Shyam Bihari Singhal vs Bses Yamuna Power Ltd.
2011 Latest Caselaw 1516 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%           Judgment Pronounced on: March 16, 2011

+           CS(OS) No. 1459/2006

SHYAM BIHARI SINGHAL                          .....Plaintiff

                                 - versus -

BSES YAMUNA POWER LTD.                        .....Defendant

Advocates who appeared in this case:
For the Plaintiff: Mr. Fanish K. Jain, Adv.
For the Defendant: Mr. K. Datta with Mr. Diggaj Pathak,
                      Advs.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1.

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

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

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

V.K. JAIN, J (ORAL)

1.          This      is   a   suit   for   declaration   and     permanent

injunction.       The plaintiff is a consumer of the defendant in

respect of connection no. K 623-1321193-IP installed at his

business premises being B-14/7, Jhilmil Industrial Area,

Shahdara, Delhi.

2. The plaintiff had initially got sanctioned load of 17.92

KW but, he later appealed for its enhancement to 50 HP.

Under a voluntary disclosure scheme floated by the defendant,

the plaintiff declared his tampered meter and also deposited

the relevant charges on 26.4.1999. His meter was then

changed in May, 1999. The case of the plaintiff is that the

meter was not sealed by the defendant at the time it was

changed in May, 1999. According to the plaintiff, only paper

seals were put on the meter but they were not properly pasted.

It was claimed by the defendant that at the time of inspection

by its officials on 14th July, 1999, one paper seal was found

uprooted. This however is controverted by the plaintiff whose

case is that in fact, the paper seal was not properly pasted and

it was uprooted at the time of inspection by the officials of the

defendant.

3. It is alleged that during an inspection carried out by

the defendant on 15th May, 1999, the load was found to be

16.608 KW. An inspection was thereafter carried out on 14 th

July, 1999 by the officials of the defendant. According to the

plaintiff, the load found at that time was within the sanctioned

limit but was wrongly shown as 150.643 KW in the inspection

report, without verifying the factual position.

4. It is further stated that a provisional bill of Rs.

48,83,927/- was issued to the plaintiff demanding electricity

charges @ Rs. 4.30 per unit, though it should have been raised

@ Rs. 3.00 per unit. Neither any show cause notice was issued

to the plaintiff before issuing the aforesaid demand notice nor

was he given an opportunity of personal hearing. The plaintiff

has sought a declaration that the inspection report and MT

report dated 14th July, 1999 as also the bill raised by the

defendant are null and void. He has also sought injunction

restraining the defendant from disconnecting electricity supply

o the basis of non-payment of the aforesaid bill.

5. The defendant did not file any written statement and

the right to file its written statement was closed vide order

dated 13th November, 2007.

6. The plaintiff has filed his own affidavit by way of

evidence in which he has supported on oath the case set up in

the plaint. He has stated that on 15th May, 1999, an inspection

was carried out by the officials of the defendant in his presence

and at that time, the connected load was found to be 16.608

KW as would be evident from the report dated 15 th May, 1999.

The report was referred in the affidavit as Exhibit PW-1/9,

though the learned Joint Registrar did not put exhibit mark on

the documents, presumably on account of its being a

photocopy. He has further stated that another inspection was

carried out on 14th July, 1999 and it was alleged by the officials

of the defendant, without verifying the factual position, that the

connected load was 150.643 KW. He has claimed that the

cable installed in his premises cannot bear the load of 150.643

KW. He has further stated that the paper seal on the meter

was exactly in the same position as was left by the officials of

the defendant at the time of inspection, though the officials of

the defendant tried to disturb the seal at the time of inspection

on 14th July, 1999. The plaintiff was cross-examined by the

defendant, but, nothing worthwhile mentioning came out in the

cross examination.

