IN THE PRESIDENT, DISTRICT CONSUMERS DISPUTE REDRESSAL FORUM, SAMBALPUR
C.C. No.7 of 2018
Nilima Debata,
Daughter of Shri Achutya Nanda Tripathy,
Aged about 53 years,
Resident of Panch Gachhia, P.O.- Baraipali, Ainthapali
Dist-Sambalpur ……………… Petitioner
-VERSUS –
- M/s. Western Orissa Electrical Supply Company of Orissa Ltd.
At/P.O.-Burla,
Dist-Sambalpur, Odisha.
- Sub Divisional Officer, Electrical Sub-Divn.-1,
At-Ainthapali,
Dist-Sambalpur, Odisha.
3. Shri Jasmeet Singh Chhabra,
Aged about 40 yrs,
At- O/o Electrical Sub-Divn.-I, Ainthapali,
Dist.- Sambalpur .………….. Opp. Parties
For Complainant : Shri R.N. Debata, Shri P.Panigrahi & their Associates
For O.P.s No.1 & 2 : Shri Sudhir Kumar Dora and associates
PRESENT:- SHRI A.P. MUND, PRESIDENT
SMT. S. TRIPATHY, MEMBER
SHRI K.D. DASH, MEMBER
Date of Order:
Shri A.P. Mund, President
The complainant is a Consumer of O.P. No. 1 bearing No. 4117 3312 0122 since 1997.
That on 16.12.2017 at about 12.00 noon while the complainant was alone, the O.P. No. 2 along with some other male persons came to the residence of the complainant at Panch Gachhia and told the complainant that they have come from electric department to draw the monthly electric bill. Thus the complainant permitted them to see the electric meter fitted in the stair case of her house as usual. On seeing the functional mechanical meter, the O.P. No. 3 told that the meter fitted in the house is a mechanical meter and it requires substitution by an electric meter as per rule of the company free of costs.
That on 20.12.2017 surprisingly the complainant received letter No. 1253 dt. 16.12.17 issued by O.P. No. 3 under which the complainant was called upon to file objection within 7 days of receipt of notice and also she is entitled to appear before O.P. No. 3 on or before 23.12.2017 for personal hearing.
According to complainant the electrical installation of the premises of the complainant was never inspected by the O.Ps and on 16.12.17 only the meter was substituted. It is false to say that the electrical installation of the complainant was inspected on 16.12.2017. The allegations of bypassing of energy meter against the complainant are absolutely false and fabricated for some ulterior reason.
On 23.12.2017 the complainant by Regd. Post requested for certain information pertaining to the letter dt. 16.12.2017 to the PIO of the O.P. No. 2 so as to enable her to file objection.
On 28.12.2017 the complainant received letter No. 1279 dt. 26.12.2017 from the O.P. No. 3. On 29.12.2017 the complainant by speed post submitted another application, requesting the O.P. No. 3 to provide the information sought for, if available at his end, so as to enable the complainant to file objection as called upon.
That on 23.12.2017 on behalf of the complainant, learned Shri B.D Sahu, Advocate appeared before the O.P. No. 3 in his office at about 4.00 P.M and prayed for time. There the O.P. No. 3 suggested the learned counsel to cause deposit of the provisionally assessed amount and in reply the learned counsel only prayed time referring to Annex. 3 & 7. The O.P. No. 2 informed that the proceeding of the day will be communicated to complainant.
That on 12.01.2018 the complainant received order dt. 09.01.2018, under which the provisional assessment of Rs. 69,357/- was finalized by O.P. No. 3 directing payment within 30 days or in the alternative to prefer appeal by depositing 50% of the said amount.
Thereafter the O.P. No. 1 communicated a provisional bill dt. 10.01.2018 as at Annex.- 15 in respect of period during which electric meter has been fitted making false calculation of 7.00 K.W load.
The complainant has never been communicated with the inventory report referred in Annex.2. The further seen & substance of the case is that the complainant’s husband is an Advocate and he has caused financial loss to the O.P’s & the O.P’s being vindictive has filed this case with false allegation and alleged assessment order has been passed and finalized.
Therefore, on the basis of the above prays for
P R A Y E R
- The complainant prays that the order dt. 16.12.2017 as at Annex-2 and dt. 09.01.2018 as at Annex.14 issued by O.P. No. 3 may kindly be declared as illegal, without jurisdiction and void abinitio.
- The O.P. No. 1 may kindly be directed to refit the functional mechanical meter in the premises of the complainant and take back the electric meter fitted by them on 16.12.2017 .
- The O.Ps may kindly be directed to pay compensation of Rs. Four Lakhs (Rs. 4,00,000/-) to the complainant for the harassments and metal agony caused to her by the O.P. No. 3.
- The costs of the present case, and
- Any other fit and equitable reliefs as the Hon’ble Forum thinks fit and proper.
Lists of Documents
Annex.-1 Electric Bill of WESCO utility dt. 16.11.2017
Annex.-2 Letter dt. 20.12.2017 issued by O.P. No. 3 to Nilima Debata
Annex.-3 RTI application dt. 23.12.2017 to the PIO of O.P. 2
Annex.-4 Net tracking report showing receipt Annex.3 by O.P.2 on 26.12.17.
Annex.-5 Letter dt.22.12.2017submitted to O.P.3.
Annex.-6 Net tracking report showing receipt Annex.5 on 26.12.17.
Annex.-7 Letter No. 1279 dt. 26.12.2017 of O.P. No.2. to Nilima Debata.
Annex.-8 Letter dt.29.12.2017of complainant submitted to O.P.2
Annex.-9 Net tracking report showing receipt Annex.8 on 02.01.18.
Annex.-10 RTI application dt. 29.12.2017 to the PIO, by the complainant.
Annex.-11 RTI rejection letter dt. 30.12.17 issued by O.P.1
Annex.-12 RTI application dt. 03.01.18 to the PIO, by the complainant.
Annex.-13 letter dt. 08.01.2018 issued by the O.P. 2
Annex.-14 letter dt. 09.01.18 issued by the O.P. 2.
Annex.-15 Provisional bill dt. 10.01.2018 issued by O.P.1
Vakalatnama.
Files a petition under section 13 (3) (B) which was granted.
Preliminary objection filed by O.Ps on the ground of maintainability of the complaint
That, the facts stated in the complaint petition filed by the complainant is neither based on the law nor based on facts and liable to be dismissed as per the highest law of land (SC), being the matter is coming under the domain of u/s. 126 Electricity Act 2003 in deciding the ratio U,P Power Corporation Ltd. Vrs Annis Ahmed.
The instant written statement is filed by the O.P. No. 2 & 3 (both are same and one) the S.D.O (Electrical), WESCO utility, Electrical Sub-Division-I, Sambalpur for self as well as for the O.P. No. 1.,
The instant petition is not maintainable in the eyes of law due to want of jurisdiction, as per the ratio decided by the Hon’ble Supreme Court of India in U.P. Power Corporation Ltd. Vrs Anis Ahmed and batch cases, AIR 2013 (SC)2766 Para-47 (ii) of the said judgment is quoted here-in-below;
“47 (ii) A complaint against the assessment made by assessing officer u/s. 126 or against the offences committed u/s. 135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum.”
The aforesaid judgment bars the jurisdiction of Consumer Dispute Redressal Forums, constituted under the consumer Protection Act, 1986, to entertain and adjudicate complaints against assessment proceeding initiated by the Electricity Distribution Licensee u/.s 126 of the Electricity Act, 2003. Thus the jurisdiction of the assessing officer and manner of proceeding cannot be questioned before this Hon’ble Forum, by virtue of the aforesaid judgment of the Hon’ble Apex Court. In spite of the above crystal clear direction of Hon’ble Apex Court, the present complaint petition has been entertained by this Hon’ble Forum. Further an interim order has also been passed by this Hon’ble Forum on 25.01.2018 directing the answering O.Ps not to take any coercive action against the complainant. Said direction of Hon’ble Forum is against the judicial principle decided by the highest Court of the land.
Brief fact pertaining to the assessment proceeding is that, upon inspection to the premises of the complainant by the O.Ps on 16.12.2017, it was found that the meter installed has been interfered resulting into tampering of the same and bypassing of energy. For the said unauthorized use of electricity by the complainant, proceeding of assessment was initiated by the O.P. No. 2, being the assessing officer, u/s. 126 of the Electricity Act, 2003 and provisional order of Assessment was issued on 16.12.2017 for an amount of Rs. 69,357/- which was subsequently finalized vide final order of Assessment on 09.01.2018. The entire proceeding of assessment has been kept out of the purview of the C.P. Act, 1986, for which the instant complaint petition is liable to be set aside at the threshold. The complainant, if aggrieved with the said proceeding of assessment, may file appeal before the Appellate Authority u/s 127 of the electricity Act 2003 or u/s 42(5) of Electricity Act 2003 before the G.R.F. and against the decision of learned Forum an appeal can be filed before the Electricity Ombudsman u/s. 42(7) of the electricity act 2003. So there are three different forums available to the consumer for ventilating their grievances. So the Consumer Forum constituted under the provision of C.P. Act 1986 has no jurisdiction to entertain such application.
In view of the aforesaid facts and circumstances it is humbly submitted that, the instant complaint petition, not being maintainable in the eye of law, is liable to be dismissed at the threshold.
List of documents filed by the O.P’s are;
- True copy of Provisional Assessment order (2 sheets) 16.12.2017
- True copy of PVR 16.12.2017
- True copy of final assessment order 09.01.2018
Heard both parties. Perused the case record, documents & written argument filed by both the parties.
The case of the complainant & argument on behalf of complainant is that : It appears that, the O.P. no. 3 on Annex.2 & 14 signed the same styling himself as the SDO (Elect.I)-cum-Assessing Officer. The Xerox copy of alleged PVR report dt. 16.12.2017 filed by O.P. No. 3 on 4.5.18 in this case indicates the SDO is the alleged inspecting officer. Thus a conjoint reading of Annex.2 14 and alleged PVR report dt. 16.12.17 suggests that, the O.P. No. 3 himself was the alleger and judge of his own cause. This conducts of O.P. No. 3 violates the fundamental principles of law that, “a person cannot be the judge of his own cause”. The O.P. No. 3 not provided any explanation as to why he adjudicated his own cause against the cannons of commence sense and natural justice. There is no explanation as to why the O.P. No. 3 preferred to adjudicate his own cause against the cannons of common sense and natural justice. There is no explanation as to why the O.P. No. 3 preferred to adjudicate his own cause, instead of referring it to some other competent assessing officer. It is thus submitted on this short technical ground the order as at annex. 2 & 14 are liable to be quashed.
The legislature vide Act No. 26 of 2007 inserted the word “shall” in place of “may” in sec. 126 w.e.f 15.06.2007 making it mandatory on the part of assessing officer to provide adequate opportunity to file objection and hearing to the consumer concerned. Thus incidental question falls for consideration in this case, whether the complainant was afforded with any reasonable opportunity to file her objection on the assessment order and any hearing before passing Annex. 14 by the O.P. No. 3 ?
In the present case, no document is filed to show that, the O.P. No. 2/3 was ever appointed as the “assessing officer” by the State Government and there is clear violation of sub-section (3) of sec. 126 . In the said premises the O.P. No. 2/3 was in error to say that, the Annex.14 is an order legally passed u/s. 126 (5) of the Act. Annex. 14 is void abinitio and as such cannot be termed as an order u/s. 126 (5) of the Electricity Act, barring jurisdiction of this forum.
Thus mentioning of Sec. 126 in Annex.2 &14 is clear transgasstion of limits of jurisdiction by the O.P. No. 2/3, as these acts not within the Electricity Act.
The AIR 2013 SC 2733, in case of “unauthorized use of electricity by a consumer” the jurisdiction Consumer Forums have been barred. That as on date this appears to be the correct preposition of law. But in the case in hand, the complainant by swearing affidavits in this case asserted that, she was not indulged in unauthorized use of electricity as alleged by the OP No. 3 The affidavits filed gone uncontroverted. From the materials on records germinates that the O.P. No. 3 had no authority u/s. 126 and he did not act in good faith as stipulated in the Act. The case in hand is not covered by sec. 126. That apart, in the case before the Hon’ble SC the cases in respect of industrial establishments were in consideration , but not of any individual consumer. Nonetheless, in para – 47(i) of the judgement confirmed the jurisdiction of Consumers Court in the matter. In the said premises the ratio decidendi laid down in the above case has no application to the present case and distinguishable both on facts and law.
The Learned Advocate also cited the following cases.
In AIR 2007 P&H 57- Punjab State Electricity Board, Patiala & Ors Vs M/s. Guru Nanak Agriculture Engineering Works & Ors:
In AIR -1974-SC-1069 & AIR-1975 ORISSA-219
In AIR -1071-MP-254& 1964 (30)CLT-509-(516)
In AIR -1948 PC33, it has been held that
“Authority exercising powers in excess of power conferred-Civil Court can question its proceedings”.
The jurisdiction of this forum is in addition to the forums prescribed under common law. In the premises it is submitted the subject matter of the present case does not fall within the ambit and scope of sec. 126 & 127 of Electricity Act attracting jurisdiction of this Hon’ble forum on the matter in view of the ratio laid down by the Hon’ble High Court.
In addition to the above in the present case, multiple prayers have been made attracting jurisdiction of this Hon’ble forum. The prayers made in the case are interlinked with each other and cannot be segregated. The position of law is well settled that , if there are multiple prayers and not separable , the jurisdiction of the court on all prayers are inherent and conclusive. The O.P. No. 2/3 has not challenged that, the jurisdiction of this forum is barred in respect of prayers made from para (b) to (e) . The entire chain of actions begins on 16.12.17 when the mechanical meter was replaced by giving false assurance. It is thus submitted, having regards to the fact and circumstances of the case, the jurisdiction of the forum to grant the reliefs prayed for by the complainant is conclusive.
That apart, Annex.- 2 provisional assessment order (page-2- col14) reveals that, the assessment has been made basing on the “inventory Report” of SDO & ESo (Elect.) No. 1. The copy of the said inventory report has not yet been communicated to the complainant till date, in spite of her prayers made vide Annex,3 dt. 22.12.17 & Annex.5 dt. 22.12.17, Annex.8-dt. 29.12.17, Annex.10 dt. 29.12.17 & Annex.12 dt. 3.1.18. There is no explanation of whatsoever nature extended by the Ops for non-furnishing of copy of said inventory report to the complainant. That a perusal of provisional assessment report as at Annex.2 reveals that, the said inventory report is the basis of passing the order and as such an essential document for the complainant to file objection. When the complainant in this case filed petition dt. 8.5.18 calling for some documents from the custody of the Ops for production in the court, the OP No. 3 objected to the motion on the ground of maintainability of the case and did not dispute the relevancy of the documents in the case.
That as regards allegations of bypassing of energy, the complainant denied the allegations. The Ops failed to prove the same in this Forum. It appears from Annex.1 electric bill dt. 16.12.17 that, the photograph of the meter reading had been given indicating the reading displayed by meter. But the O.P No. 3 has not produced any photograph of the alleged bypassing spot of the electric line in this court. The OP No. 3 has not referred to any such photograph in Annex.2 & 14.The OP no. 3 has not explained the reason as to why such photographs is not produced in this court. If for billing purpose photographs of the meter was taken, then no reason as to why for making wild allegation of bypassing against a consumer; such step was not taken. This falsifies the allegations of inspection of the premises on 16.12.17 as well as allegation of bypassing of energy.
The demand of meter rent of Rs. 150/- PM by changing the functional meter is misrepresentation to consumers. The complainant was not even informed that, rent is payable on the meter. That such acts amounts to unfair trade practices.
That aforesaid acts of Ops constitutes unfair trade practices, exploitation and harassments to complainant-consumer. In the premises the complainant is entitled to damages and other prayers as prayed for with costs.
Cited further cases;
AIR-2003 SC-2041-Canara Bank & Ors. Vrs Shri Debasis Das & Ors.
2001 (1) OLR-432- Arjuna Chandra Mishra Vrs SBI and Ors.
Natural Justice –Principle of –No man can be the judge of his own cause-such principle also applies to the exercise of quasi judicial as well as administrative powers.
