W B S E B vs MORSED SK

THIS appeal arises out of D. C. D. R. F. Birbhum Case No. 10/2004 where the Complainant Morsed Sk''s case was that, "he is consumer under the OPs having Service Connection No. S/3211 installed in his premises to STW at Hasipur since 1991. He paid bills upto December, 1999. Due to non-payment of bills to the tune of Rs. 13,600 the service line of the petitioner was disconnected on 21. 10. 2002. The petitioner therefore, paid Rs. 4,500 against the outstanding dues on 28. 1. 2003. The Transformer (63 KVA) was burnt and remained burnt from June, 1999 to February 2000 and the Petitioner requested the OP to adjust/deduct the bill amount during burnt period but with no effect. The petitioner is eager to pay the outstanding amount and to receive the electricity connection to his STW but the OP did not cooperate. Hence, he filed this case seeking redress as per prayer in the plaint".

O. P.-W. B. S. E. B. contested the case, "by filing Written Objection denying the material allegation contending inter alia that there was no burnt period and the Transformer from which electricity line was given to the Petitioner''s STW was always in workable condition and there was no such burnt period as alleged. The O. P. further submits that electricity connection was disconnected for non-payment of the bills". The learned Forum below after hearing both sides ordered, "the Petitioner shall pay Rs. 7,356 and reconnection charges of Rs. 100 within 60 days and the O. P. shall given electricity connection within 15 days thereafter and no other charge like addl. Security, Late Payment Fee, etc. will be charged".

Being aggrieved and dissatisfied with the impugned judgment and order of the learned Forum below the O. P. in the Forum namely W. B. S. E. B. filed this appeal when its stated inter alia, "that the complainant/respondent was the consumer in respect of his shallow tubewell and he was enjoying such electrical connection to the shallow tubewell for his agricultural purpose, till 2002. The consumer did not pay the regular bills and further the electric connection for shallow tubwell was converted into a submersible pump connection. Due to such conversion, the appellant-Board took action against the complainant/consumer by lodging an F. I. R. with concerned Police Station that the unauthorized conversion of the electricity from shallow tubewell connection to submersible pump connection is made which is illegal and amounts to theft of electrical energy". Accordingly, after lodging F. I. R. the Board initiated and the supply was disconnected. Subsequently, the Board imposed certain conditions for restoration of the electrical line as follows: " (i) Payment of outstanding dues in respect of the disconnection of supsply; (ii) Submission of water availability certificate from the concerned S. W. I. D. Department; (iii) Installation of appropriate meter with requisite horse power and submission of test form to that effect for additional security deposit as required. "

"the complainant/respondent did not comply with the said formalities and after expiry of the limitation period from the date of disconnection, the complainant/respondent filed the case before the District Forum and the District Forum directed to restore the electricity supply upon depositing the outstanding amount only". "for that the learned Forum below failed to appreciate that the Forum has got no authority and/or any power to waive the requirements of submission of S. W. I. D. Certificate i. e. the water availability certificate, additional security deposit, test form, etc. and to restore the line". "for that the learned Forum below failed to appreciate that the conversion of electrical supply from shallow tubewell to submersible pump is an offence for which an F. I. R. was lodged with the concerned Police Station". "for that the learned Forum below passed the order without taking into consideration the law point and also the requirements of compliance of necessary formalities" and prayed for setting aside the judgment and order. "

THE Respondent entered appearance and filed W. V. when the matter was heard with filing of respective WNAs. In its WNA the Appellant argued inter alia, "the Forum did not consider the fact that S. W. I. D. certificate from the concerned Surface Water Investigation Department is a must for drawal of ground water and further to pay additional security, etc. since the electric connection for the shallow tubewell and the connection for submersible pump varies with regard to the Horse Power of the electrical energy and for that, different meter and different set up is required and no consumer can take action without taking leave of the Board". "the Forum passed the order without appreciating the legal position and also the factual aspect and requirement of following essentials". " (i) S. W. I. D. Certificate, (ii) Test Form, (iii) Additional Security Deposit, (iv) Outstanding amount". "the learned Forum ignoring the requirement under law and further by minimizing the bill amount of the Board, had committed grave error and illegality causing irreparable loss and injury to the West Bengal State Electricity Board and, as such, the order is without the jurisdiction and vitiated under law and the memo order is to be set aside and/or quashed". While the Respondent in its WNA stated "that the respondent/petitioner paid Rs. 4,500 against the outstanding dues on 23. 1. 2003 but the appellant disconnected the line. The appellant issued a notice upon the respondent to deposit the outstanding dues amount to Rs. 13,600 along with additional enhance security money to the tune of Rs. 1,300. Against such arbitrary and illegal notice the respondent/petitioner filed an application before the learned District Forum in Case No. 10 of 2004. Both parties filed their affidavits. After hearing the parties the learned District Forum directed the respondent/petitioner to pay the outstanding bill to the appellant and the appellant to restore the electric connection accordingly. Against that order the appellant preferred the instant appeal. That the respondent/petitioner submits that the application was filed before the learned Forum within limitation and the learned Forum passed the order rightly. That the respondent/petitioner submits that the electric connection of the respondent was the old connection and as such there was no question of New Water Availability Certificate or submission of Test Form or additional security deposit. Those conditions were required for new connection only. That the respondent/petitioner submits before this learned Forum that the appellant herein illegally demanded the electricity bill for the period of burnt transformer since June, 1999 to February, 2000 which is very much to the knowledge of the appellant and as such the bill raised on those period should be deducted and on that basis the learned District Forum passed the order rightly and as such the present appeal and stay petition both are liable to be dismissed with costs". Discussion: (a) Admittedly the dispute in the complaint related to two aspects namely: (i) Claim of consumption bills and correctness thereof including claim of consumption bills during the period when supposedly transformer of the Complainant''s power line was burnt along with question of payment of/enhancement of security deposit on the Complainant''s pre-existing power line. (ii) Requirement on part of the Complainant towards satisfaction of statutory conditions prior to providing connection/re-connection/restoration of the power line, which inter alia includes, (a) S. W. I. D. Certificate, (b) Test Form, (c) Security Deposit, and (d) clearance of outstanding dues.

(b) Admittedly the dispute related to amounts of bill for electricity consumption of the Respondent for periods covered under Electricity Act, 2003 and provision laid down there-under and accordingly the matter is required to be adjudicated under the provision of the said Act and provision as above stated.

(c) Sections 50, 181 of the Electricity Act, 2003 read with provisions 3. 5 of the W. B. E. R. C. Regulation No. 13 dated 5. 2. 2004 would apply in the given case where provision 3. 5 of the said Regulations provided for resolution of a dispute of this nature in the manner as below:

"3. 5. 1 In case there is any dispute in the billed amount, the aggrieved party may lodge a complaint before the designated officer/agency in terms of the grievance procedure and pay under protest an amount equal to electricity charges due from such consumer for the month which shall be calculated on the basis of average charge of electricity paid by the consumer during preceding 6 months or an amount equal to the sum claimed in the bill from the consumer whichever is less within due date pending settlement of the dispute. The amount so calculated and tendered by the consumer shall be prima facie accepted against that bill on provisional basis. The shortfall/difference, if any, shall be notified within 7 days to such consumer by the licensee and the same will be paid by the consumer within 5 days of receipt of such demand.

5. 2 If on examination, the licensee finds that the disputed bill is erroneous, a revised corrected bill shall be furnished to the consumer. The amount paid in excess, if any, by the consumer, shall become refundable with interest at a rate which shall be the same as applicable to security deposit or any other rate as may be decided by the Commission from time-to-time. The refund of the excess amount shall be made by the licensee through an adjustment in the subsequent bill and the due date of payment of the subsequent bill in which the amount is adjusted would be treated as date of refund and interest calculated accordingly.

5. 3 Likewise, if on examination it is established that the original bill was correct, then the consumer shall be intimated accordingly and notified to pay the balance, if any, with applicable surcharge and interest within 7 days of receipt. The rate of interest shall be same as in Regulation 3. 5. 2. However, consumer shall have a right to take up his complaint as per Grievance Procedure and other relevant provisions of the Act and Regulations.

5. 4 The licensee shall resolve the dispute and communicate its decision along with the reasons to the affected party as per the grievance procedure in the manner given therein. (d) Sections 136,138,143 read with Section 126, Section 127 and Section 143 of the Electricity Act, 2003 are attracted in this appeal which debars the Consumer Forum under C. P. Act from adjudicating given dispute. This position has been confirmed by the Hon''ble Apex Court in II (2006) CPJ 14 (SC)=iii (2006) SLT 649, Haryana State Electricity Board v. Mam Chand, when it was held that when the key question which arises for determination related to complicated question of fact and law under Electricity Act, 2003 concerning assessment of unauthorized use of electricity including tampering of meter, interfering with calibration of electricity under Section 126 and Section 135 of the Electricity Act, 2003, the same could not be decided in a summary manner by the Consumer Forum and the Complainant should be directed to approach the Competent Authorities under the said Electricity Act, 2003. (e) In III (1997) CPJ 116 (NC)=1997 (2) CPR 92 (NC), C. E. S. C. Ltd. v. Smt. Sumita Pal, it was held that "where there was a tampering with the metering connection by the consumer it cannot be said that there was any deficiency in service on part of Electricity Board as to warrant the grant of any relief to the consumer in proceeding under C. P. Act". (f) The W. B. E. R. C. Notification No. 10 dated 23. 9. 2003 duly published in Calcutta Gazette dated 8. 10. 2003 has brought about a set of regulations consisting of guidelines for establishment of Forum for redressal of grievances of consumer and Ombudsman. (g) In above view of fact and law the impugned judgment and order of the learned Forum below is patently not maintainable being bad in law. The appeal is, therefore, liable to be allowed on contest without cost subject to directions as in the order. ORDER

THE appeal is allowed on contest without cost. The impugned judgment and order of learned Forum below is set aside being bad in law and not sustainable. However the Respondent is given liberty to refer the issues in the complaint to the ''grievance Redressal Machinery'' as established under law, within 30 days of the judgment and order. Appeal allowed.