Haryana

StateCommission

A/258/2017

DHBVNL - Complainant(s)

Versus

JAI SHREE RAM STONE CRUSHING GRAM UDYOG - Opp.Party(s)

R.K.GUPTA

26 Sep 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

 

                                                Appeal No.258 of  2017 in

First appeal No.1059 of 2008

Date of the Institution: 22.04.2008

&15.02.2017

Date of Decision: 26.09.2017

 

1.      Dakshin Haryana Bijli Vitran Nigam, Ltd, having its Head Office at Vidyut Nagar, Hisar through its., M.D.

2.      Executive Engineer, “OP”, Division, DHBVNL, Bhiwani.

3.      Asstt. Executive Engineer, ‘OP’ , Sub Division, DHBVNL, Tosham.

                                                                   .….Appellants

Versus

 

M/s Jai Siri Ram Stone Crushing Gram Udyog Mandal, V&PO Khanak, Distt. Bhiwani, through its duly authorized person Shri Sandeep Kumar S/o Om Parkash R/o 1596, Urban Estate, Hisar, Secretary of the Society (consumer of connection No.MS-31/2016.

                                                                             .….Respondent

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mrs.Alka Joshi, Advocate for the appellants.

                    Mr.Rajneesh Gupta, Advocate for the respondent.

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

Vide order dated 05.07.2011 coordinated Bench of this Commission allowed appeal, but, instead of filing appeal before Hon’ble National Commission as provided under Section 19 of the Consumer Protection Act, 1986 (In Short “Act”) respondent-complainant filed Civil Writ Petition No.18594 of 2011 before Hon’ble Punjab and Haryana High Court and vide order dated 21.12.2016  Hon’ble High Court set aside the order dated 05.07.2011 passed by this Commission and matter was remanded back to decide it on merits.

2.      Shorn of unnecessary details facts leading to this controversy are that complainant obtained electricity connection from the appellants having account No.MS-31/0216 for running Stone Crusher.  It was alleged that in the month of March 2003 bill was sent by opposite parties (O.Ps.) for Rs.74070/- illegally out of which Rs.61481/- were pertaining to Sundry charges.  No prior notice was given whereas as per instructions if secondary item was to be added then notice should have been given. To avoid dis-connection he deposited that amount on 24.03.2003. Demand was raised in violation of sale circular, as mentioned in complaint.  As the demand was illegal so O.Ps. be directed to refund the same alongwith interest and compensation, as mentioned in complaint.

3.      O.Ps. filed reply controverting his averments and alleged that complainant was having sanctioned load of 68.2 KWs which was covered under the category of Medium Supply (M.S.), but, it was using load more than 70 KWs which was covered by High Tension (H.T.) category.  As per sale circular No.28 of 2001 if consumer was found consuming more electricity then contract demand in any month by more than 5%, a surcharge of 25% was to be levied on sale of power(SOP)/MMC(Industrial, Factory lighting and Colony lighting).  As per sale circular No.D-55 of 2001 there was provision of penalty for unauthorized extension of load on LT Industrial consumer change in category from LT to HT, as mentioned therein. As he increased load unauthorizedly so demand was rightly raised. There was no deficiency in service on their part and complainant was liable to pay amount in question. Objections about locus standi, maintainability of complaint, estopple, concealment of true facts etc. were also raised and requested to dismiss complaint.

4.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Bhiwani  (In short “District Forum”) allowed complaint vide impugned order dated  09.01.2008 and ordered as under:-

“We direct the respondents to refund the deposited penalty amount to the tune of Rs.61,481/- charged on account of Sundry Charges in the bill in question, to the complainant alonwith interest @ 10% p.a. from the date of deposit of penalty amount till the date of final realization.  The cost of litigation is also allowed to the complainant, which we quantify at Rs.1000/-.”