7. Vide order dated 3rd August, 1999, the learned Civil

Judge before whom the matter was pending at that time,

directed the defendant to restore the supply to the premises of

the plaintiff subject to the payment of Rs. 6 lakhs in

installments. The aforesaid amount is stated to have been

deposited and the electricity supply stands restored in terms of

the aforesaid order.

8. Since the defendant has not filed any written

statement controverting the averments made in the plaint, I see

no reason to disbelieve the unrebutted testimony of the

plaintiff. The deposition of the plaintiff coupled with the

perusal of the inspection report dated 15th May, 1999 would

show that at the time of inspection carried out on 15 th May,

1999, the connected load was found to be 16.608 KW which is

well within the limits of the sanctioned load of 17.92 KW.

9. The plaintiff has placed on record the photocopies of

two inspection reports both dated 14th July, 1999. The first

report pertains to the load which was found connected at the

time of inspection and the other is the report of status of the

meter installed in the premises of the plaintiff.

10. Though the inspection report dated 14th July, 1999

indicates the connected load of 16.608 KW, there is absolutely

no evidence on record to prove that the load found connected

on that date was more than the load which was sanctioned to

the plaintiff. The case of the plaintiff, as stated earlier, is that

the officials of the defendant recorded connected load of

150.643 KW without factual verification and the cable provided

on his premises cannot bear that much load. The onus was on

the defendant to prove, by leading evidence or by admission of

the plaintiff, that the load found actually connected on 14 th

July, 1999 was 150.643 KW. In the absence of any such

evidence or admission, I see no reason to disbelieve the

deposition of the plaintiff in this regard and held that

connected load on 14th July, 1999 was not 150.643 KW.

11. A perusal of the inspection report dated 14th July,

1999 also indicates that the paper seals passed by the zonal

staff on 21st May, 1999 on middle of the MS box of CT and CT

meter was found removed from the meter side. It further

indicates that on account of removal of the aforesaid paper

seal, the doors of CT and CT meter box are easily openable

without harming the paper seal and hence the CT as well as

process wire were accessible. No evidence has been led by the

defendant to prove the alleged removal of the paper seals.

According to the plaintiff, at the time of inspection on 14 th July,

1999, the paper seals were in the same condition in which they

were put by the officials of the defendant. In the absence of

any rebuttal by way of evidence from the defendant, I see no

reason to disbelieve the testimony of the plaintiff in this regard

and hold that the defendant has failed to prove that the

plaintiff had removed the paper seal from meter site as

recorded in the inspection report dated 14th July, 1999.

12. Even if it is assumed that the paper seal on the meter

box was removed by the plaintiff, as claimed in the inspection

report dated 14th July, 1999, that by itself and without

anything more does not prove any unlawful extraction of energy

by the plaintiff since no evidence of actual tampering with the

meter or even removal of the meter seal was found. This is also

not the case of the defendant that the wire supplying electricity

through the meter had been snapped before it reached the

meter and thus, the electricity was being consumed directly

without routing it through the meter. There is no allegation

that the meter glass was found broken or damaged. In fact,

there is no allegation of any artificial device having been used

at any point of time.

13. In order to prove the alleged unlawful abstraction of

energy, it was not sufficient for the defendant to prove that the

paper seals fixed by its officials were found removed by the

consumer. The defendant was required to prove by some other

evidence such as use of a check meter that the consumption

being recorded by the meter was found to be less than the

actual energy consumed by him. One possible method of theft

of electricity can be by tampering with the meter or its

mechanism so as to slow down the recording of consumption

by it. Another method can be to use an external device, which

enables abstraction of electricity, in such a manner that the

supply is not routed through the meter. Yet another method

can be abstracting energy directly from the main lines. Of

course, these methods of unlawful abstraction of energy are

only illustrative and not exhaustive the lawful abstraction of

energy can in certain cases be also indicated by study and

analysis of consumption pattern of the consumer. In a given

case, it can be shown that the consumption found recorded by

the meter was much less than what it ought to have been,

considering the capacity of the equipments installed and being

used by the plaintiff in his premises and the working days and

working hours for which these equipments were used, provided

that it is not a case of the meter being defective. No such

attempt was however made by the officials of the defendant at

the time of inspection on 14th July, 1999 or even thereafter.

