State Consumer Disputes Redressal Commission
1. Asst. Engineer Operation Dis Xxii By ... vs Smt. Parameshwari Devi Tiberwalal, ... on 21 July, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. FA/326/2014 (Arisen out of Order Dated 04/04/2013 in Case No. CC/787/2011 of District Hyderabad-II) 1. 1. Asst. Engineer Operation DIS XXII by C.VIII, Chenchalaguda 82, Section, A.P. Central Power Distribution Company Ltd., APCPDCLGreater Hyderabad 2. 2. The Assistant Accounts Officer AAO ERO 8, Sec 82, APCPDCL, Chenchalaguda, Hyderabad ...........Appellant(s) Versus 1. Smt. Parameshwari Devi Tiberwalal, Wife of Omprakash Tiberewala, Aged 70 Years, Occ House wife, R.o. 5.9.22 by 51, Adarshanagar, Hyderabad ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 21 Jul 2017 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA AT HYDERABAD FA NO. 326 OF 2014 AGAINST CC NO. No. 787 FO 2011, DISTRICT FORUM II, HYDERABAD Between: Asst. Engineer, Operation DIS-XXII/C-VIII, Chenchalguda (82) Section, A.P. Central Power Distribution company Ltd (APCPDCL) Greater Hyderabad The Assistant Accounts Officer (AAO), ERO-8, Sec 82, APCPDCL, Chenchalaguda, Hyderabad ... Appellants/opposite parties And Smt. Parameshwari Devi Tiberwalal, W/o Ompraksh Tiberewala, Aged 70 years, Occ ; House wife R/o 5-9-22/51, Adarshanagar, Hyderabad.. Respondent/complainant Counsel for the Appellants : M/s. Sri P. Ganeswar Rao Counsel for the Respondent : Sri Nisaruddin Ahmed Jeddy Coram : Hon'ble Sri Justice B.N.Rao Nalla ... President And Sri Patil Vithal Rao ... Member
Friday, the Twenty First Day of July Two Thousand Seventeen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) ****
1) This is an appeal filed under Section 15 of the Consumer Protection Act by the Appellants/opposite parties to set aside the impugned order dated 04.04.2013 made in CC No. 787 of 2011 on the file of the District Forum II, Hyderabad.
2) For the sake of convenience, the parties are described as arrayed in the complaint before the District Forum.
3) The case of the respondent/complainant, in brief, is that she purchased a residential flat no. 402 on the fourth floor of Jamuna towers, Adarshnagar, at Hyderabad and the opposite parties electricity department provided electricity service connection to the said flat under category I for domestic purpose. Later the opposite parties have changed the said service connection of category I under domestic purpose to category II for commercial purpose unilaterally without any intimation to the complainant and sent demand notice bill for Rs.50,565/- consisting of category II charges and penalty charges and when the complainant protested, the opposite parties have disconnected the electricity supply to the residential flat of the complainant without any notice. She got issued reply notice dated 25.06.2010 to the first opposite party requesting to undo the wrong viz. unilaterally changing electricity meter from domestic to commercial and further to restore status quo Ante but there was no reply. Back billing of Electricity is permissible only for a period of six months under the provisions of Section 24 of the Act and the bill for larger period is illegal. Demand from subsequent owner of the premises about the dues outstanding against the erstwhile owner of the premises is not legal. Hence the complaint to direct the opposite parties 1 and 2 to provide Residential Electricity Connection in Category I to the complainant's flat no. 402 instead of commercial category II and to restore electricity connection immediately and set aside demand notice dated 21.06.2010 for Rs.50,605/- consisting of category II charges and penalty charges raised by the opposite parties and direct the opposite parties to collect electricity charges as per category I in future course of time and award costs.
4. The appellants /Opposite Parties opposed the above complaint contending that the complainant is not the registered consumer with them as the said service connection is in the name of M/s.Jamuna Towers and not in the name of the complainant and hence the complainant is not a consumer. Further, the opposite parties first released the service connection in the domestic connection under category I in the year 1994 but on inspection it was found she was illegally utilizing the said service connection for non domestic purpose hence the said connection was changed to category II and she also paid consumption charges under category II for some period. The bill for an amount of Rs.50,065/- is due to dues for non payment of electricity charges from April, 2002 and the complainant is well aware of the same. Since April, 2005 the service was under disconnection but the bills were raised and issued from month to month by basing on minimum charges. The said due is a statutory liability and the consumer cannot avoid paying on the ground of limitation. Hence prays to dismiss the complaint.
