DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 3rd day of September, 2018
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
C.D Case No. 77 of 2016
Bhaskar Chandra Nayak
S/o Late Arjun Nayak
Vill: Bisalkana
Po: B. B. Kayan
Ps: Agarpada
Dist: Bhadrak
……………………. Complainant
(Versus)
1. Sub-Divisional Officer,
Electrical R.E. Sub-Division, Bhadrak
At: Aradi Chhak, Po: Gelpur
Dist: Bhadrak, Pin: 756100, Odisha
2. J.E. (Electrical) Agarpada
At/Po/Ps: Agarpada
Dist: Bhadrak
3. Deputy Manager (Electrical) R.C., Bhadrak
At/Po/Ps: Bhadrak
Ps/Dist: Bhadrak
…………………………..Opp. Parties
Advocate For the Complainant: Sri H. Barik & Others
Advocate For the OP No. 1: Sri P. K. Nayak & Others
Advocate For the O.Ps No. 2 & 3: Ex-parte
Date of hearing: 16.01.2017
Date of order: 03.09.2018
SRI RAGHUNATH KAR, PRESIDENT
The complainant is a domestic Electrical consumer being consumer No. 422211060197. He used to pay Rs 100 to 130/- as electricity bill regularly. The complainant is a truck driver. On 23.08.2014 the Vigilance team visited the house of the complainant and detected that the complainant was consuming electricity illegally and un-authorizedly when the complainant was remaining in his dwelling house. The said Vigilance team imposed penalty of Rs 12,736/- and further sent a notice on 28.08.2014 to the complainant. The complainant was granted opportunity for filing show cause. The complainant prayed before the OP No. 2 for enquiring the matter perfectly. It is pertinent to mention that the neither the complainant nor any of his family member and put their signature on the enquire report. Consequently the OP No. 2 has the post penalty on the complainant. The complainant submitted a complaint before the O.Ps for re-enquiry on 07.01.2015. The copy of the same was served upon the complainant. Since 07.01.2015 the O.Ps are remaining silent without sending any replay. On 25.06.2016 the O.Ps served a notice upon the complainant to deposit Rs 13,408/- within 15 days, otherwise the electric connection would be disconnected. On receipt of the notice the complainant made the O.Ps in their office on 01.07.2016 but they replied that the complaint may take shelter under the Court of law. Thus the complainant became bound to files this complaint. Hence the complainant has sought for the following reliefs.
1. The electricity bill prepared is to be corrected.
2. The amount Rs 3,000/- is to be imposed upon the O.Ps towards mental agony.
Documents filed by the complainant (Xerox copies):-
1. Letter No. 386 on 28.08.2014- 1 sheet.
2. The copy of the letter sent by the complainant on 07.01.2015- 1 sheet.
3. Letter sent by the complainant to the O.Ps on 25.11.2016- 1 sheet.
4. The provisional order U/s 126 of the Odisha Electricity Act, 2003- 1 sheet.
5. Representation made by the complainant on 07.01.2015- 1 sheet.
The O.Ps have filed their written version analogously as follows. The O.Ps have admitted the consumer ship and jurisdiction of the complaint. They have challenged the maintainability of this complaint. On dt. 23.08.2014, the premises of the complainant/consumer was verified. During spot verification, it was detected that, the consumer is availing electricity un-authorisedly by cutting the service wire before meter and by-pass load 1 KW. After detecting such un-authorize use of electricity, SVR was prepared on the spot and due to refused by the representative for acknowledgement on the report and also to received, a copy thereof was affixed meter. However, basing on SVR, Assessment Proceeding was initiated as per provision of Section- 126 of the Act, 2003. As per Section 126 of the Act, on dt. 28.08.2014, Provisional Assessment Order was passed by the assessing officer. After passing the Provisional Assessment order, copy of Provisional Assessment Order, Show Cause Notice & SVR was served to the complainant. After receiving the notice, SVR, Provisional Assessment Order Vide Letter No. 836 dt. 28.08.2014, the complainant neither appeared nor filed any objection before Assessing Officer. On dt. 26.09.2014, Final Assessment Order amounting to Rs 12,736/- was passed. The copy of SVR, Show Cause Notice, Provisional Assessment Order, Final Assessment Order are annexed herewith.
