Case No. 239/2023   

IN THE MATTER OF

Rukhsar age about 38 years W/o Mohammad Raj R/o Munim Ji wali Gali, infront of two tower , Kalawari, Mullapara, Bhujpura, Aligarh

                                                         V/s

Executive Engineer Electricity Urban 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 following reliefs:-

1. Op be directed to cancel the assessment amount Rs.572692.
2.  Op be directed to reconnect the electricity connection of the complainant ignoring the alleged amount Rs. 572692.
3. Op be directed to pay Rs 10000 for litigation expenses.

2. Complainant has stated that he was sanctioned electricity connection LMV6 of 4KW for small and medium power with connection Id no. 1459387178. It is alleged that on 5.8.2020 inspection team inspected the premises and found the electricity theft for charging the three wheeler through cable laying on nearby pole of the LT line. Complainant was not present at the alleged time of inspection and nothing was no seized. No seizure report was prepared and not delivered to the compliant. The report was not signed by her. No report was handed over to her under the receipt and no report was pasted at the conspicuous place of the premises. No report was sent to the complainant under the registered post on the same day or the next day of the alleged inspection. No photography or videography was performed. Complainant has alleged the violation of provisions of UP Electricity supply Code, 2005. Complainant has further stated that the assessment raised on 20.8.2020 on the basis of said checking report was not communicated to her by the date 02.09.2020 whereas op was required to serve it within 15 working days for submitting reply under receipt. Complainant was deprived from opportunity of hearing against the provisional assessment and the final assessment letter dated 15.9.2020 for Rs.572692 is vitiated in law. Complainant’father in law Sri Kamaruddin Khan made representation after the date 2.9.2020 denying the facts of checking of the premises and refuting the allegations of electricity theft. It was stated in the representation that there is distance of 22 meter between the premises and electricity pole whereas the inspection team alleged to have committed the electricity theft by using the 8 meter cable which falsifies the story of alleged checking of the premises. The alleged assessment based on false, fabricated and illegal checking report has no legal sanctity and is without jurisdiction. The alleged assessment based on the alleged inspection report is illegal and void and not legally recoverable. The F.I.R. was wrongly and illegally lodged. The alleged assessment is  subject to the decision of the special court U/s 154(5) of the electricity Act to determine the civil liability in terms of money for theft of energy. Complainant cannot be made liable to pay the alleged assessment amount as the special court would have final jurisdiction to determine the liability in case the theft is proved. The disconnection on basis of alleged assessment amount based on such a checking report is against the law and without jurisdiction. Complainant has also stated that he is not ceased to have jurisdiction of the status of consumer on the basis of alleged illegal checking report who has electricity connection LMV 6 at the premises. OP has committed deficiency in service by stopping the electricity supply by disconnecting the connection on the basis of alleged checking report.                 
3. Op stated in WS that the complainant was committing electricity theft by laying the cable at the pole of LT line beside the cable of his electricity connection at the premises. E-Ricksha was found charging by committing electricity theft. At the time of checking, complainant and her family members were present, who had refused to sign the checking report. The videography of the premises was performed and the seized things were deposited at the police Station at the time of lodging F.I.R. The checking report is as per rules and the assessment was raised in accordance with the rules. Against the complainant a case no. 31/2020 is pending in Special Court. Op is entitled to disconnect the connection under clause 6.15(a) of the Code, 2005 and Section 56 of the Electricity Act. A recovery certificate U/s 5 for recovery of Rs. 572692 has been issued and jurisdiction of the commission is barred  by section 145 of the Electricity Act, 2003.In view of clause 7.11 and para 6.8(a) (i) jurisdiction vests in Civil Court.               

4. Complainant has filed his affidavit and papers in support of his pleadings. Op has also filed affidavit and papers in support of their pleadings.
5. We have perused the material available on record and heard the complainant and op’s counsel.
6. The first question of consideration before us is whether the alleged checking report is legally valid? If not so, the assessment based on such checking report is not recoverable till the final decision to be made by the Special Court. 
7. Complainant has alleged the violation of the provisions of U.P. electricity Supply code, 2005 in conducting the alleged checking of the premises of the complainant. Complainant has deposed in affidavit the violation of clause 4.30, 4.34, 8.1(a), 8.1(a) (iv), 8.1(a) (vi) and 8.1(b) (iii) of the U.P. Electricity Supply code, 2005. Complainant has deposed that the inspection team dramatically raided the house of complainant before sun rise. Op has not rebutted it. Thus it is violation of provisions of clause 4.30 read with clause 4.34  of the Code, 2005. In case of electricity theft, Code, 2005 provides the procedure in 8.1(a) to be adopted for inspection, provisional assessment and final assessment. Clause 8.1 (a) (iv) of the Code, 2005 provides that a list of all thing seized in the course of search shall be prepared and delivered to the occupant of the house who shall sign the list. Complainant has deposed in her affidavit that she was  not present at the alleged time of inspection at 6.10 A.M. and nothing was seized.  She has also deposed that no seizure report was prepared and delivered to her and she had not signed the seizure  report. Complainant has specifically deposed that no cable was seized at the time of alleged inspection. There is no rebuttal of these allegations by the Op and it is proved that no seizure report was prepared and no cable was seized at the alleged time of inspection. Complainant has deposed a strange circumstance in this regard. She has deposed that it has been alleged that cable was taken away the complainant at the time of removing the cable from the pole whereas it has also been alleged in the checking report that 8 meter cable was taken into possession and cable was seized. There is no explanation of the OP in this regard. Thus these are the contradictory allegations which falsify the case stated by OP. As per provisions of clause 8.1(a) (v) of the Code, 2005 a diagram may be prepared illustrating  the arrangements found to have been made for theft of electricity and such diagram shall form a part of checking report. There is no such diagram with the checking report. It is provided in clause 8.1 (a) (vi) of the Code, 2005 that the checking report shall be handed over to the consumer or his representative at the site immediately under proper receipt and in case of refusal by the consumer or his representative to either accept or give a receipt, a copy of inspection report shall be pasted at a conspicuous place in / out side the premises and may be photographed. Simultaneously, the report shall be sent to the consumer under registered post/ speed post on the day or the next day of the inspection. Complainant has denied the compliance of these provisions of law in his affidavit. OP has not given proof of the compliance of the said provisions of law. It is inferred that there was no compliance of the said provisions of law from the side of the Op in conducting the alleged checking of the premises of the complainant.   
8. Complainant has further deposed that on one hand it is alleged that the 8 meter cable was seized by the inspection team and on the other hand it is alleged that the cable was pulled from pole by the complainant. OP has submitted the pen –drive of the videography performed by the inspection team at the time of alleged checking but the videography does not show pulling of the cable by the complainant or the placement of the cable from the pole to the house of the complainant. In videography the underground cable of the generator set placed in basement to the school is shown and the complainant has filed the map to show the spot situation which clearly depicts that the generator set was placed in the basement to supply  the electricity from generator set to the school and the electric pole is standing behind the complainant’s house and the distance from complainant’s house to the pole is about 22 meter. Thus the videography does not depict the theft of electricity by placing the cable from pole to house of the complainant. It depicts only underground cable going from generator set placed in basement to the school and it has nothing to do with the electricity theft.
9. Complainant has deposed that she was not communicated the provisional assessment dated 20.8.2020 to appear before the OP or to make representation by the date 2.9.2020 against the provisional assessment and she was deprived from the opportunity of hearing against the provisional assessment which was made final on 15.9.2020 at Rs. 572692. Complainant submitted the representation through her father in law after the date 2.9.2020 wherein he had denied the facts of checking of the premises and refuted the allegation of theft. It is also provided in the letter dated 21.8.2017 issued by the U.P. Corporation that the authorized officer shall raise the final assessment after giving the opportunity of the hearing to the assesse and it is also provided in clause 8.1 (b) (iii) of the Code, 2005 that the provisional assessment shall be served on the assesse giving 15 working days for submitting reply under proper receipt fixing the date and time for hearing. There is no such proof of providing opportunity of hearing to the complainant against provisional assessment dated 20.8.2022 before raising the final assessment dated 15.9.2022 at Rs.572692 and the final assessment is vitiated in law and is not recoverable in view of law laid down by Hon’ble High Court, Allahabad in the case Sonpal Singh Vs State of U.P. decided on 6.4.2016.
10. As the matter is also pending in special court and the special court shall be the final authority to determine the civil liability against the complainant under section 154(5) of the electricity Act, 2003 and the clause 8.2(x) (g) of the Code also stipulates that the final assessment done by the assessing officer in case of theft is subject to adjudication by the Court. Thus the assessment shall be finalized by the special court and the complainant shall be liable to pay the assessment amount only when she is convicted by the Special Court under section 135 of Electricity Act. In view of foregoing discussion on legal validity of the checking report on which the assessment is based, Complainant is not liable to pay the same until he is convicted by the Special Court under section 135 Electricity Act. In the facts and circumstances of the case complainant is not liable to pay the assessment amount till the decision is made by the Special Court and the realization of the assessment amount is deferred till the decision to be given by the Special Court. Complainant is entitled for obtaining the electricity connection and OP shall grant the electricity connection without payment of the alleged assessment amount.       
11. The question formulated above is decided in favor of the complainant                      
12. The second question of consideration before us is whether the complaint is time barred?  
13. Complainant has deposed that he could not file the complaint within the statutory period of limitation on account of out breaking of Covid- 19 pandemic and submitted for condonation of delay under section 69(2) of the Act in view of order passed by Hon’ble Supreme Court in Sumoto writ Petition (C) No. 3/2020. Accordingly, complaint is not barred by time. The question formulated above is decided in favor of the complainant.
14. The question formulated above is decided in favor of the complainant 
15. The Third question of consideration before us is whether the commission has jurisdiction?
16. In view of provisions of Section 100 of the Act, 2019 District Commission is vested with the jurisdiction to entertain the complaint beside the jurisdiction vested in other court and the simultaneous proceedings in District Commission and other court are also not prohibited in view of law laid down by Hon’ble Calcutta High Court in the case Land T Finance Limited V/s Anup Kumar Bera decided on 20.01.2014.   
17. The question formulated above is decided in favor of the complainant 
18. We hereby direct the Op to sanction the electricity connection at the premise of complainant of the category of LMV6 of 4KW and shall not demand the assessment amount Rs. 522692 while granting sanction of the connection. OP shall comply with the direction within 2 weeks after payment of requisite fee, on failure op shall be liable to pay penalty Rs. 100  for default of each day. Op shall pay Rs.10000 for litigation expenses.
19. Op shall comply with the directions within 15 days failing which Ops shall be prosecuted for non-compliance in accordance with section 72 of the Act for awarding punishment against him.
20. 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.
21. File be consigned to record room along with a copy of this judgment.