Orissa

Dhenkanal

CC/87/2017

Hotel Surya - Complainant(s)

Versus

Central Electricity Supply Utility of Odisha, & Others - Opp.Party(s)

09 Feb 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

C.C.Case No. 87 of 2017

            Hotel Surya

            At- Jaganath Road

            P.S- Town, P.O/Dist: Dhenkanal

            Represented through its Prop. Jitendra Kumar Pattanaik        ……….Complainant

            Vrs

            1- Central Electricity Supply Utility of Odisha having its head office at- IDCO         Towers , Janpath         Bhubaneswar Represented through its  Manager Electrical   Dhenkanal Electrical Division ,

            At: Kathagada, PS: Town, Po/Dist: Dhenkanal

            2- Divisional Head Enzen Global Solution Ltd.

            At: Kathagada, PS: Town, Po/Dist: Dhenkanal                          ………..Opp. Party

          

           Present: Sri  Badal Bihari Pattanaik, President,

                            Miss Bijaya Laxmi Satapathy, Member

                            Sri Purna Chandra Mishra , Member

          

           Counsel: For the complainant:  A.K.Rout & Associates

           For the Opp. Party No-1: Authorized Representative , Asit Kumar Sahoo

           For the Opp. Party No-2: Sri Sibasai Mohapatra & Associates

Date of hearing: 07/02/2018

Date of order: 09/02/2018

JUDGMENT

Sri  Badal Bihari Pattanaik, President

            This is a petition under section 12 of the C.P. Act  1986 alleging deficiency in service on the part of the O.Ps . Briefly stated the case of the petitioner is that  he is the proprietor of Hotel Surya who is availing power supply from the opposite party No.1 vide consumer No.DMI 35 on payment of consideration. It is stated that an energy meter has been installed in the premises of the Hotel and the O.Ps is raising bills on the basis of actual meter reading  and the petitioner has been paying his dues from time to time and here is no outstanding till August 2017. But suddenly the petitioner received a letter  from the Divisional Head M/S ENZEN Global Solutions Pvt Ltd who claimed a sum of Rs.9,61,913.81 paise  as differential arrear towards electric dues for the period from August 2003  to August 2017 and  reference was made to one Writ Petition bearing W.P.( C) No.6607/2002 pending before the Honourable High Court of Odisha .It is further stated in, letter No.916 dt 26.09.2017  O.P.No.2 cautioned that unless the said amount of Rs.9,61,913.81 paise is paid within 15 days from the date of receipt of this letter power supply to the hotel will be disconnected ,. After receipt of the letter the petitioner contacted  the O.P.No.1 an 2 over mobile phone ,but no satisfactory reply was made available  from, them. O.P.No.2 could not explain his competency to issue ,such letter when, he has no ,nexus  with the petitioner. It is further ,stated  that Government of Odisha vide its press release dated 25.01.2013 through the ,department of  Information and Public Relations and  by virtue by an  agreement , signed between the Collector & S.P. Dhenkanal and by the O.P.No.1 and Superintending Engineer CESU Dhenkanal in presence of representatives of the agitating public has debarred , M/S ENGEN Global Solution to act in Dhenkanal  & Angul Electrical Division in any manner  and therefore  the O.P.No.2 has no business or authority  to issue a letter  to the petitioner . It is further ,stated  that the O.P.No.1 is issuing bills to the petitioner in, the right category as per the tariff fixed from, time to time and if there is any error in the bill that can not be raised  after 14 years  since it is barred by estoppels and law of limitation and under ,the provisions of the Electricity Act 2003.  As such the claim, is barred by limitation and not sustainable in the eyes of laws. It is further stated that  from the Letter No 916 dt 26.09.2017  of O.P.No.2  , it is revealed that the case has been filed  in the Hon’ble High Court where in the writ petitioner claimed concessional tariff  under industrial  tariff category  since 1996 onwards  which is unknown, to the petitioner. However letter of O.P No.2 does not speak regarding the collection of arrear and raising of differential amount by the orders passed by the Hon’ble High Court of Orissa.  Since  the petitioner is a senior citizen  of 78 years old and ,seriously ill such threat by the O.P.No.2 has caused high mental tension, and the health of the petitioner  has deteriorated from, the date of notice. It is further stated that the petitioner  has never applied for change of category of the consumer nor any notice  of being heard  has been issued by the Opposite Party No.1 to the petitioner  before claiming the said amount .The petitioner appealed ,O.P.No.1 to restrain O.P.No.2 to keep ,themselves away  from, such unlawful conduct, but O.P.No.1 has remained silent , for which the petitioner has ,approached this forum  praying for the reliefs as  stated in the complaint petition.

