IN THE PRESIDENT, DISTRICT CONSUMERS DISPUTE REDRESSAL FORUM, SAMBALPUR

C.C. No.28 of 2017

        Santosh Kumar Nanda,

Son of Late Trivikram Nanda,

Aged about 63 years,

Resident of Adarsh Nagar, At/P.O.- Ainthapali

Dist-Sambalpur                                                ……………… Petitioner

-VERSUS –

1. Executive Engineer, WESCO Utility

At/P.O./P.S. - Ainthapali,

Dist-Sambalpur, Odisha.

2. Superintendent  Engineer WESCO Utility

At/P.O./P.S. - Burla,

Dist-Sambalpur, Odisha..………….. Opp. Parties

       For Complainant             :            Prem Prakaash Panigrahi

       For O.P.s No.1 & 2          :           Sri Sudhir Ku. Dora & Associates

        PRESENT:-  SHRI A.P. MUND, PRESIDENT

                              SMT. S. TRIPATHY, MEMBER

                              SHRI K.D.DASH, MEMBER

Date of Order: 01.06.2018

Shri A.P. Mund, President

The case  of the complainant is that, he is a senior citizen and after  post-retirement, he constructed a house over plot No. 347  khata No. 241 consisting  of 0.335 acre at Gopalpali chowk, Remed near  N.H. - 6.

            According to the complainant one high voltage 11 KV electric ware overhead line belonging to the O.Ps passed through the plot of the complainant. Another domestic over head line also passes through this plot.  The high voltage electric line is danger and hazard to the complainant and his family. To ensure the safety for the consumer and the family member, the complainant met the Executive Engineer of Sambalpur Electrical Division for the removal and shifting of the electric lines on 05.07.2013.  The O.P.No.1 advised to deposit Rs.500/- towards application money which the complainant complied. He also served a letter dt.05.07.2013 which was acknowledged by the O.P. No.1. The complainant also gave his consent that he will further deposit additional  money as per demand by the O.Ps.

The O.P. did not respond and remain silent  and did not shift the line for which the complainant  with his family could not move to the new house.

That this indifferent of O.Ps in not shifting the lines amount to deficiency in service, unfair trade practice and effect the safety of the consumers. On the basis of the above the  complainant prays for;

1. Initiate the process of shifting the overhead electric lines as stated in para 2, with immediate effect by realizing the further money  if any  required as per norms/law which the complainant is ready to pay.
2. Compensation of Rs. 50,000/- for deficiency service and mental agony etc.
3. Rs. 20,000/- towards the cost of this proceeding. Any other relief as deemed fit and proper by the Hon’ble forum  may be awarded.

To substantiatehis case the complainant has filed the following documents;

1.  Map showing the lie for shifting of 11 KV line which has 0.1 K.M  away from the plot no. 347
2. Money receipt   showing payment of Rs. 500/-
3. Letter dt. 05.07.2013 by the complainant to the Executive Engineer, WESCO for shifting of 11 KV line
4. Letter by the complainant to the Executive Engineer, WESCO dt. 09.03.2017 for shifting of High Tension Electrical Transmission Line and Domestic line.

The O.Ps appear through their Learned Advocate and filed their show cause.  Their main defence is that the 11 KV Remed and 11 KV Burla feeders are very old installations in the area for power  supply to Remed area and Durgapali area. According to the O.Ps the over head line were present long before the complainant constructed the house without making any effort to shift the line before  construction of the house.  

The construction of the house should have been made after shifting of the line.

The complainant engaged one contractor named M/S Subhadra Electricals and Civil Construction to shift  the line.  He also requested for  framing the estimate and agreed to deposit  6% of the  estimated value  for  supervision the O.P.  went on to aver that there is no scope of shifting both the 11 KV of HT line as well as domestic line from the premises of plot No. 347 to outside boundry line, because plot No. 347 is  surrounded  by  other  private plots.  The contractor engaged by the complainant could not give this scope and accordingly estimate of shifting could not be framed by the O.P,s

According to the O.Ps the contractor engaged by the complainant had not submitted his report.  This caused that shifting could not be done in the right time.

