BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P. No. 61/2003 Filed on 13..02..2003

Dated: 30..03..2009

Complainant:

A. Rajan, R.C. Bhavan, Uchakkada, Payattuvila – P.O.

(By Adv. A. Gopakumaran Nair)

Opposite parties:

1.The Assistant Engineer, Electrical Section, Balaramapuram.

2.Kerala State Electricity Board, represented by its Secretary, Vydyuthi Bhavan, Pattom, Thiruvananthapuram – 04.

(By Adv. B. Sakthidharan Nair)

This O.P having been heard on 16..03.2009, the Forum on 30.03..2009 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that complainant was a consumer of opposite parties vide consumer No.UKD 1740 under Uchakkada Electrical Section, that the said electric connection was taken to run an oil mill with a connected load of 12kw under self employment scheme, that the current charges of the consumer were charged under Industrial Tariff, that the invoices were prepared and served on monthly basis as per reading of energy meter, and that the complainant had remitted all invoices served to him as and when without fail. It is submitted by the complainant that on 20/9/2002, a letter with 2 notices dated 17/9/2002 was served to the complainant by the 1^st opposite party. It is stated in the letter that "Upon an inspection of the electrical installation in your premises on 14/9/2002 it was found that unauthorised alterations and addition to the wiring, connection load etc., to the extent indicated below has been carried out without due intimation to this office. It is highly irregular and against provisions of IE Act and the regulations of the Board". Again "You are also directed to remit the amount charged as per clause 42(d) of the conditions of supply of electrical energy within the due date specified in the bill failing which the supply to the entire installation is liable to be disconnectd without any further notice. Upon inspection on 14/9/2002 it has been found that illegal abstraction of energy by tampering the energy meter. You are directed to remit the amount as per the bill attached and meter cost". Complainant was requested to remit Rs.67,547/- on or before 27/9/1992 and also directed to remove additional points immediately and also stated that the amount was charged as per clause 42(d) of the Conditions of Supply of Electrical Energy. Complainant was requested by another letter dated 17/9/2002 to remit an amount of Rs.2,919/- towards cost of energy meter. Complainant has neither exceeded the contracted load of 12kw nor used the electrical energy for different purposes. Complainant had tried to remit the normal monthly current charge of Rs.4,144/- of 8/2002 on 26/9/2002 as per invoice No.96610. But on direction of the 1^st opposite party the Cashier refused to accept the monthly current charge without the amounts as mentioned in notices dated 17/9/2002. No unauthorised alterations and additions or illegal abstraction of energy as stated in the letter were made in the installations of the premises by the complainant at any point of time. Therefore the notices requesting to remit the amount of Rs.67,547/- and Rs.2,919/- are illegal and arbitrary. The act of the opposite parties is clear deficiency of service. Since the complainant was not in a position to retain the service under disconnection with an amount of Rs.540/- as monthly fixed charge during the disconnected period till the dispute is settled. Complainant made a request to dismantle the service to the 1^st opposite party on 3/1/2003 to avoid monthly fixed charge of Rs.540/-. 1^st opposite party had not taken any steps to dismantle the service. Hence this complaint to cancel the notices dated 17/9/2002 requesting to remit Rs.70,466/- towards energy charge in addition to the actual consumption and meter cost and to dismantle the electric connection from the premises of the complainant along with cost.

