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SCA/8264/2009 1/ 51 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8264 of 2009
With
SPECIAL
CIVIL APPLICATION No. 8265 of 2009
With
SPECIAL
CIVIL APPLICATION No. 8974 of 2009
With
SPECIAL
CIVIL APPLICATION No. 12319 of 2009
With
SPECIAL
CIVIL APPLICATION No. 9387 of 2009
With
SPECIAL
CIVIL APPLICATION No. 9533 of 2009
With
SPECIAL
CIVIL APPLICATION No. 645 of 2009
With
SPECIAL
CIVIL APPLICATION No. 12461 of 2009
With
SPECIAL
CIVIL APPLICATION No. 9042 of 2009
With
SPECIAL
CIVIL APPLICATION No. 10678 of 2009
With
SPECIAL
CIVIL APPLICATION No. 13374 of 2009
To
SPECIAL
CIVIL APPLICATION No. 13376 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
DEPUTY
ENGINEER & 1 – Petitioner(s)
Versus
JAGRUT
NAGARIK & 2 – Respondent(s)
=========================================================
Appearance
:
Special
Civil Application Nos.8264, 8265, 8974, 9387, 9533 of 2009
MS
LILU K BHAYA for
Petitioner(s) : 1 – 2.
RULE SERVED BY DS for Respondent(s) : 1 –
3.
MR SANDIP C SHAH for Respondent(s) : 1 2.
Special
Civil Application No.12319 of 2009
MR
SN SINHA for Petitioner : 1-3
MR
NAYAN D PAREKH for Respondent : 1
Special
Civil Application No.645 of 2009
MR
SN SINHA for Petitioner : 1
MR
JV BHAIRAVIA for Respondent : 1
Special
Civil Application No.12461 of 2009
MR
SP HASURKAR for Petitioner : 1
MR
MITUL K SHELAT for Respondent : 2
Special
Civil Application Nos.9042, 10678, 13374 to 13376 of 2009
MR
PREMAL R JOSHI for Petitioner : 1
MR
SANDIP C SHAH for Respondent : 1-2
MR
HARSHIT S TOLIA for Respondent : 3
MR
PARTH S TOLIA for Respondent : 3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 13/05/2010
CAV JUDGMENT
Since common issue is
involved in all these petitions and they are heard together, this
common judgment and order is passed in all these petitions.
The only issue involved
in all these petitions is with regard to the jurisdiction of the
Consumer Dispute Redressal Forum to entertain the complaint filed by
the consumer against the electricity company with regard to supply
of electricity and/or Bill thereof. The Consumer
Dispute Redressal Forum has entertained all these complaints and
granted appropriate relief to the consumers against which the
different electricity companies have filed all these petitions
before this Court challenging the decision of the Consumer Dispute
Redressal Forum for entertaining these complaints. In some of the
cases, the Electricity Companies have firstly challenged the order
of the Forum before the Commission and after confirmation of the
order of the Forum by the Commission, petitions are filed before
this Court.
Since the legal issue
involved in all these petitions is in a very narrow compass, facts
of all these petitions are not required to be narrated in detail and
hence for the sake of convenience and easy reference, the facts are
taken from Special Civil Application No.12319 of 2009.
It is the case of the
petitioner that the respondent consumer has been given
industrial connection for running flour mill. In course of a meter
replacement drive the meter of the respondent was replaced on
28.1.2008 and sent to the laboratory at Junagadh for joint
laboratory inspection. The respondent was given notice to remain
present for inspection on 24.7.2007, 31.7.2009 and 7.8.2009. But
the respondent did not appear and hence laboratory inspection was
carried out in his absence on 4.9.2009. It was found during the
course of inspection that MMB Seals and TC and TCC square are
tampered with. It was also noticed that the MMB Seals had been
refixed. Moreover, male ad female parts of the TC had severe
scratches. There were marks of scratches and of sparking on terminal
block B-Phase current coil was found burnt. With this evidence, it
was clear that the consumer was using electricity dishonestly, which
is an offence under Section-135 of the Electricity Act, 2003. The
supplementary bill of Rs.66,969.58 for power theft was accordingly
served on the respondent as per provisions of the Supply Code of the
Gujarat Electricity Regulatory Commission constituted under
Section-50 of the Act. FIR was lodged at GEB Police Station, Rajkot
at No.II-2594/2009 on 12.10.2009.
Being aggrieved by the
said supplementary bill the respondent filed complaint before the
Consumer Dispute Redressal Forum, Rajkot on 8.10.2009 and filed
application Ex.5 for interim relief against disconnection. The
District Forum on 16.10.2009 granted interim relief and issued
direction against disconnection of electricity supply to the
respondent on condition that the respondent consumer shall deposit
50% of the amount of the supplementary bill and also compounding
charges of Rs.10,000/-.
