BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

F.A. 508/2008 against C.C.  95/2007,   Dist. Forum, Ranga Reddy

Between:

Jayantilal Goyal

S/o. Late Mamchand Goyal

Age: 73 years,

R/o. 21-2-648, Urdu Shariff

Hyderabad-500 002.                                    ***                         Appellant/

                                                                                                Complainant.     

.                                                                  And

The Asst. Engineer

A.P. State Electricity Board

Mamidipally village-500 005.

Ranga Reddy Dist.                                      ***                         Respondent/       

                                                                                                OP

Counsel for the Appellant:                          M/s. V. K. Sanghi

Counsel for the Resp:                                  Served.

CORAM:

                         HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

                                                             &

  SMT. M. SHREESHA, MEMBER

WEDNESDAY, THIS THE SIXTH DAY OF OCTOBER TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                Appellant is unsuccessful complainant.

2)                The case of the complainant in brief is that  his service connection bearing No. 59-2714 was disconnected by the respondent electricity board alleging that  an amount of Rs. 30,746/- was due and the staff of the electricity board took away the meter without informing the meter reading on 25.8.2005.   On that he issued notice for which the respondent did not even give  any reply.     In fact no bill was issued claiming  the due amount.   The meter  was in the name of his elder brother   Sri Prahalad Rai Goyal,  however, the property fell to his share.    Theft was taken place  on 22.8.2005 committing theft of  machinery parts where he earlier ran an industry  under the name and style of  Universal Industries.  However, since last several years  he stopped carrying  any commercial activity.   The electricity is essential  and therefore he prayed for restoration of the power supply  by fixing the meter, cancellation of  the bills, besides compensation of  Rs. 10,000/-  for mental agony and costs. 

3)                 The electricity board  though engaged an advocate did not file written version  nor contested the matter.

4)                 The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A25 marked. 

5)                 The Dist. Forum after considering the evidence placed on record opined that the Ex. A22  copy of the electricity bill discloses that  the cheque issued   was bounced.  He could not prove that payment was made relating to the period within time.    At any rate by virtue of  orders of this Commission   in F.A. 436/2006  the electricity supply was restored.  In regard to dues payable,  the parties have to work out.  Accordingly the complaint was disposed of  holding that the respondent  electricity board  restore the electricity supply with a liberty to withdraw  Rs. 15,000/- which has been in deposit and to be adjusted towards electricity charges due  within two years  and directed each party to bear their own costs. 

6)                 Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.    It ought to have seen that the respondent did not dispute the facts pleaded. 

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                It is an undisputed fact that the electricity service connection stood  in the name of   one  Sri Prahalad Rao Goyal.  On 24.4.2006  under Ex. A9 he said to have given public notice  alleging that the premises which was  having the above said electricity service connection  allotted to his brother,  the appellant herein,  “who was running  M/s. Universal  Industries” at the above premises.    In January, 2006 the electricity board  issued Ex. A10  informing  Sri Prahalad Rao Goyal,   that the service connection was disconnected on 25.8.2005 for  non-payment of dues mentioning that  on  31.12.2005   the premises was inspected an amount of Rs. 32,693/-  was due.  Re-connection would be given  on payment of arrears.   It may be stated  herein that    in his complaint while admitting  that he was running M/s. Unviersal Industries   in the premises, however stated “ since past several years   there was no commercial activity”.  He alleged that there were no dues.  

9)                Except asserting  these facts he did not file any document  to show that the property fell to his share.   Neither the complainant nor his brother filed the receipts to show that  there were no dues and that the entire amount  as on 24.2.2006 (Ex.A9) was  paid.   It looks as though the license of  M/s. Universal Industries  was not renewed after 2000 – 2002 (vide Ex. A5).   If that were to be true  there is no reason why  he alleged that they were running an industry in the said premises vide Ex. A9.    Despite the fact that notice was issued  demanding the amount,   the complainant did not  implead his brother  to explain as to how the demand notice was made when he paid the amounts.   No receipt whatsoever was filed  in order to prove that  minimum electricity charges were paid till disconnection.   It may be stated herein that the  premises for which service connection  was taken,   is not a residential premises.  Evidently the brother of the complainant  was running an industry. According to him staff of the electricity board  visited the premises on  25.8.2005  disconnected the supply alleging  that an amount of Rs. 30,746/- was due.  The complainant could not prove  that  any notice was issued to the electricity board stating that the premises was closed and that there was no need for them to use  electricity.  The complainant could have filed uncontroverted documents  like  Sales Tax returns,  labour register etc.   to prove despite closure of  the premises  they have not been using  any electricity even for maintenance or for security reasons.    Necessarily it had to  pay minimum electricity charges  as demanded by the electricity board which were mounted up.    Since the complainant alleges that  while disconnecting the supply,  meter number, meter reading their watchman signature was not obtained and disturbed the existing meter,   he ought to have filed the affidavit evidence  of the watchman   or such other evidence to show that  the meter was taken away though the notice was issued by the complainant.    The electricity board  had categorically stated  in Ex. A10 that the meter was very much in the premises and it was not taken away.  What all they did was disconnection of power supply for non-payment of dues. 

