State Consumer Disputes Redressal Commission
The Assessing Officer-Ii vs M/S Mars Rubber Industries on 28 September, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- RP/109/12 (Arising out of Case No. CC/72/2011 of District Consumer Disputes Redressal Forum, South 24 Parganas) DATE OF FILING : 02. 07.12 DATE OF ORDER: 28.9.12 PETITIONERS : 1. The Assessing Officer-II, CESC Limited, 2. The Senior Deputy Manager (LCC), CESC Limited, both of 1, Taratala Road, Police Station- Taratalla, Kolkata- 700 088. 3. The District Engineer ( South), CESC Limited, South Regional Office, 6, Mandevile Gardens, Police Station- Gariahat, Kolkata- 700 019. OPPOSITE PARTY : 1. M/s Mars Rubber Industries, ( Represented through its partner Nazrina Khatoon) 25/E, Topsia Road, Police Station Tiljala, Kolkata- 700 019. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri Jagannath Bag. FOR THE PETITIONERS: Mr. Srijan Nayak, Mr.Alok Mukhopadhyay, Mr. Souvik Chatterjee, Advocates. FOR THE OPPOSITE PARTIES : Sudip Pandit, Advocate. Debasis Bhattacharya,Member.
This revision has been directed against the order dated 18.6.12 passed by the Ld. District Forum, South 24 Parganas in C.C. Case No. 72/11.
The impugned order has arisen out of a petition of the O.P.s/Revisionists against maintainability of the complaint case, in which it has been stated that COPRA has no jurisdiction to entertain any case in respect of any pilferage of electricity. Admittedly, the meter in question has been disconnected by the O.P.s u/s 135 (1) (a) of the Electricity Act and that the present case relates to theft of electricity energy. Moreover, the service in question relates to commercial purpose. So, the case should be dismissed for want of jurisdiction.
It is to be considered as to whether the impugned order dismissing the maintainability petition suffers from any kind of irregularity or illegality so as to make an interference thereto, or not.
Decision with reasons In support of the contention of the revisionists/O.P.s for non-maintainability of the case, the Ld. Advocate for the Revisionists has cited the interim order of the Honble Supreme Court in the case of U.P. Power Corporation Ltd. and Ors. Vs. Anis Ahmad in Special Leave Petition to Appeal (Civil) No. 35906/11, in which one of the questions requiring consideration of the Honble Court is whether the Consumer Forums established under the Consumer Protection Act, 1986 have the jurisdiction to entertain the complaints filed in the matter of theft of electricity and the orders passed by the competent authorities under different provisions of the Electricity Act , 2003 for recovery of the due of electricity. Since, a large number of similar petitions are pending before various consumer fora, the Honble Apex Court deems it proper to request the National Consumer Disputes Redressal Commission to defer consideration of similar issues raised in the pending matters. This would obviate the necessity of parties approaching the Honble Supreme Court.
Ld. Advocate for the Respondent/ Complainant has submitted that there is no illegality or irregularity in the passing of the said impugned order. This is simply a request by the Honble Supreme Court to the Honble National Commission to defer consideration of similar issues of theft of electricity and recovery of the due of electricity. This is not directorial in nature and does not fall within the category of Art. 141 of the Constitution. The only intention of the Revisionists/O.P.s is to drag and harass a bonafide consumer to deny his right. The purpose is not to cripple the proceedings. There is also no direction to the effect of not taking in the complaints being barred and/or deferred. He has also relied upon a decision of this Commissioin in RC/52/11 in a similar kind of case in which it was held that without filing W.V, evidence and cross-examination, it cannot be said that actually pilferage of electricity has been committed by the Complainant or not and hence the Ld. Forum below has correctly directed the OPs for filing W.V. He has also referred to a decision of the Honble Supreme Court in the case of the Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M. Lalitha (dead) through LRs. & Ors., in which it was held that as per Section 3 of the Consumer Protection Act, 1986, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force, and that having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional / extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar. Therein it has been approvingly quoted from the case of Fair Air Engineers Pvt. Ltd. And another Vs. N.K. Modi [(1996) 6 SCC 385], in which the Honble Supreme Court, after referring to the case of Lucknow Development Authority Vs. M. K. Gupta [(1994) 1 SCC 243], held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It went on to say that, It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. Thereby, as seen, Section 34 of the Arbitration Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are juridical authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these Forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act. Accordingly, it was held that having regard to all aspects, the Honble National Commission was right in holding that the view taken by the State Commission that the provisions under the Act relating to reference of disputes to arbitration shall prevail over the provisions of the 1986 Act is incorrect and untenable and while affirming the order of the Honble National Commission as to the maintainability of the disputes before the forum under the Act, it remanded the appeals to the State Commission for their adjudication on other issues on merits without going to the question of maintainability of the disputes before the forum under the 1986 Act.
There is a request by the Honble Supreme Court to the Honble National Commission to defer consideration of similar issues of theft of electricity and recovery of the due of electricity in pending matters to obviate the necessity of the parties approaching the Honble Supreme Court. There is no bar for due proceeding of the case up to the final stage of hearing till a decision is taken in such matters. It is also true that without evidence in the matter it cannot be said that actually pilferage of electricity has been committed by the Complainant or not. So, there is no bar for the Ld. District Forum to ask the O.P. to file questionnaire, if any, in default, to file evidence of the O.P, holding that the case is a maintainable one. Already, W.V. has been filed by the Revisionists/O.P.s and evidence also filed by the Respondent/Complainant in the case.We find no incongruity in such order impugned of the Ld. District Forum. Accordingly, there is no merit in the present revision.
In the result, the revision fails.
Hence, Ordered that the revision be and the same is dismissed on contest against the Respondent without cost. The impugned order is hereby affirmed.
Jagannath Bag.
Debasis Bhattacharya (Member) (Member)