5) During the course of enquiry before the District Forum, in order to prove her case, the respondent/complainant filed her evidence affidavit and got marked Ex.A1 to A-3 and the appellants/opposite parties filed Evidence Affidavit and got marked Ex. B-1 and both parties filed their respective written arguments.
6) The District Forum, after considering the material available on record, partly allowed the complaint setting aside the demand notice dated 21.06.2010 under Ex. A-2 and directed the opposite parties to collect arrears only for a period of six months prior to the demand notice and to appropriate the same towards already paid and towards future electricity bills payable by the complainant, to convert the service connection from category II to Category I, to pay Rs.2,000/- towards compensation for mental agony and a sum of Rs.1,000/- towards costs within 40 days.
7) Aggrieved by the said order, the appellants/opposite parties preferred this appeal on the grounds that the District Forum failed to consider the fact that (i) the complainant admitted in the complaint that she was having electricity connection since 1994 and subsequently when the department people have visited the premises the commercial activity was going on in the premises and after it was changed to category II. It is also an admitted fact by the complainant that she paid consumption charges for some time under category II and subsequently the SC gone Into OSL account due to non payment of energy charges. (ii) once the opposite parties have issued demand notice under section 126 of Electricity Act 2003 invariably the complainant has to file an appeal under Section 127 of Electricity Act 2003 and the District Forum has no jurisdiction to entertain the complaint, (iii) the Forum relied on Section 56(2) of Electricity Act 2003 which has no relevance to the facts of the case basing on the Supreme Court Judgement in AIR 2008 Supreme Court 2796 which allows the opposite parties to collect dues prior to 2003 basing on the Electricity Act 1948.
8) Counsel on both sides have advanced their arguments reiterating the contents in the appeal grounds, rebuttal thereof, in addition to, the written arguments filed by the respondent/complainant. Heard both sides.
9) The points that arises for consideration are, (i) Whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? (ii) To what relief ? 10) Point No.1 : (i) There is no dispute that the respondent/complainant is the owner of the flat no. 402, Jamuna Towers, Hyderabad and that the appellants/opposite parties have provided electricity connection initially under category I for domestic purpose and later without intimation it was changed to category II under commercial purpose. (ii) There is also no dispute that the appellants/opposite parties sent demand notice for payment of an amount of Rs.50,605/- towards arrears of the bills and since for non-payment of the same, her service connection was disconnected. 11). (i) The first contention of the appellants/opposite parties is that when the department people have visited, commercial activity was going on in the premises of the complainant and hence it was changed from category I to category II and the complainant admitted that she paid consumption charges under category II for some time. (ii ) The respondent/complainant argued that the appellants/opposite parties have unilaterally without causing any notice converted the service connection from category I to category II and sent demand notice on 26.06.2010 claiming a sum of Rs.50,065/- towards the arrears of the consumption charges for the period from 2002 to 2010 and that she is not liable to pay such long pending arrears raised under category II. She further argued that she is liable to pay for the Back billing of Electricity permissible only for a period of six months under the provisions of Section 24 of the Act and the bill for larger period is illegal. (iii) First of all, the appellants/opposite parties did not place any documentary evidence in support of their contention that the respondent/ complainant unauthorizedly using the electricity consumption for commercial purpose. They did not disclose what kind of commercial purpose in the said flat. They did not disclose who conducted the inspection and who were the witnesses present at the relevant time of inspection and whether they have given notice fixing date and time to the respondent/complainant to be present at the flat during the inspection. Further, they did not place the copies of the Register of Meter Readings and the date on which the inspection was conducted and from which time to which time they have conducted the inspection. They did not place the inspection report to peruse the veracity of the contentions. Further, they did not send the notice prior to the demand notice under Ex. A2 stating that they have conducted the inspection on so and so date and that they have found mis-use of electricity. They did not place the same at least at the appellate stage before this Commission. In the absence of such crucial evidence, it is not known as to how the opposite parties came to the conclusion that the respondent/complainant using the electricity for commercial purpose and as a consequence of the same they changed from category I to category II. The further contention of the appellants/opposite parties is that the complainant admitted that she paid consumption charges under category II for some time. But the appellants/opposite parties did not place any documentary evidence for which period she paid the same and when did she admit the same. When the appellants/opposite parties wanted to change from category I to II , it is their primary responsibility to send notice informing the circumstances that led to changing of the category from I to II. The above facts reveal that the appellants/opposite parties failed to prove that the respondent/complainant was using the electricity for commercial purpose in stead of domestic purpose and hence change of consumption charges from category I to category II is without any basis and in those circumstances it can be concluded that the demand notice issued under Ex. A2 claiming arrears for the period from 2002 to 2010 for 8 years converting from category I to II is illegal and liable to be set aside. 