State Consumer Disputes Redressal Commission
Bses Yamuna Power Ltd. vs Neeraj Kumar on 21 November, 2006
FA-1014/06 IN THE STATE COMMISSION:DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 21-11-2006 FA-1014/2006 (Arising out of Order dated 04-04-2006 passed by the District Consumer Forum (East), in Complaint Case No. 1095/2005) BSES (Y) Power Ltd. Shakti Kiran Building, Karkardooma, Delhi. . . . Appellant Through Ms. Sanjana Bali, Advocate. Versus Neeraj Kumar, Z-5, Hans Apartments, East Arjun Nagar, . . . Respondent Delhi 110032. CORAM: Justice J.D. Kapoor, President Mahesh Chandra, Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. While disposing of a batch of large number of CM (M) / Writ Petitions bearing Nos. 819, 1022, 1197, 1305, 1540, 1565, 1567, 1588, 1616, 1627,1629,1630,1631,1632,1633 and 1634/2006 filed by BSES challenging various orders passed by this Commission involving theft of electricity or dishonest abstraction of energy (DAE) as contemplated under Sec. 135 of the Electricity Act, 2003, the Delhi High Court has passed the following order, which is dated 08-11-2006:-
These petitions have been entertained only on account of the fact that the Consumer Courts were exercising jurisdiction in respect of the disputes relating to theft of electricity or dishonest abstraction of electrical energy even though a learned Single Judge of this Court in Delhi Vidyut Board v Devendra Singh & Anr, 130 (2006) DLT 156 has held that the issue of theft/dishonest abstraction of electrical energy does not fall in any of the sub clauses or sub section (c) of Section 2 of The Consumer Protection Act, 1986 (for short, the said Act). This court was of the view that propriety demands that the Consumer Forums do not exercise jurisdiction till the legal proposition propounded in the aforesaid case of Delhi Vidyut Board v. Devendra Singh and Anrs case (supra) is good law.
In view of the aforesaid position, it is agreed that the Consumer Forums in Delhi will not exercise the jurisdiction in such matters in view of the prevalent legal position. It may be noticed that the State Commission is represented through a counsel before the Court today. Ld. Counsel for the State Commission also assures that while considering original complaints or appeals where the Commission has jurisdiction, the procedure prescribed in the said Act shall be adhered to especially in respect of service of notice on the opposite party. It is pointed out that in some of the matters, there are interim orders and since the Consumer Forums will not be able to proceed with these matters now and will have to dispose of the same as having no jurisdiction, the affected consumers would like to seek appropriate legal remedy. Thus, wherever, as on date, there are certain interim directions, the same shall continue to inure for the benefit of the consumers for a period of 30 days from today. The petitions stand disposed of.
2. As is apparent, the High Court was of the view that the Consumer Forum do not exercise jurisdiction till the legal proposition propounded by a Single Judge of the High Court in Delhi Vidyut Board V/s Devinder Singh, 130 (2006) DLT 156, is a good law.
3. In DVB V/s Devinder Singh (supra), the Delhi High Court held that issue of theft/DAE does not fall in any of the sub-clauses of Sub-Sec. (c) of Sec. 2 of the Consumer Protection Act, 1986, defining the word complaint and as such no consumer dispute lies under the Consumer Protection Act, 1986 before any Forum or the State or National Commission created under the Consumer Protection Act, 1986.
4. Order of the High Court is very brief and the relevant Paras are as under:-
3. It is trite that power of the District Forum, State Commission and National Commission in exercise of pecuniary jurisdiction (excluding appellate jurisdiction) would be in respect of complaints. Sec. 2(c) of the Act defines the complaints as under:-
(c) complaint means any allegation in writing made by the complainant that
(i) an unfair trade practice or a restrictive trade practice has been adopted;
(ii) the goods brought by him or agreed to be brought by him suffer from one or more defects;
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;
(iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods;
(v) goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods.
-with a view to obtaining any relief provided by or under this Act.
(4) Needless to state that issue of theft/dishonest abstraction of electrical energy does not fall in any of the sub clauses of Sub Section (c) of Sec. 2 of the Consumer Protection Act, 1986.
(5) I need not elaborate on the issue. For the reason the State Commission, Delhi, vide order dated 06-10-2003 disposing of a batch of appeals; led appeal being No. 116/2003, New Delhi Power Limited V/s S.B. Roy, has held that the dispute relating to theft/dishonest abstraction of electrical energy is not a consumer dispute and no complaint lies under the Act before any Forum created under the Act. Additionally, the National Consumer Disputes Redressal Commission.
