BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
FA.No.1529/2007 AGAINST C.C.No.205/2006 DISTRICT FORUM, KARIMNAGAR
Between:
Peddi Maruthi,
Managing Partner,
Vasavi Industrial Parboiled Rice Mill,
Manakondur Village & Mandal,
Karimnagar Dist. Appellant/
Complainant
And
1. The Chief Managing Director,
APNPDCL., Warangal.
2. The Director,
APNPDCL., Warangal.
3. The Chief Engineer,
APNPDCL., Warangal.
4. The Superintending Engineer, (Operation)
APNPDCL., Karimnagar.
5. The Divisional Engineer (Operation)
APNPDCL., Karimnagar
6. The Asst.Divisional Engineer, (Operation Rural)
APNPDCL., Karimnagar.
7. The Asst.Accounts Officer,
APNPDCL., ERO Rural
Karimnagar.
8. The Asst.Engieer (Operation)
APNPDCL., Manakondur,
Karimnagar District. Respondents/ Opp.parties.
Counsel for the Appellant: M/s.V.Gourisankara Rao
Counsel for the Respondents: (Mr.O.Monohar Reddy)
QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT.
SMT.M.SHREESHA, MEMBER
&
SRI K.SATYANAND, MEMBER
.
FRIDAY, THE NINETEENTH DAY OF MARCH,
TWO THOUSAND TEN
(Typed to the dictation of Sri K.Satyanand,Hon’ble Member)
***
This is an appeal filed by the complainant before the District Forum assailing the order passed by the District Forum.
The facts of the case are briefly as follows:
The complainant is a consumer of the opposite parties since 20 years bearing service connection No.MD-862 LT III category load of 75 HP and running para boiled rice mill seasonally and paying the electricity bills regularly. It is the case of the complainant that opposite parties 2 to 8 replaced the meter thrice i.e. on 16-4-1996, 21-6-1996 and 12-5-1997. It is their duty to record the meter reading in Meter Reading book while replacing the meters each and every time. They came to the Mill and warned to seize and disconnect the supply of electricity saying that the complainant committed default in paying the bill amount of Rs.53,988/-. The complainant approached the opposite parties 4 to 8 to enquire about it and was informed that the audit authorities addressed a letter to them stating that there is short fall of amount of Rs.58,988/- for the period from 2/97 to 12-5-1997 which was not recorded in the Meter Reading book. Opposite parties issued bill dt.1-10-2006 for Rs.23,435/-. The complainant submitted that as per opposite party No.7 letter dated 29-7-99 addressed to opposite party No.4 wherein it was pointed out tht a letter was addressed to field vide letter dt.28-12-1998 for want of physical verification report and on account of non receipt of the above report from the field, short fall amount of Rs.53,989 was included in 6/99 and 7/99 CC bill basically for the reason that meter was replaced and low consumption was suspected. He also stated in another letter that the meter was referred to field vide letter dated 28-12-1998 and reminder has been issued to opposite party No.7 dt.15-4-1999 and field report has not been received and short fall amount of Rs.53, 989/- was included in 5/99 and 6/99 bill and for the month of 6/99 a CC bill for Rs.1,06,605/- for billed units of 14175 at Rs.52,615.00 as also Audit para amount of Rs.52,989/- and demanded the same. The complainant submitted that he made an application to the Chief Engineer (Opertions) APNPCL on 15-10-2005 requesting not to disconnect the supply to his mill and to drop the recovery of the alleged short fall amount of Rs.58,989/- but there was no reply received from the opposite parties. As there was a possibility of the opposite parties disconnecting the service at any moment for non payment of alleged short fall amount which was included in the bill for the month of 6/99 for Rs.1,06,605/- and as the complainant has paid only Rs.52,615/- though it was demanded in the year 1999 and submitted that payment of alleged short fall amount as per Audit report does not arise and the same was kept pending for last 7 years. The complainant submitted that the opposite parties were threatening that they would disconnect the service connection of the complainant if the amount of Rs.53,989/- was not paid. Therefore, he approached the District Forum for a direction to the opposite parties not to disconnect the service connection No.MD-862 LT category of his mill and to direct them to reassess the bill amount of Rs.53,988/- and bill of Rs.77,423 and direct to issue fresh bills together with compensation of Rs.50,000/- and costs of Rs.1500/-.
Opposite parties 1 to 8 filed counter and stated that the complaint was filed with a malafide intention to evade payment of arrears of Rs.53.988/- along with interest and that the complaint was barred by limitation as notice was served to the complainant and thereafter the said short fall was included in the bill 6/99. They submitted that the service connection bearing No.MD-862 was released in the month of 6/84 with a load of 74 HP under category III and later on the load was enhanced and another meter was sanctioned. They admitted that the meter was replaced three times within a short period i.e. on 16-4-196, 21-6-1996 and 12-5-1997 due to low consumption. Soon after replacement of the meter on all the three occasions, it was observed that the consumption had increased but the third time the meter was replaced due to circuitry terminal failure which was recorded in the meter reading book. Basing on this the Field officer worked out the short fall amount of Rs.53,988 and notice was served to the complainant and thereafter the said amount was added to his regular bills in the month of 6/99 as arrears. They submitted that the complainant requested them to accept the regular bills by granting some time to clear the arrears and since then he was paying the regular bills by extending time and after a gap of 7 years from the date of issue of the bill, he addressed a letter to the Chief Engineer, Operation, APNPDCL, Warangal on 19-10-2005 that he was not aware of the fact and procedure of audit para amount till last month and that the ERO staff had accepted the payment against CC bill since 6/99 to 8/2005 and therefore requested not to disconnect the service. The complainant filed the bill and receipt for the month of 6/99 only in order to show that he was not aware of the arrears which were coming in the bills regularly till now. They further submitted that the extract copy of B-form register filed by the complainant for the month of May does not possess the signature of M.R.O, Manakondur and the extract copy of June shows the signature of M.R.O. Manakondur which shows that there is no prima-facie case for the complainant and he approached the District Forum after 7 years and hence the complaint is barred by limitation. They also filed additional counter stating that the complainant amended the complaint with a malafide intention after receiving final assessment notice dt.2-2-2007 in which it was clearly mentioned that an appeal to Superintending Engineer Operation Circle who was the appellant authority and had to be made within 30 days from the date of receiving the order and instead of approaching the concerned authority, the complainant approached the Forum to evade payment and stated that he was not aware of the notice dated 01-10-2006 for an amount of Rs.22,435/- and prayed to dismiss the complaint.