2. 1^st opposite party filed version contending that the complaint is not maintainable either in law or on facts, that complainant is a consumer of the opposite parties, that the connection was effected in the year 1983. As part of the routine inspection in the industrial connections the 1^st opposite party visited the p;remises of the consumer and noticed that unauthorised alterations were made in the installation and in the 3 phase energy meter installed in the premises for measuring the quantum of energy used by the consumer was found to be tampered with, that a five small holes were made on the top of the energy meter and the rotation of the disc in the meter was asserted by inserting foreign matter like stick through the artificially made hole, that the illegal acts of the complainant were informed to the person, who present at the time of inspection in the premises and prepared a site mahazar. The supply to the premises was disconnected and notices were issued to the complainant to remit the amount for losses sustained by the opposite parties by way of illegal abstraction of energy as per clause 42(d) and 43 of consitions of supply of electrical energy. Another notices were issued to realising the cost of new three phase energy meter as per rules. The supply to the consumer was disconnected on 14/9/2002. On 23/9/2003 complainant submitted a reply to the Chief Engineer, KSEB stating that the registered owner sold out the oil mill to another person, but never requested to change the name in the official records of the KSEB. A request for disconnection from the registered owner received by the opposie parties on 3/1/2003. Every disconnected supply will be dismantled after the expiry of six months from the date of disconnection and also the consumer is liable to clear all outstanding dues before dismantling the service. Hence opposite parties prayed for dismissal of the complaint with cost to opposite parties.

3. The points that arise for consideration are:

1. Whether the complainant is entitled to get the notice dated 17/9/2002 cancelled?

2. Whether complainant is entitled to dismantling the electric connection from the premises of the complainant?

3. Whether there has been deficiency in service on the part of opposite parties?

4. Other Reliefs?

4. In support of the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and Exts. P1 to P9 were marked. 1^st opposite party has been examined as DW1 and cross examined by complainant and Exts. D1 to D3 were marked?

5. Points (i) to (iv): Admittedly, complainant was a consumer of opposite parties vide consumer No.UKD 1740 under Uchakkada Electrical Section. It has been the case of the complainant that the said electric connection was taken to run an oil mill with a connected load of 12kw under self employment scheme, that the current charges of the consumer were charged under Industrial Tariff, that the invoices were prepared and served on monthly basis as per reading of energy meter, and that the complainant had remitted all invoices served to him as and when without fail. It has also been the case of the complainant that on 20/9/2002, a letter with two notices dated 17/9/2002 was served to the complainant by the 1^st opposite party. It is further submitted that it is stated in the letter that “Upon an inspection of the electrical installation in your premises on 14/9/2002 it was found that unauthorized alterations and addition to the wiring, connection load etc., to the extent indicated below has been carried out without due intimation to this office. It is highly irregular and against provisions of IE Act 1910 and the regulations of the Board”.

“You are also directed to remit the amount charged as per clause 42(d) of conditions of supply of electrical energy within the due date specified in the bill failing which the supply to the entire installation is liable to be disconnected without any further notice. Upon inspection on 14/9/2002 it has been found that illegal abstraction of energy by tampering the energy meter. You are directed to remit the amount as per the bill attached and meter cost”. Submission by the complainant is that complainant was requested to remit Rs.67,547/- as per clause 42(d) of the conditions of supply of electrical energy on or before 27/9/1992 and also directed to remove additional points immediately and also requested to remit Rs.2,919/- towards cost of energy meter. It is contended by the complainant that though he had tried to remit the normal monthly current charge of Rs.4,144/- of 8/2002, on 26/9/2002 as per invoice No.96610, 1^st opposite party refused to accept the same without the amounts of Rs.67,547/- and Rs.2,919, and that since the complainant was unable to remit the said amounts, opposite parties disconnected the said connection on 27/9/2002 and the said oil mill kept idle from 27/9/2002 onwards. Complainant submits that since he was not in a position to retain the service under disconnection with an amount of Rs.540/- as monthly fixed charge during the disconnected period till the dispute is settled, complainant made a request to dismantle the service to 1^st opposite party on 30/1/2003 to avoid the monthly fixed charge of Rs.540/-. Ext.P1 is the invoice dated 25/5/2002 for Rs.1,448/-. Ext.P2 is the invoice dated 24/6/2002 for Rs.2,117/-, Ext.P3 is the invoice dated 24/7/2002 for Rs.2,105/-, Ext.P4 is the invoice dated 24/8/2002 for Rs.1,435/-, Ext.P5 is the invoice dated 24/9/2002 for Rs.4,144/-, Ext.P6 is the invoice dated 24/10/2002 for Rs.1,423/-. A perusal of Exts.P1 to P6 would reveal that fixed charge would remain the same while the energy charge would vary. Exts.P7 & P8 are two notices dated 17/9/2002 demanding Rs.67,547/- and Rs. 2,919/- from the complainant by the opposite parties. Ext.P9 is the letter addressed to the complainant by the opposite parties directing him to remit the amount charged as per clause 42(d) of the conditions of supply of electrical energy. Ext.D1 is the copy of the letter dated 5/11/2002 issued by the complainant to the Executive Engineer, Neyyattinkara. Ext.D2 is the copy of the letter dated 3/1/2003 addressed to the 1^st opposite party by the complainant requesting him to dismantle the service of vide consumer No.UKD 1740 forthwith, so that the monthly fixed charge of the service can be avoided. Ext.D3 is the Mahazar prepared by the Sub Engineer.

