State Consumer Disputes Redressal Commission
Sri Mritunjoy Nath vs Sri Shanti Debnath on 4 July, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/955/2014 (Arisen out of Order Dated 29/04/2014 in Case No. CC/378/2013 of District Howrah) 1. Sri Mritunjoy Nath S/o Late Madan Mohan Nath, Vill. - Ghar Bhanga Basudebpur, P.O. - Belkulai, P.S. - Uluberia, Dist. - Howrah - 711 322. 2. Sri Amar Chandra Nath S/o Late Madan Mohan Nath, Vill. - Ghar Bhanga Basudebpur, P.O. - Belkulai, P.S. - Uluberia, Dist. - Howrah - 711 322. ...........Appellant(s) Versus 1. Sri Shanti Debnath S/o Late Madan Mohan Nath, Vill. - Basudebpur, P.O. - Belkulai, P.S. - Uluberia, Dist. - Howrah - 711 322. 2. The Chairman, WBSEDCL Bidyut Bhavan, Salt Lake City, Kolkata - 700 091. 3. The Station Manager, WBSEDCL Vill. & P.O. - Belkulai, P.S. - Bauria, Dist. - Howrah - 711 310. 4. Sri Pradip Mukherjee S/o Late Achhutananda Mukherjee, Vill. - Basudebpur, P.O. - Belkulai, P.S. - Uluberia, Dist. - Howrah - 711 322. 5. Sri Pronab Mukherjee alias Sasa S/o Lt. Achhutananda Mukherjee, Vill. - Basudebpur, P.O. - Belkulai, P.S. - Uluberia, Dist. - Howrah - 711 322. 6. Smt. Kalyani Nath W/o Panna Nath, Vill. - Basudebpur, P.O. - Belkulai, P.S. - Uluberia, Dist. - Howrah - 711 322. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Mrs. Malabika Mukherjee , Advocate For the Respondent: Mr. Amit Pachal., Advocate Mr. Abir Sarkar., Advocate ORDER MR J. BAG, MEMBER
The present appeal is directed against the Order , dated 29.04.2014, passed by the Ld. District Consumer Disputes Redressal Forum, Howrah, in Complaint Case No. HDF378 of 2013, whereby the complaint was allowed on contest without cost against OP Nos. 1 and 2 and dismissed without cost against OP Nos. 3 to 8.
The Complaint case, in brief , was as follows :
The Complainant was enjoying and using the electric connection by paying the requisite electricity charges regularly to OP No. 2, being the Station Manager, WBSEDCL, Burikhali, PS : Bauria, District-Howrah. The electric meter was installed at Plot No. 270 and the said plot belonged to OP No. 6 being Sri Sanat Nath. The Complainant applied before the OP No. 1 for shifting of the electric connection from his previous place to his new property and/or the place where the Complainant resides. Requisite quotation was paid . The OP No. 2 did not shift the electric meter from the old place to the present place of the Complainant, on the ground, as stated by them, that OP No. 3 and 4 are raising objection stating that there is a Title Suit pending . The Complainant further stated that the WP No.25326 (W) of 2012 was filed before the Hon'ble High Court at Calcutta which was disposed of on 11.12.2012. The order of the Hon'ble High Court was duly communicated to OP No. 1 and OP No. 2 after which the OP No. 2 conducted an inspection at the site and as usual the OP No. 3 to 8 raised their objection and OP No. 2 on that very ground did not shift the electric meter. The OP No. 2 by a letter dated 7th January , 2013 asked the Complainant to submit an alternative route connection. The Complainant informed the OP No. 2 about such route , but the shifting of the electricity connection has not been effected. The Complainant has free right over the Dag Nos. 482 and 484 within Gharbhanga Mouza, PS : Uluberia, District- Howrah. In spite of several contact with OP No. 2 they did not pay heed to the request of the Complainant and as such finding no alternative, a legal notice was issued to OP No. 2 in the matter of shifting the electric meter to his own place. Still there was no action. In the said circumstances. The Complainant approached the Ld. Forum below with prayer for direction upon the Opposite Party No. 1 to shift the electric meter and also for direction upon other OPs not to obstruct OP No. 2 in any way about shifting of the electric meter, praying also for compensation of Rs.50,000/- and cost of Rs.30,000/-.
The complaint has been contested by OP Nos. 1 and 2, who in their written version contended that because of objection raised by the OP Nos. 3 to 8 way leave was not available and as such, shifting as desired by the Complainant could not be made. Though notices were served upon OP Nos. 3 to 8, they did not file written version or take any step to justify their objection except power submitted against such shifting.
Ld. Forum below after having considered the materials on record observed that it was only due to objection raised by the OP Nos. 3 to 8 that OP No. 2 could not shift the existing electric meter of the Complainant. Ld. Forum below observed that as per Section 43 of the Electricity Act, 2003 an occupier of a property has a statutory right to call upon the distribution company to provide electricity and once the requisite application was filed and deposition of necessary quotation amount made, the distribution company has a statutory obligation to provide electricity and/or to allow the shifting. Accordingly, the complaint was allowed on contest without cost against OP Nos. 1 and 2 and dismissed without cost ex parte against OP Nos. 3 to 8. The OP Nos. 1 and 2 have been directed to shift the existing service connection in the premises of the Complainant at Dag No. 482 through common passage by the side of plot no. 270. Further, OP Nos. 3 to 8 have been restrained from causing any disturbances at the time of shifting to the existing service connection. OP No.2 was also directed to approach the local Police Station for help for effecting the shifting of electricity meter to the Complainant's premises.
Being aggrieved by and dissatisfied with order of the Ld. Forum below, OP Nos. 7 and 8/ Appellants herein have come up before this Commission with prayer for direction to set aside the impugned order among other reliefs.
Ld. Advocate appearing for the Appellant submitted that the Respondent No. 1 prayed for an industrial meter for commercial purpose. As such, the Complainant/Respondent is not a consumer under the Consumer Protection Act. It was also submitted that the OP No. 6 (Sanat Nath) died on 18.03.2014, but no substitution application was filed. The Respondent /Complainant wants electric connection through Plot no. 782 which is an undivided property since the co-sharer of the property have objection to extend electricity connection through that property to Respondent /Complainant and he can not be allowed to take connection through that property. A Title Suit has already been filed and is pending for disposal. No opportunity being given to the OP Nos. 3 to 8, documentary evidence could not be brought to the knowledge of the Ld. Forum below and as such, the impugned order suffers from material irregularity and such order may be set aside.
Ld. Advocate appearing for the Respondent/Complainant submitted that all notices were duly served upon the OP/Appellants. They did not appear to contest the case. Complaint was filed before the Ld. Forum below prior to demise of the OP No. 6.There is no material irregularity or legal infirmity. The impugned order deserves to be upheld.
Ld. Advocate for WBSEDCL submitted that they were ready to provide electric connection subject to identification of free way leave for the purpose of extension of electric line.
Decision with reasons:
The memorandum of appeal has been filed together with copies of the impugned order, the petition of the complaint and other documents including the copy of the order dated 28.01.2004 of the Ld. Civil Judge (Jr. Division), First Court, Uluberia, wherein the Defendant No.7 to 9 were directed to maintain status quo as regards the nature and character and possession of the suit property till the disposal of the suit.
The point for consideration is whether the impugned order suffers from material irregularity or legal infirmity.
It is a fact that the Complainant /Respondent applied for the shifting of his electric meter from the plot no. 270 to his possessed/ purchased property situated at Dag No. 482 and paid the quotation amount as billed by the OP-2.
What Ld. Forum below observed is that due to the objection of the OP Nos. 3 to 8 in the complaint petition, the electricity authority could not effect shifting of the existing meter of the Complainant/Respondent.
In their observation, Ld. Forum below also noted that the notices were served upon OP Nos.3 to 8 but no written version was submitted except power to contest the complaint. In this connection it is worthwhile to mention that in dealing with the application of the Appellants for condonation of delay in filing the appeal it has been observed by this Commission in its order dated 06.05.2015 that OP Nos. 7 & 8 , Appellants herein were not particularly recorded to have appeared or filed power as contended by the Respondent . It is also not on record if the notices were served properly upon those OPs /Appellants herein. The complaint was allowed ex parte against OP Nos. 3 to 8 and in this connection the observation of Hon'ble National Consumer Disputes Redressal Commission in Revision Petition no. 1009 of 2008 as reported in 2016 (1) CPR 877 (NC) and cited on behalf of the Respondent /Complainant does not help the Respondent /Complainant as it reveals from record that the complaint case was heard ex parte against the OPs/ Appellants herein without due service of notice upon them. Whatever the points of objection might be against the Respondent/Complainant, the said OP/ Appellants did not have the opportunity to express before the Ld. Forum below.
Further , it appears that the Respondent/Complainant , as alleged by the Appellants changed his surname as Debnath in place of Nath and also suppressed the fact of death of the OP No. 6 against whom the complaint was filed. Such, alleged irregularities were not brought to the notice of the Ld. Forum below only because the Appellants /OPs did not get opportunity of submitting evidence before the Ld. Forum below . We are inclined to hold that the matter should be adjudicated afresh by giving opportunity of hearing to both parties who may adduce their evidence in support of their own averment /contention. In that view of the matter the case should be referred back to the Ld. Forum below for fresh adjudication. Hence, Ordered that the appeal be and the same is allowed on contest . The impugned order is set aside . The case is referred back to the Ld. Forum below on remand for fresh adjudication with hearing of both parties afresh and upon submission of necessary evidence as they would like to adduce in their respective support. Parties are directed to appear before the Ld. Forum below on 17.08.2016 for necessary order by the Ld. Forum below. There shall be no order as to cost. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER