Date of Filing – 09.12.2016

Date of Hearing – 30.10.2017

            The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Opposite Parties to assail the Order dated 27.10.2016 passed by the District Consumer Disputes Redressal Forum, Paschim Medinipur (for short, Ld. District Forum) in Consumer Complaint No. 16/2016.  By the impugned order, the Ld. District Forum allowed the consumer complaint lodged by the Respondent under Section 12 of the Act exparte with the direction upon the Opposite Parties/Appellants to prepare bill in respect of 5377 units from September, 2005 to the last part of 2006 as per tariff rate of the relevant period, to pay Rs.5,000/- as litigation cost and Rs.10,000/- for mental pain and agony for making false allegation and to pay Rs.50,000/- for loss employment for the period from 2004-2005.

          The Respondent herein being Complainant lodged the complaint asserting that he is a resident of Village& P.O.- Mugbasan, P.S.- Keshpur, Dist- Paschim Medinipur.  The complainant for starting a husking machine for his livelihood by self-employment obtained electric connection from West Bengal State Electricity Distribution Company Limited (WBSEDCL) in the year 1998 vide Service Connection No.1/465, Consumer Id. No.1500207 and Meter No – ST210049 and had been paid amount as per bill regularly.  However, on the allegation of theft of electricity, one case being Kashipur P.S. Case No.93/2004 dated 04.12.2004 under Section 379/201 IPC and under Section 135 of Electricity Act, 2003 was started and ultimately the complainant was acquitted by the Ld. Special Court under Electricity Act on 28.02.2014 in Case No.437/2004.  Meanwhile, the WBSEDCL served a notice upon the complainant for a bill of Rs.1,63,046/- for 24777 units.  The complainant moved a writ petition in the Hon’ble High Court being WP No.22415(W) of 2004 which was disposed of on 20.12.2004 directing the distribution licensee to restore electricity to the premises of husking mill of the complainant on receipt of 25% of the aforesaid amount.  On receipt of the said amount, the OP No.1 restored the electricity through installation of new meter being No.LT10437 on 06.04.2005.  Ultimately, in the last part of 2006, the OP No.1 disconnected electricity without any information to the complainant.  Thereafter, the office of OP No.1 served a bill of Rs.48,152/- upon the complainant showing the consumption of 5377 units.  Hence, the respondent approached the Ld. District Forum with prayer for certain directions upon the WBSEDCL including a direction to prepare a bill in respect of 5377 units from September, 2005 to last part of 2006 as per tariff rate of the relevant period.

          The Appellants being Opposite Parties did not contest.

          After assessing the materials on record, the Ld. District Forum by the impugned final order allowed the complaint with certain directions upon the opposite parties as indicated above.  Being aggrieved and dissatisfied with the said order, the opposite parties have come up in this Commission with the present appeal.

          Ld. Advocate for the appellants has submitted that on account of theft of electricity in respect of the subject premises, one case being Keshpur P.S. Case No.93/2004 dated 04.12.2014 under Sections 379/2001 IPC and under Section 135 of Electricity Act, 2003 was initiated against the respondent and though the respondent was acquitted by the Ld. Special Court under Electricity Act, 2003 on 28.02.2014 in Case No.437 of 2004, the liability to make payment of arrear bills cannot be withered away as civil liability under Section 126 of the Electricity Act, 2003 still subsits.  He has further submitted that the Ld. District Forum should not have admitted the complaint, far less to speak of awarding any order taking into consideration, the decision of Hon’ble Supreme Court reported in (2013) 8 SCC 491 (UP Power Corporation Ltd. & Ors. – Vs. – Anis Ahmad) and as such the impugned order should be set aside.

          Per contra, Ld. Advocate for the Respondent has contended that the respondent is an unemployed youth and running the husking mill for the purpose of his livelihood by means of self-employment and in that view of the matter, the Ld. District Forum has rightly passed the order which should not be interfered with.

          I have considered the rival contention of the parties and scrutinised the materials on record.

          Undisputedly, the Respondent/Complainant has been living in Village + P.O.– Mugbasan, P.S.- Keshpur, Dist- Paschim Medinipur and he obtained electric connection from WBSEDCL in the year 1998 vide Service Connection No.1/465, Consumer Id. No.1500207 and Meter No – ST210049 in order to run husking mill for the purpose of his livelihood by means of self-employment.

          The respondent/complainant in his petition of complaint has admitted that on the allegation of theft of electricity one case being Keshpur P.S. Case No. 93/2004 dated 04.12.2004 under Sections 379/201 IPC and under Section 135 of Electricity Act, 2003 was registered against him and ultimately he was acquitted from the charges levelled against him on 28.02.2014 by the Ld. Special Court under Electricity Act, Paschim Medinipur in Indian Electricity Act Case No- 437/2004. 

          From the documents filed by the respondent/complainant before the Ld. District Forum, it reveals that an assessment bill amounting to Rs.1,63,046/- for pilferage of electricity was raised by WBSEDCL.  The letter dated 20.02.2004 given by the respondent to the Station Manager, Uparkuai GES of WBSEDCL clearly indicates that the respondent requested the authority to withdraw the order of provisional assessment bill. 

          In a case reported in (2013) 8 SCC 491(UP Power Corporation Ltd. & Ors. – Vs. – Anis Ahmed) the Hon’ble Supreme Court while discussing over the matter, in Paragraph-47 (ii) has observed thus :-

          “(ii) A ‘complaint’ against the assessment made by assessing officer under Section 126 or against the offences committed under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum”. 

          Section 127 of the Electricity Act, 2003 provides for an appeal by any person aggrieved by an order of the Assessing Officer to the Appellete Authority as may be prescribed within the period of 30 days from the order.  It also provides that no appeal shall be entertained unless an amount equal to one-third of the assessed amount is deposited with the licensee.  Therefore, against the final order the respondent himself should prefer an appeal by depositing one-third of the Final Assessment Bill.  Therefore, keeping in view the legislative mandate, the Ld. District Forum had no scope to pass an order otherwise contrary to the provisions of the Electricity Act.

          When Final Assessment as per provisions of Section 126 of the Electricity Act has been made by the Assessing Officer, it is a civil liability and the respondent may have no responsibility with regard to criminal action under Section 135 of the Electricity Act but he cannot absolve his civil liability to repay the arrear amount of electricity bill.  Therefore, keeping in view the observation made by the Hon’ble Supreme Court, the Ld. District Forum should not have admitted the complaint as the complainant cannot be categorised as ‘consumer’ as defined in Section 2(1)(d) of the Act.

          For the reasons aforesaid, the appeal is allowed on contest.  I do not make any order as to costs.

          The impugned order is hereby set aside.

          Consequently, the CC/16/2016 stands dismissed.

          The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Paschim Medinipur for information.