Consumer Complaint No. 23 of 2016
Date of filing: 25.02.2016 Date of disposal: 16.9.2016
Complainant: Amit Kumar Dey, S/o. Ramkamal Dey, resident of Baranilpur, Aryapally, PO: Sripally, District: Burdwan, PIN – 713 103.
-V E R S U S-
Opposite Party: 1. West Bengal State Electricity Distribution Co. Ltd., represented by its Station Manager, having its office at Burdwan – III Customer Care Centre, PO: Sripally, PS: Burdwan, District: Burdwan, PIN – 713 103.
2. West Bengal State Electricity Distribution Co. Ltd., represented through its Secretary, Bidyut Bhaban, Block – DJ, Salt Lake City, Kolkata – 700 091.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party: Ld. Advocate, Biswanath Nag.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs did not provide him electric connection at his portion in the premises inspite of taking the quotation amount.
The brief fact of the case of the Complainant is that he purchased one plot situated in Mouza Balidanga, JL no-35, Touzi no-1, Khatian no-23, Dag no-731, LR Khatian no-860/1, LR Dag no-731/1485, sub plot 731/B & 731/C, type Sali through sale deed no-1547 dated 22.06.1999. The Complainant purchased the said plot of land along with two other persons namely Mahadeb Dey & Probhat Kumar Dey respectively. The said two persons are the relatives of the Complainant. The Complainant used to live in Kolkata for his service, so he executed a Power of Attorney in favour of his father on 13.02.2015. The Complainant applied before the OP-1 for getting electric connection at his portion of the premises. The OP-1 accordingly registered the said application and issued quotation on 09.01.2015 and proposed to give new electric connection within 09.04.2015. As per quotation the Complainant deposited a sum of Rs.837=00 as security money for getting new meter. The wife of the Complainant along with her two children and father of the Complainant used to live in the premises situated in the above sated plot. Two brothers of the father of the Complainant and their family members are also used to live in the same premises with the Complainant and his family members and before filing of the said application the Complainant and his relatives used to consume electricity from a meter in the name of one Mahadeb Dey who was the brother of the father of the Complainant. Moreover the father of the Complainant under pressure used to pay the electric bill to the OP-1. After depositing the quotation amount the OP-1 send its men and agent on 03.02.2015 for giving new connection in the premises of the Complainant but the relatives of him restrained them from giving effect of the new connection. After getting such objection the men and agent of the OP-1 returned and thereafter the OP-1 did not take any step for giving electric connection to him. The father of the Complainant has made written representation with the Sub-Divisional Magistrate, Sadar (North), Burdwan as well as S.P. Burdwan Police Station on 04.02.2015 and 05.02.2015. The father of the Complainant also submitted written complaint before Public Grievance Cell, Burdwan, but neither the Complainant nor his relatives got any relief. Thereafter the father of the Complainant again submitted complaint before the Divisional Manager, Burdwan Division of the OPs on 03.03.2015 requesting to take proper step. The Sub-Divisional Magistrate, Burdwan on the basis of the complaint made by the father of the Complainant by issuing an order dated 23.02.2015 vide memo no-599 directed the Police Authority, Burdwan to investigate the matter and the ASI of Police after investigation submitted his report before the SDM on 16.04.2015. The Complainant had submitted written representation before the OP-1 requesting them to give electric connection. The OP-1 had never taken any ‘no objection certificate’ from the Complainant at the time of giving electric connection in the name of Mahadeb Dey. It is pertinent to mention that another brother of the father of the Complainant namely Probhat Kumar Dey had also obtained electric connection from the OP-1. Then on several times request was made by the Complainant to the OPs as well as the SDO, Burdwan, but to no effect. The Complainant along with his wife, children and ailing and aged father are passing their days in dark and without any electricity. According to the Complainant the action of the OPs suffers from deficiency in service and unfair trade practice as they did not take step to give effect of electric connection ignoring the resistance raised by the relatives of the Complainant. Having no alternative the Complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OPs to give electric connection to him, to pay compensation to the tune of Rs.20,000=00 due to harassment, mental pain and agony suffered by him and litigation cost of Rs.10,000=00 to him.
