Present : Sri. C.T. Sabu, President
Smt. Sreeja. S., Member
Sri. Ram Mohan R., Member
25th day of January 2023
CC 326/13 filed on 09/07/13
Complainants : Afsabi Abdul Khader, W/o Abdul Khader,
Kunjimakkachalil House, Eriyad,
Kodungallur, Eriyad Village,
Eriyad Desom, Kodungallur Taluk.
(By Advs. N.O. Inasu & M.S. Rajesh, Thrissur)
Opposite Parties : 1) Assistant Executive Engineer,
Kerala State Electricity Board,
Electrical Section, Eriyad.
2) Secretary, Kerala State Electricity Board,
Pattom, Thiruvananthapuram.
(By Adv. M.K. Gireeshmohan, Thrissur)
O R D E R
By Sri. C.T. Sabu, President :
Facts of the Case as follows:
The dispute with regard to the issuance of short assessment bill for Rs.1,26,881/- towards the Consumer No.321 under Electrical Section, Eriyad. The complainant alleged that the bill issued without any bonafides and illegal and has to be cancelled. The complaint is preferred for the cancellation and compensation.
2) On receiving complaint notice was issued to the opposite parties. The opposite parties appeared before the Commission and filed their version. The version of the opposite parties is as follows : The complaint is not maintainable. The connection is registered in the name of the complainant Afsabi, to her business unit named as ‘KK Foods’. The 1st opposite party is the Assessing Officer under Section 126 of the Electricity Act, 2003, designated as such by the State Government. An inspection was conducted by the authorised officer on 06/06/23 and after the preparation of the site mahazar issued notice to the complainant. On 10/06/13 issued short assessment bill for Rs.1,26,887/-. After remitting Rs.63,441/- the complainant preferred hearing on 18/06/13 before the Assessing Officer and admitted the inspection and site mahazar and usage of electricity. No sufficient documents were produced for reducing the bill amount as claimed by them. As they have failed to substantiate the claim the provisional assessment was confirmed and issued final assessment bill for the amount with the calculation details on 20/06/13. The bill was issued to the consumer as per the provisions of the KSEB terms and conditions of supply approved by the Kerala Electricity Regulatory Commission. In accordance with the provisions of the Electricity, Act 2003 the bill amount towards the net charges amount is arrived in terms of regulation of electricity supply code 2005 of KSEB terms and conditions of supply. The difference between the bill amount as per the average consumption before the meter shown from less consumption and the recorded consumption. It is submitted that actual cost or no penal interest is demanded. As such there is no deficiency in service in the matter and there is no real cause of action exists against the opposite party. The opposite party have acted in strict consonance with supply code. Hence the present complaint is not maintainable and is liable to be dismissed.
3) Points for consideration are :
a) Whether this complaint is maintainable before the Hon’ble
Commission or not ?
b) Whether there is any deficiency in service on the part of the
opposite parties ?
c) If yes, reliefs and costs.
4) When the case came for evidence the complainant filed proof affidavit in which he affirmed and explained all the averments made in the complaint. To prove the facts 6 documents were produced from the side of complainant along with the proof affidavit. The documents produced are marked as Exts. P1 to P6. Ext. P1 is the Receipt dtd. 02/07/2013; Ext. P2 is the Receipt dtd. 02/07/2013; Ext. P3 series (3 Nos.) comprises Notice dtd. 10/06/13, Bill details and penal charge calculation details. Ext. P4 is the copy of Registration Certificate under FSS Act 2006 dtd.12/02/2013. Ext. P5 is the copy of Residential / Ownership Certificate dtd. 22/01/2013 and Ext. P6 is the copy of acknowledgement dtd.15/06/2013. From the side of opposite parties also filed counter proof affidavit in which he affirmed and explained all the averments made in the version. The documents produced are marked as Exts. R1 to R7. Ext. R1 is the copy of site mahazar dtd. 06/06/2013. Ext. R2 is the copy of appeal application dtd.21/08/2007. Ext. R3 is the copy of letter dtd. 15/06/13. Ext. R4 is the copy of letter dtd.15/06/13. Ext. R5 is the copy of Appeal Hearing dtd.18/06/13. Ext. R6 is the copy of Final assessment
5) When the case came up for final hearing the learned counsel for the opposite parties very particular about the maintainability of the complaint and preferred this IA 312/22. In the IA they have taken the contention that, the electricity industry in the land is governed by the Indian Electricity Act, 2003 (Central Act 36 of 2003). Section 126 & 127 of the Act states what constitute an unauthorised use of electricity, the way in which the same has to be assessed, the authority entitled to do so, the remedy available to a consumer etc;. That no other authority than what is stated in the said provision is entitled to assess a consumer on detection of unauthorised use of electricity. Also no authority other than the appellate authority envisaged in the Act is allowed to sit in Judgement over the final order of assessment made by an Assessing Officer., The interdict as per Sec. 145 of the Act is a clear point to this effect.
That this Hon’ble Commission having no jurisdiction to decide the matters which come under the scope of Sec. 126 of the Electricity Act, 2003. That there is so many supported Rulings passed by the apex court, exactly to this point. Therefore, the above case is not maintainable before this Hon’ble Commission and this Commission has no jurisdiction to entertain this kind of case and is liable to be dismissed without going to the merits of the case. They have produced ruling of Apex Court in UP Power Corporation Ltd. and Others Vs. Anis Ahmed (2013(8) SCC 491).
The apex court held that the raising of an additional demand in the form of short assessment notice on the ground that in the bills raised during the particular time multiply factor was wrongly mentioned, is not tantamount to deficiency in service. If a licensee discovers in the course of audit or otherwise that a consumer has been short billed, the licensee is certainly entitled to raise a demand. Both the parties admitted that the bill is issued for the short assessment for the period 06/12 to 06/2013 on the basis of the assessment and preparation of Mahazar dtd. 06/06/13. The Provisional assessment bill and the final bill issued to the complainant are under Section 126 of Electricity Act. It is evident from the documents R1 to R6 produced by the petitioners (Opposite parties in CC).
The Apex Court held that a complaint against the assessment made by Assessing Officer under Section 126 or against the offences committed under Section 135 & 140 of the Electricity Act 2003 is not maintainable before a Consumer Commission.
Going through the complainant’s evidence it is proved that the action initiated by the petitioner (the opposite party in CC) was under Section 126 of the act. At this juncture it is pertaining to note that Hon’ble Apex court has held in UP Power Corporation Ltd. and Others Vs. Anis Ahmad [2013 (8) SCC 491] that the complaint is not maintainable before this Commission. Since we find this complaint is not maintainable, the IA is allowed. Accordingly the complaint stands dismissed.
In the result the petition allowed and the complaint stands dismissed without cost.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 25th day of January 2023.
Sd/- Sd/- Sd/-
Sreeja S. Ram Mohan R C. T. Sabu
Member Member President
Appendix
Complainant’s Exhibits :
Ext. P1 Receipt dtd. 02/07/2013
Ext. P2 Receipt dtd. 02/07/2013
Ext. P3 series (3 Nos.) comprises Notice dtd. 10/06/13, Bill details and penal
charge calculation details.
Ext. P4 copy of Registration Certificate under FSS Act 2006 dtd.12/02/2013. Ext. P5 copy of Residential / Ownership Certificate dtd. 22/01/2013
Ext. P6 copy of acknowledgement dtd.15/06/2013
Opposite Parties’ Exhibits :
Ext. R1 copy of site mahazar dtd. 06/06/2013.
Ext. R2 copy of appeal application dtd.21/08/2007.
Ext. R3 copy of letter dtd. 15/06/13.
Ext. R4 copy of letter dtd.15/06/13.
Ext. R5 copy of Appeal Hearing dtd.18/06/13.
Ext. R6 copy of Final assessment
Id/- President
