National Consumer Disputes Redressal
Uttari Haryana Bijli Vitran Nigam Ltd. ... vs Gautam Plastic on 2 November, 2007
Equivalent citations: I(2008)CPJ62(NC)
ORDER
P.D. Shenoy, Member Case of the complainant
1. Aggrieved and dissatisfied by the order of the Consumer Disputes Redressal Commission, Union Territory, Chandigarh dated 3.10.2006 A.E.E. Operation Sub Division, Uttari Haryana Bijli Vi trail Nigam Ltd. (herein after called as Nigam Ltd.) has filed this revision petition before us.
Case of the complainant:
2. The complainant M/s. Gautam Plastic was a subscriber of an electricity connection having a sanctioned load of 19.871 KW. It is the say of the complainant that he could not start the production as some of the machines could not be installed and he did not get the sales tax number as the manufacturing activity had not started. Meter Reader of the electricity department has been regularly visiting the premises. On 26.5.98 officials of the Nigam/Electricity Department checked the premises, in question, assessed the load at 30.76 KW though no machinery was in working condition and part of it was even lying in the yard. A notice was served upon the complainant imposing a penalty of Rs. 4,380 on the ground of illegal extension of the load. Again on 30.5.98 electricity officials conducted a surprise check and alleged that a fine pinhole on the front side of the meter cover, which is below the disc was found and concluded that it was theft of energy. Accordingly, another note dated 2.6.98 was issued imposing a penalty for Rs. 3,80,967 for six months period, which was to be paid within 2 days, failing which the electricity supply was to be disconnected and FIR was to be lodged. The complainant alleged that notices imposing penalties are highly arbitrary accordingly, filed a complaint before the District Forum claiming damages, compensation and costs in addition to the prayer for withdrawal of both the notices imposing penalties.
Case of the opposite parties:
3. It was contended by the opposite parties that as the FIR was lodged against the complainant, jurisdiction of the Forum has been invoked to avoid arrest and the complaint itself is not maintainable before the Consumer Forum. The Electricity Department submitted that connection cannot be released without load of machinery installed therein by the applicant. Hence, the allegation of non-installation of machinery is false. They reiterated the contents of the notices and decision for imposition of penalty. However, in the notices, it was stated that electricity supply would be restored only after depositing 40% of the amount as per Haryana Government Notification dated 17.8.98. The penalty to the tune of Rs. 4,380 for extension of load was deposited. The District Forum after hearing the parties and going through the evidence, directed the OPs to withdraw notice dated 2.6.98 and waive off the penalty imposed thereon and directed to refund the amount with interest (c) 12% p.a. along with the compensation of Rs. 5,000.
4. Dissatisfied by the order of the District Forum the Uttari Haryana Bijli Vitran Nigam Limited (successor of Haryana State Electricity Board) through its Executive Engineer filed an appeal before the Consumer Disputes Redressal Commission, Union Territory, Chandigarh. After perusing the records and hearing the parties the State Commission held that the Nigam has not been able to adduce any evidence to corroborate the theft of electricity. It is further held that the complainant has placed on record the water bills pertaining to the period in Which small amounts like Rs. 200 have been raised on account of rental charges of meter and it has been mentioned in those above bills that premises in question was 'locked', which lends support to the averments of the complainant, that the production in his factory had not, in fact, started and the machinery had not been actually pressed into production.
Submissions of the learned Counsel for the revision petitioner:
5. Mr. Neeraj Kumar Jain, learned Counsel for the revision petitioner invited our attention to the checking report wherein it is mentioned that load checked and found to be more than 30 KW and as the meter room was locked it was requested to call the consumer. One of the employees of the consumer has signed this checking report dated 26.5.98. This clearly shows that the consumer was drawing more power than sanctioned load of 19.87KW. He also drew our attention to the subsequent checking report dated 30.5.1998 wherein it is mentioned the meter room was opened in the presence of consumer on 30.5.1998, meter checked by the Nigam officials physically who found a fine pinhole in the meter cover in front side just below the meter and concluded that this is a clear case of theft of energy. This has also been signed by an employee of the consumer. According to Sections 39, 44C and 48 of the Electricity Act, 1910 the theft assessed by Nigam officials, the complainant was penalized as per Board's instructions and the respondent wanted to recover the amount only for 6 months to the tune of Rs. 3,80,967. In this case for unauthorised extension of connected /sanctioned load the Nigam had imposed penalty.
Submissions of the learned Counsel for the respondent:
6. The respondent was the complainant before the District Forum. Though FIR has been lodged against the complaint, he has not means that police are not convinced about the case. The complainant has not started the factory at all. The first inspection report was signed by a Chowkidar and second checking report was signed by another Chowkidar. As the factory had not started functioning they had engaged the services of the security agency hence the Chowkidar/watchmen who signed the reports were not their employees. Some of the machines were still in packed condition. No competent officer of the complainant was called by the officials of the Nigam and no notice was given to anyone of the officials of the complainant company.
7. The learned Counsel further submitted that Meter Reader was coming every month. Some lights were switched on and some water was consumed for which they were paying bills. regularly. As the manufacturing activity had not started they had not obtained registration for sales tax. Just to harass the complainant the checking was done by the Nigam officials. The Nigam officials have not demonstrated about tampering of the meter by inserting a piece of the bamboo in front of consumer or his staff or by issuing the notice for checking the meter in a M&T Lab. In view of the harassment the complainant has lost interest in starting the factory and hence has not asked for reconnection of the electricity supply.
Findings:
8. It is clear from the checking report that checking was not done either in the presence of the consumer or responsible officials of the consumer. The meter was not tested in the M&T Lab and no notice of testing was given to the consumer. Hence, the principles of the natural justice have not been followed by the officials of the Nigam. Complainant has not approached Nigam for compounding of the offence if any, and unilaterally, a penalty of Rs. 3,80,967 has been levied. If functioning of the factory of the complainant had started, there would have been huge consumption of water and electricity. No proof has been placed before us that the factory was in running condition.
9. Section 39 of the Indian Electricity Act, 1910 refers to 'theft of energy', which reads as follows:
Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both: and if it is proved that any artificial means or means not authorized by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer.
10. What the inspecting team saw was a small hole in front of the meter. They have not seen the consumer complainant abstracting/ consuming the electricity and using energy dishonestly, nor did they see any artificial means or unauthorized means used by the licensee for consumption of energy.
Section 44(c) of the Act reads as follows:
maliciously injures any meter referred to in Section 26, Sub-section (1), or any meter, indicator or apparatus referred to in Section 26, Sub-section (7), or wilfully or fraudulently alters the index of any such meter, indicator or apparatus, or prevents any such meter, indicator or apparatus from duly registering.
11. This section pertains to penalty for interference with meters or licensee's works and for improper use of energy and accordingly, maliciously injury caused to the meter etc., shall be punishable with imprisonment for a term, which may extend to three years or with fine, which may extend to five thousand rupees or both and so on. Therefore, as per this section only criminal proceedings can be initiated and not civil proceedings.
12. Accordingly, we do not see any legal infirmity or jurisdictional error in the order passed by the Fora below warranting interference under Section 21(b) of the Consumer Protection Act. Hence, this revision petition is dismissed. There shall be no order as to costs.