ORDER

(Per: Mr. D.K. Tyagi, Member):

            This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 18.04.2015 passed by the District Forum, Dehradun in consumer complaint No. 306 of 2013.  By the impugned order, the District Forum has dismissed the consumer complaint.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Dr. Nitesh Malik is practicing at Dehradun and the wife of the complainant, Mrs. Jyoti Malik, who is a qualified doctor and is employed at CMI, Dehradun.  The opposite party-Electricity Department has license to distribute the electricity to the consumers in Dehradun.  The complainant bought the property at 56, Rajdhani Enclave, G.M.S. Road, Near Balliwala Chowk, Dehradun from one Sh. Rakesh Kumar, who was the previous owner and occupant of the property and a consumer of the opposite party.  Subsequently, on 12.05.2010, the complainant approached the S.D.O. of the opposite party at Vasant Vihar and tendered a request for transfer of the existing domestic electricity connection to his name after recording a change of ownership in the records of opposite party.  The complainant also sought to enhance the existing sanctioned load from 3 KW to 7 KW and made a payment of Rs. 3,800/-, as advised by the said S.D.O.  That sometime thereafter the bill sent by the opposite party for electricity consumed at connection No. 6135/126835 began to come in the name of the complainant, but the sanctioned load was not enhanced to 7KW.  The house of the complainant has two rooms on the ground floor and two rooms on the first floor.  Of the two rooms on the ground floor, one is used in the evening by the complainant’s wife as a clinic to attend to some emergency or chronic patients requiring medical treatment.  The room has been partitioned by a wooden partition to make a small dressing area.  The other rooms serve as drawing room to entertain personal guest and as a store & puja room.  The first floor has the bed room etc. of the complainant. On 04.07.2012 one Sh. Sunil Pokhriyal accompanied by two other men arrived at the house of the complainant and in his absence demanded to inspect the electricity meter and premises of the complainant.  After the complainant identified himself as an S.D.O. of the opposite party, he was allowed to inspect the premises.  When Sh. Sunil Pokhriyal wanted to enter the partitioned dressing area in the room used as a clinic alongwith his shoes on he was denied entry into the dressing area by the attendant of the complainant, as it had been recently sterilized for the evening.  Sh. Sunil Pokhriyal thereafter prepared a false and incorrect inspection report bearing No. 28 Book No. Comm 1564 in which he stated that a “Hospital” was running at the premises and four rooms of the ground floor were “occupied for the Hospital” and that the load could not be checked due to “consumer obstacle”.  The report was signed by Shivani, the attendant of the complainant in his absence.  On 14.07.2012 the complainant sent a letter to Sh. Sunil Pokhriyal, S.D.O. and Executive Engineer of the opposite party by registered post, stating that the inspection report had been made as a cover up and asked for an immediate increase in the sanctioned load to 7KW, but they took no heed of the matter.  On or about 31.08.2012, the complainant received a letter dated 10.07.2012 bearing No. 2008/ufofo[k ¼n0½/750-MT purportedly from an Executive Engineer & Assessment Officer of the opposite party stating that the complainant was found using the electricity connection sanctioned in domestic category in non-domestic category and under the provisions of Section 126 of the Electricity Act and Supply Code Regulations, a provisional assessment of Rs. 1,28,194/- was proposed against the complainant.  The envelope which contained the said letter dated 10.07.2012 reveals that it was posted on 29.08.2012 to the complainant.  On 08.09.2012, the complainant sent his objections regarding provisional assessment to the Executive Engineer and Assessment Officer of the opposite party by speed post A.D., which was delivered to him in due course.  Thereafter the complainant did not hear from any officer of the opposite party regarding a date of hearing or of a final adjudication.  That the opposite party sends bimonthly bills to its domestic consumers and likewise the complainant too was getting the bills and was making payment.  On or about 03.04.2013, the complainant received a bill from the opposite party for Rs. 7,361/-, which was paid in full.  That on or about 22.06.2013 the complainant received a bill for consumption of electricity from the opposite party for the period of 03.04.2013 to 22.06.2013.  The complainant was shocked to learn that his domestic connection had been converted into a non-domestic connection without any request made by the complainant or any explanation or notice from the opposite party and the complainant had been billed at an enhanced rate of Rs. 4.55/- per unit.  Not only that the bill showed that the complainant owed Rs. 1,15,608/- from his previous bill on which a late payment surcharge of Rs. 1,428.92ps. was also payable.  The complainant approached the S.D.O., Vasant Vihar and Account Officer of the opposite party, but could neither get a clarification nor a correction in his bill.  They even refused to sign a duplicate of the complaint as a proof of receipt of the complaint tendered to them.  Their refrain was that their record was showing this amounts as outstanding and they could do nothing about it.  These officers of the opposite party also advised the complainant that he should make the payment by 9^th of July, 2013, the date given for disconnection in the bill, else the supply of electricity to his premises would be discontinued.  That the complainant had paid all his bills in full and no amount was outstanding against him till the last billing cycle, as is evident from the bill presented for payment by the opposite party for the period from 12.02.2013 to 03.04.2013.  That no proceedings could lawfully have been instituted or sustained against the complainant by the officers of the opposite party under the garb of Section 126 of the Electricity Act, 2003 and no order for payment under the said section has been served on the complainant.  Even otherwise no order could have been made against the complainant without affording an opportunity of hearing to the complainant and in accordance with the law.  On 11.07.2013, the complainant paid to the opposite party a sum of Rs. 10,000/-, which is more than thrice the average amount of Rs. 3,207/- paid by the complainant for electricity charges each month in the last six months.  This amount has been paid under protest and without prejudice to his claim to thwart the attempt to discontinue the electricity supply to the complainant during the pendency of this dispute, as provided by Section 56(1)(b) of the Electricity Act, 2003.  But despite this the officers of the opposite party have stated that the supply of electricity will be discontinued without issuing of a disconnection notice if the entire bill, illegally raised, is not paid by today.  That the opposite party has been grossly deficient in rendering service to the complainant and in redressing his grievance. That the illegal action of the opposite party constitute unfair trade practices.  The cause of action arose on 22.06.2013 and is continuing.  This consumer dispute has arisen at Dehradun and the District Forum, Dehradun has the jurisdiction to entertain this consumer complaint.  The complainant has prayed that the opposite party be directed to revert his electricity connection to the domestic category and withdraw the illegal demand of      Rs. 1,15,608/- with late payment surcharge of Rs. 1,428.92ps. and to issue a fresh bill to him billing at the tariff approved for domestic connections for the electricity actually consumed by him after adjusting the amount already paid to it by him under protest and the opposite party be also directed  not to levy any amount as arrears or late payment surcharge in his electricity bill and to pay him a sum of Rs. 10,000/- towards costs of litigation and Rs. 5,000/- as compensation for harassment and mental agony. 

