The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the J.E, NESCO, Gopalpur Section, Gopalpur, Balasore and O.P No.2 is the S.D.O, NESCO, Bahanaga, Balasore.
2. The case of the Complainant in brief is that the Complainant is a domestic Consumer under the O.Ps bearing Consumer No.4232/12010757 and paying electric bills regularly to the O.Ps. There was an arrear of Rs.6,705/- (Rupees Six thousand seven hundred five) only till February-2014, but the bills for March and April-2014 reflect the amount of Rs.45,358/- (Rupees Forty five thousand three hundred fifty eight) only and Rs.45,627/- (Rupees Forty five thousand six hundred twenty seven) only respectively and the O.Ps have denied to receive the monthly bills from the Complainant. On an enquiry in the Office of the O.Ps, the Complainant came to know that the O.Ps checked the installation on 10.02.2014 and observed that during verification, load enhanced from 1 K.W to 2.5 K.W from the main service way nutral point opened, but the light is blowing to the nutral is open and advised for meter to be replaced immediately and the inspecting Officer is directing to assessment as per provision U/s.126 of O.E.C.C Act mentioning the meter was not running due to open of neutral and proposed enhancement due to 4 nos. of bulbs, 2 nos. of fans, one T.V, one Fridge and one motor. No meter has been replaced yet, following corresponding assessment in spite of spot verification report dtd.10.02.2014, such as assessment of Rs.45,627/- (Rupees Forty five thousand six hundred twenty seven) only reflecting in the month of April appears to be false and arbitrary assessment against the Complainant. Cause of action arose on 10.05.2014. The Complainant has prayed for waiver of arbitrary bills imposed upon him. Neither the Complainant nor his Advocate was present at the time of hearing of this case.
3. Written version filed by the O.Ps through their Advocate denying on the point of maintainability, jurisdiction as well as its cause of action. The O.Ps have further submitted that on 10.02.2014, the checking squad of the O.Ps have verified the premises of the Complainant, where it was detected that the Complainant was availing power with a load of 2.5 K.W against the contract load of 1 K.W unauthorisedly by tampering the meter and the meter is defective and it has no seal. Thus, the spot verification report was prepared and the Complainant has signed on it. Basing on the spot verification report, provisional assessment order has been made U/s.126 of Electricity Act-2003 vide letter No.269, dtd.17.02.2014. Accordingly, final assessment order was prepared and served to the Complainant vide letter No.322, dtd.28.02.2014 for Rs.38,774.40 ps. (Rupees Thirty eight thousand seven hundred seventy four and forty paisa) only assessed as a penalty and Rs.1,390/- (Rupees One thousand three hundred ninety) only has been added towards security money. From the billing status, it is seen that Rs.46,687.81 ps. (Rupees Forty six thousand six hundred eighty seven and eighty one paisa) only is lying outstanding against the Complainant up to August-2014. Moreover, a “complaint” against the assessment made by the assessing Officer U/s.126 or against the offences committed U/s.135 to 140 of the Electricity Act-2003 is not maintainable before a Consumer Forum. So, the case of the Complainant is liable to be dismissed.
4. In view of the above averments of both the Parties, the points for determination of this case are as follows:-
(i) Whether this Consumer case is maintainable as per Law ?
(ii) Whether there is any cause of action to file this case ?
(iii) To what relief the Complainant is entitled for ?
