A.P.S.E.B. vs UDAY KUMAR JAISWAL

FA. IA. No. 1198/1998 is an application for condoning the delay of 41 days in presenting the appeal FA. SR. No. 3209/1998 against the order of the Adilabad District Forum in OP No. 108/ 1997 dated 2.9.1998. In support of this application one Mr. B.S. Ramachandra Rao, Assistant Secretary (Legal) of the petitioner/appellant A.P. State Electricity Board has filed his affidavit dated 14.11.1998. He admits that the certified copy of the order of the District Forum dated 2.9.1998 was delivered on 4.9.1998 itself and that the said order was forwarded to the Board on 10.9.1998 by the Counsel and was received by the petitioner''s office on 15.9.1998. Even on that basis the last date for presenting the appeal was 15.10.1998. The appeal was presented on 14.11.1998. The delay was said to be due to pressure of work in the office of the Liason of the Board due to which the Counsel at the State Forum could not be approached till 30.9.1998 and that on 1.10.1998 they obtained the opinion of the Counsel of the Board before the District Forum and then instructed the Standing Counsel of the Board to present the appeal only on 9.10.1998. The delay thereafter was explained as "Meanwhile, it was given to understand that the bundle was misplaced. Upon insisting by the appellants the Counsel made efforts to trace the bundle and the same is filed today". It was further contended that the delay was neither wilful nor wanton. We do not find any ground for condoning the delay. It is most unfortunate that the Officials of the Board do not realise the importance of presenting the appeals within time. If the mere statement pressure of work'' is to be the ground for condoning the delay in presenting the appeal, then all provisions of limitation will become writings on water. No sanctity seems to be attached to doing the things promptly. We may also note that it has become a fashion these days for every one to explain away the un-explainable delay by merely stating that the bundle was misplaced and that after an effort was made the bundle was traced on the same day when the appeal was being filed. We had made it clear ever and anon that this type of explanation does not stick and that it is not worthy of any credence. If really in the present case the bundle was misplaced by the Counsel, the Counsel should make the statement to that effect by an affidavit. We find that today the Counsel for the Board seeking condonation of the delay is not even present before us even though the matter has been posted for dismissal/ disposal because he was not present earlier when the matter came up on 15.3.1999. This speaks volumes about the importance being given by all concerned to matters before this Commission. As we do not find any sufficient cause made out for condoning the delay, FA. IA No. 1198/1998 is dismissed and consequently FA. SR. No.3209/ 1998 is rejected.

WE have perused the order of the District Forum in OP No. 108/1997 dated 2.9.1998 to satisfy ourselves about its legality and regularity. WE also heard the learned Counsel for the respondent/complainant in FA. IA. No. 1198/ 1998 and FA. SR. No. 3209/1998. WE find that the order of the District Forum is without jurisdiction because the dispute raised by the complainant before it was not a consumer dispute which could be entertained by the District Forum. The reliefs sought by the complainant before the District Forum, in his own words, were as follows : "(i) Direct the respondents to re-connect the service connection No. 13301. (ii) Declare the notice dated 5.5.1997 is null and void. (iii) To declare the calculation and consumption of the load is incorrect and false. (iv) To award costs of the proceedings to the petitioner. (v) Any other relief if the Hon''ble Forum deems fit and proper, in the circumstances of the case, in the interest of justice."

The notice dated 5.5.1997 related to pilferage of energy being made by the complainant discovered by the officials of the Board on inspection made on 2.5.1997 of the meter and the related equipment at the complainant''s premises receiving supply of electrical energy under Service Connection No. 13301 at Adilabad. According to the complainant a false case was set up against him alleging pilferage of energy he even went to the extent of saying that the officials of the Board themselves placed a loop wire connecting from terminal phase of meter to fuse wire and fabricated the factual basis for pilferage. It was after the discovery of the pilferage that the supply of energy to the complainant''s premises wherein he was running a hotel, was disconnected and the impugned notice dated 5.5.1997 was issued and after enquiry he was informed by an order of the authority concerned that the cost of pilferaged energy was provisionally estimated at Rs. 57,660/- and that he would get reconnection of the service if he paid about half of that i.e., Rs. 28,755/-.

The Supreme Court held in M.P. Electricity Board v. Harsh Wood Products, (1996) 4 SCC 522 = AIR 1996 S.C. 2258, that when pilferage was discovered supply of energy could be disconnected without any notice to the consumer of energy. The Supreme Court further held in that case that Section 24 of the Indian Electricity Act, 1910 did not apply to demand on detection of pilferage. By no stretch of imagination can it be said that under those circumstances there was any deficiency in service on the part of the Electricity Board in stopping supply of energy The terms and conditions of supply of energy clearly provide an enquiry in cases of pilferage and also provide for appeals. In Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board, IV (1998) SLT 182 (SC)=(1998) 4 SCC 470= AIR 1998 SC 1715, the Supreme Court has held that the terms and conditions prescribed by the A.P. State Electricity Board (''the Board'' for short) under Section 49 of Electricity (Supply) Act, 1948 are statutory in character. The contention advanced before the Supreme Court on behalf of consumers that the Board can neither define "malpractices" nor prescribe an adjudicatory machinery for assessing and levying penal damages has been rejected by the Supreme Court. The Supreme Court has upheld the validity of Clause 39 of the terms and conditions of supply providing for enquiries in cases of malpractices, and for provisional assessment of the loss sustained by the Board by reason of malpractices or pilferage of energy committed by consumers, and for final assessment thereof. The Supreme Court has observed that "Clause 39 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 further clarified as follows : "But learned Senior Counsel for the Board, Mr. Shanti Bhushan, has fairly conceded that the orders (of the authorities under Clause 39) are subject to judicial review and the jurisdiction of the Courts cannot be taken away by the clause. It is to be noted that the Trial Court and the High Court have in this case upheld the jurisdiction of the Civil Court to entertain the suit and consider the validity of the orders passed by the Board against the consumers".

THUS if the complainant is aggrieved by any orders passed by the authorities concerned pursuant to the terms and conditions of supply it will be open to the complainant to question the same in a Civil Court or before the High Court invoking Article 226 if he is so advised. But the same cannot be questioned before the Tribunals under the Consumer Protection Act, 1986 (''the Act'' for short) because no consumer dispute can arise out of the dispute relating to pilferage of energy. We may also state that in the present case the District Forum, after considering the material placed before it, held that as a fact the pilferage was established. The District Forum also held that there was no deficiency in service on the part of the A.P. State Electricity Board. The complainant had not filed any appeal questioning the order of the District Forum and therefore the findings of the District Forum that there was pilferage and that there was no deficiency in service had become final and binding on him. Yet the District Forum proceeded to give directions to the opposite parties to assess the amount for the energy pilferaged in the manner indicated by it, which was clearly beyond the jurisdiction of the District Forum. The law is well settled that when once it is held that there is no deficiency in service the Tribunals under the Act are not competent to give unwarranted adhoc directions. In the result, we hold that the order of the Adilabad District Forum in OP No. 108/1997 dated 2.9.1998 is illegal and irregular and consequently set it aside in exercise of our revisional powers under Section 17(1)(b) of the Act. Order set aside.