12) (i) The further contention of the appellants/opposite parties is that when once the opposite parties have issued demand notice under section 126 of Electricity Act 2003 invariably the complainant has to file an appeal under Section 127 of Electricity Act 2003 and the District Forum has no jurisdiction to entertain the complaint. (ii) The respondent/complainant argued that no notice under Section 126/127 has been issued by the appellants/opposite parties to her. Further, this is a case of wrong billing and mistake of calculation on the part of the appellant. (iii) We have perused amended Section 126 of Electricity Act 2003 and the same is reproduce here under :
Amendment of section 126. - In section 126 of the principal Act,- (i) for sub-section (3), the following sub-section shall be substituted, namely:- "(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person."; (ii) in sub-section (4), the proviso shall be omitted; (iii) for sub-section (5), the following sub-section shall be substituted, namely:- "(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection."; (iv) in sub-section (6), for the words "one-and-half times", the word "twice" shall be substituted; (v) in the Explanation occurring at the end, in clause (b), for subclause (iv), the following sub-clauses shall be substituted, namely:- "(iv) for the purpose other than for which the usage of electricity was authorised; or (v) for the premises or areas other than those for which the supply of electricity was authorised."
As per the above amended section , the appellants/opposite parties have to give an opportunity to the respondent/complainant to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person pass a final order of assessment. But the appellants/ opposite parties did not give any opportunity to the respondent/complainant to redress her grievance and even they did not peruse her legal notice dated 25.06.2010. The above facts infer that the appellants/opposite parties did not follow the above rule. Further, the above section reveals if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. In view of the above statutory position, even if we consider that there was unauthorised use of electricity by the respondent/complainant such period shall be limited to a period of twelve months immediately preceding the date of inspection. The above facts reveal that as contended by the respondent/complainant, the appellants/opposite parties did not give notice as per Section 126 and did not give any opportunity to the respondent/complainant to redress her grievance as per the above amended section . Further, as per Section 3 of the Consumer Protection Act, 1986, the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. In view of the above legal position, Consumer Fora have jurisdiction to entertain the complaint. The above statutory position enunciates that the appellants/ opposite parties violated the provisions of their own Electricity Act in giving an opportunity to the respondent/complainant to redress her grievance and without any notice they have sent the demand notice and further the Consumer Fora have jurisdiction to entertain the complaint.
13) (i) The further contention of the appellants/opposite parties is that the Forum relied on Section 56(2) of Electricity Act 2003 which has no relevance to the facts of the case.
(ii) Section 56(2) of the Electricity Act, 2003 stipulates that " Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity". Further, since section 126 stipulates that if the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. But there is no evidence on record to show whether they have conducted any inspection. The appellants/opposite parties have issued demand notice under Ex. A-2 dated 21.06.2010. In view of the above factual position, we are of the opinion that the appellants/opposite parties are entitled to claim arrears for a period of 12 months prior to the demand notice dated 21.06.2010.
14. After considering the foregoing facts and circumstances and also having regard to the contentions raised on behalf of the appellants/opposite parties and the respondent/complainant, this Commission is of the view that the demand notice issued under Ex. A2 claiming arrears for the period from 2002 to 2010 for 8 years converting from category I to II is illegal and liable to be set aside. Appellants/ opposite parties have violated the provisions of their own Electricity Act in giving an opportunity to the respondent/complainant to redress her grievance and without any notice they have sent the demand notice and further the Consumer Fora have jurisdiction to entertain the complaint and further the opposite parties are entitled to claim arrears for a period of 12 months prior to the demand notice dated 21.06.2010 while rest of the impugned order holds good. This Commission answered Point No. 1, accordingly.
15. Point No. 2 :
In the result, the appeal is allowed in part and the order of the District Forum is modified directing the appellants/opposite parties to claim arrears for a period of 12 months prior to the demand notice dated 21.06.2010 while confirming the rest of the impugned order. Time for compliance four weeks.
PRESIDENT MEMBER Dated :21.07.2017. [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER