State Consumer Disputes Redressal Commission
Uhbvnl vs Jaswant Rai Sethi on 6 June, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.537 of 2008 Date of Institution: 19.02.2008 Date of Decision: 06.06.2011 S.D.O. Operation, Sub Urban Sub Division, UHBVN Ltd. Gohana, District Sonepat (Haryana) Appellant (OP) Versus Jaswant Rai Sethi son of Shri Lal Chand Sethi, Resident of House No.170-L, Model Town, Panipat, District Panipat. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Ravi Kant, Advocate on behalf of Sh. I.P.S. Sawhney, Law Officer for appellant. Respondent in person. O R D E R
Justice R.S. Madan, President:
Challenge in this appeal is to the order dated 23.11.2007 passed in complaint No.242/2006 whereby the District Consumer Forum, Sonepat set aside the demand of Rs.16,474/- from the respondent (complainant) for re-connection of his tubewell connection and issued direction to the opposite party to restore tubewell electricity connection to the complainant.
The brief facts of the present case as can be gathered from the record are that tubewell connection of the complainant which was supplied from Sultan Transformer, was disconnected on 28.3.1995 due to non-payment of electricity consumption bill of Rs.9,375/-. The complainant applied for restoration of his connection upon which the opposite party issued reconnection order No.550 dated 5.5.2006 as per Sales Circular No.U-75/2005 vide which he was asked to deposit Rs.16,474/- as 50% of the cost of HT/LT lines required to be erected. Instead of depositing the aforesaid amount of Rs.16,474/-, the complainant invoked the jurisdiction of the District Forum by filing the instant complaint with the plea that he was earlier provided tubewell electricity connection from Sultan Transformer and therefore where the HT/LT lines were already erected and therefore the demand made by the opposite party from him was not legal and thus sought direction to the opposite party to release his tubewell connection from Sultan Transformer without charging the impugned amount of Rs.16,.474/-.
The opposite party while contesting the complaint justified the impugned demand in view of the facts stated above and prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and evidence brought on record, the District Forum accepted the complaint and issued direction to the opposite party as noticed in the opening para of this order.
Aggrieved against the order of the District Forum, the opposite party has come up in appeal.
Heard.
There is delay of 51 days in filing of the present appeal the condonation of which has been sought by the appellant by filing an application under Section 5 of the Limitation Act which is supported with an affidavit of Shri K.L. Manocha, S.D.O. (Operation). The ground taken in the application on behalf of the appellant-opposite party is that due to departmental process the delay has occurred, which may be condoned in the interest of justice and under the circumstances of the case.
It is well settled law that the delay cannot be condoned on the ground of equity and generosity, but at the same time it has to be kept in mind that in case of any legal infirmity is committed by the District Consumer Forum while passing the impugned order which is apparent on record, the same cannot be allowed to continue as it would amount to no order in the eyes of law. Reference is made to case law cited as State of Nagaland Vs. Lipok A.O. and others, 2005(3) SCC 752 wherein the Honble Supreme Court has observed as under:-
11.What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co.
Ltd. Vs. Shanti Misra (1975)(2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression sufficient cause should receive a liberal construction. In Brij Inder Singh Vs. Kanshi Ram (ILR) (1918) 45 Cal. 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC 575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
The facts of the instant case are fully attracted to State of Nagaland Vs. Lipok A.O. and others case (Supra). The facts and circumstances of the instant case reflects the error committed by the District Forum in issuing direction to the opposite party to releasing electricity connection without charging the impugned amount of Rs.16,.474/-. We think it a fit case to condone the delay. Hence, the delay of 51 days in filing of the present appeal is condoned.
The grievance of the complainant is that the opposite party is bound to release him electricity connection to his tubewell from Sultan Transformer without charging any extra amount in respect of HT/LT line i.e. the transformer from where he was already provided connection which was disconnected in the year 1995.
The question for consideration before us is whether the release of electricity connection to the complainant after a period of more than eleven years will be termed as a new connection or it will be restoration of the old connection.
This question has already been decided by this Commission in First Appeal No.321 of 2007 titled as S.D.O., OP City Sub Division, DHBVNL, Sirsa versus Rajinder Kumar s/o Sh. Hakam Chand, R/o H.No.14-B, Ram colony, Barnala Road, Sirsa decided on 17.03.2011. In the aforesaid judgment it has been held by this Commission that if the complainant applies for restoration of his electricity connection after three months, when it is permanently disconnected, then the applicant shall be treated as a fresh applicant and he/she has to fulfill the certain requirements for getting the connection. The relevant part of the judgment in above noted appeal is reproduced as under:-
While dealing the controversy involved on merits of the case, on behalf of the appellant-opposite party it is contended that the complainant has not disclosed true and material facts in his complaint and by misleading the District Forum sought direction to the opposite party against the statutory provision prescribed by the Nigam for restoration of the electricity connection. In support of his arguments, learned Law Officer referred to the instruction issued by the opposite party (Nigam) vide letter bearing Memo No.CA/RA/02/C-1/683 dated 04.02.2002 and Sales Circular No.D-15/2004 the relevant part of which is reproduced as under:-
Memo No.CA/RA/02/C-1/683 dated 04.02.2002 The issue raised by Xen (OP) Division, Sohna vide above referred memo has already been dealt with in Sales Circular No.48/83 and 3/84. Further the code of practice for payment of Electricity bills by the consumers and procedure for disconnecting consumers for non-payment has been approved by the HERC on 02.03.2000. Clause 5.2 of the above code of practice clearly specified that after permanent disconnection, if the consumer wishes to revive the connection then it would be treated as a fresh application for connection which would be entertained only after all outstanding dues have been cleared. Thus, this clause make it clear that after PDCO, any revival of connection is to be considered as a fresh application and all charges applicable at the time of new application would become chargeable Sales Circular No.15/2004 contains following instructions:-
The Nigam has now decided that in case of such applicants, if a prospective consumer approaches the Nigam for reconnection within a period of 3 months of disconnection after payment of defaulting amount it will be treated as a case of RCO and not a new applicant. Such consumers shall be required to deposit MMC of the intervening period cost of energy meter. ACD at prevailing rate and also the RCO fees as per existing instructions.
We find force in the contention raised by the learned Law Officer. It is not the case of the complainant that he had applied within three months for restoration of his connection from the date it was permanently disconnected by the Nigam due to non-payment of consumption bill. Therefore, the complainant is liable to pay the restoration charges for the above said connection while treating it as a new connection. The District Consumer has failed to appreciate the true facts of the case which are supported with statutory provision of the Nigam in respect restoration of electricity connection which was permanently disconnected years back i.e. 14-15 years ago and as such the impugned order passed by the District forum is not sustainable in the eyes of law.
As a sequel to our aforesaid discussion, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
In view our earlier observation in Rajinder Kumars case (Supra), the complainant is a new applicant because has applied for taking connection of his tubewell after a period of more than eleven years. Since it will be a new connection to the complainant, therefore, the Nigam has to release the same to the complainant as per the availability of appropriate electric energy on the line for which the complainant is under an obligation to pay the requisite amount i.e. line charges etc. The plea of the complainant that earlier he was provided connection from Sultan Transformer, is hardly of any significance. More so, in view of the above position, after disconnection of his electricity supply in the year 1995 due to non-payment of bill, and before the date of releasing him a new connection, the complainant cannot be termed as a Consumer unless the connection is released to him. Merely by moving an application to the Nigam alongwith deposits of security amount, the complainant does not become a Consumer.
Thus, on this ground as well, the complaint of the complainant is not maintainable. All these aspects have not been taken into consideration by the District Forum while deciding the complaint and as such the impugned order passed by the District Forum cannot be allowed to sustain.
For the reasons recorded above, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.8237/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 06.06.2011 President B.M. Bedi Judicial Member