Date of Filing – 19.09.2016

Date of Hearing – 28.07.2017

            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 29.07.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Purba Medinipur at Tamluk (for short, Ld. District Forum) in Consumer Complaint no. 46/2016.  By the impugned order, the Ld. District Forum allowed the consumer complaint lodged by the Respondent under Section 12 of the Act in part with the direction upon the Opposite Parties to restore the service connection to the premises of the complainant within 15 days hence and OPs would be at liberty to realise the outstanding dues stand in the name of father of the complainant in 36 monthly instalments through the electric bills that would be raised in respect of the electric meter of the complainant.

          The Respondent herein being Complainant lodged the complaint asserting that he is a resident of village – Deulbarh, P.O.- Sagarbarh, P.S.- Kolaghat, Dist- Purba Medinipur and got the landed property by a registered Deed of Gift dated 25.03.2015 and after amicable settlement with other co-sharers, he has been living thereon.  On 10.11.2014 he has applied for electricity connection and deposited Rs.439/- for security deposit and Rs.400/- for service connection charge.  After deposit of the required amount, OPs connect the new service connection in his house on 16.01.2015 bearing Meter No. 13905505 and attached a Yellow Card for noting the reading of unit.  Subsequently, on 27.02.2015 the OP No.1 sent a letter mentioning that payment of outstanding dues Rs.2,19,115.83 paise lying at the premises.  Thereafter, several correspondences were made.  Ultimately, under the instruction of OP No.1, the office staff disconnect the electric connection of complainant’s house on 17.07.2015.  After disconnection, the complainant several times meet with the OPs for electric bill and reconnection but it turned a deaf ear.  Hence, the respondent approached the Ld. District Forum with prayer for several reliefs like – (a) to restore the electric connection in his dwelling house; (b) to issue electric bill to the complainant; (c) compensation of Rs.50,000/- for harassment and mental agony and (d) Rs.2,000/- as litigation cost etc. 

          The Appellant No.1being OP No.1 by filing a written version has stated that the complainant has applied for a new service connection suppressing the actual fact regarding outstanding dues amounting to Rs.2,19,115.83 paise in the name of his father Sk. Sahabul Ali.  When the matter came to notice, the complainant was duly intimated about the fact through a letter dated 27.02.2015 informing him that in case of non-payment of outstanding dues, the connection would be liable to be disconnected.  However, as the outstanding amount was not realised, the line was disconnected.  

          After assessing the materials on record, the Ld. District Forum by the impugned final order allowed the complaint with the 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.

          Mr. Srijan Nayak, Ld. Advocate for the appellants has submitted that on account of theft of electricity in respect of the subject premises, one case being Kolaghat P.S. Case No.307/2014 dated 25.07.2014 under Section 135 of Electricity Act, 2003 has already been initiated against the father of the respondent/complainant.  He has also submitted that on 08.08.2014 a Final Assessment as per provisions of Section 126(1)(a) of the Electricity Act has been made where Final Assessment Bill was assessed at Rs.2,19,116/-.  He has further submitted that after the said incident of theft and final assessment in order to avoid liability, the father of the respondent transferred the property to the respondent which indicates nexus between the respondent and his father to absolve their responsibility.  In support of his contention, Mr. Nayak has referred me the Regulation No.3.4.2 of WB Electricity Regulatory Commission being No.55/WBERC published in the Kolkata Gazette dated 07.08.2013.  He has also referred the decision of the Hon’ble Supreme Court, particularly Paragraphs – 12, 13 & 14 reported in (2009) 1 SCC 210 (Paschimanchal Vidyut Vitran Nigam Ltd. & Ors. –Vs. – DVS Steels and Alloys Pvt. Ltd. & Ors.) and also a decision of Division Bench of Calcutta High Court in MAT No.1392/2010 + CAN No.9172/2010 (M/s. M. K. Sons – Vs. – CESC Ltd. & Ors.).  He has finally submitted that when there is clear nexus between the previous consumer and the present consumer being father and son and further when final assessment has already been done, the Ld. District Forum should not have passed the order by giving 36 instalments which is contrary to the provisions of Section 127 of the Electricity Act and therefore, the impugned order should be set aside and unless the outstanding dues is paid, the respondent is not be entitled to have electric connection in his premises.

          Per contra, Ms. Sujata Mukherjee, Ld. Advocate for the Respondent has contended that the complainant has no dues at all at any time in respect of his premises situated at Plot No.965 and he is not at all liable for making any payment towards any amount raised by the appellants in the name of some other persons, whatever may be the relation between them does not and/or cannot have any relevance at any material point of time by any means whatsoever.  To fortify her submission, Ld. Advocate for the respondent has placed reliance to a decision of a single Bench of Calcutta High Court reported in 1999 (II) CHN 701 (Prahalad Rai Goenka – Vs. – The CESC Ltd. & Ors.).

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

          Undisputedly, the Respondent/Complainant has been living in Village – Deulbarh, P.O.- Sagarbarh, P.S. – Kolaghat, Dist- Purba Medinipur and he constructed the house which once belonged to his father Sk. Sahabul Ali.  On the allegation of theft of electricity, one case being Kolaghat P.S. Case No.307/2014 dated 25.07.2014 under Section 135 of Electricity Act, 2003 has been registered against the father of the respondent.  It is also evident that in accordance with the provisions of Section 126(1)(a) of the Electricity Act, 2003 a Final Assessment Bill of Rs.2,19,116/- has been passed by the Assessing Officer on 08.08.2014. It would be pertinent to record that the alleged Deed of Gift was executed by the father of the respondent on 25.03.2015 in favour of the respondent when an allegation under Section 135 of Electricity Act has been registered and a final assessment has already been made under Section 126 of the said Act. 

          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 Sk. Sahabul Ali i.e. the father of the respondent or the respondent himself should prefer an appeal by depositing one-third of the Final Assessment Bill of Rs.2,19,116/-.  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.

          The decision referred by the Ld. Advocate for the respondent in the case of Prahalad Rai Goenka (supra) has no manner of application because the said case was dealt with the repealed Indian Electricity Act, 1910.  Under the Old Act, there was no provision of final assessment which is now in force as per provisions of Section 126 of the new Act.  In fact, the new provision under Section 126 of new Act has been enacted to bring civil liability besides the penal action as provided under Sections 135 to 140 of the New Act (corresponding to Section 39 of the Old Act.) 

          The Regulation has a statutory force and in Regulation No. 3.4.2 prescribes – “The licensee shall be eligible to recover from a new and subsequent consumer (s) the dues of the previous and defaulting consumers in respect of the same premises only if a nexus between the previous and the defaulting consumer(s) and the new consumer(s) in respect of the same premises is proved.  The onus of proving a nexus, if claimed by a licensee, shall lie on the licensee”.

          The father of the respondent during the pendency of criminal charge as well as civil liability transferred the subject property where the electric connection was installed to the respondent by way of gift.  The object is very clear and it simply signifies the nexus between the previous consumer (father) and the respondent (son).

          In Paragraph-12 in the case of Paschimanchal Vidyut Vitran Nigam Ltd. & Ors. (supra) the Hon’ble Apex Court has observed – “ when the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity.  It can stipulate as one of the conditions for supply, that arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant should be cleared before the electricity supply is restored to the premises or a fresh connection is provided to the Premises .......:”.  In Paragraph-13 of the said decision, the Hon’ble Court proceeded to observe – “A. Stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary.  In the absence of such a stipulation, and unscrupulous consumer may commit defaults with impunity, and when the electric supply is disconnected for non-payment, may sell away the property and move on to another property, thereby making it difficult, if not impossible for the distributor to recover the dues.....”.

          The respondent/complainant has got the property from his father by way of Deed of Gift and enjoying the usufruct of it and as such the respondent must also bear the brunt of the property and he cannot shift his burden to the common man i.e. tax payers money.  In other words, 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 amount of Rs.2,19,116/-.

          For the reasons aforesaid, the impugned order is modified to the extent that only on payment of outstanding dues of Rs.2,19,116/- (as per Final Assessment Bill), the appellants/OPs to restore the service connection to the premises of the complainant within 7 (seven) days thereof.

          With the above observations, the appeal stands disposed of.

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