IN THE PRESIDENT, DISTRICT CONSUMERS DISPUTE REDRESSAL FORUM, SAMBALPUR
C.C. No.17 of 2018
Gitanjali Mishra,
Wife of Shri Mohini Mohan Mishra,
Aged about 48 years,
Resident of Bhimabhoi Nagar, Danipali
At/P.O./Dist-Sambalpur ……………… Petitioner
-VERSUS –
- M/s. Western Electrical Supply Company of Odisha Ltd,
Represented through its Managing Director,
At/P.O. Burla,
Dist-Sambalpur, Odisha.
- Jasmeet Singh Chhabra,
-
At – office of Electrical Sub-Division – I
At- Ainthapali,
Dist-Sambalpur, Odisha..………….. Opp. Parties
For Complainant : Shri R.N. Debata & Associates
For O.P.s No.1 & 2 : Sri Sudhir Kumar Dora & Associates
PRESENT:- SHRI A.P. MUND, PRESIDENT
SMT. S. TRIPATHY, MEMBER
SHRI K.D. DASH, MEMBER
Date of Order: 21.05.2018
Shri A.P. Mund, President
The case of the complainant is that she has taken two domestic consumer No. 411722060329 & 411722060241 of 2 K.W. load of each and according to the complainant there is no outstanding dues of the WESCO utility against her.
On dt. 10.03.2018 at about 10.30 A.M. O.P. No. 2 along with some other persons came to the residence of the complainant. At that time only the husband of the complainant was alone in the house. O.P No. 2 informed the complainant’s husband that they have come from electric deptt. and intend to check the electric line and meter. The husband of the complainant protested and saying that during last one year the line has been checked and verified four times. But on instance of O.P. No. 2 the husband of the complainant allowed the O.P. No. 2 and his staff should installed the electric installation. According to the complainant, O.P. No. 2 broke the seal of the mechanical meter No. 411722060329 and asked for a replacement of the mechanical meter with a digital one. The O.P. no. 2 bargained with the husband of the complainant and settled at Rs. 60,000/- and assured the complainant’s husband that when money will be paid then the receipt will be given. But the husband refused to pay without any written order.
Further the case of the complainant is that O.P. No. 2 left the premises without resealing the mechanical meter though he was requested to do the same.
According to the complainant she was not communicated, without any inspection report nor received any notice/letter from the O.P. neither for the aforesaid penalty or for disconnection of electric line. That suddenly on 29.03.18 at about 11 A.M. the O.Ps disconnected the electric line without any notice. The complainant was informed by the staff that they should meet the O.P. No. 2 for restoration of electric line. The husband of the complainant contacted O.P No. 2 and refused to reconnect the line unless Rs. 60,000/- is paid and repeated the previous assurance that when penalty will be paid the receipt will be granted.
That according to the complainant the above act of disconnecting the line on 29.03.18 made the complainant to suffer a lot which could not be compensated by money. It is further case of the complainant that O.P. No. 2 has never been appointed by the State Govt. to exercise any power under the Electricity act or any other law to break the seal of the mechanical meter, demand penalty, and disconnect the electric lines. On the basis of the above the complainant prays that ;
- the O.Ps may kindly be directed to restore electric connections to the house of the complainant under Consumer Nos. 411722060329 & 411722060241 immediately.
- the O.Ps may kindly be directed to pay compensation of Rs. 4,00,000/-(Four lakhs) to the complainant for the harassments and mental agony caused to her by the O.P No. 2.
- the costs of the present case, and
- any other fit and equitable reliefs as the Hon’ble Forum thinks fit and proper.
The complainant also filed one petition u/s. 13 (3) (b) of the Consumer Protection Act with a prayer for restoration of line to both the connections to support her case. She has filed two documents which are money receipts from January to March 2018.
As per evidence the complaint for both the connections filed six nos. of receipts which are given below.
