Full Text
HIGH COURT OF DELHI
Released on: 05.01.2023
HANS RAJ ..... Appellant
Through: Mr. K.S. Kashyap, Advocate (Ph. 9811197419, e-mail: adv.keshavkashyap@gmail.com)
Through: Mr. Manish Kumar Srivastava and Mr. Sagar Arora, Advocates (Ph. 7011045390, e-mail: manish@kdatta.in)
MINI PUSHKARNA, J. (ORAL):
JUDGMENT
1. The present appeal has been filed against the judgment and decree dated 21.01.2010 passed by the Learned ADJ-05 (Central), Delhi, by which the suit of the appellant herein was dismissed. The appellant had filed Suit No. 29/05 seeking declaration that the Electricity bill raised on the basis of raid conducted on 29.05.2002 for a sum of Rs. 3,58,794/- was illegal and null and void, with further prayer for restraining the respondent herein from recovering the said bill amount of Rs. 3,58,794/- in respect of electricity meter K.No. JM2202/613-1228159 installed at premises no. 1/9655, Pratap Pura, Gali no. 6, Shahdara.
2. It is the case of the appellant that he was receiving and paying the electricity bills as per consumption on regular basis without any default. The respondent charged misuse and late payment fee (LPF) from the appellant, which was contested by the appellant. Subsequently, the erstwhile Delhi Vidyut Board (DVB) withdrew the said charges vide their letter dated 22.04.2002. It is the case on behalf of appellant that when he approached the officials of respondent for refund of the same, the officials demanded illegal gratification. Since the appellant resisted payment of illegal gratification, he was threatened with dire consequences. Thus, it is submitted that the officials of respondent, in connivance with each other, raided the premises of the appellant on 29.05.2002 in the absence of the appellant in an unfair and arbitrary manner.
3. It is submitted on behalf of appellant that the appellant received a notice for personal hearing on 04.06.2002 before the Executive Engineer (Enforcement-IV). However, instead of granting any personal hearing, the appellant was handed over copy of inspection report dated 29.05.2002. Thereafter, the appellant was slapped with bill dated 17.06.2002 for Rs. 3,58,794/-, under the garb of inspection carried on 29.05.2002. Thus, suit was filed on behalf of appellant seeking interalia declaration to the effect that the bill dated 17.06.2002 was illegal, null and void.
4. In support of his case, appellant examined only one witness i.e. himself as PW-1 before the Trial Court. Respondent in support of its case examined two witnesses i.e. Sh. Sushil Sharma, Junior Engineer as DW-1 and Sh. Sushil Kumar, Junior Engineer as DW-2.
5. By way of the impugned judgment and decree dated 21.01.2010, the learned ADJ dismissed the suit of the appellant. The present appeal has been filed challenging the said judgment and decree dated 21.01.2010 passed by the learned ADJ.
6. It is submitted that the learned Trial Court has proceeded on a wrong premise that the factum of inspection dated 29.05.2002 is not in dispute. On the contrary, the entire case of appellant was that the alleged inspection had not taken place in the manner as asserted by the respondent in their inspection report.
7. It is contended that officers of the erstwhile Board mentioned a load of 47.345 KW in the bill alleging Fraudulent Abstraction of Energy (FAE). It is submitted that this was absolutely false since no physical inspection of the connected load in the premises was carried out. The mentioned load was only a figment of imagination of the disgruntled officers who wanted to harass the appellant to settle their personal scores. It is submitted that the so called inspection report was prepared by them while sitting in their office, rather than at the time of inspection at site. It is further contended on behalf of the appellant that it was falsely mentioned in the report that the load of other premises was connected to the meter in question, as the same was without any basis or any cogent evidence like photographs etc. The other meters were in proper working condition, moving in right direction and periodic bills were being raised and paid in respect of each of them.
8. On the other hand, on behalf of respondent it is submitted that the inspection was conducted in the presence of the appellant. It is a case of tampering of meter and theft of electricity. It is further contended that the appellant has not disputed the factum of inspection and rather during the course of his cross examination he admitted that the inspection was carried out in his absence. It is further submitted that load report was prepared on the basis of machines which were found at the premises, which themselves had load plates affixed on them. It is further submitted that the meter report was prepared at the spot. Onus was on the appellant to prove as to what was the correct load and what load could the existing cable at site bear. Thus, it is submitted that the appellant was guilty of using more load than the sanctioned load and not paying the electricity bill as per the usage.
9. I have heard both the parties and have perused the lower court record.
10. Perusal of the deposition of the appellant herein clearly shows that the appellant admitted during the course of his examination that he was provided with copy of the inspection report of the inspection carried out by the respondent on 29.05.2002, when he was called for hearing on 04.06.2002. Thus, the factum of the inspection carried out by the respondent as such is not disputed by the appellant herein. Rather, the appellant has made contradictory statements in the plaint filed in the Trial court. In para-7 of the plaint, the appellant herein has averred that the respondent had pasted the inspection report on the meter in the absence of the appellant or his representatives. On the other hand in para-9 of the plaint, the appellant has stated that he was provided the inspection report when he appeared before the Executive Engineer of the respondent for hearing on 04.06.2002.
11. The deposition of DW-1, Sh. Sushil Sharma, Junior Engineer of the respondent is very categorical to the effect that the representatives of the appellant herein participated in the inspection proceedings and also helped the inspection team by opening the rooms, but refused to sign the inspection report dated 29.05.2022. The deposition further submits that on inspection, connected load of 47.345 KW was found installed, whereas the sanctioned load of the said meter, i.e. Meter NO. 9008269 was 6.714 KW. Perusal of Ex. PW-1/6 shows electricity bill for the meter in question, i.e., Meter No. 4D9008269. The said bill clearly records that the sanctioned load of meter in question is 9 Horse Power (HP), which is 6.714 KW.
12. It is apposite to note here that the load report was prepared by respondent on the basis of the plates affixed on the machines and other electrical equipments, which clearly reflected the load of each machine/electric equipments. Though it is admitted on behalf of respondent that they did not carry any equipment for measuring the load, however, the machines existing and being used in the premises themselves clearly reflected the load of each machine/electric equipment on the plates affixed on the said machines/electric equipments. Therefore, it was palpable on the face of it that the load being used by the appellant for operation of his machines/electric equipments was much more than the sanctioned load. Thus, the inspection report prepared at site clearly mentioned about the collective load of 47.345 KW as installed in the premises. It cannot be lost sight of the fact that the premises in question are industrial premises from where the appellant was running his industrial unit, as proprietor of M/s Hansa Metal Industries.
13. The deposition of DW-1 further shows that during the course of inspection it was found that the electricity supply was being intermixed with premises No. 1/9655, Gali No. 4 Bahl Gali, Rohtash Nagar, Shahdara; premises No. 1/9603, Bahl Gali, Pratap Pura Shahdara, Delhi; premises No. 1/9605, Bahl Gali, Pratap Pura, Rohtash Nagar, Delhi and premises No. 1/9606, Pratap Pura, Shahdara, Delhi. All the four premises were found clubbed electrically through a privately laid cable. The inspection report, Ex. DW-1/1 records in very categorical terms the aforementioned facts.
14. During the cross-examination, DW-1 deposed that the details of the machines on the basis of which the load report was prepared, were mentioned in the inspection report, i.e. DW 1/1. Perusal of the inspection report shows that all the machines/electrical equipments that were found in the premises of the appellant have been mentioned in detail. The cross-examination of DW-1 further reveals that the load report was prepared on the basis of the load specified on the machine itself. Thus, there is cogent evidence on the basis of which inspection report was prepared and the impugned bill was raised upon the appellant.
15. The deposition of the DW-2, Sh. Sushil Kumar, AE from the Meter Testing Department is also categorical to the effect that a joint inspection was carried out on 29.05.2002. On inspection, four meters were found installed, i.e., Meter No. 4D9008269, 4D77709, DVB00/241052, E994447. It is clearly deposed by DW-2 that all the four meters were checked by him and on checking meter NO. 4D9008269, it was found that meter half seals were tampered and both the rivets were also found tampered. The inspection report, DW 1/1 was prepared at site.
16. Perusal of the evidence on record shows that the appellant had examined only one witness, i.e., himself. No other witness was produced by the appellant in order to prove that inspection was not carried out or that the machinery and other electrical equipments, details of which have been given in the inspection report, were not present or being used at the premises in question. The appellant has not been able to rebut the inspection report of the respondent by producing any evidence to the effect that the meter was not tampered in any manner or that the facts as stated in the inspection report were false in any manner. The contention on behalf of the appellant that the installed cable of the appellant’s electricity connection could not bear such a heavy load, also holds no water in the absence of any evidence on behalf of appellant with respect to the load bearing capacity of the cable in the premises of the appellant. The appellant failed to produce any evidence to show the load bearing capacity of the cable as existing in his premises. The existence of the machinery/electrical equipment as detailed in the inspection report has also not been denied. Only bald averments have been made as regards presence of a generator.
17. Even though there was categorical deposition by DW-1 that electricity supply of the four premises, as mentioned above were intermixed and that on inspection it was found that all the four premises were found clubbed electrically through a private laid cable, no evidence as such was produced on behalf of the appellant to rebut the aforesaid deposition.
18. As rightly held by the learned Trial court, it was for the appellant herein to prove that the load as mentioned in the inspection report was not correct. This fact becomes all the more material in view of the fact that the witnesses produced on behalf of the respondent had deposed in categorical terms that the load report was prepared on the basis of the load as mentioned on the machines and other electrical equipments present on the premises of the appellant. Once the preliminary onus was discharged by the respondent as regards the basis of their report, the onus shifted on the appellant to disprove the same.
19. The apparent contradictions which the appellant had relied upon with respect to timing of the inspection is also of no consequence. The learned Trial Court in the impugned judgment dated 21.01.2010 has held as under:
20. The judgments as relied upon by the appellant in the cases of Udham Singh vs. BSES/ RPL, 136 (2007) DLT 500; Bhasin Motors
(I) Pvt. Ltd. Vs. NDPL, 142 (2007) DLT 116, and J.K. Steelomelt (P)
Ltd. Vs. BSES Rajdhani Power Ltd., 140 (2007) DLT 563, have rightly been discarded by the learned Trial court. The judgments as relied upon by the appellant pertained to the issue of tampering of meter and no evidence being led by the authorities to prove that such tampering of meters had been done by the consumers in the said cases. It was held in the said cases that apart from the factum of tampering of meters, other evidence also has to be led to show that there was theft of electricity by the consumers. However, facts of the present case are clearly different. In the present case, there is cogent and reliable evidence in the form of the Machinery and electrical equipments present in the premises of the appellant, from where an industrial unit was being run. The appellant has neither disputed the presence of the said machinery and electrical equipments in his premises, nor has been able to dispute the fact that the said machinery/electrical equipments had different load bearing capacity than as mentioned in the Inspection report. The present is not a case of no evidence, as was in the cases as relied upon by the appellant.
21. In view of the aforesaid, no merit is found in the present appeal, and the same is accordingly dismissed. MINI PUSHKARNA, J DECEMBER 05, 2022 c/au