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

1. This complaint came up on 28-01-2009 for hearing on the question of maintainability before us along with I.A.23/09 seeking interim orders restraining the opposite party from disconnecting the electricity supply for non-payment of the bill for Rs.16,217/- dated, 23-12-2008.

2. The complainant is a consumer under opposite party for electricity supply to a technical institute run by Islamic Trust. On 18-8-2008 the Sub Engineer of Electrical Section, Angadippuram inspected the premises, prepared Mahazar and issued a penal bill. This bill is challenged by consumer by preferring an appeal before the Deputy Chief Engineer. After the issuance of this penal bill two other bills were also issued by opposite party. One is for Rs.17,820/- dated, 22-10-2008 and another for Rs.16,217/- dated, 23-12-2008. It is submitted that complainant though remitted the bill for Rs.17,820/- with protest, to avoid disconnection, both the bills (for Rs.17,820/- and Rs.16,217/-) are challenged in this complaint. It is stated that these bills are against the provisions envisaged in Cl.51(1)(2) of Conditions of Supply of Electrical Energy and that opposite party has no authority to collect Rs.10,400/- as fixed charges in these bills. Hence this complaint to set aside the bill dated, 22-10-2008 for Rs.17,820/- and bill dated, 23-12-2008 for Rs.16,217/-. Complainant also filed I.A.23/09 along with complaint seeking interim relief against disconnection for the non-payment of the bill dated, 23-12-2008.

3. Opposite party entered appearance and filed counter in I.A.23/09. At the outset itself this Forum raised doubts regarding the maintainability of the complaint on the specific averment made in the complaint that an appeal has been preferred by complainant against the penal bill before the Deputy Chief Engineer. Opposite party has submitted in the counter that appeal is pending before Deputy Chief Engineer, Manjeri against the first penal bill issued to complainant for Rs.77,543/- for unauthorised additional load detected during Anti Power Theft Squad inspection. That complainant remitted 52% of this bill amount as pre-condition for entertaining the appeal under sec.127 of the Indian Electricity Act, 2003. Admittedly the complainant has not so far applied for getting the unauthorised additional load regularized. As per Regulation 51(2) of Terms and Conditions of Supply 2005, “the penalty for unauthorised additional load shall be levied till the said unauthorised additional load is removed or regularised as per rules.”

4. It was submitted on behalf of opposite party that the two subsequent bills which are challenged int his complaint, are issued including the penal charge levied as per Regulation 51(2) due to failure on the part of complainant to regularise the unauthorised load. That Rs.10,400/- is included in these bills as fixed charges taking into consideration the unauthorised additional load detected also. That the above bills are bi-monthly regular bills including the penal charges under Regulation 51(2) for unauthorised additional load till regularisation. The pendency of appeal before the Deputy Chief Engineer is not in dispute. As per the decision in 2008 CTJ 837 (CP) NCDRC it is laid that “a consumer has option either to file appeal under section 127 of the Electricity Act or to approach the Consumer for a by filing complaint. He has to select either of the remedy”. The main penal bill of Rs.77,543/- is under consideration before the Deputy Chief Engineer. The subsequent bills are only continuation of the action taken in issuing the first penal bill. Therefore the ultimate question in challenge would be whether the main penal bill of Rs.77,543/- is sustainable or not. Counsel for complainant submitted that since complainant has been issued penal bills subsequently also it would give rise to fresh cause of action each time and this complaint before Forum is maintainable. We are unable to accept this argument. The issue whether the subsequent bills are valid or not is to be decided basing upon the consideration of the issue whether the first penal bill is sustainable or not. In fact the question regarding the validity of subsequent bills is directly and substantially in issue or fully based upon the issue that is pending before the Deputy Chief Engineer. Moreover if the complainant's argument is to be accepted we will have to accept series of complaints filed by this complainant upon the subsequent bills hereafter issued to him till the regularisation or removal of unauthorised load. In our view, the matter being subjudice this Forum lacks jurisdiction to grant any relief in this matter. Applying the principles laid in the decision of Apex Commission, as stated above we hold that this complaint is not maintainable. Hence dismissed. We make no order as to costs.

Dated this 29th day of January, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER