The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the S.D.O, Electrical R.E, NESCO Section-II, Balia, Balasore and O.P No.2 is the Junior Manager, Electrical, NESCO, Fuladi, Balasore.
2. The case of the Complainant in brief is that the Complainant is a domestic Consumer under the O.Ps bearing Consumer No.BF-47264 with 1 K.W load. The installed meter became defective, thereby the O.Ps supplied electric bills to the Complainant on average consumption basis i.e. 144 units per month up to May-2015 and 288 units from June-2015 to September-2015 with 2 K.W load. But on 27.09.2015, the O.Ps verified the house of the Complainant and found consumption of electricity of 2.5 K.W. As such new meter was installed and electric bill for October-2015 was supplied with consumption of 130 units. During supply of bills by the O.Ps on average consumption basis, the Complainant requested the O.Ps in several occasions including in writing to change the meter, but the O.Ps had not changed the same. Thus, the O.Ps have imposed penalty of Rs.21,538/- (Rupees Twenty one thousand five hundred thirty eight) only against the Complainant vide bill dtd.10.11.2015, which is quite illegal and claiming total amount of Rs.29,062.99 ps. (Rupees Twenty nine thousand sixty two and ninety nine paisa) only, threatening the Complainant to pay the outstanding and penalty amount or else power supply will be disconnected. The Complainant is prepared to pay the outstanding amount except the penal amount on instalment basis and accordingly, the Complainant has paid Rs.600/- (Rupees Six hundred) only against consumption of 130 units for the bill of October-2015. Cause of action arose on 30.11.2015. The Complainant has prayed for waiver of penal bill amount.
3. Written version filed by the O.Ps through their Advocate denying on the point of maintainability, jurisdiction as well as its cause of action. The O.Ps have further submitted that on 23.09.2015, a spot verification was made in the house of the Complainant by the O.Ps and they have found that the Complainant was availing power supply without energy meter unauthorisedly and he was availing 2.5 K.W load (1.5 K.W load was excess). The Consumer was not paying his monthly energy bill in regular basis and continued to use Electric energy without having any meter. Basing on the observation made by the O.Ps and after obtaining all the formalities, the O.P No.1 prepared provisional assessment for unauthorized consuming excess load than actual connected load without meter and communicated the same to the Complainant vide letter No.1656, dtd.05.10.2015 with an opportunity to file objection before the O.Ps, but the Complainant failed to file objection and therefore, the final assessment U/s.126 (3) was passed and this order was also communicated to the Complainant vide letter No.1765, dtd.29.10.2015, which still remains un-complied by the Complainant, for which the Complainant is not a Consumer and he is not entitled to get any relief in this case. Moreover, a “complaint” against the assessment made by the Assessing Officer U/s.126 of the Electricity Act, 2003 against the offences committed U/s.135 to 140 of the Act is not maintainable before a Consumer Forum.
4. In view of the above averments of both the Parties, the points for determination of this case are as follows:-
(i) Whether this Consumer case is maintainable as per Law ?
(ii) Whether there is any cause of action to file this case ?
(iii) To what relief the Complainant is entitled for ?
5. In order to substantiate their claim, both the Parties have filed certain documents as per list. Perused the documents filed. Neither the Complainant nor his Advocate was present at the time of hearing of this case. So, the pleading of the Complainant remains as his case. According to his pleading, the installed meter became defective and the O.Ps supplied electric bills to the Complainant on average consumption basis i.e. 144 units per month up to May-2015 and 288 units from June-2015 to September-2015 with 2 K.W load. But on 27.09.2015, the O.Ps verified the house of the Complainant and found consumption of electricity of 2.5 K.W, for which new meter was installed and electric bill for October-2015 was supplied with consumption of 130 units. During supply of bills by the O.Ps on average consumption basis, the Complainant requested the O.Ps in several occasions including in writing to change the meter, but the O.Ps had not changed the same rather the O.Ps have imposed penalty of Rs.21,538/- (Rupees Twenty one thousand five hundred thirty eight) only against the Complainant vide bill dtd.10.11.2015, which is quite illegal and claiming total amount of Rs.29,062.99 ps. (Rupees Twenty nine thousand sixty two and ninety nine paisa) only, threatening the Complainant to pay the outstanding and penalty amount or else power supply will be disconnected. Accordingly, the Complainant has paid Rs.600/- (Rupees Six hundred) only against consumption of 130 units for the bill of October-2015. When the O.Ps have failed to settle the matter, the Complainant has filed this case praying for waiver of penal bill amount. On the other hand, it has been argued on behalf of the O.Ps that on 23.09.2015, a spot verification was made in the house of the Complainant by them, where they have found that the Complainant was availing power supply without energy meter unauthorisedly and he was availing 2.5 K.W load (1.5 K.W load was excess). The Complainant was not paying his monthly energy bill in regular basis and continued to use Electric energy without having any meter. Basing on the observation made by the O.Ps and after obtaining all the formalities, the O.Ps prepared spot verification report, provisional assessment order and final assessment order, which were already served to the Complainant. But, the Complainant has neither complied the order nor appealed before the appellate authority, rather filed this case in this Forum. So, when there is an assessment, this Forum has no jurisdiction to entertain the case and the Complainant is at liberty to approach the appropriate authority. However, in view of the authority reported in III (2013) CLT-55 (SC) in the case of Uttar Pradesh Power Corporation Limited & Ors. (Vrs.) Anis Ahmad, wherein it has been held by the Hon’ble Supreme Court of India that complaint against assessment made U/s.126 or action taken against those committing offences U/s.135 to 140 of Electricity Act, 2003, held, is not maintainable before a Consumer Forum. Civil Court’s jurisdiction to consider a suit with respect to the decision of assessing Officer U/s.126 or with respect to a decision of the appellate authority U/s.127 is barred U/s.145 of Electricity Act, 2003. Therefore, it is clear that 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, hence, also the complaint against any action taken under Sections-135 to 140 of Electricity Act, 2003 is not maintainable before Consumer Forum. By virtue of Section-3 of Consumer Protection Act, 1986 or Sections-173, 174 and 175 of Electricity Act, 2003, Consumer Forum cannot derive power to adjudicate a dispute in relation 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.
6. So, now on careful consideration of all the materials available in the case record and on the basis of principle laid down by the above Authority as discussed earlier, this Forum come to the conclusion that this Consumer case is not maintainable in this Forum, for which the Complainant is not entitled for any relief as prayed for and accordingly, this Consumer case is liable to be dismissed. However, the Complainant is at liberty to approach the appropriate authority along with an application for condonation of delay, if desired/ required. Hence, Ordered:-
O R D E R
The Consumer case is dismissed on contest against the O.Ps, but in the peculiar circumstances without cost.
Pronounced in the open Forum on this day i.e. the 26th day of February, 2018 given under my Signature & Seal of the Forum.
