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Judgment
PETITIONER was the complainant before the District Forum, where he had filed a complaint alleging deficiency in service on the part of the respondent, UP Electricity Board (now called UP Power Corporation).
VERY briefly stated the facts leading to filing the complaint were that there was a 5 Horse Power electricity connection for the tube -well in the name of Mati -ur -Rehman, the father of the petitioner / complainant. It was his case that on 25.1.1995, the electricity connection to the above tube -well was disconnected, allegedly on account of non -payment of arrears. Again he made a request for reconnection on 13.2.1995 and paid Rs. 100 for the same but since the connection was not being restored, a complaint was filed before the District Forum. The notice was issued to the respondent. The respondent filed written version in which his contention was that there was arrear of Rs. 2,146.20 as on 23.1.1995. Since the petitioner had not paid that money, hence, the connection was not restored. Admittedly, the petitioner filed evidence in support of his case whereas no evidence by way of affidavit was filed by the respondent before the District Forum. The District Forum, after hearing the parties and perusal of material on record, allowed the complaint and directed the petitioner to restore the electricity connection and also to pay a compensation of Rs. 250. Ostensibly, no appeal was filed against this order dated 29.1.1997.
WHEN the order of the District Forum was not being complied with, an execution application was filed before the District Forum by the petitioner/complainant. However, Rs. 250 ordered to be paid by the District Forum was paid to the complainant but electricity connection was not restored. Vide order dated 3.5.2002, the District Forum, in execution proceedings, directed the respondent to connect the electricity. It was the case of the respondent that they had complied with the order of the District Forum. Since this was contested by the petitioner, the President and one Member of the District Forum visited the spot and carried out the inspection in the presence of Executive Engineer and SDO of the UP Power Corporation and came to the finding that the connection has not been energised. Respondent filed a revision petition before the State Commission on 28.6.2002 seeking to set aside the inspection report 3.6.2002 of the District Forum. Vide order dated 11.7.2002, the District Forum in execution proceedings passed the order under Section 27 of the Consumer Protection Act, through which the respondent Nos. 2 and 3 were directed to undergo simple imprisonment for a period of three months and pay fine of Rs. 2,000 by each of the respondents, and if the fine was not paid then the defendants were to undergo further imprisonment for 15 days. It is in these circumstances, warrants were issued against the respondents against which, again a miscellaneous application filed before the State Commission, who vide their order dated 12.7.2002 stayed the operation of the impugned order till the disposal of the revision petition. Warrants of arrest in execution proceedings was also ordered to be stayed till the disposal of the revision petition. The State Commission through a detailed impugned order dated 3.12.2003 set aside the order mainly on the ground that the petitioner was not a consumer''. However, in the operative part, it was made clear that it would be open to the petitioner/complainant to apply for a fresh connection or apply for connection being nominated as successor and after entering into fresh agreement as per law and get the same power connection which stood in the name of his late father. Aggrieved by this order, this revision petition has been filed before us. We heard the learned Counsel for the parties at considerable length and perused the material on record.
TO begin with, we find, that if material placed on record is an indication, then the disconnection in Jan. 1995 was not in order for the simple reason that a document emanating from the respondent appearing at page 13 of the Vol. 2 of the paper -book clearly stated, in Hindi, that that there is no arrear on the part of the consumer upto Jan. 1995. If that was so then, in our view, prima facie, there was no ground whatsoever, for disconnecting the electricity in Jan. 1995, on the ground, that petitioner has not paid the arrear. This document remains unchallenged. Be that as it may, the fact remains that the order passed by the District Forum on 29.1.2007 had become final as no appeal was filed by the respondent. According to this order, there were two directions given by the District Forum -one to restore the electricity and second to pay a compensation of Rs. 250. There is no dispute that the respondent has paid the amount of Rs. 250. It was the case of the respondents before the District Forum in execution proceeding that they have restored the connection but since the petitioner had stated that their connection has not been restored, the District Forum decided to carry out the spot -inspection themselves in the presence of Executive Engineer and SDO of the respondent. The inspection report extracted from the order of the State Commission reads as under: "Tubewell room was locked which was opened by Naresh Pal through his own key. Bolts were not fitted in the room. There was one Lister time engine in the room which had the belt over it. Engine was not working at the time of inspection. From over the roof, through a bracket, the cable of 4 lines had come into the room through a hole in the wall. Three of the said wires were connected with the bracket which was connected with the L.T. Line. The three wires had three aluminium pieces of wire attached to them. At the time of inspection, power connection was not flowing in. The SDO indicated that power connection was supplied in those days in the nights only. There was no electric motor in the room and there was no cable towards it. There was no bulb to light the room from inside or outside. The oil engine was started which was kept for putting the belt on the bearing of the motor. There was no other band or clutch."
THE District Forum in execution proceedings vide their order dated 11.7.2002 passed the following order: "Since the above order of the Court was not complied with by the opposite party, on 5.11.1997, the complainant filed contempt petition against the opposite party on the basis of which a notice was issued to the opposite party under Section 27 which was served on the employees of the Department. In spite of the above notice, the order of the Court was not complied with by the opposite party although they have paid an amount of Rs. 250 on 22.4.98 to the Complainant towards the loss suffered by him but till that time no connection was connected of the Complainant.
On 3.5.2002, the opposite party was again directed to connect the electric connection but on 6.5.2002, the Complainant again brought to the notice that his connection has not been connected yet although the learned Counsel of the opposite party had stated that the electric connection of the Complainant has been connected. On the same day, the Executive Engineer of the opposite party, i.e., the Electricity Board was directed to submit an affidavit in this regard latest by 13.5.2002 and it was also stated that if there need be, the President of the Forum will also inspect the premises. Both the parties submitted their evidence on 13.5.2002 and in compliance of the orders dated 3.6.2002 and 6.5.2002, the President of the Manch along with Shri Swatantra Prakash, Member, visited the site on the spot and inspected the connection and prepared a report. During the inspection on the spot it was actually found that the electric connection of the Complainant had not been connected. During inspection, it was also found that there was no arrangement for supply of electricity in the premises of the Complainant because there was no electricity motor or any bulb. Even there was no starter or switch board which while supplying the electricity, were required to be connected. The Complainant was found to be irrigating his land by diesel engine. In view of the above circumstances, we come to the conclusion that the opposite party has not actually complied with the orders of the Manch and, therefore, they have submitted a false report and thus misled the Manch. It is, therefore, necessary to take action against the Opposite Party Nos. 2 and 3, Executive Engineer, Electricity Distribution Division -II and Assistant Engineer, Electricity Distribution Division -Ill, Sahaswan under Section 27 of the C.P. Act. This has been continuing since 1995 and till this time, the Complainant has not got any relief. He is wondering for the last seven years and the opposite party has not discharged its duty properly and the opposite party is misleading the Manch also. Therefore, it is necessary to punish them.
It has, therefore, been decided that the Opposite Party Nos. 2 and 3 are hereby awarded simple imprisonment of 0 -3 and 0 -3 months and fine of Rs. 2,000 each under Section 27 of C.P. Act. If the fine is not paid then the Opposite Party No. 2 and 3 will be served with simple imprisonment for 15 -15 days each. Arrest warrants may also be issued against the Opposite Party No. 2 and 3."
DESPITE this it was the case of the respondent that the connection has be restored.
ON 12.1.2009, after hearing the parties at some length, we had passed the following order: "Counsel for the respondent seeks time to ascertain as to whether the electric connection to the tubewell of the petitioner has been restored or not; and if not restored, to restore the same as on date. Adjourned to 16.2.2009. It is made clear to the Counsel for the respondent that no further adjournment shall be granted in this case."
IN compliance with the above direction respondents have filed an affidavit of one Shri M.P. Singh, their Executive Engineer dated 7.2.2009.
THE whole sequence of events makes a very interesting reading and we are constrained to observe that, this affidavit reveals more than what meets the eyes.
