State Consumer Disputes Redressal Commission
Chhattisgarh State Power Distribution ... vs A.Kadar Kherani on 28 January, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/13/107
Instituted on : 04.02.2013
1. Chhattisgarh State Power Distribution Co. Ltd.,
Through : Superintending Engineer, Mahasamund,
C.G. State Power Distribution Company Limited,
Branch : Mahasamund (C.G.)
2. Executive Engineer (Assessment Officer),
Chhattisgarh State Power Distribution Co. Ltd.,
Branch : Mahasamund (C.G.)
3. Assistant Engineer,
Chhattisgarh State Power Distribution Co. Ltd.,
Branch : Mahasamund (C.G.) ... Appellants
Vs.
A. Kadar Kherani, S/o Late Shri Daud A. Gani,
R/o : Old Civil Lines, Near Maszid, Mahasamund,
Tehsil and District Mahasamund (C.G.) ... Respondent
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES :
Shri R.K. Bhawnani, Advocate for appellants. Respondent, present in person.
O RDER Dated : 28/01/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 07.01.2013, passed by District Consumer Disputes Redressal Forum, Mahasamund (C.G.) // 2 // (henceforth "District Forum") in Complaint Case No.05/2012, whereby the complaint of the complainant/respondent, has been partly allowed by the District Forum and OPs/appellants, have been directed to pay the entire amount deposited by the complainant/respondent against the Vigilance Report along with interest 6% p.a. from the date of deposit till date of payment and also pay Rs.25,000/- towards compensation for mental agony and Rs.3,000/- towards cost of litigation to the complainant.
2. Briefly stated the facts of the case of the complainant before the District Forum are : that the house of the complainant is situated near Old Civil Lines, Near Maszid, Mahasamund (C.G.), where electricity connection has been provided by the O.P.No.1 through Service No.100124089/20-25-71790 and electric meter is installed. On 22.10.2011, the Vigilance team of the appellants / OPs visited the residential house of the complainant/respondent and prepared Vigilance Report. On the basis of Vigilance Report, notice was sent to the complainant/respondent on 24.10.2011 directing to pay a sum of Rs.2,71,000/-. The complainant/respondent, as per pre-schedule had gone to Akola (M.H) from where he returned back to Mahasamund (C.G.) on 28.10.2011 and he contacted with concerned officers, but at that time, the concerned officers were on leave. On 29.10.2011 he again contacted the concerned Assistant Engineer and orally discussed with him, who informed the complainant/respondent that Vigilance Officer // 3 // Mr. K.G. Mathew, inspected the residential house of the complainant /respondent and gave his report and on the basis of the Vigilance Report, bill was issued to the complainant/respondent and notice was sent to him on 24.10.2011. It is further averred by the complainant/respondent that on the date of inspection by the vigilance team of the appellants/OPs, the complainant/respondent and his wife both were not present in the residential house and residential house of complainant/respondent was locked on 22.10.2011. The complainant/respondent submitted written application on 29.10.2011 and demanded information in respect of Vigilance Report dated 22.10.2011 and other relevant assessment order. In response to the said application submitted by the complainant/respondent, on 17.11.2011 only the copy of Vigilance Report, panchanama dated 22.10.2011 and C.G. State Electricity Supply Code, 2007 and Format -5 only were sent whereby the complainant/respondent came to know that on 22.10.2011 one K.G. Mathew, Assistant Engineer, Rajnandgaon inspected the residential house of the complainant/respondent and submitted incorrect Vigilance Report and panchanama in the office of the C.G. State Power Distribution Co. Ltd. The complainant/respondent has already sent written intimation to Police Station, Mahasamund on 02.10.2011 and expressed conspiracy hatched against him by K.G. Mathew, because the complainant was President of Bar Association therefore earlier K.G. Mathew has recommended to send death claim of // 4 // Late Josh Thomas, Advocate for payment to Bar Association, but the complainant refused and then K.G.Mathew said him to meet again and threatened him. K.G.Mathew made a case against the complainant with hostility. There is no signature of the complainant/respondent or his family members or representative in the Vigilance Report or panchanama. In the Vigilance Report, there is signature of some Kulsum, who has been mentioned as wife of the complainant, whereas name of the wife of the complainant is Zebunissa alias Zeb Kherani. The wife of the complainant was not present in Mahasamund on 22.10.2011. In the report it has mentioned that in the residence of the complainant three A.C., one ovan and two T.V. are available, where in the residence of the complainant only one A.C. and one T.V. is available and ovan is not available. The complainant has not used the electricity unauthorizedly. The complainant filed complaint before the District Forum.