Sl. No. Order No. Consumer No. Amount
1 4850763184 411722060241 Rs. 106/-
2 4697122916 411722060241 Rs. 89/-
3 4544040668 411722060241 Rs. 90/-
4 4850761565 411722060329 Rs.254/-
5 4697119745 411722060329 Rs.192/-
6 4544047096 411722060329 Rs. 183/-
After receipt of notice the O.Ps made their appearance and on 06.04.2018 filed a petition stating that the case is under 126 of the l.E. Act 2003. In this petition they prayed for withdrawal of the interim order, which was passed by this forum. On dt. 12.04.2018 the O.Ps filed a written statement. Their main contention is that vigilance squad WESCO made a routine check up on the premises of the complainant on 10.03.18. The husband of the complainant was present during the time of checking. The vigilance squad found that there was by-pass of 6.5 k.w. of load factor against the permitted load of 2 k.w. . There was a total load factor of 10.5 k.w. in both the meters. The physical verification report (PVR) was prepared on the spot. The by-pass patch map was prepared and the signature of the complainant’s husband was taken and one copy was handed over to the complainant on the same day. This PVR report was sent to the O.P. No. 2 to made a provisional assessment order u/s. 126 of Indian Electricity Act 2003 against the complainant with the penalty of Rs. 1,19,590/- (Rupees one lakh nineteen thousand five hundred ninety only). A messenger was sent with the order which was refused to be received by the complainant. Hence the messenger affixed the order on the wall of the premises on dt. 14.03.18 . The assessing Officer u/s. 126 of the IE Act 2003 made the final assessment order on dt. 31.03.18 which was posted on 5.4.18 as the complainant earlier had refused the professional assessment order dt.14.03.18. The final assessment order was made/compiled within a stipulated period of thirty days from the date of issuance of provisional order as per the act. According to the O.Ps. the complainant agitated the matter before this forum on dt. 04.04.18 and u/s. 56 of the Electricity Act 2003. According to this O.P. the matter is squarely u/s. 126 of the Electricity Act 2003. And the consumer forum has no role to adjudicate the matter, as per the Hon’ble Supreme Court ‘s decision in U.P. power corporation ltd. Vrs. Anis Ahmad in which the Hon’ble Supreme Court has held that “ Act of person indulging in unauthorized use of electricity does not fall within the mandate of complaint and therefore the complaint against the assessment order of sec 126 of the IE Act 2003 is not maintainable in consumer forum”. The aggrieved consumer can file an appeal u/s. 127 of the IE Act 2003 against the assessment order before the Grievance Redressal Forum (GRF) and from the order of the GRF an appeal can be filed before the CE ombudsman u/s. 42 (7) of the IE Act 2003. According to the O.Ps the complainant has got three forums available to her instead of utilizing this forum. She has come up with a case before this forum and according to them this forum has no jurisdiction to entertain such an application on the basis of the above prayed that the case is coming u/s. 126 and not 56 of the IE Act. Hence the case may be kindly dropped or dismissed. To substantiate their claim they have filed documents as per list.
Sl. No. Date Description Remarks
1 10.03.18 PVR of Consumer Original
2 14.03.18 Provisional Assessment Order Original
u/s. 126 IE Act. 2003 to G. Mishra (O/C) 2 sheets
3 31.03.18 Final Assessment Order
05.04.18 u/s. 126 (3) IE Act. 2003 to G. Mishra Original
through Regd. Post/A.D (O/C) 2sheets
4 05.04.18 True copy of Post A.D & receipt True copy
5 Tracking report of the Final assessment
Order u/s. 126 (3) to G.Mishra sent through
R.P/A.D , delivered on 06.04.18 Net copy
On receipt of the written version of the O.Ps the complainant filed one petition under order 19 rule 2 of the CPC which was orally objected by the O.P’s Advocate and vide order of this forum dt. 24.04.18 the petition was rejected. The complainant further filed one lists of documents which is the Advocate notice dt. 21.04.18. The O.P. had filed the written argument on 03.05.18 along with the Xerox copy of Sambad of dt. 15.04.18 stating that the WESCO was penalized by this forum. The complainant files another list of documents on 03.05.18 which is as follows;
- Copy of Plaint of CS No. 113/2018 of the Court of Senior Civil Judge, Sambalpur.
- Copy of petition u/o 39, R-2 & 2 of IA No. 16/2018 of the Court of Senior Civil Judge, Sambalpur.
The complainant also filed one affidavit evidence on behalf of the complainant this was vehemently objected to by the Advocate of the O.Ps.
After hearing arguments from both the sides the Affidavit petition was rejected and heard argument of the case. The main point of the argument of the Learned Advocate of the complainant is that on 10.03.18 the O.P No. 2 broke upon the seal of the mechanical meter, bargained the penalty price without giving any order. On 29.03.18 both the line were disconnected & the complainant approached this Forum and the O.Ps were with an interim order asked to reconnect the line and on 06.04.18 the connections were restored.
On 06.04.2018 the registered notice u/s. 126 (3) was received by the complainant. This was issued without any prior provisional assessment order.
The complainant on 20.04.18 filed one C.S. No.113/18 and IA No.16/18 before the Court of Senior Civil Judge, Sambalpur. The case is pending before Civil Judge.
According to the Advocate for the complainant u/s. 127 of the Electricity Act enumerates how service is to be made only on refusal by the person namely re-noticed, the notice can be affixed in the presence of witness. In this case the order dt. 14.03.18 was not properly served. The O.Ps had not produced any witness or peon book or the peon. Hence according to the Learned Advocate for the complainant order dt. 14.03.18 and 31.03.18 are null and void as the O.Ps had not compiled the provision/section 127 (3) of the Electricity Act 2003.
