Bses Rajdhani Power Ltd. vs Rajwant Singh
2011 Latest Caselaw 2416 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment reserved on : 28.04.2011
                                 Judgment delivered on : 05.05.2011


+                  R.S.A.No. 84/2007 & CM No. 4113/2007

BSES RAJDHANI POWER LTD.                         ...........Appellant
                  Through:            Mr. Samrat Nigam, Advocate.

                   Versus

RAJWANT SINGH                                    ..........Respondent
                          Through:    Mr. Varun Hans, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    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

INDERMEET KAUR, J.

1 This appeal has impugned the judgment and decree dated

17.01.2006 which had endorsed the findings of the trial Judge

dated 30.11.2004 whereby the suit filed by Rajwant Singh seeking

mandatory injunction directing the defendant to restore the

electricity supply i.e. connection bearing No. K 1245516

(hereinafter referred to as the „subject connection‟) installed in

the name of the plaintiff at D.16, Santgarh near Tilak Nagar, New

Delhi (hereinafter referred to as the „suit premises‟) had been

decreed in his favour.

2 The case of the plaintiff is that he is the sole proprietor of

M/s Universal Enterprises the factory which he was running at the

suit premises. He obtained a 10 HP connection in 1995. He had

been using this sanction load for his commercial purposes. The

plaintiff in terms of the offer of the defendant for additional load

had applied for it and deposited a sum of `28,520/- for an

additional load of 30 HP; inspite of the plaintiff having completed

all formalities, the load was not enhanced. The last bill raised

upon the plaintiff was of `26,926/- which was also paid; in fact all

bills have been paid. On 11.04.1997 without any prior show cause

notice, the electricity of the plaintiff was suddenly disconnected;

he had no option but to come to the court. Suit was accordingly

filed.

3 In the written statement, it was stated that the suit is not

maintainable. It was stated that the suit property had been

inspected by the zonal staff of the defendant; seals of the existing

meters were found to be fictitious and tampered with; this was a

fraudulent abstraction of energy (FAE); electricity supply of the

plaintiff was disconnected forthwith in these circumstances;

personal hearing under the orders of the Court had also been

granted to the plaintiff on 03.02.1997.

4 From the pleadings of the parties, the following four issues

were framed:-

1. Whether DVB conducted illegal inspection on and raised illegal demand of `4,25,491.25? OPP

2. Whether plaintiff is entitled to decree of mandatory injunction? OPP

3. Whether plaintiff has not approached the court with clean hands? OPD

4. Relief.

5 Thereafter an additional issue was also framed. It reads as

under:-

"Whether the DVB conducted illegal inspection and raised illegal demand of `4,25,491.25?OPP"

6 On the basis of oral and documentary evidence, the trial

Judge was of the view that the inspection conducted by the

department on 11.04.1997 was in accordance with law; the

demand raised was also not illegal. However relying upon a

judgment of Delhi High Court reported in 55 (1994) DLT 701

Sukhbir Singh Vs. MCD since show cause notice had not been

issued prior to disconnection of electricity, disconnection was held

to be bad in the eye of law; direction was accordingly given to the

department to restore the electricity connection of the plaintiff.

7 This judgment was endorsed in the first appeal.

8 On behalf of the appellant, it has been urged that the

judgment of Sukhbir Singh had been misconstrued by the court

below; it has no application. Reliance has been placed upon AIR

1996 SC 2258 M.P. Electricity Board, Jabalpur & Others Vs. Harsh

Wood Products and Another as also another judgment of the Apex

Court in AIR 1998 SC 1715 M/s Hyderabad Vanaspathi Ltd. Vs.

Andhra Pradesh State Electricity Board & others to substantiate

his submission that disconnection of supply by the officers of

Board on suspicion or malpractice by the consumer without a

show cause notice is not violative of Article 14 of the Constitution;

it is not an illegality; show cause notice is not required.

9 This is a second appeal. It has been admitted and on

19.03.2007, the following substantial question of law was

formulated. It reads as under:-

"Whether in a case of fraudulent abstraction of electricity or in case of pilferage in terms of case reported in M.P. Electricity Board Vs. Harsh Wood Product, AIR 1996 SC 2258, supply of electricity could be disconnected without giving any show cause notice?"

10 Record has been perused. The case of the plaintiff as is

evident from the record is that this is a case of fraudulent

abstraction of electricity (FAE) i.e. a case of pilferage. It is not in

dispute that there are two cases of theft; one is of FAE and the

second is a case of direct theft (DT). This case falls under the first

category. In the judgment of M.P. Electricity Board (Supra) the

Supreme Court while dealing with the provisions of Section 24 of

the Electricity Act, 1910 it had held as under:-

"8. The learned counsel for the respondent placed strong reliance on Section 24 of the Indian Electricity Act, 1910 which contemplates seven days‟ notice before disconnection. Section 24 does not apply to demand on detection of pilferage. It would apply to a case of regular supply made and prior demand for payment of electricity charges with a notice of seven days to be made and for failure to pay within the given time, after expiry of seven days; the appellant as a licensee would get the right to disconnect the supply of electrical energy. It would thus be seen that disconnection will be in the course of regular supply of electricity for non-payment of the usual bills but not to any demand after detection of pilferage."

It had also examined the provisions of Section 49 read with

Section 79 of the Electricity (Supply) Act 1948. Section 31 (3) was

also adverted to and noted hereunder as:-

"7. A reading thereof clearly indicates that the appellant-Board, when it defects that any consumer had committed any malpractice with reference to his use of electrical energy including authorized alternations to installations, unauthorized extension and use of devices to commit theft of electrical energy, may, without prejudice to its other rights, disconnect the supply of electricity forthwith and may call upon the consumer to make payment for compensation of the unauthorized use of electricity which is now stated to be a theft of electricity."

11 In the judgment of M/s Hyderabad Vanaspathi Ltd.(Supra)

the Apex Court had again had the occasion to deal with the

provisions of Section 49 of the Electricity (Supply) Act (54 of

1948). It had noted that the Terms and Conditions of Supply had

been notified on 20.10.1975; these were pursuant to the powers of

the Board under Section 49 of the said Act. In terms of Clause 39

which defines a „malpractice‟; this clause enables officers of the

Electricity Board to disconnect the service of a consumer on a

suspicion or malpractice; this clause was neither violative of the

Supply Act, 1948 and nor violative of Article 14 of the

Constitution.

12 The judgment of the Sukhbir Singh on which reliance has

been placed by the two courts below was in a different context. In

this case, demand notice had been issued to the consumer on the

basis of an inspection report; it was a case where additional load

had been applied for; the application for additional load was

pending; it had not actually been granted; the court was of the

view that before demand notices are issued, a detailed show cause

notice should have been given to the petitioner as to the manner

in which this demand had been arrived at. Ratio is inapplicable.

13 Counsel for the appellant has also placed reliance upon the

guidelines of the DVB-Handbook of Procedures which have a

guiding force. Rule 22.B.1 deals with the detection of theft/

pilferage of electricity. Rule 22.B.4 contains the procedure of

conducting raids and inspection. Sub Rule (iii) reads as:

"(iii) The inspecting team would prepare a joint inspection report giving the detailed observations of the connected load, sealing position, working of meter and probable cause/modus-operandi for establishing theft of energy. The supply in all cases of theft (except direct cases of theft) covered in the following para shall be disconnected forthwith after obtaining approval of GM(E). Under general conditions of application of the tariff schedule wherever there are reasons to believe fraudulent use/theft of electricity the supply shall be disconnected forthwith without notice to the consumer/defaulter. This should be followed by lodging a FIR with the police."

14 Learned counsel for the appellant has submitted that the

approval of the GM (E) is always with the inspecting team when it

goes to conduct an inspection; this submission has not been

refuted by the respondent.

15 This Rule thus enables the inspecting team to disconnect the

electricity forthwith without a notice to the consumer whether

there are reasons to believe that there has been a fraudulent

abstraction or a theft of electricity.

16 The defendant in his written statement had contended that

on inspection of site, the meters had been found tampered. PW-1

had also in his deposition admitted that the inspection of his

premises had been conducted on 11.04.1997. The trial Judge had

while disposing of issue No. 2 returned a positive finding that the

inspection was legal and the demand raised upon the plaintiff was

also legal. This has also been endorsed in first appeal. This finding

has not been challenged. It has since attained a finality. The suit

of the plaintiff had however been decreed only for the reason that

a show cause notice should have been given to him before his

electricity supply was disconnected and for this proposition

reliance has been placed upon the judgment of Sukhbir Singh

(Supra).

17 As noted in the discussion hereinabove, the judgment of the

Sukhbir Singh had no application. Rule 22.b.4 permits the Board

to forthwith disconnect the electricity supply without notice to

him if it is a case of fraudulent abstraction of energy (FAE). This

was one such case. The Apex Court in M.P. Electricity Board

(supra) had endorsed this view; show cause notice was not

necessary.

18 The judgment relied upon by learned counsel for the

appellant reported in AIR 1992 Delhi 228 Kuldeep Singh Dhingra

vs. Municipal Corporation of Delhi and others is inapplicable. In

this case the Court had examined the provision of Clause 36 of the

Delhi Electric Supply Undertaking (Conditions of Supply), wherein

it had held that it would be inconsistent with the scheme of clause

36 to hold that before issuing a show cause notice the undertaking

must hold a hearing; authorities are not enjoined to consider the

representations made by the aggrieved persons before issuance of

the show cause notice. This judgment has no application to the

factual scenario.

19 It is also relevant to state that the plaintiff in this case had

laid no challenge to the demand raised upon him; his only prayer

in the plaint was for the restoration of the electricity which had

been disconnected after the inspection of 11.04.1997. On the last

date counsel for the plaintiff/respondent had also made a

statement that 50% of the provisional bill of about `2 lac & odd

has been deposited. Counsel for the appellant had verified this

position; it was categorically stated that not a single paisa has

since been paid by the respondent; to which the respondent has

no answer. The respondent is enjoying the electricity under the

interim orders of this Court but admittedly he has not paid even

the admitted user charges. Such a consumer deservers little

sympathy. Impugned judgment had even otherwise is perverse; it

calls for an interference.

20 For all the aforestated reasons, the impugned judgment is

liable to be reversed. Appeal is allowed. Suit of the plaintiff is

dismissed.

INDERMEET KAUR, J.

MAY 05, 2011 A