Accordingly the O.P. informed that they have never neglected in their duties  and the complainant’s contractor never claimed any suggestion for  changing/shifting of the line. Hence,  prays that  the complainant may be directed by this forum to  provide the right of way for shifting the lines so that estimate can be made accordingly and after depositing and  completing all the  departmental formalities the work  can be taken up.

No documents filed by the O.Ps.

The O.P. through their Learned Advocate filed a petition dt. 20.06.17  stating there in that,  this complaint petition could not be trialed by this Forum as the complainant is not a consumer and their relationship between the complainant and O.P.s are not coming under  the provision of consumer Act.  Hence, prayed for dismissal of the case.  This petition was not received by the Advocate of the complainant, though the copy was attached for the service of the complainant. The complainant had filed one decision of Hon’ble NCDRC in Sajjan Sachdeva and another Vrs Punjab State Electric Board and others passed in 28^th August 2012.  The O.Ps filed   another petition dt. 24.08.17 through their Learned Advocate.  The gist of the petition is that  the complainant may be directed to submit  Right  of Way (undisputed to O.P’s) authority and accompany the O.Ps for  spot verification.   Only after the satisfaction of the O.Ps the shifting of 11 KV line with  follow up action be made by the O.Ps. This  petition  was  received by the complainant.  The O.Ps through their Learned Advocate filed another petition dt.13.12.17 which  was received by the complainant on dt. 04.05.2018. 

In Para – 3 of the petition, the O.Ps argued that the impugned line was drawn in the year 1970’s.  There was no dwelling house on the plot, the complainant  purchased the plot and  constructed this house under the over head line. 

In Para 5 the O.Ps have submitted that  unless a definite demarcated area is provided to the O.Ps  it will be difficult  for the O.Ps. to shift the high tension line.  

Further the advocate for the complainant is orally submits to shift the high tension line above the boundary line of the plot of the complainant.  This boundary line may change with year and will be a cause for future litigation.   In this petition the O.P’s. further prays that the complainant may be directed to provide authenticated demarcated  area for  shifting the H.T. line.

The Advocate for the complainant filed an application for recusal of the President on dt.13.03.18 which was objected to vide petition dt. 23.03.18. Both the objections were  received by the  respective parties.  These petitions were not taken up for hearing as both the Learned Advocates conducted their argument on 04.05.18 on the main issues involved in the case skipping the above petition.

The Learned Advocate for the complainant submitted that the 11 KV line is causing a serious hazard and putting the complainant families serious jeopardy.  Further  argued that  the H.T over head line has been drawn over the complainant land and it should be shifted along the  boundry  of the existing plot of the complainant, so that, it does not invite fatalities in future.  He also   submitted that the   decision cited  is a clear case  where in the Hon’ble NCDRC has asked for shifting of the HT line and  applying the ratio be cited  in the decision; the present HT line  over the plot No. 347 of the complainant may be shifted along the boundry  of the complainant.

This was strongly objected to by the Learned Advocate for the O.Ps. He restricted his  argument as per his petitions dt. 20.06.17, 24.08.17 & 13.12.17 and the main thrust of the Learned Advocate for the O.P is that the complainant is not a consumer of the HT line. The Electricity Act 2003 2 (15) defines a consumer. There is no agreement made between the complainant and the O.Ps for  supplying power from the H.T. line; rather  in this case service line for domestic consumption is granted. Only on being recorded as a consumer of the utility the complainant becomes a consumer.  Hence accordingly the complainant is not a consumer of the H.T. line  drawn over head.  Besides the Learned Advocate for the O.Ps argued that the complainant has not given a properly demarcated passage for the verification and satisfaction of the O.P. to redraw the line.  Only in a cavaliar manner the Advocate for the complainant is arguing that the line can be shifted to the boundary of the complainant.  There are  four corners of the boundary  and the Advocate for the complainant  is not  giving a proper direction as to whether it is east to west or north to south of the boundary. The Annexure-1 was earlier rejected by the O.Ps and the complainant should have been  cautions enough to provide proper demarcated area  which  could have  helped the O.Ps to draw  estimate and do  other necessary formalities for shifting of the H.T. Line.

On the basis of the above he vehemently argued that the complainant is not a consumer, he has not given proper instructions or co-operations in identifying the passage  over which the H.T. line  can be shifted; so as not to endanger the nearby  plots or people in the vicinity.

