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Home > Judiciary > Business Law > LANDMARK JUDGEMENT OF THE HON'BLE GUJARAT HIGH COURT



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LANDMARK JUDGEMENT OF THE HON'BLE GUJARAT HIGH COURT

Posted on 04 June 2010 by A.A.JOSE BARODA

Court

GUJARAT HIGH: Coram: HON'BLE MR.JUSTICE K.A.PUJ



Brief

CONSUMER COURTS/COMMISSION HAVE NO JURISDICTION TO ENTERTAIN COMPLAINTS RELATING TO ELECTRICITY SUPPLY, VIZ. THEFT OF ELECTRICITY U/S.135 AND UNAUATHORISED USE U/S.126 OF THE ELCTRICITY ACT 2003. 3 SEPARATE FORUMS SUCH AS GRIEVANCE REDRESSAL FORUM; OMBUDSMAN AND SPECIAL COURTS ARE CREATED UNDER THE ELECTRICITY ACT ITSELF. JURISDICTION OF CONSUMER FORA/COMMISSION IMPLIED BARRED.



Citation

SPECIAL CIVIL APPLICATION NO.8264 & 12 OTHER SCAs



Judgement

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 1. 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. 2. 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. 3. 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. 4. 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. 5. 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/-. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. 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. 25. 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. 26. 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. 27. 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. 28. 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. 29. 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. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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. 35. 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. 36. 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. 37. 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. 38. 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. 39. 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. 40. 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. 41. 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. 42. 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. 43. 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





Tags :- landmark judgement hon ble gujarat high court




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2 Comments for this Judiciary



DK Sharma

DK Sharma

Wrote on 25 August 2011

Indian Electrical rules 1956 and Indian Electricity Acts are most toothless laws in Indian jurisprudence.Electrical safety rules are flouted by Electricity Boards with impunity.



jaymin

jaymin

Wrote on 02 July 2010

bedluck for consumer













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