The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Junior Engineer, Electrical (NESCO), Basta No.2 Division, Balasore, O.P No.2 is the S.D.O, Electrical (NESCO), Basta, Balasore and O.P No.3 is the Executive Engineer, Electrical (NESCO), B.T.E.D, Basta, Balasore.
2. The case of the Complainant in brief is that the Complainant is a bonafide Agricultural Consumer under the O.Ps bearing Consumer No.I-46513 to the P.L.I point and paying the bills regularly. But, from May-2015, the bills have been served with 6 K.W load without any basis. The Complainant has approached the O.Ps verbally as well as in writing in several occasions to reduce load factor from 6 K.W to 4 K.W, but the O.Ps have not taken any steps in the matter, causing mental agony to the Complainant. The O.Ps have violated the regulation of OERC-2004 and have acted against terms and conditions of agreement, which amounts to deficiency in service by the O.Ps. Cause of action arose on 07.01.2016, while the O.Ps threatened to disconnect power supply, provided entire electric bills are cleared, thus the Complainant filed this case for necessary relief. The Complainant has prayed for correction of load factor and revision of previous bills along with compensation for mental agony and litigation cost.
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 24.03.2015, the O.Ps verified the premises of the Complainant and found that the Complainant was unauthorisedly availing power supply for irrigation purpose 7.5 H.P Summercible motor i.e. 6 K.W instead of his contract demand of 4 K.W. Thus, the spot verification report was prepared in presence of the Complainant, but he denied to sign on it. Accordingly, provisional assessment and final assessment order supplied to the Complainant vide letter No.2819, dtd.31.03.2015 and letter No.3232, dtd.28.04.2015 respectively. A letter vide letter No.6446, dtd.23.07.2015 regarding execution of fresh agreement was also served to the Complainant, but no action has been taken by the Complainant till date. Moreover, any Consumer aggrieved by a final order made U/s.126 of I.E Act-2003 may prefer an appeal U/s.127 of I.E Act-2003 within 30 days of the said order by depositing 50% of the assessed amount. In addition, a “complaint” against the assessment made by the assessing Officer U/s.126 of I.E Act-2003 or against the offences committed U/s.135 to 140 of I.E Act-2003 is not maintainable before a Consumer Forum. So, the case of the Complainant is liable to be dismissed.
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 Parties have filed certain documents as per list. Perused the documents filed. It has been argued on behalf of the Complainant that from May-2015, the bills have been served with 6 K.W load without any basis. So, the Complainant has approached the O.Ps verbally as well as in writing in several occasions to reduce load factor from 6 K.W to 4 K.W, but the O.Ps did not pay any heed to it, causing mental agony to the Complainant. The O.Ps have also violated the regulation of OERC-2004 and have acted against terms and conditions of agreement, which amounts to deficiency in service by the O.Ps. Thus, the Complainant has filed this case praying for correction of load factor and revision of previous bills along with compensation and litigation cost. On the other hand, it has been argued on behalf of the O.Ps that on 24.03.2015, the O.Ps have verified the premises of the Complainant, where they have found that the Complainant was availing power supply unauthorisedly for irrigation purpose 7.5 H.P Summercible motor i.e. 6 K.W instead of his contract demand of 4 K.W. Thus, the spot verification report was prepared in presence of the Complainant, but he denied to sign on it. Thereafter, observing necessary formalities of Law, provisional assessment order and final assessment order were prepared and also served to the Complainant vide letter No.2819, dtd.31.03.2015 and letter No.3232, dtd.28.04.2015 respectively. A letter vide letter No.6446, dtd.23.07.2015 regarding execution of fresh agreement was also served to the Complainant, but no action has been taken by the Complainant till date. The Complainant has neither complied the assessment order made by the O.Ps nor appealed before the appellate authority, rather filed this case in this Forum. 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 30th day of May, 2018 given under my Signature & Seal of the Forum.
