State Consumer Disputes Redressal Commission
West Bengal State Electricity ... vs Pradip Kumar Chowdhury on 28 November, 2008
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO-RC/08/61 DATE OF FILING : 29.8.2008 DATE OF FINAL ORDER:28.11.08 APPELLANTS/COMPLAINANTS : 1.
West Bengal State Electricity Distribution , Company Limited, through the Station Manager, Suri ( West ) Gr. Electric Supply, Birbhum.
RESPONDENTS/O.P.S : :
1.
Pradip Kumar Chowdhury , S/O Lt. Bhupendra Ch. Chowdhury, C/o Sarada Hotel and Restaurant, New Dangalpara, PO& PS- Suri, Dist- Birbhum.
BEFORE : HONBLE JUSTICE :
MEMBER : Shri. A.K. Ray.
MEMBER : Shri. P.K. Chattopadhyay.
FOR THE PETITIONER / APPELLANT :
Shri P.R. Baksi. (Advocate) FOR THE RESPONDENT / O.P.S. : Shri T. K. Sarkar (Advocate) Shri P.K. Chattopadhyay,. Member,
This revision petition filed by WBSEDCL is directed against order dated 2.6.08 and further orders dated 19.6.08, 27.6.08, 4.7.08 and 9.7.08 in respect of interim stay passed in CC Case no 33 of 2008 of Birbhum Dist Forum.
2. The issue supposedly emanated from an application made by Shri Pradip Kr Chowdhury , Saroda Hotel and Restora , Suri Birbhum when an application was made for extension of load capacity in the hotel on or around 12.12.07 .On 14.12.07 the Revision Applicant paid a visit for inspection along with police personal and inspection was carried out by them in presence of two local witness and it was allegedly found that there was abstractions of electrical energy through various devices and FIR was lodged on the same date with Suri P.S against Sri Prabal Chowdhury and his brother Pradip Chowdhury when Prabal Chowdhury was arrested and taken into custody . On 15.12.07 Suri P.S no case 215 of 2007 was filed and criminal proceedings were started before the Honble judge special court under Electricity Act , Suri , Birbhum u/s 135 (I) and 2C of the Electricity Act. Bail was rejected for the accused. On 18.12.07 bail petition was further moved when it was stated inter alia that 50% of the demand on the provisional bill stood paid and remainder 50 % was assured to be paid in 3 installments when the accused Sri Prabal Chowdhury got bail on that day.
On 20.12.07 Sri P. Chowdhury the other accused surrendered and moved a bail petition which was not opposed by the other side and bail was granted . On 27.2.08 a writ application under 226 of the constitution of India under No WP 2078 was moved against WBSEDCL when the Honble High Court dismissed the same with the observation that an efficacious alternative remedy of appeal is provided u/s 127 of the electricity Act 2003 and the court is not inclined to entertain the writ Petition. On 17.3.08 a criminal revision no CRP 249 of 2008 before the Honble High Court, Kolkata was filed by Sri Chowdhury where the Honble High Court ordered for stay of all further proceedings of the said Suri P.S case 215 of 2007. On 2.6.08 a case under no CC/33/O/08 before the Ld. Birbhum District Forum was filed by P.K. Chowdhury where a direction was sought for upon WBSEDCL as to not disconnect the service connection till date of disposal of the case when on a petition for interim order upon hearing, this was allowed on the very first day of the case, in absence of OP WBSEDCL . On 19.6.08,when OP- WBSEDCL had not entered appearance the said interim order dated 2.6.08 of the Ld.Forum below was made absolute fixing 16.7.08 for appearance and written version. On 27.6.08 WBSEDCL moved a put up petition and filed written version against the interim order after serving copy to the other side and the matter was fixed on 4.7.08 for hearing the application for injunction. On 4.7.08 the petition for vacating the interim exparte injunction was moved and heard and 9.7.08 was fixed for passing order . On 9.7.08 the order was passed & the order dated 2.6.08 was not vacated. Thereafter the Revision petition was filed by the WBSEDCL on 29.8.08 for setting aside the exparte order dated 2.6.08 and subsequent orders dated 19.6.08 and 9.7.08, appertaining thereto.
In its revision Application the Revision Petitioner namely WBSEDCL stated as under :
(3) From show cause notice it reveals that the notice was issued on 3.6.08 and order no 1 has been passed by the Ld. Forum on 2.6.08. In fact from the record it appears that the complaint has been filed and registered on 2.6.08 and on that date the petition u/s 13 (3B) has been moved exparte.(4)
That the petition u/s 13 (3B) of C.P Act, 1986 for interim injunction was moved with a prayer for an order against the revision petitioner as not to disconnect the service connection of the OP/ consumer, who already was caught red handed in respect of Theft of electricity and duly paid a sum of Rs. 8,14,000/- on 4.6.08 towards 50% of the final assessment bill without protest.
