SRI.K.T.SIDHIQ, PRESIDENT
The complaint in brief is as follows:
Complainant is the proprietor of a small scale industry by name M/s Sreemookambika Wood and Steel Furniture. The unit has been functioning in a rented two interconnected room of a building bearing No.VV/311-(G)8 Pullur-Periya Grama Panchayath. The opposite party has provided electric connection to the said SSI unit after inspection of the wiring done in the said unit and connected load was sanctioned after verifying all the electric equipments installed in the unit. No additional equipments were added to the unit thereafter. On 06-01-2012 the opposite parties 1 & 2 inspected the unit of the complainant and prepared a false mahazar alleging that the complainant having Consumer No.9299 conducting a registered establishment by name ‘Mithila Metal Works’ unauthorisedly extended the electric connection to the establishment and operated a 5HP Planner machine and blower machine of 600 watts and a 40 watt light. On the basis of this false mahazar they issued a provisional invoice and has directed the complainant to remit a sum of Rs.1,82,500/- for unauthorized temporary extension of 5KW. Subsequently a final bill dated 8-02-2012 also issued for the said amount. There is no establishment Mithila Metal Works in the locality either in the name of complainant or in the name of any 3rd party. On 05-03-2012 the electricity supply to the complainant’s SSI unit was disconnected. As a result she suffered huge monetary loss. She constrained to pay salary to her workers who had no works similarly she is paying rent for the room without any benefits. Therefore the complainant seeking an order for restoration of the electric connection with a compensation of Rs. 5,00,000/- and costs of these proceedings.
2. According to opposite parties complaint is not maintainable since the complainant has not resorted to the statutory remedies envisaged in Electricity Act 2003 and the Kerala Electricity Supply Code 2005. The forum has no jurisdiction to entertain a complaint by virtue of Sec 145 of Electricity Act 2003. The Hon’ble National Commision the case of Executive Engineer V. KPTCL now GESCOM Biddar and Others V. Iswaramma & Another reported in AIR 2006 Kar 23 has held that the Forum has no jurisdiction to entertain the complaint as the jurisdiction of civil Courts or any other Forum is barred U/s 145 of Electricity Act 2003. Moreover, the appeal against the bill U/s 126 of Electricity Act 2003 can be filed U/s 127 of the Act. For that 50% of the disputed amount must be deposited. The complainant herein has approached the Forum without depositing the amount. Hence the case has to be dismissed on that ground.
3. On merits the case of opposite parties is as follows:
Electricity Connection with Consumer No.9299 under industrial category is effected to Sreemookambika Wood Industries with connected load of 8382 watts. It was run by one Kunhiraman brother-in-law of Complainant. The industry is situated at Periya Bus Stop near one Asha complex. The building is having 2 rooms with separate shutters. As per Panchayath records, the said building is having 2 rooms bearing No.PGP XVI/505 & 506 of Pullur Periya Grama Panchayath. The service connection was originally obtained to room bearing No.506. The squad of APT unit Kasaragod inspected the premises on 06-01-2011. During the inspection it was found that the consumer was running one establishment namely “Mithila Metal Works” in a nearby room (room No.505) with planner machine, a light of 40W, a blower machine of 600W having total connected load of 4370 unauthorisedly connected to an electric connection to the establishment was unauthorisdely extended from connection provided for Mookambika Industries. In the wake of the above the consumer was penalized for 5 KW and accordingly penal bill amounting to Rs.1,82,500/- was issued to the consumer with due date on or before 15-02-2012 All the said activities are within the bounds of legal frame of Sec 126 of Electricity Act 2003.
4. The averment that there is no establishment under the name of Mithila Metal Works is false. The site Mahazar was prepared during the inspection. The same was found satisfied and a copy is issued to the co-worker of the complainant one Sri. Raju. For making availability of supply to the nearly room, the complainant interconnected the two rooms with a door and made arrangement for the malpractice. In the inspection it was revealed that the petitioner was using electricity unauthorisedly for premises other than those for which the supply of electricity was authorized. At the time of inspection a board Mithila Metal Works was seen in the premises as recorded in the site Mahazar which was verified and recorded found correct by Sri.Raju the co-worker of the petitioner. The complainant willfully neglected to remit energy charges to the Board and the complaint is filed on experimental basis for delaying the remittance of energy charges and to grab unlawful enrichment. The complainant filed a suit before Munsiff Court, Hosdurg for restraining the Board from disconnecting the Electricity Supply, but she failed to obtain any injunction order. The consumer was given proper opportunity of hearing objection U/s 126 of Electricity Act 2003 after issuing the provisional bill. The consumer did not putforth any valid points to exonerate her from the penalty and the provisional bill was confirmed and final assessment was made. The copy of hearing note and allied paper are submitted herewith. Even after receiving final bill, complainant did not pay the bill. Hence the electricity is disconnected. The complainant is not entitled for the relief claimed in the complaint. Hence it is liable to be dismissed.
5. Sri. A.Kunhiraman the authorized agent of complainant field proof affidavit as PW1 Exts A1 to A6 marked. Witnesses are examined as PW2 & PW3. On the side of opposite parties Ext.B1 marked. Both sides heard. Documents perused.
6. The following question arose for consideration.
1. Whether the complaint is maintainable before the Forum?
2. Whether the complainant is entitled for the relief claimed?
3. What is the order as to relief & costs?
For the sake of brevity all points are discussed together.
