(Per: Mrs. Veena Sharma, Member):

            This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by the appellants-opposite parties against the order dated 03.04.2013 passed by the District Forum, Haridwar in consumer complaint No. 199 of 2012, thereby the District Forum has allowed the consumer complaint and cancelled the notice in dispute and has directed the opposite parties-Electricity Department not to take any charge from the complainant and not to disconnect the electricity connection of the complainant in future on the basis of the disputed notice.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant Sh. Rakesh Kumar Goel is a consumer of the opposite parties-Electricity Department and had taken an electricity connection No. 696/0801/093102 of 20 KW for his hotel namely Hotel Balaji at Bhupatnagar for his livelihood and paid the electricity bills regularly.  It is alleged that on 28.06.2012 some officers and employees of Electricity Department came to complainant’s premises (Hotel) and inspected the electricity connection, alleging false charge of electricity theft and overloading, taken away the electricity meter with them without giving any receipt.  On 03.07.2012, the complainant’s son went to the lab of the Electricity Department at Dehradun, where it was disclosed that the seal of the said meter is O.K. and no theft of electricity is found.  The complainant was surprised by a notice dated 05.07.2012, which was sent by the opposite party No. 1 to the complainant that the meter was tampered and the complainant was using excess electricity.  According to the complainant, the above notice is illegal and quite different from the lab report, because in the lab report no shunt was found in the meter.  The complainant also said that prior to this, a notice of Rs. 10,00,000/- was issued against the complainant, which was finally revised to Rs. 7,50,742/- and the same was not according to the rule.  According to the notice dated 05.07.2012, overloading of 8.29 KW was shown, which is wrong because according to the Electricity Department’s Rule, the premise where geyser and A.C. are installed, then only one’s load will be calculated.  During checking, only 8 A.C.’s were identified. On rechecking and report of S.D.O.-opposite party No. 2, one A.C. was found of 1800 Watt, so total load of A.C.’s were calculated 14.400 Watt.  If the load of the geyser was 9KW and load of A.C. was 3.200 Watt, then it was total 12.200 Watt, which is deducted from the load of checking report 31.490 Watt, so it is equal to 19.290 Watt.  It is an ideal load which does not raise the dispute of excess load.  So the opposite party issued a notice on false and frivolous facts, which comes under unfair trade practice. Thus, there is deficiency in service on the part of the Electricity Department, therefore, the complainant filed a consumer complaint before the District Forum, Haridwar.

3.       The opposite parties have filed written statement before the District Forum, Haridwar and pleaded that the complainant was found making theft of electricity for which Rs. 7,50,742/- was imposed on the complainant.  They further stated that the officers and employees of the Electricity Department never gave any assurance to the complainant that the meter was O.K. and did not found electricity theft. They further stated that the complainant was using the electricity for commercial purpose and running a hotel, so the Consumer Fora has no jurisdiction to hear and decide the consumer complaint.

4.       The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 03.04.2013.  Aggrieved by the said order, the opposite parties have filed the present appeal.

5.       We have heard learned counsel for the parties and have also perused the record.

6.       The complainant has stated in the consumer complaint that he has an electricity connection in his name for which he paid electricity bills regularly.  The opposite parties have stated in the written statement that during checking on 28.06.2012, the complainant was found using unauthorized electricity by theft for which the electricity meter of the complainant was being taken for lab testing.  It was found that the complainant was using the electricity by theft, therefore, on the basis of suspected theft and overloading, an assessment of Rs. 7,50,742/- was made against the complainant. Therefore, the complainant is not a consumer and the consumer complaint filed by him is not maintainable.

7.       There is no dispute with regard to the fact that on 28.06.2012 the officers of Electricity Department visited the complainant’s premises (hotel) to check the electricity connection, where the officers of the Electricity Department found that the complainant was using the electricity by tempering the meter, which comes under theft of electricity.  The complainant was authorized to use only 20 KW of electricity while during checking the consumption of electricity was found 31.490 KW.  It is mentioned in the inspection report (paper No. 47) of the opposite parties that during checking, it was found that there was a difference between the meter current and tong taster current. The condition of the seal was suspected.  According to this report, the bill of Rs. 10,00,057/- was made against the complainant.  On 07.07.2012, a final notice of assessment where it is mentioned that there was a difference of 8.290 KW between the meter current and tong taster current was found as over load and a shunt was also found in the meter by which it is proved that the complainant was using electricity by theft. An. F.I.R. was also lodged by the opposite parties against the complainant for committing offence under Section 135 of Electricity Act at Police Station, Haridwar, Khadkhadi on 28.06.2012 (Paper No. 43). 

8.       Learned counsel for the appellants cited a decision dated 28.08.2014 of this Commission rendered in First Appeal No. 125 of 2012; Uttarakhand Power Corporation Ltd. vs. Mohd. Alam.  In view of the above cited decision, the consumer was involve in power theft and final report has been filed in criminal proceeding, so the consumer complaint filed by the complainant was not maintainable before the District Forum and, therefore, the District Forum has wrongly allowed the consumer complaint.  Learned counsel for the appellants also cited a decision dated 01.07.2013 of the Hon’ble Supreme Court given in Civil Appeal No. 5466 of 2012; U.P. Power Corporation Ltd. and others vs. Anis Ahmad, wherein it was held that the Consumer Forum cannot derive power to adjudicate a dispute in relation to assessment made under Section 126 or offences under Sections 135 to 140 of the Electricity Act, as the acts of indulging in “unauthorized use of electricity” as defined under Section 126 or committing offence under Sections 135 to 140 do not fall within the meaning of “complaint” as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.  Learned counsel also cited a decision in the case of Assistant Divisional Engineer & Ors. vs. Killamsetty Janardhana Rao; 2014 (4) CPR 27 (A.P.), wherein it was held that in the case of power theft a consumer complaint is not maintainable.  Irrespective of fact, whether the provisional assessment of loss sustained by the appellant-Electricity Department made is valid or not, the consumer complaint filed by the complainant-respondent is for alleged deficiency in service on the part of the appellants is not maintainable under law. The District Forum has not considered the question whether the consumer complaint filed by the respondent-complainant under provisions of Consumer Protection Act, 1986 is maintainable, with regard to a case of theft or unauthorized use of electricity, therefore, the order of the District Forum is not sustainable under law and is liable to be set aside.

9.       The District Forum has not properly considered the facts and circumstances of the case and passed the order beyond its jurisdiction and has also erred in allowing the consumer complaint per impugned order, which cannot legally be sustained.  Therefore, the impugned order passed by the District Forum is liable to be set aside and the consumer complaint is liable to be dismissed.

10.     For the reasons aforesaid, the appeal is allowed.  The impugned judgment and order dated 03.04.2013 passed by the District Forum, Haridwar is set aside and the consumer complaint No. 199 of 2012 is dismissed.  No order as to costs.

(MRS. VEENA SHARMA)                                                (D.K. TYAGI)