Case No. 191/2023   

IN THE MATTER OF

Piyush Agarwal age 38 years S/o Late Mahesh Agaral  R/o Barola Jafrabad , Aligarh

                                                         V/s

1. M.D. Dakshinanchal Vidyut Vitran Nigam Ltd, Agra, Urja Bhawan-220 KV Sub Station Bye Pass Road, Agra
2. Chief Engineer Aligarh Region, Aligarh 33/11 KV Sub Station Kuarsi, Ramghat Road, Aligarh
3. Shri AKhlish Kumar, Superintendent Engineer, Electricity Distribution Circle, Buduan
4.  Executive Engineer Electricity Distribution Division III , 33 KV Sub Station Hathras Road, Sasni (Hathras)

CORAM

 Present:

1. Shri Hasnain Qureshi, President
2. Shri Alok Upadhayay, Member
3. Smt. Purnima Singh Rajpoot, Member

PRONOUNCED by Shri Hasnain Qureshi, President

JUDGMENT

1. The present complaint has been filed by the complainant before this commission for following reliefs:-

1. Op be directed to cancel the assessment amount Rs450583 raised against the complainant’s father as being wrong, illegal, without jurisdiction and not recoverable as per law.
2. Op be directed to pay compensation Rs100000 for harassment and litigation expenses Rs25000.

2. Complainant has stated that his father Late Mahesh Agrawal had applied for electricity connection of 10 BHP for private tube well at his agriculture land situated at village Susayat Kala District Hathras. Op no.2,  Agra issued a letter dated 2.5.2017 to Op no.4, Executive Engineer for regularization of the electricity connections of the persons mentioned in the said letter in which the name of complainant’s father included. Then the Op no.4, Executive Engineer issued a letter dated 6.6.2017 to the SDO for submitting the estimate for regularization of the connections of private tube wells of 10 persons including the complainant’s father. As per spot inspection made by the SDO and JE the estimate for Eclectic line Transformer and double pole was made at Rs.300000. The amount of estimate was paid and double pole and transformer were installed and the electricity line was placed. It was assured that the electricity line would be energized but the electricity line was not energized and when the complainant’s father met with the JE, he demanded Rs.100000 and the then the Op no.3 Executive Engineer Sri Akhilesh Kumar also demanded Rs.100000. On denial to pay the amount OP no.3 threatened to lodge the F.I.R. and F.I.R. was lodged. Complainant’s father complained to the S.E. Hathras through letter dated 4.1.2018 with the copy of F.I.R. Complainant’s father was not given the receipt of payment of the estimate and electricity line was also not energized. It was brought to the notice of S.E. through letter dated 30.1.2018 for initiating the enquiry in the matter. It was alleged in the F.I.R. lodged by the J.E. on 20.12.2017 that on checking of the premises of the complainant’s father, it was found that poly farming work was be done inside the premises through 25KVA Transformer placed on double pole at 11KVA line. On 5.3.2018 provisional assessment was raised on the basis of alleged checking of the premises made on 20.11.2017 and assessment was made at Rs.450533. Op no.4 communicated the assessment amount to complainant’s father through letter dated 5.3.2018 wherein 15 days’ time was given for filing representation and on the same day notice  under sec 3 was issued by OP no.4 for realization of the assessment amount. Complainant’s father made representation to OP no.2 on 12.4.2018 wherein in it was stated that process of regularization of the connection was initiated  since the month of June,2017 and F.I.R. was lodged on failure to fulfil the demand of the Executive engineer Sri Akhilesh Kumar and request was made for enquiry. The S.E. sent a letter dated 15.5.2018 to the Op no.4 containing the entire episode. The alleged inspection dated 20.11.2017 does not show that the person present at the spot had refused to sign the checking report and on refusal to sign the report the checking report was affixed on conspicuous part of the premises and the report was sent to complainant’s father by registered post. No videography was performed. The provisional assessment was not conveyed fixing date and time for personal hearing. The provisional assessment was not finalized and was not final assessment and no opportunity was given to prefer appeal U/s 127 of the Electricity Act prior to issuance of notice u/s 3. In the assessment calculation, number of hours, period and factor were not correctly applied. As the electricity line transformer and double pole were installed which suggest the payment of estimate Rs.300000 and the next step was energizing of the connection. The letter dated 2.5.2017 issued by OP no.2 for regularization of electricity connection of 10 persons implies that the connection was inexistence which was not energized without illegal gratification made by OP no.4 and the allegations made in the F.I. R. regarding theft of electricity are falsified and appears to have been made with some motive. The allegation of poly farming is not tenable because the poly house farming carried on for livelihood by the consumer, no offence is made of unless it is carried out for commercial purpose. The alleged assessment amount was raised on 5.3.2018 and since then realization of said amount was not continuously made during the life of complainant’s father and thereafter his death on 7.12.2020 and now it became time barred. The criminal case u/s 135/136 Electricity Act has abated and there is no question of conviction of complainant’s father  in the criminal case by the special court and there is no occasion of determination of civil liability in terms of money for alleged theft U/s 154(5) of the Act. There is no question of payment of the alleged amount which is subject to final determination by the special court as per clause 8.2(x) (g) of the Code, 2005 and is liable to be written off. Complainant was the member of family of his father and complainant being the beneficiary is the consumer and Ops have not rendered services as per law and committed deficiency in service.                          
3. Ops no.1, 2 and 4 stated in WS that the complainant is not consumer and the commission has no jurisdiction to decide the case. Complaint is time barred. Complainant is liable to pay amount Rs 450533 as  electricity dues against his father and the complainant being the legal hire is liable to pay the alleged amount. The F.I.R. was lodged by the complainant’s father. Ops have admitted in the letter dated 5.3.2018 whereby 10 BHP private tube well connection was sanctioned and it is also admitted that The S.E has sent a letter dated 15.5.2018 to the office of OP no.4. The photography and videography of the electricity theft was performed. The assessment was sent to the complainant’s father and full opportunity was given for representation. Notice u/s 3 was sent to complainant’s father. The letter dated 2.5.2017 sent by the higher officer to the office of OP no.3 is admitted.
4. Op no.3 stated in WS that he was posted as Executive engineer at the time and the complainant has wrongly impleaded him in personal capacity which is violation of section 168 of the Act, 2003 and his implication by name is against the provisions of law. Complainant is liable to be prosecuted U/s 38.10 and 38.11 of the Act, 2019. Complainant’s father had never met with him and no demand of Rs100000 was made by him. The other statements made in WS by the Op no.4 from para no.1 to 34 are supported by him. He has further stated that he had discharged the function in good faith. Complainant’s father was involved in electricity theft and therefore he has been falsely implicated due to enmity.   

