Shri Biswa Nath Konar – President.
The Case of the Complainant Mir Moinuddin, in brief is that he was holder of an Industrial connection with Rampurhat Group Electricity supply being S/c No. 7731 (Industrial) and he had a business of Attachaki and husking with sufficient provisions for running the business. But O.P persons illegally disconnected the said service connection in the year 2003 by lodging a false case against the petitioner for theft of electric energy.
It is the further case of the complainant that during pendency of the case he requested the OP No.1 and 2 to reconnect his service connection with imposing condition but they denied and ultimately article and valuable missionary kept there were denied due to said miscellaneous activities of the Ops.
It is the further case of the complainant that he contested so called false case of theft of electricity case which was registered as G.R No. 226/2003 before Ld. S.D.J.M, Rampurhat Court and ultimately it was tried by the Ld. Addl. Session Judge (3rd Court) Suri as SPL (Elc) case No. 182/2010 and the accused person namely Mir Moinuddin petitioner was found not guilty of the charge u/s 135 (1) (b) (c) of the Electricity Act, 2003 and as such the instant petitioner was acquitted from the all charges leveled against him.
It is the further case of the complainant that the act and deeds of the Ops are all highly illegal and unlawful and for such illegal and unlawful activities on the part of O.Ps, the instant petitioner has suffered loss in the business to the tune of Rs. 18,50,000/- for the entire period i.e. from 2003 to 2017 up to 20/03/2017 and his loss assessed as per tentative yearly income from the business and the Ops are responsible for such loss.
Hence this case for awarding compensation of Rs. 18,50,000/- for loss in business for 14 years and to pay compensation of Rs. 50,000/ harassment.
The Ops have contested the case by filing W/V denying all material allegation of complainant contending inter-alia the case is not maintainable and the complainant has no cause of action to being the case and the complainant is not consumer U/S CP Act as his connection was industrial for commercial purpose.
It is the specific the case of the Ops that an inspection was carried out at the premises of the complainant and found that the husking mill of the complainant was running unauthorizedly to bypass the meter. For such theft of electricity an FFR been lodged has at Rampurhat P.S on the same day against Mir Moinuddin i.e. the present complainant and the service line was disconnected. The complainant did not pay the assessment amount till date. That the said amount has been raised as per the Electricity Act, 2003.
That the complainant had been acquitted by the special court (Elec) special (Elec) case No. 182/2010 but he has not released from his civil liability.
That since it is a case dispute in respect of pilferage and the complainant is a industrialist and he used the electric energy for commercial purpose the Ld. Forum has no territonal jurisdiction to adjudicate the instant case.
The Ops further stated that there is no deficiency in service on their part and the case is liable to dismissed.
Point for determination.
- Whether the complainant is a consumer under Sec. 2(1) (d) (ii) of the C.P. Act.?
- Whether this Forum has jurisdiction to try this case?
- Whether the present complaint is barred U/S 24 A CP Act?
- Whether there is any deficiency in service on the part of the O.P.?
- Whether the complainant is entitled to get any other relief or reliefs as prayed for?
DECISION WITH REASONS
During the trial the complainant Mir Moinuddin has been examined as PW 1and has filed some documents.
OPW 1 Rabindra Nath Acharya is the Station Manager of OP No. 1.
Both the PW 1 and OPW 1 are cross-examine by filing questionnaires.
Heard arguments of both sides.
Point No.1:- Evidently the Complainant was holder of Industrial Connection under the OP No. 1 being No. S/C 7731(Industrial).
But it is the case of the OP that the present Complainant is not Consumer under the CP Act as he was an Industrial Consumer i.e for Commercial purpose.
We find that in the present case the Complainant has been cross-examined by the Ops in questionnaires form.
It appears that against the question No. 1 of the Ops: - Did you have an industrial Connection being Consumer No. S/C 7731 under the OP No 1? The Complainant replied “yes” but the same was for the purpose of my livelihood having no other source of income.
So, it is clear that in comes out from the cross-examination of the Complainant that he ran Atachaki to earn his livelihood.
We further find from the Copy letter dated 23/03/2005 sent by the Complainant to the OP No. 1 that his said business was the only source of earning daily bread of family and his entire family is suffering and in economical calamity due to dis connection of his electric line.
In view of explanation of S2 (1) (d). CP Act “Commercial purpose” does not include use by a Consumer of goods brought and used by him exclusively for the purpose of earning his livelihood by means of self-employment.
So, in view of the facts and circumstances stated above it can be said that the Complainant is Consumer under S2 (1) (d) CP Act.
Point No. 2:- Both the Ops have office within territorial jurisdiction of this forum.
Valuation of the present case is Rs. 19, 00000/- which is less than Rs. 20,00000/-.
So, this forum has territorial and pecuniary jurisdiction to try this case.
Point No. 3:- It is the case of the Ops that the present case disputed line was disconnected in the year 2003 but the complainant has filed the present case in year 2017 i.e about 14 years after arising out of cause of action and the case is barred by limitation.
We find that the complainant in para 6 of the complaint clearly mentioned that cause of action of
this case arose on an form the year 2003 i.e on the date of disconnection an onwards i.e 20/03/2017, i.e on the date of acquittal from the criminal case.
We find that it is the case of the complainant that this is a case of contentious cause of action and
he has been depriving from earning livelihood due to disconnection of electric line since 2003 to 20/03/2017 and this case is not barred by the limitation.