3. The O.P.No.2 & 3, who were employees of O.P.No.1, filed preliminary objection before the District Forum in which they averred that the complainant is not "consumer" therefore, the instant dispute does not come within purview of "consumer dispute". The dispute arose between the complainant/respondent and OPs/appellants, is of criminal and civil nature. The residential house of the complainant/respondent was inspected by the Vigilance Team on 22.10.2011 and they found that complainant/respondent was indulged // 5 // in using electricity unauthorizedly and therefore, action against the complainant/respondent, was initiated on the ground of unauthorized use of the electricity by him. The cases of theft of electricity or assessment of electricity bill are being decided by other Forum, therefore, the complaint filed by the complainant/respondent is not maintainable and is liable to be dismissed.
4. Learned District Forum after appreciation of the material available before it allowed the complaint of the complainant/respondent, in part and awarded compensation, as mentioned in para 1 of this judgment.
5. Shri R.K. Bhawnani, learned counsel for the appellants/OPs argued that the order passed by the District Forum is contrary to law. The District Forum has not minutely perused the documents and affidavits and passed the order contrary to law. The District Forum has also ignored the fact that Hon'ble Supreme Court has passed judgment in the case of U.P. Power Corporation Ltd. & Ors. Vs. Anis Ahmed, III (2013) CPJ (SC) 1, that the District Forum, State Commission and National Commission will not hear the cases relating to theft of the electricity. The District Forum has also ignored the fact that vigilance team of the appellants/OPs inspected the residence of the complainant and prepared Vigilance Report and panchanama, in which it is mentioned that the complainant was unauthorizedly using the // 6 // electricity by bypassing meter and was using 9000 watt for operating electric instruments. The order of the order of the District Forum is without jurisdiction and according to law laid down by Hon'ble Supreme Court, the District Forum, has no jurisdiction to try the complaint case. Therefore, the order passed by the District Forum, is without jurisdiction and is not sustainable in eye of law.
6. The respondent/complainant present in person and filed detailed written arguments and supported the impugned order. He placed reliance on judgment of Hon'ble Supreme Court in the case of M. Venkataramana Hebbar (D) by LRs v. M. Rajagopal Hebbar & Ors. [2007] 3 Supreme 794; Lohia Properties (P) Ltd. v. Atmaram Kumar, [1993] 3 Scale 453 / [1993] 5 JT 223 / [1993] 2 UJ 528 [993] 4 SCC 6; Rajeev Hitendra Pathak & Others v. Achyut Kashinath Karekar & Another [2011] 9 SCC 541/ [2011] 8 Supreme 120 & judgments of Hon'ble National Commission in the case of Uttari Haryana Bijri Vitran Nigam Ltd. (HVPN) v. Gautam Plastic, I (2008) CPJ 62 (NC); Manager, Fast Telecast Pvt. Ltd. v. Mr. Abdul Nazar Zain, 2008 (1) CPR 124 (NC); Ponnusamy (Dr.) & Anr. v. Ramakrishnan, [2006] 4 CPJ (NC) 213; Uttari Haryana Bijli Vitrana Ltd. v. Bhagwan Dass, III (2011) CPJ 436 (NC). He also placed reliance on judgment of State Consumer Disputes Redressal Commission, Goa, Panji in the case of M/s Essen Computers Ltd. v. Tagore Gracias, Panaji, [1992] 2 CPR 556; judgment of Maharashtra State Consumer Disputes Redressal // 7 // Commission, Mumbai in the case of Maharashtra State Electricity Board v. Sureshchandra Pannalal Jain, [2003] CPJ 469; in the case of Maharashtra State Electricity Distribution Co. Ltd. (MSEB) & Anr. v. Harilal Jagannath Chitte, 2010 (3) CPR 53; judgment of Kerala High Court in case of N.S. Kumar, Proprietor v. Smt. Biney & Anr., AIR 2009 Kerala 89, judgment of M.P. High Court in case of Bapupuri v. Madhya Pradesh Vidyut Vitran Co. Ltd. [2009] 2 JLJ 168/[2009] 2 MPHT 88; judgment of Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in the case of K. Ibrahimkutty v. Assistant Engineer, Anti Power Theft Squad, KSEB & Ors. 2011 (4) CPR 121; judgment of Punjab State Consumer Disputes Redressal Commission, Chandigarh in the case of Punjab State Electricity Board v. Jasbir Singh [2003] 3 CPJ 393, judgment of Gujarat State Consumer Disputes Redressal Commission, Ahmedabad in the case of Gujarat Electricity Board v. Dr. Rekhaben S. Jha, [2005] 1 CLT 641/[2005] 1 CPJ 403; judgment of State Consumer Disputes Redressal Commission, New Delhi in the case of Asia Refrigeration v. Shri Vinod Kumar, [1995] 2 CPJ 241, judgment of Madhya Pradesh High Court in case of Magadh Steel Industries Pvt. Ltd. Dewas v. Madhya Pradesh Electricity Board [1997 (2) M.P.L.J.; M.P. Electricity Board, Jabalpur and another v. Chhaganlal Rameshwarlal Agrawal, 1981 M.P.L.J. 417.