10)               The Hon’ble Supreme Court in  Paschimanchal Vidyut Vitran Nigam Ltd. Vs. M/s. DVS Steels & Alloys Pvt. Ltd. reported in  2009 (1) SCC 210   considered a case where  the purchaser  had sub-divided the plot  where  question of permissibility of electricity dues could be  collected form the purchaser of the property was in question.    After considering the Electricity Act, 2003  and in the light of  electricity supply code,  the  Supreme Court had categorically  observed : 

8.       The appellant submitted that if a consumer disposed of its premises, or any portion thereof, without clearing the dues in regard to the electricity supplied to its premises, any transferee seeking fresh electricity connection or supply of electricity to the premises, will have to clear the electricity dues of the previous occupant. The appellant referred to sub-clauses (g) and (h) of clause 4.3 of the Electricity Supply Code, which is extracted below :

“(g)     Where the property has been legally sub-divided, the outstanding dues for the consumption of energy on such premises, if any, shall be divided on pro-rata basis.

(h)      A new connection to such sub-divided premises shall be given only after the share of outstanding dues attributed to such sub-divided premises, is duly paid by the applicant.  Licensee shall not refuse connection to an applicant only on the ground that, dues on the other portion(s) of such premises have not been paid, nor shall the licensee demand record of last paid bills of other portion(s) from such applicants.”

The appellant submitted that similar provisions existed in the relevant regulations of the Board even before the said Code came into force.

9. The supply of electricity by a distributor to a consumer is ‘sale of  goods’. The distributor as the supplier, and the owner/ occupier of a premises with whom it enters into a contract for supply of electricity are the parties to the contract. A transferee of the premises or a subsequent occupant of a premises with whom the supplier has no privity of contract  cannot obviously be asked to pay the dues of his predecessor in title or possession, as the amount payable towards supply of electricity does not constitute a ‘charge’ on the premises. A purchaser of a premises, cannot be foisted with the electricity dues of any previous occupant, merely because he happens to be the current owner of the premises. The supplier can therefore neither file a suit nor initiate revenue recovery proceedings against a purchaser of a premises for the outstanding electricity dues of the vendor of the premises, in the absence of any contract to the contrary.

10.     But the above legal position is not of any practical help to a purchaser of a   premises. When the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply  of electricity, the distributor can stipulate the terms subject to which it would supply electricity. It can stipulate as one of the conditions for supply, that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the electricity supply is restored to the premises or a fresh connection is provided to the premises. If any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations. If the rules are silent, it can stipulate such terms and conditions as it deems fit and proper, to regulate its transactions and dealings. So long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable, courts will not interfere with them.

11. A stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary. In the absence of such a stipulation, an unscrupulous consumer may commit defaults with impunity, and when the electricity supply is disconnected for non-payment, may sell away the  property and move on to another property, thereby making it difficult, if not impossible for the distributor to recover the dues. Having regard to the very large number of consumers of electricity and the frequent moving or translocating of industrial, commercial and residential establishments, provisions similar to clause 4.3(g) and (h) of Electricity Supply Code are necessary to safeguard the interests of the distributor. We do not find anything unreasonable in a provision enabling the distributor/supplier, to disconnect electricity supply if dues are not paid, or where the electricity supply has already been disconnected for non-payment, insist upon clearance of arrears before a fresh electricity connection is given to the premises. It is obviously the duty of the purchasers/occupants of premises to satisfy themselves that there are no electricity dues before purchasing/occupying a premises. They can also incorporate in the deed of sale or lease, appropriate clauses making the vendor/lessor responsible for clearing the electricity dues up to the date of sale/lease and for indemnity in the event they are made liable.

11)               Coming to the facts it is not known  when the property was allotted to the complainant.  There was  no document evidencing  such allotment and   whether there was a clear cut understanding  as to the dues payable  on the premises. 

12)               Simply because the proceedings under the Consumer Protection Act  are summary in nature it does not dispense with proof of the averments  made in the complaint.    What all it dispense with is proof as contemplated under the Indian  Evidence Act.  The complainant for the reasons best known  did not let  in any evidence to prove any of the facts i)  that the property fell to his share ii)  that there were no dues at the time of allotment of property.    Unless  these basic facts  are proved it is  not sufficient if  the complainant alleges that there were no arrears on the premises, more so, when it belongs to his brother who ran M/s. Universal Industries in the said premises.    The complainant ought to have  taken the  receipts for the amounts that were paid by his brother  in order to show that there were no dues.    Without establishing payment of dues till such time the industry was running   by his brother would undoubtedly show that the complainant,  on the ground that  he was a beneficiary,  filed the complaint to get over proof of any of these facts.   When the commercial establishment  has fallen to his share, undoubtedly all these precautions  had to be taken  to find out whether  there were any dues.    Simply  by alleging that there were no dues  it does not mean  that the complainant had proved that he was not liable to pay any amount.  The complainant  could not prove any of the facts,   importantly that the meter  was taken away.   When the parties are running  an industry  minimum precautions  would undoubtedly be taken  viz., intimating the closure of the unit,  not utilizing the electrical energy  and subsequent mutation  in  his  name.   When none of these facts  was  proved, we are unable to  appreciate that the electricity board was unjust in  disconnecting the power supply.  The complainant could not prove any of the facts alleged  by him. 

13)               By virtue of  interim orders of this Commission  power connection was restored on deposit of Rs. 15,000/-.  The electricity board  is entitled to withdraw the said amount.  The board is also entitled to collect  the dues as quantified by them and also entitled to take appropriate action for collection of amounts.    This order would not give the complainant to continue the power supply without payment of dues  or any coercive action  taken by the electricity board  in this regard. 

14)               In the result the appeal is dismissed with costs computed at Rs. 2,000/-.

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

   Dt.  06.  10.   2010.

*pnr

“UP LOAD – O.K.”