The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the J.E, Electrical, NESCO, Markona Sub-Division, Markona, O.P No.2 is the S.D.O, Electrical, NESCO, Markona and O.P No.3 is the Executive Engineer, Electrical, NESCO, Soro.
2. The case of the Complainant in brief is that the Complainant is the son and legal heir of Late Banamali Sahoo, who was a bonafide Consumer under the O.Ps bearing Consumer No.SM-56608. Since the Consumer has been died since 26.12.2009, the Complainant has filed this case as his son and legal heir. But, on 28.07.2014 in absence of the Complainant and his family members, the O.Ps illegally inspected and alleged that the Complainant cut the service wire before meter, thereby taking an extra line from that cut point for using extra load, thus imposing penalty of Rs.28,291/- (Rupees Twenty eight thousand two hundred ninety one) only upon the Complainant and disconnected power supply to the premises of the Complainant. It is to be noted that neither the Complainant has consumed extra energy illegally nor the O.Ps have ever inspected the premises of the Complainant. Thus, the Complainant approached the O.Ps on several occasions to consider the matter by revising the said illegal bill, but the O.Ps did not pay any heed to it, causing mental agony and financial loss to the Complainant. Cause of action arose on 28.07.2014 and 10.09.2014. The Complainant has prayed for waiving of illegal bills, reducing load factor along with compensation for mental agony and financial loss and litigation cost. Neither the Complainant nor his Advocate was present at the time of hearing of this case.
3. Written version filed by the O.Ps through their Advocate denying on the point of maintainability, jurisdiction as well as its cause of action. The O.Ps have further submitted that on 28.07.2014, a spot verification was made by the O.Ps in presence of the Complainant and detected that he was availing power supply unauthorisedly through an extra wire connected to the service wire before the meter. Thereafter, provisional assessment U/s.126 (2) has been prepared for un-authorised consumption of 2.5 K.W for an amount of Rs.38,774.40 ps. (Rupees Thirty eight thousand seven hundred seventy four and forty paisa) only and served to the Complainant vide letter No.554, dtd.28.07.2014 and informed to file objection if any against the provisional assessment. But, the Complainant did not file any objection nor attended the hearing on dtd.19.08.2014. Accordingly, final assessment U/s.126 (3) was prepared and served to the Complainant for an amount of Rs.28,291/- (Rupees Twenty eight thousand two hundred ninety one) only vide letter No.619, dtd.19.08.2014 and asked to clear up the penal bill within 15 days from the issue of this letter. But, the Complainant without doing the same, has been filed this case before the Forum. This Forum has no jurisdiction to try such type of penal case U/s.126 of I.E Act-2003 for unauthorised use of electricity. Moreover, a “complaint” against the assessment made by the assessing Officer U/s.126 or against the offences committed U/s.135 to 140 of the Electricity Act-2003 is not maintainable before a Consumer Forum.
4. In view of the above averments of both the Parties, the points for determination of this case are as follows:-
(i) Whether this Consumer case is maintainable as per Law ?
(ii) Whether there is any cause of action to file this case ?
(iii) To what relief the Complainant is entitled for ?