7. We have heard arguments advanced by both the parties at length and have also perused record of the District Forum minutely.
// 8 //
8. In the instant case, the complainant/respondent filed document i.e. letter dated 16.11.2011 sent to the complainant/respondent by the Assistant Engineer, C.G. State Power Distribution Company Ltd., Mahasamund City Zone, another document is photocopy of Chhattisgarh State Electricity Supply Code (Effective from 01st Oct. 2007), copy of electricity bill No.78 in respect of service No.071790, photocopy of tariff schedule, and copy of Vigilance Report. Schedule. Photocopies of other letters sent by the complainant/respondents have also been filed by the complainant/respondent in support of his case.
9. In letter dated 16.11.2011 sent to the complainant/respondent by the Assistant Engineer, C.G. State Power Distribution Company Ltd, Mahasamund City Zone, it is mentioned that " fo|qr vf/kfu;e dh /kkjk 135 lsD'ku 2 ds varxZr fo|qr pksjh izdj.k esa ,d o"kZ dh vof/k dh x.kuk djds fu;ekuqlkj jkf'k fu/kkZfjr dh x;h gSA mDr fu/kkZj.k NRrhlx<+ LVsV lIykbZ dksM fnukad 01-10-2007 ls izHkko'khy dafMdk dzekad 11-22 ds vuqlkj fu/kkZfjr fd;k x;kA "
10. In paragraph No.6 of the complaint, the complainant/respondent pleaded that ";g fd fnukad 29-10-2011 djs vkosnd }kjk lgk;d ;a=h ls lEidZ dj lwpuk fnukad 24-10-2011 ds laca/k esa ekSf[kd ppkZ djus ij lgk;d ;a=h }kjk fnukad 22-10-2011 dks vkosnd ds vkokl x``g dk // 9 // fdlh lrdZrk vf/kdkjh }kjk fujh{k.k djus ,oa tkap djus rFkk mDr tkap vf/kdkjh }kjk izLrqr izfrosnu ds vk/kkj ij vLFkk;h jkf'k fu/kkZj.k dj lwpuk fnukad 24-10-2011 izsf"kr djus dh tkudkjh nh xbZA"
11. The appellants/OPs filed preliminary objection before the District Forum and they specifically pleaded that Vigilance team of the appellants/OPs visited the premises of the complainant/respondent and found that the complainant/respondent was indulged in theft of the electricity unauthorizedly, therefore, the case of the complainant does not come within the jurisdiction of the Consumer Forum.
12. We have perused the preliminary objection raised by the OPs/appellants and also letter dated 16.11.2011 and Vigilance Report dated 22.10.2011, prepared by the Vigilance team. In para 11 of the said report dated 22.10.2011 it is mentioned thus :-
"11- fo'ks"k Vhi%& miHkksDrk }kjk ehVj ds iwoZ lfoZl ok;j esa vfrfjDr :i ls dkys jax dk ih oh lh rkj ,Yeqfu;e dUMDVj tksM+dj ehVj ck;ikl dj vukf/kd``r fo|qr dk mi;ksx dj 9000 okaV dk midj.k ?kjsyw mi;ksx gsrq pyk;k tk jgk gSA ehVj lfdZV ,oa ck;ikl lfdZV dks ;k esu fLop ds ek/;e ls fu;af=r fd;k tk jgk gSA lfoZl ok;j Nr ij dkVk x;k gSA iksy ls ykbu rRdky dkVk tkosA"
// 10 //
13. We may note that in the instant case on the basis of Vigilance Report, bill was issued to the complainant/respondent for Rs.2,71,000/- and according to the complainant/respondent, he deposited the said amount with the appellants/OPs under protest.
