MRS. NEENA SANDHU, MEMBER

1.       This case has been remanded back to this Commission by Hon’ble National Consumer Disputes Redressal Commission, New Delhi for fresh adjudication vide order dated 3.9.2009. By this order of ours we dispose off 2 appeals and one miscellaneous application bearing No.182 of 2009 in Appeal No. 149 of 2005 filed by the complainant Smt.Ram Lubhai Aggarwal in the month of December, 2009 arising out of the order dated 9.6.2005, passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) in complaint case No. 107/2004.

2.       The brief facts of the case are that the complainant is the owner of SCO No.49, Sector 30-C, Chandigarh and in the year 1972 the OPs had provided an electric connection to the above said premises. The necessary security for the meters were deposited and three meters were installed in the premises of the complainant bearing A/c No.3008/70491 W, 92 W and 93 W and having a sanctioned load of 1.360 KW, 0.520 KW and 3.240 KW respectively and the combined sanctioned load of the three meters was 5.120 KW. The said premise was let out at a monthly rent of Rs.45,000/- to one Sh.Danesh Kumar son of Hem Raj of Sangrur on 29.3.1999. Out of this rent Rs.12,000/- per month was used to be paid to Income Tax Department. Sh.Danesh Kumar had opened liquor vend on 1.4.1999. It was averred by the complainant that the water connection was reinstalled on 6.4.1999 and during the same year, on general notice a new water meter was installed at the costs of the owner.  It was alleged that during the month of January, 2000 water supply of the complainant was suspended and after suspension of the water connection, there was no water supply to the premises of the complainant but without water supply connection, OP No.3 was sending water bill. The suspension of water supply was borne out from the bill dated 3.11.2003 in which no reading was mentioned as the same was cleared in January 2000. Even the fitting was removed and during the last four years there was no bill. It is further contended that during the proceedings the complainant and OP No.4 reached a settlement and the name of OP No.4 was deleted from the array of the Ops vide order dated 24.9.2004 passed by the District Consumer Forum-II, UT, Chandigarh. It is further averred that on 3.3.2000 the connection bearing No. 2008/70492 W was checked by the JE in routine matter and found that complainant had extended the unauthorized load of electricity. On this report of JE, the OPs served a notice dated 23.3.2000 to deposit an amount of Rs.3750/- as a penalty/compensation amount within a week, failing which the electric supply to the SCO was to be disconnected. It was further averred that the said notice was false and was given with mala fide intention to harass her tenant and at no point of time, more electricity was used than sanctioned load and thus there was no question of depositing the amount as demanded in the notice. It was alleged that on receipt of the notice on 31.3.2000, the tenant of the complainant vacated the said premises and thereafter since then 31.3.2000 the said premises was lying locked and the electric supply was disconnected by the OPs on 31.3.2000 as the penalty/compensation amount was not deposited by the complainant, but the OPs kept on sending the electricity bills. On 23.6.2000 the complainant vide its reply to the notice dated 23.3.2000 denied all the allegations and requested the OPs to carry out the checking in the premises at any time by giving prior information and also requested OPs to send the case to CBI for necessary action but neither the OPs carried out any checking nor gave any reply. The OPs had failed to refer the matter to the CBI or any other independent authority. Thereafter the complainant served a legal notice to the OP on 11.7.2003 but the OPs did not give any reply. The above said act of the OPs amounts to deficiency in service. Hence, the complaint was filed.

3.       Reply was filed by the OPs No.1 to 3 in which the OPs pleaded that on 3.3.2000 the meter was checked by the JE in routine matter and found that both M&T seals were tempered and connected load was found to be 5.20 KW against the sanctioned load of 0.520 KW. The compensation/penalty amount was charged by the OPs on account of unauthorized load, which the complainant did not deposit. OPs submitted that on 5.8.2003 the electricity was disconnected from the pole as the premise was locked since 23.6.2000. The complainant was using the load of 5.20 KW against the sanctioned load of 0.520 KW. The electric supply could not be disconnected from the meter and the said meter could not be removed because the premises of the complainant was locked and bills were issued continuously, even when the complainant did not use a single unit because the account was running and could not be closed due to non-removal of the electric meter from the premises. The account of the complainant could not be closed due to non-removal of electric meter from the premises of the complainant. It was further submitted that once checking was carried out and accepted by one Sh.Ramesh Kumar, therefore, checking of premises again, as requested by the complainant was not required. It was pleaded that the meter existed in the locked premises of the complainant till 5.4.2004 on which date as per the order dated 1.4.2004 passed by the learned District Forum II, the supply to premises had been reconnected from pole. It is stated that the meter of the said premise was changed being tampered meter vide MCO No.56/800, dated 17.5.2004 effected on 20.5.2004. It is further stated that reply to the notice dated 11.7.2003 served by complainant was sent to the learned counsel of the complainant vide Memo No.3407, dated 12.8.2003. Moreover the OPs contended that there is no need to refer this meter to CBI or any other independent authority and a proper and lawful procedure had been adopted by the OPs, hence denied. Hence, there is no deficiency in service on the part of OPs No.1 to 3 and prayed for dismissal of the complaint.

4.       The parties led their evidence in support of their contentions.

5.       The learned District Forum disposed of the complaint with the direction to OPs not to charge the complainant minimum charges from 30.4.2000, till the connection was restored i.e. 5.4.2004.

6.    It is pertinent to mention here that aggrieved by this impugned order passed by the learned District Forum, an appeal bearing No. 149 of 2005 was filed with this Commission where it has been submitted that the only person legally empowered to defend the complaint of the appellant/complainant was respondent No.1/OP No.1 i.e. the Secretary Finance and accordingly the rules were placed on record, which have been ignored. The defence of respondents/OPs No.1 and 2 was struck off vide order dated 4.5.2004 and they were proceeded against exparte. This exparte order was set aside on an application moved by respondent/OP No.3 but no reply was filed by respondents/OPs No.1 and 2. In this view of the matter, it was incumbent upon the learned District Forum to allow the complaint and grant the relief to the appellant/complainant, in toto. It was further submitted that during the course of proceedings, the respondent/OP No.3 was cross examined and his reply had been verified on the basis of record yet in the sworn testimony on oath. The respondent/OP No.3 himself stated that the record being very old is not available with him and in such a condition he has played a fraud upon the learned District Forum. The entire controversy has been misread and important thing such as the veracity and effect of Annexure R-1 and R-2 have not been gone into by the learned District Forum. During the course of the litigation certain payments were made under the order of the learned District Forum but final order is totally silent regarding the fate of those payments. In such a situation, the order passed by the learned District Forum pales into insignificance as material points have not been discussed and proper adjudication has not been rendered. It has been submitted by the appellant/complainant that it is a settled position of law and there is a catena of judgments which hold that the contractual tenancy upon its completion automatically turns into statutory tenancy if the same is not renewed but the learned District Forum has gravely erred in holding that there is no nexus between vacation of premises by the tenants and the acts of the respondents/OPs. Even otherwise it is to be seen whether notice R-1 is valid and in conformity with the rules why the inspection was not carried out as demanded under reply dated 23.6.2000 and 11.7.2003 and why the matter has not been referred to the CBI. The material points of law regarding the correctness as well as the disputed question of the contents of documents placed on record by the respondents/OPs have not been gone into by the learned District Forum. Despite overwhelming evidence by way of contradiction during cross examination of respondents/OP No.3 have been totally overlooked by the learned District Forum. Hence, it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside. This appeal was dismissed by this Commission vide its order dated 30.9.2005 and directed the respondents/OPs to refund the remaining amount, if any, due.

7.       Other appeal was filed by the Finance Secretary, Government of UT Electricity Department, Chandigarh & Ors in which it has been submitted by the appellant/OPs that the respondent/complainant filed the complaint before the learned District Forum challenging notice dated 23.3.2000 sent by OP regarding unauthorized extension of load installed at SCO No.49, Sector 30, Chandigarh on the ground that a checking report on the basis of which notice has been issued is false. The appellant/OPs contested this issue on the ground that the meter installed at the premises of the respondent/complainant was checked by JE on 3.3.2000 and during routine checking both M & T seals found tampered and connected load was found to be 5.20 KW against sanctioned load of 0.520 KW. Therefore penalty/compensation amount of unauthorized load was levied which the respondent/complainant failed to deposit the penalty amount i.e. Rs.3750/- and as such the connection was disconnected from the pole on 5.8.2003 as the premises of the respondent/complainant was found locked since 23.6.2000. The learned District Forum wrongly interpreted the instruction No. 35 of conditions of supply given in the Sales Manual. The appellants/OPs have alleged that the learned District Forum has not looked into condition No. 4 and Sub Clause 4 and 7 of instruction No. 35 which mentions specifically before allowing the connection, the defaulting amount, if any and reconnection fee of the service meter, rental and monthly minimum charges for the entire period of disconnection shall be recovered. The condition of instruction No. 35 of Abridged conditions supply the amount claimed by the appellants/OPs was justified and the learned District Forum has wrongly decided this issue in favour of the respondent/complainant and against the appellants/Ops. Hence, it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside. This appeal was also dismissed by this Commission vide order dated 9.1.2006 as the same being not maintainable.

8.    Against both these orders of this Commission dated 30.9.2005 and 9.1.2006, both the aggrieved parties went for revision in Hon’ble National Commission. The Hon’ble National Commission remanded back the case for fresh adjudication.

9.    We have heard Sh.Deepak Arora and Sh.G.L.Aggarwal, Advocates for Ram Lubhai Aggarwal - appellant/complainant and Sh.M.S.Sihag, District Attorney for the Finance Secretary to Government UT Electricity Department & Ors and perused the record.

