SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of non-continuance of power supply to the complainant’s residential house are the allegations arrayed against Ops.
2. Complaint petition reveals that complainant is a domestic category of consumer under Ops residing at village:-Juna bearing Hal Khata No. 847/55 and was enjoying power supply since the year 2003. The ROR of Khata No. 847/55 was jointly recorded both in the name of complainant and OP No.4 Hrushikesh Behera. Complainant also obtained bill No.01030780 dtd. 20.04.2005 and Bill No.01030716 dtd. 21.06.2005. It is also stated that as the complainant and OP no.4 are residing in a same plot and basing on good faith the power supply was in the name of OP No.4. Now the Ops including the OP No.4 threatening to disconnect the power supply to the complainant’s premises. It is further stated that as some girl students of Marsaghai college are residing in the premises of complainant on rental basis, the OP No.1 to resume electricity has given a temporary connection and collecting the dues on dtd.08.03.16,dtd.23.07.16 and on dtd.27.08.16. It is prayed before this Forum that a direction may be given to Ops not to disconnect the power supply.
3. Being noticed Op 1 to 3 the service provider electricity authorities appeared through their Ld. Counsel Mr. P.K.Samal and filed objection /joint written statement into the dispute by stating that complainant on July 2016 applied for a temporary connection intimating the Ops that his mother is ill and some ladies are residing in the premises on rental basis, the Junior Manager provided a temporary connection to the complainant. It is averred that OP Hrushikesh Behera made a complaint before Deputy Project Manager,Marsaghai disputing the drawl of line over the plot by stating that a civil dispute is pending before Civil Court regarding the title and possession of the dispute land. As per clause -8 of OERC,Regulation-2004 OP No.1 to 3 are not empowered to effect power supply without the consent of the land owner. It is further averred that the consumer No.02348182 belongs and recorded in the name of OP Hrushikesh Behera. Complainant suppressing the material facts has foisted this false case against the OP No.1 to 3, which is to be rejected with cost.
Upon notice Opp.Party Hrushikesh Behera appeared through his Ld. Counsel and filed show cause/objection into the dispute. On filing of amended complaint petition the OP Hrushikesh Behera is impleaded as OP No.4 instead of OP No.5. In the objection OP No.4 challenges the maintainability of the complaint and denies the allegations arrayed against him. OP No.4 submitting the facts of the case states that complainant has suppressed the materials facts of the case. OP Hrushikesh Behera purchased A0.06 decs land from one Sagar Swain which is southern side of Plot No.772 and oP No.4/5 is in possession of over the land till date and after mutation obtained Khata No.847/2681. After construction of the house OP Hrushikesh Behera availed electricity vide Consumer No.02348102 corresponding to old Khata No.D2B186. It is also averred that the complainant’s plot adjoins to northern side land of OP Hrushikesh Behera and when complainant threatened OP Hrushikesh Behera to dispossess a Civil Suit bearing No.254/16 and I.A.No.233/2016 is pending before Civil Judge, Junior Division,Kendrapara and Hon’ble Civil Court has passed an interim order to maintain the status quo. It is further averred that the dispute exist between OP No.4/5 and complainant is a dispute of Civil nature and can not be adjudicate by this Forum and complainant has filed this case after passing of order of Status quo by the Hon’ble Civil Court. OP No.4 also states that complainant has never been residing or possessing any land which belong toOP Hrushikesh Behera at any point of time and taking of electric connection from OP No.5 does not arise at all, for the reasons the consumer complaint is illegal and liable to be rejected.
