State Consumer Disputes Redressal Commission
Wbsedcl vs Elahibox Mandal & Others on 10 March, 2010
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. : RC/01/10 DATE OF FILING : 06.01.2010 DATE OF FINAL ORDER: 10.03.2010 REVISIONAL APPLICANT West Bengal State Electricity Distribution Co. Ltd. (WBSEDCL) Through the Station Manager, Baharan Group Electric Supply, WBSEDCL, Murshidabad, Having its Corporate Office at Vidyut Bhavan, Salt Lake City, Kolkata-700 091. OPPOSITE PARTIES 1. Elahibox Mandal, S/o Late Akbar Mandal 2. Nahera Bibi, wife of Elahibox Mandal 3. Peerbox Mandal 4. Taleb Mandal 5. Aleb Mandal 6. Nasir Mandal 7. Basir Mandal - All sons of Elahi Box Mandal 8. Fatema Bibi, Wife of Kazem Sk. 9. Ramesa Bibi, Wife of Sukuruddin 10. Nurecha Bibi, Wife of Naser Sk. All of Vill. Jagannathpur, P.O. Jagannathpur, P.S. Hariharpara, Dist. Murshidabad. BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY MEMBER : MR. S.COARI FOR THE PETITIONER / APPELLANT : Mr. S.Nayak, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. B.Prasad, Ld. Advocate : O R D E R :
MR.
P.K.CHATTOPADHYAY, LD. MEMBER This Revision Petition is directed against the orders dt. 8.12.09 and 15.12.09 passed by the Murshidabad District Consumer Forum in Case No. CC/154/2009 in the matter of WBSEDCL Vs. Elahibox Mandal & nine others.
In the complaint case before the Ld. District Forum below subsequent to filing of the case by the complainants alleging deficiency of service in the matter of disconnection of power connection emanating from imposition and non-payment of huge amount of previous period electricity consumption bill, even after regular monthly bills were paid, the Ld. Forum in its impugned interim order dated 8.12.09 directed that the OP shall restore the Electric Service Connection No. 1/1000 to the complainants mill premises on payment of Rs. 10,000.00 provisionally by the complainant subject to future adjustment. Compliance should be reported by the complainant by 15.12.2009.
On such deposit by the complainant, the OP shall restore connection within 7 days thereof. Let a copy of this order be handed over to the complainant free of cost for communication to the OP and also in another impugned order dt. 15.12.09 the Ld. Forum in terms of a verified petition filed by the Complainant No. 4, Taleb Mandal, stating refusal of acceptance of Rs. 10,000.00 by WBSEDCL as per Ld. Forums order dt. 8.12.09, directed the OP to appear in person to show cause within 10 days of receipt of this order as to why warrant of arrest against him shall not be issued for non-compliance with the order of the Forum. However, if he complies with the order in the mean time he shall be exempted from personal appearance.
This Revision Application has been filed against the said impugned orders dt. 8.12.09 and 15.12.09 on the ground that firstly, there is no provision for passing any interim order where the complainants had failed to take recourse to action U/S 126 and 127 of Electricity Act, 2003, as amended, and also that the said orders were passed without any application of judicial mind, which were beyond the provisions of law. Accordingly, the Revision Applicant prayed for setting aside of the said impugned orders and for passing orders as deemed necessary.