6. In this case it is alleged by the opposite parties that there was an unauthorised use of electricity by some means by the consumer. This was detected when Sub Engineer visited the premises of the consumer on 14^th September 2002 and a site mahazar was prepared. The supply to the premises was disconnected and notices were issued to the complainant to remit an amount for loss sustained by the Board by way of illegal extraction energy as per clause 42 (d) and 43 of the conditions of supply. It is pertinent to note that in case of unauthorised misuse of electricity, the same can be dealt with in accordance with law. In his cross examination, complainant deposed that no such inspection was conducted with site mahazar and no supply was disconnected on 14/9/2002. It is urged by the complainant that in case of unauthorised additional load or alteration, a notice has to be served by the Assistant Engineer or Assistant Executive Engineer directing the consumer to regularise the additional load or remitting the testing fee for alteration by submitting application in proper form before penalising the consumer under clause 42(d) of conditions of supply; but no such notice was served to the consumer directing to regularise unauthorised additional load. It is further submitted by the counsel appearing for the complainant that as per Board Order (FB) No.1292/2002/dated 18/9/2002, the penalty of unauthorised additional load shall be levied at the rate of price the fixed charge per KW till the unauthorised additional load is removed or regularised. It is submitted by the complainant that to over rule the said order dated 18/9/2002, the 1^st opposite party had served notice on 20/9/2002 with noting a prior date of 17/9/2002 in the notice one day before the date of Board Order. At this juncture, the only question which requires consideration is whether under the Electricity Act 2003, the Officers of the Electricity company are empowered to arbitrarily direct the consumers to deposit the amount according to whims and with a threat that failure to deposit of the said amount would result in disconnection of electricity power or they would be prosecuted? As per the decision of the Hon'ble National Commission in the case of Dakshin Haryana Bilji Victran Nigam Ltd and Others Vs. Megh Raj reported in IV (2008) CPJ 11 (NC), the Electricity Act 2003 nowhere empowers the officers concerned to adopt such an arbitrary procedure. Under the Act, in the case of alleged unauthorised use of electricity, procedure prescribed under Section 126 of the Act is required to be followed. It is stated in the above decisions that: in short, the procedure prescribed under Section 126(i) empowers the concerned officers to have an inspection if any place or premises of the consumer (ii) On inspection, if the assessing Officer comes to the conclusion that such consumer is indulging unauthorised use of electricity, he is required to provisionally assess to the best of his judgment the electricity charges payable by such consumer or by any other person benefitted by such use, (iii) such conclusion can also be answered at on the basis of inspection of the record maintained by the consumer, (iv) the order of provisional assessment is required to be served upon the person in occupation or in possession or in charge of the premises in such a manner as may be prescribed,(v) thereafter, consumer is entitled to file objection against the provisional assessment before the assessing officer, (vi) thereafter reasonable opportunity of hearing is required to be given to such consumer, (vii) after giving reasonable opportunity of hearing, final order of assessment within 30 days from the date of service of such provisional assessment order is required to be passed and (viii) Sub section (4) empowers, the consumer to accept the provisional assessment and deposit the assessed amount with the Electricity Company within 7 days of service of such provisional assessment order on him. Further, the said provisional assessment order, power is restricted for the period prescribed under Sub Section (5) which provides that such assessment shall be made for the entire period during which unauthorised use of electricity has taken place, and in any case, if the period during which unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of 12 months immediately preceding the date of inspection. Also, there is further limitation under Sub Section (6) for assessment in case of unauthorised use of electricity that such assessment shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified under Sub Section (5). The aforesaid entire procedure is required to be followed before passing the assessment order. Further even if we refer to the amended provisions of Section 135, whereby 135(IA) is added with effect from 15/6/2007, then also in the case of apparent theft of energy, the officers are required to make assessment under Section 126. In this case, it is pertinent to note that without issuing any notice as contemplated under Section 126, or without passing any provisional order as contemplated under Section 126 of the Act, the Officers straight away issued notice directing the complainant to pay an amount. This is nothing but arbitrary and against law. If the procedure prescribed under the Act is not followed, it is to be highlighted that the Act nowhere empowers the Officers of the Electricity Company to act according to their whims and harass the consumers at large – Further in this case, it is submitted by the complainant that no such inspection as stated in the version was conducted with site Mahazar and no supply was disconnected on 14/9/2002, that Exts. P7, P8 & P9 notices and letter dated 17/9/2002 were served on 20/9/2002 requesting to remit the notice amount within 10 days and 7 days respectively, failing which the supply would be cut off without further notice; would clearly show that the supply was there till 27/9/2002 and cut off only on 27/9/2002. Opposite parties did not examine the Sub Engineers who reported the theft of power, no Police investigation was done. Mahazar witnesses were not examined, no crime is seen registered. For inspection of energy meter, Electrical Inspector was appointed by this Forum. The Electrical Inspector filed report (the report is in the record) stating that at the time of inspection it is seen that the energy meter was taken from the premises by the Assistant Engineer earlier and the meter is not in the complainant's premises, it could not be taken for testing. Meter not checked in the presence of complainant or his representative. Theft of energy not proved. Deficiency in service proved.

7. In the light of evidence adduced and in the light of the decision of the Hon'ble National Commission, we find complainant is entitled to get cancelled the notices dated 17/9/2002 requesting to remit Rs.67,547/- and Rs.2,919/-. Complainant is also entitled to dismantling the electric connection from the premises of the complainant.

In the rresult, complaint is allowed. The notices (Exts. P7 & P8) dated 17/9/2002 requesting to remit Rs.67,547 and Rs.2,919 issued by opposite parties are hereby cancelled. Opposite parties are directed to dismantle the electric connection vide consumer No.UKD 1740 from the premises of the complainant if not dismantled so far. There will be no compensation and cost in facts and circumstances of the case.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30^th day of March, 2009.

G. SIVAPRASAD

PRESIDENT.

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.61/2003

APPENDIX

I. Complainant's witness:

PW1 : Rajan

II. Complainant's documents:

P1 Demand notice dt. 25/5/2002

p2 : Demand notice dt. 24/6/2002

P3 : " dt. 24/7/2002

P4 : " dt. 24/8/2002

P5 : " dt. 24/9/2002

P6 : " dt. 24/10/2002

P7 : Letter No.DB.BLPM/BB/-2-03 dt. 17/9/2002 to the Con.No.1740 issued by opp. Party.

P8 : Letter No.DB 12/02/D3 dt. 19/9/2002 to the complainant by the opp. Party

P9 : Letter No.DB/BB/Theft/BLPM/2002-03 to the complainant by the opp. party

III. Opposite parties' witness:

DW1 : Ansalene.J

IV. Opposite parties' documents:

D1 : Copy of letter dt. 5/4/2002 to the opp. party sent by the complainant.

D2 : Copy of registered letter dated 3/1/2003 to opp. Party by the complainant.

D3 : Original Site Mahazar dt. 14/9/2002.

PRESIDENT

ad.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P. No. 61/2003 Filed on 13..02..2003

Dated: 30..03..2009

Complainant:

A. Rajan, R.C. Bhavan, Uchakkada, Payattuvila – P.O.

(By Adv. A. Gopakumaran Nair)

Opposite parties:

1.The Assistant Engineer, Electrical Section, Balaramapuram.

2.Kerala State Electricity Board, represented by its Secretary, Vydyuthi Bhavan, Pattom, Thiruvananthapuram – 04.

(By Adv. B. Sakthidharan Nair)

This O.P having been heard on 16..03.2009, the Forum on 30.03..2009 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that complainant was a consumer of opposite parties vide consumer No.UKD 1740 under Uchakkada Electrical Section, that the said electric connection was taken to run an oil mill with a connected load of 12kw under self employment scheme, that the current charges of the consumer were charged under Industrial Tariff, that the invoices were prepared and served on monthly basis as per reading of energy meter, and that the complainant had remitted all invoices served to him as and when without fail. It is submitted by the complainant that on 20/9/2002, a letter with 2 notices dated 17/9/2002 was served to the complainant by the 1^st opposite party. It is stated in the letter that "Upon an inspection of the electrical installation in your premises on 14/9/2002 it was found that unauthorised alterations and addition to the wiring, connection load etc., to the extent indicated below has been carried out without due intimation to this office. It is highly irregular and against provisions of IE Act and the regulations of the Board". Again "You are also directed to remit the amount charged as per clause 42(d) of the conditions of supply of electrical energy within the due date specified in the bill failing which the supply to the entire installation is liable to be disconnectd without any further notice. Upon inspection on 14/9/2002 it has been found that illegal abstraction of energy by tampering the energy meter. You are directed to remit the amount as per the bill attached and meter cost". Complainant was requested to remit Rs.67,547/- on or before 27/9/1992 and also directed to remove additional points immediately and also stated that the amount was charged as per clause 42(d) of the Conditions of Supply of Electrical Energy. Complainant was requested by another letter dated 17/9/2002 to remit an amount of Rs.2,919/- towards cost of energy meter. Complainant has neither exceeded the contracted load of 12kw nor used the electrical energy for different purposes. Complainant had tried to remit the normal monthly current charge of Rs.4,144/- of 8/2002 on 26/9/2002 as per invoice No.96610. But on direction of the 1^st opposite party the Cashier refused to accept the monthly current charge without the amounts as mentioned in notices dated 17/9/2002. No unauthorised alterations and additions or illegal abstraction of energy as stated in the letter were made in the installations of the premises by the complainant at any point of time. Therefore the notices requesting to remit the amount of Rs.67,547/- and Rs.2,919/- are illegal and arbitrary. The act of the opposite parties is clear deficiency of service. Since the complainant was not in a position to retain the service under disconnection with an amount of Rs.540/- as monthly fixed charge during the disconnected period till the dispute is settled. Complainant made a request to dismantle the service to the 1^st opposite party on 3/1/2003 to avoid monthly fixed charge of Rs.540/-. 1^st opposite party had not taken any steps to dismantle the service. Hence this complaint to cancel the notices dated 17/9/2002 requesting to remit Rs.70,466/- towards energy charge in addition to the actual consumption and meter cost and to dismantle the electric connection from the premises of the complainant along with cost.

2. 1^st opposite party filed version contending that the complaint is not maintainable either in law or on facts, that complainant is a consumer of the opposite parties, that the connection was effected in the year 1983. As part of the routine inspection in the industrial connections the 1^st opposite party visited the p;remises of the consumer and noticed that unauthorised alterations were made in the installation and in the 3 phase energy meter installed in the premises for measuring the quantum of energy used by the consumer was found to be tampered with, that a five small holes were made on the top of the energy meter and the rotation of the disc in the meter was asserted by inserting foreign matter like stick through the artificially made hole, that the illegal acts of the complainant were informed to the person, who present at the time of inspection in the premises and prepared a site mahazar. The supply to the premises was disconnected and notices were issued to the complainant to remit the amount for losses sustained by the opposite parties by way of illegal abstraction of energy as per clause 42(d) and 43 of consitions of supply of electrical energy. Another notices were issued to realising the cost of new three phase energy meter as per rules. The supply to the consumer was disconnected on 14/9/2002. On 23/9/2003 complainant submitted a reply to the Chief Engineer, KSEB stating that the registered owner sold out the oil mill to another person, but never requested to change the name in the official records of the KSEB. A request for disconnection from the registered owner received by the opposie parties on 3/1/2003. Every disconnected supply will be dismantled after the expiry of six months from the date of disconnection and also the consumer is liable to clear all outstanding dues before dismantling the service. Hence opposite parties prayed for dismissal of the complaint with cost to opposite parties.

3. The points that arise for consideration are:

1. Whether the complainant is entitled to get the notice dated 17/9/2002 cancelled?

2. Whether complainant is entitled to dismantling the electric connection from the premises of the complainant?

3. Whether there has been deficiency in service on the part of opposite parties?

4. Other Reliefs?

4. In support of the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and Exts. P1 to P9 were marked. 1^st opposite party has been examined as DW1 and cross examined by complainant and Exts. D1 to D3 were marked?

5. Points (i) to (iv): Admittedly, complainant was a consumer of opposite parties vide consumer No.UKD 1740 under Uchakkada Electrical Section. It has been the case of the complainant that the said electric connection was taken to run an oil mill with a connected load of 12kw under self employment scheme, that the current charges of the consumer were charged under Industrial Tariff, that the invoices were prepared and served on monthly basis as per reading of energy meter, and that the complainant had remitted all invoices served to him as and when without fail. It has also been the case of the complainant that on 20/9/2002, a letter with two notices dated 17/9/2002 was served to the complainant by the 1^st opposite party. It is further submitted that it is stated in the letter that “Upon an inspection of the electrical installation in your premises on 14/9/2002 it was found that unauthorized alterations and addition to the wiring, connection load etc., to the extent indicated below has been carried out without due intimation to this office. It is highly irregular and against provisions of IE Act 1910 and the regulations of the Board”.

“You are also directed to remit the amount charged as per clause 42(d) of conditions of supply of electrical energy within the due date specified in the bill failing which the supply to the entire installation is liable to be disconnected without any further notice. Upon inspection on 14/9/2002 it has been found that illegal abstraction of energy by tampering the energy meter. You are directed to remit the amount as per the bill attached and meter cost”. Submission by the complainant is that complainant was requested to remit Rs.67,547/- as per clause 42(d) of the conditions of supply of electrical energy on or before 27/9/1992 and also directed to remove additional points immediately and also requested to remit Rs.2,919/- towards cost of energy meter. It is contended by the complainant that though he had tried to remit the normal monthly current charge of Rs.4,144/- of 8/2002, on 26/9/2002 as per invoice No.96610, 1^st opposite party refused to accept the same without the amounts of Rs.67,547/- and Rs.2,919, and that since the complainant was unable to remit the said amounts, opposite parties disconnected the said connection on 27/9/2002 and the said oil mill kept idle from 27/9/2002 onwards. Complainant submits that since he was not in a position to retain the service under disconnection with an amount of Rs.540/- as monthly fixed charge during the disconnected period till the dispute is settled, complainant made a request to dismantle the service to 1^st opposite party on 30/1/2003 to avoid the monthly fixed charge of Rs.540/-. Ext.P1 is the invoice dated 25/5/2002 for Rs.1,448/-. Ext.P2 is the invoice dated 24/6/2002 for Rs.2,117/-, Ext.P3 is the invoice dated 24/7/2002 for Rs.2,105/-, Ext.P4 is the invoice dated 24/8/2002 for Rs.1,435/-, Ext.P5 is the invoice dated 24/9/2002 for Rs.4,144/-, Ext.P6 is the invoice dated 24/10/2002 for Rs.1,423/-. A perusal of Exts.P1 to P6 would reveal that fixed charge would remain the same while the energy charge would vary. Exts.P7 & P8 are two notices dated 17/9/2002 demanding Rs.67,547/- and Rs. 2,919/- from the complainant by the opposite parties. Ext.P9 is the letter addressed to the complainant by the opposite parties directing him to remit the amount charged as per clause 42(d) of the conditions of supply of electrical energy. Ext.D1 is the copy of the letter dated 5/11/2002 issued by the complainant to the Executive Engineer, Neyyattinkara. Ext.D2 is the copy of the letter dated 3/1/2003 addressed to the 1^st opposite party by the complainant requesting him to dismantle the service of vide consumer No.UKD 1740 forthwith, so that the monthly fixed charge of the service can be avoided. Ext.D3 is the Mahazar prepared by the Sub Engineer.

6. In this case it is alleged by the opposite parties that there was an unauthorised use of electricity by some means by the consumer. This was detected when Sub Engineer visited the premises of the consumer on 14^th September 2002 and a site mahazar was prepared. The supply to the premises was disconnected and notices were issued to the complainant to remit an amount for loss sustained by the Board by way of illegal extraction energy as per clause 42 (d) and 43 of the conditions of supply. It is pertinent to note that in case of unauthorised misuse of electricity, the same can be dealt with in accordance with law. In his cross examination, complainant deposed that no such inspection was conducted with site mahazar and no supply was disconnected on 14/9/2002. It is urged by the complainant that in case of unauthorised additional load or alteration, a notice has to be served by the Assistant Engineer or Assistant Executive Engineer directing the consumer to regularise the additional load or remitting the testing fee for alteration by submitting application in proper form before penalising the consumer under clause 42(d) of conditions of supply; but no such notice was served to the consumer directing to regularise unauthorised additional load. It is further submitted by the counsel appearing for the complainant that as per Board Order (FB) No.1292/2002/dated 18/9/2002, the penalty of unauthorised additional load shall be levied at the rate of price the fixed charge per KW till the unauthorised additional load is removed or regularised. It is submitted by the complainant that to over rule the said order dated 18/9/2002, the 1^st opposite party had served notice on 20/9/2002 with noting a prior date of 17/9/2002 in the notice one day before the date of Board Order. At this juncture, the only question which requires consideration is whether under the Electricity Act 2003, the Officers of the Electricity company are empowered to arbitrarily direct the consumers to deposit the amount according to whims and with a threat that failure to deposit of the said amount would result in disconnection of electricity power or they would be prosecuted? As per the decision of the Hon'ble National Commission in the case of Dakshin Haryana Bilji Victran Nigam Ltd and Others Vs. Megh Raj reported in IV (2008) CPJ 11 (NC), the Electricity Act 2003 nowhere empowers the officers concerned to adopt such an arbitrary procedure. Under the Act, in the case of alleged unauthorised use of electricity, procedure prescribed under Section 126 of the Act is required to be followed. It is stated in the above decisions that: in short, the procedure prescribed under Section 126(i) empowers the concerned officers to have an inspection if any place or premises of the consumer (ii) On inspection, if the assessing Officer comes to the conclusion that such consumer is indulging unauthorised use of electricity, he is required to provisionally assess to the best of his judgment the electricity charges payable by such consumer or by any other person benefitted by such use, (iii) such conclusion can also be answered at on the basis of inspection of the record maintained by the consumer, (iv) the order of provisional assessment is required to be served upon the person in occupation or in possession or in charge of the premises in such a manner as may be prescribed,(v) thereafter, consumer is entitled to file objection against the provisional assessment before the assessing officer, (vi) thereafter reasonable opportunity of hearing is required to be given to such consumer, (vii) after giving reasonable opportunity of hearing, final order of assessment within 30 days from the date of service of such provisional assessment order is required to be passed and (viii) Sub section (4) empowers, the consumer to accept the provisional assessment and deposit the assessed amount with the Electricity Company within 7 days of service of such provisional assessment order on him. Further, the said provisional assessment order, power is restricted for the period prescribed under Sub Section (5) which provides that such assessment shall be made for the entire period during which unauthorised use of electricity has taken place, and in any case, if the period during which unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of 12 months immediately preceding the date of inspection. Also, there is further limitation under Sub Section (6) for assessment in case of unauthorised use of electricity that such assessment shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified under Sub Section (5). The aforesaid entire procedure is required to be followed before passing the assessment order. Further even if we refer to the amended provisions of Section 135, whereby 135(IA) is added with effect from 15/6/2007, then also in the case of apparent theft of energy, the officers are required to make assessment under Section 126. In this case, it is pertinent to note that without issuing any notice as contemplated under Section 126, or without passing any provisional order as contemplated under Section 126 of the Act, the Officers straight away issued notice directing the complainant to pay an amount. This is nothing but arbitrary and against law. If the procedure prescribed under the Act is not followed, it is to be highlighted that the Act nowhere empowers the Officers of the Electricity Company to act according to their whims and harass the consumers at large – Further in this case, it is submitted by the complainant that no such inspection as stated in the version was conducted with site Mahazar and no supply was disconnected on 14/9/2002, that Exts. P7, P8 & P9 notices and letter dated 17/9/2002 were served on 20/9/2002 requesting to remit the notice amount within 10 days and 7 days respectively, failing which the supply would be cut off without further notice; would clearly show that the supply was there till 27/9/2002 and cut off only on 27/9/2002. Opposite parties did not examine the Sub Engineers who reported the theft of power, no Police investigation was done. Mahazar witnesses were not examined, no crime is seen registered. For inspection of energy meter, Electrical Inspector was appointed by this Forum. The Electrical Inspector filed report (the report is in the record) stating that at the time of inspection it is seen that the energy meter was taken from the premises by the Assistant Engineer earlier and the meter is not in the complainant's premises, it could not be taken for testing. Meter not checked in the presence of complainant or his representative. Theft of energy not proved. Deficiency in service proved.

