State Consumer Disputes Redressal Commission
Hp State Electricity Board & Anr. vs Vishwas Sharma & Anr on 29 September, 2011
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. REVISION PETITION NO.10/2011. ORDERS RESERVED ON 26.9.2011 DATE OF DECISION: 29.9.2011. 1. H.P. State Electricity Board, Vidyut Bhawan, Shimla-4, HP through its Secretary. 2. The Assistant Engineer, H.P.State Electricity Board, Sanjauli, Sub Division Sanjauli, Shimla-6, HP. Petitioner. Versus 1. Sh. Vishwas Sharma son of Sh. P.R. Sharma, Prop. M/S Whistle Apparel, Shop No.2, Sheela Bhawan, Lihantoo Building, Near Bus Stand, Sanjauli, Shimla-6, H.P. 2. Smt. Susheela Lihantoo, wife of Sh. Prabhu Lal Lihantoo, resident of Sangam House, SAanjauli, Shimla-6, H.P. Respondents. ---------------------------------------------------------------------------------------------------------------------- Honble Mr. Chander Shekhar Sharma, Presiding Member.
Honble Mrs. Prem Chauhan, Member.
For the Petitioner: Mr. Bhagwan Chand, Advocate, For the respondents: Mr. Peeyush Verma, Advocate, for respondent No.1.
Mr. Rajesh Verma, Advocate, for respondent No.2.
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O R D E R:
Chander Shekhar Sharma, Presiding Member.
1.
This revision petition is directed against the order, dated 15.6.2011, passed by District Forum, Shimla, in an application for grant of interim direction in Complaint No.171/2011. It appears that this application has not been registered by the Fora below as it does not ;depict any M.A. No. whereby the Forum below had directed the petitioner to restore the electricity connection in the demise premises of the complainant where the complainant was alleged to be running a shop. Parties are hereinafter being referred to as per their status in the complaint.
2. Facts of the case as they emerge from the complaint are that the complainant is beneficiary of electricity connection provided in Shop No.2 of Sheela Bhawan, Lihantoo Building, near Bus Stand, Sanjau, Shimla, and is a consumer under the Consumer Protection Act, 1986 and opposite party No.3 is the landlord of the premises where the complainant is running his business of ready-made garments for the last 8 years under the name and style of M/S Whistle Apparel.
3. Further averments in the complaint are to the effect that the complainant is tenant in Shop No.2 in the said building and said shop is owned by opposite party No.3 and opposite parties Nos. 1 & 2 had provided electricity connection in the said shop bearing Account No.11114 DHOL 2000163 in the name of opposite party No.3 and the complainant has been making regular payment of electricity bills to the opposite parties Nos. 1 & 2 ever since he has been inducted as a tenant. It is also averred that for the last about 6 months, opposite party No.3 is making direct payment but the opposite party No.3 is charging the said amount from the complainant and he had also attached the copies of the bills and receipts and provisional licence issued by Municipal Corporation, Shimla with the complaint as Annexures C.1 to C.4.
4. Other averments in the complaint are to the effect that on 24.5.2011 when the complainant opened his shop, then he noticed to his utter shock, disbelief and surprise that the electricity line to his shop had been disconnected and when he made enquiries from opposite party No.3, then the said opposite party intimated him that electricity to his premises had been disconnected by opposite parties Nos. 1 & 2 and thereafter the complainant visited the office of opposite party No.2 on 24.5.2011 and then he was apprised that electricity had been disconnected at the instance of opposite party No.3. As per him, since he is making regular payment of the bills and there was not even a single default on his part, as such he had requested opposite party No.2 for restoration of the electricity connection but that was of no avail and this fact is clear that the said opposite parties were functioning at the instance of opposite party No.3 and as such action of the opposite parties in disconnecting the electricity is illegal and arbitrary which had been disconnected in pursuance of some false complaint having been instituted before the opposite parties Nos. 1 & 2 against the complainant and opposite parties Nos. 1 & 2 are duty bound to ensure regular and trouble free service once the consumer is making regular payment of the bills. Hence, deficiency of service had been alleged on the part of opposite parties Nos. 1 & 2 and as such present complaint under Section 12 of the Consumer Protection Act, 1986 was filed against the opposite parties wherein prayer had been made for directing the opposite parties jointly and severally to:-
(i) Restore the illegally disconnected electricity supply to the premises of the complainant in Shop No.2, Sheela Bhawan, Lihantoo Building, Near Bus Stand, Sanjauli, Shimla, bearing account No.11114DHOL2000163 forthwith, and to ensure regular and uninterrupted electricity supply in future.