5.      Feeling aggrieved therefrom, O.Ps.-appellants have preferred this appeal.

6.      Arguments heard. File perused.

7.      Learned counsel for appellants vehemently argued that  complainant obtained connection for commercial purpose, which is also admitted by it. So, Consumer Fora was not having jurisdiction to try this complaint as opined by Hon’ble National Commission in Mohd. Haseeb Ahmed Vs. Maharastra State Electricity Board and others 2010 CTJ 886 CP (NCDRC). To avoid findings of Hon’ble National Commission on this point, instead of filing appeal under section 19 of the Act,  complainant filed CWP No.18594 of 2011 before Hon’ble High Court, whereas according to opinion of Hon’ble Supreme Court expressed in SLP © No.24228-24229 of 2012 (C.C. Nos.12891-12892 of 2012) titled as Cicily Kallarackal Vs. Vehicle Factory decided on 06.08.2012, C.A. No.10706 of 2011 SOP © No.17213 of 2010 titled as Nivedita Sharma Vs. Cellular Operators Assn. of India (2011) 14 SCC,337 and opinion of Hon’ble Guwahati High Court expressed in M/s Parkash Roadlines ltd. Vs. M/s Rajirshi Motors Private Limited AIR 2010 Guwahati 57 writ petition was not maintainable before High Court.

8.      Learned counsel for the complainant argued that Hon’ble National Commission has decided so many revision petitions pending in between Electricity Department and Stone crushers. It was no-where opined therein that consumer fora was not having jurisdiction to entertain such like complaint. Even if connection was for commercial purpose, he was consumer. To this effect he placed reliance upon the opinion of Hon’ble National Commission expressed in Revision petition No.1138 of 2009 and 1139 of 2009 titled as DHBVNL vs M/s Bala Ji Gram UIdyog Mandal Dadam and DHBVNL Vs. M/s Pradeep Stone Crusher decided on 23.04.2009.

9.      This point cannot be adjudicated upon by this Commission. If they/appellants were aggrieved from the order of Hon’ble High Court they should have approached competent court.  This Commission is to follow directions issued by Hon’ble High Court and cannot opine whether writ petition was maintainable or not and whether complainant was consumer or not. Even if connection was commercial this commission is to decide whether O.Ps. are entitled to raise aforesaid demand or not keeping in view the order of Hon’ble Punjab and Haryana High Court. However it may be pointed out that in revision petitions referred by learned counsel for complainant this question was not discussed. 

10.    Learned counsel for the complainant further argued that as per sale circular of 1996 before imposing penalty as per audit report a notice is to be issued to the consumer, whereas no such notice was issued. As per sale circular No.D-40/2001 and  D-18/2001 in case of increase of Maximum Demand Indicator (M.D.I.) SDO concerned is bound to reset M.D.I. at Zero as mentioned therein. Whereas in this case MDI was increased only in the month of September 2001.  Sales Circular NO.D-55/2001 was withdrawn by the O.Ps. So they were not entitled to raise any demand as per that  circular.  Learned District Forum rightly granted aforesaid relief. Appeal has no merits and the same be dismissed. In support of his arguments he placed reliance upon the opinion of State Commission, Chandigarh in appeal No.1023 of 2008 before Mega Lok Adalat titled as  Dakshin Haryana Bjli Nigam Ltd. Vs. M/s Onkar Stone Crusher, Khanak.

11.    This argument is of no avail. It is alleged by complainant that supply of electricity was erratic and increase in M.D.I. was due to low voltage, whereas it has miserably failed to prove this fact. As per these averments it is clear that there was increase in M.D.I.  Learned District Forum wrongly came to conclusion that sale circular D-55/2001 was withdrawn rather it was amended. As per memo dated 05.06.2003 sale circular No.D-55/2001 was made applicable from 14.06.2001 i.e. from the date of issuance of this circular and not before that date i.e. retrospectively.  In the present case amount payable by complainant is after 14.06.2001 and not  before that period.  For ready reference amended sale circular No.D-15/2003  dated  05.06.2003 is reproduced as under:-

“Subject:-   Amendment of Sales Circular No.D-55/2001 dated 14.06.01.

 

“Sales Circular No.D-55/2001 dated 14.06.2001 was issued regarding levy of penalty in case of unauthorized extension in load recorded by Electronic meter having maximum load indicator and to treat the consumer under HT Industrial category in case unauthorized extension in load resulted in change of category from LT to HT industrial. The instructions issued vide this circular were made applicable from the date of installation of electronic meters having facility to record maximum load.