2.  After admission of the case notice was issued to the Opposite Parties to appear and to file  their written  version. The O.P.No.1 appeared through his authorized representatives and the O.P.No.2 appeared through his advocate. Even though the O.P.No.1 appeared through their Authorized Representative he  preferred not to file any  written version. The O.P.No.2 filed his written version .

3.         The O.P.No.2 in his written version stated that the case is not maintainable  as the dispute is not a consumer dispute . There is no cause of action and the petitioner has no locus standi to bring this case before this forum.  Such dispute  if any could have been, raised before the appropriate agencies  i.e.  Grievance Redressal Forum  or Ombudsmen  as prescribed under the O.E.R.C. Code and the provisions of the Electricity Act 2003. It is stated that the opposite Party No.2 being the Engineer  in charge of distribution  of electrical energy  by virtue of the distribution franchise agreement has obtained license on, 27.09.2012 to carry out maintenance, distribution and supply  of electricity in the area of Dhenkanal electrical division, inter alia  under the division of CESU as per the provisions of Electricity Act 2003. So O.P.No.1 is not ,the service provider  but O.P.No.2 is the service provider to the petitioner .It is further stated that the petitioner is availing power supply  not only for the purpose of lighting but to  carry on, hotel business which comes under  general purpose i.e.  commercial category. It is further stated that the petitioner is a  chronic defaulter and his arrear dues has increased to Rs.52,575/- by September 2017. He denied the allegation of the petitioner made in para 3 and 4 that the petitioner has contacted O.P.No.2 as no satisfactory reply was made available from, them  and the O.P.No.2 could not explain ,his authority  and the competency to issue such letter  and he has no nexus  with the petitioner . It is further ,stated that the petitioner avails power supply for load of 40 K.W. on, commercial category  and as per Industrial Policy Resolution of the Government of Odisha  the consumer was availing ,the benefits of concessional tariff and was billed ,under industrial tariff category w.e.f. 19867  as per policy decision of the Government of Odisha till November 2001. As per I.P.R. 2001 the said benefit not being available any more after November 2001 energy bills , were raised on, commercial prescribed tariff category   as per the prescribed tariff .The bill of the petitioner for the period from  1996 to 2001 were received under industrial tariff  as per the IPR of Government for which taking advantage  of revision the petitioner has filed the Writ Petition  for revision of the entire bills thereafter on industrial tariff basis  . The consumer has filed W.P.( C) No.6697/2002  in Honourable  High Court of Orissa praying therein  to be billed  in a concessional tariff i.e. Industrial category  instead of commercial tariff category as per the Industrial Policy resolution, made by the Government from, time to time. Like the aforesaid Writ petition series of writ petition filed before the Honourable High court of Orissa involving identical issues and points of law vide W.P.( C) No.266/08, W.P.(C) 12680/2008, W.P.No.8314/2003, W.P.(C)14313/2006 an W.P.(C) 6143/2003 which were ,heard ,together ,and disposed of by a common judgment dtd. 28.06.2013 wherein the Honourable High Court observed that ,the hotel shall not be eligible for other benefits other than, land at concessional rate. Therefore no such concession, was extended to tourism sector as per IPR 2001 and 2007 an as such the Writ Petitioner is not entitled to any relief .It is stated since no concession, was available under IPR 2007, 2015 and 2017 the present O.P. revised the bill of the consumer  demanding a sum of Rs.9,.61,913.81 paise towards  differential arrear dues from, August 2003 to August 2017 for payment within, 15 days vide this notice  No. 915 6.09.2015 which has been, calculated on, commercial category. But after receipt of the demand notice the consumer remained silent  without making any payment for which the distribution franchise i.e. O.P.No.2 was constrained to disconnect power supply on, dtd.25.10.2017 after the notice period of 15 days. While denying the allegation, in para 5 of the petition,  it is stated that  M/S ENZEN Global ,solution, Pvt Ltd is the distribution franchise of CESU  and has been duly authorized  to act on, their behalf  by the distribution licensee by virtue of the distribution franchise agreement for Dhenkanal electrical circle .  It is further stated that  since the petitioner has has impleaded the Divisional Licensee  as well as the divisional franchise he is now stopped for raising any objection regarding exercise of power by  divisional  franchise  with reference to the press release  and  the agreement signed by CESU in presence of the District Administration and in absence of proper authority of the divisional franchisee  . It is further stated that the subordinate officers of CESU are not competent to enter into such type of agreement  and no such notification has been, published in official gazette by the Government of Odisha.  It is further stated  that the agreement arrived by ENZEN & CESU is still existing and continuing  and M/S ENZEN Global solution Pvt. L:td is discharging its service as per the agreement .It is further stated  that the petitioner has filed the Writ Petition No.6602/2002  which is pending for ,disposal till date . Taking advantage of such position,  the petitioner  has ,hang of the said Writ by deferring  it for indefinite period. Petitioner has not listed his case along with other writ petition having similar interest as stated above, wherein the benefit have been disallowed in a common order. The petitioner could have replied suitably or could have agitated the matter  before the  High Court  for eradicating the discrepancy in claiming of bills , but suppressing the said fact or bringing to the notice of ,the High Court of such pending writ the petitioner approached this forum. It is further stated  that the claim, made by the O.P.No.2 is never barred by time and in views of the judgment  of Honourable High Court of Orissa  passed in the above ,writ petition, the Writ Petition, filed by the complainant became infructuous  .It is further stated  that the O.P.No.1  could recently know about the disposal of the Writ Application as stated earlier  and without making any further delay claimed its just full dues that has escaped for years together . While ,repudiating the allegation, of para 7,8 and 11  of the petition O.P.No.2 stated that  there was no threat from, the side of the O.P.No.2 and he has discharged his duty as per provision of law and the hotel of the petitioner  is a commercial concern  and is doing business  which is purely  a profit making commercial organization  who uses electricity for commercial purpose and apart from that the Proprietor has other commercial activities for which he is not a consumer as per section 2 (d) (i) of the C.,P. Act. It is further stated that the case is barred by limitation as the petitioner has mentioned the cause of action, to be on, 22.1.2015 and the complaint petition has been filed on 20.10.2017. The complaint petition filed by the petitioner is a false one which needs  dismissal u/s 26 of the C.P. Act.