5. The decision of the Single Judge of the Delhi High Court in DVB V/s Devinder Singh was rendered on 16-12-2005. Recent decision of the Supreme Court of India in Haryana State Electricity Board v. Mam Chand, II 2006 CLT 14 (SC) has been brought to our notice, where identical question before the Supreme Court came up for consideration.
6. By way of introduction, the Supreme Court referred to the following observations made by it, in Skypak Couriers Ltd v. Tata Chemicals Ltd. IV (2000) SLT 494, as to the scope and object of the Consumer Protection Act, 1986:-
This law has been enacted for the welfare of consumers and to protect them from their exploitation for which the said 1986 Act has made provisions for the establishment of Commissions for settlement of consumer disputes and matters connected therewith. The Commissions under the Act are quasi-judicial bodies to provide speedy and simple redressal to consumer disputes and for that purpose, they have been empowered to give relief of a specified nature and in an appropriate way to, award compensation.
7. In Para-4, the Supreme Court formulated the following question for determination:-
The key question which arises for determination in this civil appeal is whether disputed and complicated questions of fact and law arising under the provisions of the Electricity Act, 2003 concerning assessment of unauthorized use of electricity, tampering of meters, interfering with calibration metering of electric current resulting in theft of electricity under Sec. 126 and Sec. 135 of the Electricity Act, 2003, could be decided in a summary manner by the Consumer Forum or whether in such cases the complainant should be directed to approach the competent authority under the said Electricity Act, 2003..
8. At the outset, it may be mentioned that Sec. 135 of the Electricity Act, relates to allegations of theft of electricity as well as DAE, through tampering of meters or other means, which reads as under:-
Sec.135. Theft of electricity-
(1) Whoever dishonestly,-
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electronic current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electronic meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consumer or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
9. Facts of Haryana Electricity Board's case, in brief, were that the respondent-consumer was having small electric connection. On 24-11-1994, the Junior Engineer of the Nigam on inspection found that some seals of meter were broken. Notice was issued calling upon the respondent to deposit Rs. 10,050/- as electricity bill as per the rules of the Nigam. However, respondent did not raise any dispute whatsoever and rather submitted an application to deposit the said amount in two instalments and subsequently filed the complaint before District Forum, Ambala, under Section-12 of the Consumer Protection Act. The District Forum allowed the complaint vide its order dated 07-07-1997 and directed the Nigam to refund the aforesaid amount with interest @18% per annum from the date of deposit and also Rs. 500/- by way of cost. Nigam preferred appeal before State Commission, Haryana. By a non-speaking order and without discussing the contentions of the Board, the State Commission dismissed the first appeal. Feeling aggrieved the Nigam preferred Revision Petition before National Commission. The Revision Petition was dismissed, by the National Commission, again by a non-speaking order. Consequently the Nigam went to the Supreme Court by way of instant Civil Appeal.
10. On behalf of the Nigam following pleas were raised before the Supreme Court:-
(i) That the assessment of the duty for unauthorized use of electricity, tampering of meters, distribution of meters and calibration of electric current are matters of technical nature which cannot be decided by the Consumer Forum.
(ii) That under the Electricity Act, 2003 the jurisdiction of the Civil Court is excluded. In this connection, reliance was placed on Sec. 145 of the said 2003 Act under which the jurisdiction of the Civil Court to entertain suits in respect of matters falling under Sec. 126 is expressly barred. These are matters of assessment.
(iii) That the Electricity Act, 2003 is a complete Code by itself and therefore in matter of assessment of electricity bills, the Consumer Forum should have directed the respondent to move before the competent authority under the Electricity Act, 2003, read with rules framed thereunder either expressly or by incorporation.
11. Since the question before the High Court was whether disputes relating to theft of electricity or DAE was a consumer dispute or not and, therefore, what was relevant was definition of consumer dispute provided by sub-clause (e) of sub-section (1) of Section 2 of the Consumer Protection Act, 1986. Obviously, question of issue relating to theft of electricity or dishonest abstraction of energy could not have formed part of definition of complaint as definition of complaint has to be confined to services hired or availed by a consumer. Since supply of electric energy falls within the definition of service any dispute relating to such a service falls within the definition of consumer dispute.
12. Consumer dispute has been defined by Section 2 (1)(e) of the Consumer Protection Act as under:-
(e) Consumer dispute means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint.
13. While allowing the Civil Appeal, the Supreme Court passed the following Order:-
15. In our view, the contentions advanced on behalf of the Nigam require deeper consideration by the State Commission. None of the above points have been discussed by the State Commission in this case. Disputes of this nature are repeatedly arising before this Court. At this stage, we do not wish to express any opinion. In our opinion, for the foregoing reasons, the civil appeal filed by the Nigam deserves to be allowed and is hereby allowed.
