State Consumer Disputes Redressal Commission
B.S.E.S. Yamuna Power Limited vs Savitri Devi on 31 October, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 31-10-2006 Appeal No.FA-198/2006 (Arising from the order dated 06-11-2005 passed by District Forum(East), Saini Enclave, Delhi in Complaint Case No.805/2005) B.S.E.S. Yamuna Power Limited, Appellant Shakti Kiran Building, Through Karkari Road, Mr. Avinash Kumar, Shahdara, Delhi-110092. Advocate. Versus Smt. Savitri Devi Respondent 25-J Extm. Laxmi Nagar, Through New No. C-25, Guru Ram Das Ngr, Mr. S.K. Tyagi, Laxmi Nagar, Advocate. Delhi-110092. CORAM : Justice J.D. Kapoor- President Mr. Mahesh Chandra - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Question of law and fact arising in this appeal is : Whether consumer beneficial jurisdiction of Consumer Forums/ Commissions created under the Consumer Protection Act, 1986, is extendable to entertain and decide the matters relating to disputes arising under the Electricity Act, 2003 and rules framed thereunder particularly the disputes relating to provisions of Section 135 of the Electricity Act that is, disputes involving theft or dishonest abstraction of energy (in short DAE). Section 135 of the Electricity Act provides as under:-
S.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
(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 electronic current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electronic 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 , so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
2. In this regard oft-quoted decision by the appellant is of Delhi High Court, in Delhi Vidyut Board Vs. Devendra Singh 130 (2006) DLT 156 wherein it was held that issue of theft/dishonest abstraction of electrical energy does not fall in any of the sub-clauses of sub-section ( c) of Section 2 of the Consumer Protection Act, 1986 defining the word complaint and as such is not a consumer dispute and therefore, no complaint lies under the Consumer Protection Act, 1986 before any Forum or State Commission or National Commission created under the Act. Order of the High Court is very brief and relevant paras are as under:-
3. It is trite that power of the District Forum , State Commission and National Commission in exercise of plenary jurisdiction (excluding appellate jurisdiction) would be in respect of complaints. Section 2(c ) of the Act defines the complaints as under:
(c ) complaint means any allegation in writing made by the complainant that
(i)an unfair trade practice or a restrictive trade practice has been adopted;
(ii) the goods brought by him or agreed to be brought 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 has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods;
(v)goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods.
With a view to obtaining any relief provided by or under this Act.
4.Need less to state that issue of theft/dishonest abstraction of electrical energy does not fall in any of the sub-clauses of Sub-Section (c ) of Section 2 of the Consumer Protection Act, 1986.
5. I need not elaborate on the issue. For the reason the State Commission, Delhi vide order dated 6-10-2003 disposing of a batch of appeals, lead appeal being NO. 116/2003 New Delhi Power Limited V. S.B. Roy has held that the dispute relating to theft/dishonest abstraction of electrical energy is not a consumer dispute and no complaint lies under the Act before any forum created under the Act. Additionally the National consumer Disputes Redressal Commission.
3. As is apparent reliance has also been placed upon the decision dated 06-10-2003 of State Commission in New Delhi Power Ltd. Vs. S.B. Roy in Appeal No. 116/2003 and that of National Commission in Revision Petition No. 128/2003 titled B.C. Jhulka Vs. D.V.B. decided on 09-02-2004.
4. As is apparent, National Commission, National Commission did not grant any relief to the consumer because of certain undisputed facts that showed that it was a case of DAE. As regards decision of this State Commission, the same had since been overruled by a subsequent decision in C.E.D.C. Vs. K.K. Kapoor in Appeal No. A-1054/2002 decided on 18-03-2005 which unfortunately was not referred by the counsel of the appellant before the High Court.
5. There is no gainsaying the fact, that if allegations of theft or dishonest abstraction of energy are proved, the consumer is not entitled for any kind of relief under the provisions of Consumer Protection Act.
6. In a recent decision of Honble Supreme court in Haryana Electricity Board Vs. Mam Chand II (2006) CLT 14 (SC), the same very question arose for determination, that is whether the consumer beneficial jurisdiction under the Consumer Protection Act, 1986 is extendable in respect of questions of fact and law arising under the provisions of Electricity Act, 2003 relating to unauthorized use of electricity, tampering of meters, interfering with calibration or metering of electric current resulting in theft of electricity under section 135 of the Electricity Act, 2003.
In para 4, the Supreme Court formulated the following question for determination:-
The key question which arises for determination in this civil appeal is : whether disputed and complicated questions of fact and law arising under the provisions of the Electricity Act, 2003 concerning assignment of unauthorized use of electricity, tampering of meters, interfering with calibration metering of electric current resulting in theft of electricity under Section 126 and Section 135 of the Electricity Act, 2003 could be decided in a summarily manner by the Consumer Forum or whether in such cases the complainant should be directed to approach the Competent Authorities under the said Electricity Act, 2003.
7. By way of introduction, the Supreme Court made the following observations as to the scope and object of Consumer Protection Act, 1986:-
This law has been enacted for the welfare of consumers and to protect them from their exploitation for which the said 1986 Act has made provisions for the establishment of Commissions for settlement of consumer disputes and matters connected therewith. The Commissions under the Act are quasi-judicial bodies to provide speedy and simple redressal to consumer disputes and for that purpose, they have been empowered to give relief of a specified nature and in an appropriate way, to award compensation.
8. Facts of Haryana Electricity Boards case, in brief, were that the respondent-consumer was having small electric connection. On 24-11-1994 the Junior Engineer of the Nigam on inspection found that some seals of meter were broken. Notice was issued calling upon the respondent to deposit Rs. 10,050/- as electricity bill as per the rules of the Nigam. However, respondent did not raise any dispute whatsoever and rather submitted an application to deposit the said amount in two instalments and subsequently filed the complaint before District Forum Ambala under Section 12 of the Consumer Protection Act. The District Forum allowed the complaint vide its order dated 07-07-1997 and directed the Nigam to refund the aforesaid amount with interest @ 18% per annum from the date of deposit and also Rs.
500/- by way of cost. Nigam preferred appeal before State commission, Haryana.
By a non-speaking order and without discussing the contentions of the Board, the State Commission dismissed the first appeal. Feeling aggrieved the Nigam preferred Revision Petition before National Commission. The Revision Petition was dismissed by the National Commission again by a non-speaking order. Consequently the Nigam went to the Supreme Court by way of instant Civil Appeal. On behalf of the Nigam following pleas were raised before Supreme Court:-
(i) That the assessment of the duty for unauthorized use of electricity, tampering of meters, distribution of meters and calibration of electric current are matters of technical nature which cannot be decided by the Consumer Forum.
(ii) That under the Electricity Act, 2003 the jurisdiction of the Civil Court is excluded. In this connection reliance was placed on Section 145 of the said 2003 Act under which the jurisdiction of the Civil Court to entertain suits in respect of matters falling under Section 126 is expressly barred. These are matters of assessment.
(iii) That the Electricity Act 2003 is a complete Code by itself and therefore in matter of assessment of electricity bills the Consumer Forum should have directed the respondent to move before the Competent Authority under the Electricity Act, 2003 read with rules framed thereunder either expressly or by incorporation.
9. At first instance, Supreme Court referred to the provisions of Section 2( c) , 2( c) (iv), 2(d), 2(g), 2(i) and 2(o) of Consumer Protection Act, 1986 defining the words complaint , consumer, deficiency in service, goods and service respectively and held that supply of electricity energy falls under definition of service as defined by section 2(o) of the Act, 1986 and sent back the case to the State Commission for deciding it on the facts of the case in the light of provisions of the Electricity Act, 2003 read with the rules framed thereunder (para 14 and 16 of the Judgment).
10. So much so the Honble Supreme Court did not express its opinion on the above-referred contentions of the Board and left it for consideration of the State Commission.
Thus, according to the Honble Supreme Court the State Commission, and for that purpose District forum have the jurisdiction under the Consumer Protection Act, 1986 to decide not only the question of facts but even the questions of law involved in the provisions of Electricity Act, 2003. Had it not been so, the Supreme Court would have allowed the appeal by upholding the contentions of the Haryana Electricity Board and set aside the order of the District Forum on the premise that the Consumer Forum/Commissions created under the Consumer Protection Act, 1986 have no jurisdiction to decide the disputed and complicated questions of fact and law arising under the provisions of Electricity Act, 2003 concerning assessment of bills and the allegations of unauthorized use of electricity, tampering of meters, interfering with calibration or metering of electric current resulting in theft of electricity as contemplated by Section 135 of the Electricity Act, 2003.
14. Since as per Article 141 of Constitution of India, law laid down and decided by Supreme Court is binding on all the Courts within the territory of India, we while acting upon the above referred decision of the Supreme Court, set to decide the other contentions of law and facts of the case in hand, there is no escape from the ineluctable conclusion that consumer beneficial jurisdiction of Consumer Forum/Commission created under the Consumer Protection Act, 1986 extends not only to the provisions of Electricity Act, 2003 including the provision of Section 135 involving the question of facts and law relating to allegation of unauthorized use of electricity, tampering of meters, interfering with calibration or metering electric current resulting in theft of electricity or dishonest abstraction of energy but also to every such law that relates to the services defined by Section 2(1)(o) of the consumer Protection Act, 1986 e.g. banking, financing, insurance, transport, processing, supply of electrical or other energy, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information etc (Justice J.D. Kapoor) President (Mahesh Chandra) Member jj