According to the complainant the O.Ps had not filed any notification u/s. 126 who is authorized by the State Govt., to conduct inspection and preparation of PVR., S.D.O. was never appointed by the State Govt. who act as the Assessing Officer and hence the order dt. 14.03.16 and 31.03.18 are void ab- initio.
On the basis of the above the Learned Advocate for the complainant argued that matter does not fall u/s. 126 of the Electricity Act as the O.P.s have violated the safeguard prescribed under section 127 and hence this forum has ample power to grant the release claim to the petition. The complainant filed one written argument.
The Learned Advocate for the O.P. stuck to the stand taken up among that the matter squarely falls u/s. 126. He also refuted the plan of the complainant that O.P. No. 2 raided the house of the complainant and broke open the seal of the meter.
According to the Learned Advocate for the O.Ps the complainant has taken two connections of 2 K.W. of 2 each. One for up stair and another for down stair. One connection is absolutely correct. On 10.03.18 at around 10.15 A.M. the vigilance team comprise of two persons jointly conducted an inspection on the premises of the complainant. The vigilance team found that the complainant was using unauthorized load of 6.5 K.W.. The vigilance team found that for the two connections the complainant is using 10.5 K.W. load factor. This 6.5 K.W. is above the permitted load factor of 2.K.W. The vigilance team found that the complainant has by-passed the meter. And they prepared a physical verification report (PVR) and the PVR report was signed by the husband of the complainant in Spot.
The O.P. was intimated by the vigilance team and PVR report was handed over to him. The O.P. No. 2 sent assessment order basing on the PVR to the complainant through messenger service u/s. 126 (1) (2) of the Electricity Act 2003. The Learned Advocate for the O.Ps argued that electricity act authorized the authority to affix the service. Hence affixture was made by the concerned peon.
On dt. 31.03.18 final assessment order was passed u/s. 126 of the electricity Act . This was regd. on 05.04.18 and the complainant received the same on 06.04.18.
As a defence to the disconnection of both the lines the learned Advocate for the O.P. submitted that the O.Ps had disconnected the line of the impugned meter No. 411722060329 on dt. 14.03.18. The staff of the O.P.s made a surprise visit to the premises of the complainant on 29.03.18 and found that the complainant has illegally reconnected the disconnected matter from the ground floor meter No. 411722060241. This is a clear violation of the agreement between the complainant and the utility. This is also a theft of electricity which comes under section 135 of the electricity act (the complainant was not booked for theft as per provision) finding no alternative, the staff of the O.Ps on dt.29.03.18 disconnected both the lines as the complainant has circumvented the law and did an act which is clear violation of law. They further submitted that all the documents given & submitted before the forum are genuine and not fabricated. He elaborated on the squeezing of authority of this forum, by the Hon’ble Supreme Court in the U.P. Power Corporation Vrs Anis Ahmad and strongly submitted that this forum has no jurisdiction to conduct the case as held in the above citation.
ORDER
We have gone through the submission of the Learned Advocate’s for both the sides. Also gone through the documents. Initially the case was filed u/s. 56 of the electricity act along with the petition u/s. 13(3)(b) of the Consumer protection Act 1986, the complainant satisfied this forum that as she is paying her dues regularly, there is no reason for disconnection of the line. On the submission we were satisfied that deficiency in service was committed by the O.Ps. Hence an interim State order was granted for reconnection of the line.
The O.Ps appears through their advocates. The Learned Advocate successfully converted the initial case which was filed u/s. 56 of the electricity Act to one coming under 126 of the Electricity Act 2003. The Hon’ble Supreme Court in U.P. Power Corporation Vrs Anis Ahmad as dealt thoroughly with the provision of Electricity Act and vis a vis the C.P. Act and held that once it is established that the complainant has violated section 126 electricity Act 2003 then he has no more a complainant as defined u/s. 2 (1) (b). And the dispute between the complainant and the utility is no more a consumer dispute as defined u/s. 2 (e) of the Consumer Protection Act . The Hon’ble Supreme Court has further held that that consumer forum cannot derive power to adjudicate a dispute in relation to assessment made under sec-126 or offences u/s. 135 to 140 of the electricity Act, as the Acts of indulging in “unauthorised use of electric” as defined u/s. 126 or committing offence u/ss. 135 to 140 do not fall within the meaning of complainant” as defined u/s. 2 (1) (c) of the C.P. Act 1986.
The decision further elaborate that the “complaint “ against assessment u/s. 126 is not maintainable before the Consumer Forum.
Under Article 141 of the Constitution of India, this is a law of the land. Accordingly we held that the case squarely falls under section 126 of the electricity act and hence we dismiss the case as not maintainable before this forum.
Under the circumstances the parties are to bear their own 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.
