Orissa

Malkangiri

171/2014

Manohar Sarkar, S/O-Late.Sasadhar Sarkar. - Complainant(s)

Versus

Junior Engineer (Electricals) South-Co , Kalimela - Opp.Party(s)

Bijay Ku. Mahanty

12 Nov 2018

ORDER

1. The fact of the case of complainant is that being a consumer under the O.Ps. he is having electricity bearing consumer no. 713102730014. It is submitted that he had filed a consumer complaint against the O.Ps. before this Forum vide C.C. No.14/2014 which was disposed on 30.06.2018 with a direction to the O.Ps. to install at least a 63 KV new transformer free fromdefects at the locality of the complainant and ensure standard power supply within a month on receipt of the copy of order, failing which the O.Ps. are liable to pay Rs.100/- per day of default to complainant and to pay Rs. 5000/- and Rs.1,000/- as compensation and costs to him within one month from the date of judgment and the said amount be recovered proportionately  from the responsible erring officials. It is alleged that since the above direction was not complied by the O.Ps. as per his application, this Hon’ble Forum initiated execution proceeding vide E.P.No.15/2014 and the said E.P. is now sub judice. Further it is alleged that the O.Ps have entered into the house of the complainant and on force they have taken his signature in a blank paper and on 07.11.2014 he received a notice from the Op.No.2 directing him to appear before the Op.No.2 on 11.11.2014 at 10.00 A.M. to explain about the contents of the notice and imposition of Rs. 31,677/- as penalty. With other submission, he prayed for quashing of imposed penalty on him and to award Rs. 50,000/- and Rs. 5,000/- towards compensation and costs to him.
    
2. On the other hand, the O.Ps. appeared in this case and filed their joint counter denying all the allegations of the complainant, have contended that at the time of routine checking of inspection they have found that the complainant is availing the power supply tempering the meter and incoming service wire and connected load found in the premises is slow by (-) 69% and accordingly, the details of inspection and load census report was prepared in presence of complainant. It is also contended that as per section 126(1) they have issued the provisional Assessment Order for Rs.31,677/- and the same was sent to the complainant as per section 126(2) of the Electricity Act. With other contentions, showing their no liability they prayed to dismiss the case of the complainant.
    
3. Complainant has filed documents i.e. copy of notice issued by Op.No.2 and copy of provisional Order of O.P. The O.Ps. did not choose to file any documents, however, they filed certain verdicts of the Higher Forums in support of their cases. Inspite of several adjournments and repeated opportunities, the complainant did not participate in the hearing nor laid any evidence. Hence we lost every opportunity to hear from him. We have heard only from the A/R for O.Ps. who was present at the time of haring and perused the materials available on record.
    
4. It is admitted fact that the complainant was provided with the electricity connection vide electricity consumer no. 7131027300014 (C12-C-1747) and the said meter was installed inside the premises of the complainant. It is also a fact that the staffs of O.Ps. have inspected the said meter on 29.09.2014. The allegation of complainant is that the staffs of O.Ps and their vigilance squard have taken the signature of the complainant in a blank form threatening him to disconnect the power supply. If the said fact is to be taken into consideration, then why the complainant did kept silent for about two months i.e. till the date of filing of the present case without approaching / complaining the Op.No.3 and the immediate higher authority of Southco, which clearly proves that the complainant had not made any objection to the O.Ps at the time of receiving his signature in a blank form, therefore, it is clearly evident that the Vigilance Squard of Southco had been to the premises of the complainant and inspected the alleged meter and after due inspection, they took the signature of complainant in the respective papers inside his residential premises. Therefore the allegations of complainant regarding putting his signature in a blank form, is not believable. On the other hand, on further perusal of documents filed by the complainant, it is also revealed that on 29.09.2014 the Vigilance Squard of Southe had inspected the alleged meter and issued the provisional Assessment Order on 03.11.2014 vide no.34 dated 03.11.2014 alongwith the details U/s 126(2) of their Act, wherein the complainant was given an opportunity for filing of objection and hearing to be made on 11.11.2014 i.e. to say within sight days. It is also evident from the record that the complainant was though given opportunity by the opp. Parties to submit his view, but he did not choose for hearing, instead, he kept silent and filed the present case on 10.11.2014 i.e. one day before the date of hearing given to him. Hence we feel that the complainant without preferring for hearing as the opportunity was given to him by the Opp. Parties, he filed this case with an intention to obstruct the proceeding of the Opp. Parties, and that he might have indulged himself in the of electricity without using any meter and wants to protect himself by extracting the provision of section 3 of the C.P. Act. That in the case between Dr. Laxman Dass Basnsal Vrs. E.E. (op)  Division, Dakshin Haryana Bijli Vitran Nigm Ltd. and  Anr reported in 2012(1) CPR 25 (NC), Hon’ble National Commission clearly held that “A consumer who commits theft of energy by deceitful illegal means by tampering with meter cannot claim any benefit under Consumer Protection Act.”

Form the above observation and documents filed by the Complainant, it is prima facie established that only to get the protection under the provisions of Consumer Protection Act, the complainant has tried to play hide and seek game.

5. Further we have gone through the submissions of complainant regarding that he had filed one consumer complaint vide C.C. No.14/2014 which was decreed and he had filed an application for execution which was registered as E.P. 15/2014 before this forum and complainant has attracted the such fact in the present case. Hence we called for such records for our verification and found that the execution proceeding vide E.P. No. 15 of 2014 was suspended as per order no. 04 dated 03.11.2014 in Misc. Case No. 1064 of 2014 arising out of F.A. No. 589 of 2014 passed by Hon’ble State Commission, Odisha. Hence this Forum has no jurisdiction to entertain the submissions of complainant regarding the status and base of the present case.
    
6. Further the O.Ps challenges the jurisdiction of the Fora emphasizing  the provisions U/s 145 of the Electricity Act, 2003. We have carefully gone through the said provision, which clearly says that :

Section 145. Civil Court not have jurisdiction. – No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or the adjudication officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken in pursuance of any power conferred by or under this Act.

        From the above observation, it is concluded that since the present disputes relates to the provision under section 126 of the Electricity Act, as such this Forum is not having any appropriate jurisdiction for adjudication of the case and also the complainant has not come with clean hand to seek redress, hence considering the facts and circumstances, we dismiss the present case for want of jurisdiction and merits.

ORDER

               Considering the fact and circumstance of the case, the present case is dismissed for want of jurisdiction as well as on the point of merits. No order as to costs. Parties to bear their own costs.

        Pronounced in the open Forum on this the 12^th day of November, 2018.

        Issue free copy to the parties concerned.