The complainants in the Forum and the Ops to the Revision Application namely Elahibox Mandal, S/o. Late Akbar Mandal, and nine others entered appearance, when the matter was heard from respective sides with filing of BNA on part of the Revisional Applicant. In course of hearing the Revisional Applicant also dwelt upon the technicality that the complainants in the Forum were not lawful consumers under WBSEDCL, when the power line was given in the name of the father of the complainant no. 1, who was since deceased, and thereafter the complainants did not take lawful steps for incorporating their names as consumers before WBSEDCL. The Revision Applicant relied on following citations :-
1. III (2008) CPJ 322 (NC) - Jharkhand State Electricity Bokard & another Vs. Anwar Ali
2. SC/FA/291/2009 - CESC Vs. Qurisha Banoo
3. 2009 CTJ 1062 (S.C.) - General Manager, Telecom Vs. M.Krishnan & Another
4. (2006) CLT 14 (S.C.) - Haryana State Electricity Board Vs. Mam Chand The Ops to the Revisional Application namely Elahibox Mandal and others, contended inter alia that in terms of provision 17 of Consumer Protection Regulations 2005 as was published under number GSR 342(E) dt. 31.5.2005, any ex parte interim order issued by the Consumer Forum shall stand vacated after 45 days if in the meanwhile the objection to the interim order are not heard and disposed of and the same not having been done the present Revisional Application before this Commission was flawed and deserves to be dismissed.
DISCUSSION A. Referring to contention of the Ops to the Revisional Application regarding application of provision 17 of Regulation, we do not find that the same is in any way restrictive to this Revisional Application or that the same takes away the right of the Revisional Applicant in moving this Commission in the matter of a remedy sought for, emanating from an order from the Ld. Forum below. In that view, the contention of the Ops is rejected.
B. Referring to the impugned order of the Ld. Forum below we find that in S.C. Case No. FA/291/2009 CESC Ltd. Vs. Quraisha Banoo, this Commission dealt in detail on merit, justification and quantum of any interim order of a Consumer Forum, where the service provider had already proceeded in a case of theft of electricity in terms of provisions of Electricity Act, 2003 as amended, and also in terms of regulations therefor as were issued by West Bengal Electricity Regularity Commission.
In that matter, this Commission framed the issues involved and observed thereon as under:-
A. There are three moot questions in the matter of this Appeal which are as under :-
a) Whether the Ld. District Forum below erred in giving direction to the Appellants/Ops in the mode and manner as it did.
b) Whether this Commission is barred in disposing of the matter of complaint under provisions of Consumer Protection Act, 1986 as amended, in the light of express provisions U/S 135 of the Electricity Act, 2003 as amended in 2007.
c) In the light of pronouncement of the Honble Apex Court as in the cases of Mum Chand and M.Krishnan can this Commission offer any relief to a consumer under the Consumer Protection Act, 1986 intended to be a benevolent act to subserve the interests of consumers at large.
B. On the two issues at (a) & (b) above we would refer to judgement and order passed in II 2008 CPJ 284 (NC) Jharkand State Electricity Board Vs. Anwar Ali where the Honble Commission held inter alia as under :-
(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 injunction 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 thereunder, 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 Sec. 153 or the civil liability determined under Section 154 of the Electricity Act.
In the facts of this Appeal and in line with dispensation of WBERC Regulations we hold similar view and determine that at the first place the complainant had the option to deposit 50% of the assessed claim to the utility and then file the complaint before the Ld. Forum below or could deposit 50% of the assessed amount to the utility and then prefer Appeal to the appellate authority as provided under WBERC Stipulations 2007 issued under provisions of Electricity Act 2003 as amended. In the instant case, the same having not been complied with the complaint itself was to that extent flawed before the Ld. Forum below. In this regard, we also rely on citations in Honble High Court, Calcutta in FMAT No. 592 of 2009 and FMAT No. 927 of 2009.
C. Referring to the foregoing judgement of Honble National Commission as quoted hereinbefore we quote further excerpts therefrom which are as under:-
35. In 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.
C. In that view Section 42(8) of the Electricity Act specifically provides the remedies conferred on consumers U/Ss 50, (6) and (7) of Section 42 read with Regulation No. 4.6.1 of WBERC of 2007 and thus the impugned interim order is deemed to be bad in law and not sustainable.
O R D E R The impugned interim orders of the Ld. Forum below is set aside being not sustainable. The Revision Application is allowed on contest without cost.
MEMBER MEMBER