It is this order of the
Consumer Dispute Redressal Forum which is challenged in the present
petition. Similarly in all other petitions the orders passed by the
Consumer Dispute Redressal Forum and/or Commission are being
challenged by the different electricity Companies.
Mr. S.N.Sinha, Ms. Nilu
Bhaya, Mr.Premal Joshi and Mr.S.P.Hasurkar, learned advocates are
appearing for the petitioners electricity Companies. The main
submission of the learned advocates appearing for the electricity
companies are that the Parliament enacted the Electricity Act, 2003
which came into effect from 10.6.2003. The preamble of the said Act
reads as under :-
An
Act to consolidate the laws relating to generation, transmission,
distribution, trading and use of electricity and generally for
taking measures conducive to development of electricity industry,
promoting competition therein, protecting interest of consumers and
supply of electricity to all areas, rationalisation of electricity
tariff, ensuring transparent policies regarding subsidies,
promotion of efficient and environmentally benign policies,
constitution of Central Electricity Authority, Regulatory
Commissions and establishment of Appellate Tribunal and for matters
connected therewith or incidental thereto.
While making the
aforesaid Act the Parliament has sought to consolidate all previous
laws with respect to generation and transmission of electricity and
has provided for more methodical and scientific self-contained Code.
The different electricity
companies are licensees, who have been issued licenses by the
appropriate Commission for transmission and distribution of
electricity. The relationship between the electricity companies as
licensees under Section. 2(39) and the consumer within the
meaning Section 2(15) of the Act are, therefore, governed by the Act
of 2003.
The aforesaid Act of 2003
for the first time provide Code called The Electricity Supply
Code contemplated under Section-50 of the Act. The said
Section-50 of the Act reads as under :-
50.
The Electricity Supply Code :-
The
State Commission shall specify an Electricity Supply Code to
provide for recovery of electricity charges, intervals for billing
of electricity charges, disconnection of supply of electricity for
non-payment thereof, restoration of supply of electricity,
tampering, distress or damage to electrical plat, electric lines or
meter, entry of distribution licensee or any person acting on his
behalf for disconnecting supply and removing
the meter, entry for replacing, altering or maintaining electric
lines or electrical plant or meter.
The State Government has
made the Electricity Supply Code in exercise of the powers under
Section-50 of the Act. As it is evident on perusal of the Code, the
said Code statutorily provides for the cases, inter alia, with
regard to the tampering of electric lines or meter and manner and
method of collection of electricity charges. The Electricity Act of
2003 defines the term unauthorised use of electricity and
provides for investigation and enforcement under Section 126 and 127
of the Act. The term theft of electricity is defined under
Section-135 of the Act and theft of electric lines and materials
is defined under Section-136 of the Act. The offence committed under
Section-135 of the Act is required to be tried by the Special Court
constituted under the Act. In the State of Gujarat Special Courts
trying the offences under Section-135 of the Act and other penal
provisions of the Act, are already constituted and are functioning.
The said Courts are constituted under Sections 153 ad 154 of the
Act, which have powers of Courts of Sessions under Section-155 of
the Act, against whose order and decision, Appeal and revision are
provided before this Court. The Electricity Act of 2003 specifically
provides for a statutory provisions ousting the jurisdiction of
Civil Courts and all other authorities under Section-145 of the Act.
Section-173, 174 and 175 of the Electricity Act, 2003 give an
overriding effect over all other enactments.
The Gujarat Electricity
Regulatory Commission in exercise of its powers conferred under
Section-181 read with Section 42(5) of the Act, has framed
Regulations for the purpose of establishment of Forums for redressal
of grievances of the consumers which are known as Gujarat
Electricity Regulatory Commission (Establishment of Forums for
redressal of grievances of consumers) Regulations, 2004. It is
evident from the perusal of the said statutory Regulations, that the
term complainant the term complaint and the term
grievances are very widely worded under Clause 2(c)(d) and (g)
of the Regulations. The said Forums statutorily constituted, are
already established and are functioning. The said forums are also
conferred with powers of granting temporary injunction under
Chapter-IV of the aforesaid Regulations. Similarly in exercise of
powers conferred under Section-181 read with Section-42(6) of the
Act, the Gujarat Electricity Regulatory Commission (Establishment of
Ombudsmen) Regulations, 2004 are framed. This statutory scheme of
the Act and the Special Forums constituted statutorily by the Act
would make it clear that after enactment of a special law, the
general provisions made under the Consumers Protection Act, 1986
stand impliedly repealed in so far as the questions which can be
gone into by special machinery provided under the special Act are
concerned. A bare perusal of the above stated provisions of the Act
makes it clear that it gives supremacy to the said Act over all
other enactments and, therefore, the provisions of the Consumers
Protection Act, 1986 would not apply to the cases covered by or
under the provisions of the Act of 2003.
