COMPLAINT FILED: 25.04.2009<br /> DISPOSED ON: 08.04.2010 <br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 8TH APRIL 2010<br /> <br /> PRESENT :- SRI. B.S. REDDY PRESIDENT<br /> SRI. A. MUNIYAPPA MEMBER <br /> COMPLAINT NO.952/2009<br /> <br /> COMPLAINANT Azeem Sherieff,<br /> No.3/1, 1st Main,<br /> Lakkasandra,<br /> Bangalore.<br /> <br /> Advocate: Sri. H. Pavana Chandra <br /> Shetty<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTIES 1. Assistant Executive <br /> Engineer (Elecl),<br /> BESCOM, S2 Sub Division,<br /> Wilson Garden,<br /> Bangalore.<br /> <br /> 2. The Executive Engineer,<br /> M.T. Division, BMAZ,<br /> BESCOM,<br /> Bangalore – 560 009.<br /> <br /> 3. The Assistant Executive <br /> Engineer (Elecl),<br /> H.T. Rating Sub-Division,<br /> BESCOM, K.R. Circle,<br /> Bangalore – 09.<br /> <br /> Advocate: Sri. G. Krishna Murthy<br /> <br /> O R D E R<br /> <br /> SRI. B.S. REDDY, PRESIDENT<br /> <br /> The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against Opposite Parties (herein after called as O.Ps) to pay back an amount of Rs.2,82,850/- collected towards back billing, with interest at 18% p.a. and to direct the OP-1 to issue monthly bill on the basis of domestic assessment and to pay compensation of Rs.1,00,000/- for mental agony on the allegations of deficiency in service on the part of the OPs. <br /> <br /> 2. The case of the complainant is that he is the owner and residing in No.3/1, 1st Main, Lakkasandra, Bangalore. He had rented out the said residential houses constructed in the said property. He had taken electricity connection for the said premises for domestic usage. He has been regularly in the payment of electricity bills. It appears that OP-1 inspected the premises on 27.06.2008 and a report was submitted stating premises is being used for paying guest accommodation and electricity usage charges ought to be billed as per commercial charges and not as per domestic charges. Accordingly OP has issued demand notice, demanding back billing charges in respect of the said premises. The demand notice issued by the OP is arbitrary and without any basis. The allegation that the premise is being used as paying guest accommodation is far from truth. The complainant being aggrieved by the said demand notice; has replied to the same and deposited 50% of the amount demanded under the demand notice. OP disconnected power connection on 08.04.2009 and reconnected on 09.04.2009 after payment of balance amount of 50% of back bill amount. The complainant gone to OP-1 on 08.04.2009 and he was not able to get to appropriate answer from OP-1 and then approached the Superintendent Engineer, Elcl (SE) and there also not able to get answer and again he has gone to Cauvery Bhavan; there also no appropriate answer and he has gone to the BESCOM Office, K.R. Circle; in the said premises he had gone to more than 20 chambers of the officers who is the competent authority for taking the necessary steps for filing the appeal but unfortunately included Managing Director of BESCOM; not able to answer the complainant’s prayer. Subsequently complainant paid another 50% of balance back billing amount to the OP. After payment of 50% of back billing amount on 09.04.2009; the monthly electrical bill came to be issued as commercial instead of domestic usage. The complainant paid monthly bills amount as per the bills issued by OP. OP without any proof, verification straightaway imposed the commercial charge instead of domestic charge. OP has failed to consider the representation given by the complainant. Hence the complainant is seeking necessary reliefs as stated above. <br /> <br /> 3. On appearance, OP-1 for himself and on behalf of OP–2 and 3 filed version contending that the complaint is not maintainable; the same is liable to be dismissed in limine. It is submitted that when alternative and efficacious remedy was available before the Appellate Authority constituted under Indian Electricity Act; the complainant has not chosen to avail the same and deliberately filed the complaint with misleading statements. As per inspection under taken by the department officials; the complainant was using the premises for a different tariff from the one for which they were originally taken. The complainant has rented out the said premises for the purposes of paying guest accommodation was revealed through the inspection by the department official. Payment of the bills is admitted but the correct usage is not admitted. It is admitted that the demand notice; demanding back billing charges in respect of the premises was issued. The allegations that the demand notice issued is arbitrary and without any basis and the premises is not used as paying guest accommodation is far from truth are false. The reply of the complainant for the demand notice is dated 30.12.2008; whereas the respective demands were raised on 02.07.2008. The allegation that OP disconnected power connection from the complainant premises on 08.04.2009 and reconnected on 09.04.2009 after payment of balance amount of 50% of back bill amount and complainant gone to OP-1 on 08.04.2009 and he was not able to get appropriate answer and approaching Superintendent Engineer; visiting Cauvery Bhavan, and visiting to BESCOM office, K.R. Circle, Bangalore, he was not able get answer for his prayer and subsequently he paid another 50% of back billing amount are misconceived, misleading and not admitted by the OPs.