FIRSTLY , based on the document of the respondent, we had observed that as per their own record, there was no arrear outstanding against the petitioner as on Jan. 1995, though the copies of the ledger shows some arrear against the petitioner. The respondents have not been able to reconcile the ledger with the document referred to earlier (page 13 of the Vol. 2). Nowhere, it has been proved by the respondent that electricity supply was restored on 27.2.1998, while it is a fact that the District Forum, on spot inspection found it to be otherwise, that too in the presence of senior officers of the respondents. We would have taken some different view, but for the fact, that after going through para 4 of the affidavit, we are left in no doubt that electricity was restored only on 25.1.09 for which the respondent had to incur expenses for re -energising the supply, and it is observed that the petitioner is liable to deposit reconnection charges. Nowhere, in the sequence of events or affidavit, it has come out as to when after restoration connection in 1998, the connection was disconnected and for how long time, it has remained disconnected, causing the necessity to arise for a reconnection on 25.1.2009. A plain perusal of material on record, especially affidavit filed by the respondent, lead us to believe that the connection has been restored only on 25.1.2009, thus, affirming the observation in the inspection report of the District Forum that connection was never restored in compliance with the order passed by the District Forum in Jan. 1997.
A case is also attempted to be built on the premise that there is arrear of Rs. 1,26,777. This figure has cropped up for the first time, as this has neither been reported either before the State Commission nor before us during the pendency of the revision petition for almost 4 years. If there was no connection, on what ground the arrears could be built up, leaves much to be explained! learned Counsel for the respondent wishes to rely upon para 5.1 of the Commercial and Revenue Manual, which reads as follows: "5.1 Procedure for billing for supply to private tubewells/pumping sets. Those consumers who are given electricity supply to their private tubewells/pumping sets for irrigation through rural schedule and whose sanctioned load is upto 25 H.P., in those cases the billing is done as per Rate Schedule LMV 5. Normally, on these installations, no meter is fixed and the billing is on fixed rates Those consumers who wish to have the meter installed. Their billing is done according to consumption of electricity. In the 8 hill Districts or part thereof, the consumer is given rebate of 50% in first 5 years of connection. For the consumers, billing is done through computers but the bills are not sent and instead at the time of connection they are given passbook."
THIS does not help the case of the respondent. Neither the ledger, nor this manual and nor any other material on record, shows as to when was the electricity restored in compliance with the order of the District Forum and when it was disconnected till the time it was restored on 25.1.2009? and also make us wonder as to on what ground the respondent let the arrears accumulate upto five figure. If they reportedly disconnected the connection given to the petitioner in 1995 for arrears of a small sum of Rs. 2,146 then why did they let the arrears mount to over Rs. 1 lakh? What were they waiting for? These queries remain unanswered and un -addressed by the respondent and leave us in no doubt that the respondent has not conducted himself in a manner of becoming of an important functionary of the State.
WE also like to mention that State Commission, in our view, gravely erred in passing the order which it did, by holding the respondent, not to be a consumer'', as the connection was in the name of the father of the petitioner/complainant. If that was the objection then respondents should have taken up this matter with the District Forum and if they were not satisfied with the order of the District Forum on this ground, then they should have filed an appeal before the State Commission taking this ground. No appeal was filed against the order passed by the District Forum dated 29.1.1997. We do not appreciate the way State Commission dealt with the appeal on the sole ground of petitioner not being a consumer, in execution proceedings. The order passed by the District Forum in January, 1997 had become final and the Executing Courts could not go behind the decree in execution proceedings unless a fraud is established. It was not the case here.
IN the aforementioned circumstances, we would have restored the order passed by the District Forum in execution proceedings, but we are refrain from doing so on account of passage of time and not knowing the status of the officers concerned, in view of which, the arrears shown in the affidavit filed by the Executive Engineer amounting to Rs. 1,26,777 are quashed. The respondent is directed to not to disconnect the connection restored on 25.1.2009.
THE petitioner is directed to deposit the reconnection charges and also apply for issue of connection in his own name within 45 days of pronouncement of this order and Respondent shall do the same as per law/rules/regulations on the subject within 2 months thereafter.
IN view of the long history of the harassment caused to the petitioner as also the inability of the petitioner to make use of irrigation from his crop production, the petitioner will be entitled to a compensation which we fix at Rs. 50,000. The petitioner shall also be entitled to a cost of Rs. 5,000. All the above amount be paid by the respondent to the petitioner within a period of six weeks from the date of pronouncement of this order, failing which the petitioner shall be at liberty to approach the District Forum under Sections 25 / 27 of the Consumer Protection Act.
THE revision petition stands disposed of in above terms.