Haryana

Kurukshetra

CC/198/2021

Pawan Kumar S/o Bir Bhan - Complainant(s)

Versus

UHBVNL - Opp.Party(s)

Anand Garg

31 Aug 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KURUKSHETRA.

 

 

Consumer Complaint No.198 of 2021

Date of Instt.:19.07.2021

Date of Decision:31.08.2021

 

1.Pawan Kumar son of Sh.Bir Singh son of Sh.Hari Kishan r/o village Yara tehsil Shahbad District Kurukshetra.

2.Swantantra Kumar son ofSh.Bir Singh son of Sh.Hari Kishan r/o village Yara, Tehsil Shahbad ,District Kurukshetra.

                                                                        …….Complainant.                                              Versus

 

1.Uttri Haryana Bijli Vitran Nigam, Sector -6, Shakti Bhawan, Panchkula through its M.D.

2.SDO, Operation,Sub Division-1, UHBVNL, Shahbad, Kurukshetra.

3. Executive Engineer, Operation Division, UHBVNL, Shahbad.

                .…Opposite parties.

 

                   Complaint under Section 35 of Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member.       

                   Shri Issam Singh Sagwal, Member.                

                 

Present:     Sh.Anand Garg  Advocate for the complainant.

                Sh.S.C.Saini, Advocate for the OPs.

ORDER

                  

               This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by the complainant Pawan Kuamr etc. against  UHBVNL etc. the opposite parties.

 

2.             The brief facts of the complaint are that the complainants are real brothers. There is one tubewell connection bearing account NO. K11YA13-0459  in the name of complainant no.1. The said connection was issued by the Ops about 25 years back. The electricity bills are being piad by the complainants well in time and nothing is due. The last bill was paid on 8.6.2021. Earlier, the complainants and their brothers were using the said connection jointly but in the year 2004 a mutual partition took place between the complainants and their brothers. According to mutation no.40934,  the s aid tubewell connection fell into the share of complainant no.2 and since the year 2004, the complainant  no.2 is using the said connection for irrigating the agricultural land. The bore of the said connection installed in khasra No.49/9/2 get failed as the water level had gone very down. The complainant approached the Ops to shift their connection only at a distance of 2 acres where the new borewell was dug in khasra No.42/21(8-0) as the said khasra no. had also fallen into the share of complainant no.2. Accordingly, the officials of Ops shifted the said connection at the new place on 19.6.2021.  The poles alongwith connection can only be shifted by Ops by taking permit from their office as there is a 11 KV feeder line wherefrom the s aid connection is connected.  The complainants cannot shift the connection on their own as the said shifting requires skilled officials of Ops and appropriate infrastructure.  The Ops had illegally disconnected the jumper of the  said connection installed in Khasra No.42/21(8-0) on 23.6.2021 by claiming that the complainant no.1 had shifted his tubewell connection illegally which is totally illogical and impractical.  The whole paddy crop of complainant no.2 is being deteriorated due to  disconnection of the tubewell of complainant no.2. There is no other source of income of complainant no.2 and the complainants alongwith family members are facing great hardship on day to day basis at physical, mental and financial level. The complainants are ready to pay the reasonable charges. No opportunity of hearing has been given by the Ops before disconnecting the connection of the complainants and such an act on the part of the Ops amounts to deficiency in services on the part of the Ops.  Thus, the complainants have filed the present complaint alleging deficiency in services on the part of the Ops and prayed that the Ops be directed to restore the said connection immediately and the complainants have also sought compensation for the mental pain and agony caused to them alongwith litigation expenses.

 

3.             Upon notice Ops appeared and filed written statement disputing the claim of the complainants. It is stated that the complainants have concealed the true and material facts. In fact the said connection bearing account No. K-11YA1300459 in the record of Ops Pawan Kujmar is owner of the said connection situated in khasra No.49/9/2 but the complainant has shifted the said connection on other khasra No.42/21(8-0) without the sanction and permission from Ops. The complainant himself after arranging the wire etc. from market without  permission of the Ops. It is further submitted that notice was given to the complainant for the said illegal act and a notice was sent to the Police Station for lodging the FIR against him.  The complainant is not entitled to any relief.  The complainant has alleged that he approached the Ops to shift the connection and the officials of the Ops stated that there is no requirement of taking any permission and shift the poles from earlier place to new place on 19.6.2021 without referring the name or designation of the officials of the Nigam, the reason are best known to him. This act of the complainant is illegal, so the answering Ops disconnected the connection of the complainant vide SJO No.07/17 dated 22.6.2021. The Ops also issued personal notice to Pankaj Kumar LM and Sanjiv Kumar ALM for submission of the factual position of the matter vide memo No.806 dated 21.6.2021.  Further the area of village Yara  under OP Sub Division No.1 UHBVNL Shahabad falls in the notified area (Dark Zone). The shifting in the area on account of failure of bore is not permitted as per instructions of the Nigam, which not only has caused loss to the Nigam but also is a violation of the Nigam instructions of the Nigam.  Thus, it is submitted that there is no deficiency in services on the part of the Ops and prayed that the present complaint may kindly be dismissed.

 

4.             The complainant in support of their case have filed affidavits Ex.CW1/A, Ex.CW2/A and tendered documents Ex.C-1 to Ex.C-10 and closed their evidence.

 

5.             On the other hand, Ops in support of their case have filed affidavits Ex.RW1/A, Ex.RW2/A and Ex.RW3/A and tendered documents Ex.R-1 to Ex.R-7 and closed their evidence.

 

6.             We have heard the learned counsel for the complainant and gone through the material available on the case file.

 

7.             The learned counsel for the complainant while asserting the averments made in the complaint has argued that  the connection in question is in the name of the complainant no.1 and at the time of family partition  in the year 2004 vide mutation Ex.C-7, the said connection  installed in khasra No.49/9/2 came into the share of complainant no.2 and as such the complainant no.2 has stepped into the shoes of complainant No.1.The complainant has argued that he is consumer of the Ops vide bill Ex.C-1. In the copy of khasra girdwari Ex.C-2, the complainant is shown in possession of the said land and copy of mutation is Ex.C-7.  The said connection has been shifted to khasra no.42/21 (8-0)  on 19.6.2021 by the Ops itself. It is argued that only on the oral request of the complainants, the said connection was shifted by the Ops and no estimate of shifting was prepared as no extra wire or poles were required for shifting of the said connection. The Ops have illegally stated that permit was required to stop the power of II KV electricity line.  The Ops have failed to place on record regarding stopping of line by way of producing any copy of the register. It is further argued that as per circular Ex.C-8 dated 23.7.2021, no permission was required for shifting the said connection and by way of circular Ex.C-8 dated 23.7.2021, the circular  dated 3.08.2017 has been rejected. The Ops have withheld the best evidence regarding stopping of line for shifting the connection and as such adverse inference can be drawn against the Ops and it is proved that the connection has been shifted by the officials of the Ops. The complainant is using the said connection for small purpose of irrigation of their fields and as per clause 3.0 of notification of Govt. of India Ex.C-10 no permission or NOC is required for shifting of such type tubewell connections. Thus, it is argued that the Ops be directed to restore the electricity connection of the complainant.

 

8.             On the other hand, while reiterating the contentions made in the written statement, the learned counsel for the Ops has argued that the complainant has illegally shifted the tubewell connection from khasra NO.49/9/2 to 42/21(8-0)  by arranging wire etc. himself in collusion with the employees of the Ops. It is argued that the said connection has been illegally shifted on 8.6.2021 and NOC is required for shifting such connections being Dark Zone (notified area) and the circular dated 23.7.2021 is not applicable to the present case.  

 

9.             Before proceeding further, it is desirable to discuss here that in order to decide a consumer complaint it is necessary to find out about who is a consumer and what is deficiency in service. The relevant provisions of the Consumer Protection Act, 2019 are as under:

                Section 2(7) of the Consumer Protection Act says that consum­er                        means any person who—

    (i)   buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approv­al of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

   (ii)   hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment, and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred pay­ment, when such services are availed of with the approval of the first mentioned person;

 

What is "Deficiency of Service"?

