BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD.
FA No. 636 OF 2014 AGAINST CC No.363 OF 2010
ON THE FILE OF DISTRICT FORUM- I,HYDERABAD
Between :
David Jude, S/o. Late Sumithra Jude,
“INSPITE LADIES GYM”
# 5-8-342, Chirag Ali Lane, Abids,
Hyderabad – 1. … Complainant / Appellant
AND :
- The Supdt. Engineer, (Operations),
Central Circle, APCDCL, Mint compound,
Hyderabad – 63.
- The Asst. Divisional Engineer,
Operations, Hyderguda, APCDCL,
Hyderabad – 500029.
- The A.E. (Operations Abids)
Exhibition grounds, Nampally, APCDCL,
Hyderabad. …. Opposite parties / Respondents
Counsel for the Appellant / Complainant : M/s. Jabez Samuel
Counsel for the Respondents/Opposite parties : M/s. P.Ganeshwar Rao
R1 to R3
Hon’ble Sri Justice B.N.Rao Nalla … President
&
Sri Patil Vithal Rao … Member
,
Tuesday, the Twenty Eighth day of February
Two thousand Seventeen
Oral Order : (Per Hon’ble Sri. Patil Vithal Rao, Member).
***
The unsuccessful Appellant before us is the complainant and the Respondents are the Opposite Parties in C.C.no.363/2010 on the file of the District Consumer Forum – I, Hyderabad (for brevity, “the District Forum”). Initially by the order dated 09.09.2011 the District Forum had dismissed the complaint. Aggrieved by the same the complainant took the matter in appeal in F.A.no.870/2011 and this Commission by setting aside the impugned order has remitted back the matter to the District Forum for fresh disposal with certain observations vide order dated 04.10.2012. Thereafter, the District Forum dealt with the case afresh by considering the additional evidence adduced by the complainant and again dismissed the same by the order dated 04.08.2014 which is now impugned in the present appeal.
2. The case of the Appellant, in a nutshell, is that he took the premises bearing D.No.5-8-342, Chiragali Lane, Abids, Hyderabad on lease and started a Fitness Center under the name and style, Inspire Ladies Gym since, April, 2007 and that on 26.09.2008 the Respondent no.2 inspected the premises and issued a notice on 06.04.2009 claiming a sum of Rs.47,600/- towards Electricity and Development Charges and Security Deposit on the allegation that the complainant was using excess load than the permitted load, by giving 30 days time for remittance, failing which the power would be disconnected. The Appellant has also contended that by ignoring his reply letter, to the said notice, with a request to re-inspect the premises as he did not use the additional sports equipments which were in fact kept in a sealed cover and to grant 10 installments to pay the Security Deposit, illegally disconnected the power without any notice on 15.04.2010 resulting in monetary loss and hardship to him. However, on 16.04.2010 he made part payment of Rs.5,000/- and got the connection restored but again on 22.04.2010 it was disconnected till 05.05.2010 causing a loss of business to the tune of Rs.34,000/-. With these allegations he filed the complaint before the District Forum seeking a direction to the Respondents herein to re-inspect his premises and to pay a compensation of Rs.2,27,000/- with costs.
3. The defence set up by the Respondents herein in the said complaint before the District Forum, interalia, is that on inspection of the Appellant’s premises on 26.09.2008, it was found that he was using a load of 19.804 KW as against the contracted load of 3 KW illegally and that as such the Department levied an amount of Rs.47,600/- being Development Charges and Security Deposit by granting reasonable time of 30 days for remittance but without preferring any appeal before the appropriate authority aggrieved by the said notice, the Appellant / Complainant submitted a letter dated 05.05.2009 for re-inspection of the premises but the same could not be considered as it was for different cause of action and that the Development Charges were not refundable. Further, the complaint was filed without impleading the person on whose name the service connection was given. Therefore, they sought dismissal of the complaint.
4. As noted in para no.1 above, the impugned order was came to be passed by the District Forum. This is how the second round of the litigation has come up before us for consideration.
5. The Appellant has contended in the present appeal that he has been using the premises under Lease Agreement dated 01.04.2007 and availing the power supply from the Respondents and that as such he is a consumer within the meaning of the Consumer Protection Act, 1986. Though the said agreement is an unregistered one it can be looked into in the present proceedings which are summary in nature but not the proceedings such as before a Civil Court. The Respondents did not respond to the application dated 05.05.2009 submitted by the Appellant for re-inspection of his premises without any reason and demanded the Development Charges and also did not grant installments in making payment of the Security Deposit. The Appellant has also contended that the District Forum did not consider these vital aspects and passed the impugned order arbitrarily by ignoring evidence on record and probabilities of the case and that as such the same is liable to be set aside by allowing the appeal.