14. In a case where no tampering with the meter or the

seals affixed on it is found and no external device is found

being used by the consumer, mere removal of the paper seal

fixed on the meter box would not, in my view, be sufficient to

prove unlawful abstraction of energy and in any case would not

disclose the quantum of the energy actually stolen.

15. In Jagarnath Singh v. H. Krishna Murthy & Anr.,

AIR 1967 SC 947, which was a case of prosecution under

Section 39, Indian Electricity Act, 1910, Supreme Court was

considering a case where the meter was installed in a dark

corner and passage to the meter had certain obstructions. It

was also found that by inserting a wire through the stud hole,

the movement of the meter which registers the consumption of

electric energy could be affected in a way as to either totally

prevent the rotating or slow down its movement, as a result of

which, there could be consumption of electric energy without

payment for the same. Supreme Court held that existence of

such tampered meter does not amount to such artificial means

for abstraction of electricity so as to make it an offence under

Section 39 of the Act. The Court also referred to its earlier

decision in Jagannath Singh v. Ramaswamy AIR 1966 SC

849, wherein it was observed that a meter with an exposed

stud hole was not a perfected instrument for unauthorized

taking of energy and could not be regarded as an artificial

means for its abstraction.

In the case before this Court, no artificial device for

abstraction of energy was found installed at the time of

inspection on 14th July, 1999 and no gap was found in the

meter whereby a wire/some other device could be inserted

inside, so as to obstruct the functioning of the rotator.

17. In Ramesh Chander v. State, 1997 (42) DRJ, which

again was a case for prosecution under Section 39 of the

Electricity Act, this Court observed that mere existence of

tampered meter is not enough to attract the provisions of

Section 39 of the Act and there was no presumption of

dishonest abstraction, consumption or use of electric energy on

discovery of tampered meters. The Court was of the view that

the presumption under Section 39 will arise if artificial means

were employed to abstract, consume or use energy. In taking

this view, this Court relied upon the decision of the Supreme

Court in Ram Chandra Prasad Sharma and others v. State

of Bihar and another AIR 1967 SC 349, wherein it was held

that the presence of a perfected artificial means which would

render abstraction of energy possible has to be established by

the prosecuting agency.

18. In Swaran Dhawan v. State (NCT of Delhi), 99

(2002) DLT 416, which was also a case for prosecution under

Section 39 of the Electricity Act, it was found that half seal on

the meter was fictitious. It was held that this by itself does not

lead to an inference that the electricity was being stolen from

the meter. It was held that the burden was on the licensee i.e.

Delhi Vidyut Board to prove that the electricity was being

abstracted, consumed and used by the consumer and the

consumer had dishonest intention to do so, though in the event

an artificial means or device is found which is used or

facilitates abstraction, consumption of energy which is not

authorized by DVB for drawing electricity, the burden of proof

shifts on the consumer to prove to the contrary.

19. In Jagdish Narayan vs. North Delhi Power Ltd. &

Anr., 140 (2007) DLT 307, this Court relying upon the

decision of the Supreme Court in Jagannath Singh (supra) held

that automatic presumption of DAE on the basis of the external

symptoms of tampering together with the analysis of the

consumption pattern would not be a safe and error free method

and some other tangible evince must be shown to exist. This

Court was of the view that an accu check meter can be

deployed to find out if the meter is in fact recording lesser units

and that analysis of the consumption pattern being merely

corroborative, would not by itself be substantive evidence.

