Orissa High Court
Enzen Global Solution Pvt. Ltd vs President on 10 August, 2018
Author: S.N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P. (C) No.7693 of 2017
In the matter of application under Article 226 and 227 of the
Constitution of India.
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Enzen Global Solution Pvt. Ltd. ...... Petitioner
- Versus-
President, Dist. Consumer Disputes ...... Opposite Parties
Redressal Forum and others.
For Petitioner :Mr. Suresh Chandra Dash.
For Opposite Parties :M/s. Panchanan Panigrahi, H.K. Dash.
(for O.P. No.2)
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 10.08.2018
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S. N. Prasad, J. The petitioner has challenged the order dated 16.12.2016
passed by the District Consumer Disputes Redressal Forum, Dhenkanal in
C.C. Case No. 91 of 2015 under the provision of Section 12 of the
Consumer Protection Act, 1986 which has been allowed by the Forum vide
order passed therein on 16.12.2016. The aforesaid order has been
challenged merely on the ground of jurisdiction as has been decided by the
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Hon'ble Supreme Court in the case of U.P. Power Corporation Ltd. & Ors.
vrs. Anis Ahmed reported in AIR 2013 SC 2766.
Learned counsel for the opposite party no.2 has submitted
that the order passed by the District Consumer Forum has been challenged
directly before this Court in exercise of power conferred under Article 226 of
the Constitution of India, even though there is provision of appeal under
the Consumer Protection Act, 1986 as such the writ petition may not be
entertained. However, he has not disputed the ratio decided in the case of
U.P. Power Corporation (supra).
This Court has heard the learned counsel for the parties and
gone through the material available on record, from which this Court has
found that the petitioner, who is the franchisee of the licensee
unauthorisedly exercising the power of the licensee has initiated proceeding
under Section 126 of the Electricity Act, 2003 on detection of unauthorized
use of electricity and theft. The proceeding under Section 126 of the
Electricity Act, 2003 has been culminated in the final assessment order.
It is evident from the provision of Electricity Act, 2003 (in short
'Act 2003') that there is provision of appeal under the provision of Section
127 of the Act, 2003, but the opposite party no.2 instead of invoking the
appellate jurisdiction conferred under Section 127 of the Act, 2003 has
invoked the jurisdiction of District Consumer Disputes Redressal Forum as
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per the Consumer Protection Act, 1986 which has been registered as C.C.
Case No. 91 of 2015 and the point related to maintainability of the
dispute before the Forum has also been raised therein but the Forum has
not taken into consideration that when the final assessment has been done
in pursuance of the provision of Section 126 of the Act, 2003 against which
provision of appeal is there entertaining the dispute raised by the opposite
party under the provision of Consumer Protection Act, 1986, is not
sustainable.
It is not in dispute that the Electricity Act, 2003 is the self-
content Act having its own provision. One of the provisions is for making
provisional assessment vis-à-vis final assessment in case of unauthorized
use of electricity to be done under the provision of Section 126 of the
Electricity Act, 2003. The order passed under Section 126 stipulates the
provision for providing an opportunity of hearing against the order of
provisional assessment and after hearing the consumer, final assessment
order is to be made under the provision of Section 126(5) of the Electricity
Act, 2003.
In the instant case, final assessment order has been passed
under the provision of Section 126(5) of the Act, 2003.
It is further evident that the order passed in pursuance to the
provision of Section 126(5) of the Act, 2003, wherein provision of statutory
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appeal is there under the provision of Section 127 of the Electricity Act,
2003, meaning thereby, if any proceeding initiated under Section 126
of the Act, 2003, appeal will lie before the competent authority in terms of
the provision of Section 127 of the Act, 2003.
The opposite party no.2 instead of availing the statutory
remedy as provided under Section 127 of the Act, 2003 has invoked the
jurisdiction of District Consumer Disputes Redressal Forum as conferred
under the provision of Consumer Protection Act, 1986.
