State Consumer Disputes Redressal Commission
Faruqi Multi Speciality Hospital ... vs The A.P.Transco, Charminar Hyderabad on 28 July, 2009
BEFORE THE A
BEFORE THE
A.P.STATE CONSUMER DISPUTES REDRESSAL
COMMISSION: HYDERABAD.
C.D.No.70/2002
Between:
Faruqi Multi Speciality Hospital
23-1-987/1, Moghalpura, Hyderabad
Rep. by its Partner
Dr.Mrs.Naveed
Siraj, W/o.Dr.Syed
Sirajuddien,
30 years, R/o.23-1-987/1,
Moghalpura,
Hyderabad. Complainant
And
The A.P.Transco, Charminar
Hyderabad, rep. by Assistant Divisional
Engineer (Operation),
Distribution-II
Circle-II, Charminar, Hyderabad. . Opposite
party
Counsel for the
complainant: M/s.V.Rajagopal Reddy.
Counsel for the Opposite party: Mr.A.Jaya Raju.
QUORUM:THE
HONBLE JUSTICE SRI D.APPA RAO,PRESIDENT,
AND
SRI K.SATYANAND,HONBLE MEMBER
TUESDAY, THE TWENTY EIGHTH DAY OF JULY, TWO THOUSAND NINE.
Oral Order : (Per Sri K.Satyanand, Honble Member. ) *** This is a consumer complaint filed by a Multi Speciality Hospital against A.P.TRANSCO alleging that the later was guilty of deficiency in service in the following circumstances. The complainant was taking the service of supply of electricity from the opposite party under service connection Nos .X2-4641/II and X2/4630-II. The opposite party, obviously after making an inspection and preparing inspection notes and inspection report, issued an initial assessment notice requiring the complainant to pay a huge sum of Rs.10,00,000/- and odd towards the value of energy pilfered by the complainant.
According to the complainant, the allegation of pilferage of electricity was baseless and at no point of time the inspecting officers had ever complained of any defects in the meters or any other illegal activity indulged in by the complainant. The complainant also contended that the maintenance contract was given to a contractor, who was also incharge of the electrical installations. On the day of inspection, the contractor was absent. The complainant suspected that the inspection was the handi work of the contractor and trouble mongers including some doctors in that locality. The complainant contended that the opposite party exaggerated the consumption of electricity even taking into account some unused air conditions etc., The inspectors of the opposite party had not taken the signatures of the doctors and on the other hand they had taken signatures of some patients standing at the reception mistaking them to be the staff members of the nursing home. The allegations mentioned in the said notice that the wires were directly connected from the pole were absolutely wrong and baseless. At that time, the actual owner of the hospital was away in U.S. and therefore the doctors working in the nursing home were not aware of the facts and circumstances and the dealings of the owner with the opposite party. The officers of the opposite party conducted the raid on 25-7-2002 and they were in a drunken state at that time and they threatened the doctors and other staff members without any reason whatsoever. Thereafter the electricity supply was disconnected apart from frequent break downs in the power supply. The opposite party directed the complainant to pay half of the assessed amount. When the complainant requested for reconnection, opposite party directed the complainant to pay it in three equal instalments. Accordingly the instalment was paid and immediately the power supply was restored on 30-7-2002. However, the complainant challenged the allegations of pilferage as also assessment and therefore filed this consumer complaint, as untenable demand and the disconnection marked deficiency in service.
Opposite party filed a counter affidavit in place of a written version denying the allegations against the officers. It was maintained by the opposite party that an inspection was conducted on 25-7-2002 at 7.58 p.m. and it was not 10.30 p.m. The inspectors noted various incriminating points as follows:
i) The incoming service wires (RYB-III-Phase) are directly connected from pole to fuse cut-outs.
ii) Fuse cut-outs out going wires is connected to meter incoming terminal block.
iii) At the time of inspection, the 3 phase fuse carriers are found kept aside for both the service connections
iv) The meter is rotating on consume load
v) The red colour PVC insulated multi strands copper wires are found directly connected from fuse cut-outs incoming to consume load cut-outs.
vi) After removing red colour PVC wires and keeping fuse carriers of the cut-outs the meter disc is rotating in on consumer load.