<br /> <br /> It is submitted that the Junior Engineer (Elect) O & M-1 submitted inspection reports pertaining to the electrical installations of the complainant to the sub-division. The said inspection reports were submitted in the month of June – 2008. The Junior Engineer in his inspection reports reported that commercial activity was found in the premises and they are PG accommodation. As per the BESCOM procedure; the provisional / final demand notices were issued based on the inspection reports under domestic (LT2(a)) tariff with sanctioned load of 2.00 KW each. Hence immediately after inspection these installations were back billed under regulation 42.02 of KERC Amendment Notification No.KERC/COS/D/07-08 for a period of six months under LT-3 tariff. One month time was given to file objections regarding the demand notices. At that stage the installations were not disconnected. The complainant neither responded to the demand notices nor paid up the demanded amount even after the granted time of 30 days. No objection was filed to the demand notices. Neither any appeal was preferred before the Appellate Authority. Thus the demand raised by OPs reached finality. On 30.12.2008 the complainant approached OP-1 with a request of installment payment without objecting the back billing charges. OP-1 has endorsed on the request letter of the complainant to the effect ‘please collect 50% and balance in two installments’. The complainant issued a cheque dated 31.12.2008 for Rs.1,55,632/- drawn on Axis Bank in favour of the OPs being 50% of the total amount due. On presentation, the aforesaid cheque got bounced forcing the OPs to initiate disconnection proceedings in accordance with law. The complainant requested OPs not to disconnect installations and paid the value of the bounced cheque by way of demand draft on 09.01.2009. Still balance 50% of the total amount due was not paid by him. The complainant came up with a request letter dated 26.02.2009 enclosing about 11 rental agreements purportedly executed between the complainant and his lessees. The said agreements are concocted for the purpose of the complaint and to mislead the authorities and this Forum. The installations are 10 in number. The second and final installment of 50% was due February – 2009. Despite repeated demands from the OPs the said amount was not paid by the complainant. The final installment was paid by the complainant on 15.04.2009 only on disconnecting installations. The complainant has paid the back billing charges without objection or denial of the fact of mis-use. Till date the aforesaid installations are charged at LT-2 (a) category only. The prescribed procedure for conversion of tariff from domestic to commercial use is not followed by the complainant. Even though there is a statutory protection available to the complainant, he has not come up with either objection or appeal against the order of OPs if he has considered them as improper. Thus the demand raised by the OPs has reached finality. There is neither deficiency in service nor defect in goods delivered and thus the entire complaint is misconceived and mischievous. Hence it is prayed to dismiss the complaint with exemplary costs. <br /> <br /> 5. In order to substantiate the complaint averments the complainant filed affidavit evidence and produced documents. OP-1 filed affidavit evidence in support of the defence version for himself and on behalf of OP-2 and 3 and produced documents. <br /> <br /> 6. Arguments heard on both sides. The point for consideration is: <br /> <br /> Whether section 145 of the Electricity Act 2003 <br /> ousts the jurisdiction of this Forum to entertain <br /> this complaint? <br /> <br /> We record our findings on the above point in <br /> the Affirmative. <br /> <br /> R E A S O N S<br /> <br /> 7. The complainant being the owner of premises No.3/1, 1st Main, Lakkasandra, Bangalore has challenged the final back billing notification dated 02.07.2008 issued by OP-1 in respect of 10 installations bearing RR Nos. MSS2 EH 23115, MSS2 EH 23092, MSS2 EH 23107, MSSE EH 23095, MSS2 EH 23121, MSS2 23101, MSS2 EH 23106, MSS2 EH 23114, MSS2 EH 23119, MSS2 EH 23094 and S2 16281 of his premises. OP-1 visited the premises of the complainant and inspected the above said installations on 26.11.2008 submitted the reports stating that the premises is being used for paying guest accommodation and electricity usage charges ought to be billed as per commercial charges and not as per domestic charges. Based on the reports submitted by OP-1 demand notices dated 02.07.2008 were issued to the complainant affording opportunity to file objections if any within 15 days failing which it assumes that he has no objection on the bills and he was advised to apply for power sanction for commercial purposes and to get it regularize by paying back billing charges within 30 days from the date of receipt of the letter, otherwise the installations will be disconnected for non-payment of back billing charges and also for non-regularization of installations. The complainant neither replied for the said notices / letters nor complied the demands. On 30.12.2008 the complainant approached OP-1 with a request letter seeking permission to pay the