O R D E R

We heard the arguments of both the sides.   Perused the petitions as well as show cause. Gone through  the documents  filed by the complainant.

This is a peculiar case wherein the complainant has come up for shifting of the H.T. line the complainant is suppressed the  following facts.

1. He has not given the year of the purchase of the plot as well as the completion of the construction of the house.   He has not given any indication whether the over head line was erected long before the purchase of the plot or afterwards, and whether the complainant followed the procedure specified in Rule 82 of the Indian Electricity  Rules, 1956.
2. On whose instruction the complainant deposited to Rs. 500/- towards application money and the letter he addressed to the O.P. No. 1.
3. He has not supplied the cause as to why the contractor to be engaged; did not give any scope or right of way to the O.Ps to shift the H.T. line.
4. Whether he is a consumer coming under the provision of the Consumer Protection Act. 1986.

This four points are converted into issues involved in this case. We are taking of the 4^th issues i.e. whether he is a consumer or not. 

Section 2 (b)  of the C.P. Act 1986 define who is a consumer

(i) buy any goods;

(ii) Hirer  or  avails any service for a consideration.

      Section 2 (e)  of the C.P. Act 1986 defines that consumer dispute means, a dispute whether the  person against whom a complaint has been made, derives  allegation  contained in the complaint.

      Section C (1)  of the C.P. Act 1986 defines  allegation of unfair trade practice for a restrictive  trade  practice has been adopted by any (trader or service  provider).  We are one with the  argument of the  Learned Advocate of the O.Ps that the complainant is neither a consumer as  per 2(15)  of the electricity Act 2003  and under no circumstance the present complainant  can be a consumer of the H.T. line. There is no consumer dispute as per our   understanding after going through the complaint petition as well as the version of the O.Ps.  The O.Ps have agreed to  shift, subject to right of way. Hence this case is not one coming or  satisfying  sec 2 (e)  of the CP Act 1986.  The complaint petition does not reveal how unfair trade practice or deficiency in service was adopted by the O.Ps.  The complainant has not explained as to how unexplained silence and indifferent attitude of the O.Ps amount to  deficiency in service.  The complainant has not  made out the case how the  above leads to deficiency in service .

Hence the issue No. 4 is answered in favour of the O.Ps.

Issue No. 2 & 3 are answered as follows;

The engaged contractor also did not provide the map for shifting of the line,  which was not to the satisfaction of the O.Ps.  The complainant has not provided any further instruction  for giving any concrete proposal during the course of the  case.   He has avoided performing his part of contract and forced the O.Ps to shift the line without  giving proper demarcated line. The complainant has not explained as to on whose instruction the complainant has deposited money.

The first issue is answered as follows; 

The complainant has not supplied the year of purchase of the  plot or the completion of the house. So we take the averment of the O.Ps  in their petition  dt. 13.12.17 that the line was drawn  prior to 1970’s, this  was not controverted  by the complainant and  this is the date when the H.T. line was drawn.  The cited decision is on a different  aspect. New Sabji Mandi at Jalandhar was constructed after requiring the plot by the Mandi Board and  they had deposited the requisite amount  with the Punjab Electricity Board.

The formalities was over and the Hon’ble NCDRC asked for shifting of the H.T line as all the formalities were completed before hand.  In this case the complainant purchased the plot and build this house  much after the  drawing  H.T. line.  He has not given the scope or proper right of way to the O.Ps for  estimating the cost of shifting of line.  Hence the  above cited case  doesn’t help to the complainant.   

In a decided case of JDA Vs The State of Rajasthan & other cited in AIR 1999 Raj 240 the Hon’ble Rajasthan High Court has categorically held that prior to construction of House, the Rules mentioned in Sec. 82 of The Indian Electricity Rules 1956 has to  be  followed by the complainant.  If there was a dispute between the complainant & R.S.E.B., then  the matter could have been referred to the Inspector.  Taking the ratio, & applying it  in this case we are of opinion that the complainant has not followed the guidelines of Rule 82. Let the matter be mutually settled between the complainant & the WESCO as per provisions of Rule 82  of the 1956 Rules.

                  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.