Gujarat High Court
Deputy Engineer (O & M) vs Nasirhussain Abdulkadar Sheikh on 19 August, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/6990/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6990 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DEPUTY ENGINEER (O & M)....Petitioner(s)
Versus
NASIRHUSSAIN ABDULKADAR SHEIKH....Respondent(s)
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Appearance:
MR DIPAK R DAVE, ADVOCATE for the Petitioner(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 19/08/2015
ORAL JUDGMENT
1. Heard Mr.Dipak Dave, learned counsel for the petitioner. Though served, no one appears for the respondent.
2. By way of this petition under Article 226 of the Page 1 of 9 HC-NIC Page 1 of 9 Created On Sat Aug 22 00:34:17 IST 2015 C/SCA/6990/2011 JUDGMENT Constitution of India, the petitioner has challenged the order dated 26.02.2010 passed by learned District Consumer Disputes Redressal Forum, Bharuch, in Complaint Application No.71 of 2007.
3. It appears from the record that the respondent was running a guest house at Bharuch in the name of New Royal Guest House and has been consumer of the petitionerElectricity Company. As can be seen from the record of the petition that on 26.12.2006, representative of the petitioner undertook the exercise of change of electric meter. Thereafter, the respondent as a consumer, was asked to remain present before the office of the petitioner on 17.01.2007. The meter which was originally installed in the premise of the respondent and removed by the officer/representative of the petitioner, was sent for its examination to the laboratory. The report of the laboratory indicated that the meter installed at the premise of the respondent was running slow to the extent of 56.597 % and therefore, supplementary bill of Rs.79,320.07/ was raised by the petitioner. The said bill was challenged by the respondent by filing an application under the provisions of the Consumer Protection Act, 1986 before the District Consumer Disputes Redressal Forum, Bharuch, which came to be allowed vide its order dated 26.02.2010. Being aggrieved by the said order passed by District Consumer Disputes Redressal Forum, Bharuch, the petitionerElectricity Company is constrained to file the present petition.
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4. This Court vide order dated 27.03.2015 was pleased to issue Notice and thereafter, the matter came to be admitted on 15.06.2015, wherein this Court (Coram : Hon'ble Mr.Justice N.V.Anjaria) has passed the following order : "Rule, returnable on 3rd July, 2015.
It is observed that on the returnable date, upon service of Rule, even if nobody appears on behalf of the respondent, subject to convenience of the Court, the matter shall be proceeded for final hearing."
Sd/ (N.V.Anjaria, J.)"
5. Even today when the matter is called out, no one appears for the respondent and therefore, the matter is taken up for its final hearing.
6. At the outset, learned counsel for the petitioner submitted that the impugned order deserves to be quashed and set aside for want of jurisdiction. It was contended that under the provisions of the Electricity Act, 2003 (hereinafter referred to as "the Act" for short), special provisions are made as well as in the Supply of Electricity Code, by providing special machinery to challenge such bill. It was contended that as such Civil Court as well as other forum like the Consumer Forum have no jurisdiction under the provisions of the Act as well as under the Electricity Supply Code and therefore, the District Consumer Disputes Redressal Forum has no jurisdiction to entertain the complaint filed by the respondent.
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7. To buttress his arguments, Mr.Dipak Dave, learned counsel for the petitioner has relied upon the following judgments of this Court : (I) Deputy Engineer Vs. Jagrut Nagrik [2010 JX (Guj.) 283 & 2010 (0) GLHELHC223438].
(ii) Dakshin Gujarat Vij Company Ltd. Vs. Sitponwala Imtiyaz Ibrahim & Anr. [LPA No.143 of 2013 in SCA No.15251 of 2010].
(iii)Pashchim Gujarat Vij Company Ltd. Vs. Devabhai Memabhai Myatra [AIR 2014 Guj. 26 & 2013 GLHEL_HC 230808].
In view of the above cited judgments, learned counsel for the petitioner has contended that only on the ground of want of jurisdiction, the impugned order deserves to be quashed and set aside by allowing the petition.
