Haryana

Fatehabad

CC/94/2017

Sarbati - Complainant(s)

Versus

DHBVN - Opp.Party(s)

Sant Kumar

12 Feb 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHABAD.

 

                                                           Complaint No.:94 of 2017.

                                                           Date of Instt.: 27.04.2017.

                                                           Date of Decision: 12.02.2018.

 

Smt.Sarbati alias Saraswati wife of Mahender Singh, resident of village Bhuthan Kalan, Tehsil & District Fatehabad.

 

                                                                             …Complainant.

                             Versus

 

1.Dakshin Haryana Bijli Vitran Nigam, Fatehabad, through its Executive Engineer, Operation Division DHBVN, Fatehabad District Fatehabad.

 

2.Sub-Divisional Officer, Operation Sub-Division, Sub-Urban,  Dakshin Haryana Bijli Vitran Nigam, Fatehabad Tehsil and District Fatehabad.   

 

                                                                             …Opposite Parties.

 

             Complaint U/s 12 of the Consumer Protection Act, 1986

 

Before:                Sh.Raghbir Singh, President.

                            Sh.R.S.Panghal, Member.

Mrs.Ansuya Bishnoi, Member.

         

Present:                Sh.Sant Kumar, Counsel for the complainant.

Sh.Kuldeep Sharma, counsel for the opposite parties.

 

ORDER:

                            

                             The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the Opposite Parties (hereinafter to be referred as OPs) with the averments that she applied for releasing of domestic electricity connection in her residence at village Bhuthan Kalan, District Fatehabad on 06.07.2012. As per the instructions of OPs she deposited the requisite security of Rs.1010/- vide receipt No.62/0748 dated 06.07.2012 and also fulfilled all the formalities and submitted all the relevant documents in the office of OPs and as such she is consumer of OPs as defined in Consumer Protection Act, 1986.

2.                          It is further submitted that after completion of all the documents the OPs sent a demand notice and consequently she deposited the test report and other relevant documents i.e. agreement and bills of material purchased by her.

3.                          It is further submitted that till date the domestic electricity connection has not been released to the complainant. On account of non-releasing the electricity connection she is facing hardship and her children are unable to continue the study and her old parents are suffering from physical and mental agony as now-a-days it is not possible to survive without electricity. It is also further submitted that the complainant is being discriminated in releasing the electricity connection as the person who had applied after the complainant have already got the electricity connection.

4.                          It is further submitted that the OPs were repeatedly requested by the complainant for releasing the domestic electricity connection, but all in vain and finally the OPs have flatly refused to release the electricity connection. The above said act on the part of OPs in not releasing the electricity connection amounts to deficiency on their part in rendering service to the complainant and as such the complainant is also entitled for a compensation of Rs.50,000/- on account of mental agony, physical harassment suffered by her. Hence, the present complaint.

5.                          On being served, the OPs appeared and resisted the complaint by filing a joint written statement wherein various preliminary objections with regard to maintainability, cause of action, locus-standi, concealment of true and material facts etc., have been raised.

6.                          On merits, it is submitted that the complainant had deposited only 5% of the estimate cost and thereafter the estimate was prepared and the complainant was directed vide letter dated 19.01.2016 to deposit the remaining 95% of the amount i.e. Rs.4,17,500/- as per new sales circular. But the complainant has not deposited the above said amount till date.  It is further submitted that since the complainant failed to deposit the amount within time, as such the security of the complainant has already been forfeited. As per New Sales Circular in respect to release of connection in the DHANI the complainant is required to deposit the entire amount of estimated cost. It is also further submitted that since the security deposit by the complainant has already been forfeited as such she is not consumer of the OPs. It is also submitted that there is no deficiency on the part of OPs in rendering service to the complainant, as such the present complaint is liable to be dismissed.

7.                          The complainant in evidence filed her affidavit as Annexure C1 and also tendered the document Annexure C-2. On the other hand Sh.Rajesh Kumar, SDO Fatehabad tendered an affidavit as Annexure RW1/A on behalf of OPs along-with documents Annexures R-1, R-2 and closed the evidence.

8.                          The learned counsel in his arguments contended that the complainant had applied for releasing domestic electricity connection on 06.07.2012 and also deposited the requisite security of Rs.1010/- on 06.07.2012. After receiving a demand notice a test report along-with other relevant documents were deposited by the complainant with the Ops. However even after a lapse of more than 7 years the electricity connection has not been released to her by the Ops. The learned counsel also contended that the complainant is being discriminated by the Ops because the consumer who had applied after the complainant has already got the electricity connection. It is further contended that the above said act on the part of Ops in not releasing the electricity connection to the complainant amounts to deficiency in rendering service to the complainant. In support of his contention the learned counsel placed reliance on the judgments cited as 2005(3) CLT (SC) Page 54, AIR 2008 (CLT) Page 47, 2007 (2) CLT Page 518, 2009 (1) CLT Page 710 and 1998(1) CLT Page 299. The learned counsel during arguments also referred sales circular instructions 26 and Section 43 of Electricity Act, 2003.

9.                          The learned counsel further prayed that the present complaint be accepted and the Ops be directed to release the electricity connection of the complainant.

10.                        On the other hand, the learned counsel for the Ops rebutted the arguments advanced by learned counsel for the complainant and further reiterated the averments made in the written statement.  It is further contended by the learned counsel for the Ops that the complainant  had only deposited 5% estimate cost and thereafter the estimate was prepared and vide memo dated 19.01.2016 he was asked to deposit the remaining 95% of the amount as per new sales circular which the complainant has not deposited till date. Since the complainant has not deposited the remaining amount as such she is not entitled for release of electricity connection. It is also further contended that since the complainant had not deposited the remaining amount as such the security of the complainant has been forfeited and therefore the complainant is not consumer of the Ops. It is also contended that there is no deficiency on the part of Ops in rendering service to the complainant and as such the present complaint is liable to be dismissed.

11.                        We have heard learned counsel for the parties and have also gone through the case file very carefully. There is no dispute that the complainant had applied for releasing the domestic electricity connection on 06.07.2012 and had deposited the requisite security amount of Rs.1010/- vide receipt No.62/0748 dated 06.07.2012 as is evident from the copy of receipt placed on file as Annexure C2. It is the case of the complainant that after completion of all the formalities, the Ops sent demand notice to the complainant and consequently the complainant deposited the test report and other relevant documents such as agreement and bills of material purchased by the complainant as directed by the Ops. However, the Ops have not released the electricity connection of the complainant despite passing of more than 7 years. The Ops  have averred that the complainant had deposited only 5% of the estimate cost and thereafter the estimate was prepared and the complainant was directed vide memo dated 19.01.2016 for depositing the remaining 95% of the amount i.e. Rs.4,17,500/- as per new sales circular dated 06.03.2017. Since the complainant has not deposited the above said remaining amount till date as such the electricity connection has not been released to the complainant. It is also the case of the Ops that since the remaining amount was not deposited by the complainant as such the security of the complainant has been forfeited and therefore she is not consumer of the Ops. However we see no substance in the contention of the Ops because the sales circular No.D-13 of 2017 was issued on 06.03.2017 whereas the complainant had deposited the security amount of Rs.1010/- on 06.07.2012 for release of the electricity connection i.e. much prior to issuance of above said sales circular but the Ops have failed to release the connection to the complainant so far. Section 43 of the Electricity Act, 2003 casts duty upon the Nigam to supply the electricity and for the ready reference the said section is reproduced as under:-

“43 Duty to supply on request.- (1) Save as otherwise provided in this Act, every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply:

Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission:

Provided further that in case of a village or hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area.

(2) It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1):

Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission.

(3) If a distribution licensee fails to supply the electricity within the period prescribed in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default.