WORDS AND PHRASES- Nemo debet asse judix in propria causa sua-Maxim of law-Doctrine of Bias-No one can be judge in his own cause.
In the present case, the OP No. 3 is the alleger and the judge both. The proceeding u/s. 126 of the Electricity act is an administrative/quasi-judicial proceeding. Thus in view of the ratio decidendi laid down in the above decisions, the impugned orders as at Annex.2 & 14 are de novo void and illegal.
Reply of Opposite Parties for issues made by complainant in their argument
Issue at DCDRF as per submission made by the complainant
- No power has been vested in OP2 and OP 3 regarding the assessment proceedings.
- No chance for objection was given because the OP’s/OP did not reply rather reject the RTI and others.
- Letter of inventory report/inspection report has not yet been supplied.
- No hearing opportunity has been given to the complainant as per the provision of u/s. 126 of electricity act 2003 however the OP did not follow the provision of 126 I.E act 2003.
- The complainant on oath declared that the PVR has not been declared supplied the signature over the PVR report is forged one.
- The same person can’t be an inspection officer and a judge (assessing Officer) in 126 (3) IE Act 2003.
- No photograph of By-pass has been given/submitted before the Learned Forum.
Reply of Opposite Parties as asked by the Forum.
The issue raised by the complainant involves the merit of the proceeding under sec. 126 of the Electricity Act, 2003. It is relevant to submit that, the O.Ps have raised the preliminary issue of jurisdiction of the Learned Forum to entertain the complaint which involves matter relating assessment under sec. 126 of the Electricity Act, 2003. If the complainant is aggrieved with the manner of assessment, than the complainant is required to approach the appellate authority under Sec. 127 of the Electricity Act, 2003, by depositing 50% of the assessment amount as per the mandate of the statute. In order to avoid said payment of statutory dues, the complainant has approached this Learned Forum which is not at all maintainable in the eye of law in view of the judgement of Hon’ble Apex Court in Anis Ahmed Case.
That brief fact pertaining to the assessment proceeding is that, upon inspection to the premises of the complainant by the O.Ps on 16.12.2017, it was found that the meter installed has been interfered resulting into tampering of the same and by passing of energy as the service line of the consumer complaint was totally concealed from pole to her residential premises and in fact when the service line of the complainant to the energy meter was cut-off by the OPs still there exists active line in the premises which directly indicates a by-pass of electric line has been done internally concealing the materials, however, on being verified the initial end to the meter was found to have a copper wire connection instead of aluminum, which is the service connection to the meter. So on the same day i.e. 16.12.2017 and on spot of the premise of the consumer one PVR was prepared by the Ops with the reason and took the signature of the son of the complainant along with his name there on with mobile number (if any) and handed over one copy to him as per law.
On inspection found by-pass of energy service wire before to the point of meter in concealed way in the premises of consumer complainant. This is nothing but unauthorized use of electricity by the complainant and proceeding of assessment was initiated by the O.P. No.2, being the assessing officer, under section 126 of the Electricity Act, 2003 and provisional order of Assessment was issued on 16.12.2017 for an amount of Rs. 69,357/-, which was subsequently finalized vide final order of assessment on 09.01.2018. The entire proceeding of assessment has been kept out of the purview of the consumer Protection Act, 1986, for which the instant complaint petition is liable to be set aside at the threshold. The complainant, if aggrieved with the said proceeding of assessment may file appeal before the Appellate Authority under Sec. 127 of the Electricity Act, 2003 or u/s. 42 (5) of Electricity Act, 2003 before the G.R.F and against the decision of learned forum an appeal can be filed before the Electricity Ombudsman u/s. 42(7) of the Electricity Act, 2003. So there are three different forums available to the consumer for ventilating her grievances . So the Consumer Forum constituted under the provision of C.P. Act 1986 has no jurisdiction to entertain such application.
The complainant has never approached before the Appellate authority u/s. 127 I.E. Act 2003 rather approached this Learned Forum for her grievances and however disputing the assessment proceedings by by-passing the statutes. The legality of the forum deciding the matter u/s. 126 I.E. Act 2003 has got no jurisdiction to adjudicate as per the ratio decided by the highest court of land (SC) in the matter of U.P. Power Corporation Ltd. Vrs Anis Ahmed and batch cases, AIR 2013 (SC) 2766. Para – 47 (ii) and also in vol. 8 SCC (2013) Page 491 of the said judgement is quoted here-in-below.
