BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                                Complaint No.CC/10/805 of 15.9.2010 

                                                Decided on:          16.9.2011

Daler Singh aged about 36 years son of Sh.Kashmir Singh r/o Village Bakraha, P.O. Sadharanpur, Tehsil Patran, District Patiala.

                                                                             -----------Complainant

                                      Versus

1.              Punjab State Power Corporation Ltd., through its Chairman-cum-Managing Director, The Mall, Patiala.

2.              Assistant Executive Engineer, Operation Sub Division, Punjab State Power Corporation Ltd., Shutrana District Patiala.

                                                                             ----------Opposite parties.

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

Present:

For the complainant:     Sh.J.S.Jindu, Advocate

For opposite parties:     Sh.Pawan Puri, Advocate

                                         ORDER

D.R.ARORA, PRESIDENT

          The complainant is a consumer of the SP electricity connection bearing account No. SP-74/0419 for running an atta chakki.The complainant has been depositing the bills of the electricity without any default. The status of the mete has been shown as OK.

2.       The ops issued the order of assessment vide memo no.1901 dated  31.8.2010 having raised the demand of Rs.1,70,331/- and Rs.60,000/- as compounding charges under Section 135 of the Indian Electricity Act 2003

(for short the Act of 2003) on the allegations of the unauthorized use of the electricity  and having disclosed that  the theft was being committed directly by by-passing the meter.

3.       It is averred that the order of assessment had been passed without any basis. No report of any checking was attached with the same. The complainant never made any unauthorized use of the electricity. He never applied any Kundi and he never by passed the meter. No name of the officer/official of the ops allegedly having conducted the inspection of the premises of the complainant was given in the order of assessment. No checking report was handed over to the complainant. The signature of the complainant had not been obtained on any report. No checking report was annexed with the order of assessment dated 31.8.2010.

4.       It is further averred that it was alleged in the notice that the connection of the complainant was checked on 31.8.2010 by the JE Nishan Singh. The complainant was lodged in the central jail, Patiala and therefore, no body had checked the connection on that date. The Junior Engineer is not competent to check the connection. The ops disconnected the supply to the electricity connection of the complainant and they pressurized the complainant to deposit the amount of the notice.

5.       It is further averred that there is no provision for issuing an order of assessment under Section 135 of the Act of 2003. Thus describing the act of the ops in having raised illegal, null and void and unconstitutional demand to be a deficiency in service on the part of the ops, the complainant  approached this Forum through the present complaint brought under Section 12 of the Consumer Protection Act,1986 (for short the Act)for a direction to the op to quash the demand; to direct the ops to reconnect the supply to the electricity connection of the complainant and the complainant be awarded the compensation in a sum of Rs.50,000/- on account of the inconvenience and the mental agony experienced by him at the hands of the ops.

6.       On notice, the ops appeared and filed the written version. It is admitted that the complainant is a consumer of the ops but the connection is being used by the complainant for commercial purposes. The complainant is earning profit from the business. The complainant has employed several workers for running the business of Atta chakki.

7.       It is further averred that the electricity connection of the complainant was checked by the checking officers in the joint checking conducted on 31.8.2010 and who found that the consumer was committing theft of the electricity by by-passing the meter. A 18 meters 3C PVC flexible cable was being used for committing the theft of the energy. The mode and manner of committing the theft of electricity has been described in the checking report. Joginder Singh, a representative of the complainant was present at the time of checking, who counter signed the checking report in token of the correctness there of.  A copy of the checking report was also delivered to the representative of the consumer.

8.       On the basis of the checking report a demand notice under Section 135 of the  Act of 2003 dated 31.8.2010 was conveyed to the consumer having raised the demand of Rs.1,70,331/- for having committed theft of the energy and he was further obliged to deposit Rs.60,000/- as the compounding charges. Copy of the checking report was also attached with the demand notice. The consumer was also afforded the opportunity to file the objections against the order of assessment but the consumer failed to file the same. After denouncing the other averments of the complaint going against the ops, it was prayed to dismiss the complaint.

9.       In support of his case, the complainant produced in evidence his sworn affidavit, Ex.C1, alongwith the documents, Exs.C2 to C6 and his learned counsel closed the evidence.

10.     On the other hand, on behalf of the ops, their learned counsel produced in evidence, Ex.R1, the reply filed to the complaint in the form of an affidavit, Ex.R2, the sworn affidavit of AE Satish Kumar, Ex.R3, the sworn affidavit of JE Nishan Singh of op no.2, Ex.R4, the sworn affidavit of JE Balwinder Singh, Ex.R5 the sworn affidavit of Rajinder Singh of op no.2, alongwith documents, Exs.R6 to R8 and closed their evidence.

11.     The ops filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.

12.     Ex.R6, is the copy of the checking report dated 31.8.2010 as got proved by the ops with the assistance of Ex.R4 the sworn affidavit of Balwinder Singh, JE, of op no.2, Ex.R5 the sworn affidavit of Rajinder Singh,JE of op no.2, Ex.R3 the sworn affidavit of Nishan Singh,JE of op no.2, and Ex.R2, the sworn affidavit of Satish Kumar,AE of op no.2, who had conducted the checking of the connection of the complainant on 31.8.2010. As per the checking report the consumer was found committing theft of the energy by way of running the motor directly with the help of a 4C PVC 18 meter cable  having connected the same with the service line having by-passed the meter. The mode and manner of committing the theft has been shown in the checking report,Ex.R6 with the help of a diagram in respect of the illegal connectivity. The checking report is shown to have been signed by one Joginder.

13.     On the basis of the aforesaid checking, op no.2 had sent the order of provisional assessment,Ex.R7 to the complainant vide memo no.481 dated 31.8.2010 having raised the demand of Rs.170331/- on account of theft of energy under Section 135 of the Act of 2003 and further advised the complainant to deposit Rs.60000/- towards compounding charges to avoid the police action.

14.     Ex.R8 is the copy of the PDCO dated 31.8.2010 effected on 1.9.2010.

15.     It was submitted by Sh.J.S.Jindu, the learned counsel for the complainant that it is the categorical  plea taken up by the complainant that the complainant was confined to central jail Patiala in a criminal complaint and in his absence his wife was running the atta chakki. He had not employed any servant on the atta chakki. Similarly, he made a reference to the sworn affidavit,Ex.C1 of the complainant in which he deposed that he had not employed any person on the atta chakki and he has got no concern with Joginder and that the ops have not explained as who said Joginder Singh is to the complainant.

16.     It was also submitted by the learned counsel for the complainant that as per the provisional order of assessment, Ex.R7, the checking was conducted by JE II Nishan Singh on 31.8.2010. In Ex.C4, the copy of the FIR lodged by Assistant Engineer, Operation, of op no.2, the checking regarding the electricity connection bearing account No.SP74/0419 of the complainant was conducted by Balwinder Singh and Nishan Singh. As per the affidavit,Ex.R2 of Satish Kumar, AE, operation, of opno.2, the checking of the connection of the complainant was conducted by him alongwith other members of the checking team. Similarly he made a reference to the affidavit,Ex.R5 of Rajinder Singh,JE of op no.2 to the effect that the checking of the electricity connection of the complainant was conducted by him on 31.8.2010 alongwith other members of the checking team.

17.     What the learned counsel for the complainant wanted to argue is that all the deponents of the affidavits Exs.R2 to R5 are not consistent with regard to the officials having checked the connection of the complainant.

18.     Then, it was submitted by the learned counsel for the complainant that as per the case of the ops, the complainant was found committing theft of the energy unauthorizedly and an FIR regarding the same i.e. No.100 dated 21.9.2010,Ex.C4 under Section 135 of the Act of 2003 was also got registered against the complainant and therefore, in view of the provisions contained under Section 135 of the Act of 2003, no order of provisional assessment could be passed by op no.2. In this regard he also placed reliance upon the citation Tirumala Modern Rice Mill Versus Transmission Corportion of A.P.Ltd.& Ors AIR 2007, A.P.265 .

19.     On the other hand, it was submitted by Sh.Pawan Puri,Advocate, the learned counsel for the ops that there is a consistant deposition made by the deponents of the affidavits,Exs.R2 to R5 that electricity connection of the complainant was checked by a team consisting of AE Satish Kumar, Nishan Singh, JE, Balwinder Singh, JE and Rajinder Singh JE of op no.2. In case the deponents failed to disclose the names of the other members of the checking team in their affidavits, it would not mean that the affidavits furnished by them with regard to their being a member of the checking team is false.

