DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.505 of 03-11-2010

Decided on 18-05-2011

Prem Kumar son of Sh. Mohan Lal, resident of Bir Talab Road, Bathinda. .......Complainant

Versus

1. Punjab State Power Corporation Ltd., through Chief Engineer, Opposite GNDTP, Bathinda.

    

2. Superintending Engineer, Punjab State Power Corporation Limited Division, Bathinda.

    

3. Assistant Engineer, Punjab State Power Corporation Limited, Sub Urban Sub Division, Bathinda.

......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President.

Dr. Phulinder Preet, Member.

Sh.Amarjeet Paul, Member.

Present:-

For the Complainant: Sh.Sandeep Baghla, counsel for the complainant.

For Opposite parties: Sh.J.D.Nayyar, counsel for opposite parties.

ORDER

Vikramjit Kaur Soni, President:-

1. The present complaint has been filed by the complainant under Section 12 of the Consumer

 Protection Act, 1986 as amended up-to-date (Here-in-after referred to as an ’Act’). The brief facts of

the complaint are that the complainant is holding electricity connection bearing A/c No.SP-34/213 under

SP Category for running Atta Chakki. The complainant had received a memo No.58 dated 30.04.2010

whereby, a demand of Rs.1,06,621/- has been raised on the basis of alleged checking dated

27.12.2008 for unauthorized load. The complainant had filed objections dated 06.05.2010 before the

Superintending Engineer, Punjab State Power Corporation Limited, Bathinda i.e. opposite party No.2 as

directed by the opposite party No.3 in the impugned notice. The complainant was also directed to

deposit Rs.10,665/- for the hearing of the said objections of the complainant and accordingly, he

deposited the said amount vide receipt No.74/4327 dated 18.05.2010. The complainant had been

approaching the opposite parties for hearing of the said objections but the opposite parties have

disposed off the objections being not maintainable before them. The complainant has challenged the

said memo on various grounds that the said demand is time barred as per statutory provisions under the

Electricity Act, 2003. As per provisions of Section 56(2) of the Electricity Act, no demand can be raised

by the Punjab State Power Corporation Limited after lapse of more than 2 years. The checking was

conducted on 27.12.2008 and the impugned demand has been raised for the first time on 30.04.2010,

as such the demand is time barred under the provisions of the said Section. As per the statutory

provisions of the Punjab State Power Corporation Limited, the load upto 10% is permissible and the

opposite parties can only charge for the unauthorized load and cannot raise demand by putting the

complainant under MS category or issue the demand notice under the provisions of Section 126 of the

Electricity Act. After the alleged checking, the opposite parties remained quite and never raised any

demand on the basis of alleged checking nor had alleged any violation and even the bills continued to be

issued to the complainant under SP Category with the connected load 19.57 KW rendering the

impugned demand. The complainant has raised the objections that the impugned notice has been

wrongly issued under Section 126 of the Electricity Act and the amount has been raised on the basis of

unauthorized load which is not covered under the said provisions as per Circular No.34/2006 as such,

 no demand can be raised under Section 126 of Indian Electricity Act. In the checking report, the motor

of 2 BHP has been shown installed on the Blower whereas motor of 1 BHP has been installed. The

lamps have been wrongly mentioned by the opposite parties, as such no lamps are installed in the

premises of the complainant which can be clarified by Test report. The impugned demand has been

raised by changing the category from SP to MS whereas no previous notice in this regard had ever

been issued by the opposite parties or the complainant had been provided any facility/metering

equipments under the said (i.e.MS) Category which confirms that the complainant is consumer under SP

category and has been consuming the load within the ambit of sanctioned load.

