published in http://judis.nic.in/supremecourt/filename=40487
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5466 OF 2012
(arising out of SLP(C)No.35906 of 2011)
U.P. POWER CORPORATION LTD. & ORS. … APPELLANTS
Versus
ANIS AHMAD … RESPONDENT
With
C.A.No. 54675468 of 2012 (@ SLP(C) No. 1828418285 of
2008)
C.A.No. 5469 of 2012 (@ SLP(C) No.14306 of 2009)
C.A.No. 5470 of 2012 (@ SLP(C) No.33557 of 2011)
C.A.No. 5471 of 2012 ( @ SLP(C) No.33558 of 2011)
C.A.No. 5472 of 2012 ( @ SLP(C) No.33559 of 2011)
C.A.No. 5473 of 2012 ( @ SLP(C) No.33560 of 2011)
C.A.No. 5474 of 2012( @ SLP(C) No.33561 of 2011)
C.A.No. 5475 of 2012 ( @ SLP(C) No.33562 of 2011)
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
The questions involved in these appeals are;
a)
whether
complaints filed by the respondents before the ConsumerForum constituted under the Consumer Protection Act, 1986
were maintainable and;
b)
whether the Consumer Forum has
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jurisdiction to entertain a complaint filed by a consumer
or any person against the assessment made under Section 126
of the Electricity Act, 2003 or action taken under Sections
135 to 140 of the Electricity Act, 2003.
2. The National Consumers Disputes Redressal Commission,
New Delhi (hereinafter referred to as the 'National
Commission') by impugned majority judgment (of President
and one Member) dated 10th April, 2008 observed and held as
follows:
“x x x x x x x x
For the reasons stated below, in our
view, the aforesaid questions can be
answered as under:
(i)In case of final assessment order
passed under Section 126 of the
Electricity Act, if a consumer is
aggrieved, he can file complaint
under the Consumer Protection Act.
However, it is his option to file
complaint under the Consumer
Protection Act or to file Appeal
under Section 127 of the Electricity
Act.
(ii)Further, against the final order
passed by the Appellant Authority
under Section 127 of the Electricity
Act, no complaint can be entertained
by the Consumer Fora.
x x x x x x x x x x x x x x x x x x
x x x x x x x x x x x Page 3
3
In view of the aforesaid settled
law, the Consumer fora would have
jurisdiction to entertain complaint
against the final order passed by the
assessing officer under Section 126 of
the Electricity Act. Further, the
jurisdiction of the consumer fora is not
barred by any provisions of the
Electricity Act but the same is expressly
saved under Section 173 read with
Sections 174 and 175 of the Electricity
Act.
V. In the result, we hold as under:
(i)Section 3 of the Consumer Protection Act
and Section 175 of the Electricity Act,
provide that they are in addition and not in
derogation of rights under any other law for
the time being in force. Therefore, the
rights of the consumers under the Consumer
Protection Act are not affected by the
Electricity Act.
(ii)A bare reading of Sections 173, 174 and
175, makes it clear that the intent of the
Legislature is not to bar the jurisdiction of
the Consumer Fora constituted under the
Consumer Protection Act. The provisions of
the Electricity Act have overriding effect
qua provisions of any other law except that
of the Consumer Protection Act, 1986, the
Atomic Energy Act, 1962 and the Railways Act,
1989.
(iii)Section 42(8)of the Electricity Act
specifically provides that the remedies
conferred on consumer under subsections (5),
(6) and (7) of Section 42 are without
prejudice to the right which the consumer may
have apart from the rights conferred upon him
by those subsections.Page 4
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(iv)Section 145 of the Electricity Act
specifically bars the jurisdiction of the
Civil Court to entertain any suit or
proceedings in respect of any matter which an
assessing officer referred to in Section 126
or an Appellate Authority referred to in
Section 127 of the Electricity Act or the
Adjudicating Officer appointed under the
Electricity Act, is empowered to determine.
Second part of Section 145
provides that no jurisdiction
shall be granted by any Court or
Authority in respect of any action
taken or to be taken in pursuance
of any power conferred by or under
the Act. For this purpose, if we
refer to Sections 173 and 174 and
apply the principle laid down
thereunder, it would mean that
qua the consumer fora there is
inconsistency and, therefore,
'other authority' would not
include consumer fora.
(v)Consumer of electrical energy provided by
the Electricity Board or other Private
Company, is a consumer as defined under
Section 2(1)(o)of the Consumer Protection Act
and a complaint alleging any deficiency on
the part of the Board or other private
company including any fault, imperfection,
shortcoming or inadequacy in quality, nature
and manner of performance which is required
to be maintained by or under any law or in
pursuance of any contract in relation to
service, is maintainable under the Consumer
Protection Act.Page 5
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Against the Assessment Order
passed under Section 126 of the
Electricity Act, a consumer has
option either to file Appeal under
Section 127 of the Electricity Act
or to approach the Consumer Fora
by filing complaint. He has to
select either of the remedy.
However, before entertaining the
complaint, the Consumer Fora would
direct the Consumer to deposit an
amount equal to onethird of the
assessed amount with the licensee
[similar to Section 127(2) of the
Electricity Act].
(vi)Consumer Fora have no jurisdiction to
interfere with the initiation of criminal
proceedings or the final order passed by any
Special Court constituted under Section 153
or the civil liability determined under
Section 154 of the Electricity Act.”
3. The judicial Member having not agreed with the majority
finding, by his minority judgment dated 16th April, 2008
held as follows:
“14. In the result I hold as under:
(i)The provisions contained in Section 126
and 127 of Part XII of the Electricity Act,
2003 are not inconsistent with the provisions
of Consumer Protection Act, 1986 and
consequently there is no need to have resort
to the provisions of Section 173 and 174 of
the Electricity Act. The provisions of the
Consumer Protection Act and Electricity Act
can be given their full meaning and effect on
the ground (ii) Consumer fora constituted
under the Consumer Protection Act would have
jurisdiction to entertain only the complaints
filed by a consumer of electricity alleging
any defect or deficiency in the supply of
electricity or alleging adoption of anyPage 6
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unfair trade practice by the supplier of
electricity. (iii) The consumer fora
established under the Consumer Protection Act
have no jurisdiction over the matter relating
to the assessment of charges for unauthorized
use of electricity, tampering of meters etc.
as also over the matters which fall under the
domain of special Courts constituted under
the Electricity Act, 2003.”
Following the aforesaid majority decision dated 10th
April, 2008, other cases were disposed of by the National
Commission in similar terms by impugned orders dated 13th
March, 2009, 29th March, 2011 and 7th July, 2011. By
impugned order dated 13th March, 2009, giving reference to
the aforesaid judgment dated 10th April, 2008, the matter
was remitted to the State Consumers Disputes Redressal
Commission (hereinafter referred to as the “State
Commission') for fresh decision.
4. For determination of the issue involved in these
appeals, it is necessary to discuss the relevant facts as
were pleaded by the parties before the Consumer Fora. The
same is mentioned hereunder:
5. Case of Anis Ahmad,
Anis Ahmed filed a complaint before the District
Consumer Protection Forum, Moradabad and claimed that he is
a consumer of electricity having connection No.104427 with
sanctioned load of 6.5 horse power. He alleged that thePage 7
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authorities of the U.P. Power Corporation Ltd. prepared a
fictitious checking report dated 17th July, 2003 and falsely
implicated the complainant that he had used more than
sanctioned load of 10 H.P. in his factory and on the basis
of fictitious report a proceeding was initiated on 15th
April, 2004 followed by a bill No.5004369 dated 15th June,
2004 demanding a sum of Rs.2,11,451/. He prayed to direct
the appellant to correct the bill, withdraw the demand
notice and to pay the costs.
The appellant, U.P. State Corporation Ltd. filed the
objections regarding maintainability of the above said
petition. It was alleged that the complainant had
industrial connection which was disconnected earlier due to
the arrears of electricity dues. On a checking held on 17th
March, 2004 by SubDivisional OfficerII and Junior
Engineer, it was found that the L.T. line of three phases
passing from the other side of the premises of the
complainant was tapped with the cables attached with the
meter though they were disconnected earlier and the
complainant was using full 10 horse power load by
committing theft of electricity by byepassing the meter.
6. Case of Rakhi GhoshPage 8
8
Rakhi Ghosh claimed before the District Consumer
Disputes Redressal Forum, at Suri, Birbhum, West Bengal,
that he is a consumer of electricity having Connection
No.1/7884 with connected load of 20 H.P. He is running his
husking mill through connected load. He challenged the
bill for Rs.3,73,935/ raised by the West Bengal State
Electricity Board which was raised on the ground of
unauthorized extension of load of 8 H.P.
The appellant, West Bengal Electricity Board filed the
objections and raised the question of maintainability of
the application. It was stated that consumer was enjoying
Industrial connection and, therefore, does not fall within
the definition of "consumer" under the Consumer Protection
Act, 1986. It was further alleged that a police case being
No.19/2005 dated 26th February, 2005 has already been lodged
against Rakhi Ghosh for theft of electricity, therefore,
the consumer forum has no jurisdiction to entertain the
application.
7. Case of Prithvi Pal Singh
Prithvi Pal Singh filed a complaint before the District
Consumer Protection ForumII, Moradabad that he is a
consumer having connection No.0102/102474 with a sanctionedPage 9
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load of 6 KW. It was alleged that the U.P. Power
Corporation Ltd. got his premises inspected by its team and
subsequently sent a notice to him on 1st December, 2005.
In the said notice it was alleged that the Enforcement team
on inspection made on 25th November, 2004 found that the
complainant was committing theft of electricity by making a
cut at the cable prior to meter and was using excess load.
He challenged the bill raised by the Corporation for
Rs.1,45,546/ and prayed for compensation of 10,000/ for
harassment.
The appellant, U.P. Power Corporation Ltd. filed
objections and raised the question of maintainability of
the petition. It was alleged that on checking, a cut mark
on three phase cable before the meter was detected by which
the complainant was committing theft of electricity of 13
KW by byepassing the meter. A bill for Rs. 1,99,805/ was
raised for theft of the electricity.
8. Case of Zulfikar
Zulfikar filed a complaint before the District Consumer
Protect ForumII, Moradabad, challenging a notice of
assessment. He stated that he is a consumer of commercialPage 10
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electricity connection bearing No.3293/115275, the
sanctioned load of which is 3 KW. According to him on
receipt of notice he enquired about the same to the
appellant and came to know that on the basis of checking
report they have issued the bill. It was alleged that the
said checking report dated 22nd July, 2004 is false and
fabricated and no checking was done on the premises of the
complainant.
The appellant, U.P. Power Corporation Ltd. filed
objections raising the question of maintainability of the
complaint on the ground that the complainant Zulfikar had
commercial connection and hence does not fall within the
definition of ‘Consumer'. It was alleged that Enforcement
Squad and Assistant Engineer (Raids) on 22nd July, 2004
raided the premises of the complainant and during the
inspection found that 4 leads of the PVC cable of
electricity line leading to the meter had been cut and bye
passing the same, 5.76 KW load was being used by the
complainant illegally. They alleged theft of electricity
against the complainant for which an assessment notice was
issued. It was contended that theft of electricity does not
amount to deficiency in service, therefore, the ConsumerPage 11
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Forum does not have the jurisdiction to entertain the
petition regarding the theft of the electricity under the
Consumer Protection Act.
9. Case of Shahzadey Alam
Shahzadey Alam filed a complaint case before the
District Consumer Protection ForumII, Moradabad
challenging the revenue assessment notice dated 9th
February, 2005 and requested to pay the compensation for
mental and physical agony. In his petition Shahzadey Alam
stated that he was consumer of electricity connection
No.0832782700, having a sanctioned load of 2 KW. On 20th
October, 1986, the officials of the U.P. Power Corporation
Ltd. disconnected the aforesaid electricity connection for
nonpayment of Suvidh Shulka. As the said electricity
connection was not required for the complainant, he did not
get the same restored. It is alleged that in spite of the
same, the complainant received a notice of assessment on
16th February, 2005.
The appellant, U.P. Power Corporation Ltd. on
appearance challenged the maintainability of the petitionPage 12
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before the Consumer Forum. It was stated that the
complainant had himself admitted that his electricity
connection was disconnected on 20th October, 1986,
therefore, the petition was not maintainable. It was
further alleged that the complainant has a factory which
was raided and checked by the enforcement squad on 24th
January, 2005 at 4.10 hours and that it was found that the
complainant was committing theft of electricity by cutting
three phase cable going near his premises to the connection
No.2783/116398 of L.M.V.II category of Shri Javed and by
connecting it with 15 meters cable and using 4.70 K.W. load
and that no valid connection was found in the premises of
the complainant. Therefore, the complainant was asked to
deposit compounding fee of Rs.1,02,400/, but he has not
deposited it. On the basis of the report a notice was
issued to the complainant.
10. Case of Atul Kumar Gupta
Atul Kumar Gupta filed a complaint before the District
Consumer Protection ForumII, Moradabad, stating that he is
a consumer of electricity connection No.1034/117269, having
sanctioned load of 7.5 KW. It is alleged that the
electricity connection of the complainant has beenPage 13
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disconnected on 29th February, 2003 on the ground of
outstanding electricity charges. Later on, the appellant
informed that a case in connection with checking is under
consideration and, therefore, the connection of the
complainant cannot be restored. The complainant alleged
that on 13th March, 2004 he received Revenue assessment
notice alongwith a checking report No.164 dated 1st March,
2004, though no checking was conducted at the premises of
the complainant on 1st March, 2004. He prayed for
cancellation of the assessment notice dated 10th March, 2004
and claimed compensation of Rs.5,000/ towards mental agony
and financial loss.
The appellant, U.P. Power Corporation Ltd., in their
reply raised the question of maintainability of the
petition in view of the fact that the complainant's
connection was disconnected on 28th February, 2003 and that
on inspection it was found that he was committing theft of
electricity by pilferage of electricity.
11. Case of Tauseef Ahmed
Tauseef Ahmed moved before the District Consumer
Protection ForumII, Moradabad and stated that he is a
consumer of electricity having connection No.115694 withPage 14
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sanctioned load of 2 KW. He alleged that three employees
of the U.P. Power Corporation Ltd. visited his premises.
Out of them one represented himself to be the Junior
Engineer and demanded bribe of Rs.6,000/ illegally. As
he refused to pay the amount, a notice was served on him on
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th September, 2004 along with a report dated 11th August,
2004 and a bill for Rs.1,94,382/ was raised. He
challenged the bill before the District Forum.
The U.P. Power Corporation Ltd. on appearance raised
the question of maintainability of the petition, one of the
grounds taken was that the complainant has already filed an
Original Suit No.391 of 2004 (Tauseef Ahmed vs. Uttar
Pradesh Power Corporation) for the same relief before the
Court of Civil Judge (Junior Division), Moradabad in which
summons has already been issued and the matter is pending.
It was alleged that the premises of the claimant was
checked on 11th August, 2004 in the presence of the
complainant and on checking it was found that 6.945 KW of
electricity had been illegally used instead of sanctioned
load of 2 KW. It was brought to the notice of the Forum
that use of excess load than the sanctioned electric load
for any other purpose for which connection has beenPage 15
15
granted, comes within the meaning of "pilferage of
electricity” as defined under U.P. Electricity (Consumers)
Regulation, 1984 for which notice of assessment was sent to
the complainant for recovery of sum of Rs.1,94,382/ which
on hearing the parties was finalized to be Rs.1,07,985/
vide order dated 1st October, 2004.
12. Case of Mohd. Yunus
Mohd. Yunus filed a complaint before the District
Consumer Protection ForumII, Moradabad claiming to be a
consumer of commercial electricity having connection
No.2701/098494, with sanctioned load of 5 KW. It was
alleged that on the basis of a checking report dated 17th
November, 2004 revenue assessment notice dated 1st February,
2005 was served on him. He sought for a copy of the report
and came to know that Junior Engineer had sent a false
checking report to the Divisional Office because of non
payment of monthly "Suvidha Sulk" by the complainant. He
challenged the revenue assessment notice dated 1st February,
2005 and claimed compensation of Rs.10,000/ for mental
suffering and financial loss.
The U.P. Power Corporation Ltd. on appearance raised
the question of maintainability of the petition. It wasPage 16
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stated that the complainant is a consumer of L.M.V.II
category using electricity for commercial purposes,
therefore, he does not fall under the definition of
“consumer", as defined under Section 2(1)(d) of the
Consumer Protection Act. It was further alleged that on 17th
November, 2004 on checking of the premises of the
complainant by SubDivisional OfficerII, Moradabad and
Junior Engineer it was found that the complainant was using
the connection for industrial purposes under L.M.V.6
category without any prior consent of the U.P. Power
Corporation Ltd. He was using electrical energy for the
purposes other than the purpose for which it was
sanctioned. Therefore, the complainant was found to be
guilty of pilferage of electricity.
13. All the cases against the U.P. Power Corporation Ltd.
were filed before the District Consumer Protection Forum
II, Moradabad. The decision having given in favour of the
complainants, U.P. Power Corporation Ltd moved before the
State Consumer Disputes Redressal Commission, Uttar
Pradesh, Lucknow which by its common judgment dated 31st
January, 2007/Ist February, 2007 dismissed all the revision
petitions filed by the U.P. Power Corporation Ltd.Page 17
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14. For the said reason all the cases in which the question
of jurisdiction of the Consumer Forum were raised, they
were heard and decided by the National Commission initially
by the impugned judgment dated 10th April, 2008/16th April,
2008, followed by other orders.
Submissions:
15. Learned counsel for the appellants contended as under:
(a) The proceedings under Sections126, 127, 135 etc.
of the Electricity Act, 2003 initiated by the service
providers are not related to deficiency of service in the
supply of electricity by the service providers under the
Electricity Act, 2003. Therefore, the complaints against
the proceedings under Section 126, 127, 135 etc. of the
Electricity Act, 2003 are not maintainable before the Forum
constituted under the Consumer Protection Act, 1986.
(b) In absence of any inconsistency between Sections
126, 127, 135 etc. of the Electricity Act, 2003 and the
provisions of Consumer Protection Act, 1986, Sections 173
and 174 of the Electricity Act, 2003 are not attracted.
16. Per contra, according to the respondents, a complaint
under the Consumer Protection Act, 1986 against the final
assessment order passed under Section 126 of thePage 18
18
Electricity Act, 2003 is maintainable before the Consumer
Forum.
17. To determine the question, it would be appropriate to
refer to the Statement of Objects and Reasons and relevant
provisions of the Consumer Protection Act, 1986, as quoted
below:
“STATEMENT OF OBJECTS AND REASONS
The Consumer Protection Bill, 1986
seeks to provide for better protection of
the interests of consumers and for the
purpose, to make provision for the
establishment of Consumer councils and other
authorities for the settlement of consumer
disputes and for matter connected therewith.
2. It seeks, inter alia, to promote and
protect the rights of consumers such as
(a)the right to be protected against marketing of
goods which are hazardous to life and property;
(b)the right to be informed about the quality,
quantity, potency, purity, standard and price of
goods to protect the consumer against unfair
trade practices;
(c)the right to be assured, wherever possible,
access to an authority of goods at competitive
prices;
(d)the right to be heard and to be assured that
consumers interests will receive due
consideration at appropriate forums;
(e)the right to seek redressal against unfair
trade practices or unscrupulous exploitation of
consumers; andPage 19
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(f)right to consumer education.
3. These objects are sought to be promoted
and protected by the Consumer Protection
Council to be established at the Central and
State level.
4. To provide speedy and simple redressal
to consumer disputes, a quasijudicial
machinery is sought to be setup at the
district, State and Central levels. These
quasijudicial bodies will observe the
principles of natural justice and have been
empowered to give relief of a specific
nature and to award, wherever appropriate,
compensation to consumers. Penalties for
noncompliance of the orders given by the
quasijudicial bodies have also been
provided.”
Scope of consumer complaint
18. “Consumer dispute" is defined under Section 2(e) of the
Consumer Protection Act,1986 in the following manner:
"2(e) “consumer dispute” means a dispute
where the person against whom a complaint
has been made, denies or disputes the
allegations contained in the complaint.”
Therefore, for a valid consumer dispute an assertion
and denial of a valid complaint is must.
19. “Complaint" is defined under Section 2(1) (c) of the
Consumer Protection Act,1986 in the following manner:
"2(1)(c) "complaint" means any allegation in
writing made by a complainant thatPage 20
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(i)an unfair trade practice or a restrictive
trade practice has been adopted by (any trader or
service provider ;
(ii)the goods bought by him or agreed to be
bought by him suffer from one or more defects;
(iii)the services hired or availed of or agreed
to be hired or availed of by him suffer from
deficiency in any respect;
(iv)a trader or the service provider, as the case
may be, has charged for the goods or for the
services mentioned in the complaint, a price in
excess of the price
(a)fixed by or under any law for the time being
in force;
(b)displayed on the goods or any package
containing such goods;
(c)displayed on the price list exhibited by him
by or under any law for the time being inforce;
(d)agreed between the parties;
(v) goods which will be hazardous to life
and safety when used, are beingoffered for
sale to the public
(a)in contravention of any standard relating to
safety of such goods as required to be complied
with, by or under any law for the time being in
force;
(b)if the trader could have known with due
diligence that the goods so offered are unsafe to
the public;
(vi) services which are hazardous or likely
to be hazardous to life and safety of the
public when used, are being offered by the
service provider which such person couldPage 21
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have known with due diligence to be
injurious to life and safety;
with a view to obtaining any relief provided
by or under this Act;"
Therefore, it is only in respect to aforementioned
aspects that a consumer complaint can be filed viz.
* Unfair trade practice or restrictive trade
practice.
* When there is a defective goods.
* Deficiency in services
* Hazardous goods
* Hazardous services
* a price in excess of the price fixed under any
law etc.
20. Deficiency of service is defined under Section 2(g) of
the Consumer Protection Act, 1986 in the following manner:
"2(g) “deficiency”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."Page 22
22
Therefore, it is clear that nature of transaction under
Section 126 does not come within the ambit of “complaint".
21. Section 2(1)(b) of the Consumer Protection Act, 1986
defines "complainant" as follows:
“2(1)(b) "complainant" means
(i)a consumer; or
(ii)any voluntary consumer association registered
under the Companies Act,1956 (1of 1956) or under
any other law for the time being in force; or
(iii)the Central Government or any State
Government; or
(iv)one or more consumers, where there are
numerous consumers having the same interest;
(v)in case of death of a consumer, his legal heir
or representative; who or which makes a
complaint;”
22. Whereas "consumer" is defined under Section 2(1)(d) of
the Consumer Protection Act, 1986 in the following manner:
"2(1)(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 or 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; orPage 23
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(ii) [hires or avails of] any services 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 beneficiary of such services
other than the person who [hires or avails
of] the services for consideration paid or
promised, or partly paid and partly
promised, or under any system of deferred
payment, when such services are availed of
with the approval of the first mentioned
person; (but does not include a person who
avails of such services for any commercial
purpose;)
Explanation.For the purposes of this
clause, "commercial purpose" does not
include use by a person of goods bought and
used by him and services availed by him
exclusively for the purposes of earning his
livelihood by means of selfemployment;"
From a bare reading of the section aforesaid it is
clear that person(s) availing services for 'commercial
purpose' do not fall within the meaning of “consumer" and
cannot be a "complainant” for the purpose of filing a
"complaint" before the Consumer Forum.
23. “Service” as defined under Section 2(1)(o) of the
Consumer Protection Act, 1986 includes supply of electrical
or other energy and reads as follows:
“2(1)(o)"service" means service of any
description which is made available to
potential (users and includes, but not
limited to, the provision of) facilities in
connection with banking, financing
insurance, transport, processing, supply of
electrical or other energy, board orPage 24
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lodging or both, (housing construction,)
entertainment, amusement or the purveying
of news or other information, but does not
include the rendering of any service free
of charge or under a contract of
personal
service.”
Therefore, a consumer within the meaning under Section
2(1) (d) may file a valid complaint in respect of supply
of electrical or other energy, if the complaint contains
allegation of unfair trade practice or restrictive trade
practice; or there is a defective goods; deficiency in
services; hazardous services or a price in excess of the
price fixed by or under any law etc.
Maintainability of complaint filed by the respondents.
24. From the facts narrated in the preceding paragraph it
is clear that Anis Ahmed, Rakhi Ghosh, Prithvi Pal Singh,
Zulfikar, Shahzadey Alam, Atul Kumar Gupta, Tauseef Ahmed
and Mohd. Yunus had electrical connections for
industrial/commercial purpose and, therefore, they do not
come within the meaning of "consumer" as defined under
Section 2(1)(d) of the Consumer Protection Act, 1986; they
cannot be treated as “complainant” nor they are entitled to
file any "complaint" before the Consumer Forum.
25. Admittedly, the complainants made their grievance
against final order of assessment passed under Section 126Page 25
25
of the Electricity Act, 2003. None of the respondents
alleged that the appellant(s) used unfair trade practice or
a restrictive trade practice or there is deficiency in
service(s) or hazardous service(s) or price fixed by the
appellant(s) is excess to the price fixed under any law
etc. In absence of any allegation as stipulated under
Section 2(1)(c) of the Consumer Protection Act,1986, their
complaints were not maintainable.
26. Therefore, we hold that the complaint filed by the
respondents were not maintainable before the Consumer
Forum.