The petition of complaint have been contested by the OPs by filing conjoint written version contending that the Complainant Amit Kumar Dey has applied for getting a new electric connection on 09.01.2015 at his portion of the premises in the prescribed form of WBSEDCL and after receipt of the said application quotation was issued on 10.01.2015 to the Complainant and the Complainant deposited the quotation amount on 21.01.2015 and accordingly work order was issued on 22.01.2015 for effecting the proposed electric connection and thereafter the enlisted contractor went to the premises of the Complainant on 03.02,2015 but they could not effect the said connection due to objection raised by the other co-sharer of the premises in question and one of the co-sharer namely Probhat Kumar Dey claiming to be one of the co-owners raised objection in writing on 04.02.2015 stating a Title Suit being no-147/2013 is pending before the Civil Judge, Senior Division, Burdwan for partition of the questioned premises and the Complainant was informed about the reason for non-effecting such connection through the letter dated 11.02.2015. Moreover one electric meter connection having consumer ID no-512097261 stands in the name of Mahadeb Dey is lying in disconnected condition due to outstanding dues of Rs.19,663=00 in the self premises. Subsequently even in view of the direction of the higher Authority the enlisted contractor went there again to provide the Complainant electric connection on 05.05.2015, but the same could not be effected due to further objection raised by the relatives of the Complainant and the same was duly intimated to the Complainant by issuing letter dated 04.06.2015. Subsequently the Ld. Advocate for Provat Kumar Dey had issued a notice to the OPs asking them not to effect the proposed connection due to pendency of the Civil Suit in respect of the questioned premises. So there is no laches on the part of the OPs and actually the Complainant knowing everything just to harass the OPs has filed this complaint. It is further mentioned by the OPs that in view of the Section 42(5) and (6) of the Electricity Act, 2003 and the Rules and Regulations made thereunder if there is any grievance against non-supply of electricity, that should be ventilated before the Regulatory Commission or before the person or Authority empowered by the said Act and as such having an alternative and appropriate Forum, this Ld. Forum has no jurisdiction to try with the instant case. As the complaint has no merit at all, prayer is made by the OPs for dismissal of the complaint with cost.
The Complainant has adduced evidence on affidavit along with some documents in support of his contention. The Complainant has also filed some questionnaire to the OPs, though the OPs did neither adduce any evidence on affidavit nor prayed for adopting the written version filed by them as evidence because the same was submitted on affidavit. Inspite of this the OPs have replied to the questionnaire put by the Complainant. But as the reply is not filed on affidavit, we are not in a position to give any cognizance of the same.
It is mentioned earlier that though this complaint is fixed for final argument on 04.10.2016, but in view of the petition filed by the both parties to take up the complaint for hearing argument, we for the interest of justice took the complaint for argument in presence of both parties.
We have carefully perused the record; documents filed by the contesting parties and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that there are some admitted facts in the instant complaint i.e. the Complainant resides in the premises where several co-sharers are also used to reside therein, he applied for electric connection before the OP-1 at his portion in the questioned premises, quotation issued on 09.01.2015, he paid quotation amount as security deposit for getting new electric connection, money receipts filed, before making application the Complainant used to enjoy electricity from the meter lies in the name of Mahadeb Dey being the uncle of the Complainant, on 03.02.2015 the OP-1 went to give new electric connection to the Complainant, the relatives of the Complainant restrained the OP-1 from giving the same, the father of the Complainant made several written correspondences with the Sub-Divisional Magistrate, Sadar (North), Burdwan, Police Superintendent, Burdwan, Public Grievance Cell, Burdwan requesting to provide electric connection, but to no effect, the Sub-Divisional Magistrate, Burdwan directed the Police Authority, Burdwan to investigate the matter, the ASI of Police after investigation submitted his report before the SDM on 16.04.2015, during this period electric connection was given to the uncle of the Complainant being one of the co-sharer in the premises in question, as the Complainant did not get electric connection till filing of this complaint, now he is passing his days along with his family members including his ailing and aged father without electricity. The allegation of the Complainant is that inspite of repeated requests the OPs did not take any fruitful step to provide him electric connection. By filing this complaint the Complainant has sought for certain relief along with the electric connection in his favour.
