HARYANA STATE ELECTRICITY BOARD vs VISHAL FOOD PRODUCTS

THIS appeal is against the order of the District Forum, Jind whereby it has been directed that the appellants should refund the amount of Rs. 25,000/- already deposited with them by the respondent under protest.

THE facts are not in serious dispute. THE respondent firm M/s. Vishal Food Products, Jind is a Small Scale Industry manufacturing biscuits at village Amarheri at District Jind. THEir factory premises have an electric connection with a sanctioned load of 60.550 K.V. On the 27th of August, 1991, the Assistant Director, Vigilance, Rohtak checked the premises of the respondent and computed the load of the factory at 106.285 K.V far beyond the authorised load above mentioned. Consequently, penalty was imposed and a demand of Rs. 73,200/- on account of unauthorised load was raised. The respondent immediately requested the Executive Engineer of the Board at Jind to stay the recovery and to get the load rechecked and on the order of the Executive Engineer deposited an amount of Rs. 25,000/- under protest. Subsequently, the electricity load of the premises was re-checked jointly on the 13th of September, 1991 by Shri K.L. Khatri, A.E.E. and Shri N.K. Aggarwal, S.D.O in the presence of a partner of the respondent firm. Vide its detailed report the checking partly found the total load of only 42.78 K.V and the total heater load as 36.164 K.V which was well within the sanctioned limits. However, despite this the appellant board persisted in demanding the penalty imposed and declining to refund the deposited amount and thus compelling the respondent to knock at the door of the District Forum.

On notice being issued the appellants in their written statement accepted the broad factual position and reiterated that the Vigilance Authority of the Board on a checking on 27th of August, 1991 had found the same beyond the sanctioned load. However, the crucial averment in para 6 of the complaint was admitted to the effect that the running load of the consumer was jointly checked on the 13th of September, 1991 and was found to be 42.78 K.V which is within the sanctioned load. Nevertheless, it was reiterated that the consumer was bound to pay the penalty & surcharge of the balance amount of the bill as per prevailing instructions.

THE respondent supported his complaint with documents of M/s Auto Engg., Hisar Road, Rohtak the manufacturer of the plant certifying that the maximum load thereof was 41.25 K.V in total and also placed on record a photostat copy of the joint checking report of M/s. Usha Food Products, Panipat to substantiate his version. THE appellant could not produce anything worthwhile on the record to rebut the respondent''s stand. THE District Forum holding the appellant Board''s own rechecking party had come to the conclusion that the electricity load was well within the sanctioned limits granted the relief noticed at the out-set. The learned Counsel for the appellant faced with the somewhat up-hill task of raising a crumbling case had to first fall back on hyper technicalities. It was argued that the contract of the electric supply contains an arbitration clause and further statutory rules framed under Section 49 of the Electricity Supply Act, 1948 provide accordingly, and, therefore, respondent was bound to make resort to the same. Consequently the District Forum had no jurisdiction to entertain the matter.

THE submission has only to be noticed and rejected. It had to be conceded by the appellants that any plea of an arbitration clause or a consequent bar thereby had not even been remotely raised in the written statement filed by the appellants. Patently enough, it was never urged at all even otherwise before the District Forum, As is evident from the order under appeal. At the appellate stage, such a belated stand, therefore, cannot at all be permitted to be raised. Apart from this within this jurisdiction the matter is well settled that a statutory or contractual arbitration clause is no bar against the consumer jurisdiction. It was authoritatively so held with regard to the somewhat analogous provisions of the Section 7-B of the Indian Telegraph Act in I (1991) CPJ 273 Jagdamba Rice Mills v. Union of Indian Ministry of Tele Communication in the following terms : "To conclude on the preliminary legal aspect, the answer to the question posed at the very outset is rendered in the negative and it is held that the arbitration provisions of Section 7-B of the Indian Telegraph Act are not at all a bar against seeking relief under the Act. Indeed the said Section has little or no relevance to the adjudication of consumer dispute under the Act."

THE aforesaid ratio is conclusive and it deserve highlighting that the same stands affirmed as well by the National Commission also. Mr. Sunil Gaur, had then sought to argue that preference should be given to the earlier report of the Assistant Director, Vigilance dated 27th of August, 1991. A vain attempt was made to assail the second report of re-checking the load dated 13th of September, 1991. It is somewhat plain that the aforesaid submission cannot hold water. The appellants cannot possibly be allowed to go behind their own document and the somewhat detailed report rendered on re-checking by senior officers on the 13th of September, 1991. Even otherwise no meaningful challenge could be laid to the contents thereof, at all. it was the appellant''s own case that the re-checking was done under the authority and direction of the Executive Engineer and the report rendered was duly accepted. The very purpose of re-checking would be wholly meaningless and otiose, if the earlier report was still to hold the field. The District Forum was thus eminently right in the view which it has taken and. which we would unhesitatingly affirm.

FOR the fore-going reasons this appeal must fail and is hereby dismissed with costs which are assessed at a modest sum of Rs. 300/-. Appeal dismissed with costs.