Maintainability of a complaint before the Consumer Forum
against final order of assessment made under Section 126 of
the Electricity Act, 2003 or action taken under Sections
135 to 140 of the Electricity Act, 2003
27. Section 2(15) of the Electricity Act, 2003 defines
‘consumer’ in the following manner:
"2(15). "consumer" means any person who is
supplied with electricity for his own use by
a licensee or the Government or by any other
person engaged in the business of supplying
electricity to the public under this Act or
any other law for the time being in force
and includes any person whose premises are
for the time being connected for the purpose
of receiving electricity with the works of a
licensee, the Government or such other
person, as the case may be;”
28. From a bare reading of section aforesaid we find that
the "consumer" as defined under Section 2(15) includes anyPage 26
26
person who is supplied with electricity for his own use by
a licensee and also includes any person whose premises are
for the time being connected for the purpose of receiving
electricity with the works of a licensee, irrespective of
the fact whether such person is supplied with electricity
for his own use or not. Per contra under Section 2(1)(d)
of the Consumer Protection Act, 1986 those who were
supplied with electricity for commercial purpose and those
who do not avail services for consideration, irrespective
of electricity connection in their premises do not come
within the meaning of "consumer".
29. Section 126 of the Electricity Act, 2003 empowers the
assessing officer to make assessment in case of
“unauthorized use of electricity". It provides that if on
an inspection of any place or premises or after inspection
of the equipments, gadgets, machines, devices found
connected or used, or after inspection of records
maintained by any person, the assessing officer comes to
the conclusion that such person is indulging in
"unauthorized use of electricity", he shall assess the
electricity charges payable by such person or by any other
person benefitted by such use, the Section reads as under:Page 27
27
"126.Assessment. (1) If on an inspection of
any place or premises or after inspection of
the equipments, gadgets, machines, devices
found connected or used, or after inspection
of records maintained by any person, the
assessing officer comes to the conclusion
that such person is indulging in
unauthorized use of electricity, he shall
provisionally assess to the best of his
judgement the electricity charges payable by
such person or by any other person benefited
by such use.
(2) The order of provisional assessment
shall be served upon the person in
occupation or possession or in charge of the
place or premises in such manner as may be
prescribed.
(3) The person, on whom an order has been
served under subsection (2) shall be
entitled to file objections, if any, against
the provisional assessment before the
assessing officer, who shall, after
affording a reasonable opportunity of
hearing to such person, pass a final order
of assessment within thirty days from the
date of service of such order of provisional
assessment, of the electricity charges
payable by such person.
(4) Any person served with the order of
provisional assessment, may, accept such
assessment and deposit the assessed amount
with the licensee within seven days of
service of such provisional assessment order
upon him.
(5) If the assessing officer reaches to the
conclusion that unauthorized use of
electricity has taken place, the assessment
shall be made for the entire period during
which such unauthorized use of electricity
has taken place and if, however, the period
during which such unauthorized use of
electricity has taken place cannot be
ascertained, such period shall be limited toPage 28
28
a period of twelve months immediately
preceding the date of inspection.
(6) The assessment under this section shall
be made at a rate equal to (twice) the
tariff applicable for the relevant category
of services specified in subsection (5).
Explanation. For the purposes of this
section,
(a) “ assessing officer” means an
officer of a State Government or Board or
licensee, as the case may be, designated as
such by the State Government;
(b) “ unauthorised use of electricity”
means the usage of electricity –
(i)by any artificial means; or
(ii)by a means not authorised by the concerned
person or authority or licensee; or
(iii)through a tampered meter; or
(iv)for the purpose other than for which the
usage of electricity was authorized; or
(v)for the premises or areas other than those for
which the supply of electricity was authorized.”
30. Section 145 of the Electricity Act, 2003 bars the
jurisdiction of Civil Court to entertain any suit or
proceeding in respect of any matter which an assessing
officer referred to in Section 126. A separate provision
of appeal to the appellate authority has been prescribed
under Section 127 so that any person aggrieved by the final
order made under Section 126, may within thirty days of the
said order, prefer an appeal, which reads as under:Page 29
29
127.Appeal to appellate authority. (1) Any
person aggrieved by the final order made
under section 126 may, within thirty days of
the said order, prefer an appeal in such
form, verified in such manner and be
accompanied by such fee as may be specified
by the State Commission, to an appellate
authority as may be prescribed.
(2) No appeal against an order of assessment
under subsection (1)
shall be entertained unless an amount equal
to half of the assessed amount is deposited
in cash or by way of bank draft with the
licensee and documentary evidence of such
deposit has been enclosed along with the
appeal.
(3) The appellate authority referred to in
subsection (1) shall dispose of the appeal
after hearing the parties and pass
appropriate order and send copy of the order
to the assessing officer and the appellant.
(4) The order of the appellate authority
referred to in subsection (1) passed under
subsection (3) shall be final.
(5) No appeal shall lie to the appellate
authority referred to in sub –section (1)
against the final order made with the
consent of the parties.
(6) When a person defaults in making payment
of assessed amount, he, in addition to the
assessed amount, shall be liable to pay, on
the expiry of thirty days from the date of
order of assessment, an amount of interest
at the rate of sixteen per cent per annum
compounded every six months.”
Therefore, it is clear that after notice of provisional
assessment to the person indulged in unauthorized use of
electricity, the final decision by an assessing officer,Page 30
30
who is a public servant, on the assessment of "unauthorized
use of electricity”is a “Quasi Judicial” decision and does
not fall within the meaning of “consumer dispute” under
Section 2(1) (e) of the Consumer Protection Act, 1986.
31. Part XIV of the Electricity Act, 2003 relates to
“offences and penalties". If Section 126 is read with
Section 135 to 140 it will be clear that various acts of
"unauthorized use of electricity” constitute “offences”
mentioned under Sections 135 to 140 and attracts sentence
and fine as prescribed therein.
32. For proper appreciation, we refer to Section 135 which
relates to “theft of electricity". Interference with
meters or work of licensee, taping of electricity, making
or causing to be made any connection with overhead,
underground or under water lines or cables, or service
wires, or service facilities of a licensee; tampering of
meter, installation or use of tampered meter, loop
connection or any other device or method which interferes
with accurate or proper registration, calibration or
metering of electric current or otherwise results in a
manner whereby electricity is stolen or wasted; damaging or
destroys of an electrical meter, apparatus, equipment, usePage 31
31
of electricity through a tampered meter; use of electricity
for the purpose other than for which the usage of
electricity was authorized constitute "theft of
electricity" and constitute “offence" under Section 135 of
the Electricity Act, 2003, which reads as follows:
“135. Theft of electricity. (1) Whoever,
dishonestly,
(a)taps, makes or causes to be made any
connection with overhead, underground or under
water lines or cables, or service wires, or
service facilities of a licensee or supplier, as
the case may be; or
(b)tampers a meter, installs or uses a
tampered meter, current reversing
transformer, loop connection or any
other device or method which interferes
with accurate or proper registration,
calibration or metering of electric
current or otherwise results in a
manner whereby electricity is stolen or
wasted; or
(c) damages or destroys an electric
meter, apparatus, equipment, or wire or
causes or allows any of them to be so
damaged or destroyed as to interfere
with the proper or accurate metering of
electricity; or
(d) uses electricity through a tampered
meter; or
(e) uses electricity for the purpose
other than for which the usage of
electricity was authorised,
so as to abstract or consume or use
electricity shall be punishable withPage 32
32
imprisonment for a term which may extend to
three years or with fine or with both:
Provided that in a case where the load
abstracted, consumed, or used or attempted
abstraction or attempted consumption or
attempted use
(i) does not exceed 10 kilowatt, the
fine imposed on first conviction shall
not be less than three times the
financial gain on account of such theft
of electricity and in the event of
second or subsequent conviction the
fine imposed shall not be less than six
times the financial gain on account of
such theft of electricity;
(ii) exceeds 10 Kilowatt, the fine
imposed on first conviction shall not
be less than three times the financial
gain on account of such theft of
electricity and in the event of second
or subsequent conviction, the sentence
shall be imprisonment for a term not
less than six months, but which may
extend to five years and with fine not
less than six times the financial gain
on account of such theft of
electricity:
Provided further that in the event of
second and subsequent conviction of a person
where the load abstracted, consumed, or used
or attempted abstraction or attempted
consumption or attempted use exceeds 10
kilowatt, such person shall also be debarred
from getting any supply of electricity for a
period which shall not be less than three
months but may extend to two years and shall
also be debarred from getting supply of
electricity for that period from any other
source or generating station:
Provided also that if it is provided
that any artificial means or means not
authorised by the Board or licensee or
supplier, as the case may be, exist for thePage 33
33
abstraction, consumption or use of
electricity by the consumer, it shall be
presumed, until the contrary is proved, that
any abstraction, consumption or use of
electricity has been dishonestly caused by
such consumer.
1A) Without prejudice to the provisions
of this Act, the licensee or supplier, as
the case may be, may, upon detection of such
theft of electricity, immediately disconnect
the supply of electricity:
Provided that only such officer of the
licensee or supplier, as authorised for the
purpose by the Appropriate Commission or any
other officer of the licensee or supplier,
as the case may be, of the rank higher than
the rank so authorised shall disconnect the
supply line of electricity:
Provided further that such officer of
the licensee or supplier, as the case may
be, shall lodge a complaint in writing
relating to the commission of such offence
in police station having jurisdiction within
twenty four hour from the time of such
disconnect:
Provided also that the licensee or
supplier, as the case may be, on deposit or
payment of the assessed amount or
electricity charges in accordance with the
provisions of this Act, shall, without
prejudice to the obligation to lodge the
complaint as referred to in the second
proviso to this clause., restore the supply
line of electricity within fortyeight hours
of such deposit or payment;]
(2) Any officer of the licensee or supplier
as the case may be, authorised in this
behalf by the State Government may
(a) enter, inspect, break open and
search any place or premises in which
he has reason to believe that
electricity [has been or is being],
used unauthorisedly;Page 34
34
(b) search, seize and remove all such
devices, instruments, wires and any
other facilitator or article which [has
been or is being], used for
unauthorised use of electricity;
(c) examine or seize any books of
account or documents which in his
opinion shall be useful for or relevant
to, any proceedings in respect of the
offence under subsection (1) and allow
the person from whose custody such
books of account or documents are
seized to make copies thereof or take
extracts therefrom in his presence.
(3) The occupant of the place of search or
any person on his behalf shall remain
present during the search and a list of all
things seized in the course of such search
shall be prepared and delivered to such
occupant or person who shall sign the list:
Provided that no inspection, search and
seizure of any domestic places or domestic
premises shall be carried out between sunset
and sunrise except in the presence of an
adult male member occupying such premises.
(4) The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974), relating to
search and seizure shall apply, as far as
may be, to searches and seizure under this
Act.”
33. "Theft of electric lines and materials” constitute
offence under Section 136; whereas "receiving stolen
property" constitute offence under Section 137.
Interference with meters or works of licensee
unauthorisedly connecting any meter, indicator or apparatus
with any electric line; unauthorise reconnection of anyPage 35
35
meter, indicator or apparatus with electric line or other
works; laying or causing to be laid, or connecting any
works for the purpose of communicating with any other works
belonging to a licensee; or injuring any meter, indicator,
or apparatus belonging to a licensee maliciously etc.
constitute “offences” which attracts punishment under
Section 138 of the Electricity Act, 2003. Section 138 of
the Electricity Act reads as follows:
“138.Interference with meters or works of
licensee.(1) Whoever,
(a) unauthorisedly connects any meter,
indicator or apparatus with any
electric line through which electricity
is supplied by a licensee or
disconnects the same from any such
electric line; or
(b) unauthorisedly reconnects any
meter, indicator or apparatus with any
electric line or other works being the
property of a licensee when the said
electric line or other works has or
have been cut or disconnected; or
(c) lays or causes to be laid, or
connects up any works for the purpose
of communicating with any other works
belonging to a licensee; or
(d) maliciously injures any meter,
indicator, or apparatus belonging to a
licensee or willfully or fraudulently
alters the index of any such meter,
indicator or apparatus or prevents any
such meter, indicator or apparatus from
duly registering;Page 36
36
shall be punishable with imprisonment for a
term which may extend to three years, or
with fine which may extend to ten thousand
rupees, or with both, and, in the case of a
continuing offence, with a daily fine which
may extend to five hundred rupees; and if it
is proved that any means exist for making
such connection as is referred to in clause
(a) or such reconnection as is referred to
in clause (b), or such communication as is
referred to in clause (c), for causing such
alteration or prevention as is referred to
in clause (d), and that the meter, indicator
or apparatus is under the custody or control
of the consumer, whether it is his property
or not, it shall be presumed, until the
contrary is proved, that such connection,
reconnection, communication, alteration,
prevention or improper use, as the case may
be, has been knowingly and wilfully caused
by such consumer.”
