C.E.S.C. Ltd. vs LARICA HOLIDAY RESORT

THE fact of the case is that the supply line under Consumer No. 29065047001 at 10, East, Tapsia Road, Calcutta-46 stands in name of Smt. Usha Aggarwal. THE supply line was disconnected on 12.7.1993 by the C.E.S.C. Limited who is appellant in this case on the ground of dishonest abstraction consumption/use of power tampering with proprietary seals affixed on the meter and service apparatus and for unauthorized extension of supply to Premises No. 11, East Tapsia Road where the power load far in excess of the sanctioned load was illegally drawn for running the Larica Holiday Resort which is a big business complex over big plot of land. Some representatives on behalf of the respondent met with the officials of the appellant for discussion in the matter while they admitted the fact that M/s. Larica Holiday Resort who is respondent herein using the supply line standing in the name of Smt. Usha Agarwal.

IT is stated by the appellant that the representative of the respondent agreed to meet the liability of the unmetered consumption charges of Rs. 92,592.98 (92,592.98) if the appellant could revise to ad hoc amount of Rs. 15,000/- by the appellant but the appellant could not accept the said offer given by the respondent/complainant. It is admitted by the appellant that it supplied electricity to the respondent M/s. Larica Holiday Resort and another named Sri S. Provat but both the supply lines were disconnected for illegal abstraction of power by the complainant / respondent.

It is alleged by the appellant that the Larica Holiday Resort in admission of its offence paid Rs. 78,272/- against unmet red consumption charges and also made a security deposit of Rs.1,645/- in addition to reconnection charges. It is further alleged that in view of repeated acts of violations of the provisions of law of electricity on the part of the Larica Holiday Resort, the appellant/C.E.S.C. Ltd. withheld the supply to said Larica Holiay Resort until the cause of disconnection is removed and the unmetered consumption including Government duty are realized.

IT is contended by the appellant that in violation of the conditions of agreement where the theft of electricity prohibited if any consumer makes theft of electricity, the appellant has right to rescind the contract and it is also the right to disconnect the supply line temporarily or permanently and that could be done even without service of notice. The appellant further contended that in the case of pilferage or tampering by any consumer prior notice would make the consumer cautious which would prejudice the interest of the appellant and defeat the detection of pilferage or theft by the consumer in violation of the terms and conditions of the agreement. Further service of notice of disconnection to the consumer would encourage the consumer to obtain order or injunction restraining the appellant to act any further.

IT is contended that pilferage or theft of electricity causes not only loss of revenue to the appellant but also the State Government. IT is stated by the appellant that every consumer of electricity is bound to pay the duty under the Bengal Electricity Duty Acts to the State Government, under Section 57 of the said Act. The appellant as a licence is required to collect the duty from the consumer and disburse the same to the Tate Government. IT is stated by the appellant that all electrical apparatus related to the installation of meter are properties of the appellant and nobody has any authority to remove or handle the same. It is stated that seals which are fixed to the meters being the properties of this appellant must not be broken by the consumer and the consumer shall be liable for damage or injury resulting from such unauthorized actions. It is contended that if pilferage or tampering of electricity are caused by the consumer then the consumer is punishable under the Act. It is further contended that under Sections 40 and 44 of the Indian Electricity Act the appellant is entitled to disconnect the supply by reasons of such illegal and unlawful acts and the provisions of clause 6 of the schedule to the Act also supports the same views.

IT is alleged that the forum below without any application of judicial mind passed the order without considering the merit of the illegal acts and without considering the fact that the complainant has got no authority and/right to file this complaint and the forum below ought to have imp leaded Smt. Usha Agarwal as a party to the proceeding and after hearing her necessary orders ought to have been passed. But the forum below motivately and arbitrarily and illegally directed the appellant to restore the supply line of the appellant upon payment of Rs. 20,000/- on ad hoc basis as against the arrear of Rs. 92,592.98.

IT is alleged that the impugned judgment of the C.D.F. is highly prejudicial to the interest of the appellant. In the same petition it was also prayed for condonation of delay for filing the appeal along with the prayer for setting aside the order for judgment dated 21.9.93 in C.D.F. Case No. 1993/93. The respondent M/s. Larica Holiday Resorts contested the appeal by filing written objection and contended that the appellant filed this appeal only for harassment to the respondent. IT is further contention of the respondent that the appellant entered appearance before the CDF and upon hearing both the parties, the Id. C.D.F. was pleased to pass the necessary order directing the appellant to accept Rs. 20,000/- as ad hoc amount and to restore the connection of the electricity and referred the matter to CEI. It is contended by the respondent that the said order was passed in presence of the appellant and also the said order was duly communicated to it. The appellant did not comply with the order passed by the Id. C.D.F., consequently the appellant had to file execution case bearing No. 173/93 and the appellant also entered appearance in that execution case and in the execution case also the repeated direction was given to C.E.S.C. Ltd./Appellant to restore the electric supply but it was flouted by said C.E.S.C. Ltd. It is alleged that the appellant has no ground to file this appeal and no petition for condonation of delay was filed before the State Commission only taking plea that the case is under Section 17(b) of the Consumer Protection Act. The appellant tried to bye-pass from the provision of law and under any circumstances revision does not lie in view of appeal provision under Section 15 of the Consumer Protection Act, 1986.

It is further the allegation that the appellant filed this appeal just for harassment and when the Id. C.D.F. was going to punish the appellant for non-compliance of the order, the appellant preferred this revision to forestall the execution.

IT is contended that the appellant being the monopolist in supply of electricity causes extreme harassment and torture on its consumer by filing such fictitious revision, the appellant further caused extreme loss to the respondent due to the negligence whimsical and arbitrary actions on the part of the appellant. It is alleged that the appellant has not filed any document and papers in support of their contention and to prove the offence of the complainant/respondent. The Id. C.D.F. passed the lawful order by referring the matter to C.E.I., Government of West Bengal for adjudication of the disputed bill after preliminary payment of Rs. 20,000/- by the complainant/respondent. It is alleged that although the complainant/respondent is not liable to pay any amount on that account but only to obey the order of the Id. C.D.F. he paid Rs. 20,000/- to the appellant. It is stated that the complainant/respondent has been passing days without electricity as such he sought for immediate and speedy relief in this regard and prayed for dismissal of the appeal directing the C.E.S.C. Ltd./Appellant herein to restore the supply line and to confirm the order passed by the Id. C.D.F. and for compensation etc. DECISION

AT the outset we observe that to avoid the law of limitation in filing the appeal specified under the Consumer Protection Act, 1986, the appellant instead of preferring an appeal against the final judgment and order dated 21.9.93 passed in C.D.F. Case No. 1993/93 filed an application under nomenclature of revision and it has been practice of the appellant to file a revision application against challenging the final judgment and order where actually appeal lies. We are clearly of opinion that in the instant case the appeal lies but not the revision as has been filed by the appellant. Obviously as there is no specific law of limitation for filing the application for revision in C.P. Act, 1986 the appellant takes the opportunity to avoid law of limitation by filing an appeal in the Memo of revision. In the instant case as the revision against the final judgment and order of the Id .C.D.F. is misconceived the revision application is not maintainable. Apart from the point of maintainability if we also go for merit we find that the complainant/respondent purchased the right title and interest including all assets in the premises No. 10, East Tapsia Road, Calcutta-46 where the Electric meters stood in the name of Smt. Usha Agarwal. So, the said Smt. Usha Agarwal by selling the premises in question along with all fixtures thereto has divested herself the proprietary right about the meter in connection with the Consumer No. 29045047601 and if the complainant/respondent after stepping into the right title and interest of the erstwhile owner Smt. Usha Agarwal enjoys the electric meter in her name, there is no illegality on the part of the complainant/respondent. We also observe that the appellant has alleged of pilferage or theft of electricity by the consumer/complainant but no such cogent documents have been produced before us in support of their such allegation. Further that if there had any theft or pilferage of electricity then the Inspector who visits every month for taking the meter reading could have detected the same and ought to have brought into the notice of the appellant of such alleged theft or pilferage of electricity from the supply line. Moreover no F.I.R. or any criminal proceeding had been started against the complainant/respondent as to the allegation of theft or pilferage of electricity. Under these circumstances we cannot accept the contention of the appellant. Id. C.D.F. by applying its judicial mind rightly directed to restore the electric line of the complainant/respondent after acceptance of Rs. 20,000/- fixed after bargaining between the parties before the forum until the dispute is settled by CEI. We are also surprised to note that the appellant has accepted the money which amounts acceptance of the order of the Id. C.D.F. but the Appellant would partly accept the order and refuse to accept the other part of the order by refusing to restore the supply line of the complainant/ respondent is not acceptable to us and it was also right decision to refer the dispute to the C.E.I, for adjudication of line of the complainant/respondent. We observe although that the supply line of the complainant/respondent causing irreparable loss and extreme hardship to him.

SO, we uphold the order dt. 21.9.93 awarded by the Id. C.D.F. in C.D.F. Case No. 1993/ 93 and direct the C.E.S.C. Limited to restore the supply line of the complainant/respondent at once.

WE further award Rs. 5,000/- as compensation to the complainant/respondent payable by the appellant within a month for causing hardship and loss to the complainant/respondent. The Appellant/C.E.S.C. Ltd. shall forthwith comply with the order as per direction given above. The appeal is thus dismissed on contest with modification of the order of the Id. C.D.F. as stated above. It is made clear that in default to comply with the aforesaid direction, the Id. C.D.F. is at liberty to proceed with the execution case started before it. Appeal dismissed.