20.     It was also submitted by Sh.Puri that the factum with regard to JE II Nishan Singh having conducted the checking as mentioned in the order of provisional assessment can not be said to be false, which fact is corroborated by the sworn affidavit,Ex.R3 of JE Nishan Singh, It is also not shown that the checking report,Ex.R6 does not bear the signatures of aforesaid deponents.

21.     Then it was submitted by Sh.Puri, that the citation Tirumala Modern Rice Mill Versus Transmission Corportion of A.P.Ltd.& Ors (supra) relied upon by the learned counsel for the complainant can not be applied to the facts of the case under hand because in the said citation the following two points were involved:

(1)     Whether assessing officer is bound to value the electricity unauthorizedly used presuming such use only for a period of 3/6 months? What is the true interpretation of Section 126(5) of the Electricity Act?

(2)     When the consumer deposits the assessed amount, can he be subjected to further liability? What is the true interpretation of the proviso to Section 126(4) of the Electricity Act?

The Hon’ble Andhra Pradesh High Court decided the matter with reference to general tems and conditions of supply(GTCS) formulated by Distribution company and especially made a reference to condition No.9.2.6 that in the even the consumer accepts the provisionally assessed electricity charges he must pay the  full amount to the company as per the order and obtain a receipt for the same. The provisional assessing officer shall not pursue the case further or revise the payment of the electricity charges by the consumer on account of unauthorized use of electricity and shall close the case within one working day of production of the receipt for the full amount by the consumer. It was further observed by the Hon’ble High Court in para no.29 of the judgment, “here one may notice that condition 10.2 of GTCS refers to provisional assessment of energy consumed by theft but the same is conspicuous by its absence in the provisions of the Electricity Act. From this what would emerge is that when a provisional assessment is made  and the consumer accepts and deposits the amount without demur, consumer can not be subjected to any further liability and no further action can be taken against him. In case of theft, however, in the event of provisional assessment order not being served as required under Section 126(2) only remedy available for the inspecting/assessing officer would be to refer the cases to Special Court for the purpose of determining civil and criminal liability------.”

22.     Then it was submitted by Sh.Puri that in our case, the complainant having committed theft of the energy unauthorizedly, he was served with the order of provisional assessment under Section 135 of the  Act of 2003 in accordance with regulation 37.2 a(i) and 37.2(b) of Electricity Supply Code and Related Matters Regulation 2007, to have been issued by the Punjab State Electricity Regulatory Commission vide notification No.PSERC/Secy/Regu. 31 dated June 29,2007 and published in Govt. of Punjab Gazette dated July 27,2007.

“Consequences of theft of electricity

Regulation 37.2(a)(i) is in the following terms:

“ In case theft of electricity by a consumer/person is prmia facie established, then the supply to such premises will be immediately disconnected by an officer of the Licensee as authorized for the purpose by the Commissioner any other officer of the Licensee of the rank higher than the rank of an officer so authorized by the Commission. In such a case, an officer so authorized by the Commission shall lodge a complaint in writing, in this respect, with the police station having jurisdiction of the area within twenty four hours from the time of such disconnection. The Authorized Officer will also immediately initiate action under Regulation 37.2(b)”

Regulation 37.2(b) is in the following terms:

“ Where theft of electricity in a premises is prmia facie established under Regulation 37.2(a)(i) or Regulation 37.2(a(v), the Authorized officer will assess the amount payable by the consumer/person who has benefited by such theft as per procedure specified at Annexure-8.The assessment order will state the basis on which theft of electricity has been established. The Authorized Officer may, after recording reasons in writing, suitably reduce the presumptive period of theft of electricity as specified in Annexure-8 in case he is satisfied that such theft had actually occurred for a lesser period. Such an order of assessment will be delivered to the concerned consumer/person within 24 hours of theft of electricity having been established.”

23.     Here, it may be noted that vide commercial circular no.34/2006 issued vide Chief Engineer/Commercial (Sales Dte.)PSEB, Patiala memo no.40965/41765/SR-1 dated 6.7.2006 Govt. of Punjab Department of Power(Energy Branch) has issued following notification on the subject, “Powers of the officers of the Board to enter consumer premises for checking/ inspection under Section 135(2) of E.A.-2003-Assessment of unauthorized use of electricity, Assessing Officers, Under Section 126 of E.A.-2003,Appellate Authority under Section 127 of the EA-2003 and compounding of charges in case of theft of electricity under Section 152 of EA-2003.”

