CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 9th day of November, 2015
PRESENT : SMT. SHINY.P.R, PRESIDENT
: SMT. SUMA. K.P, MEMBER Date of filing : 2/04/2013
CC /66/2013
Sambathkumar,
S/o.Kandunni,
Chakkuparambil House, : Complainant
Marutharoad, Palakkad
(By Adv.N.Anoop Kumar)
Vs
1. Kerala State Electricity Board,
Represented by
The Executive Engineer,
Kerala State Electricity Board,
Electrical Division, Kanjikode
(By Adv.Smt.T.Reena) : Opposite parties
2. The Assistant Engineer,
Kerala State Electricity Board,
Electrical Section, Kanjikode
(By Adv.Smt.T.Reena)
3. The Assistant Executive Engineer,
Kerala State Electricity Board,
Electrical Sub Division, Kanjikode
(By Adv.Smt.T.Reena)
4. The Executive Engineer,
Kerala State Electricity Board,
Electrical Division, Kanjikode
(By Adv.Smt.T.Reena)
O R D E R
By Smt. Suma. K.P, Member,
The case of the complaint is as follows:
The complainant is a farmer and for the purpose of the agriculture he has availed the electricity connection with consumer No.11786-0 under the Electrical section Kanjikode. It is submitted that the electricity connection availed by the complainant is exclusively used for agricultural purpose and he has availed another connection for his residential purpose. On 6/12/2012 an inspection was conducted by the APTS, Palakkad in the power house of the petitioner and alleged misuse of the power connection availed for agricultural purposes. It was alleged that the water pump issuing the connection was not only used for agricultural purpose but also used for residential purposes. The allegation was that the water pump is used for pumping water into a well constructed with concrete rings and having 5 feet depth and from there the water is further pumped using another motor pump to the tank fixed on the top of the residential building of the complainant. It was also alleged that the complainant has committed misuse of electrical energy by using the electrical energy obtained in a subsidy rate for residential purposes. The complainant alleges that the allegation of misuse of energy is absolutely wrong, incorrect, improper and ill-conceived. In order to facilitate proper flow of water to the agricultural field several channels are made through the property. The water is pumped to the said channels using PVC pipes which are laid beneath the soil. There is a small well of 5 feet depth which gets filled by oozing of water in to the said well through soil when the channels in the property is filled with water. This is a natural process as when any land is irrigated the water will get absorb to the soil and it oozes into neighboring well if any. The concrete rings of the said well is not so intact and has several holes in it through which water will be filled up soon. From this well water is pumped for domestic purpose. The motor used for taking water from the well is operated with energy connection availed under the domestic tariff and as such there is no misuse of electrical connection as alleged. The complainant is a small farmer who does small scale agriculture and is unable to do any large scale agricultural activities. The opposite parties issued a provisional penal bill of Rs.2,772/- and the complainant was constrained to remit the same under protest to avoid disconnection of electricity connection. The bill was issued under LT-IA, a new tariff without hearing the complainant and without any prior intimation. No final bill was issued thereafter. Apart from that the complainant was served with another demand bill dtd.10/12/2012 for Rs.28,386/- alleging that the government had not given the agricultural subsidy amount to the KSEB in respect of the energy connection of the complainant. The complainant was again constrained to remit the same under protest for the only reason that entire agricultural operation of the complainant will be ruined unless proper water supply is given in time. On enquiry it is understood that the Govt. had already given subsidy amount to the KSEB in respect of energy usage of the complainant. Hence the opposite party has adapted an unfair trade practice whereby they have unlawfully enriched by collecting amount from the complainant. The above act of the opposite parties amounts to unfair trade practice. The complainant is entitled for refund of the said amount. On 15/1/2013 opposite party issued another bill demanding an amount of Rs.6,541.65 under Tariff LT-4 demand is based under industrial tariff whereas connection is availed under LT-5. The complainant was never informed regarding any change in the tariff nor was he heard before the change in tariff again the complainant remitted the amount under protest. Again he submitted a protest letter along with the payment but the officers of the opposite party did not accept the same. Hence he sent the letter to the opposite party through registered post. Another bill was issued on 15/2/2013 for an amount of Rs.5,072/- it was also paid under protest. Aggrieved by the issuance of the above bills, he had approached before this Forum seeking an order directing the opposite parties to revise the change of tariff effected to the complainant’s connection and to provide energy to the complainant under LT 5 tariff and to refund the amounts collected under the LT 4 tariff and also to direct the opposite parties to pay an amount of Rs.50,000/- as compensation for mental agony and sufferings caused to him. From LT-IA from LT5 following the inspection conducted in the premises as the connection is specifically used for agricultural purposes.
