National Consumer Disputes Redressal
Ashok Ojha vs Jharkhand State Electricity Board & ... on 1 June, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 67 OF 2010 (Against the Order dated 03/12/2009 in Appeal No. 264/2008 of the State Commission Jharkhand) 1. ASHOK OJHA R/o Sundar Nagar, Post & P.S. - Sundar Nagar Singhbhum East Jharkhand ...........Petitioner(s) Versus 1. JHARKHAND STATE ELECTRICITY BOARD & ORS. Singhbhum East Singhbhum East Jharkhand 2. S.D.O. ELECTRICAL Jharkhand State Electicity Board Singhbhum East Jharkhand 3. JUNIOR ENGINEER, ELECTRICAL Jharkhand State Electicity Board Singhbhum East Jharkhand ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MR. VINAY KUMAR, MEMBER HON'BLE MRS. M. SHREESHA, MEMBER For the Petitioner : Mr. Shiv Shankar Prasad, Advocate For the Respondent :
Dated : 01 Jun 2015 ORDER M. SHREESHA, MEMBER
Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), is to order dated 03.12.2009 passed by the State Consumer Disputes Redressal Commission, Jharkhand, Ranchi (for short the 'State Commission'), in First Appeal No. 264 of 2008. By its impugned order dated 03.12.2008, the State Commission allowed the Appeal filed by the Executive Engineer, Electrical Department, Jharkhand and set aside the order dated 24.5.2006 of the District Consumer Disputes Redressal Forum, Jamshedpur (for short the 'District Forum') in CC No. 137 of 1999.
2. Succinctly put, the brief facts which are material to the case are: that the Complainant, Shri Ashok Kumar Ojha was paying his electricity bills regularly and he had paid ₹225.52 towards the bill for the month of January, 1994. He averred that he had received an exorbitant electricity bill of ₹11,148.95/- for the month of June, 1994, out of which, an amount of ₹ 10,873/- was shown as arrears. The Complainant pleaded that there were no arrears in the bill dated January, 1994 and that he had brought the same to the notice of the concerned authorities of the Electricity Department and also sent several request letters to rectify the said bill, but there was no response. Subsequent to his correspondence, once again, he received exorbitant bills without meter reading for ₹59,232.56/- for the month of 3/98 and ₹81,931.47/- for the month of 6/99. The Opposite party issued two show cause notices on 10.6.2004 and 21.7.2004 respectively. The Complainant further stated that the meter was defective prior to 1990 and had submitted that the same was informed to the Opposite Parties vide his letters dated 19.6.1995, 1.7.1995 and 19.3.1997, in which the Opposite Parties have also endorsed the receipts. In all these letters, the Complainant had requested the concerned authorities to correct the billing on the basis of average consumption as fixed by the Opposite Parties' Department, but there was no response. Vexed with the attitude of the Opposite Parties, the Complainant approached the District Forum and prayed for the following directions to the Electricity Department, i.e. to correct the bills and pay compensation and costs.
3. The Opposite Party pleaded that the bills before May 1994 were issued on an average consumption basis as the meter reader was not available. When the meter was checked in May 1994, the reading was 9302 units and the consumption was 6262 units, for which an arrear bill of ₹10,618.17/- was raised. Similarly, the bill for the month of July, 1995 was raised based on the meter reading of 6113 units. It was also pleaded that the connection was converted from domestic to commercial in June, 1995. A Load Inspection was done on 17.08.1994 which showed that electricity was used in Damyanti Residential School and this supported the detailed readings of each month from June, 1994 till November, 1995, when the meter became defective. It was also asserted by the Opposite Parties that the load inspection report dated 27.12.2000 clearly showed that the load was of 3930 watts, and that the average units consumed in such a situation would be 288x4=1152 units per month. It was also averred that the Complainant intentionally did not get the meter changed from 1994 and avoided paying the bills for a period of ten years.
