SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)       

            The complainant has filed this complaint petition, U/s-35 of C.P. Act, 2019, (here-in- after called as the “Act”), on dated 26.4.2022, alleging a “deficiency-in-service” by the Ops, where OP No.1 is the SDO, Electrical, BED-I, Balasore whereas OP No.2 is the Junior Manager, Electrical Section Office at Mathasahi, Balasore.   

2.         The case of the complainant, in a nutshell, is that she is a domestic consumer under the Ops bearing No.B7-0370 with energy load of 3 KW. It is specifically stated that on 23.11.2012, OP No.2 made spot checking to her premises and found that the meter was in order, but energy load was enhanced to 5 KW from 3 KW and she was issued with a spot visit report wherein she has been asked to make extra security deposit on 30.11.2012 and accordingly, the complainant paid the extra deposit. The OP No.2 again visited the premises of the complainant on 14.10.2014 and found that the body of the meter was tampered and he disconnected the power supply to her premises and instructed for fixation of a new meter. Again on 9.11.2021, the Ops made a spot verification and found that the meter was in running condition, but the meter seal was cut and supplied her with a spot verification report with an observation that the complainant was availing power supply unauthorizedly for commercial purpose and direction was issued for change of tariff from domestic to commercial category. Lastly, on 14.12.2021 the Ops have installed a new meter with a sanction load of 5 KW. It is further stated by the complainant that she used to make payment of the dues of the Ops as per consumption. In the month of December, 2021, the complainant was served with a demand notice showing Rs.85,623.82 Paisa to which the complainant sought for a report under RTI Act from the PIO of the office of the Ops on 15.3.2022 and she obtained the report from the PIO of the Ops wherein it has been mentioned that due to tariff change from domestic to commercial, the aforesaid amount has been added in the bill. The above illegal and arbitrary act of the Ops, the complainant sustained a lot of inconvenience and mental agony. It is stated by the complainant that the cause of action for the case arose on 11.4.2022 when the PIO intimated that the tariff is changed due to commercial category conversion of power supply and on 31.3.2022 when the Ops threatened to disconnect the power supply to her premises.    

            To substantiate her case, the complainant relied upon the following documents, which are placed in the record -

1. Photocopy of spot verification report dated 23.11.2012.
2. Photocopy of final assessment order.
3. Photocopy of spot verification report dated 14.10.2014.
4. Photocopy of spot verification report dated 9.11.2021.
5. Photocopy of enhanced energy bill dated 14.12.2021.
6. Photocopy of payment receipt.
7. Photocopy of Payment receipt.
8. Photocopy of bill of supply for electricity.
9. Photocopy of application under RTI Act.
10. Photocopy of reply of Ops.
11. Photocopy of bill with demand notice.

3.         In the present case, the Ops have appeared and filed their written version. They have stated that the complainant has no cause of action to file this case nor the case is maintainable and the case is bad for non-joinder of necessary parties. The Ops have stated, inter alia, that the complainant is a consumer having contract demand of 3 KW. On 23.11.2012, when the spot verification was made, it was detected that the complainant was availing power supply to the tune of 5 KW against the contract demand and the complainant was intimated to deposit additional security and thereafter on deposit of Rs.1,422.00 by the complainant, contract demand was enhanced to 5 KW. Further, on 14.10.2019, another spot verification was made and it was detected that the meter was tempered and interfered with meter internal circuit for which a new meter was replaced. On 9.11.2021, another spot verification was made and it was detected that the complainant used 5 KW loan for commercial purpose and accordingly, a new meter was installed and assessment order was passed for Rs.80.432.00 along with additional security amounting to Rs.14,596.00 with the intimation to file any objection against the provisional order within 7 days before the Assessing Officer. On 8.12.2021, hearing was conducted, but the complainant neither appeared nor filed any objection on the same day. Therefore, the Assessing Officer passed final order. The complainant has neither deposited the amount as demanded in the final assessment order nor preferred any appeal against the said order, rather, she choose to file the present case before this Commission, which is not at all maintainable in the eye of law. Thus, the deficiency in service, as agitated by the complainant, does not arise. Hence, it is prayed that the complaint may be dismissed with cost.

            In support of their case, the Ops have produced the following documents, which are placed in the record -

1. Photocopy of spot verification report.
2. Photocopy of provisional order U/s 126 (2) of Electricity (Amendment) Act.
3. Photocopy of final assessment order.  

4.         In view of the above averments, the points for determination in this case are as follows:-

1. Whether the complainant is a consumer or not?
2. Whether there is any cause of action to file this case?
3. Whether the present case is maintainable?
4. Whether there is any deficiency in service on the part of the Ops?
5. To what other relief(s), the complainant is entitled to?

F I N D I N G S

5.         First of all, it is to be decided as to whether the complainant is a consumer under the Ops or not. It is the case of the complainant that she is a domestic consumer under the Ops and the Ops have not denied the said fact. On perusal of the documents produced on behalf of the complainant vide Annexure-1 to 11, it is clearly established that the complainant is a consumer under the Ops. Hence, the complainant is a consumer.

6.         For the sake of convenience and for better appreciation, issue No. ii to v are taken up together. Before delve into the merit of the case, it is felt necessary to discuss as to why the Ops have demanded the illegal amount from the complainant, as she agitated in her case. Learned counsel for the complainant urged that on 23.11.2012, OP No.2 made spot visit to the premises of the complainant and found that the meter was in order, but the energy load was enhanced to 5 KW from 3 KW and the complainant was issued with a spot visit report wherein she has been asked to make extra security deposit on 30.11.2012 and thus, the complainant paid the extra deposit. The OP No.2 again visited the premises of the complainant on 14.10.2014 and found that the body of the meter was tampered and the power supply to the premises of the complainant was disconnected and instruction was issued for fixation of a new meter. Again on 9.11.2021, the Ops made spot verification and found that the meter was in running condition, but the meter seal was cut and supplied her with a spot verification report with an observation that the complainant was availing power supply unauthorizedly for commercial purpose and direction was issued for change of tariff from domestic to commercial category. Lastly, on 14.12.2021 the Ops have installed a new meter with a sanction load of            5 KW. It is further stated by the complainant that in the month of December, 2021, she was served with a demand notice showing Rs.85,623.82 Paisa to which the complainant sought for a report under RTI Act from the PIO of the office of the Ops on 15.3.2022 and she obtained the report from the PIO of the Ops wherein it has been mentioned that due to tariff change from domestic to commercial, the aforesaid amount has been added in the bill.

7.         On the other hand, learned counsel for the Ops has submitted that on 23.11.2012, when the spot verification was made, it was detected that the complainant was availing power supply to the tune of 5 KW against the contract demand and the complainant was intimated to deposit additional security and thereafter on deposit of Rs.1,422.00 by the complainant, contract demand was enhanced to 5 KW. Further, on 14.10.2019, another spot verification was made and it was detected that the meter was tempered and interfered with meter internal circuit for which a new meter was replaced. On 9.11.2021, another spot verification was made and it was detected that the complainant used 5 KW loan for commercial purpose and accordingly, a new meter was installed and assessment order was passed for Rs.80.432.00 along with additional security amounting to Rs.14,596.00 with the intimation to file any objection against the provisional order within 7 days before the Assessing Officer. On 8.12.2021, although hearing was conducted, the complainant neither appeared nor filed any objection on the same day. Therefore, the Assessing Officer passed final assessment order.

8.         At the outset, it is to be decided as to whether the complaint of the complainant is maintainable and is there any deficiency of service on the part of the Ops towards the complainant.

In this context, the Hon’ble Apex Court in a decision reported in III (20213) CLT-55 (SC) in the case of Uttar Pradesh Power Corporation Limited & others –v- Anis Ahmad have been pleased to observed that complaint against assessment made U/s 126 of Electricity Act, 2003 is not maintainable before a Consumer Forum. It is the Civil Court to sit upon the matter with respect to the decision of the Assessing Officer. After notice of provisional assessment to the person alleged to have indulged in unauthorized use of electricity, the final decision by an assessing Officer, who is a public servant, on the assessment of “unauthorized use of electricity” is a quasi-judicial decision and does not fall within the meaning of “consumer dispute” U/s 2(1)(e) of Consumer Protection Act. Offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted U/s 153 of Electricity Act, 2003, thus, also the complaint against any action taken U/s 135 to 140 of Electricity Act, 2003 is not maintainable before Consumer Commission. By virtue of Section 3 of Consumer Protection Act, 1986 or Section 173, 174 & 175 of Electricity Act, 2003, Consumer Commission cannot derive power to adjudicate a dispute relating to assessment made U/s 126 or offences U/s 135 to 140 of Electricity Act, as the acts of indulging in “unauthorized use of electricity” do not fall within the meaning of “complaint” as defined U/s 2(1) (c) of Consumer Protection Act, 1986. In the present case, neither the complainant complied the assessment order made by the Ops nor knocked the door of the GRF, rather, choose to file complaint before this Commission. From the foregoing discussions, it is held that the complaint filed by the complainant is not maintainable. Consequently, deficiency of service on the part of the Ops does not arise at all.

            Hence, it is ordered -

O R D E R

            The complaint of the complainant be and the same is dismissed on contest against the O.Ps. In the peculiar facts and circumstances of the case, no cost.                         

            Given under my hand and seal of this Commission, this the 19^th day of June, 2023.