(Delivered on 22/02/2017)

PER SHRI B.A. SHAIKH, HON’BLE JUDICIAL  MEMBER.

1.         This appeal is filed by the original opposite party (for short O.P.)  against the order dated 02/08/2010, passed by the District Consumer Forum, Nagpur  in consumer complaint No. 99/2010 filed by the original complainant/respondent herein, by which complaint has been partly allowed and direction  has been given  to  the O.P./appellant  to cancel two bills  dated 18/01/2010 respectively  for Rs. 26,804.14 and Rs.28,241.14 issued by the O.P/appellant  to the original complainant /respondent herein under section 126 of the Electricity Act, 2003 and further to pay compensation  of Rs. 5000/- for physical and mental harassment and  cost of Rs. 3,000/- to him.

2.         The case of the original complainant /respondent herein  as set out by him in  his  consumer complaint  filed before  the Forum in brief is as under:

            The complainant /respondent herein   constructed  a house and a shop in the year 1994 and made an application  on 24/10/1994 to the O.P./appellant  for providing  electric connection  to his said  house  and shop. He deposited with the O.P. Rs. 15,575/- as per demand note on 02/12/1994 for getting three electric connections by three separate meters.  The O.P.  provided one electric connection bearing consumer  No. 410013317805 by one meter on 10/12/1994 to the complainant though  the complainant  had paid Rs. 15,575/- for getting  three electric connections. The O.P. on inquiry made by the complainant said that the complainant will have to deposit Rs. 14,301/- and Rs. 3,001/- for getting additional two electric connections.  Accordingly, the complainant paid the said amount on 07/01/2000 to the O.P. The O.P. then  provided two electric connections bearing consumer Nos. 410014267577 and 410014267585 to the complainant.  Thus the O.P. recovered the consideration from the complainant towards connections of commercial use and residential use twice. The complainant was under impression that the electric connection given to his shop is for commercial use. However,  on 30/10/2009 the representative of the O.P. paid visit  to the premises  of the complainant  and inspected the meters installed therein  and prepared certain documents  and obtained his signature thereon without giving information  of the contents  of the said documents  to him.  Thereafter the O.P. issued two bills dated 11/01/2010 to the complainant for Rs. 28,241/- and Rs. 26,803/- under section 126 of the Electricity Act, 2003 in respect of  two connections   of consumer Nos. 410013317805 & 410014267577. Thereafter,  the complainant  on making enquiry  learnt that  those bills have been issued  to  him on the ground  that he (complainant ) used residential  connections for commercial purpose and therefore  the said bills  are issued.  The said bills which are given after two and half months of  the inspection of the premises constitutes deficiency in service on the part of the O.P. Moreover,  the complainant  had obtained  two electricity connections  for commercial purpose only and therefore, there is no  question  for issuing the bills  under section 126 of the Electricity Act,2003. There is no question of using the residential connection for commercial purpose.  Thus the O.P. also adopted unfair trade practice by issuing both the said bills. Therefore, he prayed that both the said disputed bills dated 18/01/2010 be cancelled   and direction be given to the O.P. to pay him compensation of Rs. 30,000/- for physical and mental harassment and cost of litigation amounting to Rs.10,000/-.

3.         The O.P./appellant appeared before the Forum and resisted the complaint   by filing reply. The  main submission  of the O.P./appellant  in brief  is that  as the disputed  bills dated 11/01/2010 are issued  after due inspection  of meters  and  premises, under section 126 of Electricity Act, 2003 the remedy  provided against those bills is appeal  under  section 127 of the Electricity Act, 2003. The complaint thus filed before the Forum under the Consumer Protection Act, 1986 is not maintainable.  It is denied by the O.P. that on 02/12/1994 complainant had deposited Rs. 15,575/- with it for obtaining residential connection as well as for commercial use.  The O.P. submitted in brief that on 02/12/1994 the complainant was provided electric connection for residential   use only and thereafter in the year 2000 another connection was provided to him. However, on 30/10/2009 when the representative of the O.P. inspected the premises of the complainant  it was found that  the complainant used  residential   electric supply for commercial purpose and accordingly the documents  were prepared  and complainant singed  those documents  with full knowledge that  he used domestic electric supply for commercial  purpose.  There after  two disputed bills were issued under section 126 of the Electricity Act, 2003. On 01/02/2010 the complainant filed an application to the O.P. against those bills. He was then heard and thereupon final order was passed by the O.P. on 05/02/2010. He was informed that he can file appeal against that order passed under section 126 of the Electricity Act, 2003. Therefore, it was prayed by the O.P. that  the complaint may be dismissed with cost.

