) No.8859/2009 & CM No.6215/2009 (u/S 151 CPC for stay)
%

SH. VIJAY BALI                                                  ..... PETITIONER
                               Through:      Petitioner in person.

                                          Versus

BSES YAMUNA POWER LTD. & ORS.            ..... RESPONDENTS
               Through: Mr. K. Datta & Mr. Manish
                         Srivastava, Advocates for R-1 & 2.
                         Mr. P. Mallikarjun, Adv. for Mr.
                         Saleem Ahmed, Adv. for R-3 to 5
                         with S.I. Lala Ram.

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 filed the present writ petition pleading:-

(i) That he has been residing at Flat No.270-C, J&K Block,

Dilshad Garden, Delhi since the year 1987;

(ii) That in the year 2001 the mechanical electricity meter installed

by the then Delhi Vidyut Board (DVB) at his residence became

faulty but neither the DVB nor the respondent no.2 BSES

Yamuna Power Limited (BSES YPL) being the successor of

DVB, replaced the faulty meter inspite of repeated

demands/complaints of the petitioner;

(iii) That the faulty mechanical meter was ultimately replaced by

BSES YPL with an electronic meter on 30th March, 2004 but

the officials of BSES YPL failed to prepare the Meter

Replacement Report;

(iv) The new electronic meter was also faulty and with respect

whereto also several complaints were made by the petitioner

but to no avail;

(v) That the electronic meter also finally stopped working and

BSES YPL also stopped sending bills to the petitioner;

(vi) Upon the petitioner collecting duplicate bills from the office of

BSES YPL he found that the connection was shown as

disconnected though it was very much alive;

(vii) That on 2nd May, 2008, the officials of BSES YPL visited the

premises of the petitioner and prepared a site inspection report

and as per which there was no tampering with the meter;

(viii) That on 8th May, 2008 a notice dated 5th May, 2008 under

Section 163 of the Indian Electricity Act, 2003 was received by

the petitioner and after few hours on the same day, officials of

BSES YPL along with several other unauthorized persons

visited the house of the petitioner and created a chaos and of

which complaint was lodged by the petitioner on 9 th May, 2008

with the Police officials (also impleaded in this petition).

(ix) That the officials of BSES YPL again visited the house of the

petitioner on 12th May, 2008 and misbehaved and insulted the

petitioner‟s family and regarding which a telegram dated 13th

May, 2008 was sent by the petitioner;

(x) That the officials of BSES YPL along with local police without

any intimation to the petitioner, on 15th May, 2008 broke open

the lock of the meter room and removed the meter and

connected the wires directly to let the electricity supply run

directly. The petitioner lodged a complaint thereof also on 15th

May, 2008 to the Police Commissioner and also sent legal

notice to BSES YPL but to no avail;

(xi) That the petitioner filed a criminal complaint under Section

156(3) of the Cr.P.C. against the officials of BSES YPL and

which complaint is still pending;

(xii) That the petitioner also lodged a complaint against the officials

of BSES YPL with the Public Grievance Cell of the

Department of Power, Govt. of NCT of Delhi;

(xiii) That on 12th June, 2008 a status report was filed by the

Investigating Officer in the complaint case aforesaid filed by

the petitioner inter alia to the effect that the officials of BSES

YPL after removing the faulty meter had connected the electric

supply directly without installing a new meter;

(xiv) That on 2nd July, 2008 the officials of BSES YPL again entered

the premises of the petitioner without intimation and started

harassing the petitioner compelling the petitioner to call the

police. The connected load of 19.201 KW was assessed at the

petitioner‟s premises without any basis;

(xv) The petitioner filed a civil suit before the Court of the Civil

Judge for permanent injunction restraining the BSES YPL from

tampering with the evidence of direct supply;

(xvi) That the petitioner was delivered a notice dated 7 th October,

2008 of theft assessment without any theft assessment order or

bill having been served on him;

(xvii) That the petitioner filed another complaint of offences under

Sections 350, 425, 448, 500, 503 & 506 IPC against the

officials of BSES YPL and in which complaint, bailable

warrants against the said accused had been issued.

(xviii) That a complaint before the Consumer Disputes Redressal

Forum was also filed by the petitioner claiming damages from

BSES YPL.

