Orissa

Baleshwar

CC/10/2014

Sri Rabindra Kumar Ray, aged 61 years - Complainant(s)

Versus

The Junior Manager, Electrical, NESCO, Sergarh - Opp.Party(s)

Mr. Jitendra Kumar Upadhyaya & Others

12 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BALASORE
AT- KATCHERY HATA, NEAR COLLECTORATE, P.O, DIST- BALASORE-756001
 
Complaint Case No. CC/10/2014
( Date of Filing : 27 Jan 2014 )
 
1. Sri Rabindra Kumar Ray, aged 61 years
S/o. Late Brundaban Ray, Secy., Lok Shakti I.T.C, Sergarh, Balasore.
Odisha
...........Complainant(s)
Versus
1. The Junior Manager, Electrical, NESCO, Sergarh
At/P.O- Sergarh, Dist- Balasore.
Odisha
2. The S.D.O, Electrical, NESCO, Nilgiri
At/P.O- Nilgiri, Dist- Balasore.
Odisha
3. The Manager, Electrical, NESCO (Assessing Officer C.E.D, Balasore)
P.O/Dist- Balasore.
Odisha
4. The Executive Engineer, Central Electrical Division, Balasore
P.O/Dist- Balasore.
Odisha
5. The C.E.O, NESCO, Balasore
At- Januganj, Remuna Golai, P.O/Dist- Balasore.
Odisha
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. NILAKANTHA PANDA PRESIDENT
 HON'BLE MR. JIBAN KRUSHNA BEHERA MEMBER
 
PRESENT:
 Sri Yudhisthira Nayak, Advocate for the Opp. Party 0
 Sri Yudhisthira Nayak, Advocate for the Opp. Party 0
 Sri Yudhisthira Nayak, Advocate for the Opp. Party 0
Dated : 12 Sep 2023
Final Order / Judgement

SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)

            The Complainant has filed this complaint petition, U/s-12 of C.P. Act, 1986 (here-in- after called as the “Act”) alleging a “deficiency-in-service” by the Ops, where OP No.1 is the Junior Manager, Electrical, NESCO, OP No.2 is the S.D.O., Electrical, NESCO, OP No.3 is the Manager, Electrical NESCO, OP No.4 is the Executive Engineer, CED, Balasore and OP No.5 is the CEO, NESCO, Balasore.  

2.         The brief facts of the complainant’s case, as narrated in the complainant petition, is that the complainant is the Secretary of Lok Shakti ITC located at Sergarh, a registered Charitable Trust and is a bonafide consumer under the Ops bearing Consumer No.BG83493. The Ops sent a letter to the complainant bearing No.5364 dated 23.11.2013 along with a spot verification report No.3428 dated 20.11.2013 which shows that they detected unauthorized use of electricity on 20.11.2013 and provisional assessment order was passed for Rs.14,42,808/- for 39KW in GP unit with a liberty to file objection within seven days of the date of issue of the said order before the OP No.4 and for hearing on 28.11.2013. It is further averred that final assessment order has been passed on 27.11.2013 which was sent to the complainant vide letter No.8155 dated 27.11.2013. That apart, when the Secretary, Lok Shakti ITC had been to USA from 23.9.2013 to 2.12.2013, the Ops threatened the staff to deposit the assessment amount or else they would disconnect the power supply to the premises. The allegation made by the Ops in their provisional assessment order is totally false, arbitrary, illegal and unlawful. Such threatening of the Ops for disconnection of power supply to the institution would affect the study of the ITC students. Further, the final assessment order was passed without giving any opportunity of being heard, thereby the complainant sustained mental agony, torture, harassment and financial loss and the Ops have caused deficiency of service towards the complainant by practising unfair practices.

            The cause of action for filing of this case arose on 23.11.2013 and 27.11.2013. Therefore, the complainant was constrained to file the present case. Hence, this case.

            To substantiate its case, the complainant relied upon the following documents, which are placed in the record-

  1. Photocopy of money receipt dated 27.11.2013.
  2. Photocopy of letter dated 27.11.2013 of the complainant ITC to OP No.4
  3. Photocopy of letter dated 27.11.2013 regarding final assessment order.
  4. Photocopy of letter dated 27.11.2013.
  5. Photocopy of letter dated 23.11.2013 of the complainant ITC to OP No.4.
  6. Photocopy of letter dated 23.11.2013 regarding provisional assessment order.
  7. Photocopy of spot verification report dated 20.11.2013.
  8. Photocopy of money receipt dated 30.11.2012.
  9. Photocopy of electricity bill for October, 2012.
  10. Photocopy of money receipts dated 31.1.13, 26.2.13, 18.3.13, 24.6.13, 24.7.13, 30.8.13, 23.9.13, 31.9.13 & 31.10.13.
  11. Photocopy of bills for the month of 12/12, 1/13, 2/13, 4/13, 5/13, 6/13, 7/13, 8/13, 9/13 & 10/13.

3.         In the present case, on receipt of notices, OP No.1,2 & 4 appeared and filed their joint written version whereas OP No.3 & 5 were not appeared, for which they were set ex parte.

            In their written version, the OP No.1, 2 & 4 have challenged that the complainant has no cause of action to file the case and the case is not maintainable. They have stated, inter alia, that the complainant is running one educational institution and entered into an agreement with the Ops to avail load of 39 KW under commercial category. That on 20.11.2013, the NESCO authority informed the representative of the complainant about their spot verification and accordingly verified the premises of the complainant including the electrical installations and energy meter and found that the consumer was availing power supply unauthorizedly by way of tampering sems seal, PI seal, meter body seal, meter terminal cover seal and meter body ultrasonic welded seal and the copy of SVR was duly received by the representative of the complainant. Therefore, provisional assessment order was passed for Rs.14,42,808/- which was served on the complainant and opportunity was also extended for submitting objection within 7 days which was sent to the complainant vide letter dated 25.11.2013 and the complainant paid Rs.11,50,000/- in cash and for the rest amount issued one post-dated cheque. Thereafter, final assessment order was passed on 27.11.2013 for Rs.13,49,860/- and the complainant had also paid the amount on 27.11.2013 without any objection. It is further stated that when the complainant has duly paid the assessment amount without filing any objection, filing of the present case is nothing but only a miscarriage of justice. Therefore, the present Ops have prayed to dismiss the case with cost.

4.         In order to prove their case, the contesting Ops have relied upon the following documents which are placed in the case record –

  1. Photocopy of letterNo.540 dated 20.11.13 regarding submission of spot verification report.
  2. Photocopy of spot verification report.
  3. Photocopy of provisional assessment order.
  4. Photocopy of final assessment order.
  5. Photocopy of letter dated 23.11.13 of the complainant.
  6. Photocopy of letter dated 25.11.13 requesting for depositing of Rs.11,50,000/-.       

5.         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, as required under C.P. Act?

(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

6.         So far as point No.(i) is concerned, it is the case of the complainant ITC that the ITC is a customer under the Ops bearing Consumer No. BG83493. On the other hand, the Ops have not disputed that the complainant ITC is not a consumer under them. Thus, it is held that the complainant is a bonafide customer, as required under the provisions of C.P. Act.

7.         So far as the maintainability of case is concerned, it is argued by the learned counsel for the complainant that the Ops sent one letter to the complainant bearing No.5364 dated 23.11.2013 to the complainant along with a spot verification report dated 20.11.2013 to the effect that on the very day the Ops made a spot verification to the premises of the complainant and detected the complainant was unauthorizedly  used electricity for which provisional assessment order was passed for Rs.14,42,808/- for 39KW in GP unit with a liberty to file objection within seven days of the date of issue of the said order before the OP No.4 and for hearing on 28.11.2013. It is further argued that final assessment order has been passed on 27.11.2013 which was sent to the complainant vide letter No.8155 dated 27.11.2013. When the Secretary, Lok Shakti ITC had been to USA from 23.9.2013 to 2.12.2013, the Ops have made the spot verification and threatened the staffs to deposit the assessment amount or else they would disconnect the power supply to the premises. Further, the final assessment order was passed without giving any opportunity of being heard, thereby the complainant sustained mental agony, torture, harassment and financial loss and the Ops have caused deficiency of service towards the complainant by practising unfair practices.

8.         On the other hand, learned counsel for the contesting Ops submitted that on 20.11.2013, the NESCO authority informed the representative of the complainant about their spot verification and accordingly verified the premises of the complainant including the electrical installations and energy meter and found that the consumer was availing power supply unauthorizedly by way of tampering sems seal, PI seal, meter body seal, meter terminal cover seal and meter body ultrasonic welded seal and the copy of SVR was duly received by the representative of the complainant. The provisional assessment order was passed for Rs.14,42,808/- which was served on the complainant and opportunity was also given to him for submission of objection within 7 days which was sent to the complainant vide letter dated 25.11.2013 and the complainant paid Rs.11,50,000/- in cash and for the rest amount issued one post-dated cheque. Thereafter, final assessment order was passed on 27.11.2013 for Rs.13,49,860/- and the complainant had also paid the amount on 27.11.2013 without any objection. It is further stated that when the complainant has duly paid the assessment amount without filing any objection, filing of the present case is nothing but only a miscarriage of justice.

9.         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 the 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.

10.        In the present case, the complainant, on being satisfied with the assessment order, paid the assessment amount on 27.11.2013, as reflected from Annexure-1. Moreover, the complainant has not knocked the door of the Appellate Authority against the assessment order, as required U/s 127 of the I.E Act. From the above, it is clear that the complainant was not at all aggrieved with the order of assessment passed by the Ops, rather he was satisfied. Therefore, the acts of indulgence in “unauthorized use of electricity” by the complainant, as defined in Clause (b) of the Explanation of Sub-section (6) of Section 126 of 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. Thus, acts of person in indulging in “unauthorized use of electricity” do not fall within the meaning of “complaint”, as noticed above and, therefore, the “complaint” against assessment under Section 126 is not maintainable before this Commission. From the foregoing discussions, it is held that the complaint filed by the complainant is not maintainable. Therefore, the complainant is not entitled to any relief what-so-ever in this case.

             Hence, it is ordered –

O   R   D   E   R

             The complaint of the complainant be and the same is dismissed on contest against the OP No.1, 2 & 4 and on exparte against the OP No.3 & 5. But in the facts and circumstances of the present case, no cost.

             Pronounced in the open Court of this Commission on this day i.e. the 12th day of September, 2023 given under my Signature & Seal of the commission.

 
 
[HON'BLE MR. NILAKANTHA PANDA]
PRESIDENT
 
 
[HON'BLE MR. JIBAN KRUSHNA BEHERA]
MEMBER
 

Consumer Court Lawyer

Best Law Firm for all your Consumer Court related cases.

Bhanu Pratap

Featured Recomended
Highly recommended!
5.0 (615)

Bhanu Pratap

Featured Recomended
Highly recommended!

Experties

Consumer Court | Cheque Bounce | Civil Cases | Criminal Cases | Matrimonial Disputes

Phone Number

7982270319

Dedicated team of best lawyers for all your legal queries. Our lawyers can help you for you Consumer Court related cases at very affordable fee.