By. Sri. Jose. V. Thannikode, President:-
Brief of complaint:- The complainant is a consumer of the KSEB, Sulthan Bathery Division wide consumer No.1051. The Complainant was using energy and paying bills regularly without default. On 10.02.2015 the APTS of the Opposite Party conducted an inspection to the house of the Complainant without intimation and disconnected the power supply of the house by alleging misuse of energy. The action of the Opposite party is purely illegal and unauthorized. Aggrieved by this the Complainant filed this complaint with a prayer to reconnect the power supply and for a direction to Opposite party to that effect and for a compensation of Rs.50,000/- from Opposite Party for the deficiency of service.
2. Opposite Parties filed version and stated that on 10.02.2015 a joint surprise inspection was conducted by the APTS, KSEB unit Kalpetta along with this Opposite Party in the premises which is given for domestic purpose and it was found that the premises was being functioning as a home stay and beauty parlor, it seems a commercial purpose and found that the connection was misused other than what is actually authorized and same has been done in violation of the provisions of section 135(e) of Electricity Act 2004. Hence a site Mahazar was prepared and contents were read over to the employees of the Complainant who were present at the site and since they refuse to accept the mahazar a disconnection notice was affixed in the building and disconnected the power supply as per the Act. Since the above act is objected by the staff, the Opposite party complained the same to Sulthan Bathery Police and Sulthan Bathery Police registered a crime as crime No. 123/15 of Sulthan Batahery Police under section 135 of Electricity Act. The very next day itself the assessment was made by Opposite party under 135 and 126 of Electricity Act and a penal bill amounts to Rs.52,603/- was issued to the registered consumer as per rules by registered post. Under the above circumstances Opposite party submitted that the Forum have no jurisdiction to entertain the complaint since it is not maintainable and prayed to dismiss the complaint with Compensatory cost to Opposite Party.
3. Along with version the opposite party filed I.A.82/2015 challenging the maintainability of the case before this Forum, since the action taken by the opposite party is pursuant to Section 135 of the Electricity Act 2003. It is submitted that the above complaint is seen filed to reconnect the electric supply which was disconnected on detection of theft of electricity by the officials of the KSEB pursuant to S.135 of the Electricity Act 2003. It is settled position of law as laid down by the Honorable Supreme Court of India in U.P. Power Corporation Ltd. And others Vs Anis Ahammed (2013 KHC 4477 Supreme Court) that a complaint against the assessment under S.126, or against offenses committed under S.135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum - Appeal under the provisions of the Electricity Act is the remedy - In the light of the dictum laid down by the Honorable Supreme Court of India, the above complaint is not maintainable before this Honorable Forum. It is further submitted before this Honorable Forum that as per Section 145 of the Electricity Act 2003 no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in Section 126 or on appellate authority referred to in Section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. On this ground also the above complaint is not maintainable. Moreover, it is settled position of law that the acts of indulgence in "unauthorized use of electricity" or "theft of electricity" by a person, neither has any relationship with "unfair trade practice" or "restrictive trade practice" or "deficiency in service" nor does it amounts to hazardous services by the licensee. Such acts of "unauthorized use of electricity" has nothing to do with charging price in excess of the price. Therefore, acts of person in indulging in 'unauthorized use of electricity', or "theft of electricity" do not fall within the meaning of "complaint" and therefore, the "complaint" against action taken by the KSEB against "theft of electricity" or "unauthorized use of electricity" is not maintainable before the Consumer Forum. Under the above circumstance there is express bar of jurisdiction of this Honorable Forum to entertain the above complaint. The maintainability of this complaint may be heard as a preliminary issue. As otherwise, the opposite parties will be put to irreparable loss and injuries. It is therefore prayed that this Honorable Forum may be pleased to hear the maintainability of the above complaint as a preliminary issue.
4. The complainant filed counter in I.A.82/2015 and submitted that there is no unauthorized use of excess energy and she used to pay the bills regularly. Even though the said premises is owned by me today, I have not transferred the electricity connection in to my name from the old consumer. and further submitted that she already filed an application before the Opposite party to change of tariff from domestic to commercial tariff and to change the ownership to her name but the Opposite Party have not taken any steps to that effect.
5. On considering the complaint, version, I.A, counter and the documents produced by both parties the Forum raised the following points for consideration:-
1. Whether the complaint is maintainable before this Forum?
6. Point No.1:- The complainant himself admitted that he is not the actual consumer of opposite party but the occupier of the building and further stated that for transfering the tariff from 1A to 7A tariff and to change the ownership application already filed in the month of December 2014. But the opposite parties have not taken any steps to transfer the same and the documents produced by the complainant also shows that the purpose is noted as “commercial” in the application and the documents produced by the opposite parties also shows that the said premises is used as Beauty Parlour named “My fair lady Beauty Home Stay Home”.
7. Hence we are in the opinion that the said premises is running as commercial purpose. Hence the connection availed for the purpose of as domestic tariff is used for commercial tariff is a clear case of unauthorized use of electricity. Hence it is not maintainable before the Consumer Forum. Hence the Point is decided accordingly.
In the result, the I.A.82/2015 is allowed. Hence the complaint is dismissed.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 3rd day of June 2015.
Date of Filing: 12.02.2015. PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
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PRESIDENT, CDRF, WAYANAD.
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