H.C. Jain vs B.S.E.S Yamuna Power Ltd.

Valmiki J Mehta, J.

CM No. 1860/2011 (condonation of delay)

Delay of 3 days in filing the appeal is condoned. Application stands disposed of.

CM No. 1861/2011 (condonation of delay in re-filing the appeal)

There is an unexplained delay of 175 days in re-filing the appeal. Ordinarily I would not have condoned the delay in re-filing, however, since I have heard the matter on merits, the delay is condoned. Application stands disposed of.

RFA No. 60/2011

The challenge by means of this first appeal u/s 96 of the CPC 1908 is to the impugned judgment and decree dated 23.2.2010 whereby the suit of the Appellant/Plaintiff against the Respondent for electricity disconnection was dismissed, and in which suit, basically the Plaintiff sought quashing of the bill issued on the basis of inspection dated 4.2.2000 whereby it was the stand of the Respondent that the Appellant was indulging in fraudulent abstraction of electricity.

The trial court in the impugned judgment has recorded that it is the Plaintiff who came to the court and alleged that there was no theft of electricity. The stand of the Respondent was that there was theft of electricity from the subject meter because it was found that the meter-glass was removed and a foreign adhesive was found fixed on the lower side of the meter-glass and there was created a gap for insertion of a foreign object inside the meter to manipulate the consumption.

If the case of the Appellant/Plaintiff was that the facts as stated in the inspection report dated 4.2.2000 were not correct, it was always open to the Appellant/Plaintiff to have made an application during the trial of the suit, to send the meter to the appropriate laboratory, and whose report would have shown whether the case of theft of electricity on account of the alleged facts was made out or not. During the course of arguments, I put it to the counsel for the Appellant whether any such application was moved and to which counsel for the Appellant conceded that no such application was filed. Therefore, the Appellant as the Plaintiff failed to discharge the onus upon him.

The trial court has also noted that the challenge to the connected load of 80.022 KW which was found in the premises has been disputed by the Appellant only by his self-serving statement in his deposition, however, the Appellant did not file on record any bills of the machines to show what was the load of such machines. Trial court also has found that the Appellant/Plaintiff in fact did not dispute the number of machines and that neither in the plaint nor in the deposition of the Appellant, it was stated that what was the load which was found in excess on the date of the inspection.

This Court can interfere with the findings of the trial court, only if, the findings and conclusions are illegal or perverse. I do not find any illegality or perversity in the impugned judgment which has dismissed the suit of the Appellant/Plaintiff.

Learned Counsel for the Appellant argued two main points before this Court. The first point was that there was another meter in the same premises in the name of one Sh. Suresh Goel, (i.e. is not in the name of the Appellant) but it was the Appellant who was actually using the electricity through that meter, and since, no theft of electricity was found against the other meter which was also inspected on the same date, therefore, the Appellant should be held to be not guilty of theft of electricity through the subject meter though which was a separate meter.

I have totally failed to understand this argument raised because it is not understood as to how if there is found a theft of electricity through one meter, the consumer should be exempted from such charge of theft of electricity merely because there is no theft of electricity found with respect to another meter which is found to supply electricity in another portion of the premises.

The second argument which was sought to be raised by the learned Counsel for the Appellant was that before inspection is done by the electricity authority, notice ought to have been given to the consumer u/s 26(4) of the Electricity Act, 1910, Firstly, I doubt whether this Act would at all apply in view of the provisions of Section 185(2)(a) of the Electricity Act, 2003, however, even if, such provision is held to be applicable and is applied to the facts of the present case, I do not find how that provision will assist the Appellant in any manner because the provision of Section 26(4) deals with removing of a meter by the electricity authority and it requires that before removing the electricity meter, on which theft is alleged notice must be given before removal of the meter. This however is not the issue in the present case, because what has been argued on behalf of the Appellant is that before conduct of the inspection, notice ought to have been given. This provision relied upon on behalf of the Appellant does not provide that any notice has to be given prior to the inspection. Also, in the opinion of this Court it would be very absurd to suggest that consumers against whom theft is apprehended must first be given notice before their premises are inspected, because, if a notice is required to be given to a recalcitrant consumer obviously such a consumer will try to do away with all the evidence of theft if prior notice is given to him. There is also therefore no merit in this second argument raised on behalf of the Appellant.

No other point or issue was urged before this Court.

In view of the above, I do not find any error in the impugned judgment and decree. The appeal is therefore dismissed leaving the parties to bear their own costs.