State Consumer Disputes Redressal Commission
Punjab State Electricity Board vs Nirmal Singh on 16 September, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL NO. 1193 OF 2009
Date of Institution: 24.08.2009
Date of Decision: 16.09.2013
1. Punjab State Electricity Board, The Mall Patiala through its
Chairman/Secretary.
2. Assistant Executive Engineer/Sub Divisional Officer, PSEB,
Operational Sub Division (Rural) Bassi Pathana, District
Fatehgarh Sahib.
3. Executive Engineer/XEN, PSEB (Rural) Sub Division, Bassi
Pathana, District Fatehgarh Sahib.
.....Appellants/Opposite Parties
Versus
Nirmal Singh son of Sh.Bhagat Singh resident of Village Kalondi,
Tehsil Bassi Pathana District Fatehgarh Sahib (Punjab).
.....Respondent/Complainant
First Appeal against the order
dated 25.5.2009 passed by the
District Consumer Disputes
Redressal Forum, Fatehgarh Sahib.
Quorum:
Hon'ble Mr. Justice Gurdev Singh, President
Sh. Baldev Singh Sekhon, Member
Smt. Surinder Pal Kaur, Member Present:
For the appellants : Sh.Mrigank Sharma, Advocate for Dr.P.K.Sekhon, Advocate For the respondent : Ex-parte BALDEV SINGH SEKHON, MEMBER This appeal has been filed by the appellants/opposite parties, against the order dated 25.5.2009, passed by the District Consumer Disputes Redressal Forum, Fatehgarh Sahib (in short "District First Appeal No. 1193 of 2009 2 Forum"), vide which the complaint filed by the respondent/complainant was accepted and the notice dated 10.9.2008 was quashed and the one third of the amount, which was already deposited by the complainant, was ordered to be refunded.
2. The facts, as stated in the complaint, are that the complainant had an electric connection, bearing account No.KP34/658 for domestic purposes. He had been making the payment of the bills against the said connection regularly. He received a letter bearing No.1245 dated 26.8.2008 from the opposite parties for the recovery of Rs.73,006/- in respect of alleged checking done on 22.8.2008 on the ground that he was caught read handed committing theft of electricity. The complaint was filed by him before the District Forum against the said demand in which he was directed on 8.9.2008 to file objections within 15 days from the receipt of copy of the order and the opposite parties were directed to give opportunity of personal hearing to him and pass a final order. It was further directed that in case the complainant was not satisfied with the final order, he could file the fresh complaint within one month of the passing of the said final order. However, the opposite parties did not call him for personal hearing despite filing objections on 10.9.2008. Therefore, he filed the present complaint for setting aside the impugned demand.
3. Upon notice, the opposite parties filed joint written reply alleging therein that the District Forum had no jurisdiction to try the complaint. On merits, it was pleaded that the electric connection in dispute, which had a sanctioned load of 3.10 KW, was checked by First Appeal No. 1193 of 2009 3 their officials and it was found that the electricity was running through separate PVC wire while the meter was not showing any consumption. A case of theft of electricity was declared and notice raising a demand of Rs.73,006/- was issued accordingly. After the directions of the District Forum dated 8.9.2008, the objections of the complainant were received. He was afforded an opportunity of hearing the objections were found untenable and the final order of assessment was issued which was legal.
4. After having gone through the evidence produced by the parties in support of their respective averments and hearing learned counsel on their behalf, the complaint was accepted by the District Forum, vide aforesaid order.
5. We have carefully gone through the records of the case.
6. According to Section 126 of the Electricity Act, 2003, if on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he is required to provisionally assess to the best of his judgment the electricity charges payable by such person. As per the explanation appended to that Section, unauthorized use of electricity means the usage of electricity:-
"(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or
authority or licensee; or
(iii) through a tampered meter; or
First Appeal No. 1193 of 2009 4
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorised."
7. It is the specific averment of the opposite parties that the electric connection, bearing account No.KP34/658, was checked by their officials and it was found that the electricity was running through separate direct PVC wire while the meter was not showing any consumption and a case of theft of electricity was declared. Thereafter, the impugned notice was issued. That clearly shows that the opposite parties proceeded under Section 126 of the Electricity Act, 2003 for making the assessment.
8. It has recently been held by the Hon'ble Supreme Court in U.P. POWER CORPORATION LTD. & ORS. v. ANIS AHMAD [2013(13) C.L.T. 226] that 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"; or "if the consumer suffers from deficiency in service"; or "hazardous service"; or "the service provider has charged a price in excess of the price fixed by or under any law". After having dealt in detail about the First Appeal No. 1193 of 2009 5 different provisions of the Electricity Act, 2003 and the Consumer Protection Act, 1986, the Hon'ble Supreme Court held as under:-
"(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 of "service" as defined under Section 2(1)(o) or "complaint" as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.
(ii) A "complaint" against 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."
9. In view of the law so laid down by the Hon'ble Supreme Court, the complainant cannot be held to be a "consumer" and the complaint filed by him does not fall within the purview of the Consumer Protection Act, 1986. The same could not have been entertained by the District Forum and was to be dismissed for want of jurisdiction.
10. Accordingly, the appeal filed by the appellants/opposite parties is accepted, the order of the District Forum, accepting the complaint, is set aside and the complaint filed by the complainant is dismissed without prejudice to the rights of the complainant to seek his appropriate remedy before the proper authority under the Electricity Act, 2003. The time spent by him before the District Forum and in First Appeal No. 1193 of 2009 6 this Commission while prosecuting the complaint and the appeal shall be excluded by that authority while computing the period of limitation for filing the appeal etc.
11. The appellants/opposite parties deposited an amount of Rs.12,168/- with this Commission at the time of filing of the appeal. This amount, alongwith interest, which has accrued thereon, if any, be remitted by the Registry to the appellants/opposite parties, in equal shares, by way of a crossed cheque/demand draft, after expiry of 45 days under intimation to the learned District Forum.
12. The appeal could not be decided within the statutory period because of heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (SURINDER PAL KAUR) MEMBER September 16, 2013 VINAY