ORDER

(Per: Ms. Kumkum Rani, Judicial Member II):

This appeal has been directed against the judgment and order dated 26.05.2022 passed by the learned District Consumer Disputes Redressal Forum, Naintal (hereinafter to be referred as the District Commission) in consumer complaint No. 52 of 2020 styled as Sh. Narendra Singh Vs. General Manager (H.R.) In-Charge, U.P.C.L. Uttarakhand and others, whereby and wherein the complaint was allowed.

2.       The facts giving rise to the present appeal, in brief, are as such that the respondent – complainant has applied for the new connection of electricity and after the expiry of long period, the connection was not installed at his premises.  When the complainant has reached to the head office of the electricity department, the concerned clerk has apprised him that his area is within Kamluaganja and this office is not authorised to any action in regard to his new connection of the electricity.  Thereafter, the complainant met with Lineman Sh. Mansingh, who visited in Kamluaganja; the complainant has provided Rs. 8,000/- to him (lineman) for installing the temporary electricity connection, so that his house construction should not be interrupted.  The above Mansingh installed an electricity meter nearby complainant’s plot which bears No. UPCL6855.  On 16.01.2020 at about 15 O’clock, Junior Engineer of the Electricity Department Sh. Vinod alongwith two other employees of the Electricity Department came and stated that his connection is unauthorised. The electricity cable was disconnected and taken away the electricity meter with cable with them.  The complainant has sent his representative to the Electricity Department Kamluaganja for installation of temporary electricity connection, but his representative returned on account of non-availability of Junior Engineer. Subsequently on 13.02.2020, the complainant’s representative has gone to the Electricity Department where he was apprised to pay the penalty to the tune of Rs. 9,982/-, but the same was not deposited by his representative and has taken his application for the installation of the temporary electricity connection.  The complainant has received an information on 13.02.2020 that the penalty to the tune of Rs. 9,982/- has illegally been imposed against him, therefore, the relief sought at the bottom of the complaint be awarded to the complainant. 

3.       In the written statement, it was averred that an application for new electricity connection was submitted by the complainant before the UPCL, Haldwani office.  This office comes within the city region whereas the land of the complainant comes within the rural area, hence his application form was returned with the report to file it before the appropriate office.  According to the complaint, the complainant has contacted directly to        Sh. Mansingh, lineman and gave illegally Rs. 8,000/- to him to install the temporary electricity connection inspite of applying for new connection in the Electricity Distribution Sub-Division, Kamluaganja.  The above Mansingh - lineman has illegally installed the meter number UPCL 6855 on dated 04.01.2020, but when the Junior Engineer Sh. Vinod alongwith subordinate employees inspected the place on dated 16.01.2020 at about 03:00 p.m., the checking team of the electricity department found the illegal installation of the electricity meter of the respondent - complainant nearby pole of the plot of the complainant, thereby the complainant was making theft of electricity for constructing his house.  It is further averred that the above lineman has not deposited any documents regarding new connection in the department.  It is further averred in the written statement that on checking, the complainant was found illegally using the electricity, therefore, the penalty to the tune of Rs. 9,982/- was imposed on him which was not paid till today by the complainant.  The complainant has also submitted an application to register a criminal case against the Mansingh – lineman and filed a complaint without depositing the penalty and without getting a new electricity connection, hence the Commission be pleased to direct the complainant to pay the penalty alongwith interest and also be pleased to dismiss the complaint.

4.       After hearing both the parties and after perusing the record, the learned District Commission passed the impugned judgment on 26.05.2022 wherein it is held as under:-

प्रस्तुत परिवाद सव्यय स्वीकार किया जाता है। विपक्षी विद्युत विभाग को आदेशित किया जाता है कि वह यथाशीघ्र इस आदेश के डेढ़ माह (45 दिन) की अवधि के भीतर परिवादी को स्थायी विद्युत संयोजन प्रदान किया जाना सुनिश्चित करें। विद्युत विभाग द्वारा परिवादी पर अधिरोपित पेनाल्टी मु0 9,982/-रू0 (नौ हजार नौ सौ बयासी रू0) को निरस्त किया जाता है। साथ ही विपक्षी विद्युत विभाग को यह भी आदेशित किया जाता है कि वह परिवादी से लाईनमैन मानसिंह द्वारा ठगे गये मु0 8,000/-रू0 (आठ हजार रू0) परिवादी को वापस दिलवायेगा तथा परिवादी को हुई परेशानी एवं मानसिक वेदना की क्षतिपर्ति के लिए मुव 20,000/-रू0 (बीस हजार रू0) का तथा वाद व्यय की अदायगी के रूप में मुव 5,000/- (पांच हजार रू0) कुल 25,000/- (पच्चीस हजार रू0) का भुगतान परिवादी को अदा करेगा। यदि विपक्षी परिवादी को लाईनमैन मानसिंह से मु0 8,000/-रू0 (आठ हजार रू0) वापस नहीं दिलवा पाता है तो यह रकम परिवादी के विद्युत बिलों में समायोजित की जायेगी तथा यदि विपक्षी चाहे तो वह उपरोक्त 25,000/-रू0 को भी परिवादी के विद्युत बिलों में समायोजित कर सकेगा। इस आदेश का अनुपालन न किये जाने तथा इसकी अवहेलना अथवा उल्लंघन किये जाने पर विपक्षी विभाग के सक्षम व उत्तदायी अधिकारियों के विरूद्ध उपभोक्ता संरक्षण अधिनियम 2019 की धारा-72 के अन्तर्गत दण्डात्मक कार्यवाही नियमानुसार की जा सकेगी। पत्रावली दाखिल दफ्तर की जावे।

5.       On having been aggrieved by the aforesaid judgment and order of the District Commission the appellants have preferred the present appeal contending that the District Commission has passed the impugned judgment beyond the facts and merits of the case and has committed perversity in allowing the complaint No. 52 of 2020. It is further averred that the respondent – complainant had committed a contributory offence of bribe by voluntarily giving it to the lineman for uninterrupted construction; but the District Commission has failed to consider / appreciate such evidence. It is further averred that the respondent – complainant even took refuge of the Electricity Grievance Cell as such the proper remedy is available before the Electricity Grievance Cell. It is further averred that the District Commission has allowed the complaint against a dead person.

6.       We have heard learned counsel for the appellants as well as respondent in person and also perused the material available on record.

7.       In the impugned judgment, the District Commission has mentioned at page No. 16 that it was apprised that during the pendency of the complaint, opposite party No. 5 has expired. It is very surprising fact that inspite of death of opposite party No. 5, the legal heirs were not made as necessary parties.  It is to add that no judgment can be passed against a dead person, as per law nor its decree is executable against the dead person. But the District Commission has not taken into consideration that without impleading the legal heirs of deceased - opposite party No. 5, the consumer complaint cannot be decided on merits.  Thus, in such circumstances the impugned judgment cannot be said just, appropriate and in accordance with law.

8.       It is also contended on behalf of the appellants that the complainant took the refuge of the Electricity Grievance Cell.  Here it is to mention that the Electricity Grievance Cell is established to remove the complaints in regard to the electricity connection installation or the old electricity connection and the complainant should approach and should take refuge of the Electricity Grievance Cell to avail the proper remedy from that Cell in regard to his grievance.  It is also admitted on behalf of the respondent – complainant that no new connection was ever allotted to him.  It is further averred when the respondent – complainant has applied for the installation of the new electricity connection, his application was not entertained since a long time; when he enquired he was apprised that his land comes within the rural area and he should apply the Electricity Department of Kamluaganja, but the respondent – complainant has not gone to the Electricity Department of Kamluaganja for installing the new connection and approached a lineman Sh. Mansingh and gave Rs. 8,000/- as bribe.  If the bribery is given to Sh. Mansingh lineman by the respondent – complainant without applying his new electricity connection, then such act does not come within the definition of the consumer.  It is also admitted fact that neither new connection was allotted to the respondent – complainant, nor any electricity charges for consuming the electricity was ever given by him, then in such circumstances, it is proved that no new connection was ever allotted and approved by the electricity department to the respondent – complainant.  Thus, as per the definition of The Consumer Protection Act, 2019, the respondent – complainant does not come within the definition of consumer and the complaint filed on behalf of the respondent – complainant does not come within the purview of The Consumer Protection Act, 2019, therefore, no complaint can be entertained by the District Commission. 

9.       Here it is pertinent to mention that if some bribery was given to Sh. Mansingh or any fraud or some misrepresentation has been made by Sh. Mansingh by taking bribe of Rs. 8,000/- pretending himself as an employee of the Electricity Department, then the respondent – complainant should file a FIR against Sh. Mansingh in order to punish him through the competent court.  Thus, we are of the opinion that the District Commission has committed perversity by ignoring the contents of the written statement and passed the impugned judgment in unjustified manner.  Here it is pertinent to mention that Sh. Mansingh was not the employee of the appellant department.  Hence, the appellant department should write a letter to the concerned police to take proper action for the offence of taking bribe from the respondent – complainant. 

10.     Apart from it, the respondent – complainant was indulged in unauthorized use of the electricity, hence his act do not fall within the meaning of complaint.  In the case of “Civil Appeal No. 5466 of 2012, U.P. Power Corporation Limited and Others Vs. Anis Ahmad decided on 01.07.2013” the Hon’ble Apex Court has held that the “complaint” against assessment under Section 126 is not maintainable before the Consumer Commission. 

11.     Thus, we are of the opinion that the District Commission has passed the impugned judgment without proper evidence and ignoring the fact that the respondent – complainant does not come within the definition of consumer as defined under Section 7 of the Consumer Protection Act, 2019.  Thus, we are of the opinion that the District Commission has erroneously observed that the appellant department is liable to pay Rs. 8,000/- which was not received either by the electricity department or by its employee.  We are of the opinion that the District Commission has committed perversity by passing the impugned judgment and has failed to exercise its jurisdiction which was not vested in it.  We are also of the definite view that the District Commission has acted upon the material illegality and irregularity by passing the impugned judgment, hence the impugned judgment is perverse and is liable to be set aside. We are of the opinion that the appeal is liable to be allowed.

12.     Appeal is allowed. Impugned judgment passed by the District Commission, Nainital is hereby set aside and the consumer complaint is hereby dismissed.  No order as to costs.

13.     Statutory amount, if deposited by the appellants be returned to the appellants.

14.     A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019.  The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The copy of this judgment be sent to the District Commission concerned for record and necessary information.

15.     File be consigned to record room along with a copy of this Order.