Opposite party alleged that the complainant indulged in theft of energy and therefore an initial assessment notice that came to be impugned in this complaint, was issued. According to the opposite party, the value of the energy that was stolen was to a tune of Rs.20,00,000/- and odd. It also alleged that the complainant used to keep the meters in a locked room and they were asking the staff to wait during the routine inspections and allowed them only after restoring normalcy of the connections. This misdeed came to light only when the inspecting authority flash raided on the complainant premises and recorded the consumed units and compared with the allotted load. They further submitted that merely the initial assessment notice was issued and against the same, there were departmental remedies. The complainant bypassed those remedies and approached this Commission only to avoid further exposure before the departmental authorities. They claimed to have taken photographs to show the actual wrong connections facilitating the pilferage. They however admitted that the power supply was restored only after receiving the first instalment of the amount in compliance with the conditions, in terms of the assessment notice. Opposite party finally submitted that the present case being a case of pilferage, the Special court constituted under the Amendment Act of Indian Electricity Act only was having jurisdiction and this matter should go before that court and therefore impliedly suggested that this Commission had no jurisdiction.
In support of its case, the complainant hospital filed an affidavit of one of the partners of the hospital and relied upon Exs.A1 to A8. Opposite party did not file any separate affidavit but the Commission appeared to have taken into account the counter affidavit as obviating the necessity of filing a separate affidavit. In support of its case, the A.P.TRANSCO relied upon Exs.B1 to B5.
After hearing both sides, this Commission passed an order dated 7-11-2003 directing the opposite party to appoint an Arbitrator to adjudicate the matter before it, however, giving relief to the complainant by way of ordering restoration of supply of electricity etc., but at the same time making its order subject to the award that may be passed by the Arbitrator.
Aggrieved by the said order, the Central Power Distribution Company that stepped into the shoes of A.P.TRANSCO filed a Writ Petition No.25466/2008 challenging the said order especially on the ground that the State Commission had no jurisdiction to entertain the dispute in question more so when the remedy was available under the terms of supply. On the other hand, the complainant opposed the said writ petition stating that under Section 89 of C.P.C. the court was entitled to refer the matter to be resolved outside the court either by way of arbitration, conciliation etc., and therefore the Commission did have power to refer the matter for arbitration.
Heard both sides.
The Honble High Court held as follows:
Therefore, we are unable to accept the contention of the learned counsel appearing for the 2nd respondent that the State Commission has got a power to refer the dispute to the Arbitrator under Sec.89 of C.P.C. Except the powers of Civil court, in so far as, the matters as mentioned in Sec.13(4) of the Consumer Protection Act, 1986, the State Commission has no other powers as are vested in a Civil Court under the Code of Civil Procedure Code.
As the issue as to whether there is deficiency of service or not was not at all decided by the State Commission, we are of the opinion that the State Commission cannot refer the matter to the Arbitrator. Accordingly, we set aside the impugned order and the matter is remitted back to the State Commission to hear both the parties and decide as to whether the C.D. is maintainable or not, as a preliminary issue, and if the State Commission holds that the C.D. is maintainable, then it is open for the State Commission to decide the other questions.
As a sequel to the said order, the C.D. had come to be restored for deciding the preliminary issue formulated by the High Court. So the only point that arises for consideration is whether the C.D. is maintainable?
The maintainability of the C.D. appears to have been challenged on more than one ground. The first and the foremost as could be seen from the counter affidavit is that this being a case of pilferage, the Special Court constituted under the Indian Electricity Act alone was having jurisdiction. The other points urged in assailing the maintainability are again two fold. They are the consumer of electricity not being a consumer technically so called under the Consumer Protection Act and lastly that the matter being premature in the sense that what all that was issued was only a provisional assessment notice, the grievance against which can be very well agitated before an inbuilt mechanism of appeals etc. provided within the frame work of the Act itself and for those reasons, the complainant ought not to have rushed to the court or the Commission. Thus we are face to face with three grounds assailing the jurisdiction of this Commission to entertain this consumer complaint.
Before actually answering those three points centering round those three grounds that matter in the evaluation of the maintainability or otherwise of this complaint, it is necessary to go into the vicissitudes in the Electricity law that came to be hastened up during the last two decades.
The march of Electricity Law with particular reference to Andhra Pradesh only, will have to be kept at the back of our minds in order to understand the contentions raised in this matter. To start with, the statutes that apply to the matters of electricity as on the date of cause of action in this case are the Andhra Pradesh Law Reforms Act, 1998, Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948 to the extent referred to therein. After the advent of the Indian Electricity Act, 2003, the electricity law has undergone a further change and what remained in vogue are the Andhra Pradesh Law Reforms Act ofcourse with all its baggage as saved by the Indian Electricity Act 2003 in so far as it is not inconsistent with the provisions of Indian Electricity Act, 2003 and in addition the Indian Electricity Act, 2003 itself. We are concerned with only the position of law upto 2003 before the Indian Electricity Act, 2003 has come into force as the present case arose some time between 1998 and 2003. Precisely stating the date of inspection notes that is 25-7-2002 as per Ex.B1, the date of inspection report i.e. 27-7-2002 as per Ex.B2 and the date of initial assessment notices as per Ex.B3, and Ex.B4 in the frame of Appendix VI purported to have been issued by ADE (Distribution) IX, City III, Andhra Pradesh TRANSCO but curiously captioned as emanating from Central Power Distribution Company of A.P. Limited, Operation South Circle, Hyderabad are critical to discern as to what was the upshot of law that was prevalent at that time. In order to achieve that purpose, we have to keep ourselves abreast of the mutations effected to of the electricity law till the above stated critical date and thereafter till further changes occurred in the said law. The justification for highlighting the above dates as being critical to the identification of the then law applicable is very much found in a judgement of the Honble Supreme Court in HARYANA STATE ELECTRICITY BOARD v. MAMCHAND (2006)(6) SCC 649 wherein the Honble Supreme Court while directing the National Commission to address the question whether consumer of electricity is covered by a definition of consumer as defined under Section 2(o) of the Act, struck a note of exhortation saying It shall also take into consideration the dispute raised regarding the alleged service of notice dated 20-12-1999.
Taking clue from the said observation , we proceed to identify the then law applicable to cases of pilferage of electricity as a malpractice in contra distinction to theft of energy. It is in this context that we have to bear in mind the ground reality that pilferage of electricity as a malpractice is a product of the amalgam of the relevant provisions contained in the Electricity (Supply) Act, 1948 and A.P. Electricity Reforms Act, 1998, and the long line of sub-ordinate legislations under both of those Acts especially revised terms and conditions of electricity supply, whereas theft of energy is an offence as such contemplated by Section 39 of the Indian Electricity Act, 1910. The investigation into the prosecution for and cognizance of and the judicial venue and other related matters are taken care of to a large extent by the said Act itself supplemented by Indian Electricity, (A.P.Amendment) Act, 2000 and other regulations made thereunder.
So far as this case is concerned, the cause of action clearly arose in July, 2002, as such we need not go into the impact of Indian Electricity Act, 2003, rather we have to necessarily stop before the era of Indian Electricity Act, 2003.
Likewise, we need not have to go behind 1998 when A.P.Law Reforms Act had come into force except to the extent it itself carried with it the provisions of earlier law found in the Indian Electricity Act, 1910, Electricity (Supply) Act, 1948 and the rules and regulations including the most important instrument namely revised terms and conditions of electricity supply to persons other than the licensees previously administered by the A.P.Electricity Board.
Under A.P.Law Reforms Act, (hereinafter called Reforms Act for brevity) the Boards undertaking vested or devolved upon the Government of Andhra Pradesh under Section 23(1) on the date of first transfer scheme. Simultaneously, the resultant Government undertaking vested in or devolved upon Licensees A.P.TRANSCO. and generating companies under first transfer scheme itself under Section 23(2) of Reforms Act. The next vestiture in line is Licensees undertaking of that part relating to distribution. It vested or devolved upon four distribution companies referred to as A.P.Dist. Co.-I, II, III and IV under Section 25(3) of the Reforms Act. The said A.P.Distribution Companies are renamed as A.P. Eastern, Southern, Central and Nothern Power Distribution Companies by virtue of A.P.Electricity Reform (Transfer of Distribution undertakings from A.P.TRANSCO to Distribution companies) order 2000 which came into effect on 31-3-2000. That is how Ex.B1 to B4 wore the caption Central Power Distribution Company of Andhra Pradesh (hereinafter referred as A.P.Dist.Co.-III.