16. We accordingly direct the State Commission to decide the matter on facts of this case in the light of the provisions of the Electricity Act, 2003 read with the rules framed thereunder.
14. In the aforesaid judgment, the Supreme Court, at first instance referred to the provisions of Sec. 2(c)(iv), 2(d), 2(g), 2(i), and 2(o) of the Consumer Protection Act, 1986 defining the words complaints, consumer, deficiency in service, goods and over and above services, and held that supply of electrical energy falls under Sub-Sec. (o) of the said Act and, therefore, comes within the jurisdiction of the Consumer Forum / Commissions created under the 1986 Act.
15. As is apparent, the High Court did not discuss as to what is the definition of consumer dispute or deficiency in service or services or consumer and whether the supply of electricity comes within the ambit of services or not. The High Court only referred to the definition of complaint and came to the conclusion that issue of theft of electricity/DAE does not fall in any of the sub clauses of sub-section (c) of Sec. 2 of the Consumer Protection Act, 1986.
16. Further, it was in view of the aforesaid provisions that the Supreme Court extended the jurisdiction of the Consumer Forum/Commissions to the disputes arising under the Electricity Act, 2003, including the disputes relating to the allegations of theft of electricity/DAE as contemplated by Section 135 of the Electricity Act, 2003.
17. Had it been the intention of the Supreme Court to oust the jurisdiction of the Consumer Forum / Commissions in respect of disputes arising under the Electricity Act, 2003, including the disputes relating to theft of electricity/DAE or assessment of bill issued under Sec. 126 of the Act, the Supreme Court would have accepted the contentions of the Board and allowed the appeal and set aside the order of the District Forum by holding that these disputes do not fall within the purview of the Consumer Protection Act, 1986 and, therefore, the jurisdiction of Consumer Forum/Commissions created under the Consumer Protection Act, 1986 does not extend to these disputes. So much so, the Supreme Court even went to the extent of not expressing its opinion on the questions of law raised by the counsel for the Board as referred above namely:-
i) The assessment of duty or bills raised on the allegation of theft of electricity are matters of technical nature which cannot be decided by the Forum.
ii) That the jurisdiction of the Civil Court is excluded by Sec. 126 of the Electricity Act, 2003.
iii) That the Electricity Act, 2003 is a complete Code by itself and, therefore, the competent authority under the Electricity Act, 2003 alone can entertain such disputes.
18. The Supreme Court left the decision of these questions of law to be taken by the State Commission and did not deem it necessary to express any opinion on these questions.
19. We may add that none of the contentions of the counsel for the Board raised before the Supreme Court is tenable or has any substance. The first contention of the counsel was that the disputes as to the assessment of the duty, unauthorized use of electricity, tampering of meter, distribution of meter, calibration of electric current etc. relating to the provisions of Sec. 126 and 135 of the Electricity Act, 2003 are technical matters and cannot be decided in a summary manner. The Supreme Court has held in Union of India v. Seppol Ralleyog & Ors III (1999) CPJ 10 (SC) that the Consumer Forum, State Commission and National Commission are headed by persons who are or have been District Judges, High Court Judges and Supreme Court Judges and have, therefore, wide and vast judicial experience in dealing with every and any kind of question and for such functionaries there is no complicated question which cannot be decided in a summary manner.
20. As regards the contention that under the Electricity Act, 2003, the jurisdiction of Civil Court is excluded, there is no force, as the Consumer Forum and for that purpose the Commissions are not Civil Courts nor the proceedings and pleadings before them are governed by the Code of Civil Procedure (CPC). These are Forums and Commissions before whom complaint under Sec. 12 of the Consumer Protection Act, 1986 can be filed by a layman without fulfilling the requirements of Rules and Orders governing the pleadings and suits to be filed under C.P.C. and it is only on the basis of the affidavits of the parties, the matters are decided.
21. Merely because these are quasi-judicial bodies and have consumer beneficial jurisdiction does not mean that these Forum and/or Commissions come within the definition of Civil Court or have the trappings of a Civil Court.
22. Again, the contention that the Electricity Act, 2003 is a complete code by itself holds water like a sieve, as there is no provision in the Electricity Act, 2003, which takes away the consumer beneficial jurisdiction of the Consumer Forum / State Commission or National Commission who are only quasi judicial bodies to provide speedy and simple redressal to consumer disputes. There may be a provision for creating limited courts for trial of certain offences or civil disputes between the parties. So far as the disputes arising under the Consumer Protection Act are concerned, these are independent disputes and additional remedy as propounded by Sec.3 of the Consumer Protection Act, 1986 and every allegation has to be decided on different criteria and standards and on the basis of definition of deficiency in service as defined by Sec. 2(1)(g) of the Act.