5. In order to substantiate their claim, both the Parties have filed certain documents as per list. Perused the documents filed. Neither the Complainant nor his Advocate was present at the time of hearing of this case. So, his pleading is his case. According to his pleading, on 28.07.2014 in absence of the Complainant and his family members, the O.Ps illegally inspected his premises and also alleged that he has cut the service wire before meter, thereby taking an extra line from that cut point for using extra load, thus the O.Ps have imposed penalty of Rs.28,291/- (Rupees Twenty eight thousand two hundred ninety one) only upon the Complainant and disconnected power supply to his premises. But, the Complainant has neither consumed extra energy illegally nor the O.Ps have ever inspected his premises. Thus, he approached the O.Ps on several occasions to consider the matter by revising the said illegal bill, but the O.Ps did not pay any heed to it, causing mental agony and financial loss to the Complainant, for which he has filed this case praying for waiving of illegal bills, reducing load factor along with compensation and litigation cost. On the other hand, it has been argued on behalf of the O.Ps that on 28.07.2014, a spot verification was made by the O.Ps in presence of the Complainant, where they have found that the Complainant was availing power supply unauthorisedly through an extra wire connected to the service wire before the meter. Thus, a spot verification report was prepared and basing on it, provisional assessment U/s.126 (2) has been prepared for un-authorised consumption of 2.5 K.W for an amount of Rs.38,774.40 ps. (Rupees Thirty eight thousand seven hundred seventy four and forty paisa) only and served to the Complainant vide letter No.554, dtd.28.07.2014 and also informed to file objection if any against the provisional assessment. But, the Complainant did not file any objection nor attended the hearing on dtd.19.08.2014. Accordingly, final assessment U/s.126 (3) was prepared and served to the Complainant for an amount of Rs.28,291/- (Rupees Twenty eight thousand two hundred ninety one) only vide letter No.619, dtd.19.08.2014 and asked to clear up the penal bill within 15 days from the issue of this letter. But, the Complainant has neither complied the order nor appealed before the appellate authority, rather filed this case in this Forum. During argument, it has been also argued by the Advocate for O.Ps that the Complainant is not a Consumer under the O.Ps. But, strangely enough, in the written version filed by the O.Ps in para-1, they have admitted that the Petitioner/ Complainant is a Consumer under Domestic Tariff having 1 K.W load bearing Consumer No.SM-56608. So, the argument by the Advocate for O.Ps is baseless and only for misguiding to this Forum. He should be vigilant henceforth. So, when there is an assessment, this Forum has no jurisdiction to entertain the case and the Complainant is at liberty to approach the appropriate authority. However, in view of the authority reported in III (2013) CLT-55 (SC) in the case of Uttar Pradesh Power Corporation Limited & Ors. (Vrs.) Anis Ahmad, wherein it has been held by the Hon’ble Supreme Court of India that complaint against assessment made U/s.126 or action taken against those committing offences U/s.135 to 140 of Electricity Act, 2003, held, is not maintainable before a Consumer Forum. Civil Court’s jurisdiction to consider a suit with respect to the decision of assessing Officer U/s.126 or with respect to a decision of the appellate authority U/s.127 is barred U/s.145 of Electricity Act, 2003. Therefore, it is clear that after notice of provisional assessment to the person alleged to have indulged in unauthorized use of electricity, the final decision by an assessing officer, who is a public servant, on the assessment of ‘unauthorized use of electricity’ is a quasi-judicial decision and does not fall within the meaning of “consumer dispute” U/s. 2(1) (e) of Consumer Protection Act. Offences referred to in Sections-135 to 140 can be tried only by a Special Court constituted U/s.153 of Electricity Act, 2003, hence, also the complaint against any action taken under Sections-135 to 140 of Electricity Act, 2003 is not maintainable before Consumer Forum. By virtue of Section-3 of Consumer Protection Act, 1986 or Sections-173, 174 and 175 of Electricity Act, 2003, Consumer Forum cannot derive power to adjudicate a dispute in relation to assessment made U/s.126, or offences U/s.135 to 140 of Electricity Act, as the acts of indulging in “unauthorized use of electricity” do not fall within the meaning of “complaint” as defined U/s. 2(1) (c) of Consumer Protection Act, 1986.
6. So, now on careful consideration of all the materials available in the case record and on the basis of principle laid down by the above Authority as discussed earlier, this Forum come to the conclusion that this Consumer case is not maintainable in this Forum, for which the Complainant is not entitled for any relief as prayed for and accordingly, this Consumer case is liable to be dismissed. However, the Complainant is at liberty to approach the appropriate authority along with an application for condonation of delay, if desired/ required. Hence, Ordered:-
O R D E R
The Consumer case is dismissed on contest against the O.Ps, but in the peculiar circumstances without cost.
Pronounced in the open Forum on this day i.e. the 17th day of April, 2018 given under my Signature & Seal of the Forum.