(ii) Direct the Opposite Parties No.1 and 2 to grant the newly applied electricity connection to the complainant subject to filing indemnity bond with conditions as deemed ift and proper in the fact of the case by this Honble Court.
Damages to the tune of Rs.5,000/- have also been claimed for mental torture and harassment and litigation cost of Rs.15,000/- was also claimed.
5. Complainant also filed application for grant of interim directions before the Forum below to the effect that the opposite parties/non applicants be directed to restore the illegally disconnected electricity supply to the premises of the complainant in Shop No.2, Sheela Bhawan, Lihantoo Building, Near Bus Stand, Sanjauli, Shimla, bearing Account No.11114DHOL2000163 forthwith and to grant newly applied electricity connection to the complainant.
As per averments made in the application, the applicant/complainant had claimed that there is prima facie a case in favour of the complainant and balance of convenience is in his favour and no harm and prejudice will be caused to the non-applicants in case the disconnected electricity is restored to his premises by the opposite parties No.1 & 2 and it had also been alleged in the application that in case the electricity is not restored to his premises, then irreparable loss and injury which cannot be compensated in terms of money will be caused to him and will lead to multiplicity of litigation.
6. The aforesaid application wherein the impugned order, dated 15.6.2011, had been passed by the Forum below as already stated had not been given any number as M.A. by the Forum below and the petitioners in the present case are aggrieved by the said order whereby directions have been given to opposite parties No. 1 & 2 to restore the electricity connection in the said premises.
7. In the present revision petition, while hearing arguments of the parties on 25.8.2011, since the respective contentions of the parties were to the effect that no electricity connection had been provided to the shop of the complainant Shri Vishwas Sharma who is respondent No.1 in the present petition and learned Counsel for respondent No.2 had also pleaded on these lines that no electricity had been provided for the ready-made garments shop in the name of M/S Whistle Apparel, Shop No.2, Sheela Bhawan, Lihantoo Building, and it was contended by the learned Counsel for respondent No.1 that electricity connection was disconnected with effect from 26.5.2011 and prior to that complainant was enjoying the electricity for the last 8 years and since this fact was denied by the petitioner as well as respondent No.2, as such Shri S.R. Sharma, Advocate, was appointed as a Local Commissioner to visit the spot and was directed to enquire and give his report to the effect whether any electricity connection/extension was ever provided before 26.5.2011 in the aforesaid premises are being used by Shri Vishwas Sharma for running ready-made garments shop. The Local Commissioner in pursuance of the aforesaid order of this Commission had submitted his report on 29.8.2011 which is at page Nos. 21 to 23 of the file of the present revision petition.
8. The Local Commissioner in his report in the concluding para had concluded as under:-
Under the facts and circumstances and statement of witnesses produced by both the parties, it is clear that there used to be electric light before 26.5.2011, although electric connection was not there, but extension of light is there before 26.5.2011 in the demised premises which is being used by Shri Vishwas Sharma for running his ready-made garments show.
He had also annexed photographs of the shop with his report and it was also observed by him that there is casement wiring in the entire premises and the said wiring comes from the floor below through the slab in which the owner lives and is connected to MCV Box which appears to be very old and seems to have been installed much before 26.5.2011. Statement of witnesses recorded by him had also been attached with the report by the Local Commissioner which are at page Nos.25 to 30 of the file of the present revision petition.
