SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The Complainant has filed this complaint petition, U/s-35 of C.P.A.-2019, (here-in- after called as the “Act”) alleging a “deficiency-in-service” by the OP with a prayer to waive out the assessed penalty amounting to Rs.36,982/-.
2. The case of the complainants, in short, is that the complainant is a consumer under the OP bearing consumer No.3211072300138 with a contract load of 2.5 KW. He applied for change of his consumer category from domestic to commercial on 10.1.2023. On 16.2.2023, some staffs of OP visited the premises of the complainant and on verification, they found that he used to avail power unauthorizedly for the Boys Mess named Geeta Mess with contract load of 2.5 KW and misused the tariff and accordingly assessment was made U/s 126 of I.E. Act. On 17.2.2023, provisional assessment order amounting to Rs.36,982/- was issued by the OP. On 25.2.2023, the complainant filed his objection against the illegal assessment which was not accepted by the OP. Again on 25.1.2024, the complainant approached for withdrawal of the said petition dated 10.1.2023 and do not press for change of status from domestic to commercial as he does not let out for the purpose of mess. But the OP did not listen to it, rather, demanded to pay the penalty of Rs.36,982/- or else power supply will be disconnected. It is stated that there was no boys mess in existence as on 16.2.2023. The complainant had simply filed a petition with a proposal to run a mess and thus wanted for change of status which was later withdrawn. It is further stated that the OP has committed deficiency in service in not accepting the complainant’s objection dated 25.2.2023 and withdrawal petition dated 25.1.2024. The complainant has further stated that although he had entered into an agreement for the purpose to run mess on 9.1.2023, but actually the mess was not functioning on the very day. Therefore, the assessment made against him is completely illegal and arbitrary.
The cause of action arose for filing of this case on 25.1.2024 and on 29.1.2024, when the petition of the complainant for withdrawal of petition dated 10.1.203 was not considered and petition dated 25.2.2023 was not accepted and remained unheard. Therefore, the complainant was constrained to file the present case. Hence, this case.
To substantiate his case, the complainant relied upon the following documents, which are placed in the record-
- Photocopy of application dated 10.1.2023.
- Photocopy of electric bill and payment receipt for January, 2023.
- Photocopy of letter with provisional assessment order.
- Photocopy of house rent agreement.
- Photocopy of letter of complainant dated 27.2.23, 25.1.24.
3. The OP has made his appearance and filed written version challenging the maintainability of the case and cause of action for filing the case. He has stated, inter alia, that on 16.2.2023, the verification squad of TPNODL visited to the premises of the complainant in his presence and it was found that the complainant availing power supply unauthorizedly for the boys mess in the name and style “Geeta Mess” which was coming under commercial tariff. The complainant has received the verification report with his signature. Thereafter, provisional assessment order was prepared and served on him with intimation to file objection within seven days and to appear on 24.2.2023 for hearing. But the complainant did not file objection and remained absent on the date of hearing. Thus, final assessment order amounting to Rs.36,982/- was passed and served on the complainant. The complainant neither deposited the assessment amount nor filed appeal before the appropriate authority. In such circumstances, it is prayed by the OP to dismiss the case with cost.
In order to substantiate its case, the OP has relied upon the following documents which are placed in the case record –
- Photocopy of spot verification report dated 16.2.2023.
- Photocopy of provisional assessment order.
- Photocopy of final assessment order.
4. In view of the above averments of parties, the points for determination in this case are as follows:-
(i) Whether the complainant is a consumer or not?
(ii) Whether the complainant has cause of action to file this case?
(iii) Whether this consumer case is maintainable?
(iv) Whether there is any deficiency in service on the part of the OPs?
(v) Whether the complainant is entitled to get the relief, as sought for?
(vi) 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 determined as to whether the complainant is a consumer or not. From the averments made in the pleadings of both the parties so also from the documents produced by the parties, it is clear that the complainant is a consumer under the OP and thus, it is clear that the complainant is covered under the definition of a consumer as defined under the provisions of the Consumer Protection Act, 2019.
6. Now it is to be determined as to whether the complainant has sufficient cause of action to file the case and whether the case is maintainable in the eye of law. During course of hearing, it is argued by the learned counsel for the complainant that on 16.2.2023, some staffs of OP visited the premises of the complainant and on verification, they found that he used to avail power unauthorizedly for the Boys Mess named “Geeta Mess” with contract load of 2.5 KW and misused the tariff and accordingly assessment was made U/s 126 of I.E. Act. On 17.2.2023 and accordingly, provisional assessment order amounting to Rs.36,982/- was issued by the OP. It is further argued that on 25.2.2023, the complainant filed his objection against the illegal assessment which was not accepted by the OP and again on 25.1.2024, the complainant approached for withdrawal of the said petition dated 10.1.2023 and do not press for change of status from domestic to commercial as he does not let out for the purpose of mess. But the OP did not listen to it, rather, demanded to pay the penalty of Rs.36,982/- or else power supply will be disconnected. It is further urged that there was no boys mess in existence as on 16.2.2023. The complainant had simply filed a petition with a proposal to run a mess and thus wanted for change of status which was later withdrawn. Thus, the OP has committed deficiency in service in not accepting the complainant’s objection dated 25.2.2023 and withdrawal petition dated 25.1.2024. Further, it is submitted that although the complainant had entered into an agreement for the purpose to run mess on 9.1.2023, but actually the mess was not functioning on the very day. Therefore, the assessment made against him is completely illegal and arbitrary.
7. On the other hand, during course of hearing, learned counsel for OP submitted that on 16.2.2023, the verification squad of TPNODL visited to the premises of the complainant in his presence and found the complainant was availing power supply unauthorizedly for running of a boys mess which was coming under the commercial tariff. The complainant has received the verification report with his signature and thereafter, provisional assessment order was prepared and served on him with intimation to file objection within seven days and to appear on 24.2.2023 for hearing, but the complainant did not file objection and remained absent on the date of hearing. Therefore, final assessment order amounting to Rs.36,982/- was passed and served on the complainant. The complainant neither deposited the assessment amount nor filed appeal before the appropriate authority. It is further argued that this is a case U/s 126 of I. E. Act and this Commission has no jurisdiction to sit over the matter.
8. From the above rival submissions of both the parties, one thing is crept in the mind of this Commission that this is a clear case of an assessment order and the complainant has challenged the assessment order passed by the OP.
In this context, the Hon’ble Apex Court in a decision reported in 2014 (I) OLR (SC) - 68 in the case of U.P. Power Corporation Ltd. & 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 Forum. By virtue of Section 3 of Consumer Protection Act, 1986 or Section 173, 174 & 175 of Electricity Act, 2003, Consumer Forum cannot drive 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.
9. In the present case, as it is seen from the documents filed on behalf of the OP vide Annexure-A, B & C that spot visit to the premises of the complainant was made on 16.2.2023 and provisional assessment order was passed U/s 126 of Electricity Act, 2003. From the pleading of both the parties, it is found that the complainant did not choose to file objection against the provisional assessment order nor remained present on the date of hearing i.e. on 24.2.2023. Therefore, final assessment order U/s 126(3) & (5) of the Electricity Act and Electricity Amendment Act, 2007 was passed amounting to Rs.36,982/- with a direction to pay the aforesaid amount within 30 days from the date of receipt of the order or to file appeal before the Appellate Authority within such 30 days. As it is seen from the case record, the complainant has neither paid the assessment amount nor filed the appeal before the appropriate authority within the time specified and filed the present case with a prayer to waive out the assessed penalty imposed on him.
10. From the above discussions made in the foregoing paragraph and taking into account the observations of the Hon’ble Apex Court in the case of U.P. Power Corporation Ltd. & others –v- Anis Ahmad, this Commission is of the considered view that the case of the complainant is not maintainable. Therefore, the complainant has no cause of action to file the present case. Consequently, the complainant is not entitled to get any relief what-so-ever in this case.
Hence, it is ordered -
O R D E R
The case of the complainant be and the same is dismissed on contest against the OP without any cost.
Pronounced in the open court of this Commission, this the 30th day of April, 2024 under signature & seal of the commission.