8. Learned counsel for the petitioner specifically invited attention of this Court to the provisions of Notification No.11 of 2005 published by Gujarat Electricity Regulatory Commission, more particularly Paragraph Nos.6.1.7 to 6.1.9, which are elaborately stated in the ground of the petition. It was further contended that as the special machinery is provided under the Act as well as in the Supply of Electricity Code, the learned Forum had no jurisdiction. It was therefore, submitted that even though the petitioner has alternative remedy, jurisdiction of this Court is not barred as the order impugned is without jurisdiction and the same would fall in one of the exception carved out by the Apex Court in the case of Page 4 of 9 HC-NIC Page 4 of 9 Created On Sat Aug 22 00:34:17 IST 2015 C/SCA/6990/2011 JUDGMENT Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors. [1998 (8) SCC 1].
9. The Division Bench of this Court in the case of Dakshin Gujarat Vij Company Ltd. (supra) has observed thus: "2. Learned counsel for the appellant submitted that the learned Single Judge erred in not entertaining the petition filed by the appellant only on the ground of availability of alternative statutory remedy of appeal before the State Commission/National Commission, the appellant should go for the said remedy. She further stated that it was not open for the learned Single Judge to pass any order when the Division Bench of the High Court has already taken a view that Consumer Courts have no jurisdiction in case of theft of electricity. In support of her submission, she has relied upon the decisions of Manoramaben B. Kansara Vs. MGVCL (2011 (2) GLH 563), U.P. Power Corporation Limited and others Vs. Anis Ahmad (AIR 2013 SC 2766) and Madhya Gujarat Vij Company Limited Vs. Deepaben N. Ladva (in Letters Patent Appeal No.1493 of 2013, dated 07.01.2015). In the case of U.P. Power Corporation Limited (supra), the Apex Court held that complaint made against assessment of unauthorized use of electricity under Section 126 of the Electricity Act, so also, the complaint made against action taken under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Forum. Paragraphs 45 to 47 of the decision are reproduced below :
45. The National Commission though held that the intention of the Parliament is not to bar the jurisdiction of the Consumer Forum under the Consumer Protection Act and have saved the provisions of the Consumer Protection Act, failed to notice that by virtue of Section 3 of the Consumer Protection Act, 1986 or Sections 173,174 and 175 of the Electricity Act, 2003, the Consumer Forum cannot derive power to adjudicate a dispute in relation to assessment made under Section 126 or offences under Sections 135 to 140 of the Electricity Act, as the acts of indulging in "unauthorized use of electricity" as defined under Section 126 or committing offence under Sections 135 to 140 do not fall within the meaning of complaint" as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.
46. The acts of indulgence in "unauthorized use of electricity" by a person, as defined in clause (b) of the Explanation below Section 126 of the Electricity Act,2003 neither has any relationship with "unfair trade practice"
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HC-NIC Page 5 of 9 Created On Sat Aug 22 00:34:17 IST 2015 C/SCA/6990/2011 JUDGMENT nor does it amounts to hazardous services by the licensee. Such acts of "unauthorized use of electricity" has nothing to do with charging price in excess of the price. Therefore, acts of person in indulging in 'unauthorized use of electricity', do not fall within the meaning of "complaint", as we have noticed above and, therefore, the "complaint" against assessment under Section 126 is not maintainable before the Consumer Forum. The Commission has already noticed that the offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted under Section 153 of the Electricity Act, 2003. In that view of the matter also the complaint against any action taken under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Forum.
47. In view of the observation made above, we hold that :
(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 complaintas 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.
(iii) 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.
The law laid down by the Apex Court is clearly explained in paragraph 47 (ii) that 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
5. In view of the principles laid down by the Court in the case of Manoramaben B. Kansara (supra), U.P. Power Corporation Limited (supra) and Madhya Gujarat Vij Company Limited (supra), this appeal deserves to be allowed. The Consumer Redressal Commission has no jurisdiction to entertain the complaint made by the opponents as per the law."
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10. Similar view is taken by the Division Bench of this Court in the case of Deputy Engineer (supra), wherein it has been observed thus: "33. Looking to the provisions contained in Electricity Act, 2003 as well as Supply of Electricity Code framed thereunder, it is clear that once the consumers are indulged in theft of electricity and for that theft bills under Section135 of the Act have been issued the Consumer Forum has no jurisdiction to entertain the complaints filed by the consumers nor such Forum can pass any interim order directing the electricity Company to grant electricity connection. As per the provisions contained in Section153 of the Electricity Act the Special Courts have been constituted and as per the provisions of Sections153 and 154 of the Act the Consumer Court has no power to entertain any complaint when there is theft of electricity. In exercise of the power conferred under Section181 of the Electricity Act, 2003 and under Section12 of the Gujarat Electricity Industries (Reorganization and Regulations) Act, 2003, Gujarat Electricity Regulatory Commission has framed Gujarat Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations, 2005. The Regulation 7.9 deals with the powers of the Special Courts. As per Regulation 7.9.1 every offence punishable under Sections 135 to 139 of the Electricity Act, 2003 shall be triable only by the Special Court within whose jurisdiction such offence has been committed. In view of these provisions, the Consumer Forum has no jurisdiction to entertain any matter relating to theft of electricity.
34. Once the electricity company issues bill under Section126 of the Act for unauthorized use of electricity, the consumer must approach the Appellate Authority under Section127 of the Act. It does not fall within the jurisdiction of the Consumer Forum. Regulation 7.3 deals with provisional assessment. Regulation 7.4 deals with objection against provisional assessment and 7.5 deals with Appeal against final assessment order to Appellate Authority. As per Regulation 7.5.1 any person aggrieved by a final order made under sub clause 7.4.1 (Section126 of the Electricity Act, 2003) may, within 30 days of the said order, prefers an appeal to the Appellate Authority. Considering this provision the Consumer Forum has no jurisdiction.
35. Even under the provisions of Section42(5) of the Electricity Act, 2003 the Consumer can file the complaint before the Consumer Dispute Redressal Forum constituted under the Act and against the decision of Forum an Appeal can be filed before the Electricity Ombudsmen under Section 42(7) of th Act. Thus, there are three different Forums available for the consumers for ventilating their grievances and hence after the Act, 2003 and after availability of all the three different Forums, the Consumer Dispute Redressal Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat Aug 22 00:34:17 IST 2015 C/SCA/6990/2011 JUDGMENT Forum constituted under the Consumer Protection Act shall have no jurisdiction to entertain the complaints filed by the consumers with regard to the electricity disputes. All the judgments which are cited in support of the consumers are prior to the Act of 2003 and hence they cannot be pressed into service while deciding the controversy involved in the present group of petitions. The Apex Court as well as different High Courts including this Court have clearly held that depending upon the nature of dispute the consumer may either approach the Consumer Forum constituted under the Electricity Act or to the Appellate Authority or to the Special Court and there is no justification in filing any complaint before the Consumer Forum or in entertaining such complaint by the Consumer Forum.
36. As stated above, under the Electricity Act, 2003 the jurisdiction of the Civil Court is excluded. Under Section 145 of the Act, the jurisdiction of Civil Court to entertain Suits in respect of matters falling under Section126 of the Act is expressly barred. Hence, the Consumer Forum, either expressly or by incorporation should direct the consumers to approach the competent authority under the Electricity Act."
11. Ratio laid down by the Division Bench of this Court as well as the learned Single Judge of this Court in the aforesaid judgments will squarely apply to the present case.
12. Resultantly, the impugned order dated 26.02.2010 passed by learned District Consumer Disputes Redressal Forum, Bharuch, in Complaint Application No.71 of 2007 is without jurisdiction. It requires to be noted that the petition is filed in the year 2011 challenging the impugned order and because of unforeseen circumstances, the petitionerElectricity Company could not move this Court earlier and furthermore, the respondent has preferred not to appear before this Court even though the Notice as well as Rule issued by this Court is served.
13. For the foregoing, the impugned order dated 26.02.2010 passed in Complaint/Application No.71 of Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat Aug 22 00:34:17 IST 2015 C/SCA/6990/2011 JUDGMENT 2007 by learned District Consumer Disputes Redressal Forum, Bharuch, is hereby quashed only on the ground of want of jurisdiction. It is, however, provided that it would be open for the respondent to resort to appropriate remedy that may be available under the law, more particularly under the Supply of Electricity Code and the time consumed in this petition, shall not come in a way of the respondent in resorting to such remedy. It is clarified that this observation may not be construed as an opinion on the merits of the case.
With these observations, the petition is allowed. Rule is made absolute to the aforesaid extent. No costs.
(R.M.CHHAYA, J.) Suchit Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat Aug 22 00:34:17 IST 2015