7. The contention of opposite parties is that complaint is not maintainable since the complainant has not resorted to the statutory remedies as envisaged in the Electricity Act 2003 and the Kerala Electricity Supply code 2005. The further contention is that Sec 145 of the Act bars the civil Courts to entertain any suit or proceedings in respect of any matter which an assessing officer referred to in Sec 126 or an appellate authority referred to in Sec 127 or the adjudicating officer appointed under the Act.
The contention of opposite party is not sustainable in view of the decision of the Hon’ble National Commission in the case of Jharkand Electricity Board V. Anwar Ali reported in ITJ 2008 page 837.
The Hon’ble Supreme Court in the case of Jharkhand Electricity Board V.Anwar Ali (Civil Appeal No.4734/2007) has held that the National Commission has not addressed the question as to whether consumer of electricity is covered by the definition of Consumer as defined U/s 2(1) (o) of the Act and remitted the matter to the National Commission to record a positive finding on the aspect.
8. Accordingly the matter again came up for consideration before the Hon’ble National Commission in RP No. 355/2004 & similar other Revision Petition. The Hon’ble National Commission is an exhaustive judgment dated 10th April 2008 has held as under
.(i). Section 3 of the Consumer Protection Act and Section 175 of the Electricity Act, provide that they are in addition and not in derogation of rights under any other law for the time being in force. Therefore, the rights of the consumers under the Consumer Protection act are not affected by the Electricity Act.
.(ii). A bare reading of Sections 173, 174 and 175, makes it clear that the intent of the Legislature is not to bar the jurisdiction of the Consumer Fora constituted under the Consumer Protection Act. The provisions of the Electricity Act have overriding effect qua provisions of any other law except that of the Consumer Protection Act, 1986, the Atomic Energy Act, 1962 and the Railways Act, 1989.
.(iii). Section 42(8) of the Electricity Act specifically provides that the remedies conferred on consumer under Sub-sections (5), (6) and (7) of Sec.42 are without prejudice to the right which the consumer may have apart from the rights conferred upon him by those Sub-sections.
.(iv). Section 145 of the Electricity Act specifically bars the jurisdiction of the Civil Court to entertain any suit or proceedings in respect of any matter which an assessing officer referred to in Section 126 or an Appellate Authority referred to in Section 127 of the Electricity Act or the Adjudicating Officer appointed under the Electricity Act, is empowered to determine.
Second part of Section 145 provides that no injunction shall be granted by any Court or Authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. For this purpose, if we refer to Sections 173 and 174 and apply the principle laid down there-under, it would mean that qua the consumer fora there is inconsistency and, therefore, ‘other Authority’ would not include consumer fora.
.(v). Consumer of electrical energy provided by the Electricity Board or other Private Company, is a consumer as defined under Section 2(1)(o) of the Consumer Protection Act and a complaint alleging any deficiency on the part of the Board or other private company including any fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance which is required to be maintained by or under any law or in pursuance of any contract in relation to service, is maintainable under the Consumer Protection Act.
Against the Assessment Order passed under Section 126 of the Electricity Act, a consumer has option either to file Appeal under Section 127 of the Electricity Act or to approach the Consumer Fora by filing complaint. He has to select either of the remedy. However, before entertaining the complaint, the Consumer Fora would direct the Consumer to deposit an amount equal to one-third of the assessed amount with the licensee [similar to Section 127(2) of the Electricity Act].
.(vi). Consumer Fora have no jurisdiction to interfere with the initiation of criminal proceedings or the final order passed by any Special Court constituted under Sec.153 or the civil liability determined under Section 154 of the Electricity Act.
From the above it is clear that against the assessment order U/s 126 of the Electricity Act, if a complaint is filed before the Forum, before entertaining the complaint, the Consumer Fora would direct the consumer to deposit an amount of 1/3rd of the assessed amount with the licensee. (The Electricity Act 2003 has been amended in 2007 and as per that before filing appeal U/s 127 (2) of the Electricity Act the consumer has to deposit half of the assessed amount.)
9. But in the instant case on hand the learned counsel appearing for the complainant has submitted that the complainant is not disputing the assessment made by the opposite party but the challenge is with respect to the illegal disconnection of electricity that was disconnected alleging unauthorized connected load.
10. We are unable to accept this argument. The opposite parties have every right to disconnect the electricity connection provided to a consumer if the consumer neglects to pay the assessment bills.
11. The matter being so it is not necessary to a further probe in to the other disputes whether there was unauthorized connected load attached more than the permitted and whether at the time of inspection of APT Squad there was another firm Mithila Metal Works was working in the adjacent room of the complainant’s firm etc.
12. Therefore we do not find any deficiency in service on the part of opposite party in disconnecting the electricity connection 9299 provided to the SSI Industry owned by the complainant for non-payment of penal bill issued to them.
The complaint therefore fails and hence it is dismissed with no order as to costs.
Sd/. Sd/-
MEMBER PRESIDENT
Exts.
A1.05-03-2012 Receipt issued by OP.
A2. Certified copy of Commission report filed by Ranjini Kevees, Advocate Commissioner.
A3.Permanent Registration of Sree Mookambika Wood and Steel Furnitures Periya
A4. Pass book of Sri.Mookambika Wood and steel furnitures, Periya.
A5. Letter sent by Profession Services to Mookambika Steel & Wood furniture Periya.
A6. Attendance register of Sree Mookambika Wood & Steel Furniture, Periya.
B1. Surprise Inspection report of Consumer 9299.
PW1. A.Kunhiraman.
PW2. Vijesh.T.
PW3.Raju.A.
Sd/- Sd/-
MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPER
