Smt. Kanta Sharma vs Bses Rajdhani Power Ltd
2011 Latest Caselaw 1514 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 16th March, 2011

+                                  W.P.(C) 1712/2011

SMT. KANTA SHARMA                                            ..... Petitioner
                Through:                  Mr. Ujjwal K. Jha & Mr. B.P.
                                          Agarwal, Advocates

                                     Versus

BSES RAJDHANI POWER LTD                     ..... Respondent
                 Through: Ms. Anjali Sharma, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    Yes

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

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

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the speaking order dated 27th January, 2011 of

the respondent holding the petitioner guilty of Dishonest Abstraction of

Energy (DAE) and the consequent demand for `2,29,085/-.

2. Since the Division Bench of this Court in B.L. Kantroo Vs. BSES

Rajdhani Power Ltd. 154 (2008) DLT 56 has held that even a consumer is

entitled to approach the Special Court set up under Section 153 of the

Electricity Act, 2003, it is felt that the writ petitions be entertained only in

cases where no factual controversy arises and where the speaking order can

be quashed merely on an illegibility / breach of procedure as borne out

from the speaking order and the other documents of the respondent.

3. Finding that the petition in the present case raises a number of

factual controversies also, it has been put to the counsel for the petitioner

that the matter cannot be permitted to be agitated simultaneously before

two foras i.e. the factual controversy before the Special Court and the legal

questions raised in this Court and the petition would be entertained only if

the petitioner is willing to give up the challenge on factual grounds.

4. The counsel for the petitioner has contended that though factual

ground may also be necessary but it may be examined by this Court

whether the procedure followed in the instant case by the respondent is in

accordance with the Regulations or not. The counsels have been heard on

the said limited aspect, without intending to prejudice the parties in any

manner before the Special Court.

5. The petitioner herein had reported to the respondent of the meter

installed at her premises having got burnt. Upon such complaint, the meter

was replaced and a Meter Replacement Report / Meter Burnt Report dated

3rd September, 2010 prepared. In the said report, no observation has been

made with respect to any of the meter seals having been found broken or

tampered with.

6. The petitioner was served with a notice dated 6th September, 2010

informing that the burnt meter which had been sealed and taken away by

the respondent will be de-sealed in the presence of the petitioner on 21 st

September, 2010. There is no plea as to whether the petitioner reported on

21st September, 2010 or not. No letter also was sent by the petitioner in

this regard. As per the documents furnished to the petitioner, the meter

was tested in the laboratory on 28th October, 2010 and in which report it is

stated that visual observation showed that the top cover of the meter was

found re-fixed and IP terminal was found burnt. It was further reported

that one illegal re- soldering was found on PCB at 12 V AC point and

another at CT6 point. The report accordingly concluded that the burnt

meter had been tampered.

7. The respondent thereafter inspected the premises of the petitioner on

29th November, 2010 and found excess connected load over sanctioned

load and a show cause notice given to the petitioner including with respect

to the report aforesaid of meter testing of the laboratory and which

ultimately resulted in the speaking order impugned in this petition.

8. The counsel for the petitioner at the outset argued that no case for

DAE can be said to have been made out in the present case since under

Regulation 52 of the Delhi Electricity Supply Code and Performance

Standards Regulations, 2007 an inspection has to necessarily precede

booking of a case for theft of electricity.

9. The aforesaid contention is not found acceptable. Accepting the

said contention would tantamount to holding that there can be no case of

theft in the case of a burnt meter. An unscrupulous consumer cannot be

permitted to escape the charge and liability of theft by burning the meter.

If the meter is reported to be burnt, Regulation 40 requires the respondent

to immediately install the new meter and to send the burnt meter for

testing. If on such testing, the respondent finds that the meter has been

burnt to escape charge of theft, certainly a case thereof can be booked.

10. The counsel for the petitioner has next contended that even if the

case for theft were to be booked in pursuance to a burnt meter, the

respondent was required to carry out the test of the meter in the laboratory

in the presence of the petitioner. Reliance in this regard is placed on

Regulations 52(viii) & (ix). It has been put to the counsel for the petitioner

whether the expression "and the same must be handed over to the

consumer or his / her representative at site immediately under proper

receipt" in Regulation 52 (ix) does not mean / refer to the premises of the

petitioner from where the meter is removed. The counsel for the petitioner

however contends that in the case of a burnt meter, the expression "site"

would denote the site where the meter is tested.

11. I am unable to accept the said proposition also. Neither Regulation

52 nor Regulation 40 dealing with burnt meter requires the testing in the

lab to be in the presence of the consumer.

12. The counsel for the petitioner then contends that the testing had to

be necessarily in the presence of the petitioner in as much as a notice

therefor was given. He contends that pursuant to the said notice, even if

the petitioner had not reported for testing on 21st September, 2010, and if

the respondent was not able to carry out the test on that date, another notice

of the fresh date for testing ought to have been given.

13. The counsel for the respondent on the contrary contends that the

notice of testing is given as a part of good practices and without any

obligation in this regard.

14. Once the Regulations are not found to impose any obligation on the

respondent to test the meter in the presence of the consumer and the

consumer fails to avail the opportunity on the date given for testing, the

process cannot be made cumbersome and the condition that no testing can

be carried out without the presence of the petitioner and which may lead to

delays cannot be imposed.

15. The counsel for the petitioner has next contended that in the present

case, the burnt meter was not even sealed in the presence of the petitioner.

He contends that there is nothing to the said effect in the burnt meter /

meter replacement report also. However, this is found to be a question of

fact and which is left to be best adjudicated by the Special Court.

16. The other question which arises is whether it should be the petitioner

who should approach the Special Court, as contended by the counsel for

the respondent, or the respondent should be directed to approach the

Special Court with its case for DAE against the petitioner and the

petitioner should be protected till then.

17. The respondent is required to approach the Special Court only for

enforcement of the civil liability. As far as disconnection for non payment

of the assessment in pursuance of the speaking order is concerned, the

respondent is authorized to carry out the same under the Act and the

Regulations.

18. In my opinion, ordinarily it should be the consumer who if

aggrieved by the speaking order and the demand in pursuance thereto and

if raising factual controversies should approach the Special Court and

claim interim relief against disconnection before the Special Court.

However, in exceptional cases where writ petitions are filed and the

consumers are relegated to the Special Court for adjudication of the factual

controversies, this Court, if finding a strong prima facie case in favour of

the petitioner, can order that the respondent will not exercise the right of

disconnection without approaching the Special Court.

19. The counsel for the petitioner seeks to withdraw the writ petition

with liberty to approach the Special Court and seeks interim protection till

then.

20. The petition is dismissed as withdrawn with liberty to the petitioner

to raise all questions before the Special Court. Subject to the petitioner so

approaching the Special Court on or before 31st March, 2011, the electric

supply to the petitioner shall not be disconnected in pursuance of the

speaking order and demand impugned in this petition till the consideration

of the application of the petitioner for interim relief by the Special Court.

21. It is reiterated that nothing contained herein shall prejudice the

respective contentions of either parties before the Special Court.

No order as to costs.

Dasti.

RAJIV SAHAI ENDLAW (JUDGE) MARCH 16, 2011 „gsr‟