(5)That the Ld. Forum below failed to appreciate that the OP party/ consumer filed a complaint petition by suppressing material fact and circumstances and at the same time did so in contempt of the order of the Honble High Court Calcutta in Writ Petition 2078(W) of 2008 ,wherein a direction was given to the Writ Petitioner/the opp. Party herein to prefer an appeal under section 127 of the Electricity Act , 2003. As the order dated 2.6.08 was passed ex-parte without giving any notice to the Revision Petitioner, the total order was wholly illegal and was not tenable.
(6)That the Revision Petitioner would suffer and was suffering serious & irreparable loss and injury for the said interim injunction and that natural justice was violated in the matter. Therefore it was necessary to pass an order of stay of further proceeding in the C.F case no 33 of 2008 pending before the Birbhum District Forum. till final disposal of the Revision Petition by this Honble Commission.
Accordingly the Revision Petitioner prayed for stay of further proceedings before the LD. Forum below in DCDRF Birbhum case no 33 of 2008 till final disposal of the Revision Petitioner.
3. The OP to the Revision Petitioner namely Sri .P.K. Chowdhury entered appearance and stated inter alia that OP ran a Hotel cum Restora under name and style Saroda Hotel and Restora in Suri and on 14.12.07 the Revision Petitioner lodged that a false complaint against the OP alleging power theft when FIR was lodged and Sri Prabal Chowdhury was taken into P.S . Thereafter the Revision Petitioner prepared provisional electricity bill amounting to Rs. 16,28,000/-
and under constraint and intimidation the OP signed declaration consenting to deposit 50 % of the provisional bill i.e Rs. 8.14,000/-,even though the purported provisional/Final assessment bill of Rs. 16,28,000/- was stated to be erroneous, wrongful illegal & imaginary. The OP then challenged the purported FIR in Honble High Court in CRR 249 of 2008 when the Honble High Court on 1.2.08 Stayed all further proceedings pertaining to the said FIR in Suri case no 215 of 2007 and under order dated 15.7.07 the Honble High Court gave liability to the OP to take all the points stated in the Revisional Application before the Ld. Court below when the matter was pending before the special court at Suri , Birbhum for adjudication. Subsequently , the OP preferred an appeal before the competent authority being Electricity Tribunal challenging the assessment / provisional bill to the tune of Rs. 16,28,000/- u/s 127 of Electricity Act and during pendency of the aforesaid appeal, the OP under a memorandum dated 20.5.08,by WBSEDCL, was issued a demand notice to deposit the balance amount of Rs. 8,14,000/- with threat to disconnect the supply inspite of the fact that at that point of time CRP case no 249 was pending before the Honble High Court. Having no other alternative OP filed a complaint u/s 12 of C.P Act before the Ld. DCDRF Birbhum challenging the memo no SWS 1354 dated 20.5.08 and stated inter alia that inspite of paying regular bill sent by WBSEDCL and despite aforesaid criminal proceeding being under adjudication before the Honble High Court the impugned memo no SWS 1354 dated 20.5.08 claiming the purported amount was illegal and perverse. On Ops application for an interim order of injunction praying for stay on disconnection of the existing supply at the given place of business the Ld. Forum below issued an interim order and directed to issue notice upon WBSEDCL. On 16.6.08 finding that due service was made on WBSEDCL and inspite of that WBSEDCL having not turned up the Ld. Forum made the interim order absolute till the disposal of the case. On 9.7.08 WBSEDCL entered appearance and prayed for vacating the interim injunction and upon hearing both sides the Ld. Forum was pleased to uphold the order of injunction. The Revisional Petitioner then filed this Revision Petition for staying operation of the order dated 2.6.08 which according to it was untenable and not permissible under law. Referring to Sec u/s 22 of C.P Act and citation in AIR 2005 Andhra Pradesh page 118, The OP to Revision Petition stated that the revision application as well as the stay application were misconceived and not maintainable in law. The OP accordingly prayed for rejection of the same with exemplary cost, terming the Revision Application as vexatious , malafide and harassing.
DISCUSSION (A) In the first place the OP to the Revision Petition was proceeded u/s 135(I) and 2 C of the Electricity Act 2003 when 50% of the Provisional/Fund bill amount amounting to Rs. 8,14,000/- was paid to WBSEDCL and the rest amount was assured to be paid by 3 installments when the OP got bail. Writ application u/s 226 of the constitution of India was then filed by the OP under no WP 2078 when the Honble High Court Callcutta dismissed the writ petition by observing as under an efficacious alternative remedy of appeal is provided u/s 127 of the electricity Act 2003 and the court is not inclined to entertain the writ petition subsequently a criminal revision was filed by the OP before the Honble High Court where police case no Suri P.S 215 of 2007, already under process , was stayed on 2.6.08 & a consumer case under no 33/0/08 was filed by the OP to this Revision Petition before the Ld. Birbhum Dist Forum. along with a prayer for an interim order of injunction regarding disconnection of power line, which injunction was allowed in the very first day in absence of WBSEDCL the present Revision Petitioner.
