Complaint Case No. 125/2023

Akram Khan  S/o Late Safdar Ali Khan, intellectually disabled,through Natural Guardian mother Mrs. Shahnaz Begum w/o Late Safdar Ali khan R/o Gali No.7 Sarai Rahman, Aligarh

V/s

EXECUTIVE ENGINEER Electricity Distribution Division-I   33/11 KV Electricity Sub Station Sasni Gate, Agra Road,  Aligarh .

CORAM

 Present:

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

PRONOUNCED by Shri Hasnain Qureshi, President

JUDGMENT

1. The present complaint has been filed by the complainant before this commission for  the following reliefs-

1.       The Op be directed to cancel the assessment amount Rs.25892 and to adjust the said amount in forthcoming electricity bills.  
2. The Op be directed to pay litigation expenses Rs.10000.

2. Complainant has stated that he is a deaf and hard of hearing and is known deaf and dumb having intellectual disability. He cannot speak and hear and makes conversations with signs. He does not understand the things Mrs. Shahnaz Begum is his mother and is his natural guardian who is competent to file the complaint to protect his interest.
3. That the electricity connection Id no.5364720000 was sanctioned for domestic use with the load 2KW at the rented room in the name of Late Safdar Ali Khan and the connection still stands in his name. The electricity is supplied to the said connection at the rented room and the complainant is the consumer as being beneficiary. Complainant has further stated that it is alleged that on 21.1.2023 inspection team of the OP inspected the premises and found that electricity theft was being committed through cut in the cable coming from the pole to the meter. No person of the complainant’s family was informed at any reasonable time on 21.1.2023 for the purpose of inspection of the premises as required in clause 4.30 UP Electricity Supply Code, 2005 (hereinafter code 2005). No person of the complainant’s family remain presented at the time of alleged inspection and nothing was seized. No seizure report was prepared and delivered to any person of the family and was not signed as required in clause 6.8(iii) of the code,2005. No report was prepaid at the time of inspection with the details of seals and working of the meter and no irregularity was recorded as per format annexure 6.4 as required in clause 6.8(a) (iv) of the code, 2005. The provisions of clause 6.8(a) (v) of the code 2005were not followed in the process of the alleged inspection. The checking report was not signed by any family member or representative and no report was handed over to the complainant under receipt. The report was not pasted at the conspicuous place of the premises in case of refusal to accept the report by the complainant or his family members and no report was sent to them under registered post / speed post on the day or the next day of inspection. No photography or videography of the alleged inspection carried out and no photograph taken pasting the inspection report at conspicuous place of the premises in compliance of the provision of clause 6.8(a) (v) of the code, 2005. Complainant has also further stated that no inspection was made on 21.2.2023 at any time and the alleged checking report is false, fabricated and illegal and cannot be acted upon for raising assessment for electricity theft.
4. Complainant has further challenged the assessment Rs 25892 on the basis of said checking report   as the OP had issued provisional assessment dated 3.3.2023 on 17.3.2023 whereas the date of hearing against the provisional assessment was 16.3.2023 and the complainant was deprived  from an opportunity of hearing against the   provisional assessment Rs 25892 and thus it is vitiated   in law. However, complainant send objections dated 18.3.2023 against the provisional assessment denying facts of checking of the premises and refuting the allegations of electricity theft. He requested to revise the assessment which was paid under compulsion of hardships of disconnection the electricity connection. Complainant had sought to exclude the load of washing machine in calculating tariff which was made final on 9.5.2023. It was stated by the complainant that the alleged assessment is based on false, fabricated and illegal checking report having no legal sanctity and without jurisdiction. The assessing officer had no jurisdiction to raise assessment on the basis of such a checking report and the alleged assessment is illegal, void and is not legally recoverable. It is further stated by the complainant that the special court constituted u/s 153 Electricity Act, 2003 is vested with the jurisdiction u/s 154(5) of the Act,2003 to determine the civil liability against a person in terms of money for theft of energy and the alleged assessment is subject to final decision of the special court. Accordingly complainant stated for exoneration from payment of the alleged assessment amount. The special court would have jurisdiction to finally determine the liability against the complainant in case electricity theft is proved                           
5. Op submitted in WS that the electricity connection no 5364720000 was sanctioned in the name Safdar Ali Khan and the inspection was made on 21.2.2023 with the consent of the family member who were  informed at  the time of inspection. The family members of the complainant were present and calculation was made in their presence who had refused to sign the papers. The piece of cable was seized at the spot. Checking report was prepared as per rules and provisional assessment bill was send following the rules. The videography and photography were also performed as per rules. The payment of the assessment amount by the complainant is the proof of admission of committing theft. Complainant was given opportunity of hearing and representation made later on by the complainant was taken into consideration. The report of SDO was sought which shows that the meter was displaying load of 0.12KW before checking and 1.87KW after checking. It proves the theft of electricity. Complainant requested to pay the assessment amount after excluding the the load of washing machine which was not permissible under the rules. Op has further stated that the complainant is not consumer under section  2.15 of the Electricity Act,2003  , clause 2.2(p) of the code,2005 and section 2(7) of the C P Act,2019. It was also stated that in the absence of mutation under clause 4.44 of the code, 2005 electricity was illegally be consumed and op is empowered to the disconnect the connection. Complainant is not entitled to get the undue benefit to file the case in the court other than the special court and the case is liable to be dismissed.         
