Orissa

Jajapur

CC/83/2019

Dr.Surendranath Mishra. - Complainant(s)

Versus

Executive Engineer(NESCO Utility),Jajpur Electrical Division. - Opp.Party(s)

Ramakanta Ghadai

13 Dec 2021

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JAJPUR.

                                                        Present:    1.Sri Pitabas Mohanty, Member,

                                                                          2.Miss Smita Ray,  Member (w).                       

                                                      Dated the 13th day of December ,2021.

                                                      C.C.Case No.83 of 2019

Dr.Surendranath Mishra  S/O Late Baidyanath Mishra   

At. Narasinghpur , P.O.Kodandanadpur

 Dist.-Jajpur.                                                                                           …… ……....Complainant .                                                                       

                   (Versus)

1. Executive Engineer,NESCO Utility Jajpur Electrical Division    

At/P.O./,Dt.Jajpur

2. S.D.O, Electrical  NESCO Utility ,Jajpur Electrical Sub-Division,

At. Kalimegha /Dt.Jajpur.

3. Junior  Engineer, ( NESCO Utility ) Jajpur Electrical Sub-Division ,

At/ Kalimegha P.O./ Dt. Jajpur.

                                                                                                               ……………..Opp.Parties.                                                                                                                                            For the Complainant:                      Sri  R.K.Ghadei, Sri R. N.Dhal  Advocates.

For the Opp.Parties:                       Sri G.C.Panda, Miss B.Rout,  Advocates.

                                                                                                     

                                                                                                    Date of order:  13.12.2021

MISS  SMITA  RAY, MEMBER (w) .                                                  

The petitioner has filed the present dispute against Jajpur Electrical division alleging deficiency in service as well as unfair trade practice.

            The facts shortly as per complaint petition are that the petitioner being an inhabitant of Narsinghpur in the Dist of Jajpur has a land  in Mouza- Narsinghpur wherein there are 2 residences out of which one stands in the name of the father of the petitioner namely Baidyanath Mishra bearing holding No.126 and the other resident stands in the name of the petitioner bearing holding No.319. The resident bearing holding No.126  though has been electrified    but the resident bearing holding No.319 which stands in the name of the petitioner has not been electrified for which the petitioner applied for new electricity connection to holding to 319. As against such submission of application for new electricity connection the O.Ps served a disconnection notice on 25.02.2019 where in the O.P.no.1 arbitrarily has claimed Rs.33050/- as arrear of electricity dues of holding No.126 JTT2667. As against such arbitrary demand the petitioner has deposited Rs.35870/- in the OTS vide receipt NO.882/ dt.22.2.12 and receipt No.824793 dt.15.02.12 and though cleared all the dues but the O.Ps without clearing the arrear in OTs  subsequently in February-2012 indicated Rs.711625 which is illegal. Subsequently at the end of October,2019 the O.ps assessing the electricity dues on load factor indicated the arrear as Rs.79054/- though the petitioner has paid Rs.12584/- during the above period. Further the O.ps have fixed contact demand 4.5 k.w having no meter which also comes within the preview of unfair trade practice. In this context it is submitted that though the petitioner has made several written request  to install a meter but the O.Ps without installing the meter has collected Rs.2500/- per month from August,2010 to February,2013. Further it is stated by the petitioner that though the O.ps installed a meter on 04.02,2013  as well as collecting electricity  dues as per meter reading but without reducing the load factor from 4.5 K.w at present demanding Rs.33050/- as arrear electricity dues so as to give a new connection in holding No.319 which is arbitrary on the part of the O.ps. Similarly since the petitioner has settled the arrear electricity dues in OTS vide receipt No.824793 dt.18.02.12 and receipt No.818821 dt.22.02.12 paying Rs.18020/- and Rs.17850/- respectively and it is cristal clear that there was no arrear but after OTS settlement the O.ps have indicated Rs.7116.25 as arrear which is coming within the preview of deficiency in service as well as unfair trade practice. Accordingly the petitioner has filed the present dispute with the prayer to direct the O.ps to quash the arrear illegal electricity dues amounting to Rs.33050/- as well as the O.Ps may be directed to  provide new  electricity connection to holding no.319 and compensation of Rs.50,000/- may be awarded in favour of the petitioner.

            After appearance the O.Ps have filed the written version  denying the allegation of the petitioner as well as have taken the stand that the premises of the petitioner was verified by MRT squard on 19.09.11. On verification  it is found that the meter installed in the premises of the petitioner has been tampered. Although contact demand was 1 K.W but the petitioner  is consuming electricity to the extent of 4.5 k.w. The details of tampering was mentioned in the verification report. After checking the provisional assessment was made and a letter was issued to the petitioner  enclosing show cause notice, verification report  and provisional assessment order. There was no response from the side of the petitioner for which the provisional assessment was conformed by final assessment  and a letter dt.16.07.2013 was sent to the petitioner . The consumer did not pay the final assessment amount of Rs.42366/- for which the said amount was raised  in the petitioner / consumer’s A/C in July’13. This commission has no jurisdiction to decide the final assessment made by the assessing officer  since it is a case U/S 126 of electricity Act,2003 as per observation  of Hon’ble Supreme court. The OTS principles are not applicable to be settled under OTS scheme. It is true that the petitioner has paid 35870/- on 22/02/2012 and got rebate Rs.11335.87 / on OTS from his arrear bill amount. It is not included in final assessment which is made after OTS  made from the petitioner’s side. Similarly Rs.19231.51/- was withdrawn from the bill charged for the period meter reading was not available due to lack of meter. The outstanding amount of the petitioner’s ledger is Rs.2,7738.27 / paisa up to June,2019 since there is outstanding amount in the A/C of the petitioner he is not entitled  for fresh connection as per clause 17 of OERC Distribution  and condition of supply code 2019.