14. From bare perusal of the Vigilance Report dated 22.10.2011 it appears that the electric connection was in the name of the complainant/respondent. In para 11 of the said report dated 22.10.2011 it is mentioned thus :-
"11- fo'ks"k Vhi%& miHkksDrk }kjk ehVj ds iwoZ lfoZl ok;j esa vfrfjDr :i ls dkys jax dk ih oh lh rkj ,Yeqfu;e dUMDVj tksM+dj ehVj ck;ikl dj vukf/kd``r fo|qr dk mi;ksx dj 9000 okaV dk midj.k ?kjsyw mi;ksx gsrq pyk;k tk jgk gSA ehVj lfdZV ,oa ck;ikl lfdZV dks ;k esu fLop ds ek/;e ls fu;af=r fd;k tk jgk gSA lfoZl ok;j Nr ij dkVk x;k gSA iksy ls ykbu rRdky dkVk tkosA"
15. Though, in the instant case, the appellants/OPs have not lodged any case of theft of electricity against the respondent/complainant, but from the bare perusal of Vigilance Report, prepared by the Vigilance Team of the appellants/OPs, it is apparent that respondent/complainant was unauthorizedly using 9000 watt as against sanctioned load i.e. 490 watt. On the basis of // 11 // Vigilance Report, the bill of Rs.2,71,000/- was issued by the appellants/OPs to the complainant/respondent.
16. In U.P. Power Corporation Ltd. & Ors. Vs. Anis Ahmed, (Supra), Hon'ble Supreme Court observed thus :-
"45. The National Commission though held that the intention of the Parliament is not to bar the jurisdiction of the Consumer Forum under the Consumer Protection Act and have saved the provisions of the Consumer Protection Act, failed to notice that by virtue of Section 3 of the Consumer Protection Act, 1986 or Sections 173, 174 and 175 of the Electricity Act, 2003, the Consumer Forum cannot derive power to adjudicate a dispute in relation to assessment made under Section 126 or offences under Sections 135 to 140 of the Electricity Act, as the acts of indulging ""unauthorized use of electricity" as defined under Section 126 or committing offence under Section 135 to 140 do not fall within the meaning of "complaint" as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.
46. The acts of indulgence in "unauthorized use of electricity" by a person, as defined in clause (b) of the Explanation below Section 126 of the Electricity Act, 2003 neither has any relationship with unfair trade practice" or "restrictive trade practice" or "deficiency in service" nor does it amounts to hazardous service by the licensee. Such act of "unauthorized use of electricity" has nothing to do with charging price in excess of the price. Therefore, acts of person in indulging in 'unauthorized use of electricity', do not fall within the meaning of "complaint" as we have notice above and therefore, the "complaint"
against assessment under Section 126 is not maintainable before the Consumer Forum. The Commission has already noticed that the offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted under Section 153 of the Electricity Act, 2003. In that view of the matter also the complaint against any action taken under Sections 135 to 140 of the Electricity Act, is not maintainable before the Consumer Forum."
17. Looking to the, averment of complaint and Vigilance Reported dated 22.10.2011, it appears that the employees of the appellants/OPs // 12 // assessed the electricity bill under Section 126 of the Electricity Act, 2003 and sent bill of Rs.2,71,000/- to the complainant/respondent. It is also mentioned that the complainant/respondent made representation against the assessment made by the appellants/OPs under Section 126 of the Electricity Act, 2003. In the Vigilance Report, it is also mentioned that the complainant/respondent was indulged in using electricity unauthorizedly.
18. In view of the order passed by Hon'ble Supreme Court in case of U.P. Power Corporation Ltd. & Ors. Vs. Anis Ahmed (Supra), the complaint filed by the complainant/respondent in the present case before the District Forum under the Consumer Protection Act, 1986 is not maintainable. Accordingly, without going into merits of the appeal, we allow the appeal filed by the appellants/OPs and dismiss the consumer complaint with liberty to the respondent/complainant to seek appropriate remedy available to him before other appropriate Forum. No order as to cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/01/2014 /01/2014