District Consumer Disputes Redressal Commission, Aligarh
Date of Institution : 17.09.2022
Date of final hearing:
Date of Pronouncement:
Case No.174/2022
IN THE MATTER OF
Mohd. Wasim S/o Mohd.Zakir R/o Khai Dora, Kala Mahal Upper Kot, Aligarh
V/s
Executive Engineer, Electricity Urban Distribution Division Ist. 33/11 KV Electricity Substation Sasni Gate,Agra Road, Aligarh
(Through: Rekha Verma)
CORAM
Present:
Shri Hasnain Qureshi, President
Shri Alok Upadhayay, Member
Smt. Purnima Singh Rajpoot, Member
PERONOUNCED by Shri Hasnain Qureshi, President
JUDGMENT
The present complaint has been filed by the complainant before this commission alleging that he is the consumer of the Op through electricity connection and prayed forthe following reliefs-
Op be directed to refund or adjust the amount Rs. 79066/ in the Electricity bills.
Op be directed to withdraw the proceedings pending in the court of special Judge against the complainant.
Op be directed to pay to the complainant Rs. 100000/ as compensation.
The Complainant has stated that he is supplied with electricity by the Op for domestic use through LMV-1 Electricity connection no. 7819833390 of 2KW and he has been making payment of electricity bill regularly. On 26.09.2019 Deepak Kumar J.E. with the enforcement Team inspected the premises of the complainant and it is alleged that besides the incoming cable of the service connection coming from the pole , electric energy was being used illegellay in the premises through black cable connected with Lt line near the premises of the complainant. The person present on the spot told his name MOhd. Waseem S/o Jakir , checking report was prepared and FIR was lodged U/s 135 Electricity Act for committing theft of electric energy. Complainant has challenged the saidact against the provisions of UP Electricity Code 2005 and stated that he had moved application dated 30.01.2020 with allegation that he had gone to Ahmadabad by flight on the date of checking on 26.09.2019 and his wife had been living in her maternal house. The enquiry was made by the SDO who found that no commercial dairy was running in the premises and submitted report dated 6.7.2020. the assessment made atRs. 79066 for commercial usewas replaced by domestic use at Rs. 20904/. Complainant paid the said amount under the apprehension of taking coercive measures by the op for realization of amount. Police also submitted charge sheet against the complainantand he was summoned by the court on the basis of false accusations made in the F.I.R. Complainant suffered physical and mental pains by the acts of OP’s staff and by adopting unfair Trade Practice with the Complainant in supply the electricity.
Op has filed WS on 9.12.2022 after expiry of 45 days from the date ofeffecting service on 20.09.2022. WS was not admitted on record. Case was proceeded for ex-Parte evidence.
Complainant has filed his affidavit and papersin support of his pleadings.
We have perused the material available on recordand heard the parties counsel.
The first question of consideration before us is whether there exists any case of theft of electricity against the complainant?
Complainant has deposed his version in affidavit which is unrebutted . OP did not file the WS within 45 days after receiving the notice and case wasproceeded ex parte in view of law laid down in New India Insurance Co. Ltd. Vs Hilli Multi pupose Cold Stroes on 4.3.2020 by Hon’ble Supreme Court .
Complainant has deposed in his affidavit that the alleged inspection on 26.09.2019 was not made in his presence and no representative of the complainant was present at that time. The alleged checking report was not signed by the complainant or his representative. Nothing was seized and no list of any seized thing was delivered to any person as occupant of the premises. No photography was made of the alleged checking. Complainant has also cited the provisions of clause 4.3.0 and 4.34 with the provisions of sub clause iii , iv, v, viofclause 6.8(a)ofU.P. Electricity Supply Code ,2005 which were not followed by the op in respect of the alleged checking. This vitiates the sanctity and veracity of the inspection alleged to have been made by the op’s staff and such a inspection report can not be relied upon for fastening criminal liability of committing theft of electricity by the complainant.
It is alleged that theft of electricity was being committed in the premises near to LT line. Complainant had moved application 30.01.2020 annexure 4 to the Op wherein he had clearly stated that he had gone to Ahmadabad by flight on 26.09.2019 at the time alleged checking and he had reached to Ahmadabad at 6.30AM. He was not present at the premises at the time of checking at 6AM . He has filed e- ticket of Airline (annexure5) which supports his version and thus deposition made by him in the affidavit can not be disbelieved.it is thus proved that the complainant had not signed the checking report and the allegation made in the report that the person present at the spot who had stated his name Mohd. Waseem S/o Zakir can not be the complainant. Thus it is falsified that the complainant was present at the time of alleged checking and the whole storymade by OP staff is proved concocted. There is nothing like photography to support the story of the OP. There is nothing to believe that theft of the electricity was committed by the complainant .
Complainant has deposed that his application dated 31.01.2020 was considered by the Op and it was sent to SDO vide letter dated 28.02.2020 annexure 7 to enquire into the matter. The SDO enquired the matter and submitted report dated 6.7.2020 annexure 8 wherein it was stated that no commercial dairy was found running in the premises. The premises is situated near the LT line. Therefore it was felt that the theft of the electricity was being committed. It makes clear that there was only apprehension of committing theft of electricity by the complainant and he was not actually committing theft of electricity. Under the circumstances the assessment on the basis of alleged theft ought not to have been raised by the Op.
Complainant has filed a recommendation letter annexure 10 containing the signatures ofrevenue assessment clerk and accountant (revenue) but it was not signed by the OP and therefore it was not finalized. ? It is sufficient proof to show the conduct the Op staff in dealing with the matter. In this recommendation letter it has been mentioned that the assessment was made at Rs 79066/ as per checking report for theft of electricity for commercial use and it has been found in enquiry that there was no theft of electricity of commercialuse , the assessment may be made at domestic use if approved. It was not approved by the Op hence the assessment was not reduced at domestic use which was raised at Rs. 79066/ for commercial use. This is also a proof to, show that the complainant had not committed theft ofelectricity .
It is also relevant to discuss here about the opportunity for filing the appeal u/s 127 Electricity Act 2003 read with clause 6.8( c ) U.P.Electircity code 2005. Complainant has deposed in his affidavit that he was never served with the notice dated 10.12.2019 of the provisional assessment (annexure 9).In this notice complainant was asked to raise objection by 30.12.2019, but the complainant could not avail the opportunity to file objection as he was not served the notice dated 10.12.2019. Thus the complainant was deprived from exercising his statutory right of appeal U/s 127 of the act. It was the act of omission and negligence on the part of Op which vitiates the assessment raised by the Op.
The question formulated above is decided in favour of the complainant and he is entitled for the refund of the amount Rs. 79066/.
The second question of consideration before us is whether the District Consumer Commission has jurisdiction to decide the present case?
Complainant is supplied with the electricity by the op through connection no. 7819833390 of 2KW for domestic use and he pays the electricity charges. Therefore complainant is consumer of the Op in view of section 2 (15) of the Electricity Act 2003 as well as in view of section 2(7) (ii) of the CP Act, 2019 and therefore op is the service provider and District consumer Commission is vested with the jurisdiction to decide the dispute involved in the case. As per enquiry made by SDOassigned to him by the Op the complainant was not guilty for committing theft ofelectricity and therefore it was not a case of theft electricity. The op ought to havesent the report of enquiry to the police to appraise the Investigation Officer regarding the actual story of case and to drop the investigation proceedings to avoid the harassment of the complainant from criminal; prosecution in the court of special Judge under the Electricity Act. Under the circumtances op should have taken suitable steps in criminal case U/s 135 Electricity Act pending in the court of Special Judge Aligarh against the complainant.
The question formulated above is decided in favour of the complainant as above.
The third question of consideration before us is whether the complant case is time barred ?
Op had raised the assessment on 10.12.2019 as provisional assessment and the complainant raised objection against assessment on 31.01.2020. The enquiry was made by the SDO under the direction of Op and report was submitted on 6..7.2022. complainant received the summon from the criminal court in criminal case on 6.12.2021. The cause of action for filing the case finally matured on 6.12.2021. More over complaint was admitted and the Commission has power U/s 69(2) of the C.P. Act ,2019 to condone the delay and on admission of the complainant, delay if any stands condoned.
The question formulated above is decided in favour of the complainant as above.
Keeping in view the facts of the present case, we hereby direct that Op to refund or adjust Rs.79066/in the electricity bills with pendente lite and future interest at the rate 9% per annum and Rs. 10000/ as compansans for harassment.Op is also directed to take suitable steps for withdrawing the criminal case pending in the court of Special Judge , Aligarh against the complainant.
A copy of this judgment be provided to all the parties as per rule as mandated by Consumer Protection Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties. A copy ofjudgment be sent to Chief Engineerfor necessary action.
File be consigned to record room along with a copy of this judgment.
( Hasnain Qureshi )
President
( Alok Upadhayay)
Member
Pronounced On:
