JUSTICE V.K.JAIN (ORAL)

1.     The complainant/ respondent had taken an electricity connection for agriculture purposes from Delhi Electric Supply Undertaking (DESU), predecessor in interest of the petitioner company. The petitioner had been sanctioned a load of 5 hp for the aforesaid purpose.  The said connection was used for industrial purpose since 1987.  The misuse was detected by the Enforcement Directorate during the inspection on 24.07.1989 and misuse charge were levied upon the complainant vide order dated 01.01.1990, w.e.f. 28.02.1988.

2.     DESU came out with a scheme where under the consumers, who had taken commercial and industrial connections, were permitted to apply for enhancement of their connected load/ declared load.  The complainant, though he did not hold a commercial or industrial connection, applied for enhancement of load which he had been using for industrial purposes. He paid a sum of Rs.43,084/- to DESU and the load was enhanced to 61 hp.  In the bills issued after enhancement of the load misuse charges were levied upon the complainant and were paid by him till he approached the concerned District Forum by way of a consumer complaint challenging the levy of the misuse charges.

3.     The complaint was resisted by the petitioner primarily on the ground that the advertisement was applicable only to enhancement of the load and not for the changing of the category of supply.

4.     The District Forum vide its order dated 02.06.2004 directed as under:

1. Withdraw misuse charges in respect of the above from the date of levy and issue revised bill.

2. Adjust the amountpaid in excess, if any, by the complainant against Future Generali India Insurance Co. Ltd. Bills if it is upto Rs.2000/- and to refund the same if it exceeds Rs.2000/- and

3. Pay Rs.1000/- as compensation for harassment and also Rs.500/- as cost of litigation to the complainant.

5.     Being aggrieved from the order passed by the District Forum the petitioner approached the concerned State Commission by way of an appeal by impugned order dated 31.10.2006.  The State Commission dismissed the appeal filed by the petitioner.

6.     Being aggrieved by the petitioner company is before this complainant by way of this Revision Petition. 

7.     It is an undisputed position that initial load sanction to the complainant was only 5 hp and said load had been sanctioned for agricultural purpose.  It is also not in dispute that during an inspection on 24.07.1989 the misuse was detected and therefore, misuse charges were levied upon the complainant, who continued to pay the same.

8.     It is evident from a perusal of advertisement which DESU has given in the newspaper that the scheme was applicable to the consumers of industrial and commercial connections.  Strictly speaking the said scheme was not applicable to the consumers who had taken agricultural connections.  The petitioner knew even at the time the load was enhanced by it, that the supply was being used by the complainant for industrial purposes, the said misuse having already come to its notice at the time of inspection on 24.07.1989.  Therefore, the petitioner ought not to have the enhanced the load sanctioned to the complainant and ought not to have accepted the amount of Rs.43,084/- which was paid by the complainant for enhancement of the load. The petitioner having the allowed the enhancement of the load are despite knowing that the supply was being used for industrial purpose the inevitable inference would be that the petitioner condoned the misuse and enhanced the supply to 61 hp, to be used for industrial purposes.  It would also to pertinent to not here that as per the rules prevailing at that time the load sanction for agricultural purposes could not have been enhanced beyond 7.5 hp.  This is yet another indicator that the petitioner had while enhancing the load, condoned the misuse and allowed the complainant to thereafter use the electricity to the extent 61 hp, for industrial purposes. 

9.     The next question which arises for consideration is for which period, the complainant would be entitled to refund of the misuse charges which he paid to the petitioner.  The consumer complaint was filed on dated 28.01.2003.  The complaint to the extent the complainant was seeking revisions of the bills which had been paid more than two years before institution of the complaint was barred by limitation on  the date it was instituted.  No application seeking extension of time in terms of section 24A of the Consumer Protection Act, 1986 was filed along with the consumer complaint. Therefore, the fora below, in my opinion were not justified in directions withdrawal of the misuse charges w.e.f. the date of levy.  The consumer complaint ought to have been allowed only in respect of misuse charges which had been paid within two years from the institution of the consumer complaint.

10.    For the reasons stated hereinabove, the petition and the consumer complaint are disposed of with the following directions :

1. The petitioner shall refund/ adjust the misuse charges which had been paid by the complainant within two years before the institution of the consumer complaint i.e. the misuse charges which had been paid on or after 28.01.2001.

2. The petitioner will not be entitled to recover any misuse charges for the period commencing from the institution of the consumer complaint.

3. In the facts and circumstances of this case there shall be no order as to costs.

11.    The learned counsel for the complainant has also drawn my attention to the rules/ guidelines issued by DESU which, inter alia, provide that where a connection given for agricultural purpose is subsequently misuse for other purposes, though the costs of extension of means and other installation would be recovered from the consumer and the relevant tariff of misuse charges was to be levied till regularisation, the connection is to be regularised for actual use of the load, for which the party was to be advised to complete the requisite formalities. The submissions of the learned counsel for the complainant is that the complainant was not advised at any point of time to complete the formalities required for regularisation of the connection.  If this is so, this is let another factor which entitles the complainant to use the load for industrial purposes, if no such advice was actually given to him after inspection has been carried out and the misuse had been detected on 24.07.1989.