Uttarakhand Power Corporation Ltd. & Another vs M/S Hotel Urvashi

Sharad Kumar Sharma, J

The distributing licencee has been defined under sub-section (17) of Section 2 of the Electricity Act of 2003, it means an authority who is authorized to operate and maintain a distribution system for supplying electricity to the consumers in his area, meaning thereby, the consumers as defined under the Act. In the case at hand for certain alleged theft of electricity the respondent had issued notices on 20.10.2009 to the respondent. Being aggrieved against the issuance of notices dated 20.10.2009, the petitioner has approached CGRF invoking its jurisdiction. Hence, he has filed the complaint petition for the following reliefs quoted hereinbelow. The prayer as against the said notice as sought for by the petitioner before the CGRF was modulated in the following fashion:

"(a) That the notice dated 20.10.2009 be set aside and cancelled, and the respondents be directed not to initiate any action or further proceedings under the said notice, including taking any coercive method like disconnection, recovery under the said notice.

(b) That the respondent be restrained from initiating any action or further proceedings on the basis said notice or arising out of sealing certificate dated 21.04.2009, during the pendency of this complaint.

(c) That compensation of harassment suffering and financial loss to the tune of Rs. 5,00,000/- be awarded to the complainant as against the respondent.

(d) Action for enquiry be recommended or direction against the officials of the respondents who are responsible for the same, and those who are indulging in harassing the consumer for their ulterior motives be given. It is also requested of the Hon'ble forum to impose heavy fine and exemplary cost on the such officials in their personal capacity recoverable from their personal funds.

(e) Full cost of the complaint be awarded to the complainant.

(f) Any other or further relief which the applicant is entitled to."

The CGRF, which has been mandatorily constituted under Section 42 of the Electricity Act of 2003, it is mandatorily required to be constituted by the distributing licencee, where any consumer as defined under the Act can approach to the CGRF for redressal of his "grievance" according to the guidelines, which has been issued by the State Commission.

In the instant case if the relief is scrutinized, in fact, the prayer as sought for by the petitioner was a direction to the respondent not to proceed any further in pursuance to the notice dated 20.10.2009. For the purposes to come to a logical conclusion it is essential to deal with the intent of the notice dated 20.10.2009 itself. As per the contents of the notice, which was issued to the petitioner there were two reasons for issuing notice to the petitioner, under Section 126 of the Electricity Act to be read with Section 135. Firstly, on the ground that the said three phase meters have tempering body seal No. 20053. Secondly, the lead seal was found open and, consequently three shunt across the current circuits were found, which was intentionally done by the consumer to get recorded reduced recording of consumption of electricity than the actual consumption. Consequently, keeping the said fact into consideration, the notice under Section 126 r/w 135 was issued by the Executive Engineer calling upon the petitioner to submit his reply or to deposit the amount claimed therein within seven days or he may file an appeal available against the notice under Section 127 of the Act.

The said notice further provided that in case if the petitioner is not satisfied with the decision taken in pursuance to the notices issued under Section 126/135, it would be open for the petitioner to prefer an Appeal under Section 127 of the Act before the appellate authority, which is the District Magistrate.

Being aggrieved against the said notice and on the initiation of the proceedings thereto. The petitioner has approached the Consumer Grievance Redressal Forum by filing a complaint on 18.11.2009 as against the said notice dated 20.10.2009. Surprisingly, a negative injunction was sought by the petitioner that the respondents may be restrained to proceed further in pursuance to the said notice and the respondents may be restrained to initiate any action arising out of the sealing certificate dated 21.04.2009 against the petitioner.

Without venturing into the merits of the matter and considering the terms of the notice, this Court is of the view that since the proceedings in pursuance to the notice has not yet been initiated under Section 126 of the Act, the same would be appealable, which has been contemplated under the statute itself under Section 127.

There is another reason why the complaint before the Consumer Grievance Redressal Forum, would not be tenable is that until and unless in compliance to the notice dated 20.10.2009 the petitioner submits his reply and the same is decided by the Executive Engineer or by the competent authority of the distributing licencee. The grievance is yet to take birth and for the invocation of sub-section (5) of Section 42 of the Act by filing of a complaint before the CGRF, there has had to be a grievance to be addressed before the Consumer Grievance Redressal Forum for its adjudication and soliciting its decision.

Further, because since here the proceedings has been initiated on altogether under Section 126 for the reason of the alleged theft of electricity and it was the assessment which has been made under Section 126 of the Act, the petitioner's remedy would lie of preferring of an Appeal against it only if any decision is taken in pursuance to the reply, which was to be submitted by the petitioner under Section 126. If the notice is read it only called upon a reply as against the assessment of liability i.e. loss caused due to the theft of electricity.

The reason, which has been aggrieved is that even the power of assessment provided to the Distributing Licencee has had to be reasonable, while exercising its power under Section 126 and ought to be taken after resorting to the procedure laid down for taking the action. This Court is of the view that even if the notices are issued without adherence to the procedure, and an explanation is called by the notice, its always open for the consumer to raise all grounds even the ground of procedural flaws, and illegality of the assessment bills. Even the closure of complaint was subject to depositing of the first assessment bill on the basis of the finalization of bills on the basis of the readings given by the petitioner consumer, while giving reply to the notice and even against the order of Distributing Licencee thereafter he could have filed the complaint and thereafter the appeal provided under Section 127 of the Act.

The complaint before the CGRF as preferred by the petitioner since being against an Assessment Order under Section 126 and a notice dated 20.10.2009 issued thereto, on it, it would not be tenable on this limited count itself, with a liberty open to the petitioner to file his objection within two weeks from today. The same would be considered by the respondent within two weeks thereafter from the date of receipt of the certified copy of this order and the respondent would pass a reasoned order after hearing the petitioner and thereafter the petitioner can avail his remedy under the statute by preferring an appeal provided under the Act for an action taken under Section 126 of the Act.

Subject to the above observation, the writ petition is allowed. The impugned order as passed by the CGRF on 23.07.2010 in Complaint Case No. 64 of 2009 'M/s Hotel Urvashi 494 Civil Lines, Roorkee vs. Executive Engineer Electricity Distribution Division (Urban) UPCL, Roorkee, hereby quashed.