SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)

            The complainant has filed this complaint petition, U/s-35 of C.P.A.-2019, (here-in- after called as the “Act”) alleging deficiency-in-service by the Ops.

2.         The case of the complainant, in short, is that the complainant with a view to set up a fish netting ball establishment at Bahabalpur to maintain his livelihood by means of self-employment applied before OP No.1 for permission to supply 12 KW load power supply in his premises. The OP No.1 vide his letter No.4564 dated 6.9.2013 granted his application on construction of 25 KVA 11/04 KV Sub-station. On execution of an agreement between OP No.1 and the complainant, the Ops connected the power supply to his establishment on 24.9.2013 and since then the complainant used to pay the electric charges to the Ops regularly. It is further stated that the Ops, all on a sudden, sent electric bill showing demand of Rs.62,902/- in debit/arrear column. On query, the Ops have not able to supply satisfactory reply, rather, they are compelling for early payment of the amount in unfair way with a threatening to disconnect the power supply to his premises. The aforesaid unscrupulous demanding of the Ops is not only illegal, unjust and improper but also attributes a deficiency in service.

            The cause of action for filing of this case arose on 31.10.2021 and 25.11.2021, when the Ops finally refused to correct the disputed bill amount. Therefore, the complainant was constrained to file the present case. Hence, this case.

            To substantiate his case, the complainant relied upon the following documents, which are placed in the record-

1. Photocopy of letter No.4564 dated 6.9.2013.
2. Photocopy of letter No.6020 dated 24.9.2013.
3. Photocopy of Bill dated 31.5.21 and its payment receipt.
4. Photocopy of Bill dated 26.6.21 and its payment receipt.
5. Photocopy of Bill dated 30.7.21 and its payment receipt.
6. Photocopy of Bill dated 30.8.21 and its payment receipt.
7. Photocopy of Bill dated 30.9.21 and its payment receipt.
8. Photocopy of Bill dated 16.10.21 and its payment receipt.
9. Photocopy of payment receipts dated 23.12.21, 27.1.22, 26.2.22, 25.3.22.
10. Photocopy of disconnection notice dated 11.3.2022.
11. Photocopy of Bill dated 11.3.2022.
12. Photocopy of Payment receipt for the month of March-April, 2024.
13. Photocopy of Bill for the month of February-March, 2024.
14. Photocopy of Bill for the month of March-April, 2024.
15. Photocopy of disconnection notice dated 9.3.24 & 12.4.2024.   

3.         The Ops have made their appearance and filed a joint written version challenging the maintainability of the case and cause of action for filing the case. They have stated, inter alia, that on 24.7.2021, the verification squad of NESCO visited to the premises of the complainant and it was found that the complainant availing power supply unauthorizedly by hooking process from a nearest pole for running of a half HP motor and one heater of 1 KW in his establishment. After verification the representatives of the complainant was requested to sign on the verification report, but they refused to sign and received the report. The Assessing Officer served the provisional assessment order on 24.7.2021 for Rs.62,902/- for theft of energy unauthorizedly. As the complainant did not file any objection nor take part in the hearing on 21.8.2021 for which final assessment order was passed on the same date on the said amount which was served on the complainant for payment. The complainant has also not approached the Appellate Authority, if at all, he was aggrieved with the final assessment order. Further, this Commission is not competent to sit over the matter. Hence, it is prayed by the Ops to dismiss the case with cost.

            In order to substantiate their case, the Ops have relied upon the following documents which are placed in the case record –

1. Photocopy of spot verification report dated 24.7.2021.
2. Photocopy of provisional assessment order No.3143 dated 31.7.2021.
3. Photocopy of final assessment order No.3373 dated 21.8.2021.

4.         In view of the above averments of parties, the points for determination in this case are as follows:-

(i)         Whether the complainant is a consumer or not?

(ii)         Whether the complainant has cause of action to file this case?

(iii)        Whether this consumer case is maintainable?

(iv)        Whether there is any deficiency in service on the part of the OPs?

(v)        Whether the complainant is entitled to get the relief, as sought for?

(vi)        To what other relief(s), the Complainant is entitled to? 

F  I  N  D  I  N  G  S

5.         In the above peculiar facts and circumstances of the pleadings of both the parties, before delve into the merits of the case, first of all, it is to be decided as to whether the case is maintainable or not. From the pleading so also documents produced on behalf of the Ops, it is found they have claimed that this is a case U/s 126 of I.E Act, hence, this Commission has no jurisdiction to hear the case. On the other hand, the complainant has challenged the illegal demand of Rs.62,902/-.