It has therefore become clear that as on the date of the present cause of action the Act targeted for a change mainly the powers, rights and functions of State Electricity Board and the State Government under the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 or rules made there under. Section 56 of the Reforms Act makes that theme all the more clear. Now the action impugned in this case is the one initiated and sought to be proceeded with and justified under the terms and conditions of supply of electrical energy by the A.P.Electricity Board notified by A.P.Electricity Board in exercise of its powers conferred on it by Section 49 of the Electricity (Supply) Act. As could be seen from clause vi of Sub Section 3 of Section 56 of Reforms Act, in respect of matters provided under Section 49, among other sections with which we are less concerned here, of Electricity (Supply) Act 1948, to the extent the Reforms Act has made specific provisions, the provisions of the Electricity (Supply) Act, 1948 shall not apply in the State. It is therefore necessary in this connection to scan the whole of A.P.Reforms Act to see whether or not it has provided for those matters covered by Section 49 of the Electricity (Supply) Act, 1948. It is evident that Section 49 is designed for the purpose of empowering the Board to sell electricity to persons other than Licensees.
A close look at the provisions of A.P.Electricity Reforms Act clearly reveals that in lieu of the subject covered by Section 49 of Electricity (Supply) Act, 1948, A.P.Electricity Reforms Act has not made any specific provisions though it otherwise worked upon Section 49 to mould the emanations there from to suit its needs as already shown by articulating on the impact successively upon A.P. Electricity Board, A.P.Transco, Distribution Companies renamed as Power Distribution Companies. This is how the operation of Section 49 and 79(j) of the Electricity (Supply) Act is kept unaffected. As a result, the Board and its regulations remained intact though morphed, by virtue of the impact of A.P. Electricity Reforms Act, especially Sections 23(1) (2) and (5) and other relevant provisions of A.P. Electricity Reforms Act and transfer schemes into the succeeding agencies like A.P.TRANSCO and later also as AP.DIST.CO. which of late assumed the name of four electrical power distribution companies named after the four regions. At this juncture, it is pertinent to point out that Section 70 of the Electricity (Supply) Act provides that in case of repugnancy between Electricity (Supply) Act, 1948 and the Indian Electricity Act, 1910 and the rules there under the former prevails. This observation is necessitated as the remnants or vestiges of the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 have come to be preserved variously by the A.P.Reforms Act and the subsequent law developed. As could be seen from Section 56 and 57 of A.P. Electricity Reforms Act, it is very clear that A.P.Electricity Reforms Act prevails to a large extent over other laws in that field and its primacy is strikingly conspicuous in restructuring the powers of the Board and appropriating the institution of the A.P.Electricity Board evenwhile giving it a different nomenclature.
Now reverting to the adjudication of the present dispute, it is first necessary to identify the nature of the charge against the complainant. In other words, we have to unambiguously make out from the record whether this is a case of mal practice of pilferage of electricity or a case of out and out theft of energy. Though these two actions look alike, a holistic study of the entire electricity law as applicable to State of Andhra Pradesh clearly demonstrates that they are not synonymous not to speak of being identical. It is not that we are not aware that pilferage of electricity and theft of electricity, if literally construed convey the same meaning. But in terms of consequences, pilferage of electricity as a mal practice contemplated by clause 39 of revised terms and conditions of supply of electricity framed by A.P.S.E.B in exercise of powers under Section 49 read with Section 79(j) of Electricity (Supply) Act, 1948 is on a different footing than theft of energy. If the charge against the present consumer is theft of energy, under Section 39 of Indian Electricity Act, it should be dealt with subject to Section 50 of the said Act, as per Section 49 (c) or 49 (d) onwards as the case may be. But in the instant case, while the complainant was ostensibly accused of theft of energy under Section 39 of Indian Electricity Act, the action against it proceeded on the lines laid down under clause 39 of the Revised terms and conditions of supply of electricity adverted to in the foregoing discussion. On the face of it, a person who is accused of theft of energy is not a consumer unless he is able to show the very allegation is false. As such levelling of false allegations against a person who is otherwise their consumer signifies deficiency in service. That means the complainant has to show that the very allegation was unjustified.
This aspect is rather premature at this stage except to the extent of its relevancy in the adjudication of the issue relating to the maintainability. The maintainability of the C.D. is challenged as per the counter affidavit on the ground that this being a case of pilferage, the Special Court constituted under the Indian Electricity Act was alone having jurisdiction. But Exs.B4 to B5 were issued in a different stream of law that is meant to take action for indulging in a mal practice for which civil penalties etc. are contemplated.
As already stated the concept of malpractice is a product of clause 39 of the terms and conditions of Supply of Electricity which enjoy the backing not only of the Electricity (Supply) Act but also A.P.Reforms Act, transfer schemes etc. The theft of energy that has to be taken to the Special Court or Electricity Tribunal as the case may be, entirely pertains to the realm of Electricity Act, 1910 etc. and entails criminal consequences and the previous dispensation which continued to go strong beyond the date of cause of action as in the present case until the Indian Electricity Act heralded, there was no convergence of one stream for proceedings against the malpractice and the other stream for proceedings against theft of energy. No doubt there were few bouts of mixing up these two streams thanks to variant views of perception. As this is a case prior to the advent of Indian Electricity Act, 2003, law obtaining prior to Electricity Act, 2003 has to be administered. Now reverting to the three aspects that are decisive of the maintainability of the complaint in the present case, it has been made clear that the accusation that there was theft of energy has to be necessarily construed as pilferage of energy contemplated by clause 39 as after all Exs. B3 and B4 are the notices contemplated by the annexures to the revised terms and conditions of the supply of electricity which are directly relevant to the pilferage of energy as a malpractice than to the allegation of theft of energy contemplated by the Indian Electricity Act. No doubt this kind of dichotomy requires a deeper study but this is the correct place where such dichotomy can be examined at least peripherally as otherwise what is a malpractice should not be converted into a criminal offence or vice versa. It is, doubtless, a well settled proposition of law that there is nothing in law that prevents both civil or departmental proceedings and criminal proceedings.
But the procedure relevant to each of these streams should be scrupulously adhered to more so in the case of criminal justice. The jurisdiction can always be assumed on the basis of a tentative finding which gives scope for examination as to the real nature of the infraction whether it is civil in nature or criminal in nature or both. This circumstance viewed against the back drop of the title of the complainant to claim as being a consumer technically so called under the Consumer Protection Act assumes all the more importance.
The plea of consumer of electricity not being a consumer under the Consumer Protection Act is rather elemental. Section 33(2) of the A.P. Electricity Reforms Act the provisions of which are endowed with the capacity to modify the formulations under the Electricity (Supply) Act as for example restructuring the pattern of powers to the erstwhile board a creature of Electricity (Supply) Act, makes it abundantly clear that the electricity consumer is as much a consumer technically so called under the Consumer Protection Act. The said section reads as follows:
33(2): Nothing in this section or other provisions of this Act shall in any way prejudice or affect the rights and privileges of the Consumers under other laws including but not limited to the Consumer Protection Act, 1986.
Likewise clause 15 of A.P.Electricity Regulatory Commission (Consumers right to information) Regulations 2000 read identically as under:
Savings: Nothing in this Regulation shall in any way prejudice or affect the rights and privileges of Consumer under other laws including but not limited to Consumer Protection Act, 1986.
Those two pieces of statute set at rest the controversy regarding the question whether an electricity consumer answers the description of a consumer under the Consumer Protection Act.
The plea of prematurity is equally untenable because the assessment notice brought in its train onerous pre conditions for restoring power supply and such ostensibly imminent predicament would naturally give a right to the consumer to invoke the most speedy and efficacious remedy as after all the choice of venue of legal remedy is a prerogative of the plaintiff, in this case the complainant. It is altogether a different matter whether he would succeed or not. After all his success depends only upon his ability to establish the legal infirmities, if any, that go to the root of the matter, which in themselves would then constitute deficiency in service capable of vitiating the notice itself.
For the reasons stated above, we have no hesitation to uphold the maintainability of the C.D. The preliminary issue is answered accordingly.
Order pronounced, maintainability upheld. Post on 28-8-2009 for further proceedings.
PRESIDENT MEMBER.
Dt.28-7 -2009.