The rebuttal case of the OPs is that upon receipt of the application and one quotation was issued to the Complainant directing to deposit some amount and he deposited the same within due period. Thereafter work order was issued and the men and agent went at the premises of the Complainant for giving new electric connection to the Complainant as sought for, but they could not provide the connection due to objection raised by the other co-sharers of the said premises on the ground that a Title Suit is pending being no-147/2013 before the Ld. Civil Judge, Senior Division, Burdwan for partition of the questioned premises. Inspite of this in view of the direction of the higher authority the enlisted contractor again went to effect electric connection to the Complainant, but could not be effected due to further objection raised by the other co-sharers of the questioned premises. Subsequently the Ld. Counsel for Mr. Provat Kumar Dey, one of the co-sharer intimated the OPs by issuing one notice not to effect electric connection in favour of Mr. Amit Kumar Dey due to pendency of the Civil Suit. According to the OPs there is no deficiency in service as well as unfair trade practice on their behalf and prayed for dismissal of the complaint.
From the pleadings of the contesting parties we have noticed that due to problems among the co-sharers of the questioned premises the OPs could not give effect of electric connection to the Complainant. Moreover one Title Suit is admittedly pending before the Ld. Civil Court regarding partition of the premises. It is seen by us that the men and agents of the OPs went at the questioned premises on several occasions, but have failed to give him electric connection due to objection raised by the co-owners of the said premises and for this reason the Complainant along with his family members are passing days without any electricity. We have found that during pendency of the Civil Suit one of the co-sharers got electric connection at his portion of the said premises on 22.05.2013. The Title Suit which is pending before the Ld. Civil Court being no-T. S.-147/2013 was pleased to pass an order dated 13.08.2015 by allowing the temporary injunction application under Order 39 Rule 1 and 2 of the CPC dated 01.12.2014 in the nature of an order to maintain status quo in between the petitioners and OPs as regards possession, occupation and enjoyment of electricity from the electrical meter connection standing in the name of the plaintiff in between both the petitioner and the OP as on this date and not to change the nature and character of the same in anyway till disposal of the suit.
The above-mentioned order of the Ld. Civil Court clearly reveals that the Ld. Civil Court did not debar this Complainant from getting separate electric connection at his portion of the questioned premises. It is true that the Title Suit is pending and partition has not yet been decided by the Ld. Court. So if we say that till partition of the premises the Complainant will not be entitled to get electric connection, then it will carry miscarriage of justice, where there is no such order of the Ld. Civil Court that electric connection should not be given to this Complainant. Moreover we all know that electricity is very essential in everyday life and in the instant case the Complainant is living without electricity for a prolonged period. In this respect we may refer to the judgment reported in 2001 (1) CLJ 140 where Hon’ble Justice Ashoke Kumar Ganguly has held that “the expression ‘life’ under Article 21 of the Constitution of India has been construed to mean quality of life and life with all the amenities and benefits in a civilized society. The right to get electricity is certainly covered within the broad sweep of ‘life’ under Article 21.” His Lordship has further held “in the current day realities of growing consumerism electricity is an essential requirement. If a person is willing to obtain supply of electricity on payment of necessary charges to the licensee and the licensee is willing to supply electricity, the right of such person to get electricity must be construed keeping in mind the broad vision of Article 21 of the Constitution of India.”
We may refer to the judgment passed by the Hon’ble High Court, Calcutta, reported in 2012 (5) CHN (CAL) 52. Hon’ble Justice Joymalya Bagchi was pleased to mention in the paragraph no-6, which runs as follows-
6. ‘…………… It is settled law that the Respondent-1 electric company has a statutory duty to supply electricity to anyone who is in occupation of a premise within its area of supply. Such supply cannot be obstructed by any individual even on the ground that he disputes the right, title or interest of the said person in the premises in question. It is not the duty of the electric company to decide on the legality of the possession of a person seeking electric connection to a premise. The said issue fell for decision before a Special Bench of this Court in the case of Abhimanyu Mazumdar vs. Superintending Engineer reported in 2011 (2) CHN 786. In the said case the Hon’ble Special Bench, inter alia, held that even a trespasser in settled position was entitled to supply of electricity under the provisions of the Electricity Act, 2003.’
