State Consumer Disputes Redressal Commission
North Delhi Power Ltd. vs Gulshan Sethi on 12 December, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 12-12-2006 Appeal No. A-1219/2002 (Arising from the order dated 24-09-2002 passed by District Forum(North West), Shalimar Bagh, Delhi, in Complaint Case No.10/2002) North Delhi Power Co. Ltd. Appellant Through its Chief Executive Officer, Through Nehru Place, Shakti Bhawan, Mr. Rajeev Lochan, New Delhi. Executive Legal. Versus Shri Gulshan Sethi Respondent F-22/42, Sec. 3, Rohini Through Delhi-110085. Mr. S.B. Pandey, Advocate. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Vide impugned order dated 24-09-2002 the electricity bill raised on the allegation of fraudulent abstraction of energy i.e. F.A.E. as contemplated by the old Electricity Act 1910/1948 that has now been substituted by Section 135 of the new Electricity Act of 2003 under the title Theft of Electricity, has been quashed and the appellant has been directed to refund the deposited amount with 9% interest from the date of deposit till the date of refund.
However, the appellant was given liberty to raise bill on the basis of connected load according to rules and after following the prescribed procedure.
2. Feeling aggrieved the appellant has through this appeal challenged the order firstly on the ground that dispute involving allegation of FAE is not a consumer dispute and as such Consumer Forum has no jurisdiction to adjudicate such a dispute and secondly that the District Forum has erred in not accepting the inspection report showing that connected load was more than the sanctioned load and both the half seals of the meter were found tampered with.
3. At the outset the preliminary objection whether Consumer Forum created under the Consumer Protection Act, 1986 has the jurisdiction to adjudicate the dispute arising under the Electricity Act, 2003 involving the allegation of theft of electricity or dishonest abstraction of energy as contemplated by Section 135 of the Electricity Act, 2003 needs to be dealt with.
4. Learned Counsel for the appellant has referred to an order dated 08-11-2006 passed by the Delhi High Court in CM(M) Writ Petition No. 819 that in view of the order dated 16-12-2005 passed by single Judge of Delhi high Court in Delhi Vidyut Board Vs. Devendra Singh 130 (2006) DLT 156 the Consumer Forum/State Commission/National Commission do not have jurisdiction in respect of disputes relating to theft of electricity or dishonest abstraction of energy till legal proposition propounded in Devinder Singhs case is good law. Judgment of the Delhi High Court in Devender Singhs case is very brief and as under:-
3. It is trite that power of the District Forum, State Commission and National Commission in exercise of pecuniary jurisdiction (excluding appellate jurisdiction) would be in respect of complaints. Sec. 2(c) of the Act defines the complaints as under:-
(c) complaint means any allegation in writing made by the complainant that
(i) an unfair trade practice or a restrictive trade practice has been adopted;
(ii) the goods brought by him or agreed to be brought by him suffer from one or more defects;
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;
(iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods;
(v) goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods.
-with a view to obtaining any relief provided by or under this Act.
(4) Needless to state that issue of theft/dishonest abstraction of electrical energy does not fall in any of the sub clauses of Sub Section (c) of Sec. 2 of the Consumer Protection Act, 1986.
(5) I need not elaborate on the issue. For the reason the State Commission, Delhi, vide order dated 06-10-2003 disposing of a batch of appeals; led appeal being No. 116/2003, New Delhi Power Limited V/s S.B. Roy, has held that the dispute relating to theft/dishonest abstraction of electrical energy is not a consumer dispute and no complaint lies under the Act before any Forum created under the Act. Additionally, the National Consumer Disputes Redressal Commission.
5. The decision of the Single Judge of the Delhi High Court in DVB V/s Devinder Singh was rendered on 16-12-2005. Recent decision of the Supreme Court of India in Haryana State Electricity Board v. Mam Chand, II 2006 CLT 14 (SC) has been brought to our notice, where identical question before the Supreme Court came up for consideration.
6. By way of introduction, the Supreme Court referred to the following observations made by it, in Skypak Couriers Ltd v. Tata Chemicals Ltd. IV (2000) SLT 494, as to the scope and object of the Consumer Protection Act, 1986:-
This law has been enacted for the welfare of consumers and to protect them from their exploitation for which the said 1986 Act has made provisions for the establishment of Commissions for settlement of consumer disputes and matters connected therewith. The Commissions under the Act are quasi-judicial bodies to provide speedy and simple redressal to consumer disputes and for that purpose, they have been empowered to give relief of a specified nature and in an appropriate way to, award compensation.
7. In Para-4, the Supreme Court formulated the following question for determination:-
The key question which arises for determination in this civil appeal is whether disputed and complicated questions of fact and law arising under the provisions of the Electricity Act, 2003 concerning assessment of unauthorized use of electricity, tampering of meters, interfering with calibration metering of electric current resulting in theft of electricity under Sec. 126 and Sec. 135 of the Electricity Act, 2003, could be decided in a summary manner by the Consumer Forum or whether in such cases the complainant should be directed to approach the competent authority under the said Electricity Act, 2003..
8. At the outset, it may be mentioned that Sec. 135 of the Electricity Act 2003, relates to allegations of theft of electricity as well as DAE, through tampering of meters or other means, which reads as under:-
Sec.135. Theft of electricity- (1) Whoever dishonestly,-
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electronic current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electronic meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consumer or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
9. Facts of Haryana Electricity Board's case were almost identical and, in brief, are that the respondent-consumer was having small electric connection. On 24-11-1994, the Junior Engineer of the Nigam on inspection found that some seals of meter were broken. Notice was issued calling upon the respondent to deposit Rs. 10,050/- as electricity bill as per the rules of the Nigam. However, respondent did not raise any dispute whatsoever and rather submitted an application to deposit the said amount in two instalments and subsequently filed the complaint before District Forum, Ambala, under Section-12 of the Consumer Protection Act.
The District Forum allowed the complaint vide its order dated 07-07-1997 and directed the Nigam to refund the aforesaid amount with interest @18% per annum from the date of deposit and also Rs. 500/- by way of cost. Nigam preferred appeal before State Commission, Haryana. By a non-speaking order and without discussing the contentions of the Board, the State Commission dismissed the first appeal. Feeling aggrieved the Nigam preferred Revision Petition before National Commission. The Revision Petition was dismissed, by the National Commission, again by a non-speaking order. Consequently the Nigam went to the Supreme Court by way of instant Civil Appeal.
10. On behalf of the Nigam following pleas were raised before the Supreme Court:-
(i) That the assessment of the duty for unauthorized use of electricity, tampering of meters, distribution of meters and calibration of electric current are matters of technical nature which cannot be decided by the Consumer Forum.
(ii) That under the Electricity Act, 2003 the jurisdiction of the Civil Court is excluded. In this connection, reliance was placed on Sec. 145 of the said 2003 Act under which the jurisdiction of the Civil Court to entertain suits in respect of matters falling under Sec. 126 is expressly barred. These are matters of assessment.
(iii) That the Electricity Act, 2003 is a complete Code by itself and therefore in matter of assessment of electricity bills, the Consumer Forum should have directed the respondent to move before the competent authority under the Electricity Act, 2003, read with rules framed thereunder either expressly or by incorporation.
11. It is contended by the learned Counsel for the respondent that since the question before the High Court was whether disputes relating to theft of electricity or DAE was a consumer dispute or not and, therefore, what was relevant was definition of consumer dispute provided by sub-clause (e) of sub-section (1) of Section 2 of the Consumer Protection Act, 1986 as question of issue relating to theft of electricity or dishonest abstraction of energy could not have formed part of definition of complaint as definition of complaint has to be confined to services hired or availed by a consumer. Further that since the supply of electric energy falls within the definition of service any dispute relating to such a service falls within the definition of consumer dispute.
12. Consumer dispute has been defined by Section 2 (1)(e) of the Consumer Protection Act as under:-
(e) Consumer dispute means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint.