6.         Let us discuss, how far the Ops have substantiated their case with reference to the documents produced on their behalf. It is the claim of the Ops that their verification squad made a spot visit to the premises of the complainant on 24.7.2021 as per provisions of Section 126 of the Electricity Act, 2003. In support of it, they have placed Annexure-A which also shows that the spot verification was made by one S.S. Ray (E.E., CED, Bls) and K.K. Jena (J.M., Rupsa) and report was prepared on the same day. It is further claimed by the Ops that after verification, the representatives of the consumer were requested to sign on the verification report, but they refused to sign and receive the SVR without giving any acknowledgement. On a bare reading of Annexure-A, it is found that the name of the representatives or the consumer was not mentioned in the column provided for the purpose. Thus, it can safely be held that either the spot verification report was not prepared at the spot on the alleged date of verification or in absence of the consumer or his representatives spot verification was made.  

6(i).       Besides the above, the Ops have emphatically claimed that on the alleged date of verification of the premises of the complainant, it was found that the consumer/complainant was availing power supply unauthorizedly by hooking from the nearest pole through an extra single phase service connection wire for funning a half HP motor and one heater of 1 KW at his three phase unit. This fact is also found mentioned in the Annexure-A, the spot verification report. Thus, it is presumed that the complainant was unauthorizedly used the electricity intentionally which admittedly comes under the fold of Section 135 of the Electricity Act. In this regard, C.159 of OERC (Conditions of Supply) Code, 2019 empowers the Assessing Officer while on inspection of the premise may video graph and/ or take photograph of the method of such unauthorized use or take dump report for the purpose of evidence. But in the present case, no such document is placed before this Commission. That apart, Section 135(2)(b) of the Electricity Act, 2003 empowers any officer of the licensee or supplier to search, seize and remove all such devices, instruments, wires and any other facilitator or article which was being used for unauthorized use of electricity. Here, in this case, even though the Ops have claimed that the complainant was availing power supply unauthorizedly by hooking from the nearest pole through an extra single phase service connection wire for running a half HP motor and one heater of 1 KW at his three phase unit, but not a single document was produced to show that the Officer of the licensee or supplier has seized the hooking material or the alleged motor and heater. Further, Section 135(1A) of the Electricity Act, 2003 provides that without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity. In this context, the Ops have not stated a single word not provided any documents to show that they have disconnected the power supply to the premises of the complainant upon detection of such theft of electricity. In the said Section, it has been provided further that such officer of the licensee or supplier shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hour from the time of such disconnection. In this regard, the Ops are silent and not stated a single word in their written version.  

6(ii).      It is specifically stated by the Ops that as per provision U/s 126 of I.E. Act, the Assessing Officer served the provisional assessment order on 24.7.2021 for Rs.62,902/- for theft of energy/unauthorized use of electricity vide Annexure-B. On a bare reading of Annexure-B, it is found that it has been issued by the Assessing Officer who is none but the Executive Engineer (Elect), CED, Balasore in favour of the complainant. In the said letter, it has been mentioned that “on an inspection of the afore mentioned premises of your unauthorized connection of 1.5 KW under Section 126 (10 of the Electricity Act-2003, unauthorized use of electricity was detected on 24.07.2021”. In the said letter although the Assessing Officer put his initial in the place provided, but failed to mention the date of signature. That apart, the said letter of provisional assessment order bearing No.3143 was despatched from the office of the Assessing Officer on 31.7.2021 and the manner of its despatch i.e. either by registered post, ordinary post, speed post or the same was served on the complainant by special messenger of their office was not mentioned. Further, no such acknowledgement was produced to show that the aforesaid letter vide Annexure-B was duly served upon the complainant. Therefore, the claim of the Ops that the provisional assessment order dated 24.7.2021 was served on the complainant on 24.7.2021 is found to be doubtful.  

6(iii)      It is the further stand of the Ops that as the consumer did not file any objection or attended the hearing fixed to 21.8.2021 (first it was mentioned on 1.8.2021 and subsequently it as over writing as 21.8.2021), the Assessing Officer passed final order taking into consideration the available documents on record on 21.8.2021 (first it was mentioned on 1.8.2021 and subsequently it as over written as 21.8.2021) amounting to Rs.62,902/- and served the order to him for payment vide Annexure-C. On perusal of Annexure-B, the letter of provisional assessment order issued in favour of the complainant, it is found it has been clearly mentioned in the said letter that “You are entitled to file objections against the afore mentioned provisional assessment order within seven days from the date of issue of receipt thereof and further entitled to appear before the undersigned for an opportunity of being heard on 07.08.2021 during working hours from 10.00 AM to 5.30 PM”.  In their written version, the Ops have stated that hearing was fixed to 21.8.2021, but Annexure-B speaks itself that the date of hearing was fixed to 7.8.2021. Thus, the Ops have contradicted their own version with regard to the date of hearing. On perusal of Annexure-C, the letter of final assessment order bearing No.3373 dated 21.8.2021, it is found that the same has been issued through the L.E. (Electrical), Rupsa with a copy to SDO (Elect) RE-I and JE (Elect), Rupsa with a direction to disconnect power supply if failed to pay within stipulated time. Whether the said letter vide Annexure-C was served on the complainant or not, no acknowledgement was produced by the Ops in that regard.

6(iv).     Learned counsel for the complainant has submitted that in the present case, the Ops have filed their written version and a copy of such written version was also served on the complainant from which it appears that on 24.3.2021 the verification squad of NESCO made a spot visit to the premises of the complainant, but subsequently the representative of the Ops or their learned counsel overwriting the date of spot visit in the written version so also the date of hearing. Learned counsel for the complainant showed the copy of the written version at the time of hearing and found the stand taken by the complainant are true. On being asked, learned counsel for the Ops remained silent. Also on perusal of the written version, it is found that the Ops have overwritten the date of spot verification from 24.03.2021 to 24.07.2021 so also the date of hearing from 01.08.2021 to 21.08.2021 in two places. That apart, learned counsel for the Ops have submitted that the seized materials are with the Ops, but no such document is placed before this Commission to believe that there has been a spot verification made by the Ops U/s 126 of Electricity Act.    

7.         From the discussions made above, it is held that no spot verification was made in the premises of the complainant nor has any assessment order been passed on 24.7.2021 and thus, the spot verification report vide Annexure-A, Provisional assessment order vide Annexure-B and Final assessment order vide Annexure-C are only paper transactions and manufactured for the purpose of this case. Further, all these documents are prepared beyond the knowledge of the complainant. That apart, the Ops have not followed the procedural law at the time of spot verification, preparation of assessment order and its communication on the consumer so also the follow up action. Had the assessment order been communicated on the complainant, he must have filed objection and contested the case before the appropriate authority. When the Ops have claimed that the assessment order has been served on the complainant and on the date of hearing the complainant remained absent, but in the provisional assessment order the date of hearing was mentioned otherwise. Therefore, on the basis of bald statement that this case comes under the purview of Section 126 of I.E. Act and not supported with any documentary evidence so also taking into account the contradictory statement of the Ops, this Commission is of the view that this is not a case U/s 126 of I.E. Act nor the case hits under the provisions of Section 126 of I.E. Act.

            Furthermore, this type of cases are rampant in the society now-a-days. The people in general are facing a lot of inconvenience for such use of double edged weapon by the Electrical Authorities for which the innocent people are not getting proper remedy.  It is the settled position of law that Consumer Commission lacks jurisdiction to entertain consumer complaint arising out of the proceeding involving unauthorized use of electricity under the Electricity Act, 2003, but taking into consideration the peculiar facts and circumstances of the present case and the manner of act adopted by the spot verification squad without following the procedural law, this Commissions is of the considered opinion that the case of the complainant is maintainable. Consequently, the complainant is treated as a consumer and he has cause of action to file the case.   

8.         On the other hand, it is seen from Annexure-3 to Annexure-9 & Annexure-12 that the complainant has paid the electricity dues for the month of May, 2021 to March, 2024. That means the complainant has regularly paid the electricity dues to the Ops and the Ops have not yet disconnected the power supply to the premises of the complainant. Further, Annexure-6, the Bill dated 16.10.2021 for the month of September, 2021 shows that assessment amount of Rs.62,902/- was demanded excluding the current bill amount. The Spot verification was made in the month of July, 2021 and assessment amount of Rs.62,902/- was demanded by the Ops in the Bill for the month of September, 2021, that too it was served on the complainant in the month of October, 2021. When it has already been held that no spot verification to the premises of the complainant was made by the Ops and whatever the documents are prepared by the Ops are all paper transaction and manufactured for the purpose of this case, the demand of Rs.62,902/- on the complainant is held to be illegal. But, considering the fact regarding rectification of bills, the Commission relies on the judgment of Hon’ble High Court of Orissa in W.P.(C) No.1704 of 2020,  where it was held that the the Grievance Redressal Forum as per Section 42(5) of the Electricity Act, 2003 is the appropriate authority to approach for the disputes related to meter and billing. So, the complainant is directed to approach the GRF afresh as per Section 42(5) of the Electricity Act, 2003 for consideration and in the event of presentation of any such application, learned GRF shall dispose of the matter in accordance with law on being heard from the complainant. 

9.            With the aforesaid observations, the case is disposed of on contest. No order as to costs.

               Pronounced in the open court of this Commission, this the 24^th day of June, 2024 under my signature & seal of the Commission.