3.       The opposite party-Uttarakhand Power Corporation Ltd. filed written statement and pleaded that the consumer complaint is not legally maintainable.  That a checking of the connection of the complainant was made on 04.07.2012 and he was found in unauthorized use of electricity.  An assessment under Section was served upon the complainant and after consideration of the objections filed by him, the assessment was revised and final assessment was served upon vide order dated 21.07.2012. The complainant did not file any appeal under Section 127 of the Electricity Act, 2003 nor paid the amount of Rs. 1,03,186/- instead he tendered an amount of Rs. 10,000/- which was refused.  He was served a notice of disconnection dated 19.07.2013 to pay an amount within 15 days, otherwise the electricity connection shall be disconnected. The complainant filed a consumer complaint against the said notice before the District Forum, in which a date was fixed, i.e. 19.08.2013, and sought interim relief.  The opposite party appeared before the District Forum and filed objections.  The said consumer complaint was not a complaint within the meaning of the “Act”, nor there was question of deficiency in service, nor the District Forum had any jurisdiction to entertain the consumer complaint.  It is further submitted that the opposite party gave the notice of 15 days dated 19.07.2013 to the complainant for disconnection, as has been provided under the regulations framed by the UERC, as the complainant had not deposited the amount assessed under Section 126 of the Electricity Act, 2003. As per checking report, the premises of the complainant is being used for running a clinic.  The premises is a double storied building.  The allegation of the complainant in para 6 of the consumer complaint is wrong and denied.  The checking of the electricity connection was done and the signatures of the person present was taken on the checking report.  The checking report is correct.  The representation of the complainant was considered and the bill was revised.  The complainant was found using the load for clinic and running a hospital, which is a non-domestic purpose. The complainant submitted his representation, which was received on 14.07.2012 and the same was considered and the assessment was revised vide letter dated 21.07.2012 from Rs. 1,28,194/- to 1,03,186/-.  The complainant did not file any appeal under Section 127 of the Electricity Act, 2003, hence the assessment is final.  The complainant tried to avoid disconnection by making payment of Rs. 10,000/-, which was returned by the Executive Engineer vide letter dated 19.07.2013 and the complainant was given 15 days’ notice of disconnection, but the complainant did not pay the amount and instead file the present complaint, which is not legally maintainable. There is no question of deficiency in service in the matter of unauthorized use of electricity and there is no question of unfair trade practice in the matter of unauthorized use of electricity by the complainant. The complainant is illegally misusing the process of the District Forum.  The District Forum has no jurisdiction to entertain the consumer complaint.  The complainant is not entitled to any relief and the consumer complaint is liable to be dismissed with costs.  The complaint of the complainant is no “complaint” within the meaning of the Act.

4.       The complainant has filed replica against the written statement filed by the opposite party and has stated that the consumer complaint is legally maintainable and the District Forum has jurisdiction to entertain the same and pass the appropriate orders.  It is correct that an inspection was made on 04.07.2012, but it is incorrect that the complainant was using the unauthorized electricity.  No assessment under any section was served upon the complainant in time to enable the complainant to present his case before the appropriate authority.  The so called illegal final assessment dated 21.07.2012 was never served upon the complainant, so the question of any appeal under Section 127 of the Electricity Act, 2003 does not arise.  The complainant presented in person a demand draft No. 116757 for a sum of      Rs. 10,000/- to the Executive Engineer of U.P.C.L., as per the provision of Section 56(1)(b) of the Electricity Act, 2003, but the Executive Engineer illegally refused to accept the same.  Thereafter the complainant sent the said demand draft by post to the Executive Engineer, who returned the same vide letter dated 19.07.2013.  Thereafter the complainant sent the said demand draft to the Chairman of U.P.C.L. by speed post on 24.07.2013, which was delivered to the Chairman on 29.07.2013.  It is wrong to say that the complainant filed the consumer complaint against notice dated 19.07.2013.  The true fact is that the complainant applied the U.P.C.L. on 12.05.2010 to increase his electricity load from 3KW to 7KW and deposited a sum of       Rs. 3,800/-with the opposite party, but the opposite party did not increase the electricity load of the complainant and under a conspiracy and to cover up their negligence, they illegally made an inspection of the property of the complainant on 04.07.2012 and issued a false notice to him.  The objection to the said illegal notice was sent by the complainant to the opposite party on 14.07.2012.  Since the complainant has paid Rs. 10,000/- to the opposite party as per the provision of Section 56(1)(b) of Electricity Act, 2003, the opposite party cannot disconnect the supply of electricity of the complainant.  It is wrong to say that the double story building is being used for running a clinic or hospital.  It is also wrong to say that the complainant is using the load for running any hospital.  The building is a residential house and the complainant is residing therein alongwith his parents.  One room of the said residential house situated at the ground floor is being sued as a clinic to attend the emergency cases.  The doctor’s clinic comes in the purview of domestic.  The complainant was never given proper and reasonable opportunity, as provided under Section 126 of the Electricity Act to present his case. The so called illegal final assessment dated 21.07.2012 was never served upon the complainant to enable him to prefer any appeal under Section 127 of the Electricity Act, 2003. 

5.       The District Forum, on an appreciation of the material on record, dismissed the consumer complaint vide impugned order dated 18.04.2015.  Aggrieved by the said order, the complainant-appellant has filed the present appeal.

6.       We have heard learned counsel for the parties and have also perused the record.

7.       There is no dispute with regard to the fact that the complainant purchased a property No. 56, Rajdhani Enclave, G.M.S. Road, Near Balliwala Chowk, Dehradun from Sh. Rakesh Kumar and in the said premises there is a clinic of the wife of the complainant, who give medical treatment to her patients.  There is also no dispute that the complainant requested for transfer of existing domestic electricity connection to his name and to enhance the existing sanctioned load from 3KW to 7KW and the same was enhanced by the opposite party.  An inspection of the complainant’s premises was made on 04.07.2012 by the S.D.O. of U.P.C.L. is also not disputed. The dispute is with regard to the fact that the complainant was found using the electricity sanctioned in domestic category in non-domestic category and whether the matter comes under Section 126 of the Electricity Act or not.

8.       Learned counsel for the appellant has submitted that the District Forum has erred in converting the case of deficiency in service into a case of complaint against an assessment under Section 126 of the Electricity Act, 2003.  Mere mention of Section 126 of the Electricity Act does not take away the jurisdiction of the District Forum to entertain consumer complaints against Distribution, Licensees and Traders of Electricity.  Section 126 of the Electricity Act has no application in this matter.  The District Forum has failed to notice that the assessing officer has not made an inspection nor filed any inspection report as required by the Section 126 of the Electricity Act and, thus, there were no proceeding initiated against the appellant under Section 126 of the Electricity Act.  There is no evidence on record to show the commencement of proceedings under Section 126 of the Electricity Act against the appellant.  There is no evidence on record to show that the notice of provisional assessment served on the appellant was served by an assessment officer duly authorized under Electricity Act.  Learned counsel also argued that the persons making the inspection on 04.07.2012 are not assessing officers under Electricity Act.  They could not have recorded any finding regarding unauthorized use of electricity, as envisaged of Section 126 of Electricity Act.  The said inspection dated 04.07.2012 was illegal.  The District Forum has failed to see that the sanctioned load, as per the bills, is still 3KW, the usage by the appellant is within the sanctioned load and the meter of the respondent has never reported a use of more than the sanctioned load.  The District Forum has incorrectly recorded that the contracted load was enhanced by the respondent to 7KW.  The load was sanctioned for enhancement, but it was never enhanced by the respondent.  Non domestic use has not been defined under the Electricity Act and even in the regulations the references to non-domestic use do not contain the use of premises for a clinic.  Learned counsel for the appellant has argued that the premises of the appellant is residential house and not hospital and no evidence has been adduced to show that it is a hospital.  The premises is used as a clinic, which is not equivalent of a hospital.  The District Forum has failed to see that there was no lawful basis that the appellant should have filed an appeal against the respondent under Section 127 of the Electricity Act and raised the issue of the service of notice in such appeal.  The District Forum has illegally held that the complaint is regarding a commercial purpose.  The District Forum has failed to exercise its jurisdiction in accordance with law. 

9.       On the other side, the learned counsel for the respondent has submitted that an inspection of the complainant’s premises was made on 04.07.2012 by the S.D.O. and two others of the U.P.C.L. and found that Kutiz Skin Care Hospital is running at the premises.  The premises is a double story building and four rooms of ground floor are occupied for the hospital.  It is also mentioned in the inspection report that the load cannot be checked due to consumer obstacle.  Learned counsel has also argued that an assessment notice dated 10.07.2012 regarding the unauthorized use of electricity in the premises of the complainant was sent to the appellant.  Learned counsel has also argued that the appellant has admitted that he did not allow checking the load of the clinic in his letter dated 14.07.2012.  Thereafter the respondent-UPCL passed an order of reduced amount of provisional assessment bill      Rs. 1,28,194/- to final assessment amount of Rs. 1,03,186/-.  Even then the appellant has not deposited the same in the office of the respondent.  Learned counsel also argued that in the affidavit, the appellant Dr. Nitesh Malik has admitted that on 04.07.2012 Sh. Sunil Pokhriyal, S.D.O. alongwith two other men arrived at the house of the appellant in his absence and demanded to inspect the meter and the premises of the appellant, he was allowed to inspect the premises, but he was denied entry into the dressing area of the clinic by the attendant, as it had been recently sterilized for the evening.  The appellant has also admitted in his affidavit that on 31.08.2012, he received a letter dated 10.07.2012 from the Executive Engineer and Assessment Officer of the U.P.C.L. stating that the appellant was found using the electricity connection sanctioned in domestic category in non-domestic category and under the provision of Section 126 of the Electricity Act, 2003 and Supply Code Regulations, a provisional assessment of Rs. 1,28,194/- was proposed against the appellant.  The envelope which contained the said letter dated 10.07.2012 reveals that it was dispatched on 29.08.2012 to the appellant.  In the said affidavit the deponent-appellant has also mentioned that the assessing officer could not have passed final assessment order on 21.07.2012 without ensuring the delivery of the provisional assessment order, which was posted only on 29.08.2012.  The final assessment order was not served upon the appellant.  The appellant sent his objections on 08.09.2012 against the provisional assessment to the Executive Engineer and Assessment Officer by speed post, which was delivered to him in due course.