• According to the definition under Section. 2(11) of Consumer Protection Act 2019 ("the Act"), any sort of imperfection, or defect in the feature, quality, amount, worth, authenticity, its capacity or potential, and standard which is obligatory to be maintained and regulated as per the laws and statutes in function or any agreement/contract claimed by the seller, with respect to the products and goods, is known as deficiency.
• Willful and deliberate concealment of important information, omission or negligence of acts by seller which may lead to injury or loss to the consumer(s), also comes under the ambit of deficiency of service.

 

                 

10.                In the present case it is clear that the OPs have disconnected the electric connection after shifting of tubewell electric connection from one place to other.  The complainants have come with the plea that as per clause 3.0 of notification of Govt. of India Ex.C-10 no permission or NOC is required for shifting of such type tubewell connections if the same is used for small purposes. On the other hand the Ops have come with the plea that the complainant has shifted the tubewell connection from khasra NO.49/9/2 to 42/21(8-0) by arranging wire etc. himself in collusion with the employees of the Ops at his own and regarding this departmental enquiry against the delinquent officials alongwith recommendations to lodge FIR against the arrayed officials has also been initiated.  It is also the plea of the Ops that the said connection has been illegally shifted on 8.6.2021 and NOC is required for shifting such connections being Dark Zone (notified area) and the circular dated 23.7.2021 is not applicable to the present case.   Now, the question arises before this Commission whether the NOC for shifting the tubewell electric connection for dark zone (notified area) was necessary or not and the complainant at his own has shifted the tubewell poles in connivance with the officials of the department or not.  All these questions are complex questions and both the parties are trying to accusing the finger to each other. It is worthwhile to mention here that the proceedings before this Commission are summarily in nature and the gravity of the facts mentioned in the complaint as well the reply require voluminous  evidence. Therefore, keeping in view the above mentioned fact and circumstances this Commission is of the view that the present complaint before this Commission is not maintainable and the matter in question cannot be adjudicated in summary trial and it requires elaborating and voluminous evidence.  On this point reliance can be taken from case law titled as Uco Bank vs. Sh.S.D.Wadhwa, 2013 (4) CLT (NC).   From perusal of Ex.P9, it is clear that the Sub Divisional Officer, UHBVN, Shahabad  has sent a complaint to the SHO, Police Station Shahbad for lodging FIR against Pawan Kumars/o Birbhan village Yara regarding shifting of Tubewell having A/C No.K11YA13-0459 and vide Ex.R7 Service/ Job Order (TDCO), the connection of the consumer was disconnected.   So, it is crystal clear that the said case is of theft of energy.  In this regard, we rely upon the authority cited in 2013(3) CLT page 227 titled as UP Power Corporation Ltd. Vs. Anis Ahmad decided by Hon’ble Supreme Court.  In head-note 13(b) of this authority, it is mentioned as under:-

(b)            A “complaint” against the assessment made by Assessing Officer under Section 126 or against the offences committed under Section 135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum. The said authority is fully applicable to the present case and the present complaint is not maintainable before this Commission.

11.                    Hence, in view of above discussed factual as-well-as legal position, we are of the considered view that the present complaint is hereby dismissed being not maintainable as this Commission cannot decide the matter as discussed above. However, the complainant is at liberty to approach at appropriate Court (Criminal Court/Civil Court) keeping in view of his allegations, if he so advised and in that eventuality, the period of litigation before this Commission shall not be counted towards the period of limitation for approaching appropriate court/Commission.  Exemption of time spent before this Forum is granted  in terms of the  judgment of the Hon’ble Supreme Court of India in the case titled “ Laxmi Engineering Works versus PSG Industrial Institute  (1995) 3 SCC page 583. . Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

Announced in open Commission.                                                    

Dated:31.08.2021

 

  

 

 

            (Neelam)                                         (Neelam Kashyap)                                      Member                                                   President                                                                                                            District Consumer Disputes                                                                                Redressal, Commission, Kurukshetra.

 

                                                (Issam Singh)                                                                                                         Member