34. Clause (b) of the Explanation below Section 126,
defines "unauthorized use of electricity" as the usage of
electricity by any artificial means; or by a means not
authorized by the concerned person or authority or
licensee; or through a tampered meter; or for the purpose
other than for which the usage of electricity was
authorized; or for the premises or areas other than those
for which the supply of electricity was authorized.
All the aforesaid acts constitute “offences” under
Section 135 to 140 of the Electricity Act, 2003, as noticed
above. Page 37
37
35. From a bare reading of Section 126 and Sections 135 to
140, it is clear that while acts of "unauthorized use of
electricity" attracts civil consequence of penal charge of
electricity, twice the rate of electricity, for which
assessment is made by assessing officer under Section 126;
the very same acts of "unauthorized use of electricity",
constitute "offences" under Section 135 to 140 for which
sentence and fine has been prescribed.
36. As per Section 153 of the Electricity Act, 2003,
Special Courts are to be constituted for speedy trial for
the offences referred to in Sections 135 to 140. The said
Section reads as follows:
“153. Constitution of Special Courts. (1)
The State Government may, for the purposes
of providing speedy trial of offences
referred to in [sections 135 to 140 and
section 150], by notification in the
Official Gazette, constitute as many Special
Courts as may be necessary for such area or
areas, as may be specified in the
notification.
(2) A Special Court shall consist of a
single Judge who shall be appointed by the
State Government with the concurrence of the
High Court.
(3) A person shall not be qualified for
appointment as a judge of a Special Court
unless he was, immediately before such
appointment, an Additional District and
Sessions Judge.Page 38
38
(4) Where the office of the Judge of a
Special Court is vacant, or such Judge is
absent from the ordinary place of sitting of
such Special Court, or he is incapacitated
by illness or otherwise for the performance
of his duties, any urgent business in the
Special Court shall be disposed of
(a) by a Judge, if any, exercising
jurisdiction in the Special Court;
(b) where there is no such other Judge
available, in accordance with the
direction of District and Sessions
Judge having jurisdiction over the
oridinary place of sitting of Special
Court, as notified under subsection
(1).”
37. The Civil Court's jurisdiction to consider a suit with
respect to the decision of assessing officer under Section
126, or decision of appellate authority under Section 127
is barred under Section 145 of the Electricity Act,2003 ,
which reads as under:
“145. Civil Court not to have jurisdiction.
No civil court shall have jurisdiction to
entertain any suit or proceeding in respect
of any matter which an assessing officer
referred to in Section 126 or an Appellate
Authority referred to in Section 127 or the
adjudicating officer appointed under this
Act is empowered by or under this Act to
determine and no injunction shall be granted
by any court or other authority in respect
of any action taken or to be taken in
pursuance of any power conferred by or under
this Act.”
38. The National Commission placed much reliance on sub
sections (5) and (6) of Section 42 of the Electricity Act,Page 39
39
2003 to derive power to adjudicate dispute arising out of
Section 126, but it failed to notice that Section 42 of the
Electricity Act, 2003 is not applicable in the case of
licensee who is a trader or supplier of electricity but it
relates to "distribution licensees".
39. Section 14 of the Electricity Act, 2003 empowers the
Appropriate Commission to grant a licence to any person to
"transmit electricity" or "to distribute electricity" or
"to undertake trading in electricity", the relevant
portion of Section 14 reads as follows:
“14. Grant of licence. The Appropriate
Commission may, on an application made to it
under Section 15, grant a licence to any
person –
(a)to transmit electricity as a transmission
licensee; or
(b)to distribute electricity as a distribution
licensee; or
(c)to undertake trading in electricity as an
electricity trader,
in any area as may be specified in
the licence.”
40. Amongst the three categories of licensee(s)
viz.“transmission licensee"; "distribution licensee" and
the "licensee to undertake trading in electricity", the
provisions with respect to "distribution licensees" have
been provided under Part VI of the Electricity Act, 2003
but not the two other licensees. Bare perusal of Part VIPage 40
40
and Section 42 of the Electricity Act, 2003 makes it
further clear. The same is quoted hereunder:
“Part VI
DISTRIBUTION OF ELECTRICITY
Provisions with respect to distribution licensees
42. Duties of distribution licensees and open access.
(1) It shall be the duty of a distribution licensee
to develop and maintain an efficient, coordinated and
economical distribution system in his area of supply
and to supply electricity in accordance with the
provisions contained in this Act.
(2) The State Commission shall introduce open access
in such phases and subject to such conditions,
(including the cross subsidies, and other operational
constraints) as may be specified within one year of
the appointed date by it and in specifying the extent
of open access in successive phases and in determining
the charges for wheeling, it shall have due regard to
all relevant factors including such cross subsidies,
and other operational constraints:
Provided that [such open access shall be allowed on
payment of a surcharge] in addition to the charges for
wheeling as may be determined by the State Commission:
Provided further that such surcharge shall be utilised
to meet the requirements of current level of cross
subsidy within the area of supply of the distribution
licensee:
Provided also that such surcharge and cross subsidies
shall be progressively reduced [***] in the manner as
may be specified by the State Commission:
Provided also that such surcharge shall not be
leviable in case open access is provided to a person
who has established a captive generating plant for
carrying the electricity to the destination of his own
use:
[Provided also that the State Commission shall, not
later than five years from the date of commencement of
the Electricity (Amendment) Act, 2003 (57 of 2003) by
regulations, provide such open access to all consumers
who require a supply of electricity where the maximum
power to be made available at any time exceeds one
megawatt.]Page 41
41
(3) Where any person, whose premises are situated
within the area of supply of a distribution licensee,
(not being a local authority engaged in the business
of distribution of electricity before the appointed
date) requires a supply of electricity from a
generating company or any licensee other than such
distribution licensee, such person may, by notice,
require the distribution licensee for wheeling such
electricity in accordance with regulations made by the
State Commission and the duties of the distribution
licensee with respect to such supply shall be of a
common carrier providing nondiscriminatory open
access.
(4) Where the State Commission permits a consumer or
class of consumers to receive supply of electricity
from a person other than the distribution licensee of
his area of supply, such consumer shall be liable to
pay an additional surcharge on the charges of
wheeling, as may be specified by the State Commission,
to meet the fixed cost of such distribution licensee
arising out of his obligation to supply.
(5) Every distribution licensee shall, within six
months from the appointed date or date of grant of
licence, whichever is earlier, establish a forum for
redressal of grievances of the consumers in accordance
with the guidelines as may be specified by the State
Commission.
(6) Any consumer, who is aggrieved by nonredressal of
his grievances under subsection (5), may make a
representation for the redressal of his grievance to
an authority to be known as Ombudsman to be appointed
or disignated by the State Commission.
(7) The Ombudsman shall settle the grievance of the
consumer within such time and in such manner as may be
specified by the State Commission.
(8) The provisions of subsections (5), (6) and (7)
shall be without prejudice to right which the consumer
may have apart from the rights conferred upon him by
those subsections.”
41. Section 50 of the Electricity Act, 2003 empowers the
State Commission to specify an Electricity Supply Code to
provide for recovery of electricity charges, intervals for
billing of electricity charges, measures for preventingPage 42
42
damage to electrical plant or electrical line or meter,
entry of distribution licensee etc., and it reads as
follows:
“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 nonpayment thereof,
restoration of supply of electricity, measures for
preventing tampering, distress or damage to electrical
plant or electrical line 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 plants or meter and such
other matters.”
From reading Section 50, it is clear that under the
Electricity Supply Code provisions are to be made for
recovery of electricity charges, billing of electricity
charges, disconnection etc. and measures for preventing
tampering, distress or damage to the electrical plant or
line or meter etc. But the said code need not provide
provisions relating to it do not relate to assessment of
charges for “unauthorized use of electricity” under Section
126 or action to be taken against those committing
'offences' under Sections 135 to 140 of the Electricity
Act, 2003.Page 43
43
42. Limitation under Section 173,174 and 175 of the
Electricity Act, 2003 is only qua the scope of Consumer
Protection Act, which read as under:
“ 173. Inconsistency in laws. 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 insofar as it is
inconsistent with any other provisions of the
Consumer Protection Act, 1986 (68 of 1986) or
the Atomic Energy Act, 1962 (33 of 1962) or
the Railways Act, 1989 (24 of 1989).”
174. Act to have overriding effect. 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 law other than
this Act.
175. Provisions of this Act to be in addition
to and not in derogation of other laws.
The provisions of this Act are in addition to
and not in derogation of any other law for
the time being in force.”
43. The inconsistency would arise only if the provisions of
the Electricity Act, 2003 run counter to the provisions of
the Consumer Protection Act, 1986 or if while enforcing
provision on one statute, provisions of other statute is
violated. We find that the entire object and reasons ofPage 44
44
Consumer Protection Act is not crossed over by the
Electricity Act, 2003 and whenever such situation arise the
Electricity Act, 2003 has left the option open for the
consumer to take recourse under other Laws.
44. The National Commission by its majority decision dated
10th April, 2008 referring to Section 3 of the Consumer
Protection Act, 1986 and Sections 173, 174 and 175 of the
Electricity Act, 2003 held as follows:
“A bare reading of the aforesaid Sections
makes it abundantly clear that –
(i)The intention of the Parliament is not to bar
the jurisdiction of the consumer fora under the CP
Act. The Electricity Act also impliedly does not
bar the jurisdiction of the consumer fora;
(ii)On the contrary, it saves the provisions of
Consumer Protection Act, 1986, Atomic Energy Act,
1962 and the Railways Act, 1989;
(iii)By nonobstante clause, it has been provided
that if anything in the Electricity Act, Rules or
Regulations is inconsistent with any provisions of
the Consumer Protection Act, it shall have no
effect; and
(iv)Provisions of the Electricity Act are in
addition to and not in derogation of any other law
for the time being in force. The act supplements
the existing redressal forum, namely, the Consumer
Fora.”Page 45
45
45. The National Commission though held that the intention
of the Parliament is not to bar the jurisdiction of the
Consumer Forum under the Consumer Protection Act and have
saved the provisions of the Consumer Protection Act,
failed to notice that by virtue of Section 3 of the
Consumer Protection Act, 1986 or Sections 173,174 and 175
of the Electricity Act, 2003, the Consumer Forum cannot
derive power to adjudicate a dispute in relation to
assessment made under Section 126 or offences under
Sections 135 to 140 of the Electricity Act, as the acts of
indulging in "unauthorized use of electricity" as defined
under Section 126 or committing offence under Sections 135
to 140 do not fall within the meaning of “complaint" as
defined under Section 2(1)(c) of the Consumer Protection
Act, 1986.
46. The acts of indulgence in "unauthorized use of
electricity" by a person, as defined in clause (b) of the
Explanation below Section 126 of the Electricity Act,2003
neither has any relationship with "unfair trade practice"
or "restrictive trade practice" or "deficiency in service"
nor does it amounts to hazardous services by the licensee.
Such acts of "unauthorized use of electricity" has nothing
Page 46
46
to do with charging price in excess of the price.
Therefore, acts of person in indulging in 'unauthorized use
of electricity', do not fall within the meaning of
"complaint", as we have noticed above and, therefore, the
"complaint" against assessment under Section 126 is not
maintainable before the Consumer Forum.
The Commission has
already noticed that the offences referred to in Sections
135 to 140 can be tried only by a Special Court constituted
under Section 153 of the Electricity Act, 2003.
In that
view of the matter also the complaint against any action
taken under Sections 135 to 140 of the Electricity Act,
2003 is not maintainable before the Consumer Forum.
47. In view of the observation made above, we hold that:
(i) In case of inconsistency between the Electricity
Act, 2003 and the Consumer Protection Act, 1986, the
provisions of Consumer Protection Act will prevail,
but
ipso facto it will not vest the Consumer Forum with the
power to redress any dispute with regard to the matters
which do not come within the meaning of “service” as
defined under Section 2(1)(o) or “complaint”as defined
under Section 2(1)(c) of the Consumer Protection Act,
1986.
Page 47
47
(ii) A “complaint” against the assessment made by
assessing officer under Section 126 or against the
offences committed under Sections 135 to 140 of the
Electricity Act, 2003 is not maintainable before a
Consumer Forum.
(iii) The Electricity Act, 2003 and the Consumer
Protection Act, 1986 runs parallel for giving redressal
to any person, who falls within the meaning of
"consumer" under Section 2(1)(d) of the Consumer
Protection Act, 1986 or the Central Government or the
State Government or association of consumers but it is
limited to the dispute relating to "unfair trade
practice" or a "restrictive trade practice adopted by
the service provider"; or “if the consumer suffers from
deficiency in service”; or “hazardous service”; or “the
service provider has charged a price in excess of the
price fixed by or under any law”.
48. For the reasons as mentioned above, we have no
hesitation in setting aside the orders passed by the
National Commission. They are accordingly set aside.
All
Page 48
48
the appeals filed by the service provider licensee are
allowed, however, no order as to costs.
………..……………………………………………..J.
(G.S. SINGHVI)
……………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 1, 2013.
Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5466 OF 2012
(arising out of SLP(C)No.35906 of 2011)
U.P. POWER CORPORATION LTD. & ORS. … APPELLANTS
Versus
ANIS AHMAD … RESPONDENT
With
C.A.No. 54675468 of 2012 (@ SLP(C) No. 1828418285 of
2008)
C.A.No. 5469 of 2012 (@ SLP(C) No.14306 of 2009)
C.A.No. 5470 of 2012 (@ SLP(C) No.33557 of 2011)
C.A.No. 5471 of 2012 ( @ SLP(C) No.33558 of 2011)
C.A.No. 5472 of 2012 ( @ SLP(C) No.33559 of 2011)
C.A.No. 5473 of 2012 ( @ SLP(C) No.33560 of 2011)
C.A.No. 5474 of 2012( @ SLP(C) No.33561 of 2011)
C.A.No. 5475 of 2012 ( @ SLP(C) No.33562 of 2011)
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
The questions involved in these appeals are;
a)
whether
complaints filed by the respondents before the ConsumerForum constituted under the Consumer Protection Act, 1986
were maintainable and;
b)
whether the Consumer Forum has
Page 2
2
jurisdiction to entertain a complaint filed by a consumer
or any person against the assessment made under Section 126
of the Electricity Act, 2003 or action taken under Sections
135 to 140 of the Electricity Act, 2003.
2. The National Consumers Disputes Redressal Commission,
New Delhi (hereinafter referred to as the 'National
Commission') by impugned majority judgment (of President
and one Member) dated 10th April, 2008 observed and held as
follows:
“x x x x x x x x
For the reasons stated below, in our
view, the aforesaid questions can be
answered as under:
(i)In case of final assessment order
passed under Section 126 of the
Electricity Act, if a consumer is
aggrieved, he can file complaint
under the Consumer Protection Act.
However, it is his option to file
complaint under the Consumer
Protection Act or to file Appeal
under Section 127 of the Electricity
Act.
(ii)Further, against the final order
passed by the Appellant Authority
under Section 127 of the Electricity
Act, no complaint can be entertained
by the Consumer Fora.
x x x x x x x x x x x x x x x x x x
x x x x x x x x x x x Page 3
3
In view of the aforesaid settled
law, the Consumer fora would have
jurisdiction to entertain complaint
against the final order passed by the
assessing officer under Section 126 of
the Electricity Act. Further, the
jurisdiction of the consumer fora is not
barred by any provisions of the
Electricity Act but the same is expressly
saved under Section 173 read with
Sections 174 and 175 of the Electricity
Act.
V. In the result, we hold as under:
(i)Section 3 of the Consumer Protection Act
and Section 175 of the Electricity Act,
provide that they are in addition and not in
derogation of rights under any other law for
the time being in force. Therefore, the
rights of the consumers under the Consumer
Protection Act are not affected by the
Electricity Act.
(ii)A bare reading of Sections 173, 174 and
175, makes it clear that the intent of the
Legislature is not to bar the jurisdiction of
the Consumer Fora constituted under the
Consumer Protection Act. The provisions of
the Electricity Act have overriding effect
qua provisions of any other law except that
of the Consumer Protection Act, 1986, the
Atomic Energy Act, 1962 and the Railways Act,
1989.
(iii)Section 42(8)of the Electricity Act
specifically provides that the remedies
conferred on consumer under subsections (5),
(6) and (7) of Section 42 are without
prejudice to the right which the consumer may
have apart from the rights conferred upon him
by those subsections.Page 4
4
(iv)Section 145 of the Electricity Act
specifically bars the jurisdiction of the
Civil Court to entertain any suit or
proceedings in respect of any matter which an
assessing officer referred to in Section 126
or an Appellate Authority referred to in
Section 127 of the Electricity Act or the
Adjudicating Officer appointed under the
Electricity Act, is empowered to determine.
Second part of Section 145
provides that no jurisdiction
shall be granted by any Court or
Authority in respect of any action
taken or to be taken in pursuance
of any power conferred by or under
the Act. For this purpose, if we
refer to Sections 173 and 174 and
apply the principle laid down
thereunder, it would mean that
qua the consumer fora there is
inconsistency and, therefore,
'other authority' would not
include consumer fora.
(v)Consumer of electrical energy provided by
the Electricity Board or other Private
Company, is a consumer as defined under
Section 2(1)(o)of the Consumer Protection Act
and a complaint alleging any deficiency on
the part of the Board or other private
company including any fault, imperfection,
shortcoming or inadequacy in quality, nature
and manner of performance which is required
to be maintained by or under any law or in
pursuance of any contract in relation to
service, is maintainable under the Consumer
Protection Act.Page 5
5
Against the Assessment Order
passed under Section 126 of the
Electricity Act, a consumer has
option either to file Appeal under
Section 127 of the Electricity Act
or to approach the Consumer Fora
by filing complaint. He has to
select either of the remedy.
However, before entertaining the
complaint, the Consumer Fora would
direct the Consumer to deposit an
amount equal to onethird of the
assessed amount with the licensee
[similar to Section 127(2) of the
Electricity Act].
(vi)Consumer Fora have no jurisdiction to
interfere with the initiation of criminal
proceedings or the final order passed by any
Special Court constituted under Section 153
or the civil liability determined under
Section 154 of the Electricity Act.”
3. The judicial Member having not agreed with the majority
finding, by his minority judgment dated 16th April, 2008
held as follows:
“14. In the result I hold as under:
(i)The provisions contained in Section 126
and 127 of Part XII of the Electricity Act,
2003 are not inconsistent with the provisions
of Consumer Protection Act, 1986 and
consequently there is no need to have resort
to the provisions of Section 173 and 174 of
the Electricity Act. The provisions of the
Consumer Protection Act and Electricity Act
can be given their full meaning and effect on
the ground (ii) Consumer fora constituted
under the Consumer Protection Act would have
jurisdiction to entertain only the complaints
filed by a consumer of electricity alleging
any defect or deficiency in the supply of
electricity or alleging adoption of anyPage 6
6
unfair trade practice by the supplier of
electricity. (iii) The consumer fora
established under the Consumer Protection Act
have no jurisdiction over the matter relating
to the assessment of charges for unauthorized
use of electricity, tampering of meters etc.
as also over the matters which fall under the
domain of special Courts constituted under
the Electricity Act, 2003.”
Following the aforesaid majority decision dated 10th
April, 2008, other cases were disposed of by the National
Commission in similar terms by impugned orders dated 13th
March, 2009, 29th March, 2011 and 7th July, 2011. By
impugned order dated 13th March, 2009, giving reference to
the aforesaid judgment dated 10th April, 2008, the matter
was remitted to the State Consumers Disputes Redressal
Commission (hereinafter referred to as the “State
Commission') for fresh decision.
4. For determination of the issue involved in these
appeals, it is necessary to discuss the relevant facts as
were pleaded by the parties before the Consumer Fora. The
same is mentioned hereunder:
5. Case of Anis Ahmad,
Anis Ahmed filed a complaint before the District
Consumer Protection Forum, Moradabad and claimed that he is
a consumer of electricity having connection No.104427 with
sanctioned load of 6.5 horse power. He alleged that thePage 7
7
authorities of the U.P. Power Corporation Ltd. prepared a
fictitious checking report dated 17th July, 2003 and falsely
implicated the complainant that he had used more than
sanctioned load of 10 H.P. in his factory and on the basis
of fictitious report a proceeding was initiated on 15th
April, 2004 followed by a bill No.5004369 dated 15th June,
2004 demanding a sum of Rs.2,11,451/. He prayed to direct
the appellant to correct the bill, withdraw the demand
notice and to pay the costs.
The appellant, U.P. State Corporation Ltd. filed the
objections regarding maintainability of the above said
petition. It was alleged that the complainant had
industrial connection which was disconnected earlier due to
the arrears of electricity dues. On a checking held on 17th
March, 2004 by SubDivisional OfficerII and Junior
Engineer, it was found that the L.T. line of three phases
passing from the other side of the premises of the
complainant was tapped with the cables attached with the
meter though they were disconnected earlier and the
complainant was using full 10 horse power load by
committing theft of electricity by byepassing the meter.
6. Case of Rakhi GhoshPage 8
8
Rakhi Ghosh claimed before the District Consumer
Disputes Redressal Forum, at Suri, Birbhum, West Bengal,
that he is a consumer of electricity having Connection
No.1/7884 with connected load of 20 H.P. He is running his
husking mill through connected load. He challenged the
bill for Rs.3,73,935/ raised by the West Bengal State
Electricity Board which was raised on the ground of
unauthorized extension of load of 8 H.P.
The appellant, West Bengal Electricity Board filed the
objections and raised the question of maintainability of
the application. It was stated that consumer was enjoying
Industrial connection and, therefore, does not fall within
the definition of "consumer" under the Consumer Protection
Act, 1986. It was further alleged that a police case being
No.19/2005 dated 26th February, 2005 has already been lodged
against Rakhi Ghosh for theft of electricity, therefore,
the consumer forum has no jurisdiction to entertain the
application.
7. Case of Prithvi Pal Singh
Prithvi Pal Singh filed a complaint before the District
Consumer Protection ForumII, Moradabad that he is a
consumer having connection No.0102/102474 with a sanctionedPage 9
9
load of 6 KW. It was alleged that the U.P. Power
Corporation Ltd. got his premises inspected by its team and
subsequently sent a notice to him on 1st December, 2005.
In the said notice it was alleged that the Enforcement team
on inspection made on 25th November, 2004 found that the
complainant was committing theft of electricity by making a
cut at the cable prior to meter and was using excess load.
He challenged the bill raised by the Corporation for
Rs.1,45,546/ and prayed for compensation of 10,000/ for
harassment.
The appellant, U.P. Power Corporation Ltd. filed
objections and raised the question of maintainability of
the petition. It was alleged that on checking, a cut mark
on three phase cable before the meter was detected by which
the complainant was committing theft of electricity of 13
KW by byepassing the meter. A bill for Rs. 1,99,805/ was
raised for theft of the electricity.
8. Case of Zulfikar
Zulfikar filed a complaint before the District Consumer
Protect ForumII, Moradabad, challenging a notice of
assessment. He stated that he is a consumer of commercialPage 10
10
electricity connection bearing No.3293/115275, the
sanctioned load of which is 3 KW. According to him on
receipt of notice he enquired about the same to the
appellant and came to know that on the basis of checking
report they have issued the bill. It was alleged that the
said checking report dated 22nd July, 2004 is false and
fabricated and no checking was done on the premises of the
complainant.
The appellant, U.P. Power Corporation Ltd. filed
objections raising the question of maintainability of the
complaint on the ground that the complainant Zulfikar had
commercial connection and hence does not fall within the
definition of ‘Consumer'. It was alleged that Enforcement
Squad and Assistant Engineer (Raids) on 22nd July, 2004
raided the premises of the complainant and during the
inspection found that 4 leads of the PVC cable of
electricity line leading to the meter had been cut and bye
passing the same, 5.76 KW load was being used by the
complainant illegally. They alleged theft of electricity
against the complainant for which an assessment notice was
issued. It was contended that theft of electricity does not
amount to deficiency in service, therefore, the ConsumerPage 11
11
Forum does not have the jurisdiction to entertain the
petition regarding the theft of the electricity under the
Consumer Protection Act.
9. Case of Shahzadey Alam
Shahzadey Alam filed a complaint case before the
District Consumer Protection ForumII, Moradabad
challenging the revenue assessment notice dated 9th
February, 2005 and requested to pay the compensation for
mental and physical agony. In his petition Shahzadey Alam
stated that he was consumer of electricity connection
No.0832782700, having a sanctioned load of 2 KW. On 20th
October, 1986, the officials of the U.P. Power Corporation
Ltd. disconnected the aforesaid electricity connection for
nonpayment of Suvidh Shulka. As the said electricity
connection was not required for the complainant, he did not
get the same restored. It is alleged that in spite of the
same, the complainant received a notice of assessment on
16th February, 2005.
The appellant, U.P. Power Corporation Ltd. on
appearance challenged the maintainability of the petitionPage 12
12
before the Consumer Forum. It was stated that the
complainant had himself admitted that his electricity
connection was disconnected on 20th October, 1986,
therefore, the petition was not maintainable. It was
further alleged that the complainant has a factory which
was raided and checked by the enforcement squad on 24th
January, 2005 at 4.10 hours and that it was found that the
complainant was committing theft of electricity by cutting
three phase cable going near his premises to the connection
No.2783/116398 of L.M.V.II category of Shri Javed and by
connecting it with 15 meters cable and using 4.70 K.W. load
and that no valid connection was found in the premises of
the complainant. Therefore, the complainant was asked to
deposit compounding fee of Rs.1,02,400/, but he has not
deposited it. On the basis of the report a notice was
issued to the complainant.