Some consumers filed a CWP in the Hon’ble Curt challenging Sales Circular No.D-55/2001 dated 14.06.2001, particularly its applicability from restrospective effect. The issue has been reviewed in view of the statement made by the Nigam counsel during the hearing in the Hon’ble High Court and it has been decided to amend the ibid circular. Accordingly, Sales Circular No.D-55/2001 dt. 14.06.2001 is amended to the extent that the instructions issued vide this circular will be applicable from the date of issue of this circular, i.e. 14.06.2001, instead of the date of installation of electronic meters with maximum load indicator at the premises of consumers.

The above instructions may be brought to the notice of all concerned for careful and meticulous compliance.”

As complainant increased load unauthorisedly it was liable to pay the amount in question. This demand was not raised on the basis of audit report but as per circular referred to above.

12.    More so, in letter dated 08.03.2003 it is specifically mentioned that as per TDCO No.24/31 this fact was brought to it’s notice. So it cannot be alleged by complainant that it was not informed about this amount. Learned District Forum failed to take into consideration that circular D-55/2001 was very much in operation and wrongly granted aforesaid relief. 

13.    As a sequel to above said discussion, it is clear that complainant was liable to pay the amount demanded by appellants-O.Ps. so impugned order dated  09.01.2008 is hereby set aside. Appeal is allowed and complaint is dismissed.  Appellants will be entitled to recover the interest from the complainant on this amount @ 10% per annum also  from the date of refund till payment.

14.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules.

 

September 26th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

 

                                                Appeal No.257 of  2017 in

First appeal No.1060 of 2008

Date of the Institution: 22.04.2008

&15.02.2017

Date of Decision: 26.09.2017

 

1.      Managing Director, Dakshin Haryana Bijli Vitran Nigam, Ltd, Vidyut Nagar, Hisar through X.E.N., City Division Bhiwani.

2.      Executive Engineer, “OP”, City Division, DHBVNL, Bhiwani.

3.      S.D.O., “OP”, Sub Division, DHBVNL, Tosham.

                                                                    .….Appellants

Versus

 

M/s Jai Siri Ram Stone Crushing Gram Udyog Mandal Khanak, through Shri Sandeep S/o Om Parkash Gupta, Secretary (consumer of connection No.MS-31/216.

 

                                                                             .….Respondent

 

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mrs.Alka Joshi, Advocate for the appellants.

                    Mr.Rajneesh Gupta, Advocate for the respondent.

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

          Vide order dated 05.07.2011 coordinated Bench of this Commission allowed appeal, but, instead of filing appeal before Hon’ble National Commission as provided under Section 19 of the Consumer Protection Act, 1986 (In Short “Act”) respondent-complainant filed Civil Writ Petition No.18594 of 2011 before Hon’ble Punjab and Haryana High Court and vide order dated 21.12.2016  Hon’ble High Court set aside the order dated 05.07.2011 passed by this Commission and matter was remanded back to decide it on merits.

2.      Shorn of unnecessary details facts leading to this controversy are that complainant obtained electricity connection from the appellants having account No.MS-31/216 for running Stone Crusher.  It was alleged that in the month of October 2003 bill was sent by opposite parties (O.Ps.) adding Rs.46764/- illegally without giving any prior notice.  Whereas as per instructions if secondary item was to be added then notice should have been given. To avoid dis-connection that amount was deposited.  In the month of November 2003 he again received bill wherein Rs.45,319/- were added illegally.  Said amount was also deposited to avoid disconnection. As the demand was illegal so O.Ps. be directed to refund the same alongwith interest and compensation, as mentioned in complaint.

