State Consumer Disputes Redressal Commission
Station Manager, Wbsedc Ltd vs Jahangir Alam on 6 January, 2012
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/52/11 DATE OF FILING: 31.05.11 DATE OF FINAL ORDER: 06.01.12 PETITIONERS : 1. Station Manger, West Bengal State Electricity Distribution Co. Ltd. Bhaluka Group Electric Supply,Vill- & P.O. Bhaluka, P.S.- Harishchandrapur, District- Malda. 2. Assistant Engineer, West Bengal Electricity Distribution Co. Ltd, Harishchandrapur Sub-Station, Vill & P.O. & P.S.- Harishchandrapur, District- Malda. 3. Chairman, West Bengal Electricity Distribution Co. Ltd. Bidyut Bhavan, Salt Lake City, Kolkata- 92. OPPOSITE PARTY: Jahangir Alam, S/o Abul Kasem, Village- Sonakul, Post- Milangarh, P.S.- Harishchandrapur, District- Malda. BEFORE HONBLE MEMBER :
Smt. Silpi Majumder.
HONBLE MEMBER : Sri Shankar Coari.
FOR THE PETITIONERS : Mr.Srijan Nayek & Mr. Alok Mukhopadhyay, Advocates.
FOR THE OPPOSITE PARTY:Mr. Pradipta Nath, Advocate.
Silpi Majumder, Member This Revision Petition has arisen out of the order dated 26.04.2011 passed by the Ld. District Forum, Malda in the case no- 65/2010 whereby the Ld. Forum below was pleased to dismiss the maintainability petition filed by the OP-1 on contest without any cost and directed the OPs to file written version on 18.05.2011.
Being aggrieved by the said order the OPsthe Petitioners have preferred the present Revision before this Commission stating that the Complainant is enjoying industrial connection for business purpose for running a husking mill and as such as he is not a consumer the impugned order is bad in law and cannot be sustained. It has been stated in the grounds of this Revision that the case of theft of electrical energy cannot be entertained under COPRA and in case of theft of electrical energy the entire amount has to be deposited for making prayer for restoration of the electric connection according to the Electricity Act. In the instance case as per the Revision Petitioner due to occurrence of hooking for electrical energy, provisional bill was raised for an amount of Rs.1,57,646/- and ultimately the final assessment bill was raised and served upon the Complainant and in this connection a police case has been started Vide no-416/2010 u/s 135 (I) (a) of the Electricity Act by Local Police Station, Malda. The seizure list, provisional bill, copy of FIR and the final assessment bill have duly been received by the Complainant but the Ld. Forum below accepted the version of the Complainant that no copies have been received by the Complainant. It has been mentioned by the Petitioners that in a case of theft of electrical energy no interim order can be passed when the case cannot be entertained by Consumer Fora. According to the Petitioner until and unless the entire assessed amount is paid by the Complainant the company is not in a position to restore the electric connection. As the Ld. Forum below has passed an illegal and improper order the said is liable to be set aside and prayer has been made by the Petitioners for allowing the present Revision Petition.
This revision petition has been directed against an exparte interim order dated 25.01.2011 obtained by the Complainant for restoration of the service connection. As per the petitioners the Complainant obtained the exparte interim order through fraud, misrepresentation and suppression of facts. The Petitioners are of the view that as the complaint is not maintainable in the eye of law before the Consumer Court, hence, the interim order passed by the Ld. District Forum cannot be sustained. It was submitted before the Ld. Forum below by the Petitioners that on 07.11.2010 the Assistant Engineer of the Petitioners and other Officials found that the Complainant was using unauthorized electricity by direct hooking from near by L and MV line through PVC wire bypassing installed meter to his industrial mill premises. The Assistant Engineer seized the PVC wire in presence of the local witnesses in terms of section 135(2) of Electricity Act 2003 and FIR was lodged at the local police station and on the basis of which a criminal case was registered against the Complainant. The service line of the Consumer was disconnected due to unauthorized using of electricity. Provisional assessment bill was served on the Complainant demanding a sum of Rs.1,57,646/-, but he remained silent. The Assessing Officer issued a notice before passing of the final order for assessment but the Complainant did not appear before him on 03.12.2010, on the schedule date the final assessment was made at Rs.1,57,646/- which has not been deposited. For the aforesaid reasons it was submitted by the present Petitioners-OPs that the Forum has no jurisdiction to hear the matter.
Before the Ld. Forum below it was submitted on behalf of the Complainant during the course of hearing of the petition filed by the OPs on the ground of non-maintainability of the complaint that the Complainant had no knowledge about the registration of any case of theft of electricity against him prior to this day. The allegation of use of electricity by hooking as brought by the OP-1 is totally baseless and false. The Complainant filed a Xerox copy of the written information given by him to the OPs since 2003 about pilferage of electricity by rival businessmen which made him to suffer loss of business and the OPs instead of taking any step against them entangled the Complainant in a false case of theft of electricity. This case was registered keeping him in dark about it. He never received any notice from the OP-1 in respect of provisional assessment demanding penalty amount. Witnesses in the seizure list are of different and distant places. Md. Sanaulla one of the witnesses filing an affidavit has denied the signature of him in the seizure list. The Complainant paid his electricity bills regularly up to the previous month of the alleged disconnection. The Complainant was forced to file this case as he was suffering from mental agony and harassment due to forcible disconnection of service by the OP-1. Before the Ld. Forum below the Complainant placed several decisions passed by this State Commission as well as by the Honble National Commission.
It was submitted by the OP-1 before the Ld. Forum below that the Complainant had the full knowledge about the registration of police case against him for theft of electricity, but filed this complaint to gain advantage.
Considering the submission of the Ld. Advocates for the parties the Ld. Forum below has dismissed the petition filed by the OPs and has held that at a very early stage the OPs have filed the maintainability petition because until and unless the written version, evidence and cross examination are filed by the parties, the allegation of pilferage of electricity cannot be proved. But in the said order the Ld. Forum below has modified the order dated 25.02.2011 wherein direction was made to the Complainant to deposit a sum of Rs.40,000/- on account of provisional assessment subject to final assessment within 10 days from the date of passing of the judgment and the OP-1 was directed to restore the service connection in question within seven days from the date of deposit of the said amount.
We have perused the record and several decisions filed by the parties carefully and heard the arguments so advanced by the Ld. Counsel for the parties. Before this Commission submission has been made on behalf of the petitioners that the complaint is not at all maintainable on two ground firstly, the Complainant enjoyed commercial meter for business purpose, hence the Complainant cannot be termed as Consumer within the preview of definition of Consumer as per C.P. Act, 1986 and secondly as the Complainant has committed theft of electrical energy, such allegation is not maintainable before the Consumer Forum, which can be decided only by the criminal court. The argument of the Complainant-OP is that the allegation of theft of electrical energy as alleged by the Petitioners is totally false and fabricated. Admittedly, he is using the industrial meter but it is the sole source for earning his livelihood and hence he can easily be termed within the definition of consumer as per C.P. Act, 1986. It has been further argued by the OP that he used to pay electric bills regularly but all on a sudden the electric connection of his mill has been disconnected by the Petitioners alleging theft of electrical energy. In respect of signature of one Sri Sanaullha the LD. Counsel for the OP has filed one xerox copy of affidavit of the said person, wherein it has been stated by the said person that he never put his signature in the seizure list made by the Petitioners. Ld. Counsel for the Petitioners has filed the Gazette Notification of the company dated 12.09.2007 from where it is evident that the supply of electricity to a consumer, supply to whom has been disconnected due to theft of electricity in terms of regulations 4.2.1, shall be reconnected by the licensee at the earliest and positively within 48 hours from the time of payment of the assessed amount (6.3). In respect of such Regulations we are to say that admittedly the consumer whose connection has been disconnected due to theft of electrical energy, he is liable to pay the assessed amount in case of restoration of electrical energy. Such Regulation is only applicable where the theft has been proved but where the theft of electrical energy has not been proved as yet how much amount such a consumer is liable to pay in respect of the assessed amount the Regulation is silent. The Ld. Counsel for the Petitioners has submitted that the case of pilferage of electrical energy and disconnection relating to the said pilferage is not maintainable before the Consumer Forum and in case of restoration of the disconnected service due to the abovementioned ground; the consumer is liable to pay the entire amount as assessed by the company. The Petitioners have relied on the case passed by this Commission on 15.012. 2009(CESC Ltd Vs Quraisha Banoo, Case no-FA/291/2009), from where it is evident that the said case also filed by the Complainant before the Consumer Forum whose electricity has been disconnected by the CESC Ltd alleging theft of electrical energy. In the said case this Commission has directed the Complainant to deposit 50% of the finally assessed amount on filing appeal and/or on payment of the entire amount of final assessment for immediate restoration of power line and as also for filing the appeal. Against the said order the CESC Ltd has not preferred any Revision before the Honble National Commission and for this reason the judgment has reached its finality. In the said judgment it has been held that the Consumer Fora would have jurisdiction to entertain complaint against the final order passed by the Assessing Officer u/s 126 of the electricity Act. Further the jurisdiction of the Consumer Fora is not barred by any provision of Electricity Act but the same is expressly saved u/s 173 read with sections 174 and 175 of the electricity Act. It has been further mentioned in the said judgments that section 3 of the Consumer Protection Act and Section 175 of the Electricity Act, provide that they are in addition and not in derogation of rights under any other law for the time being in force. Therefore, the rights of the Consumers under the Consumer Protection Act are not affected by the Electricity Act. A bare reading of sections 173, 174, and 175 makes it clear that the intent of the Legislature is not to bar the jurisdiction of the Consumer Fora constituted under the Consumer Protection Act. The Provision of the electricity Act have overriding effect qua provisions of any other law except that of the Consumers Protection Act, 1986, the Atomic Energy Act 1962 and the Railways Act 1989. In view of the above-mentioned observation it can easily be said that the case of theft of electrical energy can be termed as maintainable before the Consumer Forum until and unless the theft is proved by the Company. In respect of industrial connection we have perused the petition of complaint from where it is evident that admittedly the Complainant being an unemployed youth using industrial connection as he has a paddy grinding machine mill and the said mill is the only source of income of the Complainant. In view of such submission as made out by the Complainant we are to say that as the Complainant is using industrial connection for earning his livelihood, he can easily be termed as consumer within the purview of definition of consumer as per Consumer Protection Act 1986.
The Ld. Counsel for the OP has also filed several judgments in support of his contention to prove that such type of case is maintainable before this Consumer Forum. He has relied on the judgment passed by the Honble Supreme Court in the case of Kishore Lal vs-Chairman, Employees State Insurance Corporation, wherein Their Lordships have held that it has been held in numerous cases of this Court that the jurisdiction of a consumer forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In the case of M/s. Spring Meadows Hospital and Another v, Harjol Ahluwalia and Another, AIR 1998 SC 1801, it was held that the C.P Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial legislation should receive a liberal construction. In state of Karnataka v. Vishwabrathi House Building Co-op. Society and Others, AIR 2003 SC 1043, the Court speaking on the jurisdiction of the Consumer Fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the fora under the C.P Act have jurisdiction to entertain a complaint despite the fact that other fora/courts would also have jurisdiction to adjudicate upon the lis. These judgments have been cited with approval in paras 16 and 17 of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha and Others, (2004) 1 SCC 305. The trend of the decisions of this Court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated.
In view of the judgment passed by the Honble Supreme Court we are of the opinion that the instant case is very much maintainable before the Consumer Fora and moreover where the pilferage of electricity has not been proved by the Company as yet by adducing cogent document or evidence in support of their allegations and contentions. Based on the abovementioned judgments we are inclined to direct the Complainant to pay 50 % of the assessed amount for restoration of electric supply at his mill premises. We have noticed that the Ld. Forum below has directed the Complainant to pay a sum of Rs.40,000/- against the assessed amount of Rs.1,57,646/- . If the Complainant has paid a sum of Rs.40,000/- in the meantime before the OPs- Company the Complainant is directed to pay the balance amount forthwith. The Petitioners are directed to restore the electric connection of the Complainant within 10 days from the date of payment of 50 % of the assessed amount of Rs.1,57,646/- by the Complainant. It is pertinent to mention that without filing written version, evidence and cross examination it cannot be said that actually pilferage of electricity has been committed by the Complainant or not and hence, the Ld. Forum below has correctly directed the OPs for filing written version Going by the foregoing discussion hence it is ordered that the Revision Petition is allowed in part on contest without any cost and the order passed by the Ld. Forum below is hereby modified to the above extent.
Shankar Coari Silpi Majumder (Member) (Member)