2. The opposite parties have filed their joint written statement and pleaded that the premises with regard

to electricity connection No.SP 34/213 of the complainant had been checked by the officials of the

opposite parties vide checking No.26/2 dated 27.12.2008 and on checking, it had been found that the

connection holder had a connected load of 21.020 KW as against the sanction load of 19.570 KW. The

checking report was made on the spot by the checking officials and the complainant had signed the

same without any protest in token of its correctness. The connected load of 21.020 KW found at the

spot, falls under MS category and accordingly a demand of Rs.1,06,621/- has been raised from the

connection holder. The connection holder was found running connected load more than the sanctioned

load as such it amounted to unauthorized use of electricity. Accordingly, as per the provisions of Section

126 of Electricity Act and CC No.53/2006 and Regulation No.37 of Electricity Supply Code and Related

Matters Regulation 2007 of the opposite parties, the complainant had been issued a provisional order of

assessment for unauthorized use of electricity, making a demand of Rs.1,06,621/- which had been

calculated as per the rules of the opposite parties.

3. Parties have led their evidence in support of their respective pleadings.

4. Arguments heard. Record alongwith written submissions submitted by the parties perused.

5. The learned counsel for the complainant has submitted that he had received a memo No.58 dated

30.04.2010 for a demand of Rs.1,06,621/- on the basis of alleged checking dated 27.12.2008 for using

unauthorized load and prepared a case of unauthorized use of electricity. He filed objections dated

06.05.2010 before the S.E., Punjab State Power Corporation Limited, Bathinda i.e. opposite party No.2.

For hearing the objections, the opposite parties got deposited Rs.10,665/- from the complainant vide

receipt No.74/4327 dated 18.05.2010. The opposite parties had disposed off the objections being not

maintainable before them. The learned counsel for the complainant has further submitted that the

 demand is time barred as per statutory provisions under the Electricity Act, 2003. As per provisions of

Section 56(2) of the Electricity Act, no demand can be raise by the opposite parties after lapse of more

than 2 years. The demand was raised for the first time on 30.04.2010 for the alleged checking

conducted on 27.12.2008, as such the demand is barred by limitation. According to the statutory

provisions of the opposite parties, the load upto 10% is permissible and the opposite parties can only

charge for the unauthorized load and cannot raise demand by putting the complainant under MS

category or issue the demand notice under the provisions of 126 of the Electricity Act. The connected

load of the complainant is 19.57 KW. The demand under Section 126 has wrongly been raised on the

basis of unauthorized load which is not covered under the provisions of Circular No.34/2006. In the

checking report, the opposite parties specifically mentioned that the motor of 2 BHP has been installed

on the blower whereas motor of 1 BHP has been installed. The learned counsel for the complainant has

further submitted that the impugned demand has been raised by unilaterally changing the category from

SP to MS whereas no previous notice in this context has been ever issued by the opposite parties to

the complainant nor the complainant had been provided any facility or material equipments under the

said Category.

6. The learned counsel for the opposite parties has submitted that the premises with regard to electricity

connection No.SP 34/213 of the complainant had been checked by the officials of the opposite parties

vide checking No.26/2 dated 27.12.2008 and on checking, it had been found that the connection holder

had connected load of 21.020 KW against the sanctioned load of 19.570 KW. The checking report was

made on the spot by the checking officials and the complainant had signed the same without any protest

in token of its correctness. The connected load was of 21.020 KW which falls under MS category and

the amount of Rs.1,06,621/- has been raised on the basis of the report of Audit Party. The complainant

was found running connected load more than the sanctioned load, as such it amounted to unauthorized

use of electricity. The learned counsel for the opposite parties has further submitted that as per

provisions of Section 126 of Electricity Act and CC No.53/2006 and Regulation No.37 of Electricity

Supply Code and Related Matters Regulation 2007, the complainant had been issued a provisional

order of assessment for unauthorized use of electricity in which the complainant was asked to deposit

 Rs.1,06,621/- within 7 days from the date of notice or could submit objections, if any within 7 days from

the date of notice but the complainant neither made the demand nor filed any objections to the

provisional demand. The complainant had not filed objections within stipulated period to the Assessing

Authority rather he had filed objections before the Dispute Settlement Committee headed by Chief

Engineer. Since, the objections were not maintainable before the said committee, as such the same

were dismissed vide order dated 25.08.2010.