The dispute has been raised by the petitioner herein before the
Forum regarding the maintainability of the complaint on the ground that
against the order passed in terms of the Section 126 of the Electricity Act,
2003, appeal will lie and the Forum is having no jurisdiction but the Forum
without appreciating that aspect of the matter has proceeded and passed
the final order which is under challenge in this writ petition.
The issue with respect to the jurisdiction of the Forum or
Commission under the Consumer Protection Act, 1986 fell for consideration
before the Hon'ble Supreme Court in the case of U.P. Power Corporation
(supra) and this issue has been decided holding therein that the Electricity
Act, 2003 is a self-content Act, while the Consumer Protection Act, 1986 is
meant for altogether for different issue i.e. related to deficiency in service, if
found, Consumer Disputes Redressal Forum is to adjudicate the aforesaid
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issue. But the provision of 126 of the Electricity Act, 2003 related to
unauthorized use of electricity, wherein power has been conferred under
the provision of Section 126(1) of the Act, 2003 to make out search and
seizure of the premises, where the electricity connection has been provided
and thereby to assess provisionally the quantum of the electricity
consumed in money terms. The provision of Section 126 (2) of the
Electricity Act, 2003 provides for giving notice to the consumer to make an
objection against the provisional assessment as has been done under
Section 126(1) of the Act, 2003. Section 126(3) of the Act, 2003 stipulates
to provide opportunity of hearing to the consumer before taking final
decision regarding provisional assessment to assess it finally which is to be
done under the provision of Section 126(5) of the Act, 2003.
Thus, it is evident that the provision of Section 126 of the Act,
2003 is against unauthorized use of electricity and when it is against the
unauthorized use of electricity, it cannot be said to be deficiency in service
as has been stipulated in the Consumer Protection Act, 1986.
The Hon'ble Supreme Court in the case of U.P. Power
Corporation (supra) while dealing with the issue has laid down the ratio
holding therein that the Consumer Protection Act is having no jurisdiction,
so far as the issue related to Section 126 of the Act, 2003.
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In view of the aforesaid ratio laid down in the case of U.P.
Power Corporation (supra), which is squarely applicable on the facts and
circumstances involved in this case, according to my considered view, the
jurisdiction exercised by the District Consumer Disputes Redressal Forum,
Dhenkanal is having no jurisdiction.
Learned counsel for the opposite party no.2 has raised the
question regarding maintainability of the writ petition on the ground that
provision of be filed before the State Commission under the provision of
Consumer Protection Act, 1986. But according to my considered view,
when the question of jurisdiction has been raised and admittedly the
District Consumer Forum is having no jurisdiction on the basis of ratio laid
down in the case of U.P. Power Corporation (supra).
This Court, applying the ratio laid down in the case of
Whirlpool Corporation vrs. Registrar of Trademarks, Mumbai & ors.
reported in (1998) 8 SCC 1, is of the view that wherein the ratio has been
laid down that if an order is without jurisdiction or contrary to the
statutory rule or if there is infringement of any fundamental right,
availability of alternative remedy will not be a bar to entertain writ petition
in exercise of power under Article 226 of the Constitution of India.
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In view of the aforesaid settled position of law, the issue raised
regarding maintainability of the writ petition on the ground that
availability of alternative remedy is having no substance.
In the entirety of facts and circumstances, the impugned order
dated 16.12.2016 passed in the C.C. Case No. 91 of 2015 is held to be
without jurisdiction.
Accordingly, the order dated 16.12.2016 passed by the District
Consumer Disputes Redressal Forum, Dhenkanal in C.C. Case No. 91 of
2015 is quashed.
In the result, the writ petition is allowed.
However, it is up to the opposite party no.2 to avail the
statutory remedy as provided under Section 127 of the Electricity Act,
2003.
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S.N. Prasad, J.
Orissa High Court, Cuttack, Dated the 10th August, 2018/RRJena