10. Case of Atul Kumar Gupta
Atul Kumar Gupta filed a complaint before the District
Consumer Protection ForumII, Moradabad, stating that he is
a consumer of electricity connection No.1034/117269, having
sanctioned load of 7.5 KW. It is alleged that the
electricity connection of the complainant has beenPage 13
13
disconnected on 29th February, 2003 on the ground of
outstanding electricity charges. Later on, the appellant
informed that a case in connection with checking is under
consideration and, therefore, the connection of the
complainant cannot be restored. The complainant alleged
that on 13th March, 2004 he received Revenue assessment
notice alongwith a checking report No.164 dated 1st March,
2004, though no checking was conducted at the premises of
the complainant on 1st March, 2004. He prayed for
cancellation of the assessment notice dated 10th March, 2004
and claimed compensation of Rs.5,000/ towards mental agony
and financial loss.
The appellant, U.P. Power Corporation Ltd., in their
reply raised the question of maintainability of the
petition in view of the fact that the complainant's
connection was disconnected on 28th February, 2003 and that
on inspection it was found that he was committing theft of
electricity by pilferage of electricity.
11. Case of Tauseef Ahmed
Tauseef Ahmed moved before the District Consumer
Protection ForumII, Moradabad and stated that he is a
consumer of electricity having connection No.115694 withPage 14
14
sanctioned load of 2 KW. He alleged that three employees
of the U.P. Power Corporation Ltd. visited his premises.
Out of them one represented himself to be the Junior
Engineer and demanded bribe of Rs.6,000/ illegally. As
he refused to pay the amount, a notice was served on him on
8
th September, 2004 along with a report dated 11th August,
2004 and a bill for Rs.1,94,382/ was raised. He
challenged the bill before the District Forum.
The U.P. Power Corporation Ltd. on appearance raised
the question of maintainability of the petition, one of the
grounds taken was that the complainant has already filed an
Original Suit No.391 of 2004 (Tauseef Ahmed vs. Uttar
Pradesh Power Corporation) for the same relief before the
Court of Civil Judge (Junior Division), Moradabad in which
summons has already been issued and the matter is pending.
It was alleged that the premises of the claimant was
checked on 11th August, 2004 in the presence of the
complainant and on checking it was found that 6.945 KW of
electricity had been illegally used instead of sanctioned
load of 2 KW. It was brought to the notice of the Forum
that use of excess load than the sanctioned electric load
for any other purpose for which connection has beenPage 15
15
granted, comes within the meaning of "pilferage of
electricity” as defined under U.P. Electricity (Consumers)
Regulation, 1984 for which notice of assessment was sent to
the complainant for recovery of sum of Rs.1,94,382/ which
on hearing the parties was finalized to be Rs.1,07,985/
vide order dated 1st October, 2004.
12. Case of Mohd. Yunus
Mohd. Yunus filed a complaint before the District
Consumer Protection ForumII, Moradabad claiming to be a
consumer of commercial electricity having connection
No.2701/098494, with sanctioned load of 5 KW. It was
alleged that on the basis of a checking report dated 17th
November, 2004 revenue assessment notice dated 1st February,
2005 was served on him. He sought for a copy of the report
and came to know that Junior Engineer had sent a false
checking report to the Divisional Office because of non
payment of monthly "Suvidha Sulk" by the complainant. He
challenged the revenue assessment notice dated 1st February,
2005 and claimed compensation of Rs.10,000/ for mental
suffering and financial loss.
The U.P. Power Corporation Ltd. on appearance raised
the question of maintainability of the petition. It wasPage 16
16
stated that the complainant is a consumer of L.M.V.II
category using electricity for commercial purposes,
therefore, he does not fall under the definition of
“consumer", as defined under Section 2(1)(d) of the
Consumer Protection Act. It was further alleged that on 17th
November, 2004 on checking of the premises of the
complainant by SubDivisional OfficerII, Moradabad and
Junior Engineer it was found that the complainant was using
the connection for industrial purposes under L.M.V.6
category without any prior consent of the U.P. Power
Corporation Ltd. He was using electrical energy for the
purposes other than the purpose for which it was
sanctioned. Therefore, the complainant was found to be
guilty of pilferage of electricity.
13. All the cases against the U.P. Power Corporation Ltd.
were filed before the District Consumer Protection Forum
II, Moradabad. The decision having given in favour of the
complainants, U.P. Power Corporation Ltd moved before the
State Consumer Disputes Redressal Commission, Uttar
Pradesh, Lucknow which by its common judgment dated 31st
January, 2007/Ist February, 2007 dismissed all the revision
petitions filed by the U.P. Power Corporation Ltd.Page 17
17
14. For the said reason all the cases in which the question
of jurisdiction of the Consumer Forum were raised, they
were heard and decided by the National Commission initially
by the impugned judgment dated 10th April, 2008/16th April,
2008, followed by other orders.
Submissions:
15. Learned counsel for the appellants contended as under:
(a) The proceedings under Sections126, 127, 135 etc.
of the Electricity Act, 2003 initiated by the service
providers are not related to deficiency of service in the
supply of electricity by the service providers under the
Electricity Act, 2003. Therefore, the complaints against
the proceedings under Section 126, 127, 135 etc. of the
Electricity Act, 2003 are not maintainable before the Forum
constituted under the Consumer Protection Act, 1986.
(b) In absence of any inconsistency between Sections
126, 127, 135 etc. of the Electricity Act, 2003 and the
provisions of Consumer Protection Act, 1986, Sections 173
and 174 of the Electricity Act, 2003 are not attracted.
16. Per contra, according to the respondents, a complaint
under the Consumer Protection Act, 1986 against the final
assessment order passed under Section 126 of thePage 18
18
Electricity Act, 2003 is maintainable before the Consumer
Forum.
17. To determine the question, it would be appropriate to
refer to the Statement of Objects and Reasons and relevant
provisions of the Consumer Protection Act, 1986, as quoted
below:
“STATEMENT OF OBJECTS AND REASONS
The Consumer Protection Bill, 1986
seeks to provide for better protection of
the interests of consumers and for the
purpose, to make provision for the
establishment of Consumer councils and other
authorities for the settlement of consumer
disputes and for matter connected therewith.
2. It seeks, inter alia, to promote and
protect the rights of consumers such as
(a)the right to be protected against marketing of
goods which are hazardous to life and property;
(b)the right to be informed about the quality,
quantity, potency, purity, standard and price of
goods to protect the consumer against unfair
trade practices;
(c)the right to be assured, wherever possible,
access to an authority of goods at competitive
prices;
(d)the right to be heard and to be assured that
consumers interests will receive due
consideration at appropriate forums;
(e)the right to seek redressal against unfair
trade practices or unscrupulous exploitation of
consumers; andPage 19
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(f)right to consumer education.
3. These objects are sought to be promoted
and protected by the Consumer Protection
Council to be established at the Central and
State level.
4. To provide speedy and simple redressal
to consumer disputes, a quasijudicial
machinery is sought to be setup at the
district, State and Central levels. These
quasijudicial bodies will observe the
principles of natural justice and have been
empowered to give relief of a specific
nature and to award, wherever appropriate,
compensation to consumers. Penalties for
noncompliance of the orders given by the
quasijudicial bodies have also been
provided.”
Scope of consumer complaint
18. “Consumer dispute" is defined under Section 2(e) of the
Consumer Protection Act,1986 in the following manner:
"2(e) “consumer dispute” means a dispute
where the person against whom a complaint
has been made, denies or disputes the
allegations contained in the complaint.”
Therefore, for a valid consumer dispute an assertion
and denial of a valid complaint is must.
19. “Complaint" is defined under Section 2(1) (c) of the
Consumer Protection Act,1986 in the following manner:
"2(1)(c) "complaint" means any allegation in
writing made by a complainant thatPage 20
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(i)an unfair trade practice or a restrictive
trade practice has been adopted by (any trader or
service provider ;
(ii)the goods bought by him or agreed to be
bought by him suffer from one or more defects;
(iii)the services hired or availed of or agreed
to be hired or availed of by him suffer from
deficiency in any respect;
(iv)a trader or the service provider, as the case
may be, has charged for the goods or for the
services mentioned in the complaint, a price in
excess of the price
(a)fixed by or under any law for the time being
in force;
(b)displayed on the goods or any package
containing such goods;
(c)displayed on the price list exhibited by him
by or under any law for the time being inforce;
(d)agreed between the parties;
(v) goods which will be hazardous to life
and safety when used, are beingoffered for
sale to the public
(a)in contravention of any standard relating to
safety of such goods as required to be complied
with, by or under any law for the time being in
force;
(b)if the trader could have known with due
diligence that the goods so offered are unsafe to
the public;
(vi) services which are hazardous or likely
to be hazardous to life and safety of the
public when used, are being offered by the
service provider which such person couldPage 21
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have known with due diligence to be
injurious to life and safety;
with a view to obtaining any relief provided
by or under this Act;"
Therefore, it is only in respect to aforementioned
aspects that a consumer complaint can be filed viz.
* Unfair trade practice or restrictive trade
practice.
* When there is a defective goods.
* Deficiency in services
* Hazardous goods
* Hazardous services
* a price in excess of the price fixed under any
law etc.
20. Deficiency of service is defined under Section 2(g) of
the Consumer Protection Act, 1986 in the following manner:
"2(g) “deficiency”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."Page 22
22
Therefore, it is clear that nature of transaction under
Section 126 does not come within the ambit of “complaint".
21. Section 2(1)(b) of the Consumer Protection Act, 1986
defines "complainant" as follows:
“2(1)(b) "complainant" means
(i)a consumer; or
(ii)any voluntary consumer association registered
under the Companies Act,1956 (1of 1956) or under
any other law for the time being in force; or
(iii)the Central Government or any State
Government; or
(iv)one or more consumers, where there are
numerous consumers having the same interest;
(v)in case of death of a consumer, his legal heir
or representative; who or which makes a
complaint;”
22. Whereas "consumer" is defined under Section 2(1)(d) of
the Consumer Protection Act, 1986 in the following manner:
"2(1)(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 or 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; orPage 23
23
(ii) [hires or avails of] any services 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 beneficiary of such services
other than the person who [hires or avails
of] the services for consideration paid or
promised, or partly paid and partly
promised, or under any system of deferred
payment, when such services are availed of
with the approval of the first mentioned
person; (but does not include a person who
avails of such services for any commercial
purpose;)
Explanation.For the purposes of this
clause, "commercial purpose" does not
include use by a person of goods bought and
used by him and services availed by him
exclusively for the purposes of earning his
livelihood by means of selfemployment;"
From a bare reading of the section aforesaid it is
clear that person(s) availing services for 'commercial
purpose' do not fall within the meaning of “consumer" and
cannot be a "complainant” for the purpose of filing a
"complaint" before the Consumer Forum.
23. “Service” as defined under Section 2(1)(o) of the
Consumer Protection Act, 1986 includes supply of electrical
or other energy and reads as follows:
“2(1)(o)"service" means service of any
description which is made available to
potential (users and includes, but not
limited to, the provision of) facilities in
connection with banking, financing
insurance, transport, processing, supply of
electrical or other energy, board orPage 24
24
lodging or both, (housing construction,)
entertainment, amusement or the purveying
of news or other information, but does not
include the rendering of any service free
of charge or under a contract of
personal
service.”
Therefore, a consumer within the meaning under Section
2(1) (d) may file a valid complaint in respect of supply
of electrical or other energy, if the complaint contains
allegation of unfair trade practice or restrictive trade
practice; or there is a defective goods; deficiency in
services; hazardous services or a price in excess of the
price fixed by or under any law etc.
Maintainability of complaint filed by the respondents.
24. From the facts narrated in the preceding paragraph it
is clear that Anis Ahmed, Rakhi Ghosh, Prithvi Pal Singh,
Zulfikar, Shahzadey Alam, Atul Kumar Gupta, Tauseef Ahmed
and Mohd. Yunus had electrical connections for
industrial/commercial purpose and, therefore, they do not
come within the meaning of "consumer" as defined under
Section 2(1)(d) of the Consumer Protection Act, 1986; they
cannot be treated as “complainant” nor they are entitled to
file any "complaint" before the Consumer Forum.
25. Admittedly, the complainants made their grievance
against final order of assessment passed under Section 126Page 25
25
of the Electricity Act, 2003. None of the respondents
alleged that the appellant(s) used unfair trade practice or
a restrictive trade practice or there is deficiency in
service(s) or hazardous service(s) or price fixed by the
appellant(s) is excess to the price fixed under any law
etc. In absence of any allegation as stipulated under
Section 2(1)(c) of the Consumer Protection Act,1986, their
complaints were not maintainable.
26. Therefore, we hold that the complaint filed by the
respondents were not maintainable before the Consumer
Forum.
Maintainability of a complaint before the Consumer Forum
against final order of assessment made under Section 126 of
the Electricity Act, 2003 or action taken under Sections
135 to 140 of the Electricity Act, 2003
27. Section 2(15) of the Electricity Act, 2003 defines
‘consumer’ in the following manner:
"2(15). "consumer" means any person who is
supplied with electricity for his own use by
a licensee or the Government or by any other
person engaged in the business of supplying
electricity to the public under this Act or
any other law for the time being in force
and includes any person whose premises are
for the time being connected for the purpose
of receiving electricity with the works of a
licensee, the Government or such other
person, as the case may be;”
28. From a bare reading of section aforesaid we find that
the "consumer" as defined under Section 2(15) includes anyPage 26
26
person who is supplied with electricity for his own use by
a licensee and also includes any person whose premises are
for the time being connected for the purpose of receiving
electricity with the works of a licensee, irrespective of
the fact whether such person is supplied with electricity
for his own use or not. Per contra under Section 2(1)(d)
of the Consumer Protection Act, 1986 those who were
supplied with electricity for commercial purpose and those
who do not avail services for consideration, irrespective
of electricity connection in their premises do not come
within the meaning of "consumer".
29. Section 126 of the Electricity Act, 2003 empowers the
assessing officer to make assessment in case of
“unauthorized use of electricity". It provides that if on
an inspection of any place or premises or after inspection
of the equipments, gadgets, machines, devices found
connected or used, or after inspection of records
maintained by any person, the assessing officer comes to
the conclusion that such person is indulging in
"unauthorized use of electricity", he shall assess the
electricity charges payable by such person or by any other
person benefitted by such use, the Section reads as under:Page 27
27
"126.Assessment. (1) If on an inspection of
any place or premises or after inspection of
the equipments, gadgets, machines, devices
found connected or used, or after inspection
of records maintained by any person, the
assessing officer comes to the conclusion
that such person is indulging in
unauthorized use of electricity, he shall
provisionally assess to the best of his
judgement the electricity charges payable by
such person or by any other person benefited
by such use.
(2) The order of provisional assessment
shall be served upon the person in
occupation or possession or in charge of the
place or premises in such manner as may be
prescribed.
(3) The person, on whom an order has been
served under subsection (2) shall be
entitled to file objections, if any, against
the provisional assessment before the
assessing officer, who shall, after
affording a reasonable opportunity of
hearing to such person, pass a final order
of assessment within thirty days from the
date of service of such order of provisional
assessment, of the electricity charges
payable by such person.
(4) Any person served with the order of
provisional assessment, may, accept such
assessment and deposit the assessed amount
with the licensee within seven days of
service of such provisional assessment order
upon him.
(5) If the assessing officer reaches to the
conclusion that unauthorized use of
electricity has taken place, the assessment
shall be made for the entire period during
which such unauthorized use of electricity
has taken place and if, however, the period
during which such unauthorized use of
electricity has taken place cannot be
ascertained, such period shall be limited toPage 28
28
a period of twelve months immediately
preceding the date of inspection.
(6) The assessment under this section shall
be made at a rate equal to (twice) the
tariff applicable for the relevant category
of services specified in subsection (5).
Explanation. For the purposes of this
section,
(a) “ assessing officer” means an
officer of a State Government or Board or
licensee, as the case may be, designated as
such by the State Government;
(b) “ unauthorised use of electricity”
means the usage of electricity –
(i)by any artificial means; or
(ii)by a means not authorised by the concerned
person or authority or licensee; or
(iii)through a tampered meter; or
(iv)for the purpose other than for which the
usage of electricity was authorized; or
(v)for the premises or areas other than those for
which the supply of electricity was authorized.”
30. Section 145 of the Electricity Act, 2003 bars the
jurisdiction of Civil Court to entertain any suit or
proceeding in respect of any matter which an assessing
officer referred to in Section 126. A separate provision
of appeal to the appellate authority has been prescribed
under Section 127 so that any person aggrieved by the final
order made under Section 126, may within thirty days of the
said order, prefer an appeal, which reads as under:Page 29
29
127.Appeal to appellate authority. (1) Any
person aggrieved by the final order made
under section 126 may, within thirty days of
the said order, prefer an appeal in such
form, verified in such manner and be
accompanied by such fee as may be specified
by the State Commission, to an appellate
authority as may be prescribed.
(2) No appeal against an order of assessment
under subsection (1)
shall be entertained unless an amount equal
to half of the assessed amount is deposited
in cash or by way of bank draft with the
licensee and documentary evidence of such
deposit has been enclosed along with the
appeal.
(3) The appellate authority referred to in
subsection (1) shall dispose of the appeal
after hearing the parties and pass
appropriate order and send copy of the order
to the assessing officer and the appellant.
(4) The order of the appellate authority
referred to in subsection (1) passed under
subsection (3) shall be final.
(5) No appeal shall lie to the appellate
authority referred to in sub –section (1)
against the final order made with the
consent of the parties.
(6) When a person defaults in making payment
of assessed amount, he, in addition to the
assessed amount, shall be liable to pay, on
the expiry of thirty days from the date of
order of assessment, an amount of interest
at the rate of sixteen per cent per annum
compounded every six months.”
Therefore, it is clear that after notice of provisional
assessment to the person indulged in unauthorized use of
electricity, the final decision by an assessing officer,Page 30
30
who is a public servant, on the assessment of "unauthorized
use of electricity”is a “Quasi Judicial” decision and does
not fall within the meaning of “consumer dispute” under
Section 2(1) (e) of the Consumer Protection Act, 1986.
31. Part XIV of the Electricity Act, 2003 relates to
“offences and penalties". If Section 126 is read with
Section 135 to 140 it will be clear that various acts of
"unauthorized use of electricity” constitute “offences”
mentioned under Sections 135 to 140 and attracts sentence
and fine as prescribed therein.
32. For proper appreciation, we refer to Section 135 which
relates to “theft of electricity". Interference with
meters or work of licensee, taping of electricity, making
or causing to be made any connection with overhead,
underground or under water lines or cables, or service
wires, or service facilities of a licensee; tampering of
meter, installation or use of tampered meter, loop
connection or any other device or method which interferes
with accurate or proper registration, calibration or
metering of electric current or otherwise results in a
manner whereby electricity is stolen or wasted; damaging or
destroys of an electrical meter, apparatus, equipment, usePage 31
31
of electricity through a tampered meter; use of electricity
for the purpose other than for which the usage of
electricity was authorized constitute "theft of
electricity" and constitute “offence" under Section 135 of
the Electricity Act, 2003, which reads as follows:
“135. Theft of electricity. (1) Whoever,
dishonestly,
(a)taps, makes or causes to be made any
connection with overhead, underground or under
water lines or cables, or service wires, or
service facilities of a licensee or supplier, as
the case may be; or
(b)tampers a meter, installs or uses a
tampered meter, current reversing
transformer, loop connection or any
other device or method which interferes
with accurate or proper registration,
calibration or metering of electric
current or otherwise results in a
manner whereby electricity is stolen or
wasted; or
(c) damages or destroys an electric
meter, apparatus, equipment, or wire or
causes or allows any of them to be so
damaged or destroyed as to interfere
with the proper or accurate metering of
electricity; or
(d) uses electricity through a tampered
meter; or
(e) uses electricity for the purpose
other than for which the usage of
electricity was authorised,
so as to abstract or consume or use
electricity shall be punishable withPage 32
32
imprisonment for a term which may extend to
three years or with fine or with both:
Provided that in a case where the load
abstracted, consumed, or used or attempted
abstraction or attempted consumption or
attempted use
(i) does not exceed 10 kilowatt, the
fine imposed on first conviction shall
not be less than three times the
financial gain on account of such theft
of electricity and in the event of
second or subsequent conviction the
fine imposed shall not be less than six
times the financial gain on account of
such theft of electricity;
(ii) exceeds 10 Kilowatt, the fine
imposed on first conviction shall not
be less than three times the financial
gain on account of such theft of
electricity and in the event of second
or subsequent conviction, the sentence
shall be imprisonment for a term not
less than six months, but which may
extend to five years and with fine not
less than six times the financial gain
on account of such theft of
electricity:
Provided further that in the event of
second and subsequent conviction of a person
where the load abstracted, consumed, or used
or attempted abstraction or attempted
consumption or attempted use exceeds 10
kilowatt, such person shall also be debarred
from getting any supply of electricity for a
period which shall not be less than three
months but may extend to two years and shall
also be debarred from getting supply of
electricity for that period from any other
source or generating station:
Provided also that if it is provided
that any artificial means or means not
authorised by the Board or licensee or
supplier, as the case may be, exist for thePage 33
33
abstraction, consumption or use of
electricity by the consumer, it shall be
presumed, until the contrary is proved, that
any abstraction, consumption or use of
electricity has been dishonestly caused by
such consumer.
1A) Without prejudice to the provisions
of this Act, the licensee or supplier, as
the case may be, may, upon detection of such
theft of electricity, immediately disconnect
the supply of electricity:
Provided that only such officer of the
licensee or supplier, as authorised for the
purpose by the Appropriate Commission or any
other officer of the licensee or supplier,
as the case may be, of the rank higher than
the rank so authorised shall disconnect the
supply line of electricity:
Provided further that such officer of
the licensee or supplier, as the case may
be, shall lodge a complaint in writing
relating to the commission of such offence
in police station having jurisdiction within
twenty four hour from the time of such
disconnect:
Provided also that the licensee or
supplier, as the case may be, on deposit or
payment of the assessed amount or
electricity charges in accordance with the
provisions of this Act, shall, without
prejudice to the obligation to lodge the
complaint as referred to in the second
proviso to this clause., restore the supply
line of electricity within fortyeight hours
of such deposit or payment;]
(2) Any officer of the licensee or supplier
as the case may be, authorised in this
behalf by the State Government may
(a) enter, inspect, break open and
search any place or premises in which
he has reason to believe that
electricity [has been or is being],
used unauthorisedly;Page 34
34
(b) search, seize and remove all such
devices, instruments, wires and any
other facilitator or article which [has
been or is being], used for
unauthorised use of electricity;
(c) examine or seize any books of
account or documents which in his
opinion shall be useful for or relevant
to, any proceedings in respect of the
offence under subsection (1) and allow
the person from whose custody such
books of account or documents are
seized to make copies thereof or take
extracts therefrom in his presence.
(3) The occupant of the place of search or
any person on his behalf shall remain
present during the search and a list of all
things seized in the course of such search
shall be prepared and delivered to such
occupant or person who shall sign the list:
Provided that no inspection, search and
seizure of any domestic places or domestic
premises shall be carried out between sunset
and sunrise except in the presence of an
adult male member occupying such premises.
(4) The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974), relating to
search and seizure shall apply, as far as
may be, to searches and seizure under this
Act.”
33. "Theft of electric lines and materials” constitute
offence under Section 136; whereas "receiving stolen
property" constitute offence under Section 137.
Interference with meters or works of licensee
unauthorisedly connecting any meter, indicator or apparatus
with any electric line; unauthorise reconnection of anyPage 35
35
meter, indicator or apparatus with electric line or other
works; laying or causing to be laid, or connecting any
works for the purpose of communicating with any other works
belonging to a licensee; or injuring any meter, indicator,
or apparatus belonging to a licensee maliciously etc.
constitute “offences” which attracts punishment under
Section 138 of the Electricity Act, 2003. Section 138 of
the Electricity Act reads as follows:
“138.Interference with meters or works of
licensee.(1) Whoever,
(a) unauthorisedly connects any meter,
indicator or apparatus with any
electric line through which electricity
is supplied by a licensee or
disconnects the same from any such
electric line; or
(b) unauthorisedly reconnects any
meter, indicator or apparatus with any
electric line or other works being the
property of a licensee when the said
electric line or other works has or
have been cut or disconnected; or
(c) lays or causes to be laid, or
connects up any works for the purpose
of communicating with any other works
belonging to a licensee; or
(d) maliciously injures any meter,
indicator, or apparatus belonging to a
licensee or willfully or fraudulently
alters the index of any such meter,
indicator or apparatus or prevents any
such meter, indicator or apparatus from
duly registering;Page 36
36
shall be punishable with imprisonment for a
term which may extend to three years, or
with fine which may extend to ten thousand
rupees, or with both, and, in the case of a
continuing offence, with a daily fine which
may extend to five hundred rupees; and if it
is proved that any means exist for making
such connection as is referred to in clause
(a) or such reconnection as is referred to
in clause (b), or such communication as is
referred to in clause (c), for causing such
alteration or prevention as is referred to
in clause (d), and that the meter, indicator
or apparatus is under the custody or control
of the consumer, whether it is his property
or not, it shall be presumed, until the
contrary is proved, that such connection,
reconnection, communication, alteration,
prevention or improper use, as the case may
be, has been knowingly and wilfully caused
by such consumer.”
34. Clause (b) of the Explanation below Section 126,
defines "unauthorized use of electricity" as the usage of
electricity by any artificial means; or by a means not
authorized by the concerned person or authority or
licensee; or through a tampered meter; or for the purpose
other than for which the usage of electricity was
authorized; or for the premises or areas other than those
for which the supply of electricity was authorized.
All the aforesaid acts constitute “offences” under
Section 135 to 140 of the Electricity Act, 2003, as noticed
above. Page 37
37
35. From a bare reading of Section 126 and Sections 135 to
140, it is clear that while acts of "unauthorized use of
electricity" attracts civil consequence of penal charge of
electricity, twice the rate of electricity, for which
assessment is made by assessing officer under Section 126;
the very same acts of "unauthorized use of electricity",
constitute "offences" under Section 135 to 140 for which
sentence and fine has been prescribed.
36. As per Section 153 of the Electricity Act, 2003,
Special Courts are to be constituted for speedy trial for
the offences referred to in Sections 135 to 140. The said
Section reads as follows:
“153. Constitution of Special Courts. (1)
The State Government may, for the purposes
of providing speedy trial of offences
referred to in [sections 135 to 140 and
section 150], by notification in the
Official Gazette, constitute as many Special
Courts as may be necessary for such area or
areas, as may be specified in the
notification.
(2) A Special Court shall consist of a
single Judge who shall be appointed by the
State Government with the concurrence of the
High Court.
(3) A person shall not be qualified for
appointment as a judge of a Special Court
unless he was, immediately before such
appointment, an Additional District and
Sessions Judge.Page 38
38
(4) Where the office of the Judge of a
Special Court is vacant, or such Judge is
absent from the ordinary place of sitting of
such Special Court, or he is incapacitated
by illness or otherwise for the performance
of his duties, any urgent business in the
Special Court shall be disposed of
(a) by a Judge, if any, exercising
jurisdiction in the Special Court;
(b) where there is no such other Judge
available, in accordance with the
direction of District and Sessions
Judge having jurisdiction over the
oridinary place of sitting of Special
Court, as notified under subsection
(1).”
37. The Civil Court's jurisdiction to consider a suit with
respect to the decision of assessing officer under Section
126, or decision of appellate authority under Section 127
is barred under Section 145 of the Electricity Act,2003 ,
which reads as under:
“145. Civil Court not to have jurisdiction.
No civil court shall have jurisdiction to
entertain any suit or proceeding in respect
of any matter which an assessing officer
referred to in Section 126 or an Appellate
Authority referred to in Section 127 or the
adjudicating officer appointed under this
Act is empowered by or under this Act to
determine and no injunction shall be granted
by any court or other authority in respect
of any action taken or to be taken in
pursuance of any power conferred by or under
this Act.”
38. The National Commission placed much reliance on sub
sections (5) and (6) of Section 42 of the Electricity Act,Page 39
39
2003 to derive power to adjudicate dispute arising out of
Section 126, but it failed to notice that Section 42 of the
Electricity Act, 2003 is not applicable in the case of
licensee who is a trader or supplier of electricity but it
relates to "distribution licensees".
39. Section 14 of the Electricity Act, 2003 empowers the
Appropriate Commission to grant a licence to any person to
"transmit electricity" or "to distribute electricity" or
"to undertake trading in electricity", the relevant
portion of Section 14 reads as follows:
“14. Grant of licence. The Appropriate
Commission may, on an application made to it
under Section 15, grant a licence to any
person –
(a)to transmit electricity as a transmission
licensee; or
(b)to distribute electricity as a distribution
licensee; or
(c)to undertake trading in electricity as an
electricity trader,
in any area as may be specified in
the licence.”
40. Amongst the three categories of licensee(s)
viz.“transmission licensee"; "distribution licensee" and
the "licensee to undertake trading in electricity", the
provisions with respect to "distribution licensees" have
been provided under Part VI of the Electricity Act, 2003
but not the two other licensees. Bare perusal of Part VIPage 40
40
and Section 42 of the Electricity Act, 2003 makes it
further clear. The same is quoted hereunder:
“Part VI
DISTRIBUTION OF ELECTRICITY
Provisions with respect to distribution licensees
42. Duties of distribution licensees and open access.
(1) It shall be the duty of a distribution licensee
to develop and maintain an efficient, coordinated and
economical distribution system in his area of supply
and to supply electricity in accordance with the
provisions contained in this Act.
(2) The State Commission shall introduce open access
in such phases and subject to such conditions,
(including the cross subsidies, and other operational
constraints) as may be specified within one year of
the appointed date by it and in specifying the extent
of open access in successive phases and in determining
the charges for wheeling, it shall have due regard to
all relevant factors including such cross subsidies,
and other operational constraints:
Provided that [such open access shall be allowed on
payment of a surcharge] in addition to the charges for
wheeling as may be determined by the State Commission:
Provided further that such surcharge shall be utilised
to meet the requirements of current level of cross
subsidy within the area of supply of the distribution
licensee:
Provided also that such surcharge and cross subsidies
shall be progressively reduced [***] in the manner as
may be specified by the State Commission:
Provided also that such surcharge shall not be
leviable in case open access is provided to a person
who has established a captive generating plant for
carrying the electricity to the destination of his own
use:
[Provided also that the State Commission shall, not
later than five years from the date of commencement of
the Electricity (Amendment) Act, 2003 (57 of 2003) by
regulations, provide such open access to all consumers
who require a supply of electricity where the maximum
power to be made available at any time exceeds one
megawatt.]Page 41
41
(3) Where any person, whose premises are situated
within the area of supply of a distribution licensee,
(not being a local authority engaged in the business
of distribution of electricity before the appointed
date) requires a supply of electricity from a
generating company or any licensee other than such
distribution licensee, such person may, by notice,
require the distribution licensee for wheeling such
electricity in accordance with regulations made by the
State Commission and the duties of the distribution
licensee with respect to such supply shall be of a
common carrier providing nondiscriminatory open
access.
(4) Where the State Commission permits a consumer or
class of consumers to receive supply of electricity
from a person other than the distribution licensee of
his area of supply, such consumer shall be liable to
pay an additional surcharge on the charges of
wheeling, as may be specified by the State Commission,
to meet the fixed cost of such distribution licensee
arising out of his obligation to supply.
(5) Every distribution licensee shall, within six
months from the appointed date or date of grant of
licence, whichever is earlier, establish a forum for
redressal of grievances of the consumers in accordance
with the guidelines as may be specified by the State
Commission.
(6) Any consumer, who is aggrieved by nonredressal of
his grievances under subsection (5), may make a
representation for the redressal of his grievance to
an authority to be known as Ombudsman to be appointed
or disignated by the State Commission.
(7) The Ombudsman shall settle the grievance of the
consumer within such time and in such manner as may be
specified by the State Commission.
(8) The provisions of subsections (5), (6) and (7)
shall be without prejudice to right which the consumer
may have apart from the rights conferred upon him by
those subsections.”
41. Section 50 of the Electricity Act, 2003 empowers the
State Commission to specify an Electricity Supply Code to
provide for recovery of electricity charges, intervals for
billing of electricity charges, measures for preventingPage 42
42
damage to electrical plant or electrical line or meter,
entry of distribution licensee etc., and it reads as
follows:
“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 nonpayment thereof,
restoration of supply of electricity, measures for
preventing tampering, distress or damage to electrical
plant or electrical line 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 plants or meter and such
other matters.”
From reading Section 50, it is clear that under the
Electricity Supply Code provisions are to be made for
recovery of electricity charges, billing of electricity
charges, disconnection etc. and measures for preventing
tampering, distress or damage to the electrical plant or
line or meter etc. But the said code need not provide
provisions relating to it do not relate to assessment of
charges for “unauthorized use of electricity” under Section
126 or action to be taken against those committing
'offences' under Sections 135 to 140 of the Electricity
Act, 2003.Page 43
43
42. Limitation under Section 173,174 and 175 of the
Electricity Act, 2003 is only qua the scope of Consumer
Protection Act, which read as under:
“ 173. Inconsistency in laws. 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 insofar as it is
inconsistent with any other provisions of the
Consumer Protection Act, 1986 (68 of 1986) or
the Atomic Energy Act, 1962 (33 of 1962) or
the Railways Act, 1989 (24 of 1989).”
174. Act to have overriding effect. 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 law other than
this Act.
175. Provisions of this Act to be in addition
to and not in derogation of other laws.
The provisions of this Act are in addition to
and not in derogation of any other law for
the time being in force.”
43. The inconsistency would arise only if the provisions of
the Electricity Act, 2003 run counter to the provisions of
the Consumer Protection Act, 1986 or if while enforcing
provision on one statute, provisions of other statute is
violated. We find that the entire object and reasons ofPage 44
44
Consumer Protection Act is not crossed over by the
Electricity Act, 2003 and whenever such situation arise the
Electricity Act, 2003 has left the option open for the
consumer to take recourse under other Laws.
44. The National Commission by its majority decision dated
10th April, 2008 referring to Section 3 of the Consumer
Protection Act, 1986 and Sections 173, 174 and 175 of the
Electricity Act, 2003 held as follows:
“A bare reading of the aforesaid Sections
makes it abundantly clear that –
(i)The intention of the Parliament is not to bar
the jurisdiction of the consumer fora under the CP
Act. The Electricity Act also impliedly does not
bar the jurisdiction of the consumer fora;
(ii)On the contrary, it saves the provisions of
Consumer Protection Act, 1986, Atomic Energy Act,
1962 and the Railways Act, 1989;
(iii)By nonobstante clause, it has been provided
that if anything in the Electricity Act, Rules or
Regulations is inconsistent with any provisions of
the Consumer Protection Act, it shall have no
effect; and
(iv)Provisions of the Electricity Act are in
addition to and not in derogation of any other law
for the time being in force. The act supplements
the existing redressal forum, namely, the Consumer
Fora.”Page 45
45
45. The National Commission though held that the intention
of the Parliament is not to bar the jurisdiction of the
Consumer Forum under the Consumer Protection Act and have
saved the provisions of the Consumer Protection Act,
failed to notice that by virtue of Section 3 of the
Consumer Protection Act, 1986 or Sections 173,174 and 175
of the Electricity Act, 2003, the Consumer Forum cannot
derive power to adjudicate a dispute in relation to
assessment made under Section 126 or offences under
Sections 135 to 140 of the Electricity Act, as the acts of
indulging in "unauthorized use of electricity" as defined
under Section 126 or committing offence under Sections 135
to 140 do not fall within the meaning of “complaint" as
defined under Section 2(1)(c) of the Consumer Protection
Act, 1986.
46. The acts of indulgence in "unauthorized use of
electricity" by a person, as defined in clause (b) of the
Explanation below Section 126 of the Electricity Act,2003
neither has any relationship with "unfair trade practice"
or "restrictive trade practice" or "deficiency in service"
nor does it amounts to hazardous services by the licensee.
Such acts of "unauthorized use of electricity" has nothing
Page 46
46
to do with charging price in excess of the price.
Therefore, acts of person in indulging in 'unauthorized use
of electricity', do not fall within the meaning of
"complaint", as we have noticed above and, therefore, the
"complaint" against assessment under Section 126 is not
maintainable before the Consumer Forum.
The Commission has
already noticed that the offences referred to in Sections
135 to 140 can be tried only by a Special Court constituted
under Section 153 of the Electricity Act, 2003.
In that
view of the matter also the complaint against any action
taken under Sections 135 to 140 of the Electricity Act,
2003 is not maintainable before the Consumer Forum.
47. In view of the observation made above, we hold that:
(i) In case of inconsistency between the Electricity
Act, 2003 and the Consumer Protection Act, 1986, the
provisions of Consumer Protection Act will prevail,
but
ipso facto it will not vest the Consumer Forum with the
power to redress any dispute with regard to the matters
which do not come within the meaning of “service” as
defined under Section 2(1)(o) or “complaint”as defined
under Section 2(1)(c) of the Consumer Protection Act,
1986.
Page 47
47
(ii) A “complaint” against the assessment made by
assessing officer under Section 126 or against the
offences committed under Sections 135 to 140 of the
Electricity Act, 2003 is not maintainable before a
Consumer Forum.
(iii) The Electricity Act, 2003 and the Consumer
Protection Act, 1986 runs parallel for giving redressal
to any person, who falls within the meaning of
"consumer" under Section 2(1)(d) of the Consumer
Protection Act, 1986 or the Central Government or the
State Government or association of consumers but it is
limited to the dispute relating to "unfair trade
practice" or a "restrictive trade practice adopted by
the service provider"; or “if the consumer suffers from
deficiency in service”; or “hazardous service”; or “the
service provider has charged a price in excess of the
price fixed by or under any law”.
48. For the reasons as mentioned above, we have no
hesitation in setting aside the orders passed by the
National Commission. They are accordingly set aside.
All
Page 48
48
the appeals filed by the service provider licensee are
allowed, however, no order as to costs.
………..……………………………………………..J.
(G.S. SINGHVI)
……………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 1, 2013.