5. In order to substantiate their claim, both Parties have filed certain documents as per list. Perused the documents filed. Neither the Complainant nor his Advocate was present at the time of hearing of this case. So, his pleading is his case. According to his pleading, there was an arrear of Rs.6,705/- (Rupees Six thousand seven hundred five) only till February-2014, but the bills for March and April-2014 reflect the amount of Rs.45,358/- (Rupees Forty five thousand three hundred fifty eight) only and Rs.45,627/- (Rupees Forty five thousand six hundred twenty seven) only respectively and the O.Ps have denied to receive the monthly bills from the Complainant. On an enquiry in the Office of the O.Ps, the Complainant came to know that the O.Ps checked the installation on 10.02.2014 and observed that during verification, load enhanced from 1 K.W to 2.5 K.W from the main service way nutral point opened and the meter was not running due to open of neutral and proposed enhancement due to 4 nos. of bulbs, 2 nos. of fans, one T.V, one Fridge and one motor. No meter has been replaced yet. The O.Ps assessed Rs.45,627/- (Rupees Forty five thousand six hundred twenty seven) only, which is false and arbitrary assessment against the Complainant. Thus, the Complainant has filed this case praying for waiver of arbitrary bills imposed upon him. On the other hand, it has been argued on behalf of the O.Ps that on 10.02.2014, the checking squad of the O.Ps have verified the premises of the Complainant, where they have found that the Complainant was availing power with a load of 2.5 K.W against the contract load of 1 K.W unauthorisedly by tampering the meter and the meter is defective and it has no seal. Thus, the spot verification report was prepared and the Complainant has also signed on it. Thereafter, observing necessary formalities of Law, provisional assessment U/s. 126 of Electricity Act-2003 was prepared, which was served to the Complainant vide letter No.269, dtd.17.02.2014 and accordingly, final assessment order was prepared for Rs.38,774.40 ps. (Rupees Thirty eight thousand seven hundred seventy four and forty paisa) only assessed as a penalty and Rs.1,390/- (Rupees One thousand three hundred ninety) only has been added towards security money, which was also served to the Complainant vide letter No.322, dtd.28.02.2014. From the billing status, it is seen that Rs.46,687.81 ps. (Rupees Forty six thousand six hundred eighty seven and eighty one paisa) only is lying outstanding against the Complainant up to August-2014. The Complainant has neither complied the assessment order made by the O.Ps nor appealed before the appellate authority, rather filed this case in this Forum. So, when there is an assessment, this Forum has no jurisdiction to entertain the case and the Complainant is at liberty to approach the appropriate authority. However, in view of the authority reported in III (2013) CLT-55 (SC) in the case of Uttar Pradesh Power Corporation Limited & Ors. (Vrs.) Anis Ahmad, wherein it has been held by the Hon’ble Supreme Court of India that complaint against assessment made U/s.126 or action taken against those committing offences U/s.135 to 140 of Electricity Act, 2003, held, is not maintainable before a Consumer Forum. Civil Court’s jurisdiction to consider a suit with respect to the decision of assessing Officer U/s.126 or with respect to a decision of the appellate authority U/s.127 is barred U/s.145 of Electricity Act, 2003. Therefore, it is clear that after notice of provisional assessment to the person alleged to have indulged in unauthorized use of electricity, the final decision by an assessing officer, who is a public servant, on the assessment of ‘unauthorized use of electricity’ is a quasi-judicial decision and does not fall within the meaning of “consumer dispute” U/s. 2(1) (e) of Consumer Protection Act. Offences referred to in Sections-135 to 140 can be tried only by a Special Court constituted U/s.153 of Electricity Act, 2003, hence, also the complaint against any action taken under Sections-135 to 140 of Electricity Act, 2003 is not maintainable before Consumer Forum. By virtue of Section-3 of Consumer Protection Act, 1986 or Sections-173, 174 and 175 of Electricity Act, 2003, Consumer Forum cannot derive power to adjudicate a dispute in relation to assessment made U/s.126, or offences U/s.135 to 140 of Electricity Act, as the acts of indulging in “unauthorized use of electricity” do not fall within the meaning of “complaint” as defined U/s. 2(1) (c) of Consumer Protection Act, 1986.
6. So, now on careful consideration of all the materials available in the case record and on the basis of principle laid down by the above Authority as discussed earlier, this Forum come to the conclusion that this Consumer case is not maintainable in this Forum, for which the Complainant is not entitled for any relief as prayed for and accordingly, this Consumer case is liable to be dismissed. However, the Complainant is at liberty to approach the appropriate authority along with an application for condonation of delay, if desired/ required. Hence, Ordered:-
O R D E R
The Consumer case is dismissed on contest against the O.Ps, but in the peculiar circumstances without cost.
Pronounced in the open Forum on this day i.e. the 31st day of May, 2018 given under my Signature & Seal of the Forum.