In the case before this court, the defendant did not

make an attempt even to study the consumption pattern of the

plaintiff to find out whether consumption of electricity by him,

after restoration of electricity pursuant to the interim order

passed on 3rd August, 1999, had increased. Had that been

done and had the consumption being found substantially

higher, that could have given some indication that the meter

was not correctly recording the consumption of electricity at the

time of inspection on 14th July, 1999, though that by itself

would not have been a clinching factor and would have only

been one of the circumstances indicating possibility of unlawful

abstraction of energy.

20. In Udham Singh v. BSES Rajdhani Power Ltd., 136

(2007) DLT 500, during the course of inspection, it was found

that CT and meter box combined seals were found missing. On

6.10.2002, the petitioner's premises were inspected and it was

found that the paper seals which were pasted on the Meter box

were intact. It was endorsed that the paper seals which were

pasted on the meter box had been removed and the fresh seals

were duly signed. Those seals were removed by the staff of the

licensee and were replaced by fresh seals. No irregularity was,

however, found. Another inspection was carried out on 24 th

March, 2004. At that time, the meter was running in the right

direction, the meter half seals were observed to be unnumbered

and it was reported that the meter was running fast by 5.30%.

A third inspection was held on 1.12.2004. On this occasion,

the inspection team stated that the CT and Meter Box

combined seals were found missing. After giving show cause

notice to the consumer, an order was passed by the AO of

BSES on 17th December, 2004, referring to the inspection dated

1st December, 2004, the consumption pattern indicated that

average recorded consumption to be 1119.84 units per month,

which was found to be 19.95% of the assessed consumption.

Holding the consumption to be low, dishonest abstract of

energy was held to be established.

During the course of judgment it was observed by this

court that the mere circumstance that CT box meter was

missing itself could not lead to conclusive proof of tampering or

dishonest abstraction of energy. With respect to consumption

pattern, considering the explanation given by the consumer, it

was observed that the consumption pattern being derivative,

and not on the basis of the actual consumption by use of

scientific principles or better tools, more accurately deducing

the actual consumption of electricity led to the inference that

the meter was slow but the meter was not checked for accuracy

or defects nor were any material disclosed to that effect. The

Court was of the view that in absence of any collateral

materials or conclusive proof about the dishonest abstraction of

energy, mere existence of an irregular seal could not have

justified such findings.

22. In Bhasin Motors (I) P. Ltd. v. NDPL, 142 (2007)

DLT 116, it was found during inspection that the upper seal of

the meter box had been tampered. The cover seals were found

to be missing. The court was of the view that the aforesaid

signs are best helpful to suspect the dishonest abstraction of

energy but cannot be taken to be conclusive evidence.

23. In order to succeed, the defendant was required to

establish that the actual consumption of electricity by the

plaintiff was more than what was recorded in the meter and it

was further required to prove on the basis of some rationale

and scientific formula the amount of energy consumed by the

plaintiff without its being recorded in the meter. For the

reasons given in the preceding paragraphs, I have no hesitation

in holding that since the defendant has failed to produce any

evidence to prove that the actual connected load on 14 th July,

1999 was 150.643 KW has not at all established any unlawful

abstraction of energy and further has also failed to show how

and on what basis the demand raised in the bill marked as

Exhibit PW-1/10 for Rs. 48,83,927/- has been arrived at. The

impugned demand, therefore, cannot be sustained and the bill

raised by the defendant is accordingly liable to be quashed.

24. The impugned bill demanding Rs. 48,83,927/- from

the plaintiff is hereby quashed and the defendant is restrained

from disconnecting the electricity of the plaintiff on account of

non-payment of the aforesaid bill. It is made clear that this

order will not come in the way of the defendant disconnecting

the electricity supply to the plaintiff for non-payment of some

other dues or on account of some other valid reason.

25. The amount of Rs. 6 lakhs which the plaintiff had

deposited in compliance of the interim order dated 3 rd August,

1999 shall be refunded back to him within 8 weeks.

26. The decree sheet be drawn up accordingly.

(V.K. JAIN) JUDGE MARCH 16, 2011 Sd