Adv. For the Complainant : -    Sri  Krishna Chandra Mishra

Adv. For OPS                       :-   Bhabani Shankar Satpathy

Date  of filing of the Case :- 31.05.2022

Date of Order                      :-    28.02.2024

JUDGMENT

The Fact of the case in nutshell-

1. The  complainant is a consumer of TPWODL vide No.912134020116 with a meter of 2.0 kw consumption of the electrical energy from the date of installation till 2021. On the month of July 2021 the meter of the complainant was burned which was orally as well as by written submitted to the E.S.O Sindhekela through his lineman in charge of that bit due to the frequent absent of E.S.O Sindhekela .on dt.20.09.2021 the inspection was done by one inspection team who opined that the complainant consumes within 8.0 kw energy. In the month of October 2021 a new meter was installed. But on dt 17/05/2022 the complainant detect Rs.88.220/- was reflected as outstanding of electric dues with a caution for non-payment of the same dues the supply of electricity shall be discontinue. On 20/05/2022 the complainant gave an application for not to disconnect the power but refused by the authority.

The electrical charge levied against the complainant is highly deplorable ,illegal and improper violating the norms of natural Justice the action of the Ops is arbitrary without giving any opportunity to the complainant . Hence this case.

2. To substantiate his case the complainant relied on the following documents.

1. Bill dated 17/05/2022 for the month of April 2022 supported with notice of disconnection dated 17/05/2022.
2. Bill dated 17/08/2021 for the month of July 2021 along with money receipt dated 21/08/2021 amounting to Rs.470/-
3. Money receipt dated 22/03/2022 amounting to Rs.1087.00 for the month of February 2022.
4. Online payment generated through Discoms DISHA regarding status of the meter reading.
5.  
5. Petition dated 20/05/2022 of the petitioner address to the S.D.O . TPWODL Titilagarh .
6. Money receipt dated 29/05/2022 for the month of April 2022 amounting Rs.1238 vide No. 13744290522WS010001.
7. Inspection report duplicate copy of dt20/09/2021 of the inspection officer.

3. Having gone through the complaint it’s accompanied documents and on hearing the complainant prima facie it seemed to be a genuine case hence admitted and notice to the OPS were served and  in response they appeared through their councel and filed the written version.
4. In the rival contention the OPS denied the allegation raised in the complaint. The complainant has never challenged the inventory report as provided under Reg 95 of the supply code 2019 do not constitute any merit so is bound by the same.

No objection if any by the complainant within 7 days and granting an opportunity for personal hearing the assessing officer in charge took decision to impose Rs.88,220 as final assessment against Rs.1,70,883 assessed provisionally which is not arbitrary or illegal . The case is not maintainable before this commission because of the fact that questionrelating to imposition of assessment and penalty u/s 126 of E.C. Act relates to unauthorised use of energy.

5. Heard both the parties perused the material on record with submission and vehement denial of learned advocate for the Ops with arguments.
6. Taking the above facts and circumstances certain issues are emerges for consideration and Just decision of the case those are as follows.

Issue No.1- whether the complaint is maintainable or oust the jurisdiction of this commission ?

Issue No.2-whether the Ops able to prove their case is there any deficiency on the part of the Ops ?

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Issue No.3- whether the complainant deserves any remedies ?

Issue No.1 when there is a wrong constitute a recurrent  cause of action they have every cause, grievance and right to approach the consumer commission.

Interpreted  broadly, positively and purposefully to give meaning to additional extended Jurisdiction  Particular when Sec 100 to provide remedy  under the act in additional to other remedies provided under other acts unless there is a clear bar.  The case in hand it is a case of Sec 126  E.C. Act. For assessment of penalty for unauthorized use of electricity but sec 126 comprises two part 1^st part is inspection, Search and seizure the second part is the penalty assessment . This commission does not interfere with assessment of penalty but if this commission dissatisfy with the first part of sec 126 E.C. Act. It is maintainable for adjudication, issue no.1 answer accordingly.

Issue no.2- The case in hand has only the crux point is the burning of meter , the meter was burned on July 2021 which is corroborate with the statement of status given by DISCOM where it is reflected in 6^th column  it is written as (F) which means the meter was faulty . A regular payment has been made from March 2021 to July 2021. To prove his case the complainant examined a witness namely Jaydev  Bachha based on the affidavit evidence and cross examined by the Ops lawyer who says that he was present at the time of inspection but no signature has been taken on the inspection report. As per the medical evidence the complainant was ill and unable to move . No copy of the inspection report was provided to the legal representative . The Bills which the complainant adduce as evidence shows the Bill receipt dt 24/07/2021 reflect the status of the meter is actual. The receipt dt 24/11/2021 shows the status as meter changed. And the Bill receipt dated 16/12/2021 shows the load factor 0.000 and the meter status is actual. The complainant also adduced the photo copy of the burned meter as evidence as such the inspection on dt 21/09/2021 and the inventory report prepared by the authorising officer is erroneous , arbitrary unreasonable against the norms of natural Justice and the penalty impose upon the complainant is bad in the eye of law full of conjuncture and surmises.

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        More over law provides the authorised officers of licensee companies have been granted powers to inspect , search seizure or break upon any property premises or examine any book of accounts if they have reason to believe that unauthorised use of electricity is being carried on that location /premises or anybody designated on his behalf must be present during the search and a list of all items seized during search should be handed over to him to this effect before two independent witness at least one independent witness or two official witness.

     The provision of CRPC  relating to search and seizure will apply during search conducted under  this act. (Supra-3)

              As already observed the compliance with the procedural safeguards contains in the CRPC are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the authorized officer . It has to borne in mind that where the error irregularity or illegality touching the procedure committed by the authorized officer is so patent and loudly obstructive that it leaves on his evidence an inedible stamp of infirmity or vice which cannot be obliterated or cured then it would be hazardous to place implicit reliance on it (Prithipal Sing Vs State of Punjab).

      In Menaka Gandhi  Vrs union of India it was held that when a statute itself provides for a reasonable fair and Just procedure it must be honoured , at least two independent witness.

                   Violation of statutory safeguards committed by the authorised officer during search and seizure operation and may also undermine respect of law that cannot be permitted. I am unable to find any reason why the authorized officer did not even make any attempt to associate any independent witness during the course of search operation not even a signature of the independent witness or two signature  of the official witness throw him to suspicion.

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                No doubt Sec 126 of E.C Act is to generate revenue and a measure of un authorised use of energy which is the intention and spirit of the legislation if it is not then it became fractious . It does not mean without following the procedure of law hand over a provisional assessment is erroneous arbitrary which leads to litigation.

        More over there is not a single document found on the record on which the Ops relied to prove  their credential as such the Ops failed to prove Sec 126  E. C Act rather non supply of meter after burned is the deficiency of service on the part of the Ops and in the mean time made the inspection leads to suspicion as such the Ops are failed to prove  the onus lies on them. Issue No.2 answered accordingly.

     Issue No.3-  after analysis of the issue no 1 and 2 it revels that without complying the procedure of CRPC at the time of inspection and search and seizure the Ops simply made an inventory report for assessment of penalty is does not admissible at all it is only an arbitrary action and misutilization of power conferred by the statute only to pocketing the money not to generate the revenue for the government  no opportunity should be given to the assessee to move to any Judiciary for litigation as such this commission feels that the present case not comes under Sec 126 E.C Act and the complainant deserves the remedies for the deceptive and unfair trade practice. sequel to the above discussion this commission gave our thoughtful consideration in favour of the complainant as per the following directions.

ORDER

This commission pleased to waive the penalty of Rs.88.220/- reflected as outstanding. The OPs are directed not to disconnect the power supply of the complainant taking the old cause of action and dues.

            Further directed to comply the order with connection of the Bill  up-to-date within one month from the date of order.

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             Further  directed a sum of Rs.20,000/- towards mental agony and Rs.5,000/- towards litigation expenses should be paid by the Ops within one month from the date of order failing which the entire amount should be paid by the Ops @12% interest per annum from the date of filing of the case till realization.

No award as to cost.

PRONOUNCED IN THE OPEN COMMISSION TODAY I.E DATED  28^th   DAY OF February ’2024