                   The above said provisions of Section 43 of the Electricity Act, 2003 makes it clear that opposite parties were required to release the electricity connection to the complainant within one month after receipt of the application or within specific period as specified by the opposite parties but the opposite parties have failed to release the connection after such a delay of more than seven years and even after filing of the present complaint as per proviso of sub section 2 of Section 43 of the Act. The opposite parties have not specified the period for releasing the connection to the complainant. The Hon’ble Supreme Court of India in case titled as Punjab State Electricity Board Ltd. Versus Zora Singh & Ors. Civil Appeal Nos.4910-4981 of 2005 decided on 11.8.2005 has held that “It is also idle to contend that the Board was cash-starved owing to any faulty decision on the part of the State. If it suffered losses owing to any direction issued by the State pursuant to any policy decision adopted by it, the same being an internal matter between the State and the Board, the prospective consumers cannot suffer therefore.” It was also held in the above referred judgment that “Electricity (Supply) Act, 1948, Section 79(1)- Indian Electricity Act, 1910, Sections 22 and 24- Consumer Protection Act, 1986, Section 2 (g)- Electricity Board getting security deposits for supply of electrical energy without having made itself ready to supply electrical energy- Board failed to supply the electricity as per period stipulated in their regulations- Board unjustly enriched itself with the money deposited by applicants- It is deficiency of service- Board directed to pay interest at the rate of 9% and compensation of Rs.5000/-.”

                   Similarly, the Hon’ble Punjab and Haryana High Court in case titled as Amanpreet Singh Vs. Chairman Punjab State Power Corporation Ltd. & Ors. 2014(2) Civil Court Cases 212 has held as under:-

“ Electricity Act, 2003, Ss.42,43- Release of electric connection- Ss.42,43 of the Act cast duty on ‘distribution licensee’ to provide supply of electricity to consumer within a period of one month after receipt of application requiring supply of electricity- Provisions are mandatory in nature.” In that case there was inordinate delay and respondents No.1 to 3 failed to explain inordinate delay in releasing electric connection in favour of petitioner. So the respondents No.1 to 3 were directed to compensate petitioner by paying an amount of Rs.50,000/- as costs with interest @9% per annum from the date of receipt of test report till the date of actual payment.

12.              The Hon’ble High Court of Calcutta vide judgment dated 12.10.2007 in case titled as Molay Kumar Acharya Vs. Chairman-cum-Managing Director D.B.State Electricity Distribution Co. has held that right to electricity is also right to life and liberty in terms of Article 21 because no one in the modern days can survive without electricity.

13.              It is also pertinent to discuss here that the requisite security was deposited by the complainant on 06.07.2012. We are of the considered opinion that the case of the complainant for release of the domestic electricity connection will be governed by the guidelines or the circular which was applicable when the security was deposited and the demand notice was issued by the Electricity Board and the same will not be governed by the subsequent sales circular. In the present case the OPs have denied the electricity connection to the complainant on the basis of sales circular No.D-13, 2017 issued on 06.03.2017. We are of the considered opinion that the circular dated 06.03.2017 is not applicable in the case of the complainant. Judgment rendered by the National Commission in case titled as UHBVN Vs. Mukandi Lal decided on 19.03.2017 and the judgment rendered by the Consumer Disputes Redressal Commission, Union Territory, Chandigarh in case UHBVN Vs. Jai Singh Garg decided on 22.11.2018 are relied upon. Since the case of the complainant in grant of electricity connection is governed by the sales circular applicable at the time of issuance of demand notice as such forfeiting the security of the complainant on the basis of subsequent sales circular is illegal.

14.              In view of the legal and factual position as discussed above, we allow the present complaint and direct the OPs to release the electricity connection as per instruction/scheme applicable at the time of submitting the application and further to pay litigation expenses of Rs.5000/- to the complainant. This order should be complied within 45 days from the receipt of the same.  Copy of this order be supplied to the parties free of costs. File be consigned to record room after due compliance.

Announced in open Forum.                                                   Dated:12.02.2018

                                                                   (Raghbir Singh)                                                                                   President                                 (Ansuya Bisnoi)        (R.S.Panghal)                 Distt. Consumer Dispute

Member            Member             Redressal Forum, Fatehabad.