4. The District Forum based on the evidence adduced observed that the conversion from domestic category to commercial category was without any basis. Though the Complainant and the school were in the same plot No. 1246, the Complainant was not connected with the said school in any way. Taking into consideration the documentary evidence, the District Forum allowed the complaint directing the Opposite Parties as follows:
"To correct the electric bills on the basis of 50 units consumption per month by the complainant and issue corrected bill to him.
To instal electric metre on being supplied by the complainant.
No D.P.S. be charged.
Adjust the payments made by the complainant against arrear bills, if any.
v. Return the excess amount to the complainant if any.
To give electric connection to Damyanti residential school on making application by the owner of the school within one month from the date of receipt/production of copy of the order. The order No. (i) to (iv) shall be complied with within one month from the date of receipt/production of copy of the order and the order no. (vi) shall be complied with within one month from the date of making application for electric connection by the owner of the school within the time stated above, failing which the complainant shall be at liberty to enforce the order through the Forum in accordance with law".
5. Aggrieved by this order, the opposite Party preferred an Appeal before the State Commission. The State Commission held as follows:
" Our view is further strengthened by the view of Hon'ble High Court as held in JHOR He. R/10/2003 Page 1042. Which laid down that proper course to assess charges on the basis of average consumption of previous three months from date the meter was out of order or average consumption for corresponding three months of previous years consumption whichever is highest, cannot be applied in present facts. The meter as alleged not working since 1990 how assessment of three months consumption could be made after 16 years, in 2006 or now 2010. The complainant has not got new meter installed right from 1994 and it was extending the line to the school as held by the lower forum.
10. The appellant has further relied on II (2006) CLT 14/S.C. in which Hon'ble S.C. in Haryana State Electric Vs. Manchand held that the disputed and complicated questions of fact and law arising under the provisions of the Electricity Act, 2003 under Sec. 126 and 135 could be decided by competent authority under the same Act. Their lordships remanded back the case for its decision by the State Commission. Therefore in present facts we find the dispute may have been properly decided in appropriate forum under 2003 Act.
11. In such view of the facts we find there was no deficiency on the part of the BSEB and hold that the directions of the lower forum to revise the bills from 1994 cannot be upheld. Other directions also are found not maintainable. In the result we find the appeal has to be allowed, setting aside order dated 24.5.06. Accordingly this appeal be and is allowed but without cost".
6. Being aggrieved by this order, the Complainant preferred this Revision Petition.
7. It is the Revision Petitioner's case that his meter was defective since the year, 1990 and he had given application dated 20.03.1990 to the Respondent's Department regarding the defective meter. The learned counsel for the Revision Petitioner submitted before us that the consumer was paying his electricity bills regularly and that in the month of January 1994, his bill was for ₹225.52 and thereafter he received an exorbitant bill in June, 1994 for ₹11,148.95/-, in which arrears were shown as ₹10,873.00/-. This discrepancy in his billing was brought to the notice of the concerned authorities vide letters dated 29.3.1990 and 10.12.1993.
8. A brief perusal of these letters shows that there is an endorsement dated 19.3.1997 by Shri B.V. Dutta and Shri B.D. Lal stating that the bill charged on an average basis before 1994 may be assessed and put up. There is also an endorsement dated 2.12.1997stating that the concerned authorities were to submit all the statements showing the details. The Petitioner submitted before us that this endorsement was in the year, 1997 but subsequently he had received a bill for the month of March, 1998 for ₹59,232.56/- and for November, 2009 for ₹4,88,770.00/-. He submitted that he had made the following payments:
Date of Payment Amount Paid Board's Receipt No. _____________ ____________ ___________ 17.12.2000 5000.00 441349 27.12.2000 30.00 140242 23.1.2003 22,000.00 567084 25.2.2003 1000.00 796416 1.7.95 5000.00 -- ________________ Total 33,030.00 _________________
9. The District Forum had perused the afore-mentioned receipts and found them to be correct.
10. None appeared for the Respondents today. The Respondents filed a counter affidavit before this Commission stating that this case should be referred to the competent authority under the provisions of the Electricity Act, 2003 as it deals with complicated questions of fact and law. It is further stated that the electricity meant for domestic use was being used by the Petitioner for commercial purpose to run his school namely Damyanti Residential School.
