HARYANA STATE ELECTRICITY BOARD vs JAI FORGING AND STAMPINGS (P) LTD., YAMUNA NAGAR

THIS is an appeal against the order passed by the State Consumer Disputes Redressal Commission, Haryana (for short the State Commission) at Chandigarh by which it allowed the complaint filed by the present respondent, Jai Forging & Stampings (P) Ltd., against the present appellant, Haryana State Electricity Board (for short the Board). By the impugned order the State Commission directed the Board to pay to the complainant Rs. 40,000/- as loss plus Rs. 5,000/ - in lump sum as compensation for harassment and humiliation and costs of the proceedings. The parties will be referred to by their nomenclature. The State Commission also quashed the levy of clubbing charges.

THE complainant is an industrial concern of some standing having its factory at Yamuna Nagar. It was receiving electric supply from the Board under connections A/C Nos. Y-32, A-100 and A-415. All of them were installed more than a decade ago and whilst connection Y-32 is in the low tension category, the other two are in high tension category. Sometime in September, 1991 the meter of A/c No. Y-32 went out of order and the matter was reported to the Board for replacing the same vide communication dated 30th September, 1991. The Board did not replace the said meter. The complainant diverted the electric supply through the meter having A/C No. A-400 to the supply of electricity connected with A/C No. Y-32. Consequently the total energy being consumed was recorded through the meter of A/C No. A-400. On 2nd April, 1992 the Vigilance staff of the Board inspected the premises of the complainant and noticing the aforesaid arrangement trumped up a case of resale of electricity and imposed a penal charge to the tune of Rs. 99,963/- and further disconnected supply of electricity through A/C No. A-400 on the same day. On a number of representations being made the supply was restored on 7th April, 1992 after a provisional deposit of Rs. 15,000/-. The complainant appealed against the aforesaid action to the Superintending Engineer-cum-Appellate Authority. The said appeal was allowed on the finding that as all the three connections belonged to one party, it was not a case of resale of electricity and, therefore, the imposed charges on the complainant would not be levied. However, he gave an extraneous direction that all the three connections of the complainant should be clubbed. In October, 1992, in the relevant bill, the Board raised a demand of Rs. 35,879/- as S.O.P. plus Rs. 2,709/- and on an inquiry being made by the complainant it was conveyed to him that the additional amount was towards the difference in tariff rate for consumer connection Nos. Y-32 and A-400 w.e.f. September, 1983 to April, 1992. It is the contention of the complainant that the levy was wholly illegal because of the contravention of the procedure for clubbing etc. vide para 5 of the Sales Circular No. 28/93 and that there was no provision for levy of charges retrospectively for a decade. On the aforesaid premises the case of the complainant is that there is deficiency in service undertaken to be rendered by the Board in view of the contravention of the statutory rules, terms and conditions of supply. With regard to relief, it is the claim that due to illegal disconnection of electricity of the industrial premises from 2nd April, 1992 to 7th April, 1992 a financial loss of Rs. 94,000/- has been suffered, apart from humiliation and loss of reputation of a reputable concern. On the above accounts he claimed Rs. 50,000/- as damages. The additional charge of Rs. 38,000/- towards clubbing charges from September, 1983 to April, 1992 were sought to be quashed.

ON being noticed the Board filed a counter. It was admitted that the three connections referred to above have been granted and later clubbed from April, 192. The plea taken is that by connecting the load of Y-32 on A-400 the complainant had committed theft of electricity and also the offence under Section 39 of the Indian Electricity Act. The vigilance raid on 2nd April, 1992 is admitted when the meter Y-32 was found burnt and it is alleged that there was resale of electricity from Account No. A-400 to Account No. Y-32. It is also the case of the Board that additional load was placed on the transformer which possibly could cause a major loss. The plea of the Board is that it was entitled to make recoveries due on account of clubbing and consequently the complaint was liable to pay the amount of Rs. 38,000/- and odd. It is further the stand of the Board that it was within its legal rights to disconnect the supply in the event of any unauthorised extension and the complainant cannot make any grievance thereof. The other allegations of deficiency in service were denied as also the financial liability and as a counter-blast a sum of Rs. 1 lakh was claimed for unnecessarily putting additional load to the extent of 22.5% which could have damaged the transformer and other equipment.

