Date of Filing – 14.10.2015

Date of Hearing – 06.09.2016

PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Parties to impeach the Judgement and Final Order dated 16.09.2015 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, Ld. District Forum) in Consumer Complaint no. 664/2014 whereby the consumer complaint initiated by the Respondent under Section 12 of the Act was allowed on contest with a direction upon the Appellant to restore the electric connection of the Complainant within 30 days from the date of order.

          The Respondent herein being Complainant lodged the complaint alleging that he is a bonafide consumer of electricity under OP nos. 1 & 2 being Consumer no.1020664 corresponding to Meter no.971838 and Service Connection no.CJI424 and the Category of the Meter was Commercial for the purpose of running the brick field and he never defaulted in payment of the bills.  However, the said connection was discontinued on 07.07.2007 on the allegation of theft of energy for which one case being Barasat P.S. Case no.435 dated 07.07.2007 under Sections 135 and 138 of Electricity Act, 2003 was initiated.  Subsequently, he was acquitted along with others by the Ld. Judge, Special Court, Barasat, North 24 Parganas on 11.09.2014.  Inspite of the said order, the OPs did not restore the electric connection.  Hence, the Respondent has approached the Ld. District Forum with prayer for direction upon the OPs/WBSEDCL to restore the electric connection of the Petitioner, to pay compensation of Rs.2,00,000/- etc.

          The Appellants being OPs by filing written version disputed the allegations contending inter alia that  disconnection of service of electricity  was done due to theft of electricity and the Complainant has not paid the amount of Rs.11,54,022/- as assessed under Section 126 of the Electricity Act.  The OP has also stated that against the order of acquittal, they have preferred an appeal being CRA no.43 of 2015 before the Hon’ble High Court and as such the complaint should be dismissed.

          After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint on contest against the OPs without cost with the direction as indicated above, which prompted the OPs to prefer this appeal.

          We have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the respective parties.

          Having heard the Ld. Advocates for the parties and on going through the materials on record, it would reveal that the Respondent was a ‘consumer’ under the Appellants and he was enjoying commercial connection for the purpose of running his business in the brick field.  On 07.07.2007, the said connection was disconnected on the allegation of pilferage of electricity.  A specific case being Barasat P.S. Case no.435 dated 07.07.2007 under Sections 135/138 of the Electricity Act, 2003 was started against the Respondent and two others.  After investigating into the matter, police submitted charge sheet under Section 138 of the Electricity Act against the accused persons including the Respondent.  However, after trial the Respondent and the other two accused person were acquitted by the Ld. Judge, Special Court, Barasat, Dist-North 24 Parganas on 11.09.2014 in Special (I.E.) Case no.1056/2014.

          Mr. Alok Mukhopadhyay, Ld. Advocate for the Appellants has submitted that in view of the decision of the Hon’ble Supreme Court reported in AIR 2013 SC 2766 (U.P. Power Corporation Ltd. & Ors. – Vs. – Anis Ahmed) the Ld. District Forum should not have entertained the complaint in view of specific bar in entertaining the same in case of final assessment order under Section 126 or theft of electricity under Section 135 of the Electricity Act, 2003.  Ignoring the provisions of law when the Ld. District Forum has passed the order directing the Appellant to restore electric connection to the Respondent, the said order should be set aside.

          Mr. Rajesh Biswas, Ld. Advocate for the Respondent, on the other hand, contended that the charge levelled by the Appellants for theft of electrical energy has failed and the Appellants have failed to show any order of the Hon’ble High Court regarding stay or otherwise about the final order passed by the Ld. Judge, Special Court under the Electricity Act, 2003 and as such it is an obligation on the part of the Appellants to restore the electric connection disconnected by them on 07.07.2007 on the allegation of theft of energy.

          We have given thoughtful consideration to the submission advanced by the Ld. Advocates appearing for the parties.  In U.P. Power Corporation Ltd. & Ors. – Vs. – Anis Ahmed reported in AIR 2013 S.C. 2766, the question came for consideration before the Hon’ble Supreme Court whether the Consumer Forum has jurisdiction to entertain a complaint filed by a consumer or any person against the assessment made under Section 126 of the Electricity Act, 2003 or action taken under Sections 135 to 140 of the Electricity Act, 2003.  In answering the question, the Hon’ble Supreme Court has observed – “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”. 

          It is not in dispute that two parallel proceedings, one under Section 126 of the Electricity Act, 2003 and another under Section 135(1) of the Electricity Act, 2003 have been initiated by the WBSEDCL against the Respondent/ Complainant.    The final assessment order under Section 126 of the Electricity Act, 2003 clearly indicates that the total electricity charges and Government Duty payable for the unauthorised use of electricity comes to Rs.11,54,022/- and the said amount is due and payable by the Respondent in favour of the Appellants. 

It would be worthwhile to record that in case of pilferage of electricity, actions are twofold – one is a civil action for recovery of amounts towards the consumption of electricity and the other penal action is towards the act of theft of energy meaning thereby the two separate proceedings stand on independent footing and they do not depend upon each other.  Therefore, the Respondent against whom a civil action has been initiated and it was found that a sum of Rs.11,54,022/- is due and payable, the Respondent cannot absolve his responsibility in payment of the same on the ground that he has been acquitted from the charge levelled against him with the others under Section 138 of the Electricity Act, 2003

          After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties and on going through the materials on record, we find that the Ld. District Forum has committed a grave mistake without following the observation of the Highest Court of Land regarding admissibility of a complaint in case of theft of electrical energy and assessment thereof. 

Therefore, we modify the order to the extent that on payment of balance amount of assessment of Rs.11,54,022/-, the Appellants/OPs will restore electric connection of the meter of the Respondent/Complainant Shri Ganesh Singh forthwith.

The instant appeal stands disposed of on contest without any order as to costs.

          The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.