H.C. Jain vs B.S.E.S Yamuna Power Ltd.
2011 Latest Caselaw 514 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No.60/2011

%                                                     28th January, 2011


H.C. JAIN                                                      ...... Appellant

                                 Through:     Mr. Manoj V. George & Mr. Alex
                                             Joseph, Advocates.


                           VERSUS

B.S.E.S YAMUNA POWER LTD.                                ...... Respondent
                                 Through:    Mr. Diggaj Pathak, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not? Yes

    3.   Whether the judgment should be reported in the Digest? Yes


VALMIKI J. MEHTA, J (ORAL)

CM No. 1860/2011 (condonation of delay)

         Delay of 3 days in filing the appeal is condoned.

         Application stands disposed of.

CM No.1861/2011 (condonation of delay in re-filing the appeal)

         There is an unexplained delay of 175 days in re-filing the appeal.

Ordinarily I would not have condoned the delay in re-filing, however, since I

have heard the matter on merits, the delay is condoned.


RFA-60/2011                                                               Page 1 of 5
       Application stands disposed of.



RFA No.60/2011

1.    The challenge by means of this first appeal under Section 96 of the

Code of Civil Procedure 1908 is to the impugned judgment and decree dated

23.2.2010 whereby the suit of the appellant/plaintiff against the respondent

for electricity disconnection was dismissed, and in which suit, basically the

plaintiff sought quashing of the bill issued on the basis of inspection dated

4.2.2000 whereby it was the stand of the respondent that the appellant was

indulging in fraudulent abstraction of electricity.

2     The trial court in the impugned judgment has recorded that it is the

plaintiff who came to the court and alleged that there was no theft of

electricity.    The stand of the respondent was that there was theft of

electricity from the subject meter because it was found that the meter-glass

was removed and a foreign adhesive was found fixed on the lower side of the

meter-glass and there was created a gap for insertion of a foreign object

inside the meter to manipulate the consumption.

               If the case of the appellant/plaintiff was that the facts as stated

in the inspection report dated 4.2.2000 were not correct, it was always open

to the appellant/plaintiff to have made an application during the trial of the

suit, to send the meter to the appropriate laboratory, and whose report

would have shown whether the case of theft of electricity on account of the


RFA-60/2011                                                              Page 2 of 5
 alleged facts was made out or not. During the course of arguments, I put it

to the counsel for the appellant whether any such application was moved

and to which counsel for the appellant conceded that no such application

was filed.     Therefore, the appellant as the plaintiff failed to discharge the

onus upon him.

3        The trial court has also noted that the challenge to the connected load

of 80.022 KW which was found in the premises has been disputed by the

appellant only by his self-serving statement in his deposition, however, the

appellant did not file on record any bills of the machines to show what was

the   load     of   such   machines.   Trial   court   also   has   found   that   the

appellant/plaintiff in fact did not dispute the number of machines and that

neither in the plaint nor in the deposition of the appellant, it was stated that

what was the load which was found in excess on the date of the inspection.

4.       This court can interfere with the findings of the trial court, only if, the

findings and conclusions are illegal or perverse. I do not find any illegality or

perversity in the impugned judgment which has dismissed the suit of the

appellant/plaintiff.

5        Learned counsel for the appellant argued two main points before this

court.     The first point was that there was another meter in the same

premises in the name of one Sh. Suresh Goel, (i.e. is not in the name of the

appellant) but it was the appellant who was actually using the electricity

through that meter, and since, no theft of electricity was found against the


RFA-60/2011                                                                  Page 3 of 5
 other meter which was also inspected on the same date, therefore, the

appellant should be held to be not guilty of theft of electricity through the

subject meter though which was a separate meter.

              I have totally failed to understand this argument raised because

it is not understood as to how if there is found a theft of electricity through

one meter, the consumer should be exempted from such charge of theft of

electricity merely because there is no theft of electricity found with respect

to another meter which is found to supply electricity in another portion of the

premises.

6     The second argument which was sought to be raised by the learned

counsel for the appellant was that before inspection is done by the electricity

authority, notice ought to have been given to the consumer under Section

26(4) of the Electricity Act, 1910, Firstly, I doubt whether this Act would at all

apply in view of the provisions of Section 185(2) (a) of the Electricity Act,

2003, however, even if, such provision is held to be applicable and is applied

to the facts of the present case, I do not find how that provision will assist

the appellant in any manner because the provision of Section 26(4) deals

with removing of a meter by the electricity authority and it requires that

before removing the electricity meter, on which theft is alleged notice must

be given before removal of the meter. This however is not the issue in the

present case, because what has been argued on behalf of the appellant is

that before conduct of the inspection, notice ought to have been given. This


RFA-60/2011                                                              Page 4 of 5
 provision relied upon on behalf of the appellant does not provide that any

notice has to be given prior to the inspection. Also, in the opinion of this

court it would be very absurd to suggest that consumers against whom theft

is apprehended must first be given notice before their premises are

inspected, because, if a notice is required to be given to a recalcitrant

consumer obviously such a consumer will try to do away with all the

evidence of theft if prior notice is given to him. There is also therefore no

merit in this second argument raised on behalf of the appellant.

7     No other point or issue was urged before this court.

8     In view of the above, I do not find any error in the impugned judgment

and decree. The appeal is therefore dismissed leaving the parties to bear

their own costs.


JANUARY 28, 2011                                VALMIKI J. MEHTA, J.

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