(xix) That on 15th December, 2008 again a number of officials of

BSES YPL entered the premises of the petitioner and the

petitioner called the police;

(xx) That the petitioner received notice of a case of „direct theft‟

filed by BSES YPL against him and appeared in the Court; the

officials of BSES YPL attempted to have the petitioner arrested.

2. The petitioner in the writ petition has claimed the following reliefs:-

"a) stay the proceedings in FIR No.444/08 and CC No.1008/08; and

b) direct the resp. no.2 to install the correct meter at the petitioner‟s premises and restore the power supply of the petitioner with immediate effect; and

c) restrain the respondents from initiating any action against the petitioner and his family causing further physical and mental harassment to them, without the leave of this Hon‟ble court; and/or

d) pass any other or further order(s) which this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice, in favour of petitioner and against the respondents."

3. The writ petition came up before this Court on 18th May, 2009 when

notice of the writ petition was issued. The petitioner admitted that

electricity charges had not been paid w.e.f. year 2002, though claimed that

no bills in accordance with law had been raised on him. The counsel for

BSES YPL informed that a sum of `82,000/- was due from the petitioner as

per consumption recorded and the petitioner had been booked for direct theft

of electricity and theft charges of `3.8 lacs had been imposed. This Court

vide interim order 18th May, 2009, without prejudice to the rights and

contentions of the parties, subject to the petitioner depositing `1,50,000/- in

the manner provided therein directed the respondent no.2 to restore the

electricity connection of the petitioner. The petitioner was also directed to

pay the current consumption charges. The said amount of `1,50,000/- has

been paid and the said order continues to be in force.

4. Though the parties were referred to Mediation Cell but the same has

been unsuccessful.

5. The counter affidavit stated to have been filed by BSES YPL is not on

record though the rejoinder of the petitioner is on record. Copy thereof has

been perused. The petitioner appearing in person also states that the costs of

`2,000/- imposed vide previous order for delay in filing the counter affidavit

have not been paid. The counsel for BSES YPL assures that the cost if not

paid till now shall be paid within ten days. If the cost is not so paid, the

petitioner shall be entitled to adjust the amount thereof from the payment

under the next bill due from him to BSES YPL.

6. BSES YPL in its counter affidavit has inter alia stated that in January,

2006 during the uploading of data in the computer system, the status of the

meter of petitioner was inadvertently uploaded as "disconnected" and due to

which inadvertent mistake, the bills generated showed status of the meter as

"disconnected"; that on 2nd May, 2008 during inspection, the meter was

found to have stopped; however the petitioner on 5th May, 2008 did not

allow the faulty meter to be replaced and owing whereto the notice dated 5 th

May, 2008 under Section 163 of the Electricity Act was issued. It is further

pleaded that though on 15th May, 2008, the faulty meter was removed but

the petitioner resisted the installation of a new meter and continued to use

the electricity directly from the LT box indulging in direct theft of

electricity; that it was so found during inspection on 2 nd July, 2008 and

pursuant thereto a theft bill of `1,86,497/- was issued to the petitioner and a

case of direct theft lodged against the petitioner. It is yet further pleaded

that the premises of the petitioner were once again inspected on 15 th

December, 2008, when again the petitioner was found indulging in direct

theft and a theft bill of `95,758/- issued and First Information Report (FIR)

registered against the petitioner. The premises of the petitioner were

inspected for the third time on 21st April, 2009 when again the petitioner

was found to be indulging in direct theft of electricity and another FIR

lodged against him and theft bill of `95,566/- issued.

7. The counsel for BSES YPL has today stated that the prayer (b) (supra)

in the writ petition has already been granted vide interim order aforesaid.

He states that the said order can be made absolute subject to the outcome of

the various theft cases pending against the petitioner. He further contends

that the relief claimed in prayer (a) of stay of theft cases cannot be granted,

the petitioner having not claimed the quashing of the FIR and the complaint

case in the present proceedings. Similarly, it is urged that the relief in

prayer (c) is contrary to Section 41 of the Specific Relief Act, 1963.

8. It was enquired from the counsel for BSES YPL whether the validity

of a theft bill raised, can be gone into in the civil writ jurisdiction. The

counsel has fairly stated that the same can be, but urges that the present case

entails disputed questions of fact which cannot be adjudicated in the writ

jurisdiction and/or are best left to be decided in the various proceedings

pending. It is stated that same questions are pending adjudication in the

complaint cases filed by the petitioner against the officials of BSES YPL as

also in the theft cases by BSES YPL against the petitioner.

9. The petitioner though had filed the writ petition through an Advocate

and was initially appearing through Advocate, now appears in person. Upon

being asked as to how the factual controversy raised by him can be

adjudicated in this writ jurisdiction, he has referred to Section 56(2) and

contends that demand for electricity charges from the year 2002 onwards, is

barred by time. Though the same does not form the basis of the writ petition

but even otherwise the said contention has no merit. It is his case that no

bills were being raised w.e.f. year 2002. This Court in MCD Vs. H.D.

Shourie 53 (1993) DLT 1 and NDPL Vs. Delhi Bottling Co. Ltd.

MANU/DE/0489/2009 has held that electricity charges do not become

barred by time till the bill therefor has been raised. Else, the petitioner in his

lengthy arguments has raised various arguments of facts. The only legal

argument which can be gathered from his statements is that when BSES

YPL was aware that the meter was faulty, why the meter replacement

procedure as prescribed in Delhi Electricity Supply Code & Performance

Standards Regulations, 2007 was not followed.

10. In the entire narrative aforesaid, what has struck me as odd is that

when BSES YPL on 15th May, 2008 removed the faulty meter and even if it

is believed that the petitioner resisted the installation of the replacement

meter, why action in accordance with law was not taken by BSES YPL

against the petitioner therefor. The booking of the first theft case thereafter

on 2nd July, 2008 thus does appear to be strange. Once BSES YPL on 15th

May, 2008 knew that the faulty meter had been removed and the petitioner

had not allowed installation of new meter and BSES YPL did not take any

steps for installation of new meter and the petitioner continued to reside in

the house, it was obvious that the supply of electricity to the petitioner was

direct. The petitioner could not be expected to have ceased residing in the

house or using the electricity. Similarly, the successive theft cases inspite of

full knowledge of removal of defective meter and non-installation of new

meter do strike me as odd.

11. A theft is shrouded in secrecy and discreet. However, when a

consumer allows removal of a faulty meter and resists installation of a new

one, BSES YPL in the ordinary course ought to have taken steps for

installation of a new meter with the assistance of the police.

12. The pleas of BSES YPL that its officials inspite of removal of

defective meter did not make the electric supply direct and it is the petitioner

who connected electricity directly, after removal of meter and has thus

committed theft is contrary to Regulation 40 which requires BSES YPL to

make supply direct upon removal of defective meter and thus cannot be

accepted. Moreover Regulation 40(c) expressly provides that pending

replacement of meter, a case of direct theft shall not be booked.

13. Since the aforesaid aspect was not brought out during the course of

hearing, the matter was listed on 7th October, 2010 for

directions/clarification. The petitioner did not appear. He could also not be

contacted over the telephone number given. However the query aforesaid

was posed to the counsel for BSES YPL. It was also enquired from the

counsel whether in the circumstances aforesaid, this Court could strike

down/quash the direct theft bills in as much as it was felt that the Roster did

not permit this Court to deal with the FIR and complaint case of direct theft

at the instance of BSES YPL against the petitioner. The counsel for BSES

YPL sought time to respond. However on the next date the counsel for

BSES YPL sought time till 18th October, 2010 to respond and also sought

permission to file a synopsis if necessary on the aforesaid aspects. However

the counsel has thereafter neither rendered any clarification nor filed any

synopsis.

14. In the absence of any reply to the aforesaid clear-cut violation of

Regulation 40 in raising the theft bill on the petitioner, there is no option but

to make an order quashing the theft bills raised by BSES YPL on the

petitioner. The excess amount received by BSES YPL from the petitioner as

a condition to the interim orders for restoration of the electricity supply be

also adjusted in future bills raised by BSES YPL on the petitioner. The

petitioner shall have liberty to approach the Roster Bench with respect to the

FIR and complaint case as aforesaid.

15. The petition is allowed to the aforesaid extent. The petitioner is also

awarded costs of this petition of `20,000/-. The costs be paid within four

weeks of today, failing which the said costs be also adjusted in the future

bills of the petitioners.

RAJIV SAHAI ENDLAW (JUDGE) 4th October, 2010 „bs‟/pp (corrected & released on 25th October, 2010)