10.     From the perusal of the record, it is evident that an inspection of the premises of the appellant was made by S.D.O. alongwith two other officials of the U.P.C.L. on 04.07.2012 and on the basis of the inspection report regarding unauthorized use of electricity, a notice dated 10.07.2012 was sent by the Executive Engineer/Assessment Officer to the appellant, which was delivered on 31.08.2012 on the appellant, as stated in the replication filed by the complainant-appellant.  The appellant had sent a letter dated 14.07.2012 to the S.D.O., U.P.C.L. and it was clearly mentioned that at the time of inspection, the S.D.O. was not allowed for checking the load of the clinic looking safety of the clinic.  It clearly indicates that the appellant was in full knowledge of the inspection done by the S.D.O. alongwith two other persons of the U.P.C.L. on 04.07.2012.  The respondent sent a notice dated 10.07.2012 to the appellant on the basis of provisional assessment of            Rs. 1,28,194/- against the appellant under Section 126 of the Electricity Act.  The appellant has admitted that this letter of assessment dated 10.07.2012 was dispatched from the office of U.P.C.L. on 29.08.2012 and was delivered on the appellant on 31.08.2012.  Even then the appellant has not preferred any appeal against the order of provisional assessment dated 10.07.2012 under Section 127 of Electricity Act.  Admittedly the appellant was using domestic supply of electricity in the clinic of his wife running for treatment of the patients and also in emergency conditions.  Therefore, this domestic supply of electricity was being used for non-domestic purpose and, therefore, on the basis of inspection report, the Executive Engineer of U.P.C.L. had issued a notice to the appellant under Section 126 of the Electricity Act alongwith a provisional assessment and the appellant was advised to move objection or representation against the provisional assessment, but the appellant has failed to move any such objection or representation before the Assessment Officer of U.P.C.L.  The assessment officer, on the basis of a letter of the appellant dated 14.07.2012 passed an order of final assessment dated 21.07.2012 and the amount of assessment was reduced from Rs. 1,28,194/- to Rs. 1,03,186/-. 

11.     Learned counsel for the respondent has placed reliance on the Regulations regarding tariffs.  According to RTS-1, tariff is charged for domestic supply of electricity whereas according to Regulation in RTS-2, tariff is charged for non-domestic supply of electricity.  In the present case, the appellant was using the domestic supply of the electricity in the clinic of his wife in the form of non-domestic supply of electricity. 

12.     In the case of Civil Appeal No. 5466 of 2012; U.P. Power Corporation Ltd. and others vs. Anis Ahmad; III (2013) CPJ I (SC), the Hon’ble Supreme Court has held that “The consumer complaints challenging electricity bills pertain to the unauthorized use and also assessment made under Section 126 of the Electricity Act, 2003 are not maintainable. Therefore, acts or person in indulging in “unauthorized use of electricity do not fall within the meaning of “complaint” and, therefore, the “complaint” against assessment under Section 126 is not maintainable before the Consumer Forum”.

13.     This Commission has also passed an order in Revision Petition No. 33 of 2008; U.P.C.L. vs. Ahmad Hussain, that “in our opinion, the Consumer Fora cannot decide whether the said raid was justified or not and whether the revisionist had sufficient material to make an assessment under Section 126 of the Electricity Act, 2003 or not and to take a demand of Rs. 6,39,000/-.  We are of the view that conducting such a raid and making assessment under Section 126 of the said Act, cannot be termed as deficiency in service.  The complainant can challenge the raid, the assessment and the demand raised on the basis of the assessment under the appropriate provisions of the Electricity Act, 2003.  We cannot decide whether a theft of electricity was being made or not and whether a provisional assessment was justified or not.” We find force in the submissions of learned counsel for the respondent.  The appellant has not preferred any appeal against the provisional assessment or final assessment to the competent appellate authority so far. Indulging in unauthorized use of electricity do not fall within the meaning of complaint, therefore, the complaint against assessment under Section 126 of the Electricity Act, 2003 is not maintainable before the Consumer Fora.  The District Forum has rightly held that Consumer Fora has no jurisdiction to entertain the consumer complaint and dismissed the complaint.  We find no glaring error or infirmity in the impugned judgment and order, hence, no interference is warranted.

14.     The District Forum has properly considered the facts and circumstances of the case and has passed a reasoned order and has rightly dismissed the consumer complaint.  The appeal lacks merit and is liable to be dismissed. 

15.     For the reasons aforesaid, the appeal is dismissed.  The impugned order dated 18.04.2015 passed by the District Forum, Dehradun in consumer complaint No. 306 of 2013 is hereby confirmed.  No order as to costs.