7. The checking was conducted on 27.12.2008 and demand notice was raised on 30.04.2010. During

this period, the opposite parties have never demanded any amount under the MS Category rather they

have been sending the bills under SP Category. Moreover, no such notice prior to 30.04.2010 was ever

issued to the complainant that he has been found using connected load of 21.020 KW and his

connection no longer falls under the category of SP connection rather changes into the MS Category.

The complainant was never made aware of such rules and regulations, according to which his category

of connection automatically changes, without notice or intimation from SP to MS Category. The

complainant has been issued notice under Section 126 of the Electricity Act. The Section 126 of the

Electricity Act is reproduced as under :-

“(1) If on an inspection to any place or premises or after inspection of the equipments, gadgets,

machines, devices found connected or used, or after inspection of records maintained by any person,

the assessing officer comes to the conclusion that such person is indulging in unauthorized use of

electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by

such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or

in charge of the place or premises in such manner as may be prescribed.

(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file

objections, if any, against the provisional assessment before the assessing officer, who shall, after

affording a reasonable opportunity of hearing to such person, pass a final order of assessment within

thirty days from the date of service of such order of provisional assessment, of the electricity charges

payable by such person.

(4) Any person served with the order of provisional assessment may, accept such assessment and

deposit the assessed amount with the license within seven days of service of such provisional

assessment order upon him.

(5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken

place, the assessment shall be made for the entire period

1. Subs. by Act 26 of 2007, sec. 11(i), for sub-section (3) (w.e.f. 15-06-2007). Sub-section (3), before substitution, stood as under:-

“(3) The person, on whom a notice has been served under sub-section (2), shall be entitled to file objections, if any, against the

 provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person,

pass a final order of assessment of the electricity charges payable by such person.”

2. The pvosio omitted by Act 26 of 2007, sec. 11(ii) (w.e.f. 15-06-2007). The proviso, before omission, stood as under;-

“Provided that in case the person deposits the assessed amount, he shall not be subjected to any further liability or any action by any

authority whatsoever.”

3. Subs. by Act 26 of 2007, sec. 11(iii), for sub-section (5) (w.e.f. 15-06-2007). Sub-section (5), before substitution, stood as

under:-

“(5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, it shall be presumed that

such unauthorized use of electricity was continuing for a period of three months immediately preceding the date of inspection in case

of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other

categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.” during which

such unauthorized use of electricity has taken place and if, however, the period during which such

unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a

period of twelve months immediately preceding the date of inspection.

(6) The assessment under this section shall be made at a rate equal to [twice] the tariff applicable for

the relevant category of services specified in sub-section (5).”

The notice under Section 126 of the Electricity Act is issued in the cases where there is unauthorized

supply of electricity. In the present case, the complainant was not committing theft of energy and he has

been paying the bills regularly. The opposite parties have raised the demand on the basis of excess

load being used by the complainant. The opposite parties have specifically mentioned that the meter of

the complainant is 3 Phase electronic meter and is installed outside his premises in MCB and 2 number

seal is intacted. This checking has been done in the presence of the complainant and the connected

load chart is also prepared on the checking report which is read as under:-

“Atta Chakki = 25BHP = 18.650 kw

= 2BHP = 1.492 kw

= 5x80 = 0.400 kw

= 4x100 = 0.400 kw

= 3/3=1x80 = 0.080 kw

__________

21.022 kw

__________

Sanction load = 19.570 kw

_________

Excess Load = 1.452 kw

_________

The sanctioned load of the complainant is 19.570 kw and the connected load is 21.022 kw and

difference of the load is 1.452 kw. As per Calculation Sheet Ex.R-4, the formula which was applied to

the complainant is as under:-

“Charge amount by calculating the same with the formula Msx2

Rs.2238x3.95x2 = Rs.1,76,850.00(SOP) + 17,685.00 (ED)

Amount charged by Ledger:Rs.79,920.00(SOP) + 7,994.00 (ED)

Difference to be charge: Rs.96,930.00 + 9,691.00

Total: Rs.1,06,621.00”

The complainant has been using excess load of 1.452 kw only. As per commercial circular No.34/2006

of quarterly update (July-September 2006) is as under:-

“It is clarified here that unauthorized extension in load is not covered under misuse of electricity. It is

separately governed by provision of load surcharge given in Schedule of Tariff circulated vide memo

No.30078/ 30103 dated 01.06.2006. Any dispute regarding levy of load surcharge shall be adjusted by

the existing Dispute Settlement Committees. Similarly, disputes other than those related to misuse of

electricity shall also be adjudicated by existing DSCs.”

Further, according to commercial circular No.36/2006 page 24 under general condition of tariff,

Schedule of Tariff, SI.9.1 is read as under:-

“.....However, if the unauthorized extension is only to the extent of 25% of the sanctioned load in case

of green category industries in non-residential areas and 10% of the sanctioned load in other cases

 subject to a maximum of 250 KW, the consumer shall be required to pay load surcharge and his

connection shall not be disconnected. The unauthorized load above 10% and upto 25% of the

sanctioned load, so detected is to be got regularized by the consumer.”

8. In the present case, the checking was done on 27.12.2008 and the opposite parties have never

issued any notice or has mentioned in bill that his connection has been changed to MS Category. All of

sudden, the memo No.58 was issued by the opposite parties raising a demand of Rs.1,06,621/-

whereas under their own rules SII.1 Availability:- “This tariff shall apply to all industrial power supply

consumers having connected load ranging from 21 KW to 100 KW.”

Further, according to SIII.7.1:- “........The unauthorized load so detected shall be got removed. However,

if the unauthorized extension is up to 25% of the sanctioned load in case of green category of industries

in non residential areas and 10% of the sanctioned load in other cases, the consumers shall not be

required to pay load surcharge and their connection shall not be disconnected. The unauthorized load

above 10% and upto 25% of the sanctioned load so detected is to be got regularized by the consumer.

The extra load permissible shall be to the extent that total load does not exceed 100 KW.”

According to Commercial Circular No.28/2004 which is reproduced as under:-

“In case an unauthorized load more than the limit prescribed in the relevant schedule of tariff is detected,

a 7 days notice shall be served immediately to the consumer asking him to disconnect & remove the

unauthorized load, submit a fresh test report and deposit the requisite load surcharge for the load in

excess of the sanctioned load.”

9. In view of what has been discussed above, there is deficiency in service on the part of the opposite

parties. The complainant has not been issued any notice for changing his connection from SP to MS

Category whereas the opposite parties were duty bound to send the notice to the complainant before

raising the demand from the complainant under MS Category. The opposite parties have also not asked

the complainant to submit a fresh test report. The support can be sought by the law laid down by the

Hon’ble Supreme Court of India in case titled Municipal Committee, Hoshiarpur Vs. Punjab State

Electricity Board & Ors. 2011 (1) Civil Court Cases 001 (SC) wherein it has been held that :-

“Natural Justice – Principle of – In case there is a non-compliance of a statutory requirement of law or

the principles of natural justice have been violated under some circumstances, non-compliance thereof

may itself be prejudicial to a party and in such an eventuality, it is not required that a party has to satisfy

the Court that his cause has been prejudiced for non-compliance of the statutory requirement or

principles of natural justice.”

10. Resultantly, this complaint is partly accepted with Rs.1,000/- as cost and compensation and the

demand raised through memo No.58 dated 30.04.2010 for a sum of Rs.1,06,621/- is hereby quashed.

 The enhanced load is not recoverable from the complainant as he has been using excess load of 10%

which is permissible but as this excess load changes the category also changes from SP to MS. In

future his bills will be calculated according to MS tariff.The opposite parties are directed to change the

Category of the connection holder from SP to MS under their provisions No.SIII.7.1& SI 9.1 of

commercial circular No.34/2006.Compliance of this order be done within 45 days from the date of

receipt of copy of this order.

11. A copy of this order be sent to the parties concerned free of cost and file be consigned for record. ’

Pronounced in open Forum

18-05-2011

(Vikramjit Kaur Soni)

President

(Dr.Phulinder Preet)

Member

(Amarjeet Paul)

Member