3.      O.Ps. filed reply controverting his averments and alleged that complainant was having sanctioned load of 68.2 KWs which was covered under the category of Medium Supply (M.S.), but, it was using load more than 70 KWs which was covered by High Tension (H.T.) category.  As per sale circular No.28 of 2001 if consumer was found consuming more electricity then contract demand in any month by more than 5%, a surcharge of 25% was to be levied on sale of power(SOP)/MMC(Industrial, Factory lighting and Colony lightings).  As per sale circular No.D-55 of 2001 there was provision of penalty for unauthorized extension of load on LT Industrial consumer change in category from LT to HT, as mentioned therein. As he increased load unauthorizedly so demand was rightly raised. There was no deficiency in service on their part and complainant was liable to pay amount in question. Objections about locus standi, maintainability of complaint, estopple, concealment of true facts etc. were also raised and requested to dismiss complaint.

4.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Bhiwani  (In short “District Forum”) allowed complaint vide impugned order dated  09.01.2008 and ordered as under:-

“We direct the respondents to refund the deposited amount to the tune of Rs.46,764/- & Rs.45,319/- of the bills in question, to the complainant alongwith interest @ 10% P.A. from the date of deposit of penalty amount till the date of final realization. The cost of litigation is also awarded to the complainant which we quantify at Rs.1000/-.”

5.      Feeling aggrieved therefrom, O.Ps.-appellants have preferred this appeal.

6.      Arguments heard. File perused.

7.      Learned counsel for appellants vehemently argued that  complainant obtained connection for commercial purpose, which is also admitted by it. So, Consumer Fora was not having jurisdiction to try this complaint as opined by Hon’ble National Commission in Mohd. Haseeb Ahmed Vs. Maharastra State Electricity Board and others 2010 CTJ 886 CP (NCDRC). To avoid findings of Hon’ble National Commission on this point, instead of filing appeal under section 19 of the Act, complainant filed  CWP No.18594 of 2011 before Hon’ble High Court, whereas according to opinion of Hon’ble Supreme Court expressed in SLP © No.24228-24229 of 2012 (C.C. Nos.12891-12892 of 2012) titled as Cicily Kallarackal Vs. Vehicle Factory decided on 06.08.2012, C.A. No.10706 of 2011 SOP © No.17213 of 2010 titled as Nivedita Sharma Vs. Cellular Operators Assn. of India (2011) 14 SCC,337 and opinion of Hon’ble Guwahati High Court expressed in M/s Parkash Roadlines ltd. Vs. M/s Rajirshi Motors Private Limited AIR 2010 Guwahati 57 writ petition was not maintainable before High Court.

8.      Learned counsel for the complainant argued that Hon’ble National Commission has decided so many revision petitions pending in between Electricity Department and Stone crushers. It was no-where opined therein that consumer fora was not having jurisdiction to entertain such like complaint. Even if connection was for commercial purpose, he was consumer. To this effect he placed reliance upon the opinion of Hon’ble National Commission expressed in Revision petition No.1138 of 2009 and 1139 of 2009 titled as DHBVNL vs M/s Bala Ji Gram UIdyog Mandal Dadam and DHBVNL Vs. M/s Pradeep Stone Crusher decided on 23.04.2009.

9.      This point cannot be adjudicated upon by this Commission. If they/appellants were aggrieved from the order of Hon’ble High Court they should have approached competent court.  This Commission is to follow directions issued by Hon’ble High Court and cannot opine whether writ petition was maintainable or not and whether complainant was consumer or not. Even if connection was commercial this commission is to decide whether O.Ps. are entitled to raise aforesaid demand or not keeping in view the order of Hon’ble Punjab and Haryana High Court. However it may be pointed out that in revision petitions referred by learned counsel for complainant this question was not discussed. 

10.    Learned counsel for the complainant further argued that as per sale circular of 1996 before imposing penalty as per audit report a notice is to be issued to the consumer, whereas no such notice was issued. As per sale circular No.D-40/2001 and  D-18/2001 in case of increase of Maximum Demand Indicator (M.D.I.) SDO concerned is bound to reset M.D.I. at Zero as mentioned therein. Whereas in this case MDI was increased only in the month of September 2001.  Sales Circular NO.D-55/2001 was withdrawn by the O.Ps. So they were not entitled to raise any demand as per that  circular.  Learned District Forum rightly granted aforesaid relief. Appeal has no merits and the same be dismissed. In support of his arguments he placed reliance upon the opinion of State Commission, Chandigarh in appeal No.1023 of 2008 before Mega Lok Adalat titled as  Dakshin Haryana Bjli Nigam Ltd. Vs. M/s Onkar Stone Crusher, Khanak.