The complainant has placed his reliance on the judgment passed by the Hon’ble High Court, Calcutta on 02.5.2012 reported in 2012 0 (AIR) CAL 205 wherein Hon’ble Justice Mr. Joymalya Bagchi was pleased to allow the Writ Petition No. 25482/2010 directing the Distribution Company to provide electric connection to the petitioner. The case of the said Writ Petition was that being a co-sharer of the premises in question, partition suit is pending by and between the petitioner and private respondent no. 5 to 7 being Title Suit no 42/2004 pending before the ld. First Civil Judge, Sr. Divn., Howrah, by an order dated 20.7.2010 the ld. Civil Court has directed the petitioner and the private respondents to maintain status quo as to nature, character and possession of the suit property. The WBSEDCL was not a party in the said Suit. On 03.6.2009 the petitioner made an application to the WBSEDCL for electric connection, spot verification made, quotation issued to the tune of Rs. 14,992=00, due to objection on the part of the private respondents WBSEDCL have failed to provide electric supply to the petitioner. In the said judgment the Hon’ble High Court was pleased to refer another judgment passed in the case of Sk. Asgar Vs. State of West Bengal & Ors. reported in 2010 (4) CHN (CAL) 191 wherein the Hon’ble High Court was pleased to held that an order of status quo as to the nature and character of suit property is not violated by effecting electric supply to an admitted occupier of such property. Therefore having regard to the above-mentioned judgment passed by the Hon’ble High Court, Calcutta we are also of the view that being an admitted occupier of the questioned premises the complainant is very much entitled to get electricity at his portion in the questioned premises. The complainant has also placed his reliance on another judgment of the Hon’ble High Court of Calcutta passed in the Writ Petition No. 8632 (W)/2015 in the case of Mrinal Kanti Ganguly Vs. The Chairman, WBSEDCL & Ors, dated 05.6.2015, wherein same and identical observation has been made by Their Lordships.
Next the Ld. Counsel for the OPs has placed reliance on the Ruling of the Hon’ble Supreme Court. We have carefully perused the said judgment and it is seen by us that Their Lordships did not mention that complaint/dispute relating to the electric energy is ousted from the Consumer Protection Act, 1986. Moreover where there is mentioning in the definition of ‘Service’ in the C.P. Act, 1986 that service in respect of electrical energy will come within the purview of the Consumer Protection Act, 1986 and till today in this regard the C.P. Act, 1986 has not been amended, hence it cannot be said that the instant dispute will not come under the jurisdiction of this Ld. Forum. It is true that in view of the Section 42(5) of the Electricity Act, 2003 the consumers are entitled to approach the appropriate authority, but there is no barring provision for coming to this Ld. Forum. As it is an alternative machinery the consumers can easily approach before this Ld. Forum save and except the subject matters which the Hon’ble Supreme Court has specifically directed not to adjudicate the same. Moreover in view of the Section 3 of the C.P. Act, 1986 the Forum has jurisdiction to try with this matter.
Therefore, having regard to the aforementioned observation of Their Lordships it can safely be said that admittedly the Complainant is residing at the questioned premises for a prolonged period and as he had already complied with all requirements as per direction of the OPs, hence in our view he is very much entitled to get electric connection at his portion of the questioned premises. We have also noticed that as the OPs have taken all possible steps to give him electric connection on two occasions, hence in our opinion there is no deficiency in service and unfair trade practice on behalf of the OPs. So the Complainant is not at all entitled to get any amount towards compensation from the OPs as sought for. The Complainant is not also entitled to get litigation cost because not due to and deficient action of the OPs had to approach before this Ld. Forum rather due to objection raised by his co-sharers the OPs could not discharge their liabilities.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint be allowed on contest without any cost. The OPs are directed to give effect of the electric connection to the Complainant within 15 (fifteen) days from the date of passing of this judgment. The OPs are at liberty to take police help from the concerned Police Station, if necessary, at the time of giving electric connection at the portion of the Complainant in the questioned premises. The cost for police help, if necessary, shall be borne by the Complainant. In default to comply with this direction, the Complainant will be at liberty to approach before the Ld. Executing Forum for execution of the final order as per provision of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