6. Complainant has filed his affidavit and papers in support of his pleadings. Op filed WS without annexures mentioned in the WS and  it was endorsed on WS on behalf of the complainant.
7. We have perused the material available on record and heard the parties.
8. First question for consideration is whether the alleged checking/inspection  of the premises of the complainant was made in accordance with the due process of law? If not so, its effect.
9. Complainant has stated that the provisions of clause 4.30, 6.8(iii), 6.8(a) (iv) read with format annexure 6.4, 6.8(a) (v) of the UP Electricity Supply Code,2005 were not followed while making the alleged inspection of the premises of the complainant by the inspection team of the Op. Complainant has supported the pleadings made in complaint supported by the affidavit  in regard to non-compliance of aforesaid provisions of law. Op has refuted the allegations made by the complainant but there is no evidence of any member of the inspection team regarding compliance of aforesaid provisions of law. Op has stated that cable was seized at the time of inspection and the checking was made as per rules and everything was stated in checking report. Op has stated in WS that photocopy of checking report is annexed with WS but no seizure report of the cable and photocopy of checking report are annexed with the WS. It has also been endorsed on the WS on behalf of complainant that no annexure attached with WS. Thus the Op has totally failed to disprove the allegations made by the complainant and it is held that the alleged inspection/ checking of the premises of the complainant was not made as per provisions of law. Thus the alleged checking report has no legal sanctity and is of no value in the eye of law. As the checking report is illegal and against the provisions of law and therefore cannot be legally acted upon to take legal action against the complainant.
10. Question formulated above is decided in favor of complainant against the Op.
11.   Second question for consideration is whether the alleged assessment based on alleged checking report is valid? If not so, its effect  
12.  Complainant has stated that the OP was not given opportunity of hearing against the provisional assessment as required under clause 6.8(b) (i) of the code, 2005 as the provisional assessment was received on 17.3.2023 whereas the date of hearing against the provisional assessment was given 16.3.2023 Complainant has filed post office tracking report annexure 2 to show that the provisional assessment letter dated 3.3.2023 was received on 17.3.2023. complainant has also filed provisional assessment letter dated 3.3.2023 annexure 1 which contains the date 16.3.2023 for filing objection against the provisional assessment and time for personal hearing was given 2 to 4 PM on 16.3.2023. Thus the complainant was deprived from giving personal hearing against the provisional assessment. So far as the question of making representation on 18.3.2023 by the complainant against the provisional assessment is concerned, It cannot fulfill the lacuna for providing opportunity of personal hearing as there was  personal hearing as required under the law. Moreover, the request made by complainant to exclude the load of washing machine was not taken into consideration. Complainant has stated that there was no washing machine in the house for use and it was stated on oath which was not rebutted by the OP on oath. Thus it is clear that the question of including the load of washing machine in the assessment cannot be legally accepted. The alleged provisional assessment is itself bad in law and is based on checking report which is also against the provisions of law and is not legally tenable to take legal action against the complainant. The plea of the OP that making payment of the alleged amount binds the complainant, is not tenable as the complainant has stated that the payment was made under compulsion to avoid hardships of disconnecting the connection of the electricity which is necessity of life. Moreover the assessment made by the op is not legally final and is subject to final determination of the liability by the special court in terms of money for energy theft and is subject to the decision of special court in view of clause 8.1 of the code 2005 and section 154(5) of the electricity Act, 2003 on conviction for electricity theft. Under the circumstance of the case, at this stage payment of the alleged assessment amount may be deferred as its payment depends on holding conviction by the special court. Thus it is held that the amount of alleged assessment is not legally recoverable at this stage and is liable to be adjusted in forthcoming electricity bills after decision made by the special court.
13.    Question formulated above is decided in favor of complainant against the Op.
14.   Third   question for consideration is whether the complainant is competent to file the complaint.    
15.  It is admitted that the connection was sanctioned to Late Safdar ali Khan. Complainant Akram is the son of Late Safdar Ali Khan and his natural guardian Mrs. Shahnaz Begam is his mother. Complainant is disabled person. His mother  is widow of Late Safdar Ali Khan. It is not disputed that the electricity charges are paid by the complainant. Thus the complainant is beneficiary and has been making payment of the consideration for the services rendered by the OP. Thus the complainant is consumer within the definition of consumer u/s 2(7) (ii) of the CP Act, 2019 and within the definition of consumer given under UP Electricity Supply code, 2005 and Electricity Act,2003. Complaint is legally maintainable and there is no legal impediment in filing complainant  for want of mutation under clause 4.4 of the code 2005.
16.     Question formulated above is decided in favor of complainant against the Op.
17. We hereby direct the Op that the amount of alleged assessment is not legally recoverable at this stage and is liable to be adjusted in forthcoming electricity bills after decision made by the special court. Op is also directed to pay the complainant Rs. 10000 as litigation expenses.
18. Ops shall comply with the direction failing which Ops shall be prosecuted for non-compliance in accordance with section 72 of the Act for awarding punishment against him.
19. 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.
20. File be consigned to record room along with a copy of this judgment.