11. It is stated in para 12 of the Respondents' counter affidavit that if the Petitioner proves that his earlier billing @ 50 units/month in view of the detected load as on 17.8.1994 of about 2 KW, with one bulb of 100 watts, 8 tube lights of 40 watts each, 8 Fans of 60 watts each, one water pump of 370 watts was on the higher side, the proportionate actual adjustment shall be done, which will be applicable for both the parties. He further stated that the Petitioner had paid ₹33,030/- only from the date of connection till April, 2004. It is stated that the electrical meter was installed in the month of July, 2007.
12. The first point that falls for consideration is whether this Commission has jurisdiction to entertain this complaint? The Hon'ble Apex Court in Uttar Pradesh Power Corporation Limited & Ors. vs. Anis Ahmad reported in (2013) 8 SCC 491, held as follows:
"Complaint against assessment made under S. 126 or action taken against those committing offences under Ss. 135 to 140 of Electricity Act, 2003,held, is not maintainable before a Consumer Forum - Civil court's jurisdiction to consider a suit with respect to the decision of assessing officer under S. 126, or with respect to a decision of the appellate authority under S. 127 is barred under S. 145 of Electricity Act, 2003 - Therefore, it is clear that after notice of provisional assessment to the person alleged to have indulged in unauthorized use of electricity, the final decision by an assessing officer, who is a public servant, on the assessment of 'unauthorised use of electricity" is a quasi-judicial decision and does not fall within the meaning of "consumer dispute" under S. 2(1)(e) of Consumer Protection Act - Offences referred to in Ss. 135 to 140 can be tried only by a Special Court constituted under S.153 of Electricity Act, 2003, hence, also the complaint against any action taken under Ss. 135 to 140 of Electricity Act, 2003 is not maintainable before Consumer Forum - Electricity Act 2003 - Ss. 126, 135 to 140 - U.P. Electricity (Consumers) Regulations, 1984.
By virtue of Section 3 of Consumer Protection Act, 1986 or Sections 173, 174 and 175 of Electricity Act, 2003, 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 Electricity Act, as the acts of indulging in "unauthorised use of electricity" do not fall within the meaning of "complaint" as defined under Section 2(1)(c) of Consumer Protection Act, 1986".
13. We observe from the information available on record that the Respondents/JSEB did not choose to send any notice to the Petitioner herein for offences under Section 126 or under Sections 135 to 140 of the Electricity Act, 2003 either with respect to "unauthorised use of electricity", "pilferage" or "theft" of electricity. In the absence of any such assessment done by the Respondents under the afore-mentioned Sections, we are of the considered view that the Consumer Fora has jurisdiction to adjudicate this matter.
14. The Load Inspection Report dated 12.11.2009 shows that the Complainant was using electricity in a residential building only. Even prior to this report, based on the information on record, we do not find any assessments specifically done under Sections 126, 135 to 140. There is no documentary evidence on record to establish that the Petitioner had used the electricity for a purpose other than domestic.
15. Hence, we are of the considered view that the Consumer Fora has jurisdiction to entertain this matter and, therefore, we allow this Appeal and set aside the order of the State Commission and remand this matter to the State Commission. The State Commission shall take it on record and decide the case, afresh, on merits. Keeping in view that the Petitioner herein did not make any payments since 2003, we direct him to deposit an ad-hoc amount of Rs. 40,000/- with the Respondents' Department within a period of four weeks from the date of receipt of this order, till final adjudication by the State Commission.
16. The parties shall appear before the State Commission on 01.07.2015. The State Commission, after hearing both sides, shall decide on what basis the billing is to be done, right from the period bills raised by the Respondents were not paid and the Petitioner shall pay the balance amount, if any, within four weeks from the date of the order of the State Commission after accounting for the aforesaid amount. The State Commission shall dispose of the matter expeditiously. No costs.
......................J D.K. JAIN PRESIDENT ...................... VINAY KUMAR MEMBER ...................... M. SHREESHA MEMBER