11.    This argument is of no avail. It is alleged by complainant that supply of electricity was erratic and increase in M.D.I. was due to low voltage, whereas it has miserably failed to prove this fact. As per these averments it is clear that there was increase in M.D.I.  Learned District Forum wrongly came to conclusion that sale circular D-55/2001 was withdrawn rather it was amended. As per memo dated 05.06.2003 sale circular No.D-55/2001 was made applicable from 14.06.2001 i.e. from the date of issuance of this circular and not before that date i.e. retrospectively.  In the present case amount payable by complainant is after 14.06.2001 and not  before that period.  For ready reference amended sale circular No.D-15/2003  dated  05.06.2003 is reproduced as under:-

“Subject:-   Amendment of Sales Circular No.D-55/2001 dated 14.06.01.

“Sales Circular No.D-55/2001 dated 14.06.2001 was issued regarding levy of penalty in case of unauthorized extension in load recorded by Electronic meter having maximum load indicator and to treat the consumer under HT Industrial category in case unauthorized extension in load resulted in change of category from LT to HT industrial. The instructions issued vide this circular were made applicable from the date of installation of electronic meters having facility to record maximum load.

Some consumers filed a CWP in the Hon’ble Curt challenging Sales Circular No.D-55/2001 dated 14.06.2001, particularly its applicability from restrospective effect. The issue has been reviewed in view of the statement made by the Nigam counsel during the hearing in the Hon’ble High Court and it has been decided to amend the ibid circular. Accordingly, Sales Circular No.D-55/2001 dt. 14.06.2001 is amended to the extent that the instructions issued vide this circular will be applicable from the date of issue of this circular, i.e. 14.06.2001, instead of the date of installation of electronic meters with maximum load indicator at the premises of consumers.

The above instructions may be brought to the notice of all concerned for careful and meticulous compliance.”

As complainant increased load unauthorisedly it was liable to pay the amount in question. This demand was not raised on the basis of audit report but as per circular referred to above.

12.    More so, in letter dated 08.03.2003 it is specifically mentioned that as per TDCO No.24/31 this fact was brought to it’s notice. So it cannot be alleged by complainant that it was not informed about this amount. Learned District Forum failed to take into consideration that circular D-55/2001 was very much in operation and wrongly granted aforesaid relief. 

13.    As a sequel to above said discussion, it is clear that complainant was liable to pay the amount demanded by appellants-O.Ps. so impugned order dated  09.01.2008 is hereby set aside. Appeal is allowed and complaint is dismissed.  Appellants will be entitled to recover the interest from the complainant on this amount @ 10% per annum also  from the date of refund till payment.

14.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules.

 

September 26th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

 

                                                Appeal No.256 of  2017 in

First appeal No.1058 of 2008

Date of the Institution: 22.04.2008

&15.02.2017

Date of Decision: 26.09.2017

 

1.      Managing Director, Dakshin Haryana Bijli Vitran Nigam, Ltd, Vidyut Nagar, Hisar through X.E.N., City Division Bhiwani.

2.      Executive Engineer, “OP”, City Division, DHBVNL, Bhiwani.

3.      S.D.O., “OP”, Sub Division, DHBVNL, Tosham.

                                                                   .….Appellants

Versus

 

M/s Punjab Stone Crusher, Khanak, a partnership concern, through its partner Sh. Ved Parkash S/o Sh.Gian Chand, R/o Vill. Khanak,Tehsil Tosham, Distt. Bhiwani (consumer connection No. LS-174).

                                                                             .….Respondent

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mrs.Alka Joshi, Advocate for the appellants.

                    Mr.Rajneesh Gupta, Advocate for the respondent.