4. Heard, the arguments advanced by Ld. Counsels for the parties, examined a lot of documents which are filed into the dispute as list of documents and is a part of the record. The documents include attested Xerox copies of Sale deed,ROR,Rent receipts. On allegation of threatening of disconnection of power supply and to prove the continuance of power supply complainant files attested Xerox copies of money receipts, monthly energy bills. It is seen from the money receipt that the OP-Service provider of electricity have granted money receipts on different dates against the continuance of electricity as temporary service charge(TSC) further copy of the monthly energy bills filed by complainant reflects that the name of the consumer as Hrushikesh Behera(OP No.4) and the consumer no. is 02348102. On filing of the money receipt it is clear that complainant is availing power supply from the Ops on temporary basis by paying the amount or ‘consideration’ as per the provisions. Hence, complainant is a consumer under Ops who are ‘service provider as per Sec.2(d)(ii) of the C.P.Act,1986. It is clear from the submissions of complainant and OP Hrushikesh Behera that there is a civil dispute going on between the parties and same is pending before Civil Judge(Junior Division). In this aspect, we observe that when a civil dispute is pending for decision of title, possession, this Forum can not adjudicate such disputes. In the present dispute it is alleged that Ops are threatening to disconnect the power supply which relates to deficiency in service, there is no legal barrior to adjudicate the matter which falls within the ambit of ‘Deficiency in service”. On the other hand OP No.1 to 3 the service provider of electricity hammered that as per Chapter-III of clause-8 of OERC Regulation,2004 Ops can not provide power supply without the consent of the land owner. It is clear from the version of the OP No.1 to 3 the electricity authority that the power supply to the complainant-consumer which passes through a disputed land. Both the parties i.e. complainant and Hrushikesh Behera claim to be the owner of the said land. As per Chapter-III of clause-8 of OERC Regulation,2004 the onus lies on the applicant to provide way leave, license, sanction, permission or other right or interest from the adjoining owner or co-owner. According to the Electricity Authority on receipt of complaint from Hrushikesh Behera they could not provide a regular power supply, but supplied the power on temporary basis considering certain circumstances. The complaint petition is silent regarding submission of fresh application for power supply. In the complaint parties entered into dispute have not followed the procedure described in Chapter-III of Clause-8 of OERC-2004 in its totality for just decision of the dispute, it is important to mention the clause which are not implemented by Ops “xxxxxx.” No way-leave, license sanction or other right or interest once granted shall be cancelled or withdrawn, without giving six months notice by Registered post to the engineer and the concerned consumer and a provision to this effect should be incorporated in the terms of way leave, license, sanction or other right or interest arranged by the consumer and submitted to the licensee xxxxx”. On analyzing the clause it is quite clear that ‘No way leave’, other right or interest once granted shall be cancelled without giving six months ‘Notice’ by Regd. Post. In the case in hand, it is a fact that complainant was availing power supply through the way-leave granted by Hrushikesh Behera(OP No.4) since long, just prior to the institution of the complaint, the OP No. 1 to 3 the service provider also supplied the electricity on temporary basis to the complainant through the same way-leave. Ops are silent regarding issue of such ‘Notice’to the complainant to provide way-leave other than the disputed way-leave. The intention of OERC is very clear on inclusion of this clause which clarified that if a way-leave granted earlier becomes disputed or challenged, but the same shall not be out rightly rejectedwithout giving an opportunity of alternative arrangement by serving a six months ‘Notice’ to an aggrieved consumer. We are not sure that whether Hrushikesh Behera has made any written complaint before OP No.1 to 3 relating to passing of service line/way-leave to complainant’s premises over the disputed land, because no such written complaint is filed before the Forum for better appreciation of the facts, though OP No.1 to 3 in their objection admits the receipt of the complaint from OP-Hrushikesh Behera. Accordingly, the I.A.Case No.29/2016 where an interim order was passed to continue the power supply to complainant’s premises is hereby vacated subject to the ORDER/observation of the present C.C.Case. During course of argument Ld. Counsel for complainant submitted that complainant is paying huge amount for consumption of electricity due to temporary connection same is to be finalized on actual consumption basis by taking meter reading.
As per the observations reflected, it is directed that OPs will comply/implement the provisions of Chapter-III of clause-8 of OErC,Regulations-2004 taking into consideration of our observation. The order is to be implemented within one month of receipt of this order. Till completion of the ‘Notice’ period Ops are hereby restrained to disconnect the power supply to complainant’s premises and the energy charges during the period be collected by installing an approved/tested meter in complainant’s premises as per the rules/provisions. Action will be initiated against the defaulting parties for non-compliance of the order as per provisions of C.P.Act,1986.
The complaint is allowed in part on contest without cost
Pronounced in the open Court, this the 20th Day of January,2017.
