SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The Complainant has filed this complaint petition, U/s-35 of C.P.A.-2019, (here-in- after called as the “Act”) alleging a “deficiency-in-service” by the Ops, where OP No.1 is the Executive Engineer, Electrical, TPNODL, OP No.2 is the S.D.O., Electrical, TPNODL & OP No.3 is the J.E., Electrical, TPNODL, Basta, in the district of Balasore.
2. The case of the complainants, in short, is that the complainant is a consumer under the Ops bearing consumer No.BD 1-55902/322104100809. He used to pay the electric dues regularly since 2021. But the Ops suddenly on 10.3.2022 at about 4.00 pm, without any information and taking advantage of the absence of the complainant, manhandled the electric meter which was burnt in the midnight. On being requested, the Ops installed a new meter in his premises and usually power supply was resumed. On the next day i.e. on 11.3.2022, the complainant lodged an FIR before the Basta PS and also intimated the said fact to the Ops. Thereafter, the Ops issued illegal Bill for a sum of Rs.2,01,233/- on 21.3.2022. On this, the complainant made a written complaint before OP No.2 regarding the illegal bill to which OP No.2 told that in case he will pay a sum of Rs.50,000/- the penal bill would be cancelled. Thus, the complainant paid Rs.50,000/- on 21.3.2022 to OP No.2.
It is further stated that in the month of June, 2022, the Ops illegally sent Bill to the tune of Rs.1,22,715/- although the complainant has been paying the electric dues regularly. Further, the Ops, on 21.11.2022, threatened the complainant to disconnect the electric connection to his premises and thereby put the complainant to suffer harassment, mental agony.
The cause of action arose for filing of this case on 21.11.2022, when the Ops threatened to disconnect the electric supply to his premises. Therefore, the complainant was constrained to file the present case. Hence, this case.
To substantiate his case, the complainant relied upon the following documents, which are placed in the record-
- Photocopy of application sent to OP No.1.
- Photocopy of FIR.
- Photocopy of electric bills & payment receipts.
3. The Ops have made their appearance and filed their joint written version challenging the maintainability of the case and cause of action for filing the case. They have stated, inter alia, that the complainant is a consumer having contract demand of 3KW load. On 30.9.2021, the verification squad of NESCO was verified the premises of the complainant in his presence and found that he was availing power supply unauthorizedly by hooking process. Then and there, spot verification report was prepared, but the complainant refused to receive the same. Thereafter, provisional assessment order amounting to Rs.12,943/- was prepared and served on the complainant upon which he was asked to file objection and to attend the hearing on 25.10.2021. On the date of hearing, the complainant did not file his objection nor appeared for hearing. So, final assessment order was passed on 26.10.2021 amounting to Rs.12,943/- which was properly served upon him. Thereafter, the complainant paid the aforesaid amount.
It is further stated that another spot verification to the premises of the complainant was made on 10.3.2022 in his presence and found that he was availing power supply unauthorizedly by tempering the meter for 4.375 KW against the contract demand load of 3 KW by cutting meter body from back side which otherwise comes under theft of electricity. There at the spot, verification report was prepared and handed over to the representative of the complainant namely Samir Kumar Jena. Thereafter, provisional assessment order amounting to Rs.2,01,233/- was prepared and served on the representative of the complainant wherein he was asked to file objection and to attend the hearing on 25.3.2022. On 21.3.2022, the complainant filed objection. On the same day, he has also paid Rs.50,000/- as part of the assessment amount. On the date of hearing, the complainant take part in the hearing and accordingly, final assessment order was passed amounting to Rs.1,65,663/- after adjustment of his part payment which was also properly served upon him. Thus, there is no deficiency in service on the part of the Ops. Further, this Commission has no jurisdiction to sit over the matter.
In order to prove their case, the Ops have relied upon the following documents which are placed in the case record –
- Photocopy of spot verification report dated 30.9.21.
- Photocopy of provisional assessment order.
- Photocopy of final assessment order.
- Photocopy of spot verification report dated 10.3.22.
- Photocopy of provisional assessment order.
- Photocopy of final assessment order.
- Photocopy of tax invoice cum delivery challan.
- Photocopy of tax invoice.
- Photocopy of objection filed by the complainant.
- Photocopy of deposit receipt of Rs.50,000/-.
4. In view of the above averments of parties, the points for determination in this case are as follows:-
(i) Whether the complainant is a consumer or not?
(ii) Whether the complainant has cause of action to file this case?
(iii) Whether this consumer case is maintainable?
(iv) Whether there is any deficiency in service on the part of the OPs?
(v) Whether the complainant is entitled to get the relief, as sought for?
(vi) To what other relief(s), the Complainant is entitled to?
F I N D I N G S
5. First of all it is to be determined as to whether the complainant is a consumer or not. From the averments made in the pleadings of both the parties so also from the documents produced by the parties, it is clear that the complainant is a consumer under the Ops and thus, it is clear that the complainant is covered under the definition of a consumer as defined under the provisions of the Consumer Protection Act, 2019.
6. Now it is to be determined as to whether the complainant has sufficient cause of action to file the case and whether the case is maintainable in the eye of law. During course of hearing, it is argued by the learned counsel for the complainant that the Ops suddenly on 10.3.2022 at about 4.00 pm, without any information and taking advantage of his absence, manhandled the electric meter which was burnt in the midnight. On being requested, the Ops installed a new meter in his premises and usually power supply was resumed. On the next day i.e. on 11.3.2022, the complainant lodged an FIR before the Basta PS and also intimated the said fact to the Ops. It is further submitted that the Ops issued illegal Bill for a sum of Rs.2,01,233/- on 21.3.2022. The complainant made a written complaint before OP No.2 regarding the illegal bill to which OP No.2 told that in case he will pay a sum of Rs.50,000/- the penal bill would be cancelled. Thus, the complainant paid Rs.50,000/- on 21.3.2022. It is also submitted that in the month of June, 2022, the Ops illegally sent Bill to the tune of Rs.1,22,715/- although the complainant has been paying the electric dues regularly. The Ops, on 21.11.2022, threatened the complainant to disconnect the electric connection to his premises and thereby put the complainant to suffer harassment, mental agony.
7. On the other hand, during course of hearing, learned counsel for Ops submitted that the complainant is a consumer having contract demand of 3KW load. On 30.9.2021, the verification squad of NESCO was verified the premises of the complainant in his presence and found that he was availing power supply unauthorizedly by hooking process. Then and there, spot verification report was prepared, but the complainant refused to receive the same. Thereafter, provisional assessment order amounting to Rs.12,943/- was prepared and served on the complainant upon which he was asked to file objection and to attend the hearing on 25.10.2021. On the date of hearing, the complainant did not file his objection nor appeared for hearing. So, final assessment order was passed on 26.10.2021 amounting to Rs.12,943/- which was properly served upon him. Thereafter, the complainant paid the aforesaid amount. It is further argued that another spot verification to the premises of the complainant was made on 10.3.2022 in his presence and found that he was availing power supply unauthorizedly by tempering the meter for 4.375 KW against the contract demand load of 3 KW by cutting meter body from back side which otherwise comes under theft of electricity. There at the spot, verification report was prepared and handed over to the representative of the complainant namely Samir Kumar Jena. Thereafter, provisional assessment order amounting to Rs.2,01,233/- was prepared and served on the representative of the complainant wherein he was asked to file objection and to attend the hearing on 25.3.2022. On 21.3.2022, the complainant filed objection. On the same day, he has also paid Rs.50,000/- as part of the assessment amount. On the date of hearing, the complainant take part in the hearing and accordingly, final assessment order was passed amounting to Rs.1,65,663/- after adjustment of his part payment which was also properly served upon him. Thus, there is no deficiency in service on the part of the Ops. Further, this Commission has no jurisdiction to sit over the matter. Therefore, it is submitted that there is no deficiency in service on the part of the Ops. Further, this Commission has no jurisdiction to sit over the matter.
8. From the above rival submissions of both the parties, one thing is crept in the mind of this Commission that this is a clear case of an assessment order and the complainant has challenged the assessment order passed by the Ops.
In this context, the Hon’ble Apex Court in a decision reported in III (20213) CLT-55 (SC) in the case of Uttar Pradesh Power Corporation Limited & others –v- Anis Ahmad have been pleased to observed that complaint against assessment made U/s 126 of Electricity Act, 2003 is not maintainable before a Consumer Forum. It is the Civil Court to sit upon the matter with respect to the decision of the assessing Officer. After notice of provisional assessment to the person alleged to have indulged in unauthorized use of electricity, the final decision by an assessing Officer, who is a public servant, on the assessment of “unauthorized use of electricity” is a quasi-judicial decision and does not fall within the meaning of “consumer dispute” U/s 2(1)(e) of Consumer Protection Act. Offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted U/s 153 of Electricity Act, 2003, thus, also the complaint against any action taken U/s 135 to 140 of Electricity Act, 2003 is not maintainable before Consumer Forum. By virtue of Section 3 of Consumer Protection Act, 1986 or Section 173, 174 & 175 of Electricity Act, 2003, Consumer Forum cannot drive power to adjudicate a dispute relating to assessment made U/s 126 or offences U/s 135 to 140 of Electricity Act, as the acts of indulging in “unauthorized use of electricity” do not fall within the meaning of “complaint” as defined U/s 2(1)(c) of Consumer Protection Act, 1986. In the present case, as it is seen from the documents filed on behalf of the complainant vide Annexure-3 series that the complainant had paid Rs.12,945/- in lieu of the assessment order passed on dated 26.10.2021. Further, from Annexure-J, filed on behalf of the Ops, it is seen that the complainant had paid Rs.50,000/- as part of the assessment order passed on dated 31.3.2022. Thus, it is reflected that the complainant had complied the previous assessment order and partly complied the later assessment order, which otherwise supported the case of the Ops. When the complainant had agreed upon the assessment orders and full or part of the assessed amount is deposited, this Commission is of the considered opinion that the complainant has got no cause of action to file the present case. Consequently, the case is not maintainable. Therefore, the complainant is not entitled to get any relief what-so-ever in this case.
Hence, it is ordered -
O R D E R
The case of the complainant be and the same is dismissed on contest against the Ops without cost.
Pronounced in the open Court of this Commission on this day i.e. the 06th day of February, 2024 given under my Signature & Seal of the commission.