THE complainant filed replication controverting the averments contained in the written statement. The allegations in that complaint were reiterated. In support of their case the complainant placed reliance upon documents annexed to the complaint the authenticity of which was not at all challenged. The detailed affidavit of Shri Gurmeet Singh Johar, Director of the complainant concern, was put in affirming on oath all the allegations in the complaint and elaborating the same. He was cross-examined on behalf of the Board entirely on the point of the clubbing of three connections and thereby eliciting nothing whatsoever in favour of the opposite party. In rebuttal the opposite party, i.e. the Board, rested itself content with the affidavit of Shri Vijay Kumar, Assistant Executive Engineer, and some documents. Shri Vijay Kumar was cross-examined by the Counsel for the complainant.

THE State Commission held that on 30th September, 1991 the Board was expressly informed that the energy meter pertaining to account No. Y-32 was not working and the complainant had made express request that the same should be checked and replaced at the earliest but the opposite party appears to have slept over the matter and no replacement was provided for well nigh seven months. The State Commission further held that the Board''s Official, the Superintending Engineer-cum-Appellate Authority had found the charge of resale and the levy of one lakh of rupees as wholly unwarranted and the said order had achieved finality and has not been revised or altered subsequently and therefore it follows that the unauthorised disconnection of the electricity energy to the complainant from 2nd April, 1992 to 7th April, 192 was wholly unwarranted and the opposite party must bear the consequences thereof. About the charge of the Board in respect of clubbing charges for the last decade the State Commission remarked that the Superintending Engineer-cum-Appellate Authority vide its aforementioned order had observed as under: "All the three connections Accounts No. A-400, Y-32 and A-415 should be deemed to be clubbed for all purposes as per the Circular No. 28 of 1983 and the charges should be levied accordingly".

According to the State Commission the plain meaning of the above is that the direction was to club the three connections prospectively and the Appellate Authority never directed that a fiction be raised that they were clubbed w.e.f. 1983. The Counsel for the opposite party could not point, out before the State Commission any statutory provision or even instructions in the Sales Manual of the Board which authorised the levying of charges retrospectively for 10 years. It may be mentioned here that even Sri Vijay Kumar, in cross-examination, had admitted that he could not point out to any specific provision whatsoever including the Sales Circular No. 28 of 1983 which authorised such retrospective penalties. The State Commission, therefore, held that the retrospective clubbing for ten years was patently unauthorised and therefore the levy of the clubbing charges of Rs. 38,580/- were liable to be set aside. In view of the above finding, the State Commission passed by impugned order. About the amount of loss of compensation the State Commission remarked that some guess work and the rule of thumb has to be applied particularly when the quantum of loss as mentioned in the complaint and also in the affidavit of Shri Gurmeet Singh Johar was not challenged at all in his cross examination by the opposite party.

FEELING aggrieved the opposite party, i.e. the Board, has come before this Commission by way of this Appeal. We have heard the learned Counsel for the parties and gone through the records of the case. Clearly appellant Board has no case so far levy of penalty on the allegation that there was resale of energy is concerned in view of the order passed by the Superintending Engineer-cum-Appellate Authority of the Board. The relevant portion of the order of the said authority reads as follows: "The case was heard on 2.11.92 and detailed argument were held. Keeping in view the facts of the case, I decide as under: 1. All the three connections A/c. Nos. A.400, A-415, and Y-32 belongs to the same owner i.e. M/s. Jai Forging and Stampings Pvt. Ltd. and Income Tax account number for all the three connections and as such it is not a case of re-sale of energy. The charges on this account are not leviable. It is an admitted case that the Board has not challenged the said order of the Superintending Engineer and it has become final.

The learned Counsel for the appellant Board relied upon the Sale Circular No. 28 of 1983 about levying clubbing charges and justifying disconnection. We are of opinion that in that respect also the Board has no case. The Appellate Authority in its order had remarked: "All the three connections Accounts No. A-400, Y-32, and A-415 should be deemed to be clubbed for all purposes as per the Circular No. 28 of 1983 and the charges should be levied accordingly." That order clearly shows that the direction was to club the three meters prospectively. The Board could not club the three meters from the date of the circular i.e. retrospectively. The complainant respondent has filed part of the statement of Shri Vijay Kumar, Assistant Executive Engineer which relates to his cross-examination. He has admitted:

"The clubbing of charges in respect of three connections held by the complainant was done by me after inspection in April, 1992. This was done under sale Circular 28. I cannot point out the specific provision in the circular which authorised such clubbing." When the witness could not point out the specific instructions for retrospective clubbing we fail to understand how the clubbing of the connections retrospectively in respect of was made by him.

THE Counsel for the appellant placed reliance upon Circular No. 28 of 1993. We are of opinion that the same does not help the Board. The relevant part of para 3 of the circular reads as follows: "Initially instructions were issued vide Circular No. 1/81 dated 9.1.81 not to allow in future more than one connection in a premises whether in the same name or in the name of some relative(s) or other person(s). For the existing cases on the date of issue of instructions, three months notice was required to be issued to the concerned consumers requiring them either to merge the various connections into one or get the additional connections disconnected. While issuing notices to consumers individually, specific reasons were required to be mentioned in each case."

It was further stated in the circular in para No. 5: "To allow the Field Officers ensuring meticulous implementation of the instant instructions, it is again to be clarified that in respect of the existing consumers in no case more than one industrial connection in the name of same person/persons or in the name of any member of this/their individual or joint family will be allowed at the same premises. A three months notice shall be served to such consumers giving specific reasons of misuse of electricity like transferring of load of one connection to another etc. asking them either to merge the various connections in their premises or get them disconnected failing which the same would be disconnected by the Board."

From the above it is clear that before any action for disconnection of electricity was to be taken by the Board an advance notice of three months had to be issued to the concerned consumer for complying with the instructions. Admittedly in the present case no such notice was given to the complainant.

AS noticed above, the Vigilance staff of the Board inspected the premises of the complainant on 2nd April, 1992 and noticing arrangement of diversion of electricity to A/c No. Y-32 through meter pertaining to A/c No. A-400 imposed penalty charges on trumped up charge of resale of electricity and imposed penalty charges and disconnected on the same day. In such circumstances the disconnection of the electricity supply to the complainant will have to be held against the instructions issued by the Board. It may be mentioned here that in the Memo of Appeal the appellant has taken the ground that the consumer had been served four notices dated 15 May, 1984,28th October, 1986, 6th April, 1988 and 30th January, 1992 for clubbing the three connections as per the policy of the Board but the respondent has failed to comply with the same. Copies of those notices have not been produced in the present record. The order of the State Commission does not show that any such plea was raised before it. Therefore, no notice of the said plea can be taken at this stage.

FROM the above, it is clear that the imposition of clubbing charges retrospectively was bad and the disconnection was also not in line with the instructions issued by the Board and, therefore, the finding of the State Commission on those points will have to be upheld.

THE learned Counsel for the appellant also disputed the amount of compensation awarded by the State Commission to the complainant against the Board. No ground has been laid before us for reducing the amount of compensation. The action of the officers of the Board was highly arbitrary. The supply was restored on 7th April, 1992 only after the complainant had been forced to make a provisional deposit of Rs. 15,000/-. We do not find any ground to interfere with the amount of compensation awarded by the State Commission. Accordingly we dismiss the present appeal with costs which we assess at Rs. 1,000/-.