IN THE MATTER OF

1. Irfan Rahim S/o Ashiq Ali, Society Shakira Homes Apartment Jamalpur Aligarh
2. Mohd. Rafiq S/o Allah Mehar R/o Society Shakira Homes Apartment Jamalpur Aligarh

(Through: Advocate Mohd.Hassan)

                                                         V/s

Executive Engineer, Electricity Urban Distribution Division IV Lal Diggi, Aligarh 

(Through: Advocate Rekha Verma)

CORAM

 Present:

1. Shri Hasnain Qureshi, President
2. Shri Alok Upadhayay, Member
3. Smt. Purnima Singh Rajpoot, Member

PERONOUNCED by Shri Hasnain Qureshi, President

JUDGMENT

1. The present complaint has been filed by the complainant before this commission alleging that he is the consumer of the Op through electricity connection and  prayed for  the following reliefs-
2. (a)Op be directed not to realize any amount as assessment or compounding fee from the complainant on the basis of alleged inspection dated 25.1.2021.

(b) The Op be directed to pay the amount Rs. 50227/ paid by the complainant no.1 against the alleged assessment dated 10.8.2021 with interest at the rate 9% per annum from 31.3.2021 till the date of actual payment or adjustment in the electricity bill.

(c) The Op be directed to pay Rs.50000/ to realize complainant for harassment and Rs.10000/ for litigation expenses.

3. The Complainants have stated that they reside at Shakira Home Apartment Jamalpur, Aligarh where the electricity is supplied by the connection no. 4163742926 of the category LMV1 for domestic use in the name of complaint no. 1. Complainant no. 2 is in occupation of the shop constructed at the apartment as a tenant on behalf of ESSBEE Construction as per agreement dated 10.11.2020. On 25.1.2020 the premises of society homes apartment was inspected by the officers of the OP and observed that LMV-1 connection was being used as LMV-2 and found use of fridge 450watts and 2 bulbs 18 watts total 468 watts. Complainant no.2 being the authorized occupant of the shop was legally entitled to use the electricity connection LMV-1 which was in the name of complainant 1. Complainant no.2 had to run the shop to provide daily needs to the residents of the apartment. On 9.2.2021 provisional assessment was raised against complaint no.1 at Rs. 188495/ with compound fee Rs.80000/. Against the provisional assessment complainant no.1 submitted representation stating that the shop was being run to provide daily needs to the residents of the apartment without earning profit as there was no population nearby the apartment. It was supported by the affidavits of Furqan Ali and Mohd. Hasan. Complainant no.2 was a tenant and connection was granted in the name of complainant no.1 and the provisional assessment was also raised against complainant no.1. Complainant no.1 again submitted representation dated 16.6.2021 and complainant no.2 also moved application dated 2.7.2021 to the chief engineer to reduce the amount of assessment and final assessment was raised at Rs.50227/ on 10.8.2021 which was paid by the complainant no.1 and compounding fee Rs.80000/   was held due by letter dated 13.5.2022. Complainant no.2 moved the application to the OP to permit him to deposit 1% of Rs.50227/ for filing appeal before the commissioner, Aligarh. Complainant no.2 was not permitted to deposit 1% fee for filing the appeal on the ground that the checking report is in the name of complainant no.1. As the assessment was made for use of electricity by the complainant no.2, therefore there was no legal hurdle to deposit 1% fee by complainant no.2 for filing appeal and OP acted intentionally and knowingly to deprive the complainantno.2 from exercising his right of appeal whereby he suffered  loss and mental pains. Complainant no.2 moved application to the Hon’ble  Minister UP Government who directed to the MD. DVVN, Agra for immediate action and OP revised the assessment at Rs.6386/ instead of Rs.50227/ with the compounding fee Rs.80000/.The electricity was being supplied at the shop through LMV-1 connection situated at the apartment to provide the basic needs to the residents of the apartment and there is a provision in UP Apartment (promotion of construction, ownership and maintenance) Act,2010 for common areas and facilities  U/s 3(i) meaning thereby parts of the property necessary or convenient to its existence and safety or normally in common use . It means the shop made in group housing is facility and necessary for existence of group housing which is known as convenient shop and not the commercial shop. Aligarh Development Authority Building by laws 2008 contains clause 2.4.5 which provides the necessity of one convenient shop for 400 persons. The shop was being supplied electricity through LMV-1 connection for the convenient shop and not for the commercial shop. The assessment made by the OP treating the usage of electricity as a consumer of LMV-2 is against law and the complainant is not liable to make the payment of any assessment and there is no liability of  payment of any compounding fee U/s 152 Electricity Act,2003.
4.  Op has filed WS in which it was stated that the complainants were found using electricity connection LMV-1 as LMV-2 and the assessment was revised as per order of the chief engineer. The compounding fee Rs.80000/ was levied under the rules.
5. Complainants have filed his affidavit and papers  in support of his pleadings.  Op has also filed his affidavit and papers  in support of his pleadings
6. We have perused the material available on record and heard the parties counsel.
7. The first question of consideration before us is whether the complainants are entitled to any relief?
8.  Complainant no.1 was supplied with electricity for domestic use through electricity connection LMV-1 and the complainant no.2 was in occupation of the shop for providing daily needs to the residents of the apartments. Complainant no.2 is the beneficiary of the complainant no.1 and the usage of electricity by him is for the convenience of the residents of the apartment and was not meant for general public at large for earning profits as a commercial shop. The UP Apartment (promotion of construction, ownership and maintenance) Act, 2010 provides the facility of convenient shop to the residents of the apartment and the convenient shop has been made necessary under the Aligarh Development Authority Building by laws 2008 and its clause 2.4.5 provides the necessity of one convenient shop for 400 persons. Thus the assessment made by OP assuming the usage of electricity through electricity connection LMV-1 as LMV-2 is against the provisions of law. Moreover firstly the assessment was made at Rs. 188495/ and thereafter it was reduced to Rs.50227/ which was paid by the complainant no.1 but the complainant no.2 was not permitted to deposit 1% fee of the amount Rs.50227/ for filing appeal against the assessment before the commissioner and was deprived from exercising legal right to challenge the assessment and the assessment is illegal and against the law. Lastly the assessment was reduced to Rs. 6386/ by the intervention of the Hon’ble Minister but the liability of payment of compounding fee Rs.80000/ was not waived. As the assessment was not right and it was illegal and unwarranted and therefore the amount of Rs.50227/ is liable to be repaid to the complainant or to be adjusted in the electricity bills and the OP is not entitled to realize the compounding fee Rs.80000/. 
9.   The question formulated above is decided in favour of the complainant .
10.  Keeping in view the we hereby direct the op that the amount of Rs.50227/paid by the complainant no.1 be refunded or  adjusted in the forthcoming electricity bills. Ops are also directed not to realize Rs.80000/ as compounding fee from the complainants. Op shall pay to the complainants Rs.20000/ as compensation for harassment and Rs.10000/as litigation expenses.
11. Op shall comply with the direction within a month failing which OPs shall be prosecuted for non-compliance in accordance with section 72 of the Act for awarding punishment against him.
12. A copy of this judgment be provided to all the parties as per rule as mandated by Consumer Protection Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties. A copy of  judgment be sent to Chief Engineer  for necessary action.
13. File be consigned to record room along with a copy of this judgment.