13. In the aforesaid judgment, the Supreme Court, at first instance referred to the provisions of Sec. 2(c)(iv), 2(d), 2(g), 2(i), and 2(o) of the Consumer Protection Act, 1986 defining the words complaints, consumer, deficiency in service, goods and over and above services, and held that supply of electrical energy falls under Sub-Sec. (o) of the said Act and, therefore, comes within the jurisdiction of the Consumer Forum / Commissions created under the 1986 Act.
14. Further, it was in view of the aforesaid provisions that the Supreme Court extended the jurisdiction of the Consumer Forum/Commissions to the disputes arising under the Electricity Act, 2003, including the disputes relating to the allegations of theft of electricity/DAE as contemplated by Section 135 of the Electricity Act, 2003 and while allowing the Civil Appeal passed the following order:-
15. In our view, the contentions advanced on behalf of the Nigam require deeper consideration by the State Commission. None of the above points have been discussed by the State Commission in this case. Disputes of this nature are repeatedly arising before this Court. At this stage, we do not wish to express any opinion. In our opinion, for the foregoing reasons, the civil appeal filed by the Nigam deserves to be allowed and is hereby allowed.
16. We accordingly direct the State Commission to decide the matter on facts of this case in the light of the provisions of the Electricity Act, 2003 read with the rules framed thereunder.
15. Had it been the intention of the Supreme Court to oust the jurisdiction of the Consumer Forum / Commissions in respect of disputes arising under the Electricity Act, 2003, including the disputes relating to theft of electricity/DAE or assessment of bill issued under Sec. 126 of the Act, the Supreme Court would have accepted the contentions of the Board and allowed the appeal and set aside the order of the District Forum by holding that these disputes do not fall within the purview of the Consumer Protection Act, 1986 and, therefore, the jurisdiction of Consumer Forum/Commissions created under the Consumer Protection Act, 1986 does not extend to these disputes. So much so, the Supreme Court even went to the extent of not expressing its opinion on the questions of law raised by the counsel for the Board as referred above namely (i) that the assessment of duty or bills raised on the allegation of theft of electricity are matters of technical nature which cannot be decided by the Forum; (ii) that the jurisdiction of the Civil Court is excluded by Sec. 126 of the Electricity Act, 2003; (iii) that the Electricity Act, 2003 is a complete Code by itself and, therefore, the competent authority under the Electricity Act, 2003 alone can entertain such disputes.
16. Thus the Supreme Court even left the decision of these questions of law to be taken by the State Commission and did not deem it necessary to express any opinion on these questions.
17. We may add that none of the contentions of the counsel for the Board raised before the Supreme Court is tenable or has any substance. The first contention of the counsel was that the disputes as to the assessment of the duty, unauthorized use of electricity, tampering of meter, distribution of meter, calibration of electric current etc. relating to the provisions of Sec. 126 and 135 of the Electricity Act, 2003 are technical matters and cannot be decided in a summary manner. The Supreme Court has held in Unionof India v. Seppol Ralleyog & Ors III (1999) CPJ 10 (SC) that the Consumer Forum, State Commission and National Commission are headed by persons who are or have been District Judges, High Court Judges and Supreme Court Judges and have, therefore, wide and vast judicial experience in dealing with every and any kind of question and for such functionaries there is no complicated question which cannot be decided in a summary manner.
18. As regards the contention that under the Electricity Act, 2003, the jurisdiction of Civil Court is excluded, there is no force, as the Consumer Forum and for that purpose the Commissions are not Civil Courts nor the proceedings and pleadings before them are governed by the Code of Civil Procedure (CPC). These are Forums and Commissions before whom complaint under Sec. 12 of the Consumer Protection Act, 1986 can be filed by a layman without fulfilling the requirements of Rules and Orders governing the pleadings and suits to be filed under C.P.C. and it is only on the basis of the affidavits of the parties, the matters are decided.
