This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant, Shri Dilip Roy that his father (now deceased) was a consumer of the electricity provided by Goghat Gr. Electric supply WBSEDCL and after demise of his father he  became the actual user of the service and on 6.10.2010 the Station Manager lodged a complaint to Goghat P.S. against the complainant alleging that during inspection of the complainant’s house at about 3.55 p.m. the complainant was found consuming electricity unauthorized and dishonestly by way of direct hooking from L.T.O.H. Line at his premises at vill.- Adra, P.O.- Bhadur within P.S. Goghat.

The complainant also states that thereafter the station manager lodged a written complaint to the O.C. Goghat P.S. and handed over the seizure list, inspection report and seized alamat and the complainant was arrested allegedly from his house and on receiving the said FIR police started a case against the complainant for theft of electricity u/s 135(1)(a) of the Electricity Act, 2003 and the Investigating Officer submitted charge sheet against the complainant for theft of electricity and during the period of investigation the station manager charged a provisional bill of Rs.4,90,050/- and the complainant was pressurized to pay the said amount. The opposite party also threatened to the complainant with dire consequence for deposited said amount of Rs. 4,90,050/- to the station manager and on receiving the same the station manager issued a money receipt and at the time opposite party promised that if the complainant would acquitted from the said case then they will return the said deposited amount in favour of the complainant.

The complainant also states that charge was framed by the Special Court, Arambagh Hooghly against the complainant and the complainant pleaded ‘not guilty’ and claimed to be trial and the said case was registered as Electricity Case No.106 of 2015 and at the time of trial two witnesses were examined by the prosecution. But the prosecution has failed to establish the allegations leveled against him. As such the complainant was acquitted from the said case and he had also be discharged from bail bonds by judgment dt. 25.1.2016 delivered by the Special Court & The Additional District Judge Court, Arambagh, Hooghly.

The complainant also states that after the judgment he send a letter dt. 19.12.2016 to the opposite party with a request to return back the money of Rs. 4,90,056/- which was deposited by him as provisional bill but after receiving the said letter neither opposite party nor his authority concern gave any reply or return any amount to him which is clearly under the deficiency of service on the part of opposite party thereafter that on 26.12.2017 he through his Ld. Advocate send a demand notice to the  with a request to return the said deposited amount in favour of him but after receiving the said notice the opposite party neither gave any reply nor return any amount in favour of him. Be it further mentioned here that this complainant is a bona fide customer under the opposite party company and the opposite party is liable to pay the said amount of Rs.4,90,050/- along with interest in favour of complainant and the cause of action arose on 25.1.2016 when the Special Court Additional District Judge Arambagh Hooghly acquitted him from the Electricity Case no.38/2011, CIS Regd. Electricity Case no. 106 of 2015 arising out of Goghat P.S. Case no. 168, dt. 6.10.2010 u/s 135(1)(a) Electricity Act, 2003 and lastly on 27.12.2017 when the opposite party had received the demand notice send by Ld. Advocate and after receiving the said demand notice the opposite party keeps silent regarding the said claims and till is continuing.

Complainant filed the complaint petition praying direction upon the opposite party to pay sum of Rs. 4,90,050/- along with interest and an order directing the opposite party to pay a sum of Rs.50,000/- to the complainant for her mental agony for deficiency in service on part of the opposite party and an order of directing the opposite party to pay Rs. 50,000/- to the complainant as compensation as well as litigation cost and any order relief or reliefs, as deem fit and proper, in law and equity.

The opposite party contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that complainant was found to be consuming electricity un-authorisedly and dishonestly by way of direct hooking from L.T.O.H at his premises at vill.- Adra P.O.- Bhadur within the P.S.-Goghat and as a result of which on 6.10.2010 one complaint was  lodged at Goghat P.S. against the consumer u/s 135(1)(a) of Electricity Act, 2003 amended on 2007 and the said case was registered at Goghat P.S. Case no. 168 of 2010 and on 6.10.2010 provisional assessment order was issued along with bill amounting to Rs. 4,90056/- as per provision of Section 126 of Electricity Act 2003 and this is purely for consumption of electricity in unlawful and illegal manner which is prohibited in the settled law.

            The opposite party also states that the complainant deposited the amount of Rs.4,90,050/- which was prepared under provision of 126 of the Electricity Act, 2003. But the complainant was acquitted from the Criminal Case which was as per provision of Section 135(1)(a) of Electricity Act, 2003 and the complainant is a consumer but he is not entitled to get any relief. As a matter of fact, action taken by the opposite party WBSEDCL within the purview of Section 126 of the Electricity Act, 2003 cannot be challenged or entertained by any court of law and as per provision of Section 127 of Electricity Act, 2003 any person aggrieved by the final order made u/s 126 may within 30 days of the said order prefer an appeal. So, the complainant’s prayer for passing order to return the deposited amount of provisional assessment billing amount cannot be entertained.

The OP filed affidavit in chief which is also the replica of the written version so it is needless to discuss.

Both sides filed affidavit in chief and written notes of arguments which are taken into consideration during the passing of final order.

         The argument as advanced by the advocates of the parties heard in full.

            From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainant Dilip Roy is a ‘Consumer’ of the Opposite Party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the OPs carried on unfair trade practice/rendered any deficiency in service        towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

 In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Dilip Roy is a ‘Consumer’ of the opposite party?

    From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant is consuming electricity as provided by the opposite party Company and he is paying bills so the petitioner is a complainant to the opposite party and it is admitted by the opposite party Company being the service provider.

 (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

        Both the complainant and opposite party are residents/carrying on business within the district of Hooghly. The complainant being the beneficiary is consuming electricity provided by the opposite party. The opposite party is the service provider. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

       The opposite party being the largest Electric Supply Company throughout the state having a  lot of offices, power stations, substations and power generating stations decorated with a lot of expert hands and running its business with goodwill for a long period and providing/rendering service for development of society as well as implementing a lot of Govt. programs. So the role of opposite party Company for the development of the society is unquestionable.     

      The opposite party herein is the Station Manager of an office of the largest electric supply company throughout the State of W.B. The Company WBSEDCL running its business throughout the state except territorial jurisdiction of Kolkata Corporation. The opposite party Company is providing power in the rural areas in different projects for a long period. That is why the consumers in the rural areas are highly grateful to the Company. While providing powers throughout the state it also suffers from many discrepancies. Like not sending/ preparing bills in due time or sending bills for a period when the powers are discontinued and not taking reading regularly as a result the consumers suffers from paying accumulated units at a higher rate and fails to provide powers to the consumers after taking quotation money. As a result the consumers suffer a lot and make their grievances for remedy before the appropriate Forums. The inaction/negligence/discrepancies of the opposite party Company tantamount to deficiency of service for which the consumers are suffering a lot.

This case of the complainant is that his father (now deceased) was a consumer of the electricity provided by Goghat Gr. Electric supply WBSEDCL and after demise of his father he  became the actual user of the service and on 6.10.2010 the Station Manager lodged a complaint to Goghat P.S. against the complainant alleging that during inspection of the complainant’s house at about 3.55 p.m. the complainant was found consuming electricity unautorisedly and dishonestly by way of direct hooking from L.T.O.H. Line at his premises at vill.- Adra, P.O.- Bhadur within P.S. Goghat. Thereafter the station manager lodged a written complaint to the O.C. Goghat P.S. and handed over the seizure list, inspection report and seized alamats and the complainant was arrested allegedly from his house and on receiving the said FIR police started a case against the complainant for theft of electricity u/s 135(1)(a) of the Electricity Act, 2003 and the Investigating Officer submitted charge sheet against the complainant for theft of electricity and during the period of investigation the station manager  assessed a provisional bill of Rs.4,90,050/- and the complainant was pressurized to pay the said amount.

The complainant also states that charge was framed by the Special Court, Arambagh Hooghly against the complainant and the complainant pleaded ‘not guilty’ and claimed to be trial and at the time of trial two witnesses were examined by the prosecution. But the prosecution has failed to establish the allegations leveled against him. As such the complainant was acquitted from the said case and he had also be discharged from bail bonds by judgment dt. 25.1.2016 delivered by the Special Court & The Additional District Judge Court, Arambagh, Hooghly. That after the judgment he send a letter dt. 19.12.2016 to the opposite party with a request to return back the money of Rs. 4,90,056/- which was deposited by him as provisional bill but after receiving the said letter neither opposite party nor his authority concern gave and reply or return any amount to him.

The opposite party in his argument stated that complainant was found to be consuming electricity un-authorisedly and dishonestly by way of direct hooking from L.T.O.H at his premises at vill.- Adra P.O.- Bhadur within the P.S.-Goghat and as a result of which on 6.10.2010 one complaint was  lodged at Goghat P.S. against the consumer u/s 135(1)(a) of Electricity Act, 2003 amended on 2007 and the said case was registered at Goghat P.S. Case no. 168 of 2010 and on 6.10.2010 provisional assessment order was issued along with bill amounting to Rs.4,90,056/- as per provision of Section 126 of Electricity Act 2003 and this is purely for consumption of electricity in unlawful and illegal manner which is prohibited in the settled law.

            The opposite party also averred that the complainant deposited the amount of Rs.4,90,050/- which was prepared under provision of 126 of the Electricity Act, 2003. But the complainant was acquitted from the Criminal Case which was as per provision of Section 135(1)(a) of Electricity Act, 2003 and the complainant is a consumer but he is not entitled to get any relief. As a matter of fact, action taken by the opposite party WBSEDCL within the purview of Section 126 of the Electricity Act, 2003 cannot be challenged or entertained by any court of law and as per provision of Section 127 of Electricity Act, 2003 any person aggrieved by the final order made u/s 126 may within 30 days of the said order prefer an appeal. So, the complainant’s prayer for passing order to return the deposited amount of provisional assessment billing amount cannot be entertained. 