4.         Taking into consideration the pleadings and counter pleadings of the parties the following issues are framed for consideration.

a)         Whether the petitioner is a consumer?

b)         Whether the O.P.No.2 is authorized to issue demand notice to the petitioner?

c)         Whether there is deficiency in service on, the part of the O.Ps

d)         To What relief the complainant is entitled ?

5.         The first and fore most question, relating to this case is whether the petitioner is a consumer  or not ?

 The petitioner has specifically pleaded  in para 11 of the complaint petition that  he earns his livelihood  by way of self employment  from this Hotel  and it is the only source of income for him. On the other hand the O.P.No.2 has pleaded that the petitioner is using power supply not only for lighting of his hotel but for business which is commercial in nature  for which he is not  a consumer .The O.P.No.2 further stated that the petitioner is having other commercial activities for which he is not a consumer. The O.P.No.2 even though has pleaded  that the petitioner is having other commercial activities  not a single document  has been filed  or no evidence has been led  to that effect  .In the absence of any evidence or document  the pleadings  of O.P.No.2  that the petitioner is having other commercial activities   in the absence of any proof is not acceptable  to us. Since the petitioner has hired the service on consideration from Ops. & specifically pleaded  that he is earning his livelihood by way of self employment from this hotel  which is the only source of income  for him which is supported by affidavit  the claim of the O.P.No.2  holds no ground  and the objection raised by the O.P.No.2 on, this score stands rejected.

6.         The next question relating to this case is whether the Opposite Party No.2 is authorized to issue  demand notice  to the petitioner ?

The petitioner has pleaded that  the O.P.No.2 i.e. M/S ENZEN Global Solutions Pvt Ltd has  no authority  to issue any  notice  to him  as the organization has been debarred  to act in Dhenkanal electrical division by virtue of the press release made by the  Government of Odisha through  Information and Public Relation Department on 25.01.13  and  by virtue of  an agreement  arrived between the District Administration  and the Superintending Engineer  and Executive Engineer  of CESU Dhenkanal .In support of his pleadings , he has filed  the copy of the press release dated 25.01.2013 issued  by the Information and Public  Relation Department of the Government of Odisha and  the copy of the agreement between the  District Administration, and the CESU Officials  on, 31.1.2013. On the other hand  the O.P.No.2  has simply pleaded that  by virtue of an agreement on dated 27/09/2012 they are acting as divisional franchise and the subordinate officers of CESU have got no authority  to enter into such an agreement and such agreement has no force of law  and they are competent to exercise power  as the divisional franchise . The O.P.No.2 has neither filed the copy of the agreement  nor  any other document  to show that the decision  of the State Government dt. 25.01.2013  debarring  the O.P.No.2  to act in Dhenkanal and Angul electrical division has been revoked  .In the absence of any document  we are unable to hold  that the O.P.No.2  has authority  to operate in Dhenkanal Electrical Division of CESU. So far as the question of  authority is concerned  CESU is a public sector undertaking owned and controlled by  the Government of Odisha . Government has got ample jurisdiction to issue any direction  to any authority  to stop their  operation  in the greater interest of the State. The Press release dtd. 25.1.2013 clearly reads that in the face of public discontentment the operation of the divisional franchise  i.e.  ENZEN Global solution Pvt Ltd  is being suspended  . There after  no notification  or order of the State Government has been filed  before this Forum  to establish the authority of the O.P.No.2 to deal with the consumers  in any manner . When the O.P.No.2 has got no authority  to operate  in the division  which has been clearly restrained by the Govt. of Odisha  we are unable to hold  that O.P.No.2 has got any authority  to interfere  in the  process of billing  issue of notice to the consumer  and to connect or disconnect power supply  to the  consumers . In, the absence of any authority  from the competent authority the action of the O.P.No.2 is high handed, illegal and arbitrary  and  they are not entitled to  issue demand notice to any customer.

            It seen from the documents on record  that the  bills are issued by  O.P.No.1  to the customer  under his seal and signature  and money receipts are also are issued by the O.P.No.1 . It becomes clear  from, the  bills filed in the  case record  and from the receipts on record  that  these documents  are issued by O.P.No.1 . So the plea of the O.P.No.2 that they are discharging the duty of billing etc as per franchise agreement  appears to be totally false  and  there is no truth  in the  pleadings of  the O.P.No.2 .

            The O.P.No.1  who happens to be the  Divisional Licensee  has not disputed  para 5 of the complaint petition in any manner .So it is apparent on, the face of the record that  the plea of the petitioner are pleaded  in this paragraph  remains unchallenged by O.P.No.1. when the Divisional Licensee does not dispute this aspect  there is no force  in the pleadings of the  O.P.No.2 that  they are competent to exercise power  regarding supply and distribution of electrical energy to the customers in Dhenkanal Electrical Division. .

7.         Now comes to the question  whether the O.P.No.2 is justified  in disconnecting power supply  to the  hotel of the petitioner ?

            It is very much clear from the preceding discussion, that M/S ENZEN Global Solutions Private Limited is a nun entity  so far as supply and distribution of electricity is concerned in Dhenkanal Electrical Division.  Since the O.P.No.2 has no authority  to operate in the area issue of ,a demand notice claiming ,differential amount  is without authority and unacceptable in the eyes of law. When O.P.No.2 has no authority  to operate in the area issue of demand notice as well as disconnection of power supply is totally illegal. Even if the written version of O.P.No.2 is taken into consideration it exposes their notorious and unlawful conduct.