In support of his case, the complainant filed his own affidavit and relied upon documents marked as Exs.A1 to A27 and the opposite parties also filed affidavit and relied upon documents marked as Exs.B1 to B15.
On a consideration of the evidence adduced on either side, the District Forum came to the conclusion that the claim of the complainant was barred by limitation and hence dismissed the complaint.
Aggrieved by the said order, the complainant preferred this appeal on the usual grounds to the effect that the District Forum failed to see that the Hon’ble National Commission held that electricity arrears prior to three years were barred by limitation and therefore no proceedings can be initiated in regard to the recovery of the arrears. The District Forum misapplied the law held by the National Commission in 1996 (2) CPJ 212 NC. The District Forum failed to see that the demand of the opposite parties to pay the arrears of Rs.53, 988/- for the period 5/99 and 6/99 was barred by limitation. Likewise the District Forum erred in observing that for the claim of Rs.23,435/- dated 01-10-2006,the complainant had to approach the Superintending Engineer by way of appeal for reassessment.
Heard both sides.
The point that arises for consideration is whether the order under appeal is vitiated by any illegality or irregularity calling for interference by this Commission?
The impugned demand is comprised of both disputed and undisputed amounts. The disputed amount is admittedly of the year 1999 as is explicit from ground No. ‘C’ in the grounds of appeal. Taking advantage of this circumstance, the complainant tried to assail the entire demand by invoking Section 56(2) of the Electricity Act, 2003 which reads as follows:
56(2) ‘Not withstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after, the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity’.
But a close look at the provisions of Section 56(2) make it abundantly clear that recovery of such arrears is not unconditionally barred. On the other hand, if the distributor of electricity is vigilant enough to show the arrears in bill from time to time continuously without break, the Distributor is nevertheless entitled to recover it. Moreover, the arrears relatable to the year 1999 are evidently dues arising under the Electricity Supply Act of 1948 which came to be saved by the Andhra Pradesh Electricity Reforms Act, 1988. In such cases, the ruling in this regard by the Supreme Court in AIR 2009 SC 2796 particularly para 30 squarely applies to the facts of this case clearly shutting out the complainant from resorting to the plea of limitation as against the recovery of arrears of the year 1999. The supreme Court laid down the law in para 30 in the above judgement in the following terms:
‘Whereas the bills are issued only in respect of the dues arising in terms of the law as was applicable prior to the coming into force of 2003 Act. Sub-section (2) of Section 56 shall apply after the said Act came into force. The Board could have been framed a tariff in terms of the provisions appended to Section 61 of the Act. Appellants incurred liability to pay the bill. The liability to pay electricity charges is statutory liability. The Act provides for its consequences. Unless, therefore, the 2003 Act specifically introduced, the bar of limitation as regards the liability of the consumer incurred prior to coming into force of the said Act. In our opinion, having regard to Section 6 of the General Clauses Act, the liability continues (See Southern Petrochemical Industries Co. Ltd., v. Electricity Inspector and E.T.I.O. and Ors. (2007) 5 SCC 447)’.
The complainant made a clever bid, though abortive as is shown in the foregoing discussion, to club two causes of action, if ever, in pursuance of Ex.A2 with a sole aim of saving the limitation in regard to the liability he originally tried to ward off in the C.D. This kind of abuse of process of law cannot be countenanced.
As a matter of fact, the case of the complainant suffers from yet two more infirmities. Firstly it cannot but be commented that the complainant is a partnership firm carrying on the commercial activity of Parboiled Rice Mill. When such is the case, it is incumbent upon the complainant to clearly state that they resorted to the commercial activity for the purpose of livelihood and also by way of self employment. But these two ingredients are conspicuous by their absence as is evident from the averments in the complaint and in such a case surely the complaint cannot but he held as having been hit by the non maintainability owing to the complainant hardly coming within the description of the consumer. In other words, the service was taken for commercial purpose and therefore the complainant cannot maintain the complaint under the Consumer Protection Act, 1986. The other infirmity is the complainant made an endeavour to ward off liability of the year 1999 by clubbing it with demands of recent year. So it is very evident from the facts of the case that the claim is barred by limitation under Section 24A as we do not find any condone delay petition along with the complaint on record. So we do not find any flaw in the order of the District Forum dismissing the complaint.
Accordingly the appeal is dismissed but without costs in the circumstances of the case.
Sd/-PRESIDENT.
Sd/-MEMBER.
Sd/-MEMBER.
JM Dt.19-3-2010