“47 (ii)AIR/60.2(SCC) A complaint against the assessment made by assessing officer under section 126 or against the offences committed under sections 135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum.
So far the issue No. 2 and 3 is concerned. Any dispute shall before the assessing officer u/s. 127 I.E. act not before the Learned Consumer Fora as per the guide line of the I.E act 2003 and highest law of land.
The O.P. 2 /Assessing Officer has given sufficient time to the complainant for her objection like on or before 23.12.17 between 11 am to 5 pm, so allegation against the Ops is baseless and he has acted as per the provision of law enumerated in I.E. act 2003. So far the authenticity of PVR is concerned I.E act 2003 does not specify the manner it has been supplied because it has been supplied on the spot to the consumer and it has been supplied and description has already been given on aforesaid para/paras. For issue no. 6 the Electricity Act 2003 has no where mention in this act that, the inspection officer cannot be the assessing officer the dispute regarding this lies on the consumer to where the law has been codified that the inspection officer can’t be the assessing officer. As the inspection officer/vigilance personnel visited the premises of the complainant and found by pass and step against the consumer complainant taken as per the provision of law and mentioned/narrated in the aforesaid para(s) so it does not require any photograph and the I.E. Act 2003 nowhere mention to take photograph for evidence.
As per the provision of law enumerated in I.E. Act 2003, the law u/s. 126 I.E. Act has properly been communicated to the complainant, so the entire proceeding of assessment has been kept out of the purview of the consumer Protection Act, 1986, for which the instant complaint petition is liable to be set aside/dismissed at the threshold.
O R D E R
Heard arguments, perused both the W.A & pleadings. Only one issue is framed by us in view of the pleadings and arguments as raised from both the sides.
As to whether the pleading of the complainant dragging the matter, so as not to come under the provisions of Sec. 126 of Electricity Act, 2003 is justified or not.
And if not whether this forum has any authority to entertain such a matter as per the decisions of Hon’ble Supreme Court in civil appeal No. 5466 of 2012.
The Learned Advocate for complainant stressed upon the shortcoming of the assessing officer i.e. O.P. No. 2 in exercising power u/s. 126 of the Electricity Act. He went in length to describe the O.P. No. 2 as not vested with power by the State Govt. Besides the O.P. No. 2 did not follow proper procedure enumerated in sec 126 and hence the assessment is void as not done by a properly authorized person. Beside the O.P. No. 2 is the complainant as well as the Judge in this case. Hence violates the principle of natural justice as per decisions cited. The Learned Advocate for O.P. clarified on the matter raised and submitted a Xerox copy of the delegation of power on O.P. No. 2. He also raised the point that the Electricity Act 2003 is a special Act and proper procedure has been defined if one consumer is aggrieved the assessment of the assessing officer.
The Hon’ble Supreme Court in C.A. 5466 of 2012 has categorically held in para 30 (6) “……….. therefore, it is clear that offer notice of provisional assessment to the person indulged in unathorised use of electricity, the final decision by an assessing officer, who is a public servant, on the assessment of unauthorized use of electricity is a Quasi Judicial decision & does not fall within the meaning of consumer dispute u/s. 2 (1) of the C.P. Act, 1986”.
In para 46(ii) the Hon’ble Supreme Court went on further and held “ A complaint against the assessment made by assessing officer u/s. 126 or against the offences committed u/s. 135 to 140 of the Electricity Act,2003 is not maintainable before a consumer forum”.
Basing on the above observation we feel that this forum has no jurisdiction & this case is not maintainable before this forum. We are not inclined to pass judgement on other matter raised by the Learned Advocate in view of above.
Hence the complaint case is dismissed. No order as to cost.
Sd/- . Sd/-
SHRI A.P.MUND, I agree SMT S.TRIPATHY
PRESIDENT Member
.
. Sd/- Sd/-
SHRI K.D.DASH. Member I agree. Dictated and corrected by me.
Member.
