Dt. 16.09.2015

JAGANNATH BAG, MEMBER

          The present appeal is directed against the order dated 05.09.14, passed by the Ld. District Consumer Disputes Redressal Forum, Howrah, in complaint case No. HDF/15/2014 , whereby the complaint was allowed on contest.

          The complaint , in brief, was as follows:

          The Complainant being the owner and occupier of a piece of land made structures on the land at his own cost. He got electric connection of 220 volts from the OPs upon performing all formalities and has been enjoying electricity through meter No. DO652070 by paying electric charges regularly. He applied for industrial electric connection in his premises for the purpose of running his business and paid the necessary fees etc. as demanded by the OPs. After inspection, the OP sent quotation and asked him to pay necessary fees. A meter was installed at the premises on 02.08.2012, but the same was removed after 3 hours on the plea that the meter was defective and a new meter would be installed within 2/3 days. But subsequently, the OP sent a letter to the Complainant demanding a sum of Rs. 2,38,986/- along with other charges as the said amount was lying as outstanding dues against one M/s Tarak Nath Bright  Bar in the said premises. On 06.08.2014 he came to know from the OPs that they would not give electric connection as applied for. In the said circumstances the petition of complaint was filed on the ground of deficiency in service on the part of the OPs with prayer for direction upon the OPs to give industrial electric connection at the premises of the Complainant , apart from payment of compensation of Rs. 50,000/- for harassment and cost of litigation.

          The complaint was contested by the OPs who denied all material allegations except those which were specifically admitted. It has been stated in the W.V of the OPs that no meter was installed in the premises of the Complainant on 02.08.2012 and the question of removal of such meter did not arise. It was contended that at the time of effecting new service connection in the name of M/s Ramkrishna Trading Co. it revealed from enquiry that an amount of Rs.2,38,986/- + LPSC remained as outstanding dues against M/s Tarak Nath Bright  Bar in the said premises. The Complainant was informed accordingly vide Memo. No. DCC /NSC /1691 dated 01.09.2012. The OPs also referred to the judgment of the Hon’ble Supreme Court in Paschim Anchal Bidyut Bitaran Nigam Ltd. -vs- DVS Steal and Alleys Pvt Ltd.l (Civil Appeal No. 6565 of 2008 SLP (C)No. 4003 of 2007 ) holding that the electricity company can stipulate as one of the conditions for supply of electricity that the arrear dues in regard to the occupation of the previous owner or occupant should be cleared before electric supply is restored or fresh connection is provided to the said premises . The OPs also referred to the decision of the Hon’ble High Court at Calcutta in Ravi Jain –vs- WBSEDCL (Met-178 of 2010 Can 1034 of 2010 holding that the subsequent owner / occupant should clear the outstanding dues of the previous owner / occupant before electricity is restored or fresh connection is provided.

          Ld. Forum below having considered all material facts as on record observed that  the Complainant had no nexus  with the previous user of electricity in the same premises. The Complainant became owner of the property by way of purchase and shifted his business under the name and style of M/s New Ramkrishna Trading Co. having proper trade licence, tax bills etc. It was also observed that the business of the Complainant is the only source of income of his family. While the OPs are open to remedy under the Electricity Act 2003, to recover outstanding bills of previous owner of the property and user of electricity , the Complainant can not be deprived from the benefit of new electricity connection which is essential for the maintenance of his livelihood and for which he is ready to pay the requisite charges. Accordingly , Ld. Forum below allowed the complaint with direction upon the OPs to effect industrial electric connection to the premises of the Complainant within 30 days from the date of order.

          Being aggrieved by and dissatisfied with the impugned order , the OPs-turned-Appellants have come up before this Commission with prayer for setting aside the order.

          The memorandum of appeal has been filed together with copies of the impugned order, the petition of complaint and the W.V. of the OPs challenging the petition of complaint.

        The appeal has been contested by the Respondent / Complainant who submitted BNA with copies of the judgment as reported in AIR 2005 Rajasthan 10 and the judgment of the Hon’ble High Court at Calcutta in Navin Agarwal and Anr. -vs- CESC Ltd. and Others 2003 (2) CLJ 489 .

        Ld. Advocates appearing for both the Appellant and the Respondents have been heard.

 Ld. Advocate appearing for the Appellant submitted that the industrial electric connection as applied for by the Respondent is not for any individual consumer for domestic purpose, but for a company for commercial purpose as stated in the petition of complaint. The Complainant can not be treated as a consumer under the provisions of the Consumer Protection Act.  Ld. Forum below did not consider that point and also failed to consider that outstanding dues remaining unpaid the Respondent would have to clear the dues in respect of the same premises.

          Ld. Advocate appearing for the Respondent submitted that the Respondent as the owner and proprietor of his business earns his livelihood from the said business which is the only source of income of his family. Hence, he is very much a consumer and is entitled to bring up a complaint before the OPs under the Consumer Protection Act. The Respondent / Complainant can not be burdened with the liability of paying up the arrear dues which stood unrealized for negligence on the part of the OP service provider themselves. It was a new structure of the Respondent /Complainant on the piece of land purchased by him and there was no nexus whatsoever between the Respondent /Complainant and the alleged previous occupier in respect of the premises. Referring to the decision as reported in AIR 2005 Rajasthan 1010 , M/s . Swan Industries Ltd., -vs- Ajmer Vidyut Vitran Nigam and the judgement of the Hon’ble High Court at Calcutta in Navin Agarwal and Anr. –vs- CESC Ltd.  and Ors. that electric connection can be given to a prospective applicant without insisting on the payment of dues of any defaulting user of electricity, Ld. Advocate assumed that  the order passed by the Ld. Forum below deserves to be upheld.

                           Decision with Reasons

The point for consideration is whether the impugned order suffers from any material irregularity or jurisdictional error.   

The Ld. Forum below allowed the complaint holding that the Respondent Complainant purchased a property and shifted his sole business  which is the only source of income of his family. The electric connection was applied for to facilitate the operation of his business which was associated with his livelihood. That has not been challenged by the Appellant / OP in any manner. Accordingly since the use of electricity would not imply any resale or similar type of commercial activity , the Respondent / Complainant was treated as a consumer as defined under the provisions of the Consumer Protection Act.

The other point is as to whether the Respondent / Complainant is liable to clear the outstanding dues of the previous owner who operated his business in the premises where the Respondent / Complainant put up a structure for running his business. In this connection Ld. Forum below has rightly observed that there is no nexus between the Respondent /Complainant and the previous user of electricity in the premises. There has been no evidence shown before the Ld. Forum below as to whether any step was taken by the Appellant/OPs to recover the alleged outstanding dues from the previous occupier in the premises and whether there has been any nexus between the previous occupier and the Respondent/Complainant.

Going by the above discussion we are inclined to hold that the plea taken by the Appellant /OP does not  stand to be justified . In that view of the matter we find it prudent to endorse the order of the Ld. Forum below . The appeal does not succeed. Hence,

                                            Ordered

That the appeal be and the same is dismissed on contest. The impugned order is confirmed. There shall be no order as to cost.