            It is pleaded by the O.P.No.2 that  the petitioner has filed a Writ Petition  before the Honourble High Court of Orissa claiming industrial tariff  to his hotel. It is further submitted  that the petitioner being a commercial user  is being billed  at commercial tariff  and as per I.P.R. of the State of Odisha  the petitioner was given concession for the period from 1996 to 2001 and  the bills of the petitioner are being revised  accordingly .Since the licensee revised the bills for the period from 1996 to 2001 taking advantage of such situation  the petitioner has filed the writ petition  before the High Court  claiming concession, under industrial tariff for ,which he is not entitled .It is the specific case of the O.P.No.2  pleaded in  para 6 of the Written Statement that  “as per IPR 2001 the said benefit  not being applicable any further after November 2001, hence the  E.C. bills  of the consumer were raised on commercial tariff  category as per agreement”.

            It is also pleaded in the same paragraph that “ claiming  aforesaid tariff benefits under industrial tariff category the consumer has filed  W.P.C. No.6697 of 2002 in the Honourable High Court of Orissa Cuttack praying therein to be billed in a concessional tariff  under Industrial tariff category  instead of commercial tariff category as per the IPR made by the Government  from time to time”.

                        It  is seem  from letter No.915 dtd 26.09.2017 issued by  the Divisional Head ENZEN that  “ In view of the above  your energy bills are calculated under commercial category  as per the general purpose tariff with effect  from August 2003 to August 2017 and accordingly a ,revised differential bill is prepared and served on you for making necessary payment”.

            From a  combined reading of the  letter dated 26.09.2017 and  the averments made in para 6  of the written statement  of O.P.No.2  it is crystal clear  that  after November 2001  the petitioner  is being built  under commercial category  and he has been paying his dues under that category .As  per the own pleadings of the O.P.No.2  the  petitioner has filed the writ petition  before the Honourbe High Court of Odisha  praying therein  for  revision of his energy bills  under Industrial Tariff . When the petitioner is paying his dues  under commercial category since November 2001 as per admission of O.P.No.2   we are astonished  where from this amount  cropped up and subsequently claimed by  O.P.No.2. If at all  the petitioner fails in his writ petition  he may not be entitled  to get any  concession under Industrial Tariff  but  the question of additional differential amount  will never arise  as he  is already paying  under  commercial category. So there is no justification on the part of  ,such unauthorized parties to issue such baseless notices  to law abiding consumer who has been paying his dues under commercial category right from November 2001 till date. We find force and truth in the pleading of the ;petitioner that he is paying his dues in the  right category

            The O.P.No.2 has also pleaded  that  the petitioner is a chronic defaulter  and he is having an outstanding  of Rs.52,575/- by September 2017.it seems from, the statement of accounts  that it is due for that month and  the petitioner has  cleared up the dues in right time on 31.10.2017 vide receipt No.14131934 issued by O.P.No.1  , for which  the allegation of the O.P.No.2 against the petitioner is completely false and baseless. The bill for the month of  September  2017 was issued on dated 9/10/2017 and the petitioner has ,paid the current dues on, dtd 31/10/2017 in that bill the O.P.No.1 has not demanded  the amount of Rs.9,61,913.83 P but the O.P.No.2 who is a stranger and non entity  has disconnected  power supply without proper notice  therefore we hold that disconnection of power supply by O.P.No.2 on, td. 25.10.2017 is without authority, unjustified and an act of illegality.

8.         Now comes to question  whether  there is deficiency in service on, the part of the O.Ps

            From the aforesaid discussion  it is crystal clear  that the petitioner is not a defaulter  ,as seen from, the statement of account filed by the  O.P.No.2 issued by O.P.No.1 and from, the  money receipt  filed by the petitioner in this case. So also the petitioner  has been paying the energy charges  to the opposite Party on commercial tariff basis which is admitted in their letter and pleadings .It is further admitted  that power supply to the  hotel of the petitioner has been disconnected on  dtd. 25.10.2017 for nonpayment of energy charges . As discussed earlier  as there is no  default in payment issue of illegal demand notice  disconnection of power supply when there was stay order of this forum  to the premises of a consumer  without notice  and without any justifiable reason is unacceptable in the eyes of law ,and amounts to deficiency in service and unfair trade practice also .