9. Objections to the report of the Local Commissioner were also filed on behalf of the Electricity Board wherein it had been stated that the Local Commissioner has not recorded the statement of Shri Hardeep Singh and Sh. Tek Chand Thakur in the presence of representative of the HPSEB and the Local Commissioner had failed to explain in his report that what was the source of extension of light in the demised premises.
10. Objections to the report of the Local Commissioner were also filed on behalf of respondent No.2, wherein it is alleged that only the statements of 4 persons, namely, Shri Ram Lal Moudgil, Shri Randhir Sharma, Himanshu Lihantu and Vishwas Sharma were recorded in their presence but the statements of Hardeep Singh and Tek Chand Thakur were not recorded in the presence of the parties and even no photographs were taken in the presence of the respondent and as such it is alleged that the Local Commissioner has not acted fairly and tried to help respondent No.1 which is apparent from the fact that statements of two witnesses, Tek Chand Thakur and Hardeep Singh were recorded behind their back and the report of the Local Commissioner is based on hypothesis and assumptions that MCB Box which is affixed in the shop is connected with the wire from floor below and since as a matter of fact there is no wire from the said shop which goes to the lower floor which is in occupation of the owner. Learned Counsel for respondent No.2 argued that the complainant is not their tenant and no electricity was provided to him by his client.
11. Reply was also filed on behalf of the complainant/respondent No.1 to the objections raised by the petitioners wherein it is clearly stated that the Local Commissioner has reported about the factual position existing on the spot and the objections raised by the petitioners as well as respondent No.2 are wrong.
Alongwith this reply, the complainant had filed copy of the notice, dated 18.12.2010 issued to Smt. Susheela Lihantu by the Assistant Executive Engineer, Sanjauli Electrical Sub Division, HPSEB for removal of unauthorized extension extending from A/C No.DBSR-2000091 to the upper storey of the building and also copy of the register of tax department of Municipal Corporation, Shimla, wherein complainant had been shown to be occupying a shop in the premises of Sheela Bhawan belonging to Sheela Devi and copies of the extract of A/C No.1951 of Whistle Apparel, Proprietor, Vishwas Sharma, which depicts that on different dates with effect from 12.5.2007 to 1.11.2008, different amounts were debited from his account in favour of /AEE Sub Division. However, in the present order we are not placing any reliance upon the report of the Local Commissioner.
12. In the present case, we have heard learned Counsel for the parties and have also gone through the record of the case minutely.
13. Mr. Bhagwan Chand, learned Counsel for the petitioners argued that the order of the Forum below is not legally sustainable since the Forum below had granted mandatory injunction against the petitioners in the present case which amounts to giving final relief in the complaint to the complainant as the petitioners were directed to restore the electricity connection in the demised premises and the Forum below cannot issue mandatory injunction in the shape of final order in the case as it is not legally warranted and he had also submitted that since as per report of AAE Electrical, Sanjauli, who had gone to the spot for giving effect to the order, had reported that the complainant is not a bonafide consumer of the HPSEB Ltd. and there existed no electricity connection in his name and as per him electricity to the said premises was never disconnected by the officials of the Electricity Board, hence re-connection to the premises does not arise.
14. He also argued that the complainant, Vishwas Sharma, does not fall within the definition of a consumer and even he cannot be termed as a beneficiary and if the re-connection of the electricity is given to respondent No.1, then it may amount to legalise an illegal act which will amount to violation of Section 126 of the Indian Electricity Act, 2003. He had also placed reliance upon number of judgments, viz. judgment of our High Court given in the case of Sh. Balak Ram Dhirta Versus State of H.P. and others, reported in Latest Himachal Law Judgment 2011 HP 670, wherein it was held that the Court should not pass interim order which amounts to final relief and the Court should not pass interim order without considering the issue of public interest, balance of convenience and whether the party concerned could be compensated in terms of money etc.
