Shri B. Mukhopadhyay, President.   

This is an application u/s.12 of the C.P. Act, 1986.

             Allegation of the complainant is that as per prayer of the complainant CESC installed a new meter to the complainant’s premises being Consumer No.38027154008 having meter No.3582992-K and 3195973-K to the complainant and as per monthly bill complainant had been paying the monthly bill to the CESC and there is no outstanding bill in the name of the complainant.  But surprisingly, these officers of the CESC came to the complainant’s premises in the last week of April, 2012 and demanded third party’s outstanding dues of the premises of the year 2003 to the extent of Rs.3,10,158/- and threatened that if the same would not be paid the electric connection should be disconnected.  But in the eye of law CESC Ltd. has no right to claim such amount when said outstanding was not in respect of the present consumer, the complainant or in respect of the above two meters and so the claim of the OP is baseless and further the OP had been acting illegally threatening complainant for which for redressal complainant has prayed for passing such final order so that OP cannot make any frivolous claim of outstanding dues in respect of the third parties from the complainant. 

            On the contrary, OP Electricity Authority by filing written statement/version has submitted that complainant entire establishment had been running through meter No.3582991 and 3577137 both being industrial rate K meters unauthorizedly standing in the name of Sri Bal Krishna Agarwal, son of present complainant Sri Giriwar Kr. Agarwal and that connection was disconnected and FIR was lodged with the local P.S. and as per final assessment dated 12-10-2010 OP claims for the unauthorized used of the electricity and electricity duty is payable to the State Government on that day was Rs.24,670/-.  Challenging the said disconnection Writ Petition being No.638/2010 before the Hon’ble High Court at Calcutta was filed by complainant and his son but that was dismissed by Hon’ble Justice J.K. Biswas.

            Prior to 03-06-2010 during another inspection on 23-11-2003 it was found that         complainant and his father were enjoying electricity through meter No.238372 Industrial rate ‘K’ and 242875 commercial rate ‘M’ by tampering the seals of the meter and the supplies were immediately disconnected and FIR was lodged with the local P.S. and OPs claimed towards unauthorized use of electricity and electricity duty payable to the State Government was Rs.2,81,614/-.  It is further alleged that in previous occasions Assessing Officer in exercise of his power u/s.126 and 127 of Electricity Act, 2003 passed final order of assessment for unauthorized use of electricity and theft of electricity and in view of SLP filed before the Hon’ble Supreme Court of India against the judgment of National Commission, Hon’ble Supreme Court observe, since a large number of similar petitions are pending before various Consumer Fora it is proper to request the National Commission to defer consideration of the similar issues raised in the pending matters.  So, at the present case the complaint is not maintainable.

Decision with Reasons

Practically after considering the entire story of the complainant and the written version it is found that previously from the same premises flour mill and other mills had been run by the son of this complainant and when theft case was started against this complainant and his son in respect of the said flour mill and other mills run by the complainant’s son two theft cases were started and Assessing Officer u/s.126 assessed the loss of electric energy due to theft and as because they committed offence u/s.135 to 140 of Electricity Act of 2003 police cases were started and it is proved said proceedings were challenged before the High Court by the complainant and his son vide writ petition No.638/2010 before the Hon’ble High Court and that was dismissed by the Hon’ble High Court.  Then it is clear against the complainant and his son i.e. Bal Krishna Agarwal is the son of the complainant and present complainant Giriwar Kr. Agarwal police cases are pending but that had been suppressed by the complainant and anyhow the complainant in the meantime managed to change the name of establishment of his son in his name and manage to procure the electric connection then how the complainant has been claiming that he is a honest consumer under the OP.  But it is a trick so complainant only managed to change the name of the electric connection of the premises without changing the standing structure of the mills etc. used by him and his son.

            After considering the argument of the Ld. Lawyer for the complainant it is found that Ld. Lawyer for the complainant has tried to say that he has purchased it from his son but no such document is produced that the mills which were in the name of his son and practically said mill is in existence till today but there is no document that complainant purchased the same from his son but only it is found that the said mill has been run both by son and father the present complainant but license has been changed in the name of the complainant.  Another factor is that it is proved that against Giriwar Kr. Agarwal and Bal Krishna Agarwal for committing theft of electricity another police case is pending and for which present complainant and his son are liable to pay to the State Government to a sum of Rs.2,81,614/- but complainant has failed to deny this fact then question is how it can be said that the complainant’s present disconnection Is illegal when police case is still pending against the complainant.

            Fact remains that it is settled principle of law that a consumer who has committed theft of electricity for which any police case is started such a consumer is not entitled to get any relief from the Forum, if any assessment is made by the Assessing Officer as per provision of Section 126 of the Electricity Act, 2003 and for offence committed police case is started u/s.135 to 140 and that is the mandate of the Hon’ble Supreme Court passed in the judgment in respect of the Civil Appeal No.5466 of 2012 (UP Power Corporation Ltd. an others vs. Anish Ahmed along with other CA Nos.) and that judgment was passed very recently by Hon’ble Justice S.J. Mukhopadhyay and Hon’ble Justice G.S. Singhvi on 01-07-2013 and after studying the judgment particularly the part 47 (ii) we have gathered that in that verdict and in particular in that para it is specifically observed that when any action is taken u/s.135 to 140 of the Electricity Act, 2003 against complainant, no complaint as per C.P. Act is not maintainable before the Consumer Forum and for other ground that u/s.126 of the Electricity Act is not maintainable before the Consumer Forum.  But the offence as referred to u/s.135 to 140 can be treated only by a special Court constituted u/s.53 of the Electricity Act, 2003.

            Considering that judgment and the spirit of the judgment we are convinced to hold that if any consumer commits any offence u/s.135 to 140 of Electricity Act in respect of any consumer line, 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 case of indulging any unauthorized use of electricity as defined u/s.126 or committing offence u/s.135 to 140 does not fall within the meaning of complaint as defined u/s.2(1)(c) of C.P. Act, 1986.  When that is the verdict of the Hon’ble Supreme Court (already referred) we are convinced to hold that this complainant committed theft of electricity from other line by enjoying electricity in the present premises for which Assessment Officer made such assessment u/s.126 and all appeals before Hon’ble Apex Court has already been decided.  So, it is proved that this complainant as consumer committed offence by committing theft of energy for which in the present complaint even though he is a consumer of separate line is not entitled to get any relief as per provision of C.P. Act, 1986 because the Consumer Forum has no power to adjudicate such dispute.

            But invariably, if complainant is found released from that charge on payment of amount in respect of commission of theft, in that case the matter shall be considered by the Electricity Authority not by this Forum.  Anyhow, we have considered the order of the State Commission in respect of other matter during pendency of this case but this factor is not ventilated before State Commission at the time of hearing interim matters and another factor is that after passing of verdict of the Supreme Court in Civil Appeal No.5466 of 2012 (UP Power Corporation vs. Anis Mohammad and others) it has already decided that the present type of cases Consumer Forum has no jurisdiction to adjudicate a  dispute in relation to assessment made u/s.126 or offences u/s. 135 to 140 of the Electricity Act.  As such an action does not come under the purview of negligent and deficient manner of service on the part of the Electricity Authority so, the present complaint does not fall within the meaning of the complaint as defined u/s.2(1)(c) of C.P. Act, 1986.

Hence,

Ordered

That the complaint be and the same is dismissed on contest with a cost of Rs.5,000/-(Rupees Five thousand only) what shall be paid by the complainant the OPs. 

            Complainant shall have to pay the same within one month from the date of this order.