We find substance in submission of the Complainant and thus the point No.3 is also decided in favour of the complainant.
Point No. 4 and 5:- Both the point taken up together for convenience of disconnection as they
are reletated to each other.
The complainant Mir Moinuddin in his a complaint and evidence stated that he was holder of an Industrial connection with Rampurhat Group Electricity supply being S/c No. 7731 (Industrial) and he had a business of Attachaki and husking with sufficient provisions for running the business. But O.P persons illegally disconnected the said service connection in the year 2003 by lodging a false case against the petitioner for theft of electric energy.
Copy of quotation, bills and the receipts show that the complainant was holder of service connection No. 7731 (Industrial ) under the Ops.
Copy of the adhoc bill of pilferage of energy dated 16/05/2013 shows that Rs. 39,800/- was charged against the complainant.
In this evidence the complainant further restated that during pendency of the case he requested the OP No.1 and 2 to reconnect his service connection with imposing condition but they denied and ultimately article and valuable missionary kept there were destroyed due to said miscellaneous activities of the Ops.
Copy of petition dated 23/03/2015 filed by the complainant to the OP No. 1 shows that he requested the OP No. 1 for setting up new meter and intimated that he was ready to compound the case .
The complainant in his evidence further stated that he contested so called false case of theft of electricity case which was registered as G.R No. 226/2003 before Ld. S.D.J.M, Rampurhat Court and ultimately it was tried by the Ld. Addl. Session Judge (3rd Court) Suri as SPL (Elc) case No. 182/2010 and the accused person namely Mir Moinuddin petitioner was found not guilty of the charge u/s 135 (1) (b) (c) of the Electricity Act, 2003 and as such the instant petitioner was acquitted from the all charges leveled against him.
He also stated that the act and deeds of the Ops are all highly illegal and unlawful and for such illegal and unlawful activities on the part of O.Ps, the instant petitioner has suffered loss in the business to the tune of Rs. 18,50,000/- for the entire period i.e. from 2003 to 2017 up to 20/03/2017 and his loss assessed as per tentative yearly income from the business and the Ops are responsible for such loss.
During hearing of argument Ld. Advocate/Agent of Complainant submitted that a criminal case of theft of electricity being GR Case No. 226/2003 has been lodged before Ld. SDJM, Rampurhat U/S 133(1) (b) (c) of the Electricity Act 2003 against the present complainant Mir Moinuddin by the Ops.
But in view of the judgement passed by the Hon’ble Apex Court the present case is not maintainable.
In support of his contention he cited a ruling reported in 2013 (iii) CPJ page No.1 Supreme Court,
where Hon’ble Supreme Court has been pleased to observe that a complainant against the assessment made
by the assessing officer U/S 126 or against the offences committed U/S 135 to 140 of the electricity 2003 is not maintainable before a Consumer Forum.
In this reply Ld. Advocate/Agent of Complainant submitted that practically allegation of theft of electricity against the present complainant did not stand and he was acquitted in the said case.
So, the said ruling is not applicable in the present case.
Copy of the judgment passed in Spl (elc) case No. 182/2010 by Ld. Additional Session judge 3rd Court/Spl judge (elec) shows that accuse Mir Moinuddin has been acquitted from the charged U/S 135 (1) (b) (c) Electricity Act.
In his reply Ld. Advocate/Agent of Ops submitted that acquittal of the complainant from the criminal case does not exempt him from his civil liability to pay dues electric bill.
In support of this condition his cited an unreported judgement passed by Hon’ble High Court Calcutta in MAT 263 of 2015 with 2584 of 2015 (Basudeb Pine Vs. WBSEDCL and others).
In the said judgment on relying upon the ruling reported in 2012 (2) SCC 108 in executive engineer, southern electricity supply company of Orissa Ltd. Vs. Sri Sitaram Rice Mill, Hon’ble Court has been please to hold that in case of theft of energy, definitely element of unauthorized use of electricity would be involved. But all unauthorized use of electricity or energy would not result in prosecution under Section 135 of the Act. There different provision may be referable. One is a civil action for recovery of amounts towards the consumption of electricity and the other penal action is towards the act of theft of energy.
In the above decision. Their Lordships have categorically held that proceedings under Section 126 and 135 of the Act stand on a separate and independent footing and they do not depend upon each other.
He cited another ruling reported in AIR 2010 All 115 (Rais Ahad Vs. Up power corporation), where their lordship please to observe that “In the criminal case the final report has been filed by the police authorities which has been accepted by the Judicial Magistrate. However, that will not absolve the petitioner from the civil liability regarding payment of dues under the Electricity Act for the alleged Act of illegal consumption of electricity so far as provisional assessment stands.”
Considering over all matter into consideration and materials on record and relying upon the rulings cited above we are constrained to hold the Ops were right in not restoring the line of the Complainant without receiving remaining dues, so far provisional assessment stands and there was no deficiency in service or illegal trade practice on the part of the Ops.
The complainant has failed to prove his case .
Thus both points are decided against the complainant, case fails.
Proper fees have been paid.
Hence,
O R D E R E D
that C.F case No. 101/2017 be and the same is dismissed on contest against the O.Ps Electricity Company without any order as to cost.
Copy of this order be supplied to the parties each free of cost.
