IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.25466 of 2008 Between: Central Power Distribution Company of A.P. Ltd. Rep. by Asst. Divisional Engineer Operation, South Circle, Distribution - II, Charminar, Hyderabad. ..... PETITIONER AND 1 A.P. State Consumer Disputes Redressal Commission Rep. by its Registrar Hyderabad. 2 Faruqui Multi Speciality Hospital Rep. by its Partner, Dr. Mrs. Naveede Siraj, R/o. 23-1-987/ 1, Moghulpura, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ of mandamus or any other appropriate writ or direction declaring the order of the 1st respondent passed in C.D. No.70 of 2002 dated 07-11-2003 as illegal, arbitrary and one without jurisdiction. Counsel for the Petitioner:MR.O.MANOHER REDDY Counsel for the Respondent No.: GP FOR CIVIL SUPPLIES The Court made the following: Form-NIC-OGS/WP{KBJ} THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.25466 of 2008 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) The 2nd respondent Hospital was allegedly found pilfering energy costing Rs.10,76,175/- in respect of one service connection and Rs.9,72,328/- in respect of another service connection, and accordingly, the petitioner-Central Power Distribution Company issued provisional assessment notice, calling upon the 2nd respondent to submit explanation. It is stated that without submitting any explanation, the 2nd respondent filed W.P.14275/2002, questioning the said provisionally estimated value of the energy pilferage notices as illegal, and the said writ petition was dismissed by order dated 05.08.2002 on the ground that the supply of electricity is a matter of contract between the supplying company and the 2nd respondent and if there is any dispute regarding the terms of supply, the remedy available to the 2nd respondent is elsewhere, but not under Article 226 of the Constitution of India. This Court further held that under Article-226, this Court would not normally adjudicate the disputes arising out of the contractual obligations, as the issues involve an enquiry into the facts, which necessarily requires recording of evidence. It is stated that thereafter, the 2nd respondent filed a complaint in C.D.No.70/2002 on the file of the A.P.State Consumer Disputes Redressal Commission, Hyderabad. The State Forum, without deciding the issue as to whether there is any deficiency of service and whether the State Forum is entitled to resolve the dispute of the alleged deficiency of service, simply disposed of the C.D. directing the writ petitioner-Central Power Distribution Company to appoint an Arbitrator who will go into the allegations as well as counter allegations of both parties and decide the correctness of the provisional assessment, and till the dispute is resolved by the Arbitrator, a direction was given to continue the supply on payment of the regular monthly bills without insisting upon payment of the arrears. The said order of the State Forum has been questioned by the Central Power Distribution Company, contending that the Arbitrator cannot be appointed by the State Forum in the absence of any agreement. It is further stated that there is a machinery under the Electricity Act and the terms and conditions of the Supply and without even submitting the explanation and even without waiting for final assessment order, the 2nd respondent has resorted to questioning the provisional assessment notices by way of filing a writ petition, which was rightly dismissed, and thereafter, obtained the relief before the State Consumer Forum. It is further stated that the State Consumer Forum has no jurisdiction to entertain the said dispute, more so, when the remedy is available under the terms of the supply. The learned counsel for the 2nd respondent submits that under Sec.89 of C.P.C, the Court is entitled to refer the matter to be resolved outside the Court either by way of arbitration, conciliation or through the Lok Adalat or mediation and accordingly, submitted that it cannot be said that the State Commission has no power to refer the dispute for the arbitration. On the other hand, the learned counsel appearing for the petitioner submits that under Sec.13(4) read with Sec.18 of the Consumer Protection Act, 1986, the District Forum, so also the State Commission shall have the powers, as are vested in the Civil Court under the Code of Civil Procedure while trying a suit in respect of the following matters:- 1) The summoning and enforcing attendance of any defendant or witness and examining the witness on oath; 2) The discovery and production of any document or other material object producible as evidence; 3) The reception of evidence on affidavits; 4) The requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; 5) Issue of any commission for the examination of any witness; and 6) Any other matter, which may be prescribed. It is evident that there is no provision to make a reference of any dispute by way of arbitration. Therefore, we are unable to accept the contention of the learned counsel appearing for the 2nd respondent that the State Commission has got a power to refer the dispute to the Arbitrator under Sec.89 of C.P.C. Except the powers of the Civil Court, in so far as, the matters as mentioned in Sec.13(4) of the Consumer Protection Act, 1986, the State Commission has no other powers as are vested in a Civil Court under the Code of Civil Procedure Code. As the issue as to whether there is deficiency of service or not was not at all decided by the State Commission, we are of the opinion that the State Commission cannot refer the matter to the Arbitrator. Accordingly, we set aside the impugned order and the matter is remitted back to the State Commission to hear both the parties and decide as to whether the C.D. is maintainable or not, as a preliminary issue, and if the State Commission holds that the C.D. is maintainable, then it is open for the State Commission to decide the other questions. The Writ Petition is, accordingly, allowed. No order as to costs. _____________________ V.ESWARAIAH,J _______________________________ VILAS V. AFZULPURKAR,J Dated: 11.02.2009 Dsr .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 A.P. State Consumer Disputes Redressal Commission Rep. by its Registrar Hyderabad. 2 2. 2CCs to 3. 2CD copies