Avm Jonnalagadda Rajendra, Avsm, Vsm (Retd)

This Revision Petition is filed under Section 21(b) of the Consumer Protection Act, 1986 ("the Act") against the Order dated 07.07.2021 by the Rajasthan State Consumer Disputes Redressal Commission, ("State Commission") in FA No.142/2016 vide which the State Commission dismissed the Appeal preferred by OPs and affirmed the District Consumer Disputes Redressal Forum, Barmer ("District Forum") Order dated 23.06.2016 in CC No. 103/2014.

2. For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.

3. Brief facts of the case, as per the complainants, are that they had applied for release of electricity connections under the NDS Scheme, pursuant to which the Opposite Parties informed them that at least two applicants were required for release of the connections. Accordingly, one application was submitted in the name of Complainant No. 1 and another in the name of his mother, Smt. Antro Devi. A demand notice was thereafter issued by the OPs. In compliance of the same, Complainant No.1 deposited Rs. 1,24,500 on 11.08.2011 and Complainant No.2 deposited Rs. 1,500. Upon deposit of the demanded amounts, separate electricity connections were released in the names of the complainants, and all electricity consumption bills were duly paid by them up to December, 2013, with no outstanding dues. However, in the bill issued for February, 2014, an amount of Rs. 25,125 was reflected as payable in Column No.17, which, according to the complainants, was illegal and unwarranted. Aggrieved thereby, they approached the OPs seeking rectification of the said bill. But, the error was neither corrected, nor any satisfactory explanation furnished. Alleging deficiency in service, the Complainants sought directions for rectification of the bill dated 03.02.2014, restoration of the disconnected electricity connection and compensation of Rs. 80,000 for mental agony along with Rs. 5,000 towards litigation expenses by filing a complaint before the District Forum.

4. On being issued notice, OPs contended that although the said connections were released in October, 2011, an internal audit conducted by the Assistant Engineer (Audit) for the years 2009-10 and 2010-11 revealed that a sum of Rs. 50,520 was recoverable towards the cost of the transformer. The said amount was accordingly reflected in the bill and the complainants were duly notified to deposit the same. Upon their failure to do so, the amount was debited to their account and the electricity connection was disconnected on 18.03.2014. The OPs contended that the demanded amount pertains to the lawful recovery of transformer installation charges and, therefore, the OP sought for dismissal of the complaint with costs.

5. The learned District Forum vide Order dated 23.06.2016, partly allowed the complaint with the following order:

                          "ORDER

                          1. Accordingly, the complaint filed as by the complainants under section 12 of Consumer Protection Act, 1986 is accepted and the Electricity Bill issued against Khata No. 2209-0071 dated 03.02.2014 as also the Electricity Bill issued against Khata No. 2209-0072 dated 03.02.2014 wherein an amount of Rs. 25,125/-has been wrongly added, is reduced, and the respondents are directed to rectify both the aforesaid bills and the respondents are further directed to restore forthwith the electricity connections disconnected by them and for mental agony and torcher the respondents are directed to give a sum of Rs. 5,000/-each to the complainants besides a sum of Rs. 3,000/- towards litigation expenses. The compliance of this order be done within 1 month from today otherwise the aforesaid amounts shall carry interest @ 9% per annum from 02.04.2014.

                          2. Order announced in open court on this 23.06.2016" (Extract from translated copy)

6. Being aggrieved by the District Forum Order, the OPs filed Appeal No. 142/2016 and the State Commission vide Order dated 07.07.2021 dismissed the Appeal, with the following observations:

                          "5. We have heard the arguments of the Ld. Counsels for the parties. We have also perused the pleadings on record and perused the impugned order passed by the Ld. District Forum.

                          6. The Ld. Counsel for the Appellant department relying upon a decision as reported in MANU/SC/0606/2013 in Civil Appeal No. 5466-5457 of 2012 in case titled as U.P. Power Corporation Ltd. Vs. Anees Ahmad (Order dated 01.07.2013) has argued that the complainants are using the electricity connection for commercial purposes and hence do not come within definition of consumer. In addition relying upon facts and circumstances as detailed in the Memo of Appeal, the Counsel as argued that since the connection released in favour of the complainants was under the self-financing scheme, the department has rightly claimed the charges for the transformer from the complainants and on this account alone the order passed by the Ld. Dist. Forum was liable to be set aside.

                   These facts have been opposed by the Ld. Counsel for the Complainants. They have argued that the order passed by the Ld. Dist. Forum is fully based on the pleadings and on the basis of arguments advanced by the respective parties and in light thereof, it is absolutely legal and does not call for any interference by this Forum.

                   7. We have perused the contentions advanced by the respective parties and have perused the record.

                   8. In so far as, the decision of the Supreme Court as reported in U.P. Power Corporation Vs. Anees Ahmad is concerned, in our respectful view, the same is not applicable to the facts and circumstances of the present case. Even though, the Hon'ble Supreme Court, in the case at hand, had quantified the amount payable towards unauthorized user against the persons/ connection holders and in the said case, all the electricity connection holders were commercial users. Accordingly, keeping in view all the facts and circumstances of the case, the Hon'ble Supreme Court had come to the conclusion that the said persons were not covered within the meaning of section 2(i) (d) of the Consumer Protection Act. On the other hand in the case at hand, the complainants have admittedly availed of an electricity connection under a scheme floated by the appellant department, in as much as the complainant no.1 had made an application and after deposit of the demanded amount had released to the complainant no.1 a N.D.S. (Commercial Electricity Supply Connection) and to the Respondent No. 2 a domestic connection was released, accordingly, we do not find the aforesaid case as to be benefitting the electricity department from that angle.

                   9. Keeping in view the facts and circumstances of the present case, admittedly, in the present case the demand notice which had been issued by the appellant department to the respondent complainant, there was no mention of the amount of the transformer, however, during the course of the audit it was found that the amount of the transformer had not been claimed and for this reason, a demand was raised upon the complainants, feeling aggrieved wherefrom the complainants have preferred the instant complaint. The amount for the transformer is found to be recoverable during the course of audit. The complainant had been granted the connection under the self-financing scheme 2009, whereunder the cost of the transformer is also to be recovered from the connection holder, in this case, the audit had pointed out for the first time that charges were pending on the aforesaid account, however, in past the appellant department had never pointed out that certain amount was pending against the complainants on account of the transformer. On the contrary admittedly, in the demand note no such amount has been found to be recoverable under the aforesaid head.

                   The Hon'ble Forum in its impugned order, while discussing the arguments of the respective parties and after perusing the evidence on record has come to the rightful conclusion that the complainants were told at the time of taking the electricity connection itself, that atleast two electricity connections would be required to be taken, after which only the electricity connection would be released and that the cost of the transformer would be borne by the appellant department. There is no denial on the part of the appellant department to the aforesaid. The Ld. District Forum had concluded that no evidence by way of Affidavit had been filed on behalf of the Respondent Department. In addition, the Ld. District Consumer Forum has also reflected its view by stating "In case the respondents had given assurance to the complainants at the time of giving of the electricity connection that the transformer would be installed their expense and they have gone beyond the rules and installed the electricity connection, then for this Act, the complainants are not responsible but in fact the Assist. Eng. of the Department, granting the electricity connection at the relevant time, is in fact responsible".

                   10. We are in full agreement with the Hon'ble District Forum because in the facts and circumstances, the contention of the complainants is to be believed in totality to the effect that it was only on the assurance of the appellant electricity department, that they had agreed to make two applications. separately at the same time and infact, the amount shown to be outstanding in the demand notice issued by the respondent department was paid by the complainants and only then, were they given the connection. In these facts, the respondent department cannot hold the complainants responsible for the deposit of the amount as allegedly found out during the course of audit. At this point it is also necessary to state that the department has failed to establish that the complainants were given the connection under self financing scheme under regulation 559 dated 28.05.2009.

                   11. In light of the aforesaid we are of the considered opinion that the impugned order passed by the Hon'ble District Forum is completely in accordance with law, keeping in view the facts and circumstances of the present case. In these circumstances, we do not find it appropriate to interfere with the impugned order on the basis of the grounds as mentioned in the Memo of Appeal.

                   Resultantly, the appeal of the appellants is dismissed the parties shall bear their own costs." (Extract from translated copy)

7. Dissatisfied by the State Commission order, OPs filed this Revision Petition No.1106 of 2021 seeking:

                   "(i) call for the records of appeal No.142/2016 as "Jodhpur Vidyut Vitran Nigam titled Limited Vs. Jagdish Singh & Anr." and set aside the impugned order dated 07.07.2021 as passed by the Hon'ble State Commission, Circuit Bench, Jodhpur, Rajasthan as also the impugned order dated 23.06.2016 as passed by the Hon'ble District Forum Barmer, Rajasthan in Complaint No.103/2014."

8. The learned Counsel for OPs reiterated the issues raised in the written version and the grounds advanced in this Revision Petition, and argued that the present Revision Petition is against the impugned order dated 07.07.2021 passed by the State Commission in FA No. 142/2016, as well as against the order dated 23.06.2016 passed by the District Forum, in CC No. 103/2014. He argued that the impugned orders are contrary to law and facts on record and are liable to be set aside. He asserted that the complainant was running a small-scale industry and was availing the electricity connection for commercial purposes, and thus they do not fall within the definition of a Consumer' under Section 2(d) of the Consumer Protection Act. He asserted that the fora below gravely erred in placing reliance upon the alleged verbal assurance of the complainant that the cost of the transformer was to be borne by the department, which was neither supported by any documentary evidence nor sustainable in law. Rejection of the technical audit report of the department solely on the basis of such unsubstantiated oral statement is arbitrary and perverse. The impugned findings, if allowed to stand, would set an unhealthy precedent enabling other consumers to raise similar unfounded claims on the basis of alleged verbal assurances. He argued that a demand notice is always subject to correction of bona fide errors on either side, and therefore the audit report ought not to have been discarded. The fora below also failed to appreciate that recovery of transformer cost squarely falls within the ambit of Section 42(5) of the Electricity Act, 2003, and thus the petitioner department was legally justified in raising and claiming the said amount from the complainant. He sought to allow this Revision Petition, set aside the impugned orders passed by the lower fora and dismiss the complaint filed by the complainants.

9. On the other hand, the learned counsel for Complainants argued in favour of the impugned orders passed by the fora below. She asserted that the complainants initially filed a consumer complaint stating that they had applied for electricity connections under the NDS Scheme upon the assurance of the respondent department that, if two connections were obtained, the cost of the transformer would be borne by the department. Acting upon such representation, one connection was applied in the name of Smt. Antro Devi and the requisite charges were also duly deposited. Pursuant to which, separate electricity connections were released and the complainants regularly paid their electricity bills up to December 2013 without any arrears. However, in February 2014, the complainants were suddenly issued electricity bills amounting to Rs. 25,125 each, which they immediately disputed as arbitrary and incorrect. Despite repeated requests, the respondents neither rectified the bills nor provided any satisfactory explanation, and resorted to disconnection of the supply in March 2014. The appellants, in their defence, contended that although the connections were released in October 2011, an internal audit later assessed a sum of Rs. 50,520 towards transformer cost as recoverable from the complainants, alleging that they had been informed at the time of sanction that such cost would be borne by them if two connections were taken. The District Forum and the State Commission, upon appreciation of the material on record, ruled in the complainant's favour. However, the OPs preferred the present Revision Petition against the said concurrent findings on the ground that the fora below erred in relying upon verbal assurances instead of the technical audit report. She argued that the arbitrary raising of demand, disconnection of supply, and compelling the complainants to run from pillar to post for the departmental lapse caused not only financial burden but also immense mental agony, clearly constituting deficiency in service by the OPs. She sought the Revision Petition to be dismissed with exemplary costs and refund of the amount deposited by them under protest.

10. We have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by learned counsels for the parties.

11. The principal issue that arises for consideration in the present Revision Petition is whether the concurrent findings recorded by the District Forum and the State Commission holding that the subsequent demand raised towards transformer cost was illegal and amounted to deficiency in service, suffer from any material irregularity, jurisdictional error or illegality warranting interference by this Commission in exercise of its revisional jurisdiction under Section 21(b) of the Consumer Protection Act, 1986?

12. At the outset, it is well settled that the revisional jurisdiction of this Commission under Section 21(b) of the Act is limited in scope. Interference is justified only where it is demonstrated that the fora below have exercised jurisdiction not vested in them by law, failed to exercise jurisdiction so vested, or acted in the exercise of their jurisdiction illegally or with material irregularity. The revisional power does not extend to re-appreciation or reassessment of evidence merely because another view may also be possible.

13. The Petitioners primarily raised two contentions. Firstly, that the complainants do not fall within the definition of "consumer" under Section 2(1)(d) of the Act on the ground that the electricity connection was allegedly used for commercial purposes and reliance was placed on the judgment of Hon'ble Supreme Court in UP Power Corporation Ltd. v. Anis Ahmad, (2013) 8 SCC 491. Secondly, it is contended that the transformer cost was lawfully recoverable under the applicable self financing scheme and the provisions of Electricity Act, 2003, and that the subsequent demand was justified on the basis of the audit report.

14. Insofar as the first contention is concerned, both the fora below have recorded a categorical finding that one electricity connection was domestic in nature and the other was released under the NDS scheme. It has further been held that the facts of the present case are distinguishable from U.P. Power Corporation Ltd. v. Anis Ahmad (supra), wherein the issue related to unauthorized use of electricity and assessment proceedings under Section 126 of the Electricity Act. In the present case, the dispute does not pertain to unauthorized use or assessment under the Electricity Act, but rather to a subsequent demand raised towards transformer cost which was not included in the original demand notice. The Petitioners have failed to demonstrate that the complainants were subjected to any proceedings under Sections 126 or 127 of the Electricity Act. Consequently, the reliance placed upon the aforesaid judgment is misplaced.

15. With regard to the second contention, both the learned District Forum and the learned State Commission have recorded concurrent findings of fact that the original demand notice issued to the complainants did not include any amount towards transformer cost. The complainants deposited the amounts as demanded and the electricity connections were released thereafter. No documentary evidence was placed on record to establish that the complainants had been duly informed that transformer cost would be separately recoverable. The additional demand was so raised only subsequently on the basis of an internal audit, long after the connections had already been granted.

16. The State Commission further observed that no affidavit of evidence was filed on behalf of the department to substantiate its version and no material placed on record to conclusively establish that the connections were granted strictly under a self-financing scheme mandating recovery of transformer cost from the complainants.

17. It is a settled principle of law that concurrent findings of fact recorded by the fora below cannot ordinarily be interfered with in revisional jurisdiction unless such findings are shown to suffer material irregularity, illegality or jurisdictional error. In the present case, the Petitioners have not been able to demonstrate any jurisdictional error or material irregularity in the appreciation of evidence by the fora below. The findings recorded are based on the pleadings of the parties, the documents available on record, and the surrounding circumstances. Moreover, once the department itself issued a demand notice specifying the payable amount and granted the electricity connection upon payment of the said amount, a subsequent unilateral demand raised on the basis of an internal audit without prior disclosure in the original demand notice cannot automatically bind the consumer, particularly when no cogent material has been produced to establish any prior contractual or statutory liability in this regard. The contention that acceptance of such findings would create an unhealthy precedent is misconceived. Each case must necessarily be decided on its own facts and circumstances. In the present matter, the deficiency in service arises from the arbitrary raising of an additional demand and the consequential disconnection of supply without establishing any prior liability on the part of the complainants.

18. The scope of revisional jurisdiction is well defined. We also rely on 'Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269. Hon'ble Supreme Court in 'Sunil Kumar Maity vs SBI & Anr Civil Appeal No. 432 OF 2022 Order dated 21.01.2022 observed:-

                   "9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required..."

19. Similarly, Hon'ble Supreme Court in Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. (2022) 9 SCC 31 has held that:-

As per Section 21(b) of the Act the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record.

20. In the present case, both the District Forum and the State Commission have passed detailed, reasoned, and well-considered orders based on proper appreciation of the facts, applicable statutory provisions, and settled principles of law. The Petitioners have failed to demonstrate any material irregularity, illegality, or jurisdictional error in the impugned orders. Thus, on due consideration of the entire facts and circumstances of the case, including the arguments advanced, we find no ground to interfere with the detailed and well-reasoned orders of the District Forum dated 23.06.2016 in CC No. 103/2014 and the State Commission dated 07.07.2021 in FA No. 142/2016.

21. Consequently, the present Revision Petition is dismissed.

22. In the facts and circumstances of the case, there shall be no order as to costs.

23. All pending applications, if any, also stand disposed of.