PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) The Complainants have prayed that the demand raised of Rs.3,73,401.72 as per
provisional assessment bill by the Opposite Party against the Complainant No.2 for
unauthorized purpose be quashed. The Complainants also prayed that compensation
of Rs.20,000/- be awarded for the physical harassment and mental tension caused to
the Complainant No.2 and cost of this complaint.
2) According to the Complainants, the Complainant No.1 is Voluntary Consumer
Organization which has been espousing the cause of the consumers. The Complainant
No.2 is the actual aggrieved consumer in respect of the electric supply services
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rendered by the Opposite Party. It is alleged that the present complaint is in respect of
unfair trade practice of the Opposite Party of deliberately raising false, bogus and
concocted bills. It is submitted that the Complainant No.2 is earning his livelihood by
selling water and he has small office with electric connection given by the Opposite
Party bearing Consumer No.361-111-004*3 which is in existence since April, 2004.
According to the Complainant, the Complainant No.2 received letter from the
Opposite Party dtd.11/07/2011 stating that an inspection had been carried out on
15/12/2010 and in view of the said inspection the demand for “unauthorized load” of
Rs.3,72,401.72 is being made. However, in the bill the said demand was made as the
supply was being used for “unauthorized purpose”. It is submitted that in the said
letter it was stated that an assessed the bill being raise, calculated “for a period of 12
months at two times the correct tariff.” Copies of the said letter and provisional
assessment bill are marked as Exh.‘A’ & ‘B’. The Complainant No.2 disputed the
said demand by letter dtd.27/07/2011 pointing out conflicting reasons had been given
for the said demand since the term “unauthorized load” and “unauthorized purpose”
had distinct and different meanings. The copy of the said reply is marked as Exh.‘C’.
It is submitted that in the reply letter issued by Complainant No.2, he had pointed out
that the sanctioned load is 5.630 Kw whereas the connected load is 3.937 Kw. It is
submitted that the said letter was also sent by the Complainant No.2 to the Assessing
Officer and to Consumer Grievance Redressal Forum of the Opposite Party. It is
alleged that the Consumer Grievance Redressal Forum of the Opposite Party sent
reply dtd.01/08/2011 stating that the dispute did not fall within its purview. The copy
of the said reply is marked as Exh.‘D’. The Assessing Officer by letter dtd.14/09/2011
replied that the Complainant No.2 falsely alleging that electricity was being used for
construction purpose, which constituted use for unauthorized purpose. The copy of
the said letter is marked as Exh.‘E’. It is case of the Complainants that the demand
made by the Opposite Party is false as there is no construction activity was undertaken
by the Complainant No.2. It is alleged that there is no question of any unauthorized
load as the connected load is less than sanctioned load and there is no question of any
different tariff rate being applicable as contended by the Opposite Party. The entire
demand is made mischievously for extraneous consideration. It is alleged that the
Opposite Party had threatened the Complainant No.2 to disconnect the supply for non
payment of the bill. The Complainants therefore, prayed for the reliefs as mentioned
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in para 1 of this order.
3) The Opposite Party by filing written statement contested the claim. It is
contended that the complaint is misconceived, without merits and substance and liable
to be dismissed with compensatory cost. It is submitted that the Complainant No.2 is
having A/c. No.361-111-004*3 having Meter No.069138 for commercial purpose.
The Complainant No.2 being commercial consumer is not the consumer as defined
under Sec.2d(ii) under the Consumer Protection Act, 1986, (hereinafter referred to as
the Act). It is also contended that the complaint is filed regarding assessed bill
preferred on the Complainant No.2 under Sec.126 of the Electricity Act, 2003 and as
per the judgment of the Apex Court, in the case of U.P. Power Corporation Ltd. &
Ors. Vs. Anis Ahmed, the jurisdiction to entertain the complaint filed in the matter of
theft of electricity cannot be entertained by this Forum.
