W.P. (C) No. 5569/2008 Page 1 7. * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 5569/2008 % Date of decision: 18th February, 2010 DR. C.D.SUKHIJA & ANR. ..... Petitioners Through Ms. Neha Gupta, Advocate. versus B.S.E.S YAMUNA POWER LTD. ..... Respondent Through Mr. Vikram Nandrajog & Mr. Sushil Jaswal, Advocates. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest ? O R D E R 1. The impugned speaking order passed by the respondent-discom records that as per the lab report, extra PCB circuit, relay and its power supply were found inside the meter. It states that the said circuit was installed after tampering by opening the meter and seals. It is stated that a crack was observed in the CT epoxy coating Y phase. Another allegation made was that there was frequent replacement of meters. On the basis of CMRI data downloaded, it has been observed that during some periods no electricity consumption has been recorded though power was available as no load shedding was undertaken during the said time. CMRI data consumption recorded is variable. 2. Earlier also a similar speaking order was passed and was made W.P. (C) No. 5569/2008 Page 2 subject matter of challenge in W.P. (C) No. 4941/2007, which was disposed of on 26th September, 2007. The speaking order which was under challenge was quashed, inter alia, holding that the petitioner was denied effective opportunity of hearing as relevant material relied upon and referred to in the speaking order was not furnished. 3. Thereafter, copy of the documents relied upon by the respondents was furnished and given to the petitioner. These documents as per the speaking order are as under:- “(i) Inspection report (ii) Seizure memo (iii)Copy of first Show Cause Notice (iv)Copy of second Show Cause Notice (v) Copy of interruption report (vi) Copy of lab report (vii)Photograph of remote control captured in lab. (viii) VCD of inspection captured at site” 4. As per the meter test report, the crack observed on the CT epoxy coating Y phase had no effect on the meter working. Thus, the said crack is inconsequential as per the meter test report. The said meter test report further states that on accuracy test the meter individual was found to be within limit and the meter with CT box as field connection test result was +0.64. Even at the time of inspection, the enforcement team had carried out the accuracy test and the meter was found to be within limit (+2.20%). It is, therefore, apparent that the PCB etc. allegedly found inside the meter were not having any effect on the accuracy of the meter. There is no mention about this PCB in the inspection report, but perhaps the meter was not opened and examined at that time. 5. The site inspection report dated 28th July, 2006 when the meter was seized specifically records that seals of meter box were found to be intact. W.P. (C) No. 5569/2008 Page 3 In the first speaking order, which was made subject matter of challenge in W.P. (C) No. 4941/2007, the said averment was not controverted or denied. Obviously in case the meter box seals were intact and not tampered with, the petitioner could not accessed and tampered with the meter inside. To install any component or PCB inside the meter, seals have to be broken or tampered with to have access. 6. In the second speaking order, it has been observed as under:- “……..Matter was referred to Vigilance Department of BSES and the findings of the Vigilance Department were:- “Meter has been tampered any time during the period between 21.03.2006 to 15.06.2006 by tampering the hologram seal no. YM56099 and YM56100 removed from the meter body and plastic seal number B228213 from meter’s terminal cover to install a remote control inside the meter. After tampering new hologram seal no.YR51452-453 were fixed at meter body and new plastic seals bearing number B235244 were fixed.” 7. The aforesaid report from the Vigilance Department of the BSES has not been referred to and mentioned in the first speaking order, though the petitioner herein in response to the show cause notice had specifically stated that the seals of the meter and the box were reported to be intact and o.k. Even half seals were found to be intact and o.k. This is recorded in the first speaking order. The second speaking order does not give the date of the letter and when Vigilance Department of BSES had submitted the said report. Copy of the said report was also not furnished to the petitioner to controvert and meet the allegations made therein. In this connection, it may be relevant to note that the inspection was conducted and the meter W.P. (C) No. 5569/2008 Page 4 was seized on 28th July, 2006 and the second speaking order was passed on 11th/16th April, 2008. In between after about four months of seizure, the meter was sent and examined in the laboratory of the respondent-discom. The laboratory report is dated 22nd November, 2006 and in this report it is mentioned that meter seals were re-fixed. This laboratory report does not state that the re-fixed seals were fake. After the meter was opened and examined by the laboratory on 22nd November, 2006, it is difficult to believe that the respondents could have verified and examined the seals fixed on the meter seized on 28th July, 2006. The seals were found to be fixed at the time of inspection. 8. In any case, as noticed above, the respondents have again relied upon material in form of report from Vigilance Department of BSES without first confronting and calling upon the petitioner to meet the said allegation and controvert them. This cannot be permitted and allowed. Even the report of the Vigilance Department quoted above also does not state that the seals and the serial number are not genuine. These seals are in the custody of the respondent-discom. Petitioner obviously could not have access to those seals and the seals could not have been fixed except by officers of the respondent-discom. 9. Thus, the reasoned order does not take into account the relevant and material facts and has proceeded to rely upon evidence and material, which was confronted to the petitioner. The same is accordingly quashed and set aside. In the facts and circumstances of the case, there will be no order as to costs. SANJIV KHANNA, J. FEBRUARY 18, 2010 VKR