6. Perused the material evidence on record, impugned order and written arguments. Heard both the learned counsel.
7. Now the point for consideration is that:
whether the impugned order is erroneous and illegal and that as such liable to be set aside?
8. Point :- The main aspect in the matter is about maintainability of the complaint, firstly, under the provisions of the Consumer Protection Act, 1986 and secondly, under the provisions of the Electricity Act, 2003.
9. As per section (2) (d) (ii) of the Act, 1986 the word “Consumer” does not include a person who avails services for any commercial purpose. In the present case on hand, as per the Inspection Report no.50363 dated 26.09.2008 of the Respondents Department with regard to the Assessment Calculations so also the letter dated 26.09.2008 of the Executive Engineer addressed to the Respondentno.2 and the Representation dated 05.05.2009 of the Appellant to the Respondentno.2 vide Ex.B2 & B1 respectively, the service connection to the demised premises is of Non-Domestic and Commercial Category. Further, the Appellant himself has admitted in his above stated Representation, Ex.B1, the petition in I.A.no.231/2010 in C.C.no.363/2010 and Para no.8 of his amended complaint that he was doing business in the said premises. In the complaint he has claimed a sum of Rs.34,000/- towards loss of said business. Even in the Lease Agreement, Ex.A16 he took the premises to run a Professional Fitness Club i.e., to transact a commercial activity. Therefore, we have no hesitation to hold that he is not a “Consumer” and that as such it is not a “Consumer dispute” within the meaning of the Act, 1986.
10. Now coming to the second limb of the matter, it is to be noted that, the Respondentno.2 has inspected the premises of the Appellant on 26.09.2008 and found that he was using 19.804 KW connected load instead of agreed contracted load of 3 KW and that as such by virtue of the Gazette Notification of the A.P. State Electricity Board bearing no.180, dated 14.12.1994 the Department issued notice vide EX.B1 demanding him a total sum of Rs.47,600/- towards Development Charges and Security Deposit for the said excess load of 16.80 KW by granting 30 days time for remittance from the date of service. As per Section 56 of the Electricity Act, 2003 the Department is empowered to disconnect supply of power in default of payment within the stipulated time. Since, the Respondents Department branded consumption of above stated excess load as ”unauthorized use” of electricity in terms of Section 126 of the Act, 2003, the option left to the Appellant was only to prefer an appeal under Section 127 of the Act, 2003 against the Assessment Order, Ex.B1. Instead of preferring such an appeal, he submitted a representation on 05.05.2009 to the Respondent no.2 with a request to waive all Development Charges and allow him to pay the Security Deposit in 10 installments. Alternatively, he has also requested to the Department to re-inspect his premises. But as per the A.P. State Electricity Board proceedings Ms.no.213( Opn-Comml.), dated 10.09.1993 and Ms.no.627 (Opn-Comml.) dated 14.12.1994, the Development Charges are non refundable. The copies of said Board proceedings are made part of the record before the District Forum, by the Respondents herein. It is pertinent to note that, the time of 30 days of the notice dated 26.09.2008 was lapsed by 27.10.2008 and that the representation dated 05.05.2009 submitted by the Appellant was after a lapse of about 8 months. The Hon’ble Supreme Court in, Executive Engineer and another Vs. M/s. Sri Seetaram Rice Mill, 2012 (3) SCJ 192 held that, consumption of electricity in excess of the sanctioned / connection load is an “un authorized use” of electricity in terms of Section 126 of the Act, 2003 and that once the order of Assessment is finally passed and served upon the consumer, he is expected to pay the said charges unless, being aggrieved from such an order, he prefers an appeal under Section 127 of the Act, 2003. In the present case the Appellant did not prefer any such appeal against the Final Order dated 26.09.2008 under Ex. B1. Even his Representation dated 05.05.2009 is after the specified period of 30 days from the said Final Order as stated above and that too for different cause of action. In this circumstance his claim is barred by inherent jurisdiction of the District Forum.
11. In view of the legal fiction discussed above under the provisions of the Act, 1986 and the Act, 2003 we are of the considered opinion that the complaint, as set up and filed by the Appellant herein, has no legs to stand in the eye of law. Therefore, he cannot allege any deficiency in service on the part of the Respondents to base his claim. In this view of the matter, we hold that the impugned order does not suffer with any infirmity or illegality and that as such it cannot be termed as erroneous. Therefore the same is fit to be confirmed and the appeal is liable to be dismissed.
12. The point is answered accordingly against the Appellant.
13. In the result, the appeal is dismissed but in the peculiar circumstances the parties shall bear their own costs.
PRESIDENT MEMBER
Dt. 28 .02.2017