19. Merely because these are quasi-judicial bodies and have consumer beneficial jurisdiction does not mean that these Forum and/or Commissions come within the definition of Civil Court or have the trappings of a Civil Court. These are forum of equity and have been created to provide speedy and simple redressal to consumer disputes and for that purpose have been empowered to give relief of a specified nature and in appropriate way to award compensation.
20. Again, the contention that the Electricity Act, 2003 is a complete code by itself holds water like a sieve, as there is no provision in the Electricity Act, 2003, which takes away the consumer beneficial jurisdiction of the Consumer Forum / State Commission or National Commission as the disputes arising under the Consumer Protection Act are concerned, these are independent disputes and additional remedy as propounded by Sec.3 of the Consumer Protection Act, 1986 and every allegation has to be decided on different criteria and standards of definition of deficiency in service as defined by Sec. 2(1)(g) of the Act which is as under :-
2(1)(g) deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
21. Thus, the crux of the matter is that under the Consumer Protection Act, 1986, the Consumer Forum, State Commission or National Commission have been given wide powers which the designated courts created under the Electricity Act, 2003 do not possess. These Forums and Commissions have prohibitory, mandatory, futuristic and compensatory jurisdiction.
According to Section 14 of the Act, they can prohibit any party from doing any act, they can direct any party to do a particular act, they can direct any party to remove the defect in a product or replace the defective product remove and rectify the deficiency in service and over and above they have the power to award compensation to a consumer on account of actual loss or mental injury or agony suffered by him due to negligence of the opposite party or due to sale of a defective product or goods etc.
22. Some time back the BSES in a case Appeal No.460/2005 titled as BSES Yamuna Power Ltd. Versus Smt. Darshana, decided on 02-02-2006, had contended before us that jurisdiction of District Forum and for that purpose State Commission and National Commission has been ousted by Section 154 (2) of Electricity Act from dealing with the offences arising out of allegations of Sections 135 to 139 of the Electricity Act. These offences mainly pertain to direct theft of electricity and dishonest abstraction of energy through tampering of meters. Section 25(v) of DERC Regulation under the Delhi Electricity Reforms Act, according to the counsel, casts obligation on the appellant-Company to raise the bills five times the ordinary bill in case of direct theft and theft by tampering of meters.
23. In order to appreciate the aforesaid contention in the proper perspective Section 154 of Electricity Act needs to be reproduced:-
S.154. Procedure and power of Special Court.-(1)
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under sections 135 to 139 shall be triable only by the Special Court within whose jurisdiction such offence has been committed.(2)
Where it appears to any court in the course of any inquiry or trial that an offence punishable under sections 135 to 139 in respect of any offence that the case is one which is triable by a Special Court constituted under the Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act.
24. Bare reading of Section 154 shows that the proceedings under these provisions pertain to trial of a person for the offence of theft or the offence punishable u/s 135-139 of the Electricity Act 2003. Special Court as envisaged u/s 154 means a court which has been specially designated for trial of the offences u/s 135-139 for particular area. The object of bringing section 154 on the Statute Book was to constitute a special court having specified territorial jurisdiction where offence u/s 135 to 139 has been committed.
Otherwise under Cr.P.C. any Court of Magistrate can try the offences of the nature as envisaged u/s 135 to 139 of Electricity Act irrespective of whether offence has taken place at a place which does not fall within its jurisdiction or not.
25. Secondly, Section 154 mainly deals with trial of offences under Sections 135 to 139 for the purpose of punishment and that is why non-obstente clause mentions as under:-
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under Sections 135 to 139 shall be triable only by the Special Court within whose jurisdiction such offence has been committed.
26. Section 154 provides that if any court in the course of inquiry or trial under Cr. P.C. finds that an offence punishable u/s 135 to 139 is made out that is triable by a special court constituted for the area in which such offence has been committed; it shall transfer such a case to the concerned special court. It means that any court which means a criminal court shall transfer the case into which it is either making inquiry u/s 202/203 of Cr. P.C. or holding trial, finds that the area in which offence u/s 135 to 139 was committed falls within the jurisdiction of Special Court created under Electricity Act, it shall transfer the said case to that court. Nothing more, nothing less.
27. Thus invocation of Section 154 by the Counsel for the appellant in respect of provisions of Consumer Protection Act, 1986 on the presumption that Consumer Fora created under this Act are also Court as envisaged by Section 154 of Electricity Act competent to hold inquiry or trial under Criminal Procedure Code for the offences punishable with sentence of fine or imprisonment or both arising out of Section 135 to 139 is highly misconceived, misdirected, irrelevant and does not touch upon on any of the remedies available under the Consumer Protection Act as these fora are not the Courts that have powers to make inquiry or hold trial under Cr. P.C.. Such courts are only criminal courts having powers to sentence the accused to imprisonment or fine or both. Here complainant is Electricity Company whereas under the Consumer Protection Act, 1986, complainant is the consumer. This difference itself distinguishes the proceedings before specially designated Court and the Consumer Forum.
28. Thus, from every possible aspect we may examine the proposition of law, i.e. whether the consumer beneficial jurisdiction of the Forums/State Commissions and National Commission is extended to the disputes arising under the Electricity Act, 2003, including the disputes involving theft of electricity/DAE and for that purpose any other kind of dispute arising under this Act or any other Act or law relating to above referred services, the jurisdiction of the Consumer Forum/Commissions comes into play and is extended to decide these disputes in a summary manner for giving relief of a specified nature and to even award compensation.
29. The word compensation in the context of the Consumer Protection Act, 1986 has wide connotation. It not only takes in its fold the loss suffered by the consumer due to the negligence of the Opposite Party or sale of defective goods but also loss for mental agony, harassment and emotional suffering and every kind of damage arising from the illegal act of service provider or the trader.
30. None of the aforesaid ingredients or elements empowering the Forum/State Commission or National Commission to do one or more of the things enumerated in Sec. 14 of the Consumer Protection Act, 2006 including the compensatory aspect form part of the Electricity Act, 2003 or for that purpose any other law made by the Parliament in respect of services of banking, financing, insurance, transport, processing, supply of electrical or other energy, lodging, boarding or both, housing, construction, entertainment, amusement or the purveying of news or other information etc. Thus Electricity Act, 2003 cannot be termed as a Code by itself.
31. Since as per Art. 141 of the Constitution of India, law laid down and decided by the Supreme Court is binding on all the Courts within the territory of India, we are of the view that the legal proposition propounded by the Single Judge of the Delhi High Court in Devinder Singhs case is no more tenable as the Supreme Court has extended the jurisdiction of Consumer Forum / Commissions in matters relating to disputes involving theft of electricity/DAE as in Haryana Electricity Boards case the dispute before the Consumer Forum and State Commission was the one relating to the allegation of theft of electricity or dishonest abstraction of energy as contemplated by Sections 135 and 126 of the Electricity Act, 2003.
32. The aforesaid discussion and ratio of judgment of Supreme Court in Haryana Electricity Board lead us to the following conclusions:-
i) That the Consumer Forum / State Commission / National Commission created under the Act of 1986 are quasi judicial bodies to provide speedy and simple redressal to the consumer and for that purpose they have been empowered to grant relief of a specified nature and in an appropriate way to award compensation.
ii) Since the supply of electrical energy falls within the definition of service as defined by Sec. 2(o) of the Act of 1986, any dispute arising under the provisions of the Electricity Act, 2003 including the disputes relating to the provisions of Sec. 135 of the said Act, i.e. theft of electricity / DAE is a consumer dispute as defined by Sec. 2(1)(e) of the Act of 1986.
iii) The Consumer Forum/Commissions have the jurisdiction not only to decide every kind of dispute on fact under the Electricity Act, 2003 but also have the jurisdiction to decide any question of law arising from the provisions of the Electricity Act, 2003 including the dispute under Section 135 of the Electricity Act, 2003 relating to allegations of theft of electricity and dishonest abstraction of energy (DAE). Had it not been so, the Supreme Court would not have sent back the case to the Commission for deciding the matter on facts in the light of the provisions of the Electricity Act read with rules framed there under.
