SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The Complainant has filed this complaint petition, U/s-12 of C.P.A.-1986, (here-in- after called as the “Act”) alleging a “deficiency-in-service” by the Ops, where OP No.1 is the S.D.O.(Electrical), NESCO, Markona, OP No.2 is the Superintending Engineer, NESCO, Balia, Balasore and OP No.3 is the M.D., NESCO, Corporate Office, Balasore (all are now under TPNODL, Balasore).
2. The case of the complainant, in brief, is that the complainant is a consumer under the Ops. He was provided with power supply to his LI Point. The complainant incurred a loan for the purpose and he runs by engaging himself to maintain his livelihood and used to pay the electric dues from the income from the cultivation. On 30.9.2015, taking advantage of his absence in his house premises, OP No.1 along with his staffs and vigilance squad had been to his house without any prior intimation and illegally disconnected the power supply to his LI Point. The complainant intimated the above acts of the Ops to the higher authority of NESCO, but in vain. So, the complainant approached the Hon’ble High Court of Orissa as well as before the Ombudsman-II, OERC, Bhubaneswar and filed a petition against the OP No.1 vide consumer representation Case No.OMB(II)N-17 of 2016 which was disposed of on 29.6.2016 with a direction to the OP No.1 for steady power supply to his LI Point and to file compliance before this Commission. But the OP No.1 did not supply the power to his LI Point. Thus, the complainant filed W.P.(C) No.16657 of 2016 before the Hon’ble High Court of Orissa which was disposed of on 7.10.2016 with a direction to the OP No.1 & others to ensure steady power supply to his LI Point. But the OP No.1 supplied power to his LI Point on 7.11.2016.
It is the further case of the complainant that upon his grievance, BBCC Bank, Simulia Branch conducted an enquiry assessing the loss due to non-supply of power to the LI Point and submitted his report to DAO, Simulia, DDA, Balasore. Due to negligence, illegal and deficiency service on the part of the Ops, the complainant sustained irreparable loss with unnecessary harassment and mental agony.
The cause of action arose for filing of this case on 30.9.2015, 25.2.2016, 3.6.2016, 14.7.2016 and onwards, when the Ops illegally exercised their power.
With the aforesaid facts and circumstances, the complainant was constrained to file the present case with prayer for the reliefs, as sought for, in his complaint petition. Hence, this case.
To substantiate his case, the complainant relied upon the following documents, which are placed in the record -
- Photocopy of the energy bill for the month of August, 2015.
- Photocopy of money receipt dated 1.10.2015.
- Photocopy of complaint of the complainant to the higher authority.
- Photocopy of letter to Executive Engineer, NESCO, Soro and others.
- Photocopy of application to the AAO, Simulia dated 13.10.2015.
- Photocopy of application to the Branch Manager, BBCCB, Simulia Branch dated 16.10.2015.
- Photocopy of memo No.1250 dated 27.10.2015 of BBCCB, Simulia Branch.
- Photocopy of complaint to Authority dated 4.11.2015.
- Photocopy of receipt in token for power supply to the LI Point.
- Photocopy of order passed by GRF on 8.1.2016 in Case No.317 of 2015.
- Photocopy of complaint to the authority dated 29.2.2016.
- Photocopy of grievance to the Collector, Balasore and others dated 2.5.2015.
- Photocopy of grievance to Public Grievance Cell, Govt. of Odisha dated 2.5.2016.
- Photocopy of grievance registration.
- Photocopy of inquiry report of Manager, BBCCB, Simulia Branch.
- Photocopy of loan assessment of Chandighara SCS, Bari.
- Photocopy of judgment in Consumer Representation Case No.OMB(II)N-17 of 2016.
- Photocopy of order dated 7.10.2016 passed by the Hon’ble High Court in WP(C) No.16657/16.
- Photocopy of notice by the Bank dtd 18.3.2017 for repayment of loan.
- Photocopy of information to Mr. Asit Kumar Pradhan, SDO, NESCO, Markona dated 28.10.2016.
- Photocopy of information to Mr. Asit Kumar Pradhan, SDO, NESCO, Markona dated 3.11.2016.
- Photocopy of information to Mr. Asit Kumar Pradhan, SDO, NESCO, Markona dated 7.11.2016.
3. As it appears from the case record, the OP No.1 & 2 appeared on receipt of notice and filed their joint written version, whereas the OP No.3 did not choose to appear on receipt of notice, so, he was set ex parte.
