GANESH MECHANICAL WORKS vs EXECUTIVE ENGINEER, ELECTRIC SUPPLY DIVISION (U)

THIS appeal by the complainant is directed against an order dated 29.7.1997 passed by District Forum, Gaya in Complaint Case No. 36 of 1994 whereby the District Forum dismissed the complaint filed by the complainant-appellant.

THE case of the complainant Ganesh Mistri was that he as the proprietor of M/s. Ganesh Mechanical Works at Gaya has Arc Welding Set which is run by electrical energy and for that he had taken Electric Connection No. 11530 L.T.I.S. from Bihar State Electricity Board. He had entered into an agreement with the said Electricity Board on 15.1.1976 under the terms of which he had installed electric motor of 3 H.P. and was to pay energy charges for 8.36 H.P. THE Executive Engineer, Urban Electric Supply Division, Gaya, visited the site of his Arc Welding Shop and wrongly reported that the name plate of the Arc Welding Set was missing and hence he levied charge on the consumption of electrical energy for the total load of 14 H.P. with effect from August, 1991. Under the circumstances he (complainant) filed Complaint Case (25/92) before the District Forum, Gaya, and then Appeal No. 148 of 1992 before the State Commission which was dismissed for default. THEreafter the Executive Engineer (opposite party No. 1) sent a letter dated 27.7.1993 to him (complainant) calling upon him to execute a fresh agreement on the load of 17.4 H.P. and to deposit all the arrears of energy bill calculated on the basis of 17.4 H.P. within seven days and further wrongly mentioning therein that the State Commission had confirmed the energy load of 17.4 H.P. In view of the observation of the High Court in C.W.J.C. No. 7345 of 1992 he had filed a representation before the opposite party No. 2 (Superintending Engineer) but he instead of considering his representation on merit rejected the same vide his letter dated 11.1.1993 and justified the billing on 14 H.P. load. Under the circumstances he filed complaint case for restraining the opposite party (respondents) from compelling him to execute fresh agreement for 17.4 H.P. load and for restoring his electric connection. The opposite party filed show cause (written statement) before the District Forum and had contested the case. The case of the opposite party was that the complaint case was not maintainable and the complainant had no cause of action. The case was also barred by limitation, estoppel, waiver, acquiescence and principle of res judicata. The matter in dispute had already been decided by the District Forum in earlier Complaint Case No. 25/92 vide order dated 17.7.1992 and Appeal No. 148/92 preferred by the complainant against the said order of the District Forum had been dismissed by the State Commission on 25.1.1993. The representation filed by the complainant in view of the observation of the High Court in C.W.J.C. No. 7345/92 had already been disposed of against the complainant on 1.11.1993. He (complainant) has not come with clean hands as he (complainant) has not mentioned in the complaint petition about the second writ petition (C.W.J.C. 1 of 1993) before the High Court and result thereof and has thereby concealed a material fact. Further case of the opposite party is that correctness or in-correctness of electrical bill cannot be decided in a summary trial under Consumer Protection Act as the same requires detailed investigation and evidence. The complainant has indulged in utilising power by corrupt practices and artificial means. On the allegations aforesaid the opposite party prayed for rejection of the complaint with cost.

The complainant filed an affidavit in support of the statements made in his complaint petition but he did not file any affidavit with regard to photo copies of certain documents brought on the record of the District Forum. The opposite party did not file any affidavit in support of the statements made in the show cause (written statement) and photo copy of part of the tarrif notification dated 17.6.1983 filed by them. The District Forum passed the impugned order on the basis of materials available on the record. Now it has to be considered if the impugned order calls for any interference by this Commission or not ?

AT the time of hearing of this appeal no one appeared on behalf of the respondent and hence the appeal has been heard ex parte. Certain facts are not disputed. It is not disputed that the complainant had been provided electric connection No. 11530 L.T.I.S. for runnning his Arc Welding Set as per agreement dated 15.1.1976 between the parties and the complainant had installed electric Motor of 3 H.P. It is also not disputed that under the terms of the agreement the complainant had to pay energy charges for 8.36 H.P. It is also not disputed that the Executive Engineer of the Board had visited the site of the complainant''s Arc Welding Shop and had reported that the name plate of the Arc Welding Set was missing and hence levied a charge on consumption of electrical energy for the total load of 14 H.P. with effect from August, 1991. It is also not disputed that the complainant apart from filing earlier Complaint Case No. 25 of 1992 before the District Forum had also filed writ petition (C.W.J.C. 7345/92) before the High Court with regard to same matter. It is also not disputed that the earlier Complaint Case No. 25 of 1992 was dismissed by the District Forum and Appeal No. 148 of 1992 preferred by the complainant against the order of the District Forum was dismissed for default. It is also not disputed that in view of the observation of the High Court in C.W.J.C. No. 7345 of 1992 the complainant filed representation before the concerned authority. In view of the request of the complainant in the representation a Committee was formed consisting of three officials for joint inspection and inspection was made by the Committee on 10.10.1993. It is also not disputed that after joint inspection the billing for 14 H.P. load was found justified and the representation of the complainant was rejected and the complainant was intimated about the same vide letter dated 1.11.1993 of the Electrical Superintending Engineer, Gaya and thereafter the complainant filed fresh complaint in February, 1994, before the District Forum with regard to the same subject-matter which was dismissed by the District Forum vide the impugned order. As is apparent from the above-mentioned undisputed facts, the complainant-appellant agitated the matter not only in his earlier Complaint Case No. 25 of 1992 before the District Forum but also in C.W.J.C. No. 7345 of 1992 before the High Court but he could not succeed. In the show cause filed by the opposite party (respondent) before the District Forum it has been alleged that the complainant had filed second writ petition (C.W.J.C. No. 1 of 1993) before the High Court with regard to the same matter but has has concealed this fact and the result of the said writ petition. This allegation in the show-cause of the opposite parties has not been denied by the complainant by filing reply to the show-cause. Copy of the order passed by the High Court in the earlier writ petition (C.W.J.C. No. 7345 of 1992) is on the record of the District Forum. While disposing of the said writ petition it had been pointed out by the High Court that the complainant had not mentioned the fact that he had already moved the District Forum and his complaint had been rejected. Neither in his subsequent complaint petition nor in the memo of this appeal the complainant has mentioned about filing of the second writ petition before the High Court and the result, if any, thereof. It goes to show that the complainant appellant has not come with clean hands.

IN view of the observation of the High Court in the earlier writ petition the complainant admittedly filed representation before the Authority concerned and a Committee of three Engineers was formed to inspect the site. Undisputedly the members of the Committee inspected the site and their inspection note led to the rejection of the representation of the complainant. The copy of the order passed by the Electrical Superintending Engineer on 1.11.1993 in this regard has been brought on record of the District Forum by the complainant himself. The order of the Superintending Engineer contains the inspection note of the Committee on the basis of which the Superintending Engineer found that the complainant was utilising power for 14 H.P. There is no expert evidence from the side of the complainant to show that the inspection note by the members of the Committee was in any way unreliable and the order passed by the Superintending Engineer on the basis of the report of the Committee was not justified. Under the circumstances there appears no reason to doubt the fairness of the order dated 1.11.1993 passed by the Superintending Engineer with regard to the representation of the complainant. That being so, the reliefs sought for by the complainant-appellant were rightly refused by the District Forum. IN view of what has been pointed out above, there appears no reason to interfere with the impugned order. In view of the above discussion we find no merit in this appeal. In the result, this appeal is hereby dismissed. There will be no order as to cost. Appeal dismissed.