iv) For that purpose the Consumer Forum/Commissions have also the jurisdiction to decide any kind of dispute relating to any law pertaining to the services as defined under Sec. 2(1)(o) of the Act, for instance, banking, financing, insurance, transport, processing, supply of electrical or other energy, lodging, boarding or both, housing, construction, entertainment, amusement or the purveying of news or other information etc.
v) Every registered consumer of energy is a consumer as defined u/s 2(1) (d) (ii) of the Consumer Protection Act, 1986 and therefore has a right to challenge the allegations of theft of energy by fraudulent or dishonest abstraction, consumption or use of energy notoriously known as FAE or DAE or by artificial mean or means not authorized by the licensee or allegation of interference with meters or licensees work or improper use or consumption of energy as prescribed by Section-135 of the Electricity Act, 2003 before the Consumer Fora as denial of or disputing such allegations is itself a consumer dispute within the meaning of Section 2 (1) (c) of the Consumer Protection Act 1986.
vi) No consumer can be condemned without being afforded an opportunity of being heard as this right emanates from the principles of natural justice. Doors of Consumer Fora cannot be shut to the registered consumers merely on the basis of allegations nor can a consumer be left at the mercy or whim or arbitrariness of a provider of service such as of electrical energy.
vii) Consumer Forum may dismiss the complaint of a consumer against whom there are allegations of theft of energy through dishonest abstraction, consumption or use by way of artificial mean or means not authorized by the licensee on prima facie view of the matter on the basis of the material produced and reply thereto without subjecting the proceedings to undergo any further process.
33. Now we advert to the merits of the case.
The relevant facts for our purpose, in brief, are that the respondent who was a registered consumer of electricity connection No. 1307238 and 1307246 installed at premises F-2/42, Sector-3, Rohini, Delhi with a sanctioned load of 1 KW each. The respondent has been regularly paying the bills and has never committed any default. An inspection was carried out on 03-07-2000 by the staff of the appellant DVB and on the basis of that inspection electricity bill to the tune of Rs. 30,265.05 and Rs. 23,051.70 was raised on the basis of FAE i.e. fraudulent abstraction of energy that the seals were found tampered and the connected load was found 9.815 KW and 7.828 KW. The due date for payment was 10-07-2000and the respondent was forced to deposit the bill in two equal instalments due to threat of disconnection and lodging of FIR.
According to the respondent he has been consuming the electricity within sanctioned load of 1 KW each and has been regularly paying the bill. Hence he filed the instant complaint for refund of the deposited amount.
34. As against this the version of the appellant before the District Forum was that in the inspection report both half seals of both the meters were found tampered, connected load was found more than the sanctioned load and show cause notice was issued to the respondent on 17-01-2001 for personal hearing on 09-02-2001 and after considering the consumption pattern which was found very low, FAE bills were finalized according to tariff and according to rules and thus there is no deficiency in service on the part of the appellant.
35. The District Forum returned the finding that FAE bills have been raised without following the prescribed procedure and without giving an opportunity of personal hearing to the consumer. No mandatory show cause notice was given before raising the bills and the consumer was compelled to deposit the bill to avoid disconnection of the electricity. The inspection was conducted on 03-07-2000 and the FAE bills were raised on the same day without providing an opportunity of personal hearing to the consumer. The last date for payment was 10-07-2000 and the consumer was threatened, if the bills were not deposited, supply will be disconnected. It was after six months of the deposit of the bills that show cause notice was issued (it was issued on 17-01-2001) and date of personal hearing was fixed as 09-02-2001. Thus issue of show cause notice after the bills were not only raised but were deposited was hardly of any value. The same should have been issued before raising the FAE bills. Moreover, the consumption pattern should have also been considered before raising the bills. Since this has not been done in this case, it is apparent that the appellant has raised the FAE bills without following the prescribed procedure.