4. In the written version, the OP No.1 & 2, challenging the maintainability of the case and cause of action, denied the averments made in the complaint petition. It is their specific case that on 30.9.2015, the vigilance squad of NESCO had inspected the premises of the complainant in presence of the representative of the complainant namely Smt. Manorama Behera. During verification, they found the seal of the meter is missing and the meter body seal bearing No.1001969 was broken and one extra wire has connected to the incoming side of the meter by-passing the load. They further detected that the by-pass load was 2.110 KW. The spot verification report was prepared then and there and a copy of which was handed over to the representative of the complainant. For such unauthorized use of electricity with dishonest intention, a proceeding U/s 126 of Electricity Act, 2003 was initiated against the complainant to realize the loss and FIR was lodged before the Energy PS and power supply was disconnected on the spot. Provisional assessment order was passed by the Assessing Officer on 1.10.2015. After receipt of provisional assessment order, the complainant neither acted upon it nor respond the order, rather, he has lodged a complaint before Simulia PS through his wife. On the other hand, due to non-filing of any objection, the Assessing Officer passed the final assessment order on 2.11.2015. On receipt of final assessment order, the complainant filed complaint before the GRF, Balasore vide GRF Case No.296 of 2015 which was disposed of on 28.11.2015 with a direction to the Ops to restore the power supply at the premises of the complainant immediately after receipt of Rs.5,000/- with a reasonable opportunity of being heard to the consumer on filing of objection before the Assessment Officer.
Thereafter, the complainant, without preferring any appeal before the appellate authority, has filed a petition before the OMBUDSMAN-II for redressal of his grievance regarding billing dispute after two months which was disposed of on 29.6.2016 with an observation that the complainant may place his issues before the appellate authority within 30 days from the date of the order for redressal of his grievance, if he has not filed the same so far and the Ops were directed to maintain steady power supply to the LI Point of the complainant.
On 21.9.2016, the complainant filed WP(C) No.16657 of 2016 before the Hon’ble High Court, Orissa which was disposed of on 7.10.2016 with a direction that the Ops to ensure steady power supply to the LI Point. Soon after receipt of the order of Hon’ble High Court, the Ops restore the power supply. It is specifically averred that on 28.4.2016, the premises of the complainant was verified and found the old house meter was installed in his firm house and was availing power supply in connecting RGGVY line for which the meter was seized. The Ops have further averred that the complainant has not produced the legal heir certificate and has not applied for transfer of the consumer-ship after the death of his father, so, the complainant is not a consumer as per law. With the aforesaid facts and circumstances, the present Ops have prayed to dismiss the complainant with cost.
To substantiate their case, the OP No.1 & 2 relied upon the following documents, which are placed in the record;
- Photocopy of spot verification report.
- Photocopy of provisional assessment order.
- Photocopy of final assessment order.
5. In view of the above averments of the parties, the points for determination in this case are as follows:-
(i) Whether the complainant is a consumer?
(ii) Whether there is any cause of action to file this case?
(iii) Whether this Consumer case is maintainable as per Law?
(iv) Whether there is any deficiency of service on the part of the O.P to the complainant?
(v) To what other relief(s), the Complainant is entitled to?
F I N D I N G S
6. That upon meticulous examination of the complaint petition, written version along with the documents presented by the parties in this case, admittedly it is found that the complainant is using electric energy for his LI Point. The so called LI Point was installed by the Govt. under Lift Irrigation Scheme on loan basis, which stands in the name of complainant bearing consumer A/c No.423302370049 since August, 2015 for the purpose of maintaining his livelihood and to pay the loan instalments as well as electric bill charges. Thus, it is held that the complainant is a consumer.
7. Learned counsel for the complainant urged that on 30.9.2015, taking advantage of his absence in the house premises, OP No.1 along with vigilance squad had been to his house without any intimation and illegally disconnected the power supply to his LI Point. Although the complainant intimated the above acts of the Ops before the higher authority of the Ops, they did not pay any heed to it. Thereafter, the complainant approached the Hon’ble Ombudsman-II, OERC, Bhubaneswar and filed a petition against the OP No.1 vide consumer representation Case No.OMB(II)N-17 of 2016 which was disposed of on 29.6.2016 with a direction to the OP No.1 for steady power supply to his LI Point and to file compliance before this Commission. But the OP No.1 did not supply the power to his LI Point. Thus, the complainant filed WP(C) No.16657 of 2016 before the Hon’ble High Court of Orissa which was disposed of on 7.10.2016 with a direction to the OP No.1 & others to ensure steady power supply to his LI Point. But the OP No.1 supplied power to his LI Point in late i.e. on 7.11.2016. Therefore, deficiency in service is clearly attributed against the Ops.
8. On the other hand, learned counsel for the contesting Ops submitted that on 30.9.2015, vigilance squad of the department had been to the premises of the complainant for verification in presence of the representative of the complainant namely Smt. Manorama Behera and found the seal of the meter is missing so also the meter body seal bearing No.1001969 was broken and one extra wire has connected to the incoming side of the meter by-passing the actual load which came to 2.110 KW. The spot verification report was prepared then and there and a copy of which was handed over to the representative of the complainant. For such unauthorized use of electricity with dishonest intention, a proceeding U/s 126 of Electricity Act, 2003 was initiated against the complainant to realize the loss and also an FIR was lodged before the Energy PS. Thereafter, power supply was disconnected on the spot. On 1.10.2015, provisional assessment order was passed by the Assessing Officer. After receipt of provisional assessment order, the complainant neither acted upon it nor respond the order, rather, he has lodged a complaint before Simulia PS through his wife. Therefore, the Assessing Officer passed the final assessment order on 2.11.2015. On receipt of final assessment order, the complainant filed complaint before the GRF, Balasore vide GRF Case No.296 of 2015 which was disposed of on 28.11.2015 with a direction to the Ops to restore the power supply at the premises of the complainant immediately after receipt of Rs.5,000/- with a reasonable opportunity of being heard to the consumer on filing of objection before the Assessment Officer. It is further submitted that the complainant, without preferring any appeal before the Appellate Authority, preferred to file a petition before the OMBUDSMAN-II for redressal of his grievance regarding billing dispute after two months which was disposed of on 29.6.2016 with an observation that the complainant may place his issues before the Appellate Authority within 30 days from the date of the order for redressal of his grievance, if he has not filed the same so far and the Ops were directed to maintain steady power supply to the LI Point of the complainant. That apart, on 21.9.2016, the complainant filed WP(C) No.16657 of 2016 before the Hon’ble High Court of Orissa which was disposed of on 7.10.2016 with a direction that the Ops to ensure steady power supply to the LI Point. Soon after receipt of the order of Hon’ble High Court, the Ops restore the power supply. It is specifically averred that on 28.4.2016, the premises of the complainant was verified and found the old house meter was installed in his firm house and was availing power supply in connecting RGGVY line for which the meter was seized. The Ops have further averred that the complainant has not produced the legal heir certificate and has not applied for transfer of the consumer-ship after the death of his father, so, the complainant is not a consumer as per law.
9. Upon hearing the submissions from both the sides, this Commission arrives at a conclusion that the Ops have supplied two connections in the premises of the complainant; one for the domestic purpose and another for agricultural purpose. The domestic connection stands in the name of the father of the complainant namely Bhaskar Ch. Behera of Vill. Maguragadia bearing A/c No.423312030322. The LI Point for agricultural purpose stands in the name of the complainant bearing A/c No.423302370049. So, it can safely be said that there are two electricity connections availed by the complainant.
10. The complainant has filed the complaint mainly with regard to the LI Point which has been installed incurring loan from the Government under Lift Irrigation Scheme and claimed compensation showing deficiency in service on the part of the Ops. But from the documents (vide Annexure-10, 17 & 18) produced on behalf of the complainant, it is crystal clear that the GRF, Balasore, Hon’ble OMBUDSMAN-II, Bhubaneswar as well as Hon’ble High Court of Orissa, all have directed the Ops to maintain steady power supply to the LI Point of the complainant. But the complainant is silent regarding the fact as to whether the Ops have restored the power supply to his LI Point or not.
11. But on perusal of the pleadings of both the parties, it is seen that the Ops have made spot verification in the premises of the complainant in respect of Domestic Consumer A/c No.423312030322 stands in the name of the father of the complainant. It is out of place to mention here that the LI Point bearing Consumer A/c No. 423302370049 itself stands in the name of the complainant. So, this Commission has nothing to sit over the matter when the Hon’ble OMBUDSMAN-II, Bhubaneswar and the Hon’ble High Court of Orissa have already decided the matter. Therefore, the very question arises before this Commission as to whether the complainant is entitled to the reliefs sought for in his complaint petition. In the present case, the Ops, after spot verification prepared SVR then and there at the spot and handed over a copy of it to the representative of the complainant. For such unauthorized use of electricity with dishonest intention, a proceeding U/s 126 of Electricity Act, 2003 was initiated against the complainant to realize the loss and also an FIR was lodged before the Energy PS. Thereafter, power supply was disconnected on the spot. Thereafter, provisional assessment order was passed by the Assessing Officer and as the complainant did not take any step the Assessing Officer passed the final assessment order. The complainant is totally silent about the assessment order in his complaint petition nor has filed any counter against the written version filed by the Ops. That apart, the complainant has not filed any document nor stated anything in his complaint petition regarding the fact that he has preferred GRF Case No.296 of 2015, as agitated before the Hon’ble OMBUDSMAN-II, Bhubaneswar.
12. 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 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. In the present case, neither the complainant complied the assessment order made by the Ops nor knocked the door of the Appellate Authority, as observed by the Hon’ble OMBUDSMAN-II, OERC, Bhubaneswar. From the foregoing discussions, it is held that the complaint filed by the complainant is not maintainable.
Hence, it is ordered -
O R D E R
The complaint of the complainant be and the same is dismissed on contest against the OP No.1 & 2 and on ex-parte against OP No.3. Parties to bear their own cost.
Pronounced in the open Court of this Commission on this day i.e. the 05th day of September, 2023 given under my Signature & Seal of the commission.
