Order No. 16 Date 08/01/2018
Ld. Advocate for both sides file his hazira.
Case is taken up for FINAL HEARING.
Heard argument both sides in full.
Fix 17/01/2018 for judgement.
Judgement is wrongly entered this date
Original Judgement date is 17/01/2018
DATE OF FILING : : 18.02.2016.
DATE OF S/R : 18.05.2016.
DATE OF ORDER : 17.01.2018.
Noor Alam Mollah,
son of late Mustafa Mollah,
residing at Balitikuri SK, Para, P.O. Balitikuri,
P.S. Dasnagar, District Howrah,
PIN 711113. ……………………..……………………….……..…… COMPLAINANT.
1. West Bengal State Electricity Distributin Co. Ltd.,
having its office at Salap, CCC, P.O. Salap,
P.S. Domjur, District Howrah,
PIN 711409.
2. Jinna Bibi,
wife of late Noor Islam Sardar,
3. Rahaman Sardar,
4. Shaidul Sardar,
5. Safique Sardar,
6. Tafique Sardar,
all sons of late Noor Islam Sardar,
residing at Balitikkuri, Sk. Para, P.S. Dasnagar,
District Howrah,
PIN 711113….……..…………………………………….……OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Abdul Kuddus.
Hon’ble Member : Shri Sajal Kanti Jana.
Hon’ble Member : Smt. Banani Mohanta ( Ganguli ).
F I N A L O R D E R
Facts of the case of the complainant, in short, is that complainant is the tenant in the case premises mentioned in the schedule. Complainant was inducted as tenant in case premises by Noor Islam Sardar, since deceased, predecessor in interest of o.p. nos. 2 to 6.
Complainant was enjoying electricity from the meter of his landlord; but subsequently his electric connection had been disconnected by the o.p. no. 1 / WBSEDCL.
COMPLAINT CASE NO. HDF 78 OF 2016
So this complainant filed application for getting new electric connection to his tenanted premises and he has deposited Rs. 8,68/- as service connection charge as well as security charge to o.p. no. 1 on 10.06.2015.
The o.p. no. 1 intimated complainant by sending letter dated 26.06.2015 expressing their inability to give new electric connection that there was outstanding dues of electricity charges from the owner of the said house owned by Noor Islam, since deceased.
This complainant made several requests but no new electric connection has been given to this tenanted premises. So this complainant has filed this complaint case and prays for making direction upon o.p. no. 1 to give electric connection and also prays for compensation to the tune of Rs. 10,000/- and other reliefs.
This case is being contested by o.p. no. 1 by filing written version denying all allegations as made in this petition of complaint contending interalia that complainant has no cause of action, case is not maintainable, complainant is not consumer and the alleged dispute is not a consumer dispute. The specific case of the o.p. no. 1 is that there is an outstanding amounting to Rs. 58,923/- which is pending against the case house and Rs. 34,493/- is also pending as dues in the name of Noor Islam Sardar and also Rs. 24,429/- is also lying outstanding dues from Noor Islam Sardar vide Consumer I.D. nos. 135033927, 135033826. As the outstanding amount of the case house / premises has not been cleared so as per Clause 13.9 of notification no. 46 of WBERC, the connection as applied for is remained pending. So according to o.p. no. 1 that there is no deficiency on the part of the o.p. no. 1 and the complainant is guilty of suppression of actual fact and trying to defraud this o.p. no. 1 from their legitimate dues. So this case is liable to be dismissed.
The other o.p. nos. 2 to 6 filed their written version denying all allegations as made in the petition of complaint but they did not appear to contest this case at the time of hearing.
POINTS FOR DETERMINATION :
i) Is the case maintainable in its present form ?
ii) Whether the complainant is a ‘Consumer’ as per provision of Consumer Protection Act, 1986 ?
iii) Whether there is any deficiency in service and unfair trade practice on the part of the o.ps as alleged ?
iv) Whether the complainant is entitled to the reliefs as prayed for ?
COMPLAINT CASE NO. HDF 78 OF 2016
DECISION WITH REASONS
Ld. advocate for the complainant made argument by reiterating the fact as stated in the petition of complaint as well as BNA. On the other hand ld. advocate for the o.p. no. 1 argued interalia that there is dues of huge amount of electricity charges from the owner of the said house / premises. But said electric dues has not been paid by the owner / landlord of the said house. So this complainant is not entitled to get any new electric connection until and unless said outstanding dues are paid. So this complaint is liable to be dismissed.
We have carefully heard the submission made by the ld. advocate for both sdies. Perused the materials on record. It is undisputed that this complainant submitted application for getting new electric connection to the o.p. no. 1, being occupier of the case premises as tenant. On the other hand o.p. no. 1 is not getting new electric connection to the tenanted premises of the complainant on the ground that there is outstanding of electricity charge in respect of the case premises and there is a nexus in between the owner of the house and this complainant for getting new electric connection in the case premises. So according to him there is nexus in between the complainant and the owner of the house.
So it is clear to us that o.p. no. 1 is not giving new electric connection to the tenanted premises of complainant on the plea that there is outstanding of electricity charge from the owner of said house.
In this case, there is nothing on record to show that the complainant is not occupying the case premises as tenant. It also reveals from the para 7 of the written version filed by the o.p. nos. 2 to 6 who have been made parties in this complaint case as legal heirs of Noor Islam Sardar, since deceased, landlord of the complainant. It reveals from para 7 of written version filed by the o.p. nos. 2 to 6 that complainant has been stated as defaulter in the matter of payment of rent and his tenancy has been determined. So it proves from para 7 of the written version filed by the o.p. nos. 2 to 6 that complainant is occupying the case premises as tenant. As per Section 43 of the electricity Act, 2003 that licensee, shall, on an application by the owner or occupier of any premises given supply of electricity to such premises.
COMPLAINT CASE NO. HDF 78 OF 2016
So in view of Section 43 of the Electricity Act, 2003 that the complainant being an occupier / tenant of the case premises is entitled to new electric connection in his premises. But o.p. no. 1 is not giving electricity on the plea that there is outstanding of electricity charges from owner of the premises.
It has been observed by the Hon’ble Apex Court reported in ( 2004 ) 3 SCC 587 interalia that “purchaser cannot be held liable to clear arrears of the previous owner.”
It has also been observed by the Hon’ble National Commission reported in 2017
(4) CPR page 881 ( NC ) interalia that “claim relating to previous owner could not be enforced against purchaser.” In this case no documents like electric bills of landlord has been filed to prove the dues of electric charges of landlord of complainant. No documentary evidence is found to prove nexus in between complainant and landlord in getting new electric connection. So we find that there is no evidentiary support to prove nexus in between complainant and his landlord as alleged. So in view of observation of Hon’ble National Commission reported in 2016 (3) CPR 427 (NC) that mere pleading without evidentiary support hold no value about plea against nexus as alleged by o.p. no. 1.
In view of the above observation of the Hon’ble Apex Court and Hon’ble National Commission we hold that the new electric connection of the complainant cannot be withheld for non payment of outstanding dues of electricity by landowner of the case premises and we further hold that complainant is not liable to pay the outstanding dues of his land owner for getting new electric connection. So we are of the opinion that denial of new electric connection to the complainant by the o.p. no. 1 is on flimsy ground. It has been observed by the Hon’ble National Commission reported in 2015(1) CPR page 57 (NC) that new power connection cannot be denied on flimsy ground.
In view of the above facts and circumstances we hold that o.p. no. 1 is duty bound to give electric connection to the complainant on the basis of his application bearing no. 100273895 dated 21.5.2015 on payment of requisite charges like security charge, service connection charge etc. if not paid by landlord. So his new electric connection cannot be denied for non payment of outstanding charges of his landlord.
The o.p. no. 1 is an government undertaking concern. So in view of observation of the Hon’ble National Commission reported in 2005 ( 1 ) CPR page 57 (NC) we do not like to make pass any award in the matter of payment of compensation and litigation costs. So we hold that complainant is entitled to get new electric connection in his tenanted premises for which he applied for.
COMPLAINT CASE NO. HDF 78 OF 2016
In view of the circumstances we hold that there is deficiency in service on the part of the o.p. no. 1. So complainant is entitled to new electric connection at his tenanted premises for which he applied for.
We find that o.p. no. 2 died during pendency of this case and o.p. nos. 3 to 6 are the legal heirs of Noor Islam Sardar, since deceased, who was landlord of the complainant and this complainant is not the consumer of o.p. nos. 3 to 6. So this complaint is not maintainable against them and is liable to be dismissed.
Hence,
O R D E R E D
That the C. C. Case No. 78 of 2016 ( HDF 78 of 2016 ) be and the same is hereby allowed on contest against o.p. no. 1, WBSEDCL, and dismissed ex parte against the rest.
The o.p. no. 1, WBSEDCL, is directed to render / give electric connection to the tenanted premises of the complainant on the basis of his application subject to payment of requisite fees, if not paid earlier by 30 days from the date of receipt of copy of judgment.
The complaint case is hereby dismissed in respect of other prayers / reliefs made by the complainant.
If o.p. no. 1 fails / omits to comply with the order within the period mentioned above then complainant is at liberty to implement the order with due course of law.
Let plain copy of this final order be given to the petitioner, free of costs, and the o.p. no. 1 / WBSEDCL and also be served upon the other o.ps. by registered post / speed post with A.D. as early as possible.
DICTATED & CORRECTED
BY ME.
( Abdul Kuddus )
President, C.D.R.F., Howrah.