9.         That the O.P.No.2 hs filed the copy of the judgment of certain, Writ Petition wherein the Hon’ble High Court was pleased enough to disallow industrial tariff concession to hotels in O.J.C. No- 3431 of 2002  In WP (C ) No 266 of 2008 the Hon’ble High Court was pleased enough to direct thke petitioner to approach OERC and also directed  Government of Odisha to consider the ,case of the petitioner from the angle of development of tourism  in the State. The ,decision filed by the O.P.No.2 has therefore ,no ,bearing on, the present case.

10.       The Op. No-2 has raised the question of limitation on the ground that the petition has been filed on dt. 20/10/2017 where as the cause of action arose on dt. 22/01/2015 . During the course of argument Ld. Counsel for the petitioner submitted that the cause of action arose only after issue of notice by O.P. No-2 on dt. 26/09/2017 and the date mentioned in the complaint in para 12 of the petition is a typographical error. We have gone through the complaint petition and the documents on record. A conjoint reading of the complainant petition and the documents or record it is clearly that the cause of action for filing the dispute arose only after issue of Letter no- 915 dt. 26/09/2017 by Ms. Enzen Global solutions and therefore since the case has been filed within one month from the date of cause of action. It is within the statutory period and the objection raised by the O.P. No-2 on this score is rejected.

 

11.       The petitioner is a senior citizen  of 78 years old  and for no reason  he has been harassed humiliated  and, tortured  by the O.Ps  without any fault  for which the O.Ps are liable to be punished  for causing unnecessary harassment  to a very senior citizen. The power supply  which is an essential service has ,been disconnected since dtd. 25.10.2017 and a period of  3 and half months ,has ,already lapsed in the mean time. The petitioner is suffering in the hands of ,the O.Ps for no fault of him, but for the  illegal and high handed action of the O.Ps.

            O.P. No-1 is the License. It is his duty to ensure that power supply should be provided to the customers without interruption. In the present case he has miserably failed to cheek the    illegal action of O.P. No-2 leading to harassment of an old law abiding citizen there by causing gross deficiency in service and unnecessary harassment.

12.       In the aforesaid circumstances  as discused in the proceedings paragraphs above  ,we are of the opinion  that there is no justification on the part of the O.P.No.2 to  issue a demand notice  to the petitioner for Rs.9,61,913.81 vide their letter No.915 dt. 26.09.2017 and  there is also no justification on the part of the opposite parties  to disconnect power supply to the hotel of the petitioner  on dtd. 25.10.2017 for which  the O.Ps are liable to compensate the petitioner  for causing deficiency in service , practicing unfair trade practice and  harassing  a senior citizen without any fault of him thereby causing  hardship and loss of income  to him. Since a clean case of deficiency in service, unfair trade practice and harassment  is made out  against the O.Ps the O.Ps are liable  to compensate the petitioner for ,their misdeeds  and hence the order.

                                   

 

O r d e r

The complaint petition is allowed on contest against the O.Ps ., The O.Ps are jointly and severely liable  for causing deficiency in service and for ,practicing unfair trade practice and  for harassing  a senior citizen. The Opposite Parties are directed to restore power supply  to the hotel of the petitioner  forthwith  on, receipt of the copy of the order  and  the O.Ps are further directed  to pay Rs.50,000/- as compensation towards deficiency in service and harassment   and a sum of Rs.5,000/- towards cost of litigation. The O.Ps are further directed  not to claim a sum of Rs.9,61,913.81 paise  as claimed by O.P.No.2  vide his letter No.915 dtd. 26.09.2017. The cost and compensation as directed be  paid within 30 days, failing which  it will carry  interest @ 9% from the date of order  till it is paid to the petitioner.

            Pronounced in the open forum on, this 9^th day of February 2018.

 

Dictated and corrected by me

 

Purna Chandra Mishra            Bijayalaxmi Satpathy                  Badal Bihari Pattanaik

     Member                                         Member,                                 President.