Case: U.P.Power Corporation Ltd.  Vs. Anis Ahmad

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 asx x x x x x xFor 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 xIn 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 sub-sections (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 sub-sections.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 there-under, 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.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 one- third 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.The judicial Member having not agreed with the majority finding, by his minority judgment dated 16th April, 2008 held asIn 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 any 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,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 theCommission) 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 the 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 Sub-Divisional Officer-II 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 bye-passing the meter.6. Case of Rakhi GhoshRakhiGhosh 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 SinghPrithviPal Singh filed a complaint before the District Consumer Protection Forum-II, Moradabad that he is a consumer having connection No.0102/102474 with a sanctioned 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 bye-passing the meter. A bill for Rs. 1,99,805/- was raised for theft of the electricity.8. Case of ZulfikarZulfikarfiled a complaint before the District Consumer Protect Forum- II, Moradabad, challenging a notice of assessment. He stated that he is a consumer of commercial 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 Consumer 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 AlamShahzadeyAlam filed a complaint case before the District Consumer Protection Forum-II, 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 non-payment 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 petition 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 GuptaAtulKumar Gupta filed a complaint before the District Consumer Protection Forum-II, 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 been 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 complainants 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 AhmedTauseefAhmed moved before the District Consumer Protection Forum-II, Moradabad and stated that he is a consumer of electricity having connection No.115694 with 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 8th 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 been granted, comes within the meaning of "pilferage ofas 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. YunusMohd. Yunus filed a complaint before the District Consumer Protection Forum-II, Moradabad claiming to be a consumer of commercial electricity having connection No.2701/0-98494, 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 was 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 ofas 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 Sub-Divisional Officer-II, 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.

Reasoning:
(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 ofas defined under Section 2(1)(o) oras defined under Section 2(1)(c) of the Consumer Protection Act, 1986.(ii) Aagainst 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"; orthe consumer suffers from deficiency in; orservice provider has charged a price in excess of the price fixed by or under any