State Consumer Disputes Redressal Commission
The Station Manager, Birpara Gr. Ellec. ... vs Raghav Agro Product Pvt. Ltd. & Anr. on 23 December, 2014
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
WEST BENGAL
11A, Mirza Ghalib Street,
Kolkata - 700087
First Appeal No.
FA/591/2013
(Arisen out of Order
Dated 18/04/2013 in Case No. CC/15/2009 of District Cooch Behar)
1.
The Station Manager, Birpara Gr. Ellec. Supply, WBSEDCL
P.O.
& P.S. - Birpara, Dist. Jalpaiguri.
...........Appellant(s)
Versus
1.
Raghav Agro Product Pvt. Ltd.
Marchantile
Building, 9/12, Lal Bazar Street, Block-A, 1st Floor, Kolkata-700 001
& Br. Office- Sarbani Apartment, Block-A, Gr. Floor, Flat
No.GA-002, Nripendra Narayan Rd., P.S. Kotwali, P.O. & Dist. Cooch
Behar.
2.
West Bengal Financial Corporation
M.J.N.
Road, P.S. - Kotwali, P.O. & Dist. Cooch Behar.
...........Respondent(s)
BEFORE:
HON'BLE
MR. DEBASIS BHATTACHARYA PRESIDING MEMBER
HON'BLE
MR. JAGANNATH BAG MEMBER
For
the Appellant:
Mr.
Srijan Nayak Mr. Alok Mukhopadhyay Mr. S. Chatterjee, Advocate
For
the Respondent:
Mr.
B. Prasad, Mr. J. K. Chakraborty., Advocate
ORDER
Date:
23-12-2014 Sri Debasis Bhattacharya This appeal is directed against the order dt. 18-04-2013 in Case No. 15/2009, passed by the ld. District Forum, Cooch Behar, whereby the complaint case has been allowed on contest. Being aggrieved by and dissatisfied with the same, the OP thereof has preferred this appeal.
Case of the Complainant, briefly stated, is that it purchased a property from the West Bengal Financial Corporation by executing a Registered Deed of Conveyance. Prior to selling of the property, the WBFC Authority published advertisements in different newspapers whereby it was stated that they would not be liable to pay any dues related to the property in question.
Although the OP was fully aware of about such advertisement, they did not take any initiative to realize outstanding dues in respect of the said property. Afterwards, when the Complainant applied for providing service connection to the said property and paid earnest money for a sum of Rs. 200/- on 26/04/2007 as per quotation of the OP, the latter demanded a sum of Rs. 3,08,212.00 which remained unpaid in respect of the property in question and vide its letter dt. 14-05-2008, the OP made its position clear that it would supply electricity to the Complainant subject to clearance of said outstanding due only and despite severe perseverance of the matter with the OP Authority, it did not yield any positive result.
Hence, the case.
The case of the OP, on the other hand, is that at the time of applying for service connection, the Complainant suppressed the fact in the declaration form that already there was a previous service connection in the said property. During inspection, it came to surface that the previous owner of the said property i.e. Shree Khatu Rolling Mill Pvt. Ltd. owe a sum of Rs. 3,08,212/- to the OP. Therefore, vide letter dt. 14-05-2008, the OP asked the Complainant to clear the said outstanding dues to enable them to provide service connection to the property in question, which the Complainant has still not cleared. As per the Electricity Act, the Complainant is not entitled to get any connection till it clears all outstanding dues in respected of the property in question. Hence, the OP prays for dismissal of the instant case.
Point for consideration in this appeal is whether there is any factual/legal infirmity in the impugned order or not.
Decision with reasons Ld. Advocate for the Appellant has submitted that the Complainant is a Private Limited Company and running its business for commercial purpose, for which, they cannot be termed as Consumer.
It is not a domestic connection, but a commercial one taken solely for the purpose of running an industry.
Admittedly, an amount of Rs. 3,08,212.00 stands outstanding in respect of the premises in question, which is the main pivot of the whole dispute, and till such outstanding due is cleared, electric connection to the Complainant cannot be effected. Due to non-clearance of outstanding due, there is loss of Government revenue, which is profoundly reflected in the budget of the Government. There is a clear nexus in between the present landowner and the previous said owner, and such enjoying of the property is tantamount to a nexus in between the two. It is a huge property purchased exclusively for industrial purpose.
This is not at all a consumer dispute, having no deficiency in service on the part of the OP/Appellant.
The case of the OP/Appellant has not been properly explained by the Ld. District Forum, and the revenue loss has not been given due consideration. In fact, there is no whisper as to the status of the Complainant as a Consumer as defined in the Consumer Protection Act as slated out in the order of the Honble National Commission in RP No. 1903/2012.
So, in the facts and circumstances of the case, the impugned order cannot stand. There is also no evidence in respect of the alleged sufferings of the Complainant, and no observation of it by the Ld. District Forum. He has referred to a decision of the Honble Supreme Court reported in 2010 CTJ 361 (Supreme Court) (CP), and four decisions of the Honble National Commission reported in I (2014) CPJ 339 (NC), 2010 CTJ 886 (CP) (NCDRC), II (2009) CPJ 402 (NC), and II (2009) CPJ 406 (NC).
Ld. Advocate for the Respondent has submitted that Section 56 of the Electricity Act, 2003 is specific on the point and the OP should have taken recourse of a money suit against the defaulting and erring consumer, which has been clearly reflected in the order of the Ld. District Forum. The Complainant purchased the property through an auction sale from the West Bengal Financial Corporation at a consideration of Rs. 13,00,000/-, without any liability, by a registered instrument dated 14-06-2007. So, there is clearly no nexus in between the previous owner of the property and the present one. There has been no justification in the stand of the OP to realize outstanding due of erstwhile owner of the property from them. Though it is a Private Limited Company, the implication of consumer will hold good for deficiency in providing service by the OP under the Consumer Protection Act, in terms of the decision of the Honble National Commission in the matter of Harsolia Motors vs. National Insurance Co. Ltd. reported in I (2005) CPJ 27 (NC), where the liability of the insurance company towards the Private Limited Company before the Consumer Fora has been upheld. Further, it is not a Cold storage or a factory, but only a godown. In terms of Section 43 of the Electricity Act, the OP is duty bound to provide electricity to the Complainant and to pay the compensation. He has referred to two decisions of the Honble Supreme Court reported in 2010 (4) ICC 423 and (2004) 3 SCC
587. He has further referred to a decision of the Honble Supreme Court reported in (2009) 3 WBLR (SC) 321, in which also it has been held that supply is not synonymous with sale, and so the complaint is maintainable.
At the very outset, it needs to be clarified that, notwithstanding their claim, the OP has miserably failed to put forth any cogent document to establish the alleged nexus between the erstwhile owner and the present owner. So, the provision of Section 56 of the Electricity Act, 2003 will apply in the matter. There seems to be no liability of the present auction purchaser to discharge any outstanding liability of the erstwhile owner of the property in question, more so, as they purchased the same from a Government agency, the West Bengal Financial Corporation, through an open auction. As regards status of the Complainant to agitate their grievance before the Consumer Fora, it is found that the Complainant requires electricity in order to run its industry and not for the purpose of re-sale. The decision of the Honble National Commission in the matter of Harsolia Motors vs. National Insurance Co. Ltd. is a pointer in the matter.
Likewise, the electricity being not for re-sale, the commercial nature of business of the Complainant does not go to affect their case before the Consumer Fora in the status of consumer.
The impugned order to give electricity connection to the Complainant is perfect in nature, but the award of compensation of Rs. 1,10,000/- given out against the OP is not a befitting one, so also, the imposition of punitive damages @ Rs. 200/- per day.
Accordingly, the appeal succeeds in part.
Hence, ORDERED That the appeal be and the same is allowed on contest in part against the Respondent No. 1 and ex parte against the Respondent No. 2, but without any order as to costs. The impugned order is modified to the extent that Rs. 1,10,000/- under the heading of pecuniary loss and the punitive damages @ Rs. 200/- per day are struck off. Other parts of the impugned order will stand.
JAGANNATH BAG DEBASIS BHATTACHARYA MEMBER MEMBER