After serving the notice & Assessment Order, the complainant did not take any step for payment of assessment amount and also not challenged the assessment order as per provisions of Section 127 of the Electricity Act, 2003 before Appellate Authority. But when the disconnection notice has served, to avoid the payment, the complainant has filed this complaint before the Consumer Forum without preferring the alternative remedy as available under Special Act for Electricity. Hence, the complaint is not maintainable before the Forum. The complainant has filed this complaint petition for exemption of the assessment amount which is claimed under Section 126 of the Act, 2003. Hence the present proceeding is not maintainable and it should be dismissed.
Documents filed by the O.Ps (Xerox copy).
1. Letter on dt. 28.03.2014 was sent to the complainant Vide No. 836 from the Deputy Manager Electricity- 1 sheet.
2. The spot verification report of 23.08.2014 issued on behalf of the Inspector. In which the copy has been served- 1 sheet.
3. Provisional Order U/s 126 of Electricity Act- 1 sheet.
4. Final Assessment Order on 26.09.2014- 1 sheet.
5. Order of the Provisional Assessment- 1 sheet.
OBSERVATION
We have already perused the complaint as well as the documents and the written version filed by the complainant as well as the O.Ps along with their relevant document. The Apex Court in the matter of U.P Power Corporation & others Vs. Anish Ahamad in Civil Appeal No. 35906/2011 decided the question involved in the appeal i.e. whether, the Consumer Forum has jurisdiction to entertain a complaint filed by a consumer or any other person against the assessment made U/s 126 of the Electricity Act, 2003. In Para- 30 of the judgment to the aforesaid matter, the Supreme Court of India observed after interpreting of Section 145 & 147 of the Electricity Act, 2003 that, “after notice of Provisional Assessment to the person included in un-authorize use of electricity, the final decision by an assessing officer, who is a public servant on the assessment of an un-authorized use of electricity is a ‘Quasi Judicial’ decision and does not fall within the meaning of consumer dispute” U/s 2 (1)e of the CP Act, 1986. In Para- 47 (ii), the Apex Court hold that, “a complaint against assessment made by Assessing Officer U/s 126 or against the offence committed U/s 135 to 142 of Act, 2003 is not maintainable before a consumer Forum”.
We have observed that the spot verification was conducted on 28.08.2014 in presence of the complainant (Consumer) and his family members. The copy of the said verification report was offered to the complainant to receive the same but he refused to sign there on the very day of the spot verification. The O.Ps sent a notice to the complainant on 28.08.2014 being given an opportunity to the complainant to file the show cause. According to the complainant filed the show cause but the O.Ps did not take any action, but we are in ambiguity regarding this matter because the complainant has failed to file the copy of the show cause to filing the case record. The complainant averred that he filed an application on 07.01.2015 before the J.E to conduct the perfect verification. But the copy of the said application is not found the case record. On the other hand there is no such provision in Odisha Electricity Act. So the prayer is not sustainable. The diagram of the spot which has filed by the complainant is not a relevant document due to non reorganization and non identification of the competitive authority.
That, Assessment proceeding was initiated as per Section- 126 of Electricity Act. on the basis of SVR and provisional assessment order was passed by the assessing officer and copy of the said order, show cause notice and SVR was served to the complainant Vide letter No. 836, dt. 28.08.2014 and the complainant did not appear and did not file any objection before assessing officer and the assessing officer passed final assessment order on dt. 26.09.2014 directly on the complainant to pay Rs 12,736/- (Twelve thousand seven hundred thirty six) along with relevant documents like final assessment order, provisional assessment order, copy of SVR, show cause notice etc. have been filed. The complainant did not challenge the final assessment order as per provision of Section- 127 of the Electricity Act. before appellate authority. The complainant filed complaint petition before consumer Forum on false allegations to avoid payment. As per decision of Hon’ble Supreme Court in appeal case the U.P Power Corporation and others Vs. Anish Ahamad it has been held that a complainant against assessment made by assessing officer U/s 126 of Electricity Act. or against any offence committed U/s 135 to 142 of Electricity Act. is not maintainable. Electricity Act. is a special statute. For redressal of grievance as per Electricity Act there is a separate Forum. The complainant without availing himself of provision of Electricity Act. has filed this complaint before consumers Forum illegally. So the present proceeding is not maintainable before the D.C.D.R.F. Hence it is ordered;
ORDER
The complaint be and the same is dismissed devoid of merit without cost & compensation
This order is pronounced in the open Forum on this day of 3rd September, 2018 under my hand and seal of the Forum.