23. Thus, the crux of the matter is that under the Consumer Protection Act, 1986, the Consumer Forum, State Commission or National Commission have been given wide powers which the designated courts created under the Electricity Act, 2003 do not possess. These Forums and Commissions have prohibitory, mandatory, futuristic and compensation jurisdiction. They can prohibit any party from doing any act, they can direct any party to do a particular act, they can direct any party to remove the defect in a product or replace the defective product and over and above they have the power to award compensation to a consumer on account of actual loss or mental injury or agony suffered by him due to negligence of the opposite party or due to sale of a defective product or goods etc. These powers are categorically and specifically enumerated in Sec. 14(1) of the Consumer Protection Act, 1986.
The consumer beneficial jurisdiction of the Forum/State Commission or the National Commission created under the Act of 1986 extends to each and every kind of dispute arising not only under the Electricity Act, 2003 but also in respect of any other law relating to the services that have been included in the definition of service by way of Sec. 2(1)(o) of the Act, i.e. banking, financing, insurance, transport, processing, supply of electrical or other energy, lodging, boarding or both, housing, construction, entertainment, amusement or the purveying of news or other information etc. Disputes relating to and arising under the Electricity Act, 2003 are very limited disputes.
24. Some time back the BSES in a case Appeal No.460/2005 titled as BSES Yamuna Power Ltd. Versus Smt. Darshana, decided on 02-02-2006, had contended before us that jurisdiction of District Forum and for that purpose State Commission and National Commission has been ousted by Section 154 (2) of Electricity Act from dealing with the offences arising out of allegations of Sections 135 to 139 of the Electricity Act. These offences mainly pertain to direct theft of electricity and dishonest abstraction of energy through tampering of meters.
Section 25(v) of DERC Regulation under the Delhi Electricity Reforms Act, according to the counsel, casts obligation on the appellant-Company to raise the bills five times the ordinary bill in case of direct theft and theft by tampering of meters.
25. In order to appreciate the aforesaid contention in the proper perspective Section 154 of Electricity Act needs to be reproduced:-
S.154.
Procedure and power of Special Court.-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under sections 135 to 139 shall be triable only by the Special Court within whose jurisdiction such offence has been committed.
(2) Where it appears to any court in the course of any inquiry or trial that an offence punishable under sections 135 to 139 in respect of any offence that the case is one which is triable by a Special Court constituted under the Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act.
26. Bare reading of Section 154 shows that the proceedings under these provisions pertain to trial of a person for the offence of theft or the offence punishable u/s 135-139 of the Electricity Act 2003.
Special Court as envisaged u/s 154 means a court which has been specially designated for trial of the offences u/s 135-139 for particular area. The object of bringing section 154 on the Statute Book was to constitute a special court having specified territorial jurisdiction where offence u/s 135 to 139 has been committed. Otherwise under Cr.P.C. any Court of Magistrate can try the offences of the nature as envisaged u/s 135 to 139 of Electricity Act irrespective of whether offence has taken place at a place which does not fall within its jurisdiction or not.
27. Secondly, Section 154 mainly deals with trial of offences under Sections 135 to 139 for the purpose of punishment and that is why non-obstente clause mentions as under:-
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under Sections 135 to 139 shall be triable only by the Special Court within whose jurisdiction such offence has been committed.
28.
Section 154 provides that if any court in the course of inquiry or trial under Cr. P.C. finds that an offence punishable u/s 135 to 139 is made out that is triable by a special court constituted for the area in which such offence has been committed; it shall transfer such a case to the concerned special court. It means that any court which means a criminal court shall transfer the case into which it is either making inquiry u/s 202/203 of Cr. P.C. or holding trial, finds that the area in which offence u/s 135 to 139 was committed falls within the jurisdiction of Special Court created under Electricity Act, it shall transfer the said case to that court. Nothing more, nothing less.
29. Thus invocation of Section 154 by the Counsel for the appellant in respect of provisions of Consumer Protection Act, 1986 on the presumption that Consumer Fora created under this Act are also Court as envisaged by Section 154 of Electricity Act competent to hold inquiry or trial under Criminal Procedure Code for the offences punishable with sentence of fine or imprisonment or both arising out of Section 135 to 139 is highly misconceived, misdirected, irrelevant and does not touch upon on any of the remedies available under the Consumer Protection Act as these fora are not the Courts that have powers to make inquiry or hold trial under Cr. P.C..