4.         The Forum thereafter heard both the parties and   considered evidence brought on record. The Forum then  passed  impugned order  by which  both the disputed bills have been cancelled  and direction  has been given  to the O.P. to issue  revised bills and further  giving direction  to the O.P. to  pay compensation of Rs.5000/- for physical and mental harassment  and cost of Rs.3000/- to the complainant.

5.         As observed above this appeal is filed by the O.P.

6.         The learned advocate of the appellant /original O.P. relied on the decision  of the Hon’ble  Supreme Court in U.P Power Corporation Ltd. and other Vs. Anis Ahmad, reported in AIR 2013 Supreme Court 2766 in support of her submission that  the complaint against   the bills issued against under section 126 of the Electricity Act, 2003 is not maintainable before the Forum and  that  the Forum has not  considered the said legal aspect of the case and erred in partly allowing  the complaint as above.

7.         On the other hand, the learned advocate of the respondent appeared  but  he did not  file his written notes of argument. He supported the impugned order. 

8.         Thus, it is not disputed  that both the disputed bills were issued  under section 126 of the Electricity Act, 2003 on the ground that the complainant unauthorizedly  used residential electric connections  for commercial purpose. The  Hon’ble Supreme Court in the aforesaid decision  in the case of  U.P. Power Corporation  Ltd. & others Vs. Anis Ahmad, AIR 2013 Supreme Court, 2766 has observed as follows,

            “The acts of indulgence in “unauthorized  use of electricity” by a person , as defined  in clause (b) of the Explanation below Section 126 of the Electricity Act, 2003 neither has any relationship  with “unfair trade practice” or “restrictive trade practice” or “deficiency in service” nor does it amounts to hazardous services by the licensee. Such acts of “unauthorized use of electricity” has nothing to do with charging  price in excess of the price. Therefore, acts of person in indulging in “unauthorized use of electricity,” do not fall within the meaning of “Complaint”, as we have noticed above and  therefore the “complaint” against assessment under Section 126 is not maintainable before the Consumer Forum.”

9.         In the instant case the complainant  admitted that  the disputed bill was issued under section 126 of the Electricity Act, 2003. However, according to the complainant /respondent herein , he had already  deposited  requisite  amount with the appellant /O.P. for taking  electric connection  for commercial use and therefore there was no question  of issuance of the disputed bills of  exorbitant  amounts on the  allegation that he used the electric connection  of residential  use  for commercial purpose. However, we find  that the complainant  ought to have raised that ground before the  competent  authority  by filing appeal under section 127 of the Electricity Act, 2003.

10.       The aforesaid decision  of the Hon’ble Supreme Court is thus applicable to the fact of present case in which it has been  observed that  the complaint  before the Forum against the  unauthorized use of electricity issued under section 126 of  Electricity  Act, 2003  is not maintainable  before the Forum. Hence, applying  the said  decision  to the present case we find that  the impugned order cannot be sustained  in law by which  the complaint  is partly allowed by the Forum. Therefore, the appeal deserves to be allowed as under.

ORDER

i.          The appeal is allowed.

ii.          The impugned order is set aside and the complaint stands dismissed. 

iii.         The complainant/respondent herein  is at liberty to file appeal  under section 127 of the Electricity Act, 2003 before the competent  authority for seeking  redressal of  his grievance  against  the disputed bill.

iv.        No order as to costs in appeal.

v.         Copy of order be furnished to both the parties  free of cost.