            In view of the contradicting views of both the parties we are inclined to decide the dispute as per our observation below:-

1. It is stated by O.P that on 19.9.2011  the installation of meter was checked by MRT squard  as well as observed that the meter has been tampered. In addition to it the consumer / petitioner is availing power to the extent of 4.5 k.w as against the contact demand 1 K.W. Accordingly after verification the provisional assessment was made and letter was sent to the consumer/ petitioner enclosing  the verification report, show cause notice  and provisional assessment order U/S 126 of Electricity Act,2003. It is stated by O.ps that this commission has no jurisdiction to decide the final assessment made by the Assessing officer U/S 126 of Electricity Act in view of the observation of Hon’ble Suprem court since after  receipt of the provisional assessment order the consumer/ petitioner did not file the show cause and the penalty of  provisional assessment converted to final assessment by the Assessing officer.

As against such stand from the side of the O.ps the petitioner/ consumer has filed an affidavit wherein it is stated that no such verification was conducted by the MRT Squard on 19.9.2011  as well as the petitioner has not received the provisional assessment order . In such situation to prove the  genuineness / correctness of the sport  verification on 19.09.2011 by MRT  squard was it not the duty of O.p to file counter affidavit in conducting the verification in presence of 2 respectable independent witness as well as taking their signature  in the verification report  in view of the observation of Hon’ble State Commission U.K reported in 2008(1) CLT-237( Para-8) U.K Punjab  Electricity Board Vrs Sarwansingh  and AIR-2006-Calcutta -59-para-8( Hazi mazumdar & Anr Vrs  The West Bengal State Electricity Board)

            Further it is stated by  the O.P that this commission has no jurisdiction to decide the present dispute  as per observation of Supreme court since it is a case U/S 126 of Electricity Act,2003. In this context we have  come across with the observation of Hon’ble Supreme court reported in 2013(3) CPR-670-SC-U.P Power corporation & Ors Vrs Anis Ahamad . The Hon’ble Supreme court in the above citation though opined that vide para-46 that the consumer Forum has no jurisdiction  to decide the dispute U/S 126 of Electricity Act but vide para-47 (III) the consumer forum is not debarred to entertain the dispute in case it relates to deficiency in service ,unfair trade practice or restrictive trade practice. More over the Hon’ble National Commission  also  has decided the case U/S 126 Electricity Act,2003 taking in to consideration of Hon’ble Supreme court reported above vide para-12 in revision No.67/10 decided on 01.06.2015 wherein vide para-13 the Hon’ble N.C has opined that this consumer forum gets jurisdiction to decide the dispute U/S 126 of Electricity Act,2003. Further the Hon’ble State Commission Odisha in the C.D.Case No.13/2003( P.Ramesh Reddy Vrs Southern Electrical Supply Company  & others) which has been decided on 13.07.2020 has come to the conclusion  that there is deficiency in service on the part of the O.Ps since the O.ps as per provision of clause -105 of code 1998 the preparation of penal bill and service of notice are not carried out for which the Hon’ble State Commission has come to the conclusion not to pursue  to the penal bill since the same is illegal and improper.

                        In addition to it the O.Ps have  taken the stand in the written version that on verification of the installation of meter it was found that the meter has been tampered .In such situation though it was the mandatory duty of O.Ps that the tampered meter is to be packed in card board  sealed and after sign of the consumer  shall be sent to Laboratory for testing  as per observation of Hon’ble State Commission Chandigarh reported in 2010(1) CPR-410-Chandigarh but in the present case the O.Ps have not followed such procedure.

                        Similarly coming to the arrear electricity dues  it has been stated by the O.Ps that new connection to the consumer / petitioner is not possible as per clause-17 of OERC Distribution and Condition   of supply code-2019  since there is an arrear of rs.27738/- against the consumer/ petitioner  up to June-2019 . In such situation we are in the opinion that the O.Ps will take into consideration the payment made by the consumer/ petitioner and the petitioner may be intimated to pay the balance arrear if any at an early date to provide new connection .

                                                           O R D E R

            The dispute is allowed against the O.Ps. The O.ps are directed  not to pursue  the penal bill of Rs.42,366/- since the same are not assessed as per law. Further the O.ps are directed to provide  new connection to the premises of the petitioner bearing holding No.319 after taking the arrear electricity dues if any which will be fixed after adjustment of payment made by the petitioner till today . No cost.                           

                    This order is pronounced in the open Commission on this the 13th day of  December,2021. under my hand and seal of the Commission .