N.D.P.L vs Bhasin Motors Pvt. Ltd.
2013 Latest Caselaw 328 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment reserved on: 17.01.2013
                            Judgment pronounced on: 21.01.2013
+       LPA No.1082/2007 & CM 9601/2007
        N.D.P.L                                     ..... Appellant
                              Through :   Mr. Sudhir Nandrajog, Sr. Adv.
                                          with Mr. Vikram Nandrajog and
                                          Mr. Sushil Jaiswal, Advs.
                     versus

        BHASIN MOTORS PVT. LTD.                            ... Respondent
        Through :                         None


        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1. An electricity connection with sanctioned load of 83 KW for

industrial purposes was installed in property No. 56-B, Army Road,

Najafgarh Industrial Area, Delhi, where the respondent was carrying its

business. On 11.09.2004, some officials of the appellant carried out

inspection of the premises of the respondent and found that:

(i) Upper seal of the meter box had been tempered.

(ii) Cover seals were missing and

(iii) There were scratches on the dial plate.

According to the appellant, the inspection report concluded that the

respondent was indulging in Dishonest Abstraction of Electricity (DAE).

A show cause notice was issued to the respondent on the same date and

after giving hearing to the respondent, a speaking order was passed on

30.09.2004 confirming the DAE.

2. WP(C) 173031/2004 was filed by the respondent during the

pendency of the proceedings initiated by issuing of show cause notice.

The writ petition was disposed of vide order dated 1.11.2004 and the

order dated 30.9.2004 was quashed on the ground that it had been passed

without giving opportunity of hearing to the respondent. Consequent to

the aforesaid order, the respondent was given afresh hearing on 4.11.2004

and another speaking order dated 11.4.2004 was passed concluding that

DAE was established. The respondent filed WP(C) 18328/2004

challenging the inspection report and the bill of Rs.1558955, which the

appellant had raised on account of respondent indulging DAE. The

learned Single Judge vide impugned order dated 21.05.2007, allowed the

writ petition and quashed the order dated 11.11.2004. The appellant was

directed to refund the amount which the respondent had deposited

pursuant to an interim order passed by learned Single Judge on

30.11.2004, along with interest on that amount at the rate of 12% per

annum. Being aggrieved, the appellant is before us by way of this appeal.

3. A perusal of inspection report dated 11.92004, would show that the

inspection was carried out in the presence of the representative of the

respondent company and the show cause notice issued on the spot, on the

basis of the aforesaid inspection, was signed by him. The very same

person appeared on behalf of the respondent, at the time of personal

hearing. The reply submitted by the respondent to the showcause notice

dated 12.9.2004 contained absolutely no explanation as to how the upper

seal of the meter box, had been tampered, cover seals were missing and

the scratches were found on the dial plate. This was not the case of the

respondent, in the reply to the show cause notice, that the meter box seals

got tampered and cover seals went missing during the course of reading

of the meter by the Meter Reader of the appellant. In any case, had that

been so, the respondent would have brought the same to the notice of the

appellant and would have got fresh seals affixed on the meter box as well

as the cover cover. In the absence of any explanation from the

respondent, the inevitable and logical inference would be that of

tampering of the meter box seal, removal of cover seals and scratches on

the dial plate are attributable to the respondent alone. As per DERC

Regulations, the responsibility of keeping the meter under safe custody is

of the consumer who has to use all reasonable means in his power to

ensure that no seal/ meter is broken/ tampered with, otherwise other than

by the licensee. Since the respondent neither did bring any tampering of

the seal of the meter box, removal of seals of cover and scratches on the

dial plate to the notice of the Meter Reader nor did it later on bring it to

the notice of the appellant with a request to put fresh seals and change the

dial plate, it would not be unreasonable to conclude that the purpose of

removal of these seals was to indulge in unlawful abstraction of the

energy.

4. As per Regulation 25(ii) of the Delhi Electricity Regulation

Commission (Performance, Standards, Metering and Billing)

Regulations, 2002, the inspecting team was required to prepare a report

giving details such as connected load, condition of seal, working of meter

and mention any irregularity noticed, as per the prescribed format. As per

Sub-Regulation (iii), the report is to clearly indicate whether conclusive

evidence substantiating the fact that energy was being dishonestly

abstracted was found or not. The details of such evidence is required to be

recorded in the report and it is also to bring out whether the case was

being booked for direct theft or DAE. Sub-Regulation (iv) provides that

no case for DAE shall be booked only on account of one seal on the

meter missing or tampered or breakage of glass window etc. unless

corroborated by consumption pattern of consumer as per Regulation 26

(ii) and such other evidence as may be available. Regulation 26(ii)

provides that before the personal hearing, the officer of the licensee shall

analyse the case, after carefully considering all the documents,

submissions by the consumer, facts on record and the consumption

pattern, wherever available. The licensee is required to assess the energy

consumption for past six months as per the Tariff Order. In case of

suspected DAE, if consumption pattern for last one year is reasonably

uniform and is not less than 75% of the assessed consumption where

meter is less than 10 years old and not less than 65% of the assessed

consumption where meter is more than 10 years old, no further

proceedings can be taken.

5. A perusal of speaking order dated 11.11.2004 would show that

consumption pattern of the respondent for the period 3.7.2004 to

11.9.2004 was analyzed and the average recorded consumption during

this period was found to be 6022.32 units per month. The case of the

respondent before the officer of the licensee was that the premises in

question was being used by it as a Maruti Authorized Centre from

February, 2000 to December, 2002 and, therefore, the consumption was

higher during that period. The officer of the appellant analyzed the

consumption during the aforesaid period and found that it was 4977.28

units per month. He, therefore, found the contention of the respondent to

be quite contradictory because the consumption recorded during the

period the premises was being used by Maruti Service Centre was less

than the consumption recorded during the period the premises was used

by the respondent. The officer of the appellant also analyzed the

consumption for the period prior to purchase of the aforesaid property by

the respondent in June, 1999 and found that the recorded consumption

during that period was 20400.68 units per month.

6. The seal of a meter can be tampered with only by intervention of a

human being and not otherwise. Similarly, the seals cannot go missing of

their own and are necessarily removed by a human being. Likewise,

there can be no scratches on the dial unless an attempt is made to interfere

with the functioning of the meter. Since as per Sub-Regulation 17(iv) the

responsibility of keeping the meter under safe custody lie with the

consumer and as per Regulation (vii) during any inspection or on

consumer complaint or suo moto, the licensee is required to ensure that

the meter is not tampered/bypassed, it was for the respondent to explain

how the meter box seal got tampered, cover seal went missing and

scratches came on the dial plate.

7. In our view, if the seals and/or meter are found tampered and no

plausible explanation for such an act is forthcoming from the consumer,

that would be sufficient evidence to conclude dishonest abstraction of

energy by the consumer in terms of Regulation 25(iii), provided

tampering with the meter and/or seal is detected in the presence of the

consumer or his representative and the details thereof are recorded in the

report prepared at the spot in the presence of the consumer or his

representative as the case may be.

8. In view of the provisions contained in Regulation 17(iv), even after

conclusive evidence substantiating DAE in terms of Regulation 17(iii) is

found, no case can be booked only on the ground of one seal on the meter

missing or tampered or brokage of glass window unless it is corroborated

by the consumtion pattern of the consumer in terms of Regulation 26(ii).

During the course of hearing, in terms of Section 26(ii), it is upon the

consumer to satisfy the officer of the licensee, on the basis of the record

available with him, that his actual consumption could not have been more

than what was recorded by the meter. The appellant has applied LDLF

formula for the purpose of anylyzing of the consumption pattern of the

respondent. This is the only methodology prescribed in the tariff. Such

formula assumes working only for ten hours, in 25 days of the month,

utilizing 60% of the existing load. It was very much upon the respondent

to produce the evidence available with it to show that it was working for

less than 10 hours a day or 25 days a month or was utilizing less than

60% of the existing load. The evidence could have, inter alia, been in the

form of details, including power consumption of the gadgets installed in

the premises of the respondent, the number of persons employed during

the relevant period, the hours during which the equipment were used and

the employees were working, and the number of working days in the

establishement. No such attempt, however, was made by the respondent.

Since the actual evidence with respect to working hours of the factory,

the days on which the work was done in the factory and the load which

was connected at that time are the facts which are only in the knowledge

of the consumer, if the consumer withholds such evidence, the licensee

would be justified in assessing the consumption of the consumer in terms

of LDHF Formula. In any case, the formula applied by the appellant doest

not take into account the whole of the installed load, all the days of the

month and two shifts in a day.

9. The learned Single Judge held that LDHF Formula cannot be

applied without first establishing that there was a DAE because the

formula is meant only to determine the quantum of penalty which is

required to be levied in terms of Regulation 26(ii). In our opinion, the

tampereing of the seals and/or the meter by itself would be conclusive

evidence substantiating unlawful abstraction of energy in a case where no

acceptable explanation is given by the consumer for the seals and/or the

meter having been found tampered with. Taking any other view would

make it extremely difficult to establish unlawful abstraction of energy by

dishonest consumers.

During the course of arguments, we specifically asked the learned

counsel for the appellant as to how unlawful abstraction of energy was

possible in a case of this nature and he explained that if the seals are

tampered in the manner found in this case, it is possible for the consumer

to temporarily stop running of the meter so as to avoid recording of

consumption of electricity, during the period the meter does not run.

According to the learned counsel, the consumer can, as and when he so

desires, resume running of meter so that at the time of inspection by the

officials of the licensee, the meter is found running. We, therefore, need

to take interpretation which would discourage such dishonest practices on

the part of unscrupulous consumers of electricity.

10. Reliance by learned Single Judge on the decision of the Supreme

Court in Jagannath [email protected] Jainath Singh Vs. B.S. Ramaswamy &

Anr.[(1966) 1 SCR 885), is misplaced since that was a case of

prosecution under Section 39 and 44 of Indian Electricity Act, 1910

whereas the case before us is a civil case, challenging the demand raised

by the licensee on account of dishonest abstraction of energy. The

standard of proof required in a criminal trial is proof beyond reasonable

doubt, whereas the standard of proof required in a civil action is

preponderance of probabilities.

11. For the reasons stated hereinabove, we are of the view that the

impugned order dated 21.5.2007 cannot be sustained. We accordingly

allow the appeal and set aside the impugned order. In the facts and

circumstances of the case, there shall be no orders as to costs.

V.K.JAIN, J

CHIEF JUSTICE

JANUARY 21 , 2013 raj/rd