ABDUL ALI vs ASSISTANT ACCOUNTS OFFICER, E.R.O., A.P. TRANS CO. LTD

THE complainant seeks to agitate by way of the present complaint matters and questions which are, in our view, clearly beyond the jurisdiction of this Commission.

THE complainant has set up a small scale unit and he has been receiving energy from the A.P. State Electricity Board (''A.P.S.E.B.'' for short) now A.P. Transco LTD. While so on 23.12.1997 his unit had a visit from the officials of the A.P.S.E.B. and, on the ground that he was caught pilfering energy, his service connection was disconnected and supply of energy was stopped. He then approached the Hon''ble High Court of Andhra Pradesh by way of the Writ Petition No. 892 of 1998. THE Hon''ble High Court by order dated 15.10.1998 directed continuance of supply pending enquiry into the pilferage by the authorities concerned subject to the condition of the complainant depositing in all Rs. 1,43,000/- being th of the provisional assessment made of the value of energy allegedly pilfered by the complainant. THE complainant states that he complied with the condition imposed by that order and that the supply of energy was restored to him is being continued. THE 2nd opposite party i.e. Superintendent Engineer (Assessments), A.P. Transco Ltd., by order dated 26.4.1999 held that the complainant committed pilferage of energy and assessed the value of the energy pilfered by him at Rs. 5,75,532/- and required him to pay the said amount within 30 days from the date of receipt of the order. THE said order was received by him on 10.6.1999. THE complainant had already preferred an appeal against that order of the 2nd opposite party before the 3rd opposite party i.e. the Chief Engineer, Electrical Metro Zone, A.P. Transco Ltd., Hyderabad. The complainant states that the order of the 2nd opposite party was without any reasonable opportunity to him and that it was in violation of principles of natural justice. He states that notice dated 20.3.1998 purported to have been issued to him in respect of the enquiry allegedly conducted by the 2nd opposite party was in fact received by him only on 5.5.1999 i.e. after the final order was made by the 2nd opposite party on 26.4.1999. The complainant apprehends that disconnection of supply of energy to his small scale unit would be effected any time for non-payment of the full amount as assessed by the 2nd opposite party in his final order dated 26.4.1999 even though his appeal before the 3rd opposite party is still pending. He has approached this Commission by way of the present complaint petition for directions to the opposite parties not to disconnect the power supply pending disposal of his appeal before the 3rd opposite party.

We heard the learned Counsel for the complainant. We find that the dispute raised by the complainant is not a consumer dispute because it relates to enquiry into pilferage by the authorities concerned as per the terms and conditions of supply framed by the A.P.S.E.B. under Section 49 of the Electricity (Supply) Act, 1948 (''Supply Act'' for short). Clause 39 of the terms and conditions of supply defines various malpractices and provides for enquiry into them and for provisional assessment and final assessment and appeal. In Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board & Ors., IV (1998) SLT 182=AIR 1998 SC 1715, the Supreme Court has held that the terms and conditions of supply framed by the A.P.S.E.B. are statutory in character and that they cannot be said to be purely contractual. The Supreme Court upheld the validity of Clause 39 and has observed that "it will come into play whenever there is malpractice or pilferage on the part of the consumer or a fraud played by the consumer". The Supreme Court has held further as follows : "Clause 39 does not violate any provision in the Supply Act. It is the statutory duty of the Board to arrange for the supply of electricity throughout the State and for transmission and distribution of the same in the most efficient and economical manner. For that purpose it has necessarily got to prevent unauthorised user, pilferage or malpractices by the consumers. Hence the necessary safeguards have to be provided as part of the conditions of supply so that the consumers will be bound by them. While on the one hand, the Board has to recoup the loss suffered by such pilferage or other malpractices, it has also on the other got to stop immediately the continuation thereof. Hence the Terms and Conditions of Supply have to provide for compensation as well as immediate disconnection. For ascertaining the loss and fixing the compensation, a uniform procedure has to be framed and a machinery constituted. Clause 39 is only doing that. Every consumer is made fully aware of the said terms and he signs the contract only on that basis. He gives an undertaking in that contract that if he is found indulging in any malpractice etc. he shall pay additional charges as may be levied by the Board and that the Board have the right to disconnect supply of electricity to his premises for such period as may be decided by the Board."

The Supreme Court has also observed that the orders made by the officials of the A.P.S.E.B., now the A.P. Transco Ltd., are subject to judicial review and the jurisdiction of Courts cannot be taken away by that clause. But the Tribunals under the Consumer Protection Act, 1986 have no jurisdiction to exercise the power of judicial review over the orders made by the officials of the A.P.S.E.B. in exercise of their powers under Clause 39 of the terms and conditions cf supply which are statutory in character - such orders are made in exercise of powers which have a statutory foundation. If the complainant is aggrieved by the order of the 2nd opposite party dated 26.4.1999 on the ground that it was made in violation of principles of natural justice and fair play he cannot agitate the same before this Commission. The complainant had already preferred an appeal which is pending. The venue for redressal of such grievances is elsewhere.

IN the result, the complaint is dismissed as not maintainable. Complaint dismissed.