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

          Vide order dated 04.07.2011 coordinated Bench of this Commission allowed appeal, but, instead of filing appeal before Hon’ble National Commission as provided under Section 19 of the Consumer Protection Act, 1986 (In Short “Act”) respondent-complainant filed Civil Writ Petition No.18594 of 2011 before Hon’ble Punjab and Haryana High Court and vide order dated 21.12.2016  Hon’ble High Court set aside the order dated 04.07.2011 passed by this Commission and matter was remanded back to decide it on merits.

2.      Shorn of unnecessary details facts leading to this controversy are that complainant obtained electricity connection from the appellants having account No.LS-174 for running Stone Crusher.  It was alleged that in the month of March 2003 bill was sent by opposite parties (O.Ps.) of Rs.74,595/-  illegally.  No notice was given whereas as per instructions if secondary item was to be added then notice should be given. O.Ps. supplied 440 voltage, but, the same was being supplied below 300 voltage and due to this reason, stone crusher machines were not functioning properly and jumping took place due to low voltage.  As the demand was illegal so O.Ps. be directed to refund the same alongwith interest and compensation, as mentioned in complaint.

3.      O.Ps. filed reply controverting his averments and alleged that complainant was having sanctioned load of 69.665 KW which was covered under the category of Medium Supply (M.S.), but, it was using load more than 70 KW which was covered by High Tension (H.T.) category.  As per sale circular No.28 of 2001 if consumer found consuming more electricity then the contract demand in any month by more than 5%, a surcharge of 25% was to be levied on sale of power(SOP)/MMC(Industrial, Factors lighting and Colony lighting).  As per sale circular No.D-55 of 2001 there was provision of penalty for unauthorized extension of load on LT Industrial consumer change in category from LT to HT, as mentioned therein. As he increased load unauthorizedly so demand was rightly raised from him. There was no deficiency in service on their part and complainant was liable to pay amount in question. Objections about locus standi, maintainability of complaint, estopple, concealment of true facts etc. were also raised and requested to dismiss complaint.

4.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Bhiwani  (In short “District Forum”) allowed complaint vide impugned order dated  09.01.2008 and ordered as under:-

“We direct the respondents to refund the whole deposited penalty amount to the tune of Rs.73,133/- charged on account of Sundry Charges in the bill in question, to the complainant alongwith interest @ 10% P.A. from the date of deposit of penalty amount till the date of final realization. The cost of litigation is also allowed to the complainant which we quantify at Rs.1000/-.”

5.      Feeling aggrieved therefrom, O.Ps.-appellants have preferred this appeal.

6.      Arguments heard. File perused.

7.      Learned counsel for appellants vehemently argued that  complainant obtained connection for commercial purpose, which is also admitted by it. So, Consumer Fora was not having jurisdiction to try this complaint as opined by Hon’ble National Commission in Mohd. Haseeb Ahmed Vs. Maharastra State Electricity Board and others 2010 CTJ 886 CP (NCDRC). To avoid findings of Hon’ble National Commission on this point, instead of filing appeal under section 19 of the Act,  CWP No.18594 of 2011 was filed before Hon’ble High Court, whereas according to opinion of Hon’ble Supreme Court expressed in SLP © No.24228-24229 of 2012 (C.C. Nos.12891-12892 of 2012) titled as Cicily Kallarackal Vs. Vehicle Factory decided on 06.08.2012, C.A. No.10706 of 2011 SOP © No.17213 of 2010 titled as Nivedita Sharma Vs. Cellular Operators Assn. of India (2011) 14 SCC,337 and opinion of Hon’ble Guwahati High Court expressed in M/s Parkash Roadlines ltd. Vs. M/s Rajirshi Motors Private Limited AIR 2010 Guwahati 57 writ petition was not maintainable before High Court.

8.      Learned counsel for the complainant argued that Hon’ble National Commission has decided so many revision petitions pending in between Electricity Department and Stone crushers. It was no-where opined therein that consumer fora was not having jurisdiction to entertain such like complaint. Even if connection was for commercial purpose, he was consumer. To this effect he placed reliance upon the opinion of Hon’ble National Commission expressed in Revision petition No.1138 of 2009 and 1139 of 2009 titled as DHBVNL vs M/s Bala Ji Gram UIdyog Mandal Dadam and DHBVNL Vs. M/s Pradeep Stone Crusher decided on 23.04.2009.

9.      This point cannot be adjudicated upon by this Commission. If they/appellants were aggrieved from the order of Hon’ble High Court they should have approached competent court.  This Commission is to follow directions issued by Hon’ble High Court and cannot opine whether writ petition was maintainable or not and whether complainant was consumer or not. Even if connection was commercial this commission is to decide whether O.Ps. are entitled to raise aforesaid demand or not keeping in view the order of Hon’ble Punjab and Haryana High Court. However it may be pointed out that in revision petitions referred by learned counsel for complainant this question was not discussed. 

10.    Learned counsel for the complainant further argued that as per sale circular of 1996 before imposing penalty as per audit report a notice is to be issued to the consumer, whereas no such notice was issued. As per sale circular No.D-40/2001 and  D-18/2001 in case of increase of Maximum Demand Indicator (M.D.I.) SDO concerned is bound to reset M.D.I. at Zero as mentioned therein. Whereas in this case MDI was increased only in the month of September 2001.  Sales Circular NO.D-55/2001 was withdrawn by the O.Ps. So they were not entitled to raise any demand as per that  circular.  Learned District Forum rightly granted aforesaid relief. Appeal has no merits and the same be dismissed. In support of his arguments he placed reliance upon the opinion of State Commission, Chandigarh in appeal No.1023 of 2008 before Mega Lok Adalat titled as  Dakshin Haryana Bjli Nigam Ltd. Vs. M/s Onkar Stone Crusher, Khanak.

11.    This argument is of no avail. It is alleged by complainant that supply of electricity was erratic and increase in M.D.I. was due to low voltage, whereas it has miserably failed to prove this fact. As per these averments it is clear that there was increase in M.D.I.  Learned District Forum wrongly came to conclusion that sale circular D-55/2001 was withdrawn rather it was amended. As per memo dated 05.06.2003 sale circular No.D-55/2001 was made applicable from 14.06.2001 i.e. from the date of issuance of this circular and not before that date i.e. retrospectively.  In the present case amount payable by complainant is after 14.06.2001 and not  before that period.  For ready reference amended sale circular No.D-15/2003  dated  05.06.2003 is reproduced as under:-

“Sales Circular No.D-55/2001 dated 14.06.2001 was issued regarding levy of penalty in case of unauthorized extension in load recorded by Electronic meter having maximum load indicator and to treat the consumer under HT Industrial category in case unauthorized extension in load resulted in change of category from LT to HT industrial. The instructions issued vide this circular were made applicable from the date of installation of electronic meters having facility to record maximum load.

Some consumers filed a CWP in the Hon’ble Curt challenging Sales Circular No.D-55/2001 dated 14.06.2001, particularly its applicability from restrospective effect. The issue has been reviewed in view of the statement made by the Nigam counsel during the hearing in the Hon’ble High Court and it has been decided to amend the ibid circular. Accordingly, Sales Circular No.D-55/2001 dt. 14.06.2001 is amended to the extent that the instructions issued vide this circular will be applicable from the date of issue of this circular, i.e. 14.06.2001, instead of the date of installation of electronic meters with maximum load indicator at the premises of consumers.

The above instructions may be brought to the notice of all concerned for careful and meticulous compliance.”

As complainant increased load unauthorisedly it was liable to pay the amount in question. This demand was not raised on the basis of audit report but as per circular referred to above.

12.    More so, in letter dated 08.03.2003 it is specifically mentioned that as per TDCO No.24/31 this fact was brought to it’s notice. So it cannot be alleged by complainant that it was not informed about this amount. Learned District Forum failed to take into consideration that circular D-55/2001 was very much in operation and wrongly granted aforesaid relief. 

13.    As a sequel to above said discussion, it is clear that complainant was liable to pay the amount demanded by appellants-O.Ps. so impugned order dated  09.01.2008 is hereby set aside. Appeal is allowed and complaint is dismissed.  Appellants will be entitled to recover the interest from the complainant on this amount @ 10% per annum also  from the date of refund till payment.

14.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules.

 

September 26th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.