By Smt. C.S. Sulekha Beevi, President,

1. Complainant is a consumer under opposite party for supply of electricity connection for agricultural purpose. He is aggrieved by the issuance of penal bill dated, 09-3-2006 for Rs.45,748/- towards this connection for misuse of energy.

2. Opposite party filed version admitting that complainant is a consumer. It is stated that during inspection it was found that complainant was using the energy supplied for agricultural purpose to a late rite quarry for the purpose of washing the late rite stone cutting machine. Hence the penal bill for Rs.45,748/- was issued under Sec.126 of Indian Electricity Act, 2003. That complainant is liable to pay the same.

3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A9 marked for him. Opposite party filed counter affidavit. No documents marked for opposite party. Either side has not adduced any oral evidence.

4. Complainant challenges Ext.A1 bill dated, 09-3-2006 for Rs.45,748/- to be illegal and against provisions of law. Due to non-payment of this amount opposite party later issued Ext.A4 disconnection cum demand notice for Rs.69,886/- including surcharges. It is the case of opposite party that when officers of the Board conducted an inspection in the premises of complainant, misuse of energy was detected. That the electricity supplied for agricultural purpose was seen being used to pump water and wash laterite cutting machine in a laterite quarry situated 180 meters away. Complainant has denied such misuse. Though opposite party contends to have conducted inspection and detected misuse there is no document to support this contention. Opposite party does not specifically state the date of inspection. Opposite party has not produced any mahazar prepared at the time of inspection. Opposite party has no case mahazar was prepared. Apart from the vague affirmation there is no reliable evidence to corroborate the contention that opposite party conducted inspection and that opposite party detected misuse of energy.

5. Further the alleged penal bill dated, 09-3-2006 is issued under Sec.126 of Indian Electricity Act, 2003. Admittedly opposite party has not complied with the provisions contemplated in Sub clauses (1), (2) and (3) of Section 126 of Indian Electricity Act, 2003 prior to issuing final penal bill. Opposite party has no case that a provisional assessment order was served to the complainant before issuing Ext.A1 final penal bill. As per Sec.126 (1) the officer detecting the misuse has to provisionally assess the electricity charges payable by the consumer. This provisional order must be served upon the consumer and only after giving an opportunity to the consumer to file objections if any, and reasonable opportunity of hearing can the officer pass final order of assessment. These provisions are intended to safeguard a consumer from high handedness of officers who render monopoly services. In our view, when the detecting Officer and the officer imposing penalty are the same it is mandatory that these provisions are complied before passing punishment by imposing penalty upon the consumer.

6. The Hon'ble National Commission has held in the series of Revision petitions decided on 11-9-2008, Hariyana Bijli Vitran Nigam Ltd. Vs. Megh Raj and other cases, -- that it is necessary to follow the entire procedure contemplated in Sec.126 before passing final assessment order. Non compliance of mandatory provisions is nothing but arbitrariness and against law. Applying the ratio of the above decisions we hold that Ext.A1 bill is illegal and has to be set aside. Issuance of penal bill without complying provisions of law amounts to deficiency in service. We find opposite parties deficient in service.

7. Complainant prays for cancellation of Ext.A1 bill as well as cancellation of Ext.A4 arrear notice which is the continuation of Ext.A1 bill. Opposite party has not specifically stated or proved that Ext.A4 demand notice includes charges other that raised in Ext.A1 bill. We therefore hold that Ext.A1 bill and Ext.A4 demand notice are to be cancelled. Any amount already deposited by complainant towards Ext.A1 bill shall be refunded to him or on application made by complainant it shall be adjusted to the future bills of this electricity consumer connection or any other electricity consumer connection owned by the complainant. We hold that cancellation of the bills will be adequate relief to the complainant.

8. In the result we allow the complaint and order that Ext.A1 bill dated, 09-3-2006 for Rs.45,748/-(Rupees Forty five thousand, seven hundred and forty eight only) is cancelled. We also order that opposite parties are jointly and severally liable to refund to the complainant any amount paid by complainant towards Ext.A1 bill. Complainant is at liberty to request to opposite parties to adjust the amount refundable to future electricity bills of any electricity consumer connection owned by him. The time limit for compliance of this order is fixed as two months from the date of receipt of copy of this order.

Dated this 28th day of March, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A9

Ext.A1 : Demand notice cum disconnection notice dated, 09-3-06 for Rs.45,748/-

issued by first opposite party to complainant.

Ext.A2 : Carbon copy of the notice dated, 09-3-2006 from first opposite

party to complainant.

Ext.A3 : Lawyer notice with acknowledgement card dated, 21-3-2006

issued by complainant's counsel to first opposite party.

Ext.A4 : Notice dated, 23-4-2008 from first opposite party to complainant.

Ext.A5 : Demand and Disconnection notice dated, 116-8-2000 for Rs.148/- from

opposite party to complainant.

Ext.A6 : Receipt for Rs,153/- dated, 23-4-2003 from opposite party to complainant.

Ext.A7 : Demand and Disconnection notice with receipt for Rs,148/- dated,

21-12-2005 from opposite party to complainant.

Ext.A8 : Demand and Disconnection notice with receipt for Rs,148/- dated,

24-02-2006 from opposite party to complainant.

Ext.A9 : Photo copy of the request dated, 18-3-2006 with postal receipt and acknowledgement card send by complainant to opposite party.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Nil

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER