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Sunday, July 14, 2013

whether complaints filed by the respondents before the Consumer Forum constituted under the Consumer Protection Act, 1986 were maintainable and; b) whether the Consumer Forum has 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.= (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. (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.

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
Page 2
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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
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
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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
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
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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
19
(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
20
(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
21
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.

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