ORDER

(Per: Mrs. Veena Sharma, Member):

            This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred by the appellants against the order dated 31.10.2014 passed by the District Forum, Haridwar in consumer complainant No. 515 of 2013.  By the impugned order, the District Forum has allowed the consumer complaint.  The District Forum has cancelled the recovery against the complainant and directed the opposite party not to create hurdle between electricity usage of complainant and on the basis of recovery also not to disconnect the electricity connection of the complainant.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant Sh. Anil Kumar Arora had taken an electricity connection No. 6931227106282 for his domestic use for which he was remitting monthly charges regularly.  On 17.11.2013, the electricity department issued a bill of Rs. 1,18,517/- to the complainant with a due date, i.e. 07.12.2013.  On 25.11.2013 someone comes to complainant’s residence introduced him as Amin from Haridwar Tehsil and told him that the R.C. (recovery certificate) for a sum of Rs. 84,000/- issued against him by the electricity department and demanding the same and threatened him if the complainant failed to pay Rs. 84,000/- as outstanding amount, then he will send him in the jail and electricity connection of the complainant will be disconnected.  On 27.11.2013, the complainant in this regard went to the electricity department and demanded the copy of the notice or assessment, which was not given to him.  Thereafter, the complainant sent a letter to the electricity department in this regard, but the electricity department did not take any action and also did not give any satisfactory information to the complainant.  The cause of action arose on 30.11.2013, therefore, due to deficiency in service and unfair trade practice on the part of the Electricity Department, Haridwar-opposite party the complainant filed a consumer complaint before the District Forum, Haridwar.

3.       The opposite party has filed written statement before the District Forum and pleaded that at the time of inspection on 18.02.2013 a load of electricity was found more than 2.000KW, which shows that the complainant has consumed excess electricity for which the complainant’s connection was not sanctioned and for it Rs. 84,571/- was assessed and imposed on him. The bill of the complainant was made on average consumption of electricity, as the meter was not working at the time of inspection. According to Section-126 of Electricity Act, 2003 the Consumer Fora has no jurisdiction to adjudicate this type of matter. The Electricity Department has issued the bill on the basis of consumption of electricity by the complainant. Therefore, the consumer complaint is not legally maintainable before the Consumer Forum.

4.       The District Forum on an appreciation of the material on record has allowed the consumer complaint vide order dated 31.10.2014 in the above terms.  Aggrieved by the said order, the Electricity Department and Executive Engineer, EDD (Urban), Haridwar have filed the present appeal.

5.       We have heard learned counsel for the parties and have also perused the record. 

6.       Learned counsel for the appellants has argued that the respondent was using domestic connection for commercial purpose.  In support of his contention, learned counsel for the appellants drew our attention at inspection report dated 26.02.2013 of Executive Engineer, U.P.C.L. (paper No. 20), wherein it is mentioned that in the premises of the complainant a connection No. 693/1227/106282 had been installed, whose load was sanctioned for 02.000KW in favour of domestic connection. The respondent is using excess 2.550KW for commercial use from this domestic connection. Further it was mentioned in this report that the complainant should increase his load within seven days and send a receipt of the same to this office.  But the complainant did not pay any attention on this.  The aforesaid act comes under Section 126 (as Amended) of Electricity Act, 2003 for which Rs. 84,571 (assessment amount)+8,146(electricity bill)= Rs. 92,717/- was assessed. Learned counsel for the appellants also drew our attention at paper No. 19 wherein the connection load details are following:-

No objections has been filed by the respondent against the above mentioned assessment. Learned counsel for the appellants apart from the basic ground regarding non-maintainability of the consumer complaint, has taken the plea that the electricity was being used by the respondent for commercial purpose.  It is a case of unauthorized use of electricity as recorded in the inspection report dated 18.02.2013.  The provisional bill dated 26.02.2013 was issued under Section 126 of the Electricity Act, 2003 for unauthorized use of electricity.  The respondent received a copy and signed the inspection report.  He did not file any objection against this inspection report.  The appellants have further submitted that in the matter of assessment under Section 126 of the Electricity Act, 2003, an appeal can be filed under Section 127 of the said Act before appellate authority.  The jurisdiction of the Civil Court has been completely barred in such matters.  The appellants have also filed an affidavit of Sh. Devendra Kumar, Executive Engineer, Uttarakhand Power Corporation Ltd.

