RAJASTHAN STATE ELECTRICITY BOARD, 'C' CIRCLE vs Dhanna Ram

THIS appeal under Section 15 of the Consumer Protection Act, 1986 (the ''Act'') is directed against the order dated 3.6.2000 whereby the District Forum, Siker, in Complaint Case No. 30 of 1999, quashed the notice dated 24.8.1998, raising a demand of Rs. 10,638/- against the complainant-respondent and allowed his complaint with cost at Rs. 300/-.

THE relevant facts are these : Dhanna Ram, complainant-respondent filed a complaint under Section 12 of the Act, against the appellant Board''s Officers with the allegations that he was a "consumer" of the services, being rendered by the appellants for consideration, on his 7.5 H.P. tube-well (agricultural connection) but since he could not pay the outstanding amount to Rs. 12,268.75, due from him, due to his worsening financial condition, his tube-well as disconnected some times in the month of December 1995, that when he requested to restore supply of electric energy to him, the appellants, by their notice dated 18.12.1995, required him to deposit the outstanding amount of Rs. 14.007/- which was duly deposited by him but the supply of electric energy was not restored to him, instead vide their notice dated 1.11.1996 the appellants required him to deposit a sum of Rs. 8,787/- on account of theft of electric energy alleged to have been committed by him after disconnection of his meter, that the respondent had not at all committed theft of electricity and stood by his version for about three years but when the appellants started threatening him that a criminal case would be filed against him, he was compelled to deposit the aforesaid unjustified and illegal demand on 8.7.1998 but supply of electric energy was not restored to him and again he was required to deposit different amounts, that he deposited Rs. 5/- on 8.7.1998, Rs. 50/- on 20.7.1998, Rs. 2,647/- and Rs. 4,233/- on 21.8.1998 and thereafter supply of electric energy was restored to him w.e.f. 22.8.1998. It was further alleged that even after making payment of the aforesaid amounts in the manner stated above and restoration of supply of electric energy to him w.e.f. 22.8.1998, the appellants again served a notice upon him on 24.8.1998 requiring him to deposit a further amount of Rs. 10,638/- failing which supply of electric energy would be dicontinued to him. The complainant-respondent thereupon approached the District Forum with the prayer that (i) the above demand of Rs. 10,638/- be cancelled, (ii) Rs. 8,787/- be got refunded to him or be got adjusted towards his future liability and (iii) compensation at Rs. 25,000/- and cost of Rs. 1,500/- be got paid to him.

Appellant''s version of the case is that supply of electric energy was permanently discontinued to the respondent from December 1994, for his not depositing the outstanding amount of Rs. 14,007/- which were deposited only on 18.12.1995 but supply of electric energy to him was not restored on his application dated 6.12.1996 for his having been found on 28.11.1995 having committed theft of electric energy and on his failing to deposit the compounding amount of Rs. 8,787/- demanded from him vide notice dated 1.1.1996 and deposited by him only on 8.7.1998. It was averred that on respondent''s depositing Rs. 4,233/- and other amounts the supply of electric energy was restored to him w.e.f. 28.8.1998. The demand of Rs. 10,638/- made through notice dated 24.8.1998 was claimed as being justified on the ground that the same was raised on the basis of and in accordance with appellant Board''s Circular dated 23.3.1995.

HEARD the learned Counsel for the parties and perused the material on the record of the Forum. Mr. M.L. Vyas, learned Counsel for the appellant has mainly urged two points viz., one, that it is a case involving commission of theft of electric energy by a consumer and such cases cannot be decided by the Redressal Agencies in exercise of their summary jurisdiction under the Act and two, that the demand of Rs. 10,638/- was raised in conformity with Board''s Circular dated 23.3.1995 and validity, legality or justification of Board''s Circular cannot be examined by the Forums or Commissions. In the facts and circumstances of the case on hand we do not find any force in either of the two arguments for the reasons recorded hereunder.

IT is true that cases involving commission of theft of electricity are not to be examined and decided by the Redressal Agencies under the provisions of the Act. In order to oust the jurisdiction of the Redressal Agencies under the ''Act'', it should be prima facie established that a particular case involves commission of theft of electricity. Mere assertion in the pleading without supporting documentary evidence would not be sufficient to oust Agencies'' jurisdiction in cases of deficiency in services by the provider of services. But the above principle regarding ouster of jurisdiction does not apply to the facts of the present case for more than one reason. Firstly, with the permanent disconnection of his motor on the well in December, 1994 the respondent had ceased to be the consumer of the appellant. Secondly, assuming that he continued to be the consumer of the appellant''s service due to his having a right to seek restoration of the supply of electric energy after making payment of the amounts outstanding against him with reconnection and other fees, and his paying all such amounts without attracting any penal action against him, then no question regarding commission of theft or not would arise for consideration by the Forum/Commissions so as to bar their jurisdiction to hear the complaints of deficiency in service on the part of provider of services for consideration. The offence of theft, if any, in this case was allegedly compounded between the parties at Rs. 8,787/- and the respondent had duly deposited the aforesaid amount. With the composition of the offence of theft long before filing of the complaint and no relief having been awarded by the District Forum to the respondent in that respect, ouster of jurisdiction of the Forum/Commission cannot be agitated. The first argument of Mr. Vyas is, therefore, rejected. Coming now to the second limb of the arguments of Mr. Vyas we find that the case of the respondent initially was with the Asstt. Eng. Sub-Division, Khandela. Billing in the case of respondent was done by him upto July 1994 but was finally stopped in the month of December 1994. Thereafter the case of the respondent stood transferred to Astt. Engineer Sub-Division, Madhopur. By his letter dated 19.12.1995 the Astt. Engineer, Madhopur requested his counter-part in Sub-Division, Khandela to send the original file of the respondent along with the order of disconnection. The order of disconnection was not brought on record and, therefore, the date of disconnection in this case is not known even upto our stage. Anyway, the Astt. Engineer, Madhopur had further requested the Astt. Engineer, Khandela to send the record of the respondent within 7 days as the consumer had already deposited the outstanding amount of Rs. 14,007/- on 18.12.1995 and reconnection was to be made in order to save his crop from being destroyed for want of water. A copy of this letter was also forwarded by him to the concerned Ex. Engineer, Ringus, Distt. Siker who called for the explanation of the Astt. Engineer for not reflecting any provisional assessment in the ledger A/c of the consumer. The order of the Ex. Engineer is dated 20.6.1998 which obviously suggests that it was though dated 19.12.1995 but was sent to or received in the office of the Ex. Engineer, Ringus in the year 1998. That is also the position of the so-called notice dated 1.1.1996 by which the respondent was called upon to deposit the compounding amount of Rs. 8,787/-. The copy of this letter too was forwarded to the Ex. Engineer, Ringus or received in his office in the year 1998 as in respect of that letter too the Ex. Engineer had called for the explanation of the Astt. Engineer on 20.6.1998 for his not reflecting the demand of compounding amount of Rs. 8,787/- in the ledger A/c of the consumer. When the higher authorities of the Astt. Engineer did not know of the correct position of the demands raised against the consumer before the month of June 1998, as such demands were not reflected in the ledger A/c of the consumer, how can an illiterate farmer be expected to know of what was there against him either in the mind of the Astt. Engineer or in his record to be prepared by him at his sweet will?

IN fact, as the material on the record of the Forum shows, it was only on the application of the respondent dated 6.1.1996, seeking restoration of supply of electric energy to him, as he had already deposited the outstanding amount, that the concerned Astt. Engineer had called for a report from the concerned Clerk and such Clerk had reported to him on that very day that the respondent had paid all the dues against him. There was neither a mention of any theft case nor of any compounding amount in such report of the concerned official. It is only after making an undated query by the ARO that report on a theft case was called for and thereupon by another undated and unsigned endorsement it was reported that the compounding amount of Rs. 8,787/- had been demanded from the consumer. IN this report it was not reported that the amount demanded was "provisional" in any manner. But again another undated endorsement was made subsequently whereby it was reported that interest @ 4% was to be levied upto 23.2.1998 for 27 months amounting to Rs. 9,790/- as per Board''s Circular. Who signed this report and when is not known. The manner in which these so-called unsigned and undated reports were made by unknown officials of the appellant raise a big question mark on the bona fides of the Astt. Engineer concerned and, therefore, these reports and endorsement do not inspire any confidence in us.

AND now a few words about Board''s Circular dated 23.3.1995. The relevant Para No. 3 of this Circular reads as under: "Accepting amount under compounding scheme even after the FIR has been lodged after seven days. In accordance with the existing provision under compounding scheme, FIR is to be lodged if the consumer does not make the payment of compounding charges within seven days. It has now been decided that if such a consumer come forward for deposition compounding charges at any time, even after filing of the FIR, the same could be allowed to be compounded but in that case the consumer would be required to pay the compouding charges at the current rates, plus extra charges @ 4% per month of the such compounding charges."

Suffice it to say that the Circular required levy of interest @ 4% per month of the compounding amount. In the present case neither the order of disconnection nor the order of composition of offence of theft was brought on the record of the Forum. The appellant did not even produce this Circular before the District Forum what to speak of its communication to the consumer at any time. It is true that rules made by the State Government and Circulars and instructions issued by it in exercise of its statutory powers conferred upon it by the statute and circulars and instructions issued by the Board cannot be challenged in the course of summary proceedings under the Act. But the question of their applicability on the set of facts given in a case can always be examined by such Agencies. In the present case facts attracting the applicability of the Circular dated 23.3.1995 are shrouded in total confusion and mystery. Even the Astt. Engineer himself is not found to have followed the said Circular. Such circulars may not binding on Courts and their legality and validity may be examined by them, but they are binding on the officers subordinate to Government/Board.

Then how interest calculated on Rs. 8,787/- @ 4% per month came to grow to Rs. 10,638/- was not explained. The demand raised was totally devoid of any reasonable basis. It is to be noted that if really such a demand was intended to be raised in compliance of Board''s Circular it must have been raised at the time of composition of offence of theft. It is quite illogical to assert that composition of an offence may be brought about "provisionally". Why it was "provisional" was not disclosed in the relevant notice or letters written to his higher officer by the Astt. Engineer from time-to-time. In the absence of the relevant orders regarding disconnection and composition of theft case of the record of the case, the demand of Rs. 10,638/- cannot be claimed to be having any sound basis. It has rightly been cancelled by the Forum.

TO sum up, taking the facts, as they are, the Astt. Engineer of the appellant at the relevant time is found to have not only rendered services of great deficiency to the respondent but also to have deliberately harassed an illiterate farmer by raising unfounded and unjust demands against him from time-to-time. On evidence placed before him and in the facts and circumstances of the case the District Forum was fully justified in partly decreeing the claim of the respondent against the appellant. In the result this appeal fails and is dismissed with cost at Rs. 3,000/- against the appellant. The amount of the cost and other loss occasioned to the appellant''s Board in connection with or as a result of this litigation shall be recovered from the delinquent officers as per decision of the Supreme Court in the case of L.D.A. v. M.K. Gupta, besides taking departmental action against him/them, if so deemed proper in the interest of the organisation/establishment. A copy of this order shall be forwarded to the Chairman of the appellant''s Board for information and necessary action. Appeal dismissed.