7. In the light of evidence adduced and in the light of the decision of the Hon'ble National Commission, we find complainant is entitled to get cancelled the notices dated 17/9/2002 requesting to remit Rs.67,547/- and Rs.2,919/-. Complainant is also entitled to dismantling the electric connection from the premises of the complainant.

In the rresult, complaint is allowed. The notices (Exts. P7 & P8) dated 17/9/2002 requesting to remit Rs.67,547 and Rs.2,919 issued by opposite parties are hereby cancelled. Opposite parties are directed to dismantle the electric connection vide consumer No.UKD 1740 from the premises of the complainant if not dismantled so far. There will be no compensation and cost in facts and circumstances of the case.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30^th day of March, 2009.

G. SIVAPRASAD

PRESIDENT.

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.61/2003

APPENDIX

I. Complainant's witness:

PW1 : Rajan

II. Complainant's documents:

P1 Demand notice dt. 25/5/2002

p2 : Demand notice dt. 24/6/2002

P3 : " dt. 24/7/2002

P4 : " dt. 24/8/2002

P5 : " dt. 24/9/2002

P6 : " dt. 24/10/2002

P7 : Letter No.DB.BLPM/BB/-2-03 dt. 17/9/2002 to the Con.No.1740 issued by opp. Party.

P8 : Letter No.DB 12/02/D3 dt. 19/9/2002 to the complainant by the opp. Party

P9 : Letter No.DB/BB/Theft/BLPM/2002-03 to the complainant by the opp. party

III. Opposite parties' witness:

DW1 : Ansalene.J

IV. Opposite parties' documents:

D1 : Copy of letter dt. 5/4/2002 to the opp. party sent by the complainant.

D2 : Copy of registered letter dated 3/1/2003 to opp. Party by the complainant.

D3 : Original Site Mahazar dt. 14/9/2002.

PRESIDENT