The further submission of
the learned advocates appearing for the electricity companies is
that Section-3 of the Consumer Protection Act also recognizes that
the provisions of the Consumers Protection Act are in addition to
and not in derogation of the provisions of any other law for the
time being in force. When a special enactment is made by the
Parliament to deal with the specific offences/cases of mal-practice
with regard to the said specific enactment and specific Forums are
constituted to deal with the disputes arising under the Act, the
jurisdiction of the Forums constituted under the provisions of the
Consumers Protection Act are ousted by implication. Unless and until
the question of jurisdiction of Forum is examined, interpreted and
adjudicated in the above said manner, it is not possible to
harmonize the Consumers Protection Act, 1986 and the Electricity
Act, 2003.
The proceedings under
Sections 126, 127 and 135 of the Act of 2003 are initiated by the
licensees for redressal of their own grievances and, therefore, also
such questions shall necessarily be out of the purview of the Forums
constituted under the Consumers Protection Act. Since the
Electricity Act, 2003 is a special Act, general provisions should
yield to the special provisions as held consistently by the Apex
Court. In view of the specific provisions contained in the
Electricity Act, 2003 the Consumer Dispute Redressal Forum has no
power to adjudicate the question of its own jurisdiction, since it
is bound by the decision taken by the National Consumers Disputes
Redressal Commission reported in 2008 (II) CPJ, 284 and 2008 (IV)
CPJ, 11 where the National Consumers Disputes Redressal Commission
has held that the Consumers Protection Act, 1986 statutorily
prepared under Section-50 of the Act and the aforesaid statutory
Regulations do not stand for consideration of the Commission. While
exercising its jurisdiction under Article-226 of the Constitution of
India this Court is not bound by the view taken by the Commission
under the Consumers Protection Act, 1986 and, therefore, the
petitioners are justified in approaching this Court praying for writ
of prohibition.
In support of the
submissions canvassed by the learned counsels appearing for the
Electricity Companies, reliance is placed on the decision of the
Apex Court in the case of Haryana State Electricity Board Vs.
Mam Chand, reported in (2006) 4 SCC 649,
wherein the Court was concerned with the scope and extent of the
beneficial consumer jurisdiction, particularly with regard to
technical subjects falling under provisions such as the Electricity
Act, 2003. Under Section 2(c) of the 1986 Act complaint is
defined to mean allegation in writing made by a complainant that the
service provider has charged for the services, a price in excess of
the price fixed under the law for the time being in force. Under
Section 2(d) consumer is defined to mean any person who hires
or avails of any services for a consideration
which has been paid or promised or partly paid and partly promised.
Under Section-2(g) of the said 1986 Act the word deficiency is
defined to mean any fault, imperfection, shortcoming or inadequacy
in the quality, nature and manner of performance which is required
to be maintained by or under any law for the time being in force or
under a contract or otherwise in relation to any service. The word
goods is defined under Section 2(i) to mean goods as defined
in the Sale of Goods Act, 1930, Service also defined under
Section 2(o) of the said 1986 Act to mean service of any
description which is made available to users in connection with
banking, financing, insurance, transport, processing, supply of
electrical energy, entertainment, etc. Therefore, supply of
electric energy by the Nigam falls under Section 2(o) of the said
1986 Act. However, the question which arises for determination and
which has not been decided
is: Whether the beneficial consumer jurisdiction extends to
determination of tortious acts and liability arising therefrom by
the Consumer Forum. The assessment of the duty for unauthorised use
of electricity,
tampering of meters, distribution of meters
and calibration of electric current are matters of technical nature
which cannot be decided by the Consumer Forum. Under the Electricity
Act, 2003 the jurisdiction of the Civil Court is excluded. Under
Section-145 of the said 2003 Act the jurisdiction of the Civil Court
to entertain suits in respect of matters falling under Section-126
is expressly barred. These are matters of assessment. The said 2003
Act is a complete code by itself and, therefore, in matters of
assessment of electricity bills the Consumer Forum should have
directed the respondent to move before the competent authority under
the Electricity Act, 2003 read with the rules framed thereunder
either expressly or by incorporation.
The Court was, therefore, of the view that all these issues raised
on behalf of the Nigam require deeper consideration by the State
Commission.
Reliance
is also placed on the decision of Apex
Court in the case of Accounts Officer, Jharkhand
State Electricity Board & Anr. Vs. Anwar Ali, reported in AIR
2008 SC 164,
wherein the question was as to whether the consumer of electricity
can be covered under the provisions of Consumer Protection Act, 1986
wherein while setting aside the order passed by the National
Commission the Court remitted
the matter to the National Commission giving direction to record a
positive finding on the aspect, as to whether consumer of
electricity is covered by the definition
of Consumer as defined in Section 2(o) of the Act, 1986.
Reliance
is also placed on the decision of the
Apex Court in the case of Maharashtra State
Electricity Distribution Co. Ltd., Vs. Lloyds Steel Industries Ltd.,
reported in AIR 2008 SC 1042,
wherein it is observed that complaints of individual consumers are
outside jurisdiction of State Commission. Separate
Forum for redressal of individual consumer’s grievances has been
created under Section-42 of the Electricity Act, 2003. All
individual consumers’ grievances should therefore, be raised before
such Forum. Thus, a complete machinery has been provided under
Section-42(5) and 42(6) for redressal of grievances of individual
consumers. Hence wherever
a Forum/Ombudsman have been created the consumers can only resort to
these bodies for redressal of their grievances. The Court has also
referred to Section-86 of the Act which
lays down the function of the State Commission. Sub-section (1)(f)
of the said Section lays down the adjudicatory function of the State
Commission which does not encompass
within its domain complaints of individual
consumers. It only provides that the Commission can adjudicate upon
the disputes between the licensees and generating companies and to
refer any such dispute for arbitration. This does not include in it
an individual
consumer. The proper forum for that is Section 42(5) and,
thereafter, Section 42(6) read with Regulations of 2003.
Reliance is also placed
on the decision of the Delhi High Court in CM(M) No.46 of 2007
in CM(M) No.46 of 2007, wherein it is observed that,
it is with deep anguish that this Court notes the continuous conduct
of the Consumer Forums in proceeding with such matters despite the
orders passed by various Courts from time to time. It is trite to
say that no Consumer Forum can pass an order contrary to the orders
passed by the High Courts or in breach thereof. Even subsequently
interim orders have been passed by the Court and this Court is being
burdened with numerous litigations only arising from this attitude
of Consumer Forums since Consumer Forums are not desisting from
taking actions where it has been held that Consumer Forums have no
jurisdiction. The Court has issued the general direction to the
effect that in matters of theft of electricity and dishonest
abstraction of energy in case the Consumer Forums pass any order,
the electricity companies will not be liable to give effect to the
same. The Court further directed the State Commission and the
Consumer Forums not to pass any interim orders in respect of
complaints of consumer where issue of direct theft of
electricity or dishonest abstraction of electrical energy is
alleged.
Reliance is also placed
on the decision of Gujarat Electricity Regulatory Commission (
in Petition No.950 of 2008) wherein it is observed that the
power and the jurisdiction to hear cases under Section-135 of the
Electricity Act, 2003 is only with special Court established under
Section-153 of the Electricity Act, 2003.
Even in the case of
Jagmohan Mehatabsingh Gujaral and others Vs. State of
Maharashtra, reported in (2006) 8 SCC 629, it is held that
large-scale theft of electricity is a very alarming problem found by
all the State Electricity Boards in our country which is causing
loss to the State revenue running in hundreds of crores of rupees
every year.
Reliance is also placed
on the decision of this Court in C.R.A. No.28 of 2010 filed by
PGVCL Vs. Smt. Bhartiben Aniruddhsinh Jadeja
against an interim order in Complaint No.92 of 2010, of
Consumer Disputes Redressal Forum, Rajkot, wherein
Commission has held that this is not a case of simple theft but it
is technical modus operandi of committing theft of electricity in
mass in Saurastra region. The Commission has further held that in
case of theft, Special Court has jurisdiction to determine the Civil
liability against consumer. District Forum has only jurisdiction to
conduct the case against electricity company where there is
deficiency in service but not in case of theft of electricity. The
Commission has held that only Special Court has jurisdiction and
Forum has no jurisdiction to conduct such type of cases which can be
disposed of summarily.
On the basis of the above
judgments of this Court as well as Apex Court as well as the orders
passed by the Regulatory Commission, it was strongly urged before
the Court that all these orders passed by the Consumer Dispute
Redressal Forum and/or Commission deserve to be quashed and set
aside as they have no jurisdiction to entertain such complaints
filed by the consumer.
On behalf of the
respondents, learned advocates Mr.Sandip Shah, Mr.J.V. Bhairavia and
Mr.Mitul Shelat appeared and strongly opposed all these petitions.
In Special Civil Application No.9042 of 2009 though Mr.Harshid Tolia
appears on behalf of the respondent No.3, he supported the case of
the petitioner electricity company as he is representing the
landlord and his grievance is against the tenants being respondent
Nos.1 and 2 in the said petition. The main submissions canvassed on
behalf of the respondents, while opposing all these petitions are
that the comparative study of Electricity Act, 2003 and Consumer
Protection Act, 1986, nowhere reveals any specific exclusion of the
jurisdiction of Consumer Courts to deal with the problems of supply
of electric energy to customers / consumers. It is well settled
principle of law that there has to be specific exclusion of
jurisdiction of any authority or any court by specific provision in
that behalf. Section 145 of the Electricity Act, 2003 specifically
excludes jurisdiction of Civil Courts. But there is no exclusion of
jurisdiction of Consumer Courts established under Consumer
Protection Act. It cannot be said that since Civil Court’s
jurisdiction is ousted, by necessary implication jurisdiction of
Consumer Courts is also ousted. On the contrary Section 3 of the
Consumer Protection Act makes it clear that the said Act is not in
derogation of any other law. The provisions of this Act shall be in
addition to and not in derogation of the provisions of any other law
for the time being in force. When Consumer Protection Act, 1996 was
introduced, earlier provisions of Electricity Act, 1910 and
Electricity Supply Act were in force. Section 2(1)(d)(ii) defines
consumer means any person who hires or avails of any
services for consideration which has been paid or promised. Section
2(1)(o) defines service means service of any description which
is made available to potential users and includes, but not limited
to, the provisions of facilities in connection with banking,
financing, insurance, transport, processing, supply of electrical or
other energy…. etc. Hence, it includes services of electrical
energy. Section 2(1)(g) defines deficiency in service means
any fault, imperfection, shortcoming or inadequacy in the quality,
nature and manner of performance which is required to be maintained
by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract or
otherwise in relation to any service. It is, therefore, clear that
Consumer Courts established under Consumer Protection Act can
entertain and decide the dispute between the parties relating to
deficiency in service relating to supply of electrical energy.
The provisions of
Sections 173, 174 and 175 of the Electricity Act, 2003 make it clear
that legislature was aware regarding jurisdiction of consumer courts
under the provisions of Consumer Protection Act and hence, it is
provided under Section 173 of the Act that nothing contained in this
Act or any rule or regulation made thereunder or any instrument
having effect by virtue of this Act, rule or regulation shall have
effect in so far as it is inconsistent with any other provisions of
Consumer Protection Act, 1986. Section 174 of the Act shall have an
overriding effect. It says that save as otherwise provided in
Section 173, the provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any
other law for the time being in force or in any instrument having
effect by virtue of any other law than this Act. Section 175 of the
Act makes it clear that the provisions of this Act are in addition
to and not in derogation of other laws for the time being in force.
It is, therefore, contended that when there is no specific provision
of excluding jurisdiction of Consumer Courts, it cannot be said
that Consumer Courts have no power to entertain and decide
complaints alleging deficient services for supply of electric
energy. Reliance is placed on the decision of this Court in the case
of Torrent Power A.E.C. Ltd. Vs. Gayatri Intermediates,
reported in 2006 (2)
GLR 1580 which interprets
Section 154 of the Electricity Act in which there is no express
provision of exclusion of jurisdiction. Hence, it cannot be said
that the Consumer Courts cannot entertain the complaints involving
deficiency in service.
If
one reads definition of deficiency in service and definition of
service in Consumer Protection
Act, it is very widely worded meaning thereby any person (consumer)
if files complaint before Consumer Court alleging deficiency in
services on many counts including for example excessive bill,
arbitrary action of electricity office bearers, wrong reports made
at the place or premises of consumer regarding meter or installed
equipments, not acted as required under the law or procedure
established under provisions of Electricity Act or other similar
grievances, Consumer Courts have jurisdiction to entertain to decide
such complaints. It is difficult to segregate allegations of theft
of electrical energy, which is alleged by officers of Electricity
Company, since it is based on inspection of any premises in which
electrical supply is given. There are factual disputes between the
parties which need to be decided. The allegations of tempering with
meter and theft of electricity are to be provided, and officers
cannot be permitted to act arbitrarily on presumption of theft and
take resort to immediate disconnection and recovery of additional
amount on the ground of provisional assessment on the basis of
alleged theft. In case of defect in meter there are provisions under
Section 126 to refer the dispute to the Electrical Inspector. So far
as assessment or provisional assessment on allegations of theft of
electrical energy are concerned in all cases it is alleged that
theft is committed and simply by alleging theft and action thereon,
jurisdiction vested in Consumer Courts cannot be taken away by such
necessary implication saying that it has no jurisdiction since there
appears to be theft.
It
is further contended that if any complaint is lodged alleging
excessive bill which is issued by electricity company, on many
grounds namely, improper recording of meter,
non-use of electrical energy, earlier use of consumer on average
basis, extra ordinary high recording of use of energy due to defects
in meter or other equipments, high handed action of office bearers
of Electricity Company, improper recording and notes of inspection
report, arbitrary decision of inspector or officer of Electricity
Company not sending meter to Electrical Inspector and suddenly
disconnecting the electric supply which is essential services to
every customer, exploiting and harassing attitude of officers of
company, asking for illegal gratification, unjust bargain, procedure
not followed which is required to be followed under the law, hearing
not given etc. On all such averments, alleging deficient services
consumer can approach competent Court of law which is Consumer
Courts which are headed by highest Judicial Officers and acting in
legal manner.
The provisions of
Electricity Act, 2003 are not complete code in itself since it does
not provide for any compensation in favour of consumer and even in
theft cases, action in Special Courts is action in Criminal
Procedure Code for imposing punishment on consumer who is treated as
accused. So far as the word unauthorized use of electricity
and theft are concerned, both situations are dealt with in
Electricity Act in different manner and action under Section 126 and
action under Section 135 are different. As held in the decision of
this court in the case of Torrent
Power A.E.C. Ltd. Vs. Gayatri Intermediates, (Supra) theft
is with motive and unauthorized use of electrical energy is
without motive. In a given case when consumer’s premises is
inspected and without hearing his electricity supply is disconnected
and customer is asked to pay heavy amount of bill even on
provisional assessment, he is obliged to pay said amount with or
without protest for getting restoration of electric supply, which
can never be intention of legislature and consumer cannot be
remediless. Exactly for such reasons even though strict measures are
provided in Electricity Act, 2003, the legislature thought it fit to
retain powers of consumer Courts and not excluded by inserting any
specific provisions like Section 145 of the said Act.
The most important and
basic difference in both Acts are that Consumer Courts are granted
power to award compensation in Section 14(d) besides directions to
remove defects or deficiencies in the services in question. The
arguments that under Section 154(5) of the Electricity Act, 2003,
special Court is empowered to decide civil liability, is
misconceived and improper since if the section is read closely it
shows that the special Court may determine the civil liability
against the consumer or person in terms of money for theft of energy
which shall not be less than an amount equal to two times of tariff
rate applicable for a period of 12 months preceding the date of
detection of theft of energy or the exact period of theft if
determined whichever is less and the amount of civil liability so
determined shall be recovered as if it were a decree of Civil Court.
Simple reading of this section means that the civil liability i.e.
compensation can be awarded against consumer and not in favour of
consumer and hence there is no provision by which consumer can claim
compensation under Electricity Act, hence, only under provisions of
Consumer Protection Act any consumer can file complaint alleging
deficient services and also claiming compensation which is object of
Consumer Protection Act, particularly when power of Civil Court are
taken away under Section 145 of the Act.
In interpreting two
parallel provisions of law dealing with same situations time and
again by various decisions of the Apex Court, it has been held that
if two views are possible, one view which is beneficial to citizen
shall be taken to safeguard interest of public at large. Needless to
say that provisions of Consumer Protection Act is beneficial piece
of legislation with object to protect and safeguard interest of any
citizen and hence should be liberally construed by Court of law. It
is, therefore, contended that all these petitions filed by the
Electricity Company deserve to be dismissed by observing that the
Consumer Courts have jurisdiction to entertain and decide the
complaints in which deficiency in service including high handed
action of allegations of theft of electrical energy are made by any
person.
Learned advocates
appearing on behalf of the respondent consumers, in support of
their submissions relied upon the decision of the Apex Court in the
case of State of Karnataka Vs. Vishwabharthi House Building Coop.
Society and others, reported
in (2003) 2 SCC 412
wherein it is held that the Consumer Protection Act was enacted
keeping in view the long-felt necessity protecting the common man
from wrongs wherefor the ordinary law for all intent and purport had
become illusory. In terms of the said Act, a consumer is entitled
to participate in the proceedings directly as a result whereof his
helplessness against a powerful business house may be taken care of.
It is further held that it is evident from Section 3 of the Act that
remedies provided thereunder are not in derogation of those provided
under other laws. The Act
supplements and not supplants the jurisdiction of the civil courts
or other statutory authorities. The Act provides for a further
safeguard to the effect that in the event a complaint involves
complicated issues requiring recording of evidence of experts, the
complainant would be at liberty to approach the civil court for
appropriate relief. The provisions of the said Act are required to
be interpreted as broadly as possible. The forums under the Act have
jurisdiction to entertain a complaint despite the fact that other
forums/courts would also have jurisdiction to adjudicate upon the
lis.
Reliance
is also placed on the decision of the Apex Court in the case of
Secretary, Thirumurugan Co-operative Agricultural Credit
Society Vs. M. Lalitha (dead) through L. Rs. And others,
reported in AIR 2004 SC 448,
wherein it is held that Consumer Forum has jurisdiction to decide
the dispute between members
and cooperative society as neither S.99 nor S.156 of the Tamil Nadu
Co-operative Societies Act, 1983 ousts the jurisdiction of consumer
Forum. The remedies that are available to an aggrieved party under
the Consumer Protection Act are wider. For instance in addition to
granting a specific relief the forums under the Consumer Protection
Act have jurisdiction to award compensation for the mental agony,
suffering, etc., which possibly could not be given under S.90 of
Tamil Nadu Co-operative Societies Act. Merely because the rights and
liabilities are created between the members and the management of
the society under the Act and forums are provided, it cannot take
away or exclude the jurisdiction conferred on the forums under the
Consumer Protection Act expressly and intentionally to serve a
definite cause in terms of the objects and reasons of Consumer
Protection Act. Therefore, the view taken by the State Commission
that the provisions under the Tamil Nadu Co-operative Societies Act
relating to reference of disputes to arbitration
shall prevail over the provisions of the Consumer Act is incorrect
and untenable.
Reliance
is also placed on the decision of the National Consumer Disputes
Redressal Commission in the case of Jharkhand State
Electricity Board and another Vs. Anwar Ali,
reported in 2008 (2) C.P.J. 284,
wherein it is held that the provisions of the Consumer Protection
Act are specifically saved under Section 173 r/w. Section 174 of the
Electricity Act. Therefore, the provisions are required to be
reasonably construed to make them in harmony with each other as far
as possible, and, hence, the Court has kept in mind that to
‘harmonize’ means ‘not to destroy’ and/or to hold that the
provisions of the Consumer Protection Act are not applicable
for redressal in case of grievances of a consumer against the
Electricity Board or such authority. It is further
held that the consumer forum would have jurisdiction to entertain
the complaint against the final order passed by the assessing
officer under Section 126 of the Electricity Act. The jurisdiction
of the Consumer Forum is not barred by any provisions of Electricity
Act, but the same is expressly saved under Section 173 r/w. Sections
174 and 175 of the Electricity Act. Reliance is also placed on the
decision of the National Consumer Disputes Redressal Commission in
the case of Dakshin Haryana Bijli Vitran Nigam Limited and
others Vs. Megh Raj, reported
in 2008 (4) C.P.J. 11
wherein the proposition of law made in earlier decision were
reiterated.
Having heard the learned
counsels appearing for the parties and having considered their rival
submissions in light of statutory provisions contained in the
Electricity Act, 2003 as well as Consumer Protection Act, 1986 and
the decided case law on the subject, the Court is of the view that
the Consumer Forum has no jurisdiction to entertain the complaints
in respect of the matters pertaining to supply of electricity,
against the electricity companies.
Looking to the provisions
contained in Electricity Act, 2003 as well as Supply of Electricity
Code framed thereunder, it is clear that once the consumers are
indulged in theft of electricity and for that theft bills under
Section-135 of the Act have been issued the Consumer Forum has no
jurisdiction to entertain the complaints filed by the consumers nor
such Forum can pass any interim order directing the electricity
Company to grant electricity connection. As per the provisions
contained in Section-153 of the Electricity Act the Special Courts
have been constituted and as per the provisions of Sections-153 and
154 of the Act the Consumer Court has no power to entertain any
complaint when there is theft of electricity. In exercise of the
power conferred under Section-181 of the Electricity Act, 2003 and
under Section-12 of the Gujarat Electricity Industries
(Re-organization and Regulations) Act, 2003, Gujarat Electricity
Regulatory Commission has framed Gujarat Electricity Regulatory
Commission (Electricity Supply Code and Related Matters)
Regulations, 2005. The Regulation 7.9 deals with the powers of the
Special Courts. As per Regulation 7.9.1 every offence punishable
under Sections 135 to 139 of the Electricity Act, 2003 shall be
triable only by the Special Court within whose jurisdiction such
offence has been committed. In view of these provisions, the
Consumer Forum has no jurisdiction to entertain any matter relating
to theft of electricity.
Once the electricity
company issues bill under Section-126 of the Act for unauthorized
use of electricity, the consumer must approach the Appellate
Authority under Section-127 of the Act. It does not fall within the
jurisdiction of the Consumer Forum. Regulation 7.3 deals with
provisional assessment. Regulation 7.4 deals with objection against
provisional assessment and 7.5 deals with Appeal against final
assessment order to Appellate Authority. As per Regulation 7.5.1 any
person aggrieved by a final order made under sub clause 7.4.1
(Section-126 of the Electricity Act, 2003) may, within 30 days of
the said order, prefers an appeal to the Appellate Authority.
Considering this provision the Consumer Forum has no jurisdiction.
Even under the provisions
of Section-42(5) of the Electricity Act, 2003 the Consumer can file
the complaint before the Consumer Dispute Redressal Forum
constituted under the Act and against the decision of Forum an
Appeal can be filed before the Electricity Ombudsmen under Section
42(7) of th Act. Thus, there are three different Forums available
for the consumers for ventilating their grievances and hence after
the Act, 2003 and after availability of all the three different
Forums, the Consumer Dispute Redressal Forum constituted under the
Consumer Protection Act shall have no jurisdiction to entertain the
complaints filed by the consumers with regard to the electricity
disputes. All the judgments which are cited in support of the
consumers are prior to the Act of 2003 and hence they cannot be
pressed into service while deciding the controversy involved in the
present group of petitions. The Apex Court as well as different
High Courts including this Court have clearly held that depending
upon the nature of dispute the consumer may either approach the
Consumer Forum constituted under the Electricity Act or to the
Appellate Authority or to the Special Court and there is no
justification in filing any complaint before the Consumer Forum or
in entertaining such complaint by the Consumer Forum.
As stated above, under
the Electricity Act, 2003 the jurisdiction of the Civil Court is
excluded. Under Section-145 of the Act, the jurisdiction of Civil
Court to entertain Suits in respect of matters falling under
Section-126 of the Act is expressly barred. Hence, the Consumer
Forum, either expressly or by incorporation should direct the
consumers to approach the competent authority under the Electricity
Act.
In Jharkhand State
Electricity Board & Anr. Vs. Anwar Ali (Supra),
the Apex Court, while considering
the scope and extent of the beneficial consumer legislation,
particularly with regard to technical subjects falling under
provisions of the Electricity Act, 2003, set aside the order
impugned therein and remitted the matter to National Commission to
record positive finding on the question as to whether consumer of
electricity is covered by the definition of consumer as defined in
Section-2(o) of the Act.
In
Maharashtra State Electricity Distribution Co.
Ltd., (Supra),
the Apex Court has very categorically held that complaints of
individual consumers are outside the scope of State Commission and
that all individual consumers’ grievances should be raised before a
Forum/Ombudsman as provided under Section 42(5) and 42(6) of the
Act.
The Delhi High Court has
gone a step further and issued general directions to all Consumer
Forums and Commissions within its jurisdiction not to pass any
interim orders in respect of complaints of consumer where issue of
direct theft of electricity or dishonest abstraction of electrical
energy is alleged.
Awarding of compensation
by Consumer Forums under the Consumer Protection Act is not a ground
to invoke the jurisdiction of Consumer Forums. Claim for
compensation pre-supposes deficiency of service, the determination
of which is being made by the competent forums, authorities and
Courts under the Electricity Act and hence the Consumer Forums
and/or Commissions are not entitled to entertain such disputes.
In
General Manager, Telecom Vs. M. Krishnan &
Anr. (2009) III CPJ 71 (SC),
the Apex
Court was concerned with the dispute regarding non-payment of
telephone bill for the telephone connection provided to the
respondent
and for the said non-payment of the bill the telephone connection
was disconnected. Aggrieved by the said disconnection, the
respondent filed complaint before the Consumer Disputes Redressal
Forum. The Forum allowed the complaint and directed the telephone
Company to reconnect the telephone connection and pay compensation
of Rs.5,000/- with interest at 12% p.a. The matter went up to the
Apex Court and it is held by the Apex Court that when there is a
special remedy provided in Section 7-B of the Indian Telegraph Act
regarding disputes in respect of telephone bills, then the remedy
under the Consumer Protection Act is by implication barred. Even
with regard to awarding compensation, the Apex Court referred to its
own earlier decision in the case of Chairman,
Thiruvalluvar Transport Corporation Vs. Consumer
Protection Council (1995) 2 SCC, 479,
wherein it was held that the National Commission has no jurisdiction
to
adjudicate upon claims for compensation arising out of motor
vehicles accidents. The Court agreed with this view taken in the
said judgment.
In
view of the above legal position, the Court is of the firm view that
the Consumer Forum and/or Commission should not make any venture to
entertain the complaints filed by the consumers against the
Electricity Companies. This Court is not so harsh as the Delhi High
Court which has directed all Consumer Forums and Commissions falling
within its jurisdiction not to entertain any complaint against the
Electricity Company. However, at the same time it is expected that
when the Statute, if not expressly, but by implication, bars the
jurisdiction of Consumer Forums as observed by the Apex Court in the
case of General Manager, Telecom Vs. M. Krishnan
& Anr. (Supra),
the same jurisdiction shall not be exercised by the Consumer
Forum. Despite this fact, the Court has found in the present group
of petitions that the Consumer Forums have not only entertained the
complaints but, for non-compliance of its order have also
entertained execution proceedings and orders were passed for
attachment of the properties of the Electricity Companies. Even the
disputes between the tenants and landlords with regard to
electricity connection have been entertained by the Consumer Forum.
This is obviously beyond the scope and ambit of the jurisdiction of
the Consumer Forum and such matters should not have been entertained
by the Consumer Forum.
In
view of the above discussion, the Court allows all these petitions
and the impugned orders passed by the Consumer Forum and/or the
Commission are hereby quashed and set aside. It is open for the
petitioners Electricity Companies to take appropriate action as
a result of quashing of the said orders. Pursuant to the interim
orders passed by the Forums and/or Commissions if any electric
connection is granted to the consumer the same may also be affected
as all these interim as well as final orders stand quashed and set
aside. Rule in each of these petitions is made absolute without any
order as to costs.
(K.
A. PUJ, J.)
kks
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