HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 1161 of 2004 Executive Engineer & ors Petitioners J&K State Consumer Protection Commission and ors. Respondent !Mrs. Shaista Hakim, Dy.AG. ^Mr. A. H.Qazi, Advocate for R 1 & 3., Mr. O.P. Thakur, Advocate for R-2 Honble Mr. Justice Mansoor Ahmad Mir, Judge Date: 15.09.2009 :J U D G M E N T :
Petitioners have challenged the order dated 21 September, 2004 passed by the
Jammu and Kashmir State Consumer Protection Commission, Jammu, respondent no.1
herein, read with order dated 22nd August 2003 passed by Court of Divisional Consumer
Forum, Jammu, respondent no.3 herein, whereby and whereunder the compliant filed by
complainant-respondent No.2 came to be allowed by respondents 1 and 3, on the grounds
taken in the writ petition.
It is contended that respondent no.2 has filed a complaint under Section 10 of
the Jammu and Kashmir Consumer Protection Act (for short Act) for grant of
compensation on the plea that the writ petitioners had disconnected the electric
connection illegally which was granted to him to run the Atta Chakki Unit registered
under the name and style of M/s Laxmi Composite Mills at Kainthgali. The complaint
came to be diarised by respondent no.3, writ petitioners chose to remain absent and the
complaint came to be allowed at their back vide order dated 22nd August 2003 while
allowing compensation to the tune of Rs.3000/- and Rs.1000/- for mental anguish and
costs of litigation respectively, with further direction to the writ petitioners to restore
the electric supply to the complainant-respondent No.2.
Feeling aggrieved, respondent no.2 preferred an appeal before respondent no.1-
Consumer Commission. The learned Commission while upholding the judgment of
Divisional Forum also allowed an amount of Rs.30,000/- as compensation in favour of
complainant-respondent No.2 on account of deficiency in service at the back of the
petitioners. Thus in all Rs.34.000/- came to be allowed as compensation in his favour.
Feeling aggrieved, the writ petitioners have questioned both the orders by the medium of
writ petition on various grounds taken in it. Respondent no.2 has filed reply thereto,
while respondents 1 & 3 have not filed the same.
Mrs.Hakim, learned counsel for writ petitioners has argued that the complaint was
not maintainable as respondents 1 and 3 were lacking jurisdiction to entertain the
complaint. Further argued that respondent no.2 was/is running the Atta Chakki Unit for
commercial purposes, thus, it does not fall within the definition of Section 2(d) of the
Act.
Mr. Thakur, learned counsel for respondent no.2 argued that the writ petitioners
chose to remain absent before the courts below and have failed to contest the complaint
and now they cannot question the competence, power and jurisdiction of respondents 1
and 3. Further he argued that the complainant-respondent no.2 was earning his livelihood
by running the said Atta Chakki after obtaining loan under the Self-employment Scheme,
thereby explanation to Section 2(d) of the Act is attracted.
It is apt to reproduce the same herein:
2.(d) consumer means any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and
partly promised or under any system of deferred payment and includes any user of such
goods other than the person who buys such goods for consideration paid or promised
partly paid or partly promised or under any system of deferred payment when such use is
made with the approval of such person, but does not include a person who obtains such
goods for resale or for any commercial purpose; or
Explanation: For the purposes of Sub-clause (i),
commercial purpose does not include use by a consumer of goods bought and used by
him exclusively for the purposes of earning his livelihood, by means of self-employment.
While going through Section 2(d) of the Act, consumer means a person who
buys goods for a consideration which has been paid or promised or partly paid or partly
promised. The definition of consumer (supra) defines who is a consumer. It also
provides that it does not include a person who obtains such goods for resale or for any
commercial purposes.
The explanation to Section 2(d) (supra) provides that commercial purpose does
not include use by a consumer of goods purchased and used by him exclusively for
purposes of earning his livelihood by means of self-employment.
The core question involved in the writ petition is whether the complainant-respondent
no.2 has raised the plea that he was and is purchasing the goods for purposes of earning
livelihood by means of self-employment.
To determine this issue, a perusal of the complaint is required. The records of respondents
3 & 4 have been received. The complaint contains nine paras and relief clause. It is
nowhere mentioned or averred by the complainant-respondent No.2 that he is running the
Atta Chakki Unit for commercial purposes for earning his livelihood after obtaining loan
under the Self-employment Scheme. It is also not mentioned in the complaint that he is
earning the livelihood by running the said unit for purposes of self-employment.
Respondents 1 & 3 have lost sight of the said legal aspect and have not discussed the said
issue nor they returned any finding in respect thereto.
During the pendency of writ petition, the complainant-respondent no.2 has tried to built
up his case by filing a supplementary affidavit in order to allege or establish that he has
set up the said unit though for commercial purposes, but to earn his livelihood under the
Self-employment Scheme, but the fact of the matter is that it was neither pleaded nor
argued before respondents 1 and 3 or determined by them.
It is also not discussed by respondents 1 and 3 that whether the consumer of electricity is
covered by the definition of consumer. Respondents 1 & 3 were under a legal
obligation to return a finding whether the complainant-respondent No.2 was falling
within the definition of consumer.
My view is fortified by the judgment of Supreme Court in case titled Accounts Officer,
Jharkhand State Electricity Board v. Anwar Ali, reported in 2007 AIR SCW 6366.
It is apt to reproduce para 10 of the said judgment here under:
In view of the fact that the National Commission has not addressed the question as to
whether consumer of electricity is covered by the definition of consumer as defined in
Section 2(0) of the Act, we set aside the impugned order and remit the matter to the
National Commission to record a positive finding on the aspect. It shall also take into
consideration the dispute raised regarding the alleged service of notice dated 20-12-1999.
Now the question is whether the impugned orders are required to be
quashed and the matter needs to be remitted back or not.
Keeping in view the long pendency of the complaint and the fact that the parties
are litigating for the last so many years, I deem it proper to quash both the orders and
remit the matter back to the Court of instance/respondent no.3 for fresh disposal of the
complaint as per the law governing the field.
Accordingly the writ petition is allowed and the impugned orders order dated 21
September, 2004 passed by the Jammu and Kashmir State Consumer Protection
Commission, Jammu-respondent no.1 read with order dated 22nd August 2003 passed by
the Divisional Consumer Forum (constituted under the Jammu and Kashmir State
Consumer Protection Act), Jammu-respondent no.3 are quashed. Matter is remitted back
to the Court of Divisional Consumer Forum Jammu.
The complaint shall come up before the said Court on October 7, 2009. The parties
through their counsel are directed to cause their appearance before the said Court on the
date fixed.
Registry to send down the records to respondent no. 1 and 3 along with the copies of the
judgment.
Jammu (Mansoor Ahmad Mir) 15.09.2009 Judge (Sunita)