15. Reliance was also placed upon the order of West Bengal State Consumer Disputes Redressal Commission, Kolkata in the case of WBSEDCL Versus Arabinda Ghosal, IV (2010) CPJ 164, wherein it was observed that no mandatory order can be passed and in this case as per him the State Commission had relied upon the judgment of the Honble National Commission given in the case of A.K. Bose Versus SBI and Another, S.C. Case No.FA/334/2009, wherein it was held that before issuing notice to the opposite parties and before taking pleadings of both the parties on record, the Forum cannot form an opinion as to nature and scope of enquiry. He had also placed reliance upon the judgment of Haryana State Consumer Disputes Redressal Commission, Chandigarh, titled SDO(OP) HVPN Versus Pardeep Kumar Khullar, IV (2005) CPJ 302 and decision of the Union Territory Consumer Disputes Redressal Commission, Chandigarh given in the case of Asha Khurana Versus New India Assurance Company Limited, IV (2005) CPJ 304 and judgment of the Honble National Commission given in the case of Ashok Kumar Versus SDO, Haryana Vidyut Parasaran Nigam Ltd. & Anr., IV (2003) CPJ 57 (NC) and another decision of the National Commission in the case of Hari Prasad Versus MU.H.B.V.N.L. Panchkula & Ors., reported in I (2010) CPJ 104 (NC) and judgment of West Bengal State Consumer Disputes Redressal Commission, Kolkata in the case of Birendra Nath Koyal Versus W.B.S.E.B. & Ors., IV (2003) CPJ 454.
There is no dispute about the legal proposition laid down in the decisions relied upon by the learned Counsel for the petitioners viz judgments in the case of Sh. Balak Ram Dhirta Versus State of H.P. and others, (supra) rendered by the Honble High Court of Himachal Pradesh and decision of the West Bengal State commission in the case of WBSEDCL Versus Arabinda Shosal, (supra) and other judgments referred to hereinabove the judgments are not applicable in the present case in view of the facts and circumstances of the case. Learned Counsel for the petitioners has filed written arguments which are on the similar lines as has been argued by him wherein all these decisions have been discussed in detail.
16. Mr. Peeyush Verma, learned Counsel for respondent No.1 had supported the order of the Forum below and as per him there is no infirmity in the order of the Forum below and even mandatory injunction can also be granted by the Forum below if the Forum is satisfied that there is prima facie case and balance of convenience is in favour of the complainant and he had also placed reliance upon the Notice No.ESS/CS-2/2010-1238, dated 18.12.2010 issued to Smt. Susheela Lihantu by the Assistant Executive Engineer, HPSEB Electrical Sub Division, Sanjauli from where it is clearly evident that the electricity connection was there in the upper storey of the building of Smt. Susheela Lihantu and notice was given by the Assistant Executive Engineer to her and as per him the complainant thus falls within the ambit of definition of consumer under Section 2 (1)(d) of the Consumer Protection Act, 1986 being a beneficiary and this fact is also evident from the statement of account annexed by him with the reply to the objections to the report of the Local Commissioner that the amount of electricity bills were being paid by him from his account and amount was being debited from his account in favour of AE/AEE Sub Division (Electrical) and this fact is also evident from the electricity bills annexed with the complaint.
17. He has also drawn our attention to Annexure P.3 which is the application given for giving electricity connection by Smt. Susheela Lihantu wherein she had clearly described the premises with their Khasra Nos.1216, 1217, 1218 and 4 rooms have been mentioned in Col. No.4 of this application form and location is also given as Local Bus Stand, Sanjauli and as such as per him the electricity connection was also provided to the whole building which consists of 4 rooms. He had also placed reliance upon various decisions, viz. decision of the Honble High Court of Delhi in the case of Mrs. Vijay Srivastava Versus M/s. Mirahul Enterprises and others, AIR 1988 Delhi 140, wherein it was held that in an application for temporary injunction, mandatory injunction can be granted on interlocutory application after notice to the defendant and after hearing the parties and the other judgment relied upon by him is the decision of the Honble Supreme Court in the case of Laxmikant V. Patel Versus Chetanbhat Shah and another, AIR 2002 Supreme Court 275, wherein it was held that the appellate Court in appeal would not ordinarily interfere with the exercise of discretion in the matter of grant of temporary injunction by the Courts. Reliance was also placed upon the judgment of Honble High Court of Gauhati in the case of Assam State Electricity Board and others Versus M/s. North Western Cachar Tea Co. Ltd., AIR 2000 Gauhati 176, wherein it was held that even mandatory injunction could be granted ex parte without notice to the other party if injunction is not granted, then it would cause grave injustice. There is no dispute about the legal proposition laid down in the judgments relied upon by Mr. Peeyush Verma and they are not applicable in the facts and circumstances of the case.