back billing charges amount in three instalments. OP-1 has made an endorsement on the said request letter to the effect ‘please collect 50% and balance two installments’. The cheque issued by the complainant for Rs.1,55,632/- towards 50% of the back billing charges was bounced. Later he has paid the said amount by way of demand draft dated 09.01.2009. The final installment of back billing charges was paid by the complainant on 15.04.2009 only on disconnecting installations. Thus it becomes clear that the complainant without raising any objections for the demand notices has paid entire back billing charges of Rs.2,82,850/-. Now the complainant is claiming for refund of the said amount on the ground that without proper verification of the use of the premises demand notices are issued demanding the charges of commercial use. <br /> <br /> 9. The learned counsel for the complainant contended that the complainant approached OP-1 on 08.04.2009 challenging the back billing; he could not get any appropriate answer; then he approached Superintendent of Engineer Electrical and there also he was not able to get any answer, then he visited Cauvery Bhavan and BESCOM Office, K.R. Circle and approached the officers of more than 20, who is the competent authority for the taking necessary steps for filing the appeal, but unfortunately none of the officers including the Managing Director of BESCOM was able to answer the complainant’s prayer. Thus it is contended that the complainant was unable to approach the appellate authority challenging the demand notices issued claiming the back billing charges. Thus it is contended that there was no other Forum other than this Forum for seeking necessary reliefs. <br /> <br /> 10. The learned counsel for OPs contended that the demand notices were issued on 02.07.2008 affording opportunity to file objections if any by granting 30 days time. The complainant has not filed any objections to the demand notices. On the other hand he requested for payment of back billing charges in installments; accordingly he was allowed to pay the amounts in 3 installments. The complainant has paid the entire amount of back billing charges. Further it is contended that this Forum has no jurisdiction to entertain this complaint, as the complainant could have preferred appeal u/s 127 of the Electricity Act 2003 and under regulation 44 of the Conditions of Supply of Electricity of Distribution Licensees in the State of Karnataka (Notification EN 27 PSR 2005 dated 17.06.2006). Further it is contended that jurisdiction of the Civil Court is clearly ousted in regard to any proceedings against electricity board in view of section 145 of Act. The complainant has not availed the alternative efficacious appeal remedy u/s 127 of the electricity Act. Thus it is contended that the complaint is liable to dismissed as not maintainable. <br /> <br /> 11. It is contended for the complainant that the lease agreements of the 11 tenants produced before the OPs clearly goes to show that the premises of the complainant were let out to the tenants; the same were not used as PG accommodation; OP-1 without proper verification has submitted the reports stating that the premises are being used for PG accommodation. We are unable to accept this contention for the reason that the installations are only 10 in numbers; but the complainant has produced 11 lease agreements. The complainant could have approached the appellate authority u/s 127 of the Electricity Act challenging the demand notices. Without availing that remedy he has approached this Forum with this complaint. Section 145 of the Electricity Act ousts the jurisdiction of Civil Court as well as any other Forum in adjudicating the claims regarding back billing charges or any other matters. In 2005 (4) KCCR 2594 The Executive Engineer, KPTCL now GESCOM V/s Ishwaramma the Hon’ble High Court held that section 145 of the Act would clearly indicate that no Civil Court shall have the jurisdiction to entertain any suit or proceedings in respect of any matter which the assessing officer referred to in Section 126 or an appellant authority referred to in Section 127 is empowered to determine or act – On facts, held, the demand made by the BESCOM cannot be challenged before the consumer redressal forum – The district consumer forum ordering restoration of the electricity supply is without jurisdiction in view of the Section 145 of the Electricity Act 2003 – The provisions of Section 145 of the Electricity Act would oust the jurisdiction of the Civil Court as well as any other forum in adjudicating the claim of the petitioners. <br /> <br /> The Principles laid down in the above ruling are aptly applicable to the facts of this case. In the said case the District Forum ordered for restoration of electricity supply which was disconnected on account of committing theft of electrical energy which was inspected by Assistant Executive Engineer, Vigilance Squad. Under these circumstances we are of the view that the complaint filed before this Forum is not maintainable. Accordingly we proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is dismissed as not maintainable. In view of nature of dispute no order as to costs. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 8th day of March 2010) <br /> <br /> <br /> MEMBER PRESIDENT<br /> s.n.m. <br />