1.       No.1/13/04-EB(PR)/23 dated 10 January, 2005:

          This is regarding designating the PSEB Officers for the implementation of provisions under Section 135(2) of the Electricity Act-2003 in their respective power distribution areas. According to this notification Commercial Circular No.24/05 dated 12.4.2005 was issued, as per which, JEs, were   not authorized to enter the consumer premises for checking/inspecting the same. Matter was referred to Secretary/Power Govt. of Punjab vide memo no.76 dated 7.6.2005 to allow JEs/AAEs to enter  the premises of domestic,NRS,AP/SP and Bulk Supply connections upto 20 KW but till date the Govt. has not accepted this proposal.

          As theft of energy in this category of consumers had increased, Board had to issue 57    dated 31.8.2005 enjoining upon all PSEB officials, JEs, MRs and BDs to intimate & report the case of theft of energy taking place in the Domestic premises.Further vide CC 60/2005 dated 6.9.2005, JEs/AAEs where again authorized to check the consumer premises as per practice prior to the issue of Commercial  Circular No.24/2005 dated 12.4.2005.Govt. of Punjab is yet to approve the instructions issued vide Commercial Circular No.60/2005.Pending approval of the Govt. the checking of various categories of consumers  should continue as per the practice before issue of CC 24/2005 i.e.JEs/AAEs are authorized to check the consumer premises of Domestic/NRS/SP connections as per the schedule(page-53) for Condutions of Supply(copy enclosed at Annex.1) E.S.R.134.5 should be treated as amended to this extent subject to approval of Govt. of Punjab.

2.       1/60/03-EB(PR)/1186 dated 27.12.2004:

          The State Govt. has authorized the following officers of the Board to make assessment of charges payable by the LT&HT consumers in case they are found indulging in unauthorized use of Electricity under Section 126 of the Act.

Category of consumers                                       Assessing Officers

All HT consumers above 1 MW load                   CEs of the Operation Wing of

                                                                         respective Distribution/Area

All HT Consumers upto 1MW load             SE/Dy.CEs of Operation

                                                                        Wing of the Distrubution Area

All LT Industrial consumers                       Sr.Executive Engineers / Addl.

                                                                        SEs of Operation Wing of the

                                                                          Distribution Area

All other LT consumers                              Assistant Engineer/Assistant

                                                                        Executive Engineer/ Executive

                                                                         Engineers of Operation Wing

                                                                         of the Distribution Area”

24.     Then, it was submitted by Sh.Puri that the complainant despite having been advised by the order of provisional assessment that in case he was not agreeable to the order of assessment could prefer the representation before Sr.Executive Engineer Distribution Circle,Patiala , a Designated Authority under Electricity Supply Code and Related Matters Regulations 2007  failed to prefer any objections and in that way the complainant admitted the allegations of theft of the energy.

25.     We have considered the submission and are of the considered view that there is no reason to doubt the checking of the connection of the complainant by AE Satish Kumar of op no.2 alongwith other officers named above on 31.8.2010 and the complainant having been found committing theft of the energy unauthorizedly by by-passing the meter. They rightly and validly served the complainant with the order of provisional assessment,Ex.R7 in compliance with Regulation 37.2(b) of Electricity Supply Code and Related Matters Regulations 2007 .The complainant failed to prefer any objections against the order of provisional assessmet. In the case of the citation Uttari Haryana Bijlee Vitran Nigam Limited & Anr. Versus Karam Chand 2010(2)CLT 3 , the Hon’ble National Consumer Disputes Redressal Commission, New Delhi observed, “if the respondent was aggrieved with the provisional assessment made by the Assessing Officer, it was open to him to file objection and eventually to move the Appellate Authority and Statutory Body, constituted under the Act. The notice, imposing penalty was also acknowledged by respondent. We do not feel impressed about any action resorted to by the respondent challenging either the alleged inspection or imposition of penalty, as required under the Act.”

26.     Consequently, we do not find any reason to find any fault with the action resorted to by the ops in the matter of burdening the complainant with the order of provisional assessment and the complainant is bound to pay the amount of the same. In other words we do not find any substance in the complaint and the same is hereby dismissed.

Pronounced.

Dated:16.9.2011

                                                Neelam Gupta                  D.R.Arora

                                                Member                            President