10.       During the course of proceedings, the appellant/complainant Smt.Ram Lubhai Aggarwal has moved an application in the month of December, 2009 under Section 340 Cr.P.C. for initiating the proceedings against the officials for furnishing false affidavit by Sh.Anil Dhamija, Sub Divisional Officer, Electricity Operation, Sub Division No.V, UT, Chandigarh and for filing false written statement as per pleadings of the case. During the course of arguments Sh.M.S.Sihag, District Attorney for the respondents/OPs pleaded that the officials of the OPs have performed their duty in accordance with the provision of law and nothing is biased against the complainant. Hence, we do not find any merit in the application and as such it has been dismissed.

11.   After hearing the learned counsel for the parties and perusal of the record, we have come to the conclusion that the complainant is a owner of SCO No. 49, Sector 30-C, Chandigarh where three meters were installed in the premises and the combined sanctioned load was 5.120 KW in the year 1972. The OP had assigned A/c No.3008/70492W for the meter in dispute as per Annexure R-I (Bill Ledger) shows that the sanctioned load for this particular meter was 0.520.  On 3.3.2000 the official of the OPs i.e. J.E checked the meter in routine matter and found that both M& T seals tempered and connected load found to be 5.20 KW against the sanctioned load of 0.520 KW. On the basis of report of JE (Annexure R-II) notice was issued to the appellant/complainant whereby the appellant/complainant was directed to deposit the penalty/compensation amount of Rs.3750/- within seven days but the appellant/complainant did not deposit the penalty/compensation amount. Due to the failure of the appellant/complainant by not depositing the penalty/compensation amount, the respondents/OPs disconnected the supply from the pole on 5.8.2003 as the above said premises was locked.       We are of the view that the respondents/OPs have rightly disconnected the electric supply and has rightly imposed the penalty/compensation amount of Rs.3750/-.

       In our view the request made for rechecking of the above said meter and referring the meter to CBI or any independent authority was rightly denied by the respondents/OPs as the proper and lawful procedure was adopted by the respondents/OPs.

       As regards to the technical objection taken by the appellant/complainant that the SDO is not competent to file the reply on behalf of respondents/OPs is baseless. As per instructions of Punjab State Electricity Board which are also applicable to Chandigarh and the SDO is not competent to file the reply. We are of the view that the SDO is competent to file the reply on behalf of respondents/OPs.

12.   As regards to the grouse of appellant/complainant that due to this act of respondents/OPs the appellant/complainant has to incur a huge loss as the above said premises was lying vacant which was earlier let out for a monthly rental of Rs.45,000/- but after the perusal of the lease deed we come to know that the premises was let out for 11 months commencing from 1.4.1999 which expired on 29.2.2000 which is prior to the checking of the premises. Hence, we are of the view that nowhere it shows that the appellant/complainant has suffered any loss due to any fault of respondents/OPs.

13.   A perusal of the record shows that the electricity connection was reconnected on the direction of District Consumer Forum-II vide its order dated 1.4.2004 on the deposit of Rs.10,150/-. The issue to consider before us is whether the appellant/complainant has to pay for the reconnection fee, service meter rental and monthly minimum charges for the entire period of disconnection. We have gone through the sales manual as per instruction No. 35 , Sub Clause 4 (iv) reads as under:-

Before allowing reconnection, defaulting amount, if any, reconnection fee, service meter rentals and monthly minimum charges for the entire period of disconnection shall be recovered.

In our view, the respondents/OPs have rightly charged a penalty/compensation levied on account of unauthorized load amounting to Rs.3750/- (defaulting amount), reconnection fee and service meter rental. As regards to the minimum charges charged by the respondents/OPs during the disconnection period it is pertinent to mention here that the respondents/OPs have admitted this fact that even after disconnecting the electric supply the respondents/OPs were sending the bill continuously even though in fact the appellant/complainant had not used a single unit after disconnection. The learned counsel for the respondents/OPs argued that the respondents/OPs could not disconnect the supply from the meter and the meter could not be removed from the premises as the same was locked and for this reason, the respondents/OPs were issuing the bill. However as per instruction 35 in Sub Clause 3 (ii) read as under :-

In any case, if the connection is not disconnected permanently after expiry of one month from the date of temporary disconnection, it shall be deemed to have been disconnected permanently after a period of one month, and levy of minimum charges to be discontinued thereafter.

Hence, we are of the view that the respondents/OPs are at fault by not disconnecting this connection as deemed to be disconnected permanently and sending the bills for minimum charges for the period commencing from 3.4.2000 till reconnection i.e. 5.4.2004.

14.   In view of the above discussions, the appeal filed by the appellant/complainant is partly allowed with the directions to the respondents/OPs to refund the balance amount of Rs.10,150/- if any, after deducting the amount of penalty/compensation Rs.3750/-, reconnection charges, if any amount due and meter rental with interest @ 12% p.a. from the date of deposit of the amount of Rs.10,150/- i.e. 5.4.2004 till its realization. We further direct the Ops to comply with the order within one month from the date of receipt of copy of this order.

15.   The appeal filed by Finance Secretary, Government of UT Electricity Department & Ors is dismissed as devoid of any merit.

16.        Copies of this order be sent to the parties, free of charge.

Pronounced.

10^th March, 2010.