7.       Learned counsel for the appellants has referred to a judgment of the Hon’ble Supreme Court in the case of U.P. Power Corporation Ltd. & Ors. vs. Anis Ahmad; Civil Appeal No. 5466 of 2012, in which the Hon’ble National Commission has given a majority judgment dated 10^th April, 2008 observed and held that in case of final assessment order passed under Section 126 of the Electricity Act, if a consumer is aggrieved, he can file complaint under the Consumer Protection Act.  However, it is his option to file complaint under the Consumer Protection Act or to file Appeal under Section 127 of the Electricity Act.  Further against the final order passed by the Appellant Authority under Section 127 of the Electricity Act, no complaint can be entertained by the Consumer Fora.  The Consumer Forum cannot derive power to adjudicate a dispute in relation to assessment made under Section 126 or offences under Sections 135 to 140 of the Electricity Act, as the acts of indulging in “unauthorized use of electricity” as defined under Section 126 or committing offence under Sections 135 to 140 do not fall within the meaning of “complaint” as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.  Unauthorized use of electricity do not fall within the meaning of “complaint”, as we have noticed above and, therefore, the “complaint” against the assessment under Section 126 is not maintainable before the Consumer Fora.  Learned counsel for the appellants-Electricity Department has cited a decision of this Commission in the case of Revision Petition No. 33 of 2008; Uttarakhand Power Corporation Limited vs. Ahmed Hussain alias Ravinder Kumar Uppal, Haridwar decided on 15.02.2010.  Both the above mentioned decisions are fully applicable in the instant case.  Learned counsel has also cited a decision of Hon’ble National Commission in the case of Hari Chand vs. Haryana State Electricity Board; III (2010) CPJ 371 (NC).  In this case, it was held that findings of inspection team headed by Executive Engineer of Board, cannot be challenged on mere oral assertions.  Implications of refusal of representative of petitioner to sign spot inspection report appropriately analyzed. 

8.       Learned counsel for respondent contended that it was wrong to say that the respondent was using domestic connection for commercial purpose.  He has further stated that the respondent was paying monthly charges regularly.  He has argued that the decision of District Forum is to be upheld.  He has prayed for dismissal of the present appeal.

9.       There is no dispute regarding the electricity connection in the name of respondent-complainant. The dispute is only for its use. The appellants are alleging that the respondent has taken the above connection for domestic use, but according to the appellants during inspection it was found that the said connection was being used for commercial purpose also. As they have defined the articles in two categories; domestic use and commercial use. 

10.     In our opinion, the Consumer Fora cannot decide the complaint, whether the said inspection was justified or not and whether the appellants had sufficient material to make an assessment under Section 126 of Electricity Act, 2003 or not and to raise a demand of Rs. 84,571/-.  We are of the view that conducting such an inspection and make assessment under Section 126 of Electricity Act cannot be termed as deficiency in service.  The complainant-respondent can challenge the inspection, assessment and the demand raised on the basis of the assessment under the appropriate provisions of Electricity Act, 2003.  We cannot decide whether a theft of electricity was being made or not and whether a provisional assessment for unauthorized use of electricity was justified or not. 

11.     In the above circumstances, the consumer complaint was not legally maintainable before the District Forum.  As a result the appeal succeed and is hereby allowed.  The impugned order dated 31.10.2014 passed by the District Forum, Haridwar is set aside and the consumer complaint is liable to be dismissed.    

12.     For the reasons aforesaid, the appeal is allowed.  The impugned order dated 31.10.2014 passed by the District Forum, Haridwar is set aside and consumer complaint No. 515 of 2013 is dismissed.  No order as to costs.