5. Complainant has filed his affidavit and papers in support of his pleadings. Ops have also filed their affidavits and papers in support of their pleadings.

6. We have perused the material available on record and heard the parties counsel.

7. First question of consideration before us is whether the complainant is to any relief.
8. Complainant has filed letter dated 2.5.2017 annexure no.1 issued by Op no.2 Chief Engineer to Op no.4 Executive Engineer for regularization of electricity connections of the persons mentioned in the letter included the complainant’s father and in compliance of the said letter Op no.4 sent a letter dated 6.6.2017 annexure no.2 for submitting the estimate for regularization of the tube well connection. SDO and JE submitted the estimate Rs.300000 for installation of Eclectic Line, Transformer and double pole and the electric line, Transformer and double pole were installed. Thereafter next step was for energization of the connection. Complainant has alleged that the then Executive Engineer OP no.3 and the then JE each demanded Rs.100000 for energisation of the connection and on denial to fulfil the demand they threatened to lodge the FIR. Ops have denied the allegation of demand. Complainant has filed complaint dated 4.1.2018 annexure no.3 made to S.E. in which it was mentioned that the estimate amount Rs.300000 was paid and transformer with the line were installed but the demand of Rs.100000 was made and on refusal the transformer was removed and threat to lodged the FIR was made. Complainant’s father requested in the letter for vigilance enquiry in the matter and later on complainant’s father again made the complaint to S.E. on 30.01.2018 annexure no.5 and request was again made for vigilance enquiry. The S.E. sent a letter dated 15.5.2018 annexure 9 to the Executive engineer Op no.4 regarding regularization of the tube well connection and it was pointed out that in pursuance of checking report dated 20.11.2017 provisional assessment was made after 105 days on 5.3.2018. The S.E. did not enquire into the allegations made by the complainant’s father. Complainant’s father  along with other persons were involved in the matter of regularization of tube wells connections and FIR was lodged on the basis of checking report dated 20.11.2017 in which it was mentioned that the person present at the spot told his name Mahesh Agrawal but nothing was said as to how the electric line, transformer and double pole were installed and connection was sanctioned. It is evident that transformer and electric line were in existence on 20.11.2017. It means that the electric line and transformer were installed as alleged which were found at the time of alleged checking. The complainant has alleged that the demand of illegal gratification was made for energisation of the electric line and complainant’s father made complaints to S.E. but no enquiry was setup in the matter. The circumstances of the case reveal that there was demand of illegal gratification which could not be fulfilled and FIR was lodged. The circumstances are stated hereinafter. It is alleged that the rules laid down in UP Electricity Supply Code.2005 were not followed in the process of alleged checking. There is violation of clause 8.1(a) wherein videography of the process of checking is must. Ops have filed no record of videography or photography. In view of law laid down in the case DHBVNL V/s PLA decided on 1.4.2014 by Hon’ble Punjab and Hariyana High Court, the checking report not in accordance with the rules is not sustainable and the assessment made on such a checking report was found not recoverable.  Assessment was made on 5.3.2018 and the notice U/s 3 was issued on the same day on 5.3.2018. It means that the consumer was not provided opportunity of personal hearing as provided the under the law against the provisional assessment. Thus the assessment raised on 5.3.2018 cannot be said to be final assessment. Moreover the checking was made on 20.11.2017 whereas assessment was made after 105 days on 5.3.2018 which raises the circumstances of unfairness. Thus the recovery against the assessment made on 5.3.2018 is not legally sustainable. It has been held in the case Som Pal Singh v/s State of U.P. decided on 6.4.2016 by Hon’ble Allahabad High Court that the recovery certificate cannot be issued against provisional assessment. The alleged process of checking is not fair and entire case appears fabricated. It is laid down in the case Ashok Kumar V/s State of Up 2008 (6) ADJ 660 (DB) Allahabad that the violation of rules in case of electricity theft which were to be followed provided by the law is the abuse of process of law. The assessment based on such a checking report is not valid in law and is not legally recoverable. It is also important to note that the assessment was raised on 5.3.2018 and it is not clear from the side of the Op that the said amount was under the process of continuous   recovery as per law and is hit by the provisions of section 56(2) of the Electricity act,2003 read with clause 6.15(b) of the code ,2005. It is also to be noted that the complainant’s father has died and criminal case against him has abated. There cannot be any final determination of the liability  by the special court U/s154(5) of the Electricity Act, 2003  and the assessment amount being subject to the final determination by the special court as provided under clause 8.2(x) (g) of the code,2005 cannot be made legally recoverable. We are of the view that the alleged assessment amount is not recoverable and the allegations made by the complainant’s father are of such a nature that it requires an enquiry in the matter by the higher officers of OP no.1 against the OP no.3 and other officials involved in the matter.                  
9. The question formulated above is decided in favor of the complainant.
10. Second question of consideration before us is whether the District Commission has jurisdiction to hear and decide the present case?

11. Complainant is the resident of the place within the territorial jurisdiction of the District Commission Aligarh and therefore District Commission Aligarh is vested with the jurisdiction to hear and decide the present case in view of Section 34(2) (d) of the Consumer Protection Act,2019 which provides that a complaint shall be instituted in a District commission within the Local Limits of whose jurisdiction the complainant resides. So far as the competency of the District Commission to hear and decide the present case is concerned, Section 100 of the Consumer Protection Act, 2019 provides that the District Commission is a forum to decide the dispute in addition to other fora provided in other statutes and thus the provisions of clause 7.7 (d) and clause 7.10 of the UP Electricity Supply Code 2005 do not bar the competency of the District Commission to hear and decide the present case.
12. The question formulated above is decided in favor of the complainant.
13.  Third question of consideration before us is whether the pleas raised by the OP no.3 bar the jurisdiction of District Commission to hear and decide the present case?
14. OP no.3 has raised the plea that the complainant has violated the provisions of the section 168 of the Electricity Act which gives the protection of the action taken in good faith by the officer. Complainant has pleaded the allegations of illegal gratification against the op no.3 for  energisation of the connection. Complainant has supported his  plea with the affidavit and there are documentary evidence like correspondences through letters wherein allegations of illegal gratification have been stated. In view of allegations of illegal gratification against the OP no.3 and other officials, it cannot be said that the op no.3 is entitled for protection under section 168 of the Act, 2003.  OP no.3 has also taken the pleas of violation of the provisions of section 38(10)  of the Consumer Protection Act, 2019. In view of evidence filed by the complainant in support of allegations made against the OP no.3 and other officials cannot be treated as false allegations and therefore there arises no question of application of the provisions of section 38(10) of Act,2019. Complainant has filed this complaint in his individual capacity and therefore provisions of order 1 rule 8 CPC are not applicable. Consequently section 38 (11) of the Act, 2019 is not applicable.   

15. The question formulated above is decided in favor of the complainant.
16.  Forth question of consideration before us is whether the complaint is time barred.
17. Complainant has pleaded the grounds for condolation for delay U/s 69(2) of the Act, 2019 and the Commission has admitted the compliant condoning the delay having given consideration to the grounds of the delay. Thus the complaint not time barred.
18. The question formulated above is decided in favor of the complainant.
19. We hereby direct the Ops to cancel the amount Rs. 450583 raised against the complainant’s father as being wrong and illegal and not recoverable as per law. Ops are also directed to compensation Rs50000 and litigation expenses Rs.25000. It is expedient in the fact and circumstances of the case that the copy of judgment be sent to op no.1 to enquire into allegations of involvements of the op no.3 and other officials in illegal gratification.
20. Ops shall comply with the direction within 30 days failing which Ops shall be prosecuted for non-compliance in accordance with section 72 of the Act for awarding punishment against him.
21. A copy of this judgment be provided to all the parties as per rule as mandated by Consumer Protection Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

File be consigned to record room along with a copy of this judgment