The notice was issued to the opposite parties for appearance. Opposite parties entered appearance and filed their respective version stating as follows. The complaint is not maintainable either on law or facts. The casue of this complaint is a provisional bill issued by the assessing officer to the complainant u/s.126 and Sec.135 of Electricity Act 2003, which was necessitated upon inspection conducted by the opposite parties in the complainant’s premises and detection of unauthorized use of electricity. Section 145 of the electricity Act 2003 states thus” Civil Courts not to have jurisdiction-no civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which as Assessing Officer referred to in Sec.126 or an Appellate Authority referred to in Sec.127 or the Adjudicating Officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this act.” The matter of this complaint being a provisional bill issued by assessing officer u/s.126 of this Act, this complaint is not maintainable before this Forum. The cause of the complaint is a provisional bill issued by the Assessing Officer to the complainant u/s.126 and Sec.135of the Electricity Act 2003, which was necessitated upon inspection conducted by the opposite parties in accordance with the provisions relating to search and seizure of the code of criminal procedure 1972 on complainant premises and unearthing of unauthorized use of electricity, which is a criminal offence u/s 135 (1)(1)(e) of the Electricity Act 2003. The matter in question is criminal in nature. That the complainant thereafter utilized the compounding provision u/s 152 of the 2003 Act and escaped from Criminal Prosecution by paying compounding fee does not take away the criminal nature of the Act. Therefore the matter in question is criminal in nature and hence this complaint is beyond the jurisdiction of this Forum. It is also submitted that the Electricity Act 2003 has provided ample inbuilt remedies to any consumer furnished with a provisional bill u/s.126. If however the consumer is aggrieved by the provisional bill it is entitled to file its objection before the Assessing Officer against the provisional bill. The Assessing Officer upon receipt of such an objection is under statutory obligation to call the consumer for a personal hearing, and thereafter issue a final order of Assessment based on his evaluation of the correctness of the objections raised. Even after the issuance of the final order, the consumer is still aggrieved, he can file an appeal with the Appellate Authority u/s.127 after remitting statutory dues. The Appellate Authority is under obligation to hear the consumer and disposed the appeal. The complainant did not raised any objection to the bill, and paid the bill in full straightaway without filing any objection, thus accepting the assessment as deserving and correct. Therefore there is no deficiency of service and unfair trade practice on the part of the opposite party. The complainant has not made the Secretary, KSEB, Thiruvananthapuram as a party to this complaint and as such the complaint is bad for non-joinder of necessary parties. It is true that the complainant was issued with a three phase electric connection bearing Con.No.11786-0 under electrical section, Kanjikode for running a 3 hp motor pump for exclusive use of irrigating the agricultural land of the complainant. The date of connection is 30/8/2006. It is submitted that the KSEB provides electricity for such agricultural connection at a very subsidized price of 65 paise per unit. Such heavy subsidy is given at the directions of the govt, so as to support bonafide farmers. Even the subsidized price is not paid by the farmer, but by the Krishi Bhavans. Therefore the farmer gets the electricity absolutely free of cost. The only pre conditions applied on the farmer is that electricity supplied for agricultural purpose shall be used for only agriculture and not for any other purpose. The electricity charges of the complainant in the above connection was being paid by the Marutharode Krishi bhavan and hence the complainant was enjoying the entire electricity being used by the complainant from the above connection, absolutely free of cost.
Being so, an APTS squad of the opposite parties conducted a surprise inspection on the complainant’s premises on 06/12/2012 at about 3 p.m. A squad noted that when water is pumped using the 3 hp motor pump which runs using free electricity, apart from irrigation, the water is pumped in to a 5 feet deep, concrete ring – walled, and concreted bottomed, round shaped tank, which is described as a “well” in the site mahazar. The water so pumped and collected in this well is thereafter pumped to overhead tanks installed on top of two houses situated inside the property belonging to the complainant using a ½ hp motor. The water so stored in these overhead tanks is being used by the inmates of those two houses for domestic purpose. Thus the complainant is misusing the free agricultural connection for domestic purpose. These two houses have no other alternate source of water apart from the above 5 feet deep well. Upon detecting such misuse, which is a criminal offence u/s 135 (1)(1)(e), the opposite parties had no other option than to take appropriate action against the complainant as stipulated by 2003 Act. In compliance of these provisions, a site mahazar was prepared by the opposite parties. Opposite parties disconnected the power connection under instant notice. A provisional assessment bill amounting to Rs.2,722/- was served on the complainant on 7/12/2012 as per section 126 of the act. The complainant remitted the provisional assessment without making any objection. A compounding fee of Rs.12,000/- was also remitted by the complainant. Thereafter the complainant requested for reconnection. The complainant was informed that pending removal of this unauthorized arrangement; reconnection will be given, not in agricultural tariff but the appropriate tariff for pumping water for non agricultural purposes. It was submitted that the complainant has not approached the opposite parties with such a claim. The complainant has not filed any request for tariff change either. It was also submitted that the opposite parties have no objection in changing the tariff of the complainant to LT-IV agriculture, prospectively, if the complainant removes the unauthorized arrangements and files a proper application with the opposite parties for a tariff change. The complainant was also informed that since the tariff is misused by the complainant which has resulted in change of tariff of the complainant the Krishi bhavan will no longer pay the arrears, and hence the complainant has to pay the arrears. The opposite party further submitted that the statement of the complainant that he did not pump water in to the 5 feet deep well, and that the well got naturally filled with water oozing in from the surrounding is factually incorrect. The complainant has installed a grant underground network of piping using 1 ½ inch and higher size PVC pipes and valves inside its entire land. The entire water pumped by the agriculture pump is distributed inside the complainant’s property by such underground pipes only and there is no open channel carrying water. Hence the entire arrangements caused by the complainant for distributing this water is invisible. The area surrounding the well was barren and dry at the time of inspection. Therefore there was no possibility of water oozing in as claimed. Eventhough this storage facility is described as a “well” in the site mahazar it is only a underground water storage tank or pit which is cylindrical in shape and is situated between the two houses and there was no agricultural activity in a radius of 10 meters surrounding the area at the time of inspection. The tank is formed by placing concrete rings made of pre-formed concrete rings made up of 20 mm broken granite in cement mortar. The bottom of this tank is concreted plainly, and the joints between the concrete rings had been meticulously pointed with cement mortar, so as to prevent passage of water through these joints. The tank is very shallow, and it only about 5 feet in depth. This depth is insufficient for any oozing of water from the surroundings. For any natural oozing of water during summer, that too for a well which is the soul source of water of the 2 houses, the depth of the well has to be atleast 15-20 meters feet, and the walls have to be pours, so as to allow passage of water freely in to the well. The construction characteristic of a tank amply shows that this tank is intended only as a storage device to hold water pumped in to it, and not as a well with water oozing in naturally. The opposite parties further submits that upon reading the complaint, along with the application by the complainant for appointment of a commission for field visit, they believe that the complainant has altered the physical features of the land after the date of inspection to foist false evidence. It is also believed, upon reading the complaint, that it has converted the barren area surrounding the well in to some sort of cultivation, has caused water channels surrounding the pit and created holes in the concrete rings in line with its statements in the complaint to show to such commission that its tank is filled with water from the surroundings. The opposite parties have acted as per law and have never indulged in any unfair trade practice as alleged. There is no deficiency of service on the part of the opposite parties. The complaint is not genuine and there is inordinate delay on the part of the complainant in filing the complaint. Hence the complaint has to be dismissed.
Complainant had filed IA 123C/13 for appointment of an emergent commission. Counter was filed from the part of the opposite parties. The application was allowed. Commissioner has inspected the property and filed a detailed report. Opposite parties filed objection to the commission reports. Both the complainant as well as opposite parties filed their respective chief affidavits. Opposite parties filed application to cross examine complainant and also application for examination of witnesses. Opposite parties had also filed an application for re-visit of the commissioner for noting the points omitted. Commissioner re visited the property and an additional report was also filed. Complainant filed application for amendment of the complaint. Petition was dismissed to file a fresh application for production of a document. Accordingly fresh IA was filed for amendment. Application was allowed and amendment was carried out. Opposite parties filed additional version. Complainant filed additional affidavit. No additional affidavit was filed by the Opposite parties. Ext.A1 to A7 series was marked from the part of the complainant. Ext.B1 to B5 marked from the part of the Opposite parties. Commission reports were marked Ext.C1 and C2. Complainant was cross examined as PW1. Witnesses of the opposite parties was examined as DW1 and DW2. Complainant filed application for examination of the commissioner. Commissioner was examined as CW1. The evidence was closed and the matter was heard.
The following issues are to be considered.
- Whether the complaint is maintainable?
- Whether there is any deficiency of service from the part of opposite
Parties?
- If so, what are the reliefs and costs?
ISSUES 1,2 &3
The counsel for the opposite parties had brought into the notice of the Forum that u/s.145 of the Electricity Act 2003 states thus” Civil Courts not to have jurisdiction-no civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which as Assessing Officer referred to in Sec.126 or an Appellate Authority referred to in Sec.127 or the Adjudicating Officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this act.” They had also brought in to the notice of the decision reported in 2013 KHC 4477 Supreme Court which reads as under: In case of inconsistency between Electricity Act and Consumer Protection Act, provisions of Consumer Protection Act would prevail – That would not ipso facto vest Consumer Forum with power to redress any dispute with regard to matters which do not come within the meaning of ‘service’ as defined under S.2(1) (o) or ‘complaint’ as defined under S.2(1)(c) of the Consumer Protection Act, 1986 – Electricity Act, 2003.
We find that the entire object and reasons of Consumer Protection Act is not crossed over by the Electricity Act, 2003 and whenever such situation arise the Electricity Act, 2003 has left the option open for the consumer to take recourse under other Laws. The act of indulgence in “unauthorized use of electricity” by a person, as defined in clause (b) of the Explanation below S.126 of the Electricity Act, 2003 neither has any relationship with “unfair trade practice” or “restrictive trade practice” or “deficiency in service” nor does it amounts to hazardous services by the licensee. Such acts of “unauthorized use of electricity” has nothing to do with charging price in excess of the price. Therefore, acts of person in indulging in ‘unauthorized use of electricity’, do not fall within the meaning of “complaint”, as we have noticed above and, therefore, the “complaint” against assessment under S.126 is not maintainable before the Consumer Forum. A ‘complaint’ against assessment made by Assessing Officer under S.126 or against offences committed under S.135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Forum. In the light of the above observation issue no.1 is answered accordingly and we are of the view that the above complaint is not maintainable before this Forum. Hence the above complaint is Dismissed without any cost.
Pronounced in the open court on this the 9th day of November, 2015.
Sd/-
Smt. Shiny.P.R
President
Sd/- Smt. Suma. K.P
Member
A P P E N D I X
Exhibits marked on the side of complainant
Ext.A1- True Copy of Site Mahazar Dtd.06/12/2012
Ext.A2-Provisional Electricity Bill Rs. 2722/- for misuse of energy LT V to IA dtd.07/12/2012 (Original)
Ext.A3-True copy of Installment plan (Demand notice) of KSEB, Kanjikode dtd.10/12/2012
Ext.A4 -Electricity bill of Rs. 6541.65 dated 15/01/2013 (Original)
Ext.A5 – Protest letter of complainant dtd. 06/02/2013 to Asst.Engineer, Kanjikode
Ext.A6-Electricity bill Rs. 5072.65 dated 15/02/2013 (Original)
Ext.A7 series – Electricity bill and receipts
Ext.C1 & Ext.C2 - Commission Report (Adv.M.J.Vince)
CW1- Adv.M.J.Vince
Exhibits marked on the side of opposite party
Ext.B1- Provisional Electricity Bill Rs. 2,722/- for misuse of energy LT V to IA
dtd.07/12/2012 (Photocopy)
Ext.B2- True Copy of Site Mahazar Dtd.06/12/2012 (Photocoy)
Ext.B3- Copy of the disconnection notice issued by the OP on the complainant
dtd.06/12/2012
Ext.B4- Copy of the application admitting the offence and seeking compound the
offence by the complainant dtd.07/12/2012 to Executive Engineer, KSEB,
Palakkad
Ext.B5- Copy of the Kerala Gazette No.1454 dtd.28/06/2010
Witness marked on the side of complainant
PW1-Sampathkumar.K
Witness examined on the side of opposite parties
DW1-Rajesh.K.R
DW2-Sreeram.P.V
Cost Allowed
No cost allowed.