4) It is contended that the premises of the Complainant No.2 was surprisingly
checked by the Opposite Party on 15/12/2010 and it was found that at service position
there were two meters 1) Meter No. BO 97258 for temporary construction purpose
installed in the name of M/s. Quaswa Enterprise and 2) Meter No. NO 69138 having
A/c. No.361-111-004*3 in the name of Complainant No.2. It was noticed that supply
through Meter No.69138 was found being used for construction purpose. The
premises was again checked on 20/12/2010 and it was noticed that connected load
affected to the said meter was one ceiling fan, one lamp, three water pumps, four
halogen lamps and that four water pumps are used for construction purpose and
connected through the Meter No.69138. The copy of the reports submitted by the
concerned staff on visit are marked as Exh.‘III’. It is contended that M/s. Quasa
Enterprises vide requisition no.13128 dtd.05/05/2010 applied for temporary meter at
ground floor, Shri Bahavan, Jambhulwadi, Kalbadevi Road, Mumbai – 02 with
sanction load of 1.00 Kw. But due to non compliance of the requirements the said
requisition was cancelled. The copy of the cancelled requisition no.13128 is at
Exh.‘IV’. It is submitted that the above consumer again revived requisition no.18707
dtd.05/08/2010 by submitting the relevant documents for installation of meter
documents and temporary meter No. Bo 97259 having A/c. No.TIS/3131/10-11 was
installed on 06/10/2010. The consumer had deposited security deposit of Rs.7,000/-
and paid connection fee of Rs.250/-. The copies of the said receipts are marked as
Exh. V. It is contended that Meter No.69138 was installed for commercial purpose
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and in the investigation by the Opposite Party it was found that supply was
unauthorisedly extended for construction purpose that being case of violation of tariff
of electric supply i.e. the supply used for the purpose other than for which uses of
electricity was authorized. According to the Opposite Party as the Complainant No.2
was involved in unauthorized use of supply the notice u/s.126 of Electricity Act, 2003
was issued to the Complainant No.2 dtd.30/12/201. However, there was no response
of the Complainant No.2 to the said notice and assessment bill dtd.11/07/2011 was
preferred to the Complainant for the period January, 2010 to December, 2010
amounting to Rs.3,73,401.72 at twice the rate applicable as per Electricity Act, 2003.
It is contended that the Complainant No.2 had disputed the bill by letter
dtd.27/07/2011 and the same was replied by Opposite Party on 14/09/2011. In the
said reply the Complainant No.2 was informed abut details of the assessed bills and it
was acknowledged by the representative of the Complainant No.2 Shri Afzalbhai on
the same day. It is denied that the demand of the assessment bill is made
mischievously for extraneous consideration. It is contended that as the Complainant
No.2 was making unauthorized used of supply for construction therefore, he was
properly charged for unauthorized used as mentioned in the letter issued by the
Opposite Party dtd.14/09/2011. It is contended that the complaint filed by the
Complainants is liable to be dismissed with cost.
5) The Complainant has filed affidavit of evidence. The Opposite Party has filed
affidavit of evidence of J.M. Latye, Dy. Engineer, Customer Care ‘C’ Ward. The
Complainant’s Representative Mr. Jehangir Gai filed written argument. The Opposite
Party has not filed separate written argument but filed pursis stating that the written
statement and the documents submitted with it be treated as written argument of the
Opposite Party and relied the judgment of the Hon’ble Supreme Court of India in
Civil Appeal No.5466 of 2012 in the case of U.P. Corporation Ltd. V/s. Anis Ahmed.
We have perused the documents filed by both sides. We heard oral argument of Shri.
Jehangir Gai, the Representative of the Complainant and Shri. P.V. Dhobale, Law
Officer of the Opposite Party.
6) While considering the case alleged by the Complainants that the demand made
by the Opposite Party is false as there was no question of any unauthorized load as
connected load was less than sanctioned load and there was no question of any
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different tariff rate being applicable as contended by the Opposite Party and the entire
demand made by the Opposite Party is for extraneous consideration, therefore, in no
manner such use of electricity can be called as unauthorized one to attract the
provisions provided under Sec.126 to 135 of Electricity Act, 2003, for considering the
claim made by the Complainants it is necessary to be considered whether the
complaint filed by the Complainants before this Forum is maintainable or not ? In
this context the observations of the Hon’ble Supreme Court in Civil Appeal No.5466
of 2012 in the case of U.P. Power Corporation Ltd. V/s. Anis Ahmed, decided on
01/07/2013 which are relied by the Opposite Party are required to be taken into
consideration. The Hon’ble Supreme Court in the aforesaid case by considering the
provisions of Sec.126 & 127 of Electricity Act, 2003, held that Sec.126 of Electricity
Act, 2003 empowers the Assessing Officer to make assessment in case of
“unauthorized use of electricity”. It is also held that it provides that, if on an
inspection of any premises or after inspection of the equipments, gadgets, machines,
devices found connected or use, or after inspection of records maintained by any
person, the assessing officer comes to the conclusion that such person is indulging in
“unauthorized use of electricity”, he shall asses the electricity charges payable by such
person or by any other person benefited by such use. The Hon’ble Apex Court further
held that therefore, it is clear that after notice of provisional assessment to the person
indulging in unauthorized use of electricity, the final decision by an Assessing Officer,
who is a public servant, on the assessment of “unauthorized of electricity,” is a “Quasi
Judicial” decision and does not fall within the meaning of “Consumer Disputes” under
Sec. 2(1) (e) of the Consumer Protection Act, 1986. The Hon’ble Supreme Court
further held from a bare reading of Sec.126 & Sec.135 to 140, it is clear that while
acts of “unauthorized use of electricity” attracts civil consequences of penal charge of
electricity, twice the rate of electricity, for which assessment is made by the Assessing
Officer u/s.126; the very same acts of “unauthorized use of electricity”, constitute
“offences u/s.135 to 140 for which sentence and fine has been prescribed. The
Hon’ble Supreme Court by considering the provision of Sec.153 & 145 of Electricity
Act, 2003 also held that the Civil Courts jurisdiction to consider a suit with respect to
the decision of Assessing Officer under Sec.126, or decision of Appellate Authority
under Sec.127 is barred under Sec.145 of the Electricity Act, 2003. The Hon’ble
Supreme Court has specifically observed as under –
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“The act of indulgence in “unauthorized use of electricity”
by a person, as defined in Clause (b) of the explanation below
Sec.126 of the Electricity Act, 2003 neither has any relationship
with “unfair trade practice” or ‘restrictive trade practice” or
‘deficiency in service” nor does it amounts to hazardous services
by the licensee. Such acts of “unauthorized use of electricity” has
nothing to do with charging price in excess of the price.
Therefore, acts of person in indulging in unauthorized use of
electricity do not fall within the meaning of “complaint”, as we
have noticed above and therefore, the “complaint” against the
assessment u/s.126 is not maintainable before the Consumer
Forum.
Considering the aforesaid observations and perusal of the documents placed on
record by the Opposite Party, it appears that while assessing the bill prepared under
Sec.126 of Electricity Act, 2003 of Rs.3,73,041.72 the Opposite Party found that the
Complainant was unauthorizedly extended the supply from original Meter No.
NO69138 which was installed for commercial purpose to construction purpose and
thereby made violation of tariff of electric supply for the purpose other than for which
the usage of electricity was authorized. It appears that accordingly the Opposite Party
had issued notice under Sec.126 of Electricity Act, 2003 to the Complainant No.2 vide
REF CCC (C)/Section 126/U 12/28/10/30/12/2010 and as there was no response to the
said notice from the Complainant No.2, the assessment bill under reference CC
(C)/ESL-14/Kdm-13/410494/2011, dtd.11/07/2011 as per Sec.126 of the Electricity
Act, 2003 was preferred to consumer (Complainant No.2) for the period January, 2010
to December, 2010 amounting to Rs.3,73,401.72 at twice the rate of applicable as per
Electricity Act, 2003, and thus, the validity of the action initiated by the Opposite
Party cannot be entertained by this Forum as alleged and submitted by the
Complainant’s representative. In our view objection raised by the Opposite Party
as regards maintainability of the complaint as the Complainants have challenged
the action taken by the Opposite Party under Sec.126 of Electricity in view of
the observations of the Hon’ble Supreme Court in para 47 (ii) in the above
quoted judgment which are as under is not maintainable. The Hon’ble Supreme Court
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observed as under. –
“(ii) A “complaint” against the assessment made by the
Assessing Officer under Sec.126 or against the offences committed
under Sec.135 to 140 of the Electricity Act, 2003 is not
maintainable before a Consumer Forum.”
The contention therefore, raised by the Opposite Party in view of the judgment
passed by the Hon’ble Supreme Court, that the present complaint cannot be
entertained by this Forum as complaint itself is not maintainable can be said legal and
proper. In the result we pass the following order –
O R D E R
i. Complaint No.8/2012 is dismissed with no order as to cost.
ii. Certified copies of this order be furnished to the parties.