36. Regulations 25 and 26 of Delhi Electricity Regulation Commission lay down the procedure for booking a case of pilferage. These are as under:-
Regulation 25 : Pilferage of Energy Procedure for booking a case for pilferage of energy
(i) The licensee, suo moto or on receipt of reliable information regarding commitment of any offence of theft/tampering/dishonest abstraction of energy (DAE), shall promptly conduct inspection of consumers premises. The inspection team shall carry a written authority signed by designated officer of the licensee.
(ii) The inspecting team shall prepare a report giving details such as connected load, condition of seals, working of meter and mention any irregularity noticed (such as, artificial means adopted for dishonest abstraction of energy) as per format prescribed by the licensee.
(iii) The report shall clearly indicate whether conclusive evidence substantiating the fact that energy was being dishonestly abstracted was found or not. The details of such evidence should be recorded in the report and it should be clearly brought out whether the case is being booked for direct theft or DAE.
(iv) No case for DAE shall be booked only on account of one seal on the meter missing or tampered or breakage of glass window etc. unless corroborated by consumption pattern of consumer as per Regulation 26
(ii) given below and such other evidence as may be available..
(v) In case sufficient evidence is found to establish direct theft of energy, the licensee may lodge a report with the local police along with the material evidence including wires/cables, meter, service line etc. seized from the site, which shall be handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times the rates as per applicable tariff. The consumer shall be required to make the payment within 2 working days of its proper receipt.
(vi) In case of suspected DAE, the inspection team shall not remove the tampered meter but shall disconnect it from the supply and shall restore the supply through a new meter of appropriate rating. In such cases, the licensee shall check the connected load and consumers installation, affix a numbered Johnsons paper seal on the tampered meter and shall also record the particulars of the same in the report.
(vii) While the report must be signed by each member of the joint team and the notice, if any, must be signed by an authorized signatory of the licensee and all these must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of each must be pasted at a conspicuous place in/outside the premises. Simultaneously, the joint report, the assessment bill and the notice shall be sent to the consumer under Registered Post.
(viii) The consumer shall be served a 3 days show cause notice at the site as to why the case of DAE should not be booked against him/her. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
Regulation 26 :Personal hearing
(i) Within 4 working days from the date of submission of consumers reply, if made within prescribed period, the licensee shall arrange a personal hearing with the consumer.
(ii) Before the personal hearing, the officer of the licensee, before whom personal hearing has to be given, shall analyse the case after carefully considering all the documents, submissions by the consumer, facts on record and the consumption pattern, wherever available. The licensee shall also assess the energy consumption for past six months as per the Tariff Order. In case of suspected DAE, if consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption where meter is less than 10 years old and not less than 65% of the assessed consumption where meter is more than 10 years old, no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within 3 working days and connection shall be restored through original meter.
(iii) During the personal hearing the licensee shall give due consideration to the facts submitted by the consumer and pass, within 15 days, a speaking order as to whether the case of suspected theft/DAE is established or not. In case of the decision that the case of suspected theft/DAE is not established, no further proceedings shall be taken and connection shall be restored through original meter.
(iv) Where it is established that there is a case of DAE, the licensee may lodge a report with the local police along with the material evidence including wires/cables, meter, service line etc. seized from the site, which shall be handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times the rates as per applicable tariff. The consumer shall be required to make the payment within 2 working days of its proper receipt. The licensee may, taking into consideration the financial position and other conditions of the consumer, extend the last date of payment or approve the payment to be made in installments. The amount, the extended last date and/or time schedule of payment/installments should be clearly stated in the speaking order. A copy of the speaking order shall be handed over to the consumer under proper receipt on the same day.
37. Aforesaid reasons provided by the District Forum do not suffer from any infirmity nor does the impugned order call for any interference in view of flagrant non-compliance of the statutory provision of Regulations 25 and 26 of DERCR. More so, the appellant has already been granted liberty to raise bill on the basis of connected load according to rules and after following the prescribed procedure.
38. There is no merit in the appeal. The same is dismissed.
39. F.D.R./Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
40. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
41. Announced on the 12th December, 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj