RAM KISHAN vs D.H.B.V.N.L., HISHAR

THE District Consumer Disputes Redressal Forum, Hisar as per order dated 8.11.2005 dismissed the complaint No. 376 of 2.9.2005 filed by the appellant-complainant against the respondent-opposite parties.

IN order to decide the present appeal the facts having bearing on the controversy raised have to be focussed in detail. The complainant has been provided with three-phase electricity connection bearing account No. HT 31/30 M.948 for running Atta Chakki with sanctioned load of 7.79 KW. On 28.8.2005 Shri Hukam Chand, A.E.E. Vigilance Office of Executive Engineer (Enforcement) and other staff members of the opposite parties inspected the meter installed at the premises of the complainant. They found the M&T seals tampered with. Meter was removed and sealed in a cardboard box. Treating it a case of theft of electric energy, the electricity supply of the complainant was disconnected and a notice bearing Memo No. 1870 dated 30.8.2005 for compounding the offence of theft and for depositing the amount of Rs. 1,60,000 as penalty and Rs. 700 on account of the meter test, total amounting to Rs. 1,60,700 in terms of the sales Circular No. 36 of 2004, was served upon the complainant. Terming the demand made as illegal, the complainant invoked the jurisdiction of the District Forum alleging that the assertion of the opposite parties that the tampering of the meter had been done, was wrong. IN fact the meter had not been got tested by the opposite parties in the presence of the complainant from the laboratory. Accordingly, it was prayed that the Memo No. 1870 dated 30.8.2005 served upon the complainant be quashed and the opposite parties be directed to pay Rs. 50,000 as compensation on account of mental agony and harassment caused to him and to restore the electricity connection of the complainant disconnected dishonestly by them. The complaint was contested by the opposite parties. IN the written statement filed they justified the demand made as the complainant was found committing theft of the energy on the basis of report dated 28.8.2005 submitted by Shri Hukam Chand, A.E.E. and other staff members. Accordingly, it was prayed that there being no deficiency of service on their part, the complaint merited dismissal. The District Forum accepted the stand of the opposite parties while dismissing the complaint as noticed above. Aggrieved by the said order the present appeal has been filed. Learned Counsel representing the appellant-complainant as well as the Law Officer representing the respondent-opposite parties have been heard at length.

Learned Counsel representing the appellant has pointedly urged that patent illegality has been committed by the District Forum in ignoring the provisions of law which have been violated by the opposite parties in making the assessment of the penalty amount and the demand made from the complainant. Additionally, it was submitted by him that the finding of the District Forum stood vitiated on account of misreading and non-reading of the pleadings of the parties and evidence adduced on record as mere existence of tampered seal itself is not a conclusive proof of the theft of energy. Opposing the submission made learned Law Officer representing the respondent-opposite parties has justified the order of the District Forum for the reasons stated therein.

AFTER giving thoughtful consideration to the submissions made by both the sides, we have come to the conclusion that the order of the District Forum dismissing the complaint cannot be sustained for the following reasons : (i) The checking report dated 28.8.2005 placed on record itself records that all M&T seals of the meter were found tampered with. The Inspecting Team had not noticed any means of dishonest abstraction of energy being committed by the complainant. No other corroborative evidence of consumption data and load survey, etc. had been produced on record from the side of the opposite parties so as to indicate that the complainant was engaged in abstracting the energy prior to the date of inspection. Surprising enough the meter which was removed and sealed into cardboard box as per procedure was not sent by the opposite parties to their M&T lab so as to find out the corroborative evidence in support of the allegations levelled against the com-plainant, upto the time when the complaint was filed by the complainant. In this case the complainant has produced on record the bills relating to the period 25.8.2004 and 23.9.2005 which indicate the average consumption recorded in the meter installed at the premises of the complainant during the period involved prior to the date of inspection of the meter. On the basis of evidence placed on record upto the date when the complaint was filed the opposite parties had not been able to establish that the complainant was committing theft of energy. Therefore, when the allegations of theft are not substantiated on record, the jurisdiction of the District Forum is not ousted to decide the dispute raised by the complainant.

(ii) That after the filing of the complaint certain events have taken place which need to be noticed. The District Forum as per order dated 2.9.2005 had ordered the restoration of the electricity connection of the complainant stayed the recovery of the amount as demanded vide Memo No. 1870 dated 30.8.2005 till further orders. It has been mentioned in the order dated 2.9.2005 that the meter was not sent to the lab for test and the case was posted for 13.9.2005 for awaiting the restoration report. On that date the opposite parties had informed the District Forum about the restoration of the electricity supply as ordered and had filed the written statement. Thereafter, the District Forum had directed the S.D.O., Hansi to send the meter which had been removed from the premises of the complainant to the M&T lab at Hisar and had further issued directions to the complainant to be present at the time of checking on 16.9.2005 and the case was fixed for awaiting the checking report on 27.9.2005. On that day, the report of the lab was placed on the file. It is not the case that where the complainant or the opposite parties had made any request for getting the meter tested from the M&T lab at Hisar, learned Counsel for the complainant contended that the District Forum had adopted the unusual course in sending the meter for test to the lab while it was the duty of the opposite parties to do so before issuing any notice of assessment to the complainant and this part of the order had no sanction of law. It cannot be denied that the District Forum had not recorded reasons or justification for getting the meter tested knowing fully well that it was the definite case of the complainant as well as of the opposite parties that at the time when the meter installed at the premises of the com-plainant was checked and removed, the same was not sent to the lab. The stand taken from the side of the appellant- complainant on record, as such, cannot be brushed aside and overlooked. The fact remains that in the lab report dated 16.9.2005 four seals were found tampered with. This report does not give any further data so as to strengthen the case of the complainant from which it could be concluded that the inside body of the meter had been tampered with so as to control the functioning of the meter. Under the circumstances of the case even after taking into consideration the report of the M&T lab, the allegations of theft of energy against the complainant are not substantiated.

(iii) Section 135 of the Electricity Act, 2003 (hereinafter referred to as the Act, 2003) not only defines theft of energy but also prescribes the punishment of three years or fine or both. Section 152 of the Act, 2003 empowers an appropriate Government or any officer authorised by it to compound the offence in the manner detailed therein. Admittedly, in this case no F.I.R. has been registered against the complainant with regard to the allegations made on the basis of inspection report dated 28.8.2005. It is not explainable as to how a notice under Section 135 read with Section 152 of the Act, 2003 bearing Memo No. 1870 dated 30.8.2005 giving an offer of compounding the offence of theft, whereby a demand of Rs. 1,60,000+700 which had been determined to be payable by him as detailed in the notice, has been issued to him. The above mentioned notice served upon the complainant reads as under :

"Memo No. 1870 Dated 30.8.2005. Subject : Amount levied on account of theft of electricity. Dear Sir, Your premises Ram Kishan (given complete address and also A/c No. in case the person is a consumer) was inspected by XEN Enforcement (given name and exact designation of the authorised officer/official) on dated 28.8.2005 at Hansi (a.m./p.m.). During above inspection the following act(s) of dishonest use of electricity was.......................by the authorised officer : On the checking all the M&T seals found tampered, it is a case of theft. The memorandum of inspection and seizure was duly handed over to you Sh. Ram Kishan being present at the time of such inspection. The above facts indicate that you have been indulging in theft of electricity. Accordingly, undersigned has compounded the offence of theft of electricity amounting to Rs. 1,60,000+700 to be paid by you for the above act(s). Details of amount are as under= SCAR No. 36/119. As per S.C. No. 36/2004 and C.L. 7.790 K.W. Sd/- Stamp & Signatures of Assessing Officer"

The reading of the above notice would show that altogether illegal procedure of law has been adopted by the S.D.O. (OP) Sub-Division as the Assessing Officer because he had already determined the penalty after coming to the conclusion that theft of energy had been committed. It is not even the case of the opposite parties that the complainant had approached the opposite parties for compounding of the offence. It means that unilaterally the opposite parties at the first instance had passed the order of assessment taking it a case of compounding of the offence and then giving an option to the complainant for compounding the same. It cannot be ignored that the complainant by filing the complaint had challenged the legality of the demand as per Memo No. 1870 dated 30.8.2005. Therefore, under the circumstances of the case the only conclusion that can be drawn is that issuance of the above said notice to the complainant by the Assessing Officer of the opposite parties was a gross misuse of the powers vested under Section 152 of the Act, 2003 on the part of the Assessing Authority. Surprising enough, the District Forum has not taken into consideration the above stated position on record and for that reason the order of the District Forum cannot be sustained.

FOR the aforesaid reasons, while accepting the appeal the impugned order of the District FORum is set aside and the demand made by the opposite parties is quashed. The respondent-opposite parties are directed to restore the electricity connection of the complainant within 15 days of the receipt of copy of the order. Appeal allowed.