(B) The primary component of the OP to the Revision Petition in its compliant case before the Ld. Forum below was the issue of a letter under no SWS /1354 dated 20.5.08 by WBSEDCL demanding rest of the total Provisional / Fund claim of Rs. 16,28,000/- when Rs. 8,14,000/- was already paid and CRR case no 249 of 2008 was still pending before the Honble High Court, which got disposed only on 15.7.07. The OPs to the Revision Petition had already challenged the purported assessment of the provisional bill u/s 127 of the Electricity Act and therefore the said demand notice containing a threat to disconnect the existing supply in case of non payment of the demand was deemed to be illegal and perverse. The Ld. DCDRF, on the first day of filing of the case i.e on 2.6.08 allowed the prayer for a stay on the disconnection of the service connection till the disposal of the complaint case when OPs to the complaint case namely WBSEDCL were not even issued any notice and on 19.6.08, made the said interim order absolute and on 27.6.08 the Ld. District Forum rejected a put up petition by WBSEDCL for vacating the said interim exparte order of stay. Thus this Revision Petition by WBSEDCL , the OPs for stay of the proceedings the complaint case pending before the Ld. Forum.
(C) In the light of Honble High Courts observation in WP 2078 and Honble Courts orders of stay in Suri P.S case no 215 of 2007, we are unable to find any good reason for allowing a blanket stay on disconnection of service connection till the date of disposal of the complaint case which has been passed on the very first day of its filing namely on 2.6.08 when the service provider i.e the OP to the Complainant case namely WBSEDCL were not even issued notice in such regard . We take notice of the provisional/Fund bill dated 15.12.07 issued by the Revisional Petitioner to the OP and OPs undertaking thereto praying for allowing payment of 50% of the aforesaid amount namely Rs. 16,28,000/- and for further allowing seven equal monthly installments for payment of the rest, when by its letter dated 31.12.07 the Revisional Petitioner affirmed the provisional bill as final bill and allowed payment of the entire sum in 4 installments fixing due dates from 17.12.07 for payment of the first installment and for payment of the rest in three equal monthly installments on subsequent monthly dates. However , the Op to the Revision Petitioner on the due date of first installment, prayed for more time and then the writ application under article 226 in the Honble High Court, Calcutta which has already been discussed earlier. In above view we find no reason or logic to allow stay on disconnection of power supply by the utility namely WBSEDCL, the Revision Applicant herein, which is a lawfully constituted power supply utility having obligation to supply power to its consumers with rights and duties to realize cost thereon on approved tariff ,where the function of disconnection is a combination of several factors clearly provided in Electricity Act 2003 & Amandment thereof in 2007 read with WBERC regulations. On the facts in the given complaint case before the Ld. Forum below we find no reference to the application of the electricity Act 2003 or Amended Electricity Act 2007 where the extant provisions in regard to realization of outstanding consumption dues have been delineated and thus the order of stay , without hearing WBSEDCL the OP in the complaint case is deemed sweeping and uncalled for. It is also pertinent to know that there was no specific notes of disconnection as such issued by the Revisional Petitioner to the OP and therefore the stay on mere apprehension of probable disconnection was also not tenable. Accordingly, we do not find that the issue of stay on disconnection as was passed by the Ld.Forum on 2.6.08 was proper. The Ld. Forums subsequent order dated 19.6.08, making the said stay absolute was also passed when S/R was just completed but no reasonable opportunity of putting up objection and or hearing was allowed. The Ld. Forums order dated 9.7.08 had mention of the provisions of section 145 of the electricity Act 2003 but prayer made on that was not accepted by referring to citation in 2006(2) ICC 646 Executive Engineer KPTCL now GESCON Bidar and ors vs Insurance and anr. The Ld. Forum upon due consideration of statement of Ld. lawyers took the view that provisions of section 145 of Electricity Act 2003 was not attracted in the prayer on the petition of complaint and thus justified its issue of exparte injunction aforesaid . However, we do not agree. Firstly we are unable to accept the Ld. Forums stance of issuing exparte injunction on the Complainants prayer in the complaint petition on its very first day without affording opportunity to the OP utility and more so when there was no notice of specific disconnection and /or no threat or perception of such. It is further important to note that the Complainant had expressly undertook to pay the final claim in a given manner , which was accepted by the Revisional Petitioner with some modification and there was no proof / or submission that the undertaking given by the Complainant in the Forum and the OP to the Revision Petition,was issued on any coercion or threat perception for which it had no proof. Furthermore Electricity Act 2003 and Amended electricity Act 2007 read with provisions issued by WBSERC provided for adequate opportunities towards efficacious alternatives as were expressively directed by the Honble High Court in its order dated 27.2.08.In this view , we are inclined to allow the Revision Petition on contest to the extent of setting aside the impugned order of stay against any disconnection of power supply on the OPs to the Revision Petition. We are further inclined to direct the Ld. Forum below to adjudicate the complaint case under no CC 33/0/08 expeditiously and preferably within a period of 3 months.
Order The Revision Petition is allowed on contest without cost. The order of stay and injunction passed by the Ld. Forum below by its orders dated 2.6.08, 19,6.08, 27.6.08 4.7.08 and 9.7.08 are hereby vacated. The Ld. Forum below is directed to hear & dispose the complaint case under no 33 of 2008 ,expeditiously and preferably within a period of three months in accordance with law . A copy of this order be sent to the Forum below forthwith.
Member Member