       Perusing the case record, complaint petition, written version and documents and hearing the arguments that this complainant was assessed a huge amount u/s 126 of the India Electricity Act, 2003 for theft of energy u/s 135(a) of the act. The complainant deposited a sum of Rs.490,050/- as assessed bill under section 126 of Indian Electricity Act,2003. After facing the trial before the special court the complainant was acquitted from the case as the offence u/s- 135(a) of the Electricity was not proved. The opposite party by filing the decisions of Hon’ble Gujrat High Court in Paschim Gujarat Vij Co. Ltd Vs. Devbhai Myatra ,2014 AIR (Gujrat) 26,  Hon’ble State Commission of Maharastra in Kirti Agrotech Limited vs. Maharastra State Electricity Distribution co. Ltd & othrs 2015 (10 CPJ ,137,  Hon’ble Karnataka High Court in Gulbarga Electric Supply Company Ltd Vs. Sharannapa & othrs, 2007(2) ICC 104, Hon’ble National Commission in Torrent Power Ltd. Vs. Subhash N. Shah & othrs 2015 (4) CLT 68 assailed that the complaint case relates to offences of theft of electricity u/s 135(a) of Indian electricity Act,2003 and the provision bill assessed u/s 126 of the said act which are not maintainable before the Consumer forum. Ld advocate of the complainant argued that the complainant was falsely implicated in the theft of energy and he faced the trial of the special court at Arambagh and acquitted from the case in respect of theft of energy. So the offence regarding the theft & pilferage of power is not established against the complainant.  Then the complainant is entitled to get refund of assessed bill paid for theft of energy from the opposite party as he is not found guilty.

            Apex Court in the case of UP Power Corporation Ltd. and others vs. Anis Ahmad, Air 2013, Supreme Court 2766 held that complaint made against assessment of unauthorized use of electricity u/s 126 of the Electricity Act, so also, the complaint made against action taken under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Forum. The specific paragraphs 45 and 46 speak as follows:

“45. The National Commission though held that the intention of the Parliament is not to bar the jurisdiction of the Consumer Forum under the consumer Protection Act and have saved the provisions of the Consumer Protection Act, failed to notice that by virtue of Section 3 of the Consumer Protection Act, 1986 or Sections 173, 174 and 175 of the Electricity Act, 2003, the Consumer Forum cannot derive power to adjudicate a dispute in relation to assessment made under Section 126 or offences under Sections 135 to 140 of the Electricity Act, as the acts of including in “unauthorized use of electricity” as defined under Section 126 or committing offence under Sections 135 to 140 do not fall within the meaning of “complaint” as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.

46. The acts of indulgence in “unauthorized use of electricity” by a person, as defined in clause (b) of the Explanation below Section 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 assessment under Section 126 is not maintainable before the Consumer Forum. The Commission has already noticed that the offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted under Section 153 of the Electricity Act, 2003. In that view of the matter also the complaint against any action taken under Sections 135 to 140 of the Electricity Act, 203 is not maintainable before the Consumer Forum.

 It is needless to say that a court of law cannot pass any order on equitable grounds. It is true that having regard to the laudable object behind the legislation of the Act, to protect the interest of consumers, literal interpretation has to be placed on the scheme of the Act avoiding hyper technical approach. While passing any order regarding the billing dispute we have to think that the bill raised by the OP/WBSEDCL is public money. And if there is any dispute regarding the bill then the complainant should approach the Central Grievance Redressal Officer.  The general phenomenon of electric connection is that the complainant is under obligation to pay bills as per his/ her consumption. As per Electricity Act, 2003 and West Bengal Regulatory Commission Regulation, 2004 in case of disputed or erroneous bill the power has vested to the Regulatory Authority to assess the said bill and in this respect the Consumer Forum has no power. If any dispute arising out of billing then this Forum has no authority to interfere. Any dispute rather than the billing dispute and theft & pilferage of power, only the deficiency of service of the opposite party is tenable before this Forum.

           From the above discussion we may come into this conclusion that the complainant could not prove his case by producing sufficient documents that opposite party is deficient in providing service to its consumer, so the prayer for relief before this Forum is not tenable.

4). whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

            The discussion made herein before, we have no hesitation to come in a conclusion that the complainant could not able to prove his case. So the Opposite Party is not liable to pay any compensation to this complainant.

ORDER

       Hence, ordered that the complaint case being No.37/2018 be and the same is dismissed on contest against the opposite party, with no order as to cost.      

  The Opposite Party is exonerated from this proceeding.

 Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.