Today is fixed for hearing on the point of maintainability of the case.
Ld. Advocate of both sides are present by filing attendance.
Heard Ld. Advocate of both sides.
Admittedly, the complainant is owner of M/s Anwar Ali Husking Mill who as a consumer took commercial electric connection being Consumer I.d No:-401384344 in the year 2015 and he has paid electric bill(s) as usual during the year 2015.
The case of the complainant is that due to recession he has defaulted in payment of bill resulted in disconnection and upon payment of Rs.11,139/- + Rs.1,00/- for connection and disconnection charges he got it re-connected on 16/01/2017.
Whether his business was not running well it is the matter of oral evidence, cannot be adjudicated at this stage. But it is undisputed that he has defaulted in payment of electric bill for the year 2016.
The complainant stated that he met accident during work in the mill on 27/09/2017 and for treatment went outside and his Husking Mill was closed. No document is produced regarding any accidental injury, treatment or closure of his Husking Mill. If that be so the complainant should have submitted representation for disconnection but no such document is produced.
On the other hand, it appears that O.P / Company has raised bill(s) as usual coupled with LPSC charge for the period for almost 03 years from 2017 to 2020 as stated by complainant & his family members have deposited Rs.5,095/-(Five thousand & Ninety Five only) on 27/11/2020.
Document produced by the O.P shows that by letter dated 29/11/2021 the complainant prayed for forego the LPSC charge and he also admitted that an amount of Rs.30,000/- was paid for reconnection and after payment his connection was restored which was again disconnected in December 2021.
Therefore, it appears that payment of bill for the period of approximate 05(Five) years was / were irregular. Before that he submitted an application dated 06/09/2021 to the District Legal Service Authority, Uttar Dinajpur but no fruitful result has come out.
After filing this complaint the complainant submitted an application on 03/01/2022 for re-connection on depositing Rs.40,000/-(Forty thousand only) and his service connection was restored. Further by submitting application dated 22/02/2022 he narrated the facts which undoubtedly shows that he has defaulted in payment of electric bill in time for a considerable period.
Thus it is admitted that the dispute is essentially a billing dispute.
Ld. Advocate for the complainant referred Clause 3.5.1 and argued that the word “may” cannot be read as “shall”. Respectfully we differ with such submission as the word described here being condition precedent must be read as “shall”.
Ld. Advocate for the complainant referred judgment of N.C.D.R.C, Jharkhand, Rachi, Re:-Ashok Ojha vs Jharkhand State Electricity, wherein it has been held that Consumer Fora has jurisdiction to adjudicate the matter with respect to “unauthorised use of electricity”, “pilferage” or “theft” of electricity. This ruling has no applicability in this case because the present case is not related to “unauthorized use of electricity”, “pilferage” or “theft” of electricity.
Ld. Advocate for the complainant also referred a judgment of Civil Appeal No 2014 of 2020 RE:- the Joint Labour Commissioner and Registering Officer and Anr Versus Kesar Lal wherein the Hon’ble Supreme Court has been pleased to hold that if the statutory authority, other than the core sovereign duties, is providing service, which is encompassed under the Act, then, unless any statute exempts, or provides for immunity, for deficiency in service, or specifically provides for an alternative forum, the consumer forums would continue to have the jurisdiction to deal with the same. We need to caution against over-inclusivity and the tribunals need to satisfy the ingredients under Consumer Protection Laws, before exercising the jurisdiction. 16 2. (1) (o) service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service; In the view of the Court:
Therefore, it is a clearly established principle that certain statutory dues, such as fees, can arise out of a specific relation. Such statutory dues might be charged as a quid pro quo for a privilege conferred or for a service rendered by the authority. As noted above, there are exactions which are for
the common burden, like taxes, there are dues for a specific purpose, like cess and there are dues in lieu of a specific service rendered. Therefore, it is clear from the above discussion that not all statutory dues/exactions are amenable to the jurisdiction of the consumer forum, rather only those exactions which are exacted for a service rendered, would be amenable to the jurisdiction of the consumer forum.
This ruling has also no application in this case as it does not relate to billing dispute.
Ld. Advocate for the complainant referred another judgment of Civil Appeal No. 5466 of 2012, RE:- U.P.Power Corporation Ltd & Ors vs Anis Ahmad and also judgment of S.C.D.R.C, W.B in First Appeal No-A/974/2015, RE:-W.B.S.E.D.C.L Vs Smt. Niva Balmiki and argued that in case of billing dispute, a Consumer Forum has jurisdiction to adjudicate the same.
The said judgment of Hon’ble Supreme Court Re: U.P.Power Corporation Ltd. & Ors vs Anis Ahmad as also Clause 3.5.1 & 3.5.2 of Notification No. 55 of West Bengal Electricity Regulatory Commission published in Kolkata Gazette (Extra-Ordinary) dated 7th August, 2013 have elaborately been discussed in a later discussion passed by S.C.D.R.C, W.B, in First Appeal No.A/1087/2017, RE:-The Station Manager, WBSEDCL and Ors Vs Sri Sankar Prasad Chatterjee, and it has been observed that in order to contradict the assessment of the licensing authority, the respondent should have invoked Clause 3.5 by lodging a complaint before the appropriate authority and the judgment of DCDRC was set aside.
Since the complaint was lodged without doing condition precedent act, this Commission has no authority to bypass legislative command and accordingly, we are of the view that the petition of complaint is not maintainable in terms of above mentioned notification.
Hence, it is
O r d e r e d
that the petition of complaint filed U/s 34 of Consumer Protection Act, 2019 registered as C.C-08-2022 be and the same is dismissed on contest.