Such courts are only criminal courts having powers to sentence the accused to imprisonment or fine or both.
Here complainant is Electricity Company.
30. Thus, from every possible aspect we may examine the proposition of law, i.e. whether the consumer beneficial jurisdiction of the Forums/State Commissions and National Commission is extended to the disputes arising under the Electricity Act, 2003, including the disputes involving theft of electricity/DAE and for that purpose any other kind of dispute arising under this Act or any other Act or law relating to above referred services, the jurisdiction of the Consumer Forum/Commissions comes into play and is extended to decide these disputes in a summary manner for giving relief of a specified nature and in an appropriate way to even award compensation.
31. The word compensation in the context of the Consumer Protection Act, 1986 has wide connotation. It not only takes in its fold the loss suffered by the consumer due to the negligence of the Opposite Party or sale of defective goods but also loss for mental agony, harassment and emotional suffering and every kind of damage arising from the illegal act of service provider or the trader.
32. None of the aforesaid ingredients or elements empowering the Forum/State Commission or National Commission to do one or more of the things enumerated in Sec. 14 of the Consumer Protection Act, 2006 including the compensatory aspect form part of the Electricity Act, 2003 or for that purpose any other law made by the Parliament in respect of services of banking, financing, insurance, transport, processing, supply of electrical or other energy, lodging, boarding or both, housing, construction, entertainment, amusement or the purveying of news or other information etc. are there in the Electricity Act, 2003 and, therefore, it cannot be termed as a Code by itself.
33. Since as per Art. 141 of the Constitution of India, law laid down and decided by the Supreme Court is binding on all the Courts within the territory of India, we are of the view that the legal proposition propounded by the Single Judge of the Delhi High Court in Devinder Singhs case is no more tenable as the Supreme Court has extended the jurisdiction of Consumer Forum / Commissions in matters relating to disputes involving theft of electricity/DAE.
34. The aforesaid discussion and ratio of judgment of Supreme Court in Haryana Electricity Board lead us to the following conclusions:-
i) That the Consumer Forum / State Commission / National Commission created under the Act of 1986 are quasi judicial bodies to provide speedy and simple redressal to the consumer and for that purpose they have been empowered to grant relief of a specified nature and in an appropriate way to award compensation.
ii) Since the supply of electrical energy falls within the definition of service as defined by Sec. 2(o) of the Act of 1986, any dispute arising under the provisions of the Electricity Act, 2003 including the disputes relating to the provisions of Sec. 135 of the said Act, i.e. theft of electricity / DAE is a consumer dispute as defined by Sec. 2(1)(e) of the Act of 1986.
iii) The Consumer Forum/Commissions have the jurisdiction not only to decide every kind of dispute on fact under the Electricity Act, 2003 but also have the jurisdiction to decide any question of law arising from the provisions of the Electricity Act, 2003 including the dispute under Section 135 of the Electricity Act, 2003 relating to allegations of theft of electricity and dishonest abstraction of energy (DAE).
Had it not been so, the Supreme Court would not have sent back the case to the Commission for deciding the matter on facts in the light of the provisions of the Electricity Act read with rules framed there under.
For that purpose the Consumer Forum/Commissions have also the jurisdiction to decide any kind of dispute relating to any law pertaining to the services as defined under Sec. 2(1)(o) of the Act, for instance, banking, financing, insurance, transport, processing, supply of electrical or other energy, lodging, boarding or both, housing, construction, entertainment, amusement or the purveying of news or other information etc.
iv) Every registered consumer of energy is a consumer as defined u/s 2(1) (d) (ii) of the Consumer Protection Act, 1986 and therefore has a right to challenge the allegations of theft of energy by fraudulent or dishonest abstraction, consumption or use of energy notoriously known as FAE or DAE or by artificial mean or means not authorized by the licensee or allegation of interference with meters or licensees work or improper use or consumption of energy as prescribed by Section-135 of the Electricity Act, 2003 before the Consumer Fora as denial of or disputing such allegations is itself a consumer dispute within the meaning of Section 2 (1)
(c) of the Consumer Protection Act 1986.
v) No consumer can be condemned without being afforded an opportunity of being heard as this right emanates from the principles of natural justice. Doors of Consumer Fora cannot be shut to the registered consumers merely on the basis of allegations nor can a consumer be left at the mercy or whim or arbitrariness of a provider of service such as of electrical energy.
vi) Consumer Forum may dismiss the complaint of a consumer against whom there are allegations of theft of energy through dishonest abstraction, consumption or use by way of artificial mean or means not authorized by the licensee on prima facie view of the matter on the basis of the material produced and reply thereto without subjecting the proceedings to undergo any further process.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member HK