18. After hearing learned Counsel for the parties and going through the record of the case, we are of the considered view that the order of the Forum below is not legally sustainable since the mandatory injunction in the form of final relief had been given by the Forum below in the present case which is clearly evident from the impugned order as the direction was to the effect that opposite parties No.1 & 2 are directed to restore the electricity connection in the demised premises which was a final relief sought by the complainant in the complaint. This practice had been deprecated by the judgment of our own High Court given in case of Balak Ram Dhirta Versus State of H.P. and others, (supra) wherein it was held that Courts should not pass interim orders which amounts to a final relief and the Honble Supreme Court in the case of Bharat Sanchar Nigam Ltd. Versus Prem Chand Premi, reported in (2005) 13 SCC 505 has also deprecated this practice. Moreover even the learned Counsel for the petitioners had argued that since no disconnection of electricity had been made from the demised premises by the petitioners which fact is evident from the report of the AAE Elect.Section, Sanjauli, as such question of reconnection does not arise and it is very difficult to implement the impugned order passed by the Forum below.
19. Hence, in this case we are not going into the other respective contentions of the parties raised before us and since material illegality/irregularity had been done by the Forum below in passing the mandatory injunction by way of giving final relief to the parties without hearing them, as such we are of the considered view that order of the Forum below is not legally sustainable and it deserves to be set aside and it is also not in conformity with the provisions of Section 14 of the Consumer Protection Act, 1986. Even from the perusal of the order it is evident that the order dated 15.6.2011 which is passed by the Forum below does not reveal any miscellaneous application number given to this application by the Forum below and even from the perusal of the record it is evident that no number of any miscellaneous application was given to the application for grant of interim injunction which application is at page 13 of the complaint file. In this case it appears from the record that opposite parties No.1 & 2 who are petitioners in the present case had not filed any reply to the application for grant of interim injunction and the notices were issued to the opposite parties for 24.8.2011 and in the meanwhile this Commission had stayed the operation of the impugned order vide order dated 29.7.2011. Our view is also supported by the judgment of the Honble Supreme Court given in the case of Maharshi Dayanand University Versus Surjeet Kaur, 2010 CTJ 985 (Supreme Court) (CP) wherein it was held that neither the Court nor any Tribunal has the competence to issue a direction contrary to law nor it can direct an authority to act in contravention of statutory provisions.
In view of the aforesaid discussion and facts and circumstances of the case, present revision petition is allowed and the order, dated 15.6. 2011 passed by District Forum below is set aside and parties are directed to file their replies before the District Forum below positively by 31st October, 2011 and to appear before the Forum below on 12.10.2011 and the Forum below will decide the application for grant of interim directions after taking into consideration replies submitted by the parties and hearing them afresh without being influenced by the observations made in the impugned order by the Forum below and by this Commission in the present order and to decide this application expeditiously. No order as to costs.
Before parting with this order, we are constrained to observe that notice No.1238, dated 18.12.2007 was served upon Smt. Susheela Lihantu by the AAE Electrical Sec. HPSEB, Sanjauli for removal of unauthorized extension extending from A.C. No.DBDR-24091 to the upper storey of the building and clear cut time of 15 days was given to her to remove the unauthorized extension but from the fact of this case it is evident that the electricity was being enjoyed by Shri Vishwas Sharma in his shop uptill 26.5.2011 and no serious action in the matter was taken by the authorities of Electricity Board against Smt. Susheela Lihantu and the matter was taken in a casual manner.
Copy of this order be sent to the parties free of cost as per rules.
Shimla, Announced on September 29, 2011.
( Chander Shekhar Sharma ) Presiding Member ( Prem Chauhan ) Member