Palwinder Kaur vs PUNJAB STATE ELECTRICITY BOARD

THIS is an appeal preferred by original complainant, being dissatisfied with dismissal of her complaint No. 44/02 vide impugned judgment of the Punjab State Consumer Disputes Redressal Commission at Chandigarh.

THE appellant, admittedly, was provided electricity supply to the respondent for running an industrial unit. The electricity supply was being provided through MS No. 04/10 from medium supply category. The industrial unit is situated in a tenement occupied by a tenant, namely, M/s. Aashish Enterprises. The appellant gave the premises to the tenant under rent agreement dated 25.10.2001. On 17.4.2002, the said electricity meter of the appellant was inspected by concerned officials of the respondent (PSEB). The physical verification of the meter showed that the electricity was being pilfered through the said meter. The inspection was carried out in presence of husband of the appellant. His signature was taken on the checking report prepared at the place itself. The seals of the meter, however, found intact. The meter was removed immediately and was sent to the M.E. Lab. The M.E. Lab report showed that there was tampering with the meter. The report also showed that the line wires were not comparable to the original seals. It was found that the meter was running slow to the extent of 50%. The respondent demanded amount of Rs. 8,74,053 vide Memo No. 2116 dated 22.4.2002 from the appellant alleging that theft of electricity energy was committed and the meter was tampered.

THE appellant, therefore, filed consumer complaint under Section 17 of the Consumer Protection Act, 1986. The appellant made following prayers in the consumer complaint: (a) Office Memo No. 2116 dated 22.4.2002(Annexure C -3) whereby the opposite party has raised an illegal demand of Rs. 8,74,053 as average charges for the period May, 1995 to April, 2002 may please be quashed and set aside being unlawful and against the statutory provisions of the Indian Electricity Act, 1910;

(b) Compensation to the tune of Rs. 50,000 may be awarded in favour of the complainant for the illegal disconnection of the electric supply to the premises of the complainant and for mental pain, agony harassment and inconvenience caused to the complainant;

(c) Costs of the proceedings to the tune of Rs. 25,000 may also be awarded in favour of the complainant; and

(d) Any other relief to which the complainant is found entitled under the law, may also be granted in favour of the complainant and against the opposite party.

THE respondent resisted the complaint on the ground that the appellant was liable to pay the demanded amount, which was in accordance with the policy circular, and the case falls under Section 39 of the Indian Electricity Act, 1910. The respondent submitted that the electricity meter was tampered with and by reducing running speed of the disc, 50% of the consumed units were subjected to theft during the relevant period. The normal meter rotted 20 times if one unit of electricity is consumed as per written intimation on the index plate of the meter. The M.E. Lab report showed that the electricity meter in question, however, indicated consumption of only one unit after rotation of 40 times of the disk. Hence, the respondent justified the demanded consumption charges and penalty. The parties adduced necessary evidence before the State Commission. The State Commission held that the appellant committed theft of electricity energy and, therefore, the case was not covered by Section 26(6) of the Electricity Act, 1910. The State Commission held that action taken by the respondent was legal and proper and there was no deficiency in the service provided by the respondent - PSEB. The complaint was, therefore, dismissed.

WE have heard learned Counsel for the parties. The main contention of learned Counsel for the appellant is that assessment of the parties ought to have been made in view of Section 126 of the Electricity Act, 2003. He argued that the demanded charges and the penalty are not at all in accordance with the said legal provisions. He contended that the theft of energy could not be assumed only because the disc was found taking more rotations for consumption of one unit. He argued, therefore, that dismissal of the complaint was improper and illegal. Per contra, learned Counsel for the respondent supports the impugned judgment.

PART XII of the Electricity Act, 2003 is captioned "Investigation and Enforcement". It covers 4 provisions. Section 126 is quoted below: (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines/, devices found connected or used, or after inspection of records maintained by any person, the Assessing Officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

(3) The person, on whom an order has been served under Subsection (2) shall be entitled to file objections, if any, against the provisional assessment before the Assessing Officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person.

(4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:

(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.

(6) The assessment under this section shall be made at a rate equal to 1[twice] the tariff rates applicable for the relevant category of services specified in Sub -section (5).

In the light of Sub -section (5) and Subsection (6) of Section 126 of the Electricity Act, 2003, it is amply clear that the assessment for unauthorized use of electricity shall be made for the entire period during which the unauthorized use had taken place. It is only when the period of unauthorized use of electricity cannot be ascertained, such period shall be limited to a period of 12 months immediately preceding the date of inspection. The learned Counsel for the appellant submits that the period of unauthorized use could not be ascertained and, therefore, demand cannot be for more than 12 months preceding the date of inspection.

AT this juncture, it is important to note that the appellant failed to examine user (i.e. his tenant) of electricity meter (MS No. 04/10). The complaint itself shows that the meter was being used by the tenant, namely, M/s. Aashish Enterprises. The demand of the electricity energy stolen through the meter is for period between June, 1995 onwards till the relevant period preceding creation of the tenancy. The tenant never said that he had tampered with the meter. The appellant also did not adduce any evidence to show that the electricity meter was used without any tampering between May, 1995 to April, 2002. The report of M.E. Lab. (Ann. A -3) shows that after removing one clamp from the base of the meter, it was again re -fixed with some outer adhesive and was tampered. The M.E. Lab. further shows that all the four seals of the base wires of the meter did not resemble with the function of the meter. It was found that the inner disc of the meter, after taking 40 rounds of a circle, recorded consumption of one (1) unit though it ought to have actually recorded two (2) units. The M.E. Lab. report shows that the meter was found to have recorded half consumption instead of showing actual consumption. In other words, the meter was tampered with, rotation of the inner disc was purposefully slowed down and evidently almost 50% of the electricity energy was being pilfered by the consumer.

THE learned Counsel for the respondent invited our attention to internal circular issued by the PSEB for assessment of the electricity charges where the meter is found to have been tampered with and excess energy is found to have been used by the consumer. The inspection carried out on 17.4.2002 shows that husband of the appellant was present at the relevant time. The M.E. Lab. report also shows that the checking was carried out in his presence. Therefore, it is not a case of any fabricated and manipulated demand put forth by the respondent. The Commercial Circular No. 33/ 99 dated 12.7.1999 issued by the respondent (PSEB) (Annex. R -5) is in view of Commercial Circular No. 45/97 dated 17.12.1997. The Commercial Circular No. 33/99 goes to show that in case of NILS, connections (load above 20 KW 7 upto 100 KW) demand to the extent of Rs. 2,000 per KW will be the rate where the theft of energy is noticed. In the present case, the electricity meter (MS No. 04/10) was being used for load about 20 KW for the commercial purpose. This is not the case in which the running of the meter was found faulty. This is a clear case in which the meter was tampered with by the appellant and the intention was to commit theft of the electricity energy. The Commercial Circular No. 33/99 further shows that the period over -hauling accounts for such consumers in such case should be taken as the period from the date of installation of such meter upto the date of change of the meter. The Commercial Circular is issued by the respondent in exercise of powers conferred under Section 49 and 79 (i) of the Electricity Supply Act, 1948 and other enabling provisions. In Hyderabad Vanaspathi Ltd. V.A.P. State Electricity Board and Ore., : IV (1998) SLT 182= (1998) 4 SCC 470, the Supreme Court held that the terms and conditions of business framed by statutory body under statutory powers will be applicable to the consumer and he will be bound by them. In our opinion, the present case is not covered by Section 126(5) of the Electricity Act, 2003 because the assessment was made in accordance with the Commercial Circular and the present case is not of any faulty meter as such, but it is a case of committing theft of electricity energy. It appears that in R.P. Nos. 1686 and 1687 of 2000 filed by the PSAB against Mr. Surat Singh, S/o Mr. Shangarta Singh, this Commission upheld that the PSEB may recover suitable compensation in accordance with the Circular No. 45/97 dated 17.12.1997 and the bill issued on such basis was held as valid. It need not reiterated that the Commercial Circular No. 33/99 is in continuation and modification of the earlier Circular dated 12.7.1999. Needless to say, the demand bill issued by the respondent is proper and there was no deficiency in the service. The impugned judgment of the State Commission is, therefore, sustainable and cannot be upheld.

IN the result, the appeal is dismissed with cost of Rs. 10,000.