Kiran Mehta vs B.S.E.S. Rajdhani Power Ltd.
2011 Latest Caselaw 158 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 12th January, 2011.

+                                  W.P.(C) 8547/2004

%        KIRAN MEHTA                                             ..... Petitioner
                            Through:      Mr. Inderpreet Singh Josh & Mr. S.K.
                                          Pandey, Advocates.

                                   Versus

         B.S.E.S. RAJDHANI POWER LTD.               ..... Respondent
                        Through: Mr. Sunil Fernandes & Mr. Deepak
                                 Pathak, Advocates.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                      No
         be allowed to see the judgment?

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 respondent on inspection of the property of the petitioner on 2 nd

April, 2004 and as per the Joint Inspection Report of that date, found the

petitioner to be indulging in direct theft of electricity from LV mains bus bar

through different cables. The respondent claims to have raised a direct theft

bill of `3,51,396/- dated 12th April, 2004 on the petitioner and on non-

payment thereof, disconnected the electricity to the petitioner through the

electricity connection in the name of the petitioner with 1 KW load.

2. Aggrieved therefrom the present writ petition was filed for re-

connection of the electricity connection and for quashing of the inspection

report dated 2nd April, 2004.

3. This Court on 31st May, 2004 while issuing notice of the writ petition,

directed restoration of electric supply to the petitioner upon the petitioner

depositing `1,10,000/- with the respondent, subject to further orders in the

writ petition. The said amount is stated to have been deposited and the

electric supply restored. Pleadings have been completed and counsels heard.

4. The counsel for the petitioner has today firstly argued that no notice

for hearing whatsoever was given to the petitioner before making the bill

dated 12th April, 2004 for `3,51,396/-. The counsel for the respondent

contends that the bill being for direct theft, no notice or hearing was required

to be given. Attention in this regard is invited to Regulation 25(v) of the

DERC (Performance Standards Metering and Billing) Regulations, 2002

then in force. The counsel for the petitioner rejoins by inviting attention to

Section 126 of the Electricity Act, 2003. However the said provision deals

with the unauthorized use of electricity and not with a case of direct theft.

Faced with the same, the counsel for the petitioner invites attention to the

"Explanation" to Section 126 which includes use of electricity through a

tampered meter within the meaning of unauthorized use of electricity.

However the case of the respondent against the petitioner is not of use of

electricity through a tampered meter but of the petitioner having been found

to be indulging in direct theft of electricity from LV mains bus bar by means

of a blue colour 7/22 aluminum cable found to be going to the shop of the

petitioner. Thus the provision of Section 126 would not be applicable. The

counsel for the petitioner has not been able to show any other provision

requiring notice/hearing to be given before making the bill for direct theft.

5. The counsel for the petitioner has next contended that since the bill

raises a civil liability on the petitioner, the principles of natural justice

demand that notice/hearing be given. The Legislature however having

provided for an elaborate procedure for different kind of cases and having

not made a provision for notice/hearing in direct theft cases while making

provision for notice/hearing in other kind of cases, the said argument cannot

be accepted. Moreover, in a case of direct theft, a Distribution Licensee is

required to lodge a complaint with the Special Court and the consumer if

aggrieved from the demand is always entitled to challenge the same before

the Special Court. The Division Bench of this Court in Sh. B.L. Kantroo

Vs. BSES Rajdhani Power Ltd. 154 (2008) DLT 56 has also clarified that

even without the Distribution Licensee filing a complaint, the consumer also

is entitled to approach the Special Court. It is thus not as if the consumer

accused of direct theft is without any remedy. The remedy is before the

Special Court constituted for the other purposes or even by way of the writ

petition as done by the petitioner in the present case. The bill therefore

cannot be quashed for the said reason.

6. The counsel for the petitioner has however contended that this Court

by orders dated 21st April, 2005 and 4th November, 2008 in this proceeding

has already reached a conclusion that a notice is required to be given and

had directed the respondent to produce the records to show whether any

notice had been issued to the petitioner or not. It is contended that the said

view having been taken in the earlier orders, now it cannot be held that no

notice is required to be given.

7. The matter was not concluded in the order dated 21 st April, 2005 and

4th November, 2008. Often it happens that on contentions made, directions

are issued. However the same are always subject to the final adjudication

and the Court at the time of final adjudication cannot be bound by stray

observations passed during the pendency of the proceedings before the

Court. The counsel for the petitioner having been unable to establish in law

the requirement of a notice/hearing, cannot peg his case on the basis of the

observations in the orders made from time to time and which observations

are clearly not conclusive.

8. The counsel for the petitioner has next contended that the respondent

has not been able to establish any case of direct theft. It is argued that

though in the inspection report, it is noted that photographs have been taken

but the said photographs have not been produced inspite of directions from

time to time of the Court in these proceedings and imposition of costs on the

respondent for not production of the records. The counsel has argued that

unless the respondent prima facie satisfies this Court of the basis of a case of

direct theft, the petitioner cannot be permitted to face the prosecution or to

pay the bill for direct theft. It is also contended that if the writ petition is

dismissed, the interim order made in this writ petition and pursuant whereto

electricity supply was restored to the petitioner would also disappear and the

petitioner would again be left without electricity, even though the

respondent inspite of directions has not been able to place any material

before this Court of any merit in its case of direct theft against the petitioner.

9. The question whether the inspection report of the respondent is

correct or not, is a question of fact. If this Court was to in this writ petition

hold that no case for direct theft is made out and the bill for direct theft was

to be quashed for the said reason, the same would foreclose the right of the

respondent of proving before the Special Court by cogent evidence the case

if any of direct theft against the petitioner or of genuineness of the

inspection report. This Court in writ jurisdiction cannot allow any such

finality when disputed questions of fact requiring adjudication by

examination and cross-examination of witnesses arises.

10. Insofar as the apprehension of the petitioner, of the petitioner being

again left without electricity in the event of the writ petition being

dismissed, the same can allayed by making an appropriate provision

therefor.

11. The counsel for the respondent states that a complaint has already

been lodged against the petitioner with respect to the aforesaid inspection

and the same is pending consideration before the Special Court. It is stated

that the said complaint is at the stage of pre-summoning evidence.

12. The counsel for the respondent also states that the respondent has

already placed before this Court documents to establish a case of direct

theft.

13. In the circumstances, the writ petition is disposed of with the

directions:-

(i) that as against the demand of the respondent against the

petitioner of `3,51,396/- for direct theft charges, the petitioner till the

disposal of the complaint case, shall be liable to pay only the sum of

`1,10,000/- already deposited with the respondent. If the petitioner is

ultimately held liable for any further amount, the petitioner shall

remain liable to pay the same together with the applicable interest.

(ii) conversely, if the complaint of the respondent is dismissed,

consequently the direct theft bill shall also fail and the petitioner shall

then be entitled to refund/adjustment of `1,10,000/- paid by her

against the said bill together with interest at rate of interest in terms of

Section 154(6) of the Act from the date when the said amount was

deposited by the petitioner with the respondent under orders of this

Court and till the date of refund/adjustment.

(iii) it shall be open to the petitioner, if summoned in the direct theft

complaint to oppose the said claim on all grounds available under the

law.

(iv) the petitioner if so desirous, shall also have liberty to approach

the Special Court impugning the action of the respondent.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 12th January, 2011 bs