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), Jaleswar Division, O.P No.2 is the S.D.O, Electrical No.1 (NESCO), Jaleswar, O.P No.3 is the Executive Engineer, Electrical (NESCO), Jaleswar and O.P No.4 is the Managing Director, NESCO Corporate Office, Januganj, Balasore.
2. The case of the Complainant in brief is that the Complainant is a bonafide domestic Consumer under the O.Ps bearing Consumer No.E-1542 and paying electric bills regularly. But, the O.Ps issued erratic bills, thus accruing arrears of Rs.14,192/- (Rupees Fourteen thousand one hundred ninety two) only and power supply was disconnected from July-2014. Energy charges are made on load basis for August-2007, September-2007, July-2009, April-2010 to April-2012 and August-2014 to November-2014, which is to be revised on the basis of average consumption as per regulation 93(8) of OERC. The Complainant has got a spot verification report on 18.01.2014 from the O.Ps imposing fine of Rs.20,085/- (Rupees Twenty thousand eighty five) only by way of assessment for by-passing load of 1.5 K.W, but the Complainant has no knowledge about such detection made by the O.Ps on dtd.28.11.2013. The Complainant applied to O.P No.2 on dtd.27.03.2014 and approached through R.T.I Act on 31.03.2014, but the O.P No.2 did not provide both provisional and final assessment order. The O.Ps have not taken any step for revision of illegal bills amounting deficiency in service by the O.Ps. Cause of action arose on 29.07.2014. The Complainant has prayed for correction of bill along with compensation for mental agony 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 No.1 to 3 through their Advocate denying on the point of maintainability as well as its cause of action. The O.Ps No.1 to 3 have further submitted that on dtd.28.11.2013, the O.P No.1 and 2 made a spot verification in presence of the Complainant and found that the Complainant was availing power supply illegally and unauthorized way by means of inserting two nos. of extra wire cut into the incoming terminal of the energy meter and extended the power supply through the wires to a cooking heater of 1.5 K.W load and by-passing the meter. Thus, as per Law, a spot verification report was duly prepared on dtd.28.11.2013 in presence of the Complainant, but he has refused to sign on it. As per spot verification report, the assessing Officer assessed the penalty amount U/s.126 of Electricity Act-2003 for theft of Electricity and the provisional assessment was prepared for an amount of Rs.21,866/- (Rupees Twenty one thousand eight hundred sixty six) only and served to the Complainant vide letter No.2146, dtd.04.12.2013 and informed to file objection if any against the provisional assessment order before the O.Ps on dtd.09.12.2013. But, the Complainant failed to file his objection against the provisional assessment order. Accordingly, the final assessment has been made vide letter No.2276, dtd.17.12.2013 for an amount of Rs.21,866/- (Rupees Twenty one thousand eight hundred sixty six) only. When, there is provision for appeal after final order made U/s.126 of the Electricity Act-2003 within 30 days of the said order for redressal of grievances (if any) of the Complainant to an appellate authority and the Complainant without availing remedies available in the statute U/s.127 of I.E Act-2003 has filed this case before the Forum, just to misguide the Forum. In addition, a “complaint” against the assessment made by the assessing Officer U/s.126 or against offences committed U/s.135 to 140 of the Electricity Act-2003 is not maintainable before a Consumer Forum.
4. Though sufficient opportunities were given to O.P No.4 for his appearance, but he has neither appeared nor filed his written version in this case. The O.P No.4 is set ex-parte.
5. 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 ?
6. 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 though the Advocate for the Complainant files hazira. So, his pleading remains as it is. According to his pleading, the O.Ps issued erroneous bills of arrears of Rs.14,192/- (Rupees Fourteen thousand one hundred ninety two) only and power supply was disconnected from July-2014. The Complainant has received a spot verification report on 18.01.2014 from the O.Ps imposing fine of Rs.20,085/- (Rupees Twenty thousand eighty five) only by way of assessment for by-passing load of 1.5 K.W, but there is no inspection or verification made by the O.Ps on dtd.28.11.2013. Thus, the Complainant approached to O.P No.2 on dtd.27.03.2014 through R.T.I Act on 31.03.2014, but the O.P No.2 did not provide both provisional and final assessment order. The O.Ps have also not taken any step for revision of illegal bills amounting deficiency in service by the O.Ps, for which the Complainant has filed this case praying for correction of bill along with compensation and litigation cost. On the other hand, it has been argued on behalf of the O.Ps No.1 to 3 that on dtd.28.11.2013, the O.P No.1 and 2 made a spot verification to the premises of the Complainant in presence of the Complainant, where they have found that the Complainant was availing power supply illegally and unauthorisedly by means of inserting two numbers of extra wire cut into the incoming terminal of the energy meter and extended the power supply through the wires to a cooking heater of 1.5 K.W load and by-passing the meter. Thus, the O.Ps prepared spot verification report at the spot, where the Complainant refused to sign on it. Thereafter, basing on the spot verification report, Provisional assessment U/s.126 of Electricity Act, 2003 was prepared for an amount of Rs.21,866/- (Rupees Twenty one thousand eight hundred sixty six) only and served to the Complainant vide letter No.2146, dtd.04.12.2013. Accordingly, the final assessment has been prepared vide letter No.2276, dtd.17.12.2013 for an amount of Rs.21,866/- (Rupees Twenty one thousand eight hundred sixty six) only. The copy of spot verification report, provisional assessment order and final assessment order has been filed in the case record by the O.Ps vide Annexure-A, Annexure-B and Annexure-C respectively. But, the Complainant has neither complied the order 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.
7. 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 No.1 to 3 and on ex-parte against O.P No.4, but in the peculiar circumstances without cost.
Pronounced in the open Forum on this day i.e. the 13th day of March, 2018 given under my Signature & Seal of the Forum.