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SCA/19320/2006 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 19320 of 2006
=========================================================
TORRENT
POWER AEC LTD, - Petitioner(s)
Versus
ZUBEDABEN
J RANA - Respondent(s)
=========================================================
Appearance :
MR
KB PUJARA for the Petitioner.
None for
the
Respondent.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE DN PATEL
Date
: 12/12/2006
ORAL
ORDER
The
present petition has been preferred against the interim order dated
4th September,2006 in Complaint No.349 of 2006 passed by
the Consumer Disputes Redressal Forum, Ahmedabad city.
2. I
have heard the learned counsel for the petitioner who has mainly
submitted that the Consumer Disputes Redressal Forum, Ahmedabad has
no power, jurisdiction and authority to decide the case when highly
disputed questions of facts involving technical aspect of the matter
are involved and also keeping in mind section 145 of The Electricity
Act, 2003, and looking to the judgment delivered by the Hon’ble
Supreme Court in the case of Haryana
State Electricity Board vs. Mam Chand, reported in (2006) 4 SCC, 649
and also the judgment delivered by the Division Bench
of this Court in the case of Torrent
Power AEC Ltd. vs. Gayatri Intermediates Pvt. Ltd., reported in
2006(2) GLH, 375. It is also stated by the learned
counsel for the petitioner that though a specific plea as to
jurisdiction was taken and pleaded, it has not been properly
appreciated by the Consumer Disputes Redressal Forum. Even on merits,
there is no case of the respondent as theft was found out by the
squad when it carried out a raid at the premises of the respondent.
It is further submitted that even otherwise, detection of theft and
reduction of transmission and distribution losses, is an obligation
on licensee. Even if it is presumed that it is an error of judgment
by officer of licensee, then the question to be examined is whether
it amounts to deficiency in service or not, on the part of the
licensee, unless it is proved beyond doubt that is done with a
malafide intention or vindictively. In a theft case, the Forum ought
to have remanded the matter for availing the remedy provided by the
Act of 2003 which is a complete Code as held by the Division Bench of
this Court. There are judicial forums available under the Act of
2003. The respondent ought to have been relegated to prefer an
application before appropriate authority under the Act of 2003 and
therefore, the impugned order deserves to be quashed and set aside.
3. Rule
was issued in this petition by this Court on 11th
September,2006 and direct service was permitted. However, on behalf
of the petitioner an affidavit has been filed that the respondent has
refused to accept the service of notice of Rule.
4. Having
heard the learned counsel for the petitioner and looking to the facts
and circumstances of the case, and especially the judgment delivered
by the Hon’ble Supreme Court in the case of (2006)4 SCC, 649 and
especially para-15 thereof and also keeping in mind the provisions of
section 15 of the Act of 1986, the petitioner can prefer an appeal
before Appellate Forum. Delay condonation application which may be
preferred by the petitioner can be appreciated by the Gujarat State
Consumer Commission, looking to the present Special Civil
Application. Basically, theft was found out by the petitioner company
from the respondent’s connection. Keeping in mind the observations of
the Division Bench of this Court in the case reported in 2006(2) GLH,
375, the Commission will decide the appeal on merits at the earliest
as several other matters have been preferred before the Forum, so as
to avoid multiplicity of proceedings. The Commission shall decide the
appeal within a period of 12 weeks from the date of receipt of
appeal, which will be filed by the petitioner within a period of
three weeks from today. Meanwhile, until the appeal is taken for its
hearing alongwith stay application, the order date 4th
September,2006 passed by the Consumer Disputes Redressal Forum,
Ahmedabad in Complaint No.349 of 2006 shall remain stayed.
5. In
view of the aforesaid observations, the learned advocate for the
petitioner does not press for this petition. The petition is disposed
of as not pressed in view of the direction given to the Gujarat State
Consumer Commission. Rule is discharged with no order as to costs.
(D.N.PATEL,J)
*dipti
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