THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.4388 OF 2005 O R D E R (Per the Hon’ble Sri Justice Ghulam Mohammed) Heard both the counsel. 2. The 2nd respondent herein is the consumer for the electricity service connection no.164748 of Visakhapatnam Distribution, situated in Suryabagh, Visakhapatnam. The 3rd petitioner – Assistant Divisional Engineer, conducted inspection of the service connection of the 2nd respondent on 18.3.2003 and it was found that the consumer is indulging in pilferage of energy. Based on the inspection, charge was leveled on the 2nd respondent – consumer, alleging that by suppressing the actual consumption to be recorded by the meter, by using the neutral arrangement at her will, the consumer is pilferaging the energy. Accordingly, a case for pilferage was booked and provisional assessment was made and the same was communicated to her by the 2nd petitioner – Divisional Engineer, and she was directed to pay a sum of Rs.4,000/- for 4 kilo watts ie., at the rate of Rs.1,000/- per kilo watt. Aggrieved by the same, the 2nd respondent – consumer, made a representation. The Divisional Engineer (Assessment), has passed the final assessment order dated 30.9.2003, after considering the representation of the 2nd respondent – consumer. Challenging the same, the consumer preferred appeal to the Superintending Engineer - Assessment circle, and the same is pending. During the pendency of appeal before the Superintending Engineer, the consumer filed complaint before the District Consumer Forum at Visakhapatnam in C.D.No.1382 of 2003. By order dated 29.11.2004, the Consumer Forum held that there is deficiency of service on the part of the petitioner – Eastern Power Distribution Company of A.P. Ltd., and it further held that collection of the electricity charges and penalty is not proper. Accordingly, the Consumer Forum directed the petitioners herein, to refund the amount collected from the complainant – 2nd respondent. Challenging the same the present writ petition is filed. 3. The learned Standing Counsel for the petitioners Sri O.Manohar Reddy, mainly contended that the petitioner who is a consumer of the electricity, is bound by the terms and conditions of electricity supply, which are statutory in nature. The cases of pilferage, have to be dealt with as per the condition no.39.7.3 of the Terms and Conditions of Supply and that Condition no.39.8, deals with the procedure contemplated regarding the issuance of final notice and the final assessment thereafter. Appeal remedy is provided against the final assessment order to the Superintending Engineer. He contended that the 2nd respondent has availed the appeal remedy and during the pendency of the appeal, preferred the consumer dispute. He contended that the Consumer Forum cannot decided the issue, in a summary manner, when the statute provides for an appellate authority. He further contended that when the appeal remedy is provided under the statute and having invoked the same, the 2nd respondent – consumer, cannot invoke the jurisdiction under the Consumer Protection Act, 1986 and more particularly, when a statutory procedure is prescribed under the Act. In support of this contention, he relied on the judgment of the Apex Court reported in DEPTT. OF TELECOMMUNICATIONS v. M.KRISHNAN[1]. With these contentions, he sought to set aside the impugned order and to allow the writ petition. 4. On the other hand, learned counsel appearing for the 2nd respondent – consumer, contended that against the order of the District Consumer Forum, appeal lies to the State Consumer Disputes Redressal Commission, Hyderabad and in the appeal the petitioners can raise all the disputed questions, which will be in a position to appreciate and decide the findings recorded by the lower Forum, based on the evidence and this Court, under Article 226 of the Constitution of India, cannot decide the disputes questions of fact. He stated that the lower Forum based on the evidence available on record, categorically found that there is no pilferage of energy and there is deficiency of service on the part of the writ petitioners and hence the collection of electricity charges and penalty, was held to be improper. He stated that such disputed questions cannot be decided under the writ jurisdiction. He further contended that when the 2nd respondent – consumer filed a petition in WVMP.No.2642/2006 and W.P.M.P.No.5874/2005 in W.P.No.4388/2005, this court while vacating the interim order dated 7.3.2005 held that “We have heard learned counsel for the applicant and perused the record including the affidavits filed by the parties in the main case and are prima facie, convinced that the main writ petition is liable to be dismissed on the ground that the petitioners have failed to avail statutory alternative remedy of appeal under Section 15 of the Consumer Protection Act, 1986. Even otherwise, we are satisfied that there is no legal justification for restraining the District Consumer Forum from entertain and deciding the execution petition filed by the applicant.” Relying on the observations of this court in the vacate petition, the leaned counsel contended that this Court has provisionally felt while disposing of the vacate petition that writ petition is not maintainable. Therefore, he contended that there are no merits in the writ petition and the same may be dismissed. 5. In view of the above rival contentions, the following point would arise for our consideration: Whether the 1st respondent – Consumer Forum, is justified in entertaining and disposing of the consumer dispute, when a statutory appeal is provided and more particularly when the petitioner has already invoked the appeal provision under the statute? 6. In order to consider the above issue, it is necessary to note that there is no dispute that the 2nd respondent – consumer of electricity, is bound by the Terms and Conditions of Supply of Electricity, which are issued under B.P.Ms.NBo.690 dated 17.9.1975 and which are statutory in nature. The allegation against the petitioner is that she committed pilferage of energy. Condition 39 of the Terms and Conditions of Supply of Electrical Energy by the Andhra Pradesh State Electricity Board, deals with malpractices including pilferage of energy. The relevant clauses under Condition 39, are extracted as under for better appreciation: 39.5 Where on the inspection of consumer’s installation or premises or on the basis of other information or data there is scope for suspecting that a consumer is guilty of “supply of electricity to any service, which is disconnected by the Board” or “ pilferage of energy” or “exceeding the contracted load without specific permission in L.T. services” the officer authorized in this behalf by the Board may without prejudice to Board’s other rights, cause the supply of electricity to such consumer to be forthwith disconnected without any notice and report the matter to the Final assessing authority. In the case of the malpractices other than the one mentioned above, supply shall be disconnected only in the event of failure on the part of the consumer to pay half of the estimated amount within the period stipulated in the provisional assessment notice. 39.7.3 Cases of pilferage of energy by Consumers H.T. Electricity. 39.8: Provisional assessment notice 39.9 Final assessment: 39.10 Appeal: 39.10.1 The consumer may prefer an appeal to the authority designated by the Board to dispose of the appeals, within thirty days of the date of receipt of the order of the final assessing authority or within such further time as the appellate authority may in its own discretion deem fit to allow. However, if the consumer makes payment of 50% of the amount demanded in the final assessment order, the connection shall be continued or restored, as the case may be. 7. From the above provisions it is clear that where on inspection of the consumer’s installation or premises, if it is found that the consumer is guilty of supply of electricity to any service, which is disconnected by the Board or pilferage of energy or exceeding the contracted load without specific permission, the supply of electricity to such consumer can be disconnected forthwith without any notice and the matter is to be reported to the final assessment authority. In the present case, the allegation against the petitioner is pilferage of energy. Therefore, as per the above provisions, she was issued provisional assessment notice and thereafter final assessment order was passed on 30.9.2003. As per Condition 39.10, remedy of appeal is provided against the final assessment order to the Superintending Engineer and the petitioner has availed the same. 8. The petitioner on the one hand, availed the appeal provision under the statute and on the other, simultaneously questioned the impugned notice on the ground of deficiency of service. This cannot be appreciated. 9. The facts in the decision of the Apex Court in DEPTT. OF TELECOMMUNICATIONS v. M.KRISHNAN (1 supra) reveal that dispute with regard to non-payment of telephone bill for the telephone connection provided to the respondent therein, who is the consumer and its consequent disconnection for non-payment, was raised before the District Consumer Disputes Redressal Forum, Kozhikode. By order dated 26.11.2001 the Consumer Forum allowed the compliant and directed for restoration of telephone connection and also awarded compensation to the complainant, to be paid by the Department. After being unsuccessfully in the writ petition and in the writ appeal, the Department carried the matter to the Apex Court. The Apex court while allowing the appeal filed by the Department, held that Telegraph Act is a special Act, hence its provision under Section 7-B regarding disputes in respect of telephone bills, would override the remedy under the Consumer Protection Act. It was further held that special law overrides the general law. Eventually the order passed by the Consumer Forum, which was confirmed by the High Court, was set aside and the parties were directed to invoke the provisions under the Telegraph Act, 1885. The relevant portion of the judgment of the Apex Court, is extracted as under for better appreciation: “5. In our opinion when there is a special remedy provided in Section 7-B of the Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. 6. Section 7-B of the Telegraph Act reads as under: “7-B Arbitration of disputes-(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section. (2) The award of the arbitrator appointed under sub- section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.” 7. Rule 413 of the Telephone Rules provides that all services relating to telephone are subject to the Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules. 8. It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach. In Thiruvalluvar Transport Corpn. v. Consumer Protection Council {(1995)2 SCC 479} it was held that the “National Commission has no jurisdiction to adjudicate upon laims for compensation arising out of motor vehicles accidents”. We agree with the view taken in the aforesaid judgment 9. In view of the above, we allow this appeal, set aside the impugned judgment and order of the High Court as well as the order of the District Consumer Forum dated 26.11.2001. Appeal allowed. No order as to the costs.” 10. From the above judgment of the Apex Court it is clear that when a remedy is provided under special law, the remedy under the general law, is by implication barred, since the special law overrides the general law. 11. At the cost of repetition, for the alleged pilferage of energy, the petitioner was issued provisional assessment order and the subsequent final assessment order was passed and the petitioner also availed the remedy and the while the appeal is pending, invoked the jurisdiction of Consumer Forum under the Consumer Protection Act, 1986. Since appeal remedy is provided under the statute, in view of the above judgment of the Apex Court, the jurisdiction of Consumer Forum, is by necessary implication, barred. 12. The other contention of the petitioner is that this court while vacating the interim stay, felt that the writ petition is not maintainable since appeal is provided under Section 15 of the Consumer Protection Act to challenge the order of the District Forum. 13. As already noted above, remedy is provided under the special enactment and the special law over rides the general law. While vacating the interim order, this court only provisionally felt that the writ petition is not maintainable and while making such an observation, the remedy under the special law and the judgment of the Apex Court (1 supra), were not adverted to and it was only a provisional view, while passing the interim orders. Such interim observations cannot be taken to be binding, while disposing of the writ petition finally in the light of the judgment of the Apex court and the relevant provisions under the statute. Hence, the contention in this regard, cannot be countenanced. 14. In view of the above, the impugned order of the District Consumer Forum, Visakhapatnam in C.D.No.1382/2003 dated 29.11.2004, is set aside and the writ petition is allowed. No order as to costs. -------------------------------------- GHULAM MOHAMMED,J ------------------------------------- G.CHANDRAIAH,J DATE:29.06.2010 AVS [1] (2009)8 SCC 481