State Consumer Disputes Redressal Commission
Punjab State Electricity Regulatory ... vs Manmohan Singh Nagra And Others on 26 November, 2021
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.185 of 2021
Date of institution : 27.05.2021
Reserved On : 12.11.2021
Date of decision : 26.11.2021
Punjab State Electricity Regulatory Commission, Site No.3, Sector 18-
A, Madhya Marg, Chandigarh PIN-160018.
....Appellant/Opposite Party No.2
Versus
1. Manmohan Singh Nagra S/o Sh. Jagat Singh Nagra R/o VPO
Mehandpur, District SBS Nagar, Advocate, District Courts, SBS
Nagar.
....Respondent/Complainant
2. Chairman, Punjab State Power Corporation Limited, The Mall
Road, Patiala.
3. Principal Secretary, Power, Government of Punjab, Sector-9,
Chandigarh.
....Respondents/Opposite Parties No.1 & 3
First Appeal under Section 41 of the
Consumer Protection Act, 2019, as
amended, against the order dated
18.03.2021 passed by the District Consumer
Disputes Redressal Commission, Shaheed
Bhagat Singh Nagar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member.
First Appeal No.185 of 2021 2
1) Whether Reporters of the Newspapers
may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported
in the Digest? Yes/No
Argued By:-
For the appellant : Ms. Gargi Kumar, Advocate
For respondent No.1 : None
For respondent No.2 : Er. Mukesh Kumar, ASE/TR-5
For respondent No.3 : Ex parte.
JUSTICE DAYA CHAUDHARY, PRESIDENT
Appellant/opposite party No.2-Punjab State Electricity Regulatory Commission (hereinafter to be called "Regulatory Commission"), Site No.3, Sector 18-A, Madhya Marg, Chandigarh has filed this appeal under Section 41 of the Consumer Protection Act, 2019, being aggrieved by the impugned order dated 18.03.2021 passed by District Consumer Disputes Redressal Commission, Shaheed Bhagat Singh Nagar (in short, "The District Commission"), whereby the complaint filed by respondent No.1/complainant, under the provisions of the Consumer Protection Act, 1986 (hereinafter to be called "Act of 1986), was disposed of with the direction to the opposite parties that before levying/implementation of new tariff, wide publicity be made in this regard through local and national Newspapers and other available sources with the opposite parties and also to obtain objections from all concerned/public stockholders/general public, which are to be affected in future with the hike of tariff and other charges etc. for resolving the issue in dispute. First Appeal No.185 of 2021 3
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission. Facts of the Complaint
3. Briefly, the facts of the case as made out in the complaint filed by respondent No.1/complainant are that the complainant being a bonafide consumer was affected by the tariff increased by the opposite parties and by way of highlighting the highhandedness of the opposite parties, he was compelled to file the complaint in the interest of the consumers of the State of Punjab. He claimed that the rates of electricity be made commensurate with the rate of production per unit in Government owned Generators. The Cow cess imposed on the consumers be abolished and octroi charges be also abolished at par with the Punjab Government General decisions. A prayer was also made that the decision so taken up be implemented from the date of enhancement.
4. The complaint was opposed by opposite parties No.1 & 2 by way of filing replies, which were supported by affidavits. An objection was also raised that the appropriate remedy was to file appeal under Section 111 of the Electricity Act, 2003. Opposite party No.3 did not appear before the District Commission despite service and was proceeded ex parte, vide order dated 06.07.2020.
5. By considering the contents of the complaint as well as the replies, the District Commission disposed of the complaint, vide First Appeal No.185 of 2021 4 impugned order dated 18.03.2021, with the directions as mentioned above in first Para of this order.
6. Being aggrieved by the above said impugned order, the appellant/opposite party No.2-Punjab State Electricity Regulatory Commission (Regulatory Commission) has filed the present appeal by raising various arguments.
7. There was delay of 31 days in filing of the appeal. A separate application for condonation of delay was filed, along with the appeal, which was allowed and the delay in filing of the appeal was condoned, as per grounds mentioned therein, vide order dated 01.06.2021.
8. Ms. Gargi Kumar, learned counsel for the appellant submits that the District Commission had exceeded its jurisdiction, while passing the impugned order dated 18.03.2021 and relief has been granted, whereas it was not claimed in the complaint. Learned counsel for the appellant further submits that the stand taken in the written statements filed by opposite parties No.1 & 2 as well as the relevant provisions under the ELECTRICITY ACT, 2003 have not been taken into consideration, while passing the impugned order. Learned counsel also submits that as per provisions of Section 86 of the ELECTRICITY ACT, 2003, the tariff is determined after due process and in case any person is aggrieved by any such order passed by the Regulatory Commission, including tariff, the remedy is to file appeal First Appeal No.185 of 2021 5 before the Appellate Tribunal under Section 111 of the ELECTRICITY ACT, 2003. Learned counsel further submits that the ELECTRICITY ACT, 2003 came into force w.e.f. 10.06.2003 and the District Commission did not take into consideration the preamble of said Act, which was necessary for disposal of the complaint. Learned counsel also submits that the complaint was filed like public interest litigation as if not only the complainant was aggrieved but others as well against the increased rate of tariff of electricity in the State of Punjab. At the end, learned counsel submits that the averments made in the complaint do not fall within the purview of the Act of 1986, as it was not a case of 'deficiency in providing service', any 'negligence' or an act of 'unfair trade practice' on the part of the opposite parties. Simply, it was projected to be a case of 'deficiency in service' and 'unfair trade practice' but nothing was mentioned in the complaint, as to how the complainant individually was aggrieved by the same. The following judgments cited by the learned counsel for the appellant were not taken consideration and the impugned order was passed against the law:
i) U.P. Power Corporation Ltd. & Ors. v. Anis Ahmad 2013 (3) CPJ 1: 2013 (3) CPR 670: 2013 (3) CLT 226 (SC);
ii) Housing Board, Haryana v. Kartar Singh Etc. of Hisar Revision Petition Nos.287 to 371 of 1992 decided on 08.11.1994 (NC); and
iii) State of Punjab & Ors. v. Sham Lal Goyal First Appeal No.737 of 2004 decided on 27.07.2010 (Punjab State Consumer Disputes Redressal Commission).First Appeal No.185 of 2021 6
9. Learned counsel for respondent No.1/complainant was not present on the last three dates, including the date of arguments. However, written arguments were sent by him through post. It is mentioned in the written arguments that the unilateral revision of tariff by the appellant/opposite parties was abnormally higher and unjustified. The complainant being a bonafide consumer has a right to approach the Consumer Commission and he cannot be compelled to approach the Hon'ble High Court for the relief claimed in the complaint. At the end, it is mentioned that the contents of the appeal are misleading and there is concealment of facts by the Tariff Regulatory Authority/Power Corporation.
10. Respondent No.3 did not appear before this Commission despite its service and was proceeded ex parte, vide order dated 19.07.2021. Respondent No.2 was represented by Er. Mukesh Kumar, ASE/TR-5 and he supported the submissions made by learned counsel for the appellant.
11. Heard arguments of learned counsel for the learned counsel for the appellant. We have also perused the impugned order, written arguments filed on behalf of respondent No.1/complainant and other documents available on the file.
12. Admittedly, the complainant filed the complaint before the District Commission, challenging the increase in tariff of electricity by the opposite parties. The question to be determined for disposal of this First Appeal No.185 of 2021 7 appeal is as to whether the complaint filed by the complainant before the District Commission was maintainable under the provisions of the Act of 1986 or not?
13. In view of question of maintainability of the complaint before the Consumer Forum/Commission against the order of increase in tariff under Section 86 of the ELECTRICITY ACT, 2003, it is to be seen, as to how the complaint was maintainable and how it was entertained by the District Commission.
14. To answer the question posed above, it would be appropriate to refer to the relevant provisions of the Act of 1986 and ELECTRICITY ACT, 2003.
15. The "Statement of Objects and Reasons" of the Act of 1986 are reproduced as under:
"STATEMENT OF OBJECTS AND REASONS:
The Consumer Protection Bill, 1986 seeks to provide for better protection of the interests of consumers and for the purpose, to make provision for the establishment of Consumer councils and other authorities for the settlement of consumer disputes and for matter connected therewith.
2. It seeks, inter alia, to promote and protect the rights of consumers such as-
a) the right to be protected against marketing of goods which are hazardous to life and property;
b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;
c) the right to be assured, wherever possible, access to an authority of goods at competitive prices;
d) the right to be heard and to be assured that consumers interests will receive due consideration at appropriate forums;First Appeal No.185 of 2021 8
e) the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers; and
f) right to consumer education.
3. These objects are sought to be promoted and protected by the Consumer Protection Council to be established at the Central and State level.
4. To provide speedy and simple redressal to consumer disputes, a quasi-judicial machinery is sought to be setup at the district, State and Central levels. These quasi-judicial bodies will observe the principles of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for noncompliance of the orders given by the quasi-judicial bodies have also been provided.
5. The Bill seeks to achieve the above objects."
16. The word "complaint" is defined under Section 2(1) (c) of the Act of 1986, which is reproduced as under:
"2(1)(c) "complaint" means any allegation in writing made by a complainant that-
i) an unfair trade practice or a restrictive trade practice has been adopted by (any trader or service provider ;
ii) the goods bought by him or agreed to be bought 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 or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price-
a) fixed by or under any law for the time being in force;
b) displayed on the goods or any package containing such goods;
c) displayed on the price list exhibited by him by or under any law for the time being in force;First Appeal No.185 of 2021 9
d) agreed between the parties;
(v) goods which will be hazardous to life and safety when used, are being-offered for sale to the public-
a) in contravention of any standard relating to safety of such goods as required to be complied with, by or under any law for the time being in force;
b) if the trader could have known with due diligence that the goods so offered are unsafe to the public;
(vi) services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety;
with a view to obtaining any relief provided by or under this Act;"
17. Section 2(1) (b) of the Act of 1986 defines "complainant" as follows:
"2(1)(b) "complainant" means-
i) a consumer; or
ii) any voluntary consumer association registered under the Companies Act,1956 (1of 1956) or under any other law for the time being in force; or
iii) the Central Government or any State Government; or
iv) one or more consumers, where there are numerous consumers having the same interest;
v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint;"
18. The "consumer" is defined under Section 2(1)(d) of the Act of 1986 in the following manner:
"2(1)(d) "consumer" means any person, who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for First Appeal No.185 of 2021 10 consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; (but does not include a person who avails of such services for any commercial purpose;) Explanation.-For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;"
19. "Consumer Dispute" has been defined in Section 2 (1) (e) of the Act of 1986, which is reproduced 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."
20. Definition of "service" has been given in Section 2 (1) (o) of the Act of 1986 and the same is reproduced as under:
"(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."First Appeal No.185 of 2021 11
21. Undisputedly, the appellant-Punjab State Electricity Regulatory Commission is a statutory body constituted under Section 17 of the Electricity Regulatory Commission Act, 1988 (since repealed by Electricity Act, 2003). The tariff is determined after due process, as per provisions of Section 86 of Electricity Act, 2003. Section 86 of the Electricity Act, 2003 is reproduced as under:
"Section 86. (Functions of State Commission): ---
(1) The State Commission shall discharge the following functions, namely: -
(a) determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State: Provided that where open access has been permitted to a category of consumers under section 42, the State Commission shall determine only the wheeling charges and surcharge thereon, if any, for the said category of consumers;
(b) regulate electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companies or licensees or from other sources through agreements for purchase of power for distribution and supply within the State;
(c) facilitate intra-State transmission and wheeling of electricity;
(d) issue licences to persons seeking to act as transmission licensees, distribution licensees and electricity traders with respect to their operations within the State;
(e) promote co-generation and generation of electricity from renewable sources of energy by providing suitable measures for connectivity with the grid and sale of electricity to any person, and also specify, for purchase of electricity from such sources, a percentage of the total consumption of electricity in the area of a distribution licensee;
(f) adjudicate upon the disputes between the licensees, and generating companies and to refer any dispute for arbitration;
(g) levy fee for the purposes of this Act;
(h) specify State Grid Code consistent with the Grid Code specified under clause (h) of sub-section (1) of section 79;
(i) specify or enforce standards with respect to quality, continuity and reliability of service by licensees;
(j) fix the trading margin in the intra-State trading of electricity, if considered, necessary; and First Appeal No.185 of 2021 12
(k) discharge such other functions as may be assigned to it under this Act. (2) The State Commission shall advise the State Government on all or any of the following matters, namely:-.
(i) promotion of competition, efficiency and economy in activities of the electricity industry;
(ii) promotion of investment in electricity industry; (iii) reorganization and restructuring of electricity industry in the State;
(iv) matters concerning generation, transmission , distribution and trading of electricity or any other matter referred to the State Commission by that Government.
(3) The State Commission shall ensure transparency while exercising its powers and discharging its functions. (4) In discharge of its functions, the State Commission shall be guided by the National Electricity Policy, National Electricity Plan and tariff policy published under section 3."
22. In case, any person is aggrieved by the order of the Regulatory Commission, the remedy is to file appeal before the Appellate Tribunal under Section 111 of the ELECTRICITY ACT, 2003. Relevant portion of Section 111 of the ELECTRICITY ACT, 2003 is reproduced as under:
"Section 111. (Appeal to Appellate Tribunal): ---
(1) Any person aggrieved by an order made by an adjudicating officer under this Act (except under section 127) or an order made by the Appropriate Commission under this Act may prefer an appeal to the Appellate Tribunal for Electricity."
23. In the present case, the complainant is alleged to have aggrieved by the higher tariff rates and the order passed by the Regulatory Commission, which can be challenged before the Appellate Tribunal as per the provisions of Section 111 of ELECTRICITY ACT, 2003 and not before the District Commission under the provisions of the Act of 1986.
First Appeal No.185 of 2021 13
24. The Parliament enacted the ELECTRICITY ACT, 2003, which came into force w.e.f. 10.06.2003 and preamble of the said Act is relevant, which is reproduced as under:
"An Act to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalization of electricity tariff, ensuring transparent policies regarding subsidies, promotion of efficient and environmentally benign policies, constitution of Central Electricity Authority, Regulatory Commissions and establishment of Appellate Tribunal and for matters connected therewith or incidental thereto.
25. On perusal of above said provision and the statutory scheme of the ELECTRICITY ACT, 2003, it is clear that a special Fora has been constituted under the said Act. On enactment of special law, the general provisions made under the Consumer Protection Act, 1986 stand impliedly repealed. The District Commission, while passing the impugned order, has failed to appreciate this fact, whereas as per provisions of the Act, it is apparent that the Act itself has given supremacy to the ELECTRICITY ACT, 2003 and while issuing directions by the District Commission in the impugned order, this fact has not been taken into consideration.
26. It is also settled proposition of law that the ELECTRICITY ACT, 2003 has been enacted and that special law overrides the general law. Accordingly, it can safely be said that the Consumer Commissions have no jurisdiction to entertain such complaints but still First Appeal No.185 of 2021 14 the complaint filed by respondent No.1/complainant was entertained/decided without taking into consideration the special provisions.
27. Section 2 (15) of the ELECTRICITY ACT, 2003 defines 'consumer', which is reproduced as under:
""2(15). "consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be."
28. A bare perusal of said Section shows that the 'consumer' under Section 2 (15) includes any person, who is supplied with electricity for his own use by a licensee and also includes any person, whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, irrespective of the fact whether such person is supplied with electricity for his own use or not. On the other hand, under Section 2 (1) (d) of the Act of 1986, 'consumer' means the person, who buys any goods for a consideration which has been paid or promised or partly paid and partly promised. Only those persons, who are supplied with electricity for commercial purpose and those who do not avail services for consideration, irrespective of electricity connection in their premises, do not come within the meaning of 'consumer'. Although, the complainant is consumer of the opposite parties but the fact remains that the First Appeal No.185 of 2021 15 complaint filed him does not relate to his individual grievances. Rather, it is just like public interest litigation concerning the general public. It is not a case that only the complainant is aggrieved by the increased rate of tariff of electricity in the State of Punjab. Increase in tariff is applicable to every person, availing electricity supply, and the complainant had no individual cause of action to file the complaint. As such, it was not a case of 'unfair trade practice' or 'restrictive trade practice' or in any manner 'deficiency in service'. The determination of tariff by the opposite parties under Section 86 of the ELECTRICITY ACT, 2003 has nothing to do with the 'unfair trade practice' or 'deficiency in service' as defined in the Act of 1986. In the absence of any such allegation, as mentioned under Section 2(1) (c) of the Consumer Protection Act, 1986, we are of the view that the complaint filed by respondent No.1/complainant was not maintainable before the District Commission. Without taking into consideration the objection raised by opposite parties No.1 & 2, the complaint was disposed of, whereas the increased rate of tariff does not fall within the meaning of dispute to be raised in a consumer complaint as defined in the Act of 1986 and the District Commission was having no jurisdiction to entertain the complaint. Once the complaint was not maintainable before the District Commission, then by wrongly holding that it was a case of 'deficiency in service' or negligence or an act of 'unfair First Appeal No.185 of 2021 16 trade practice' on the part of the opposite parties, no direction could have been issued.
29. The District Commission while disposing of the complaint has relied upon the judgment of above said case of Anis Ahmad (supra). However, the said case pertains to complaints against the assessment under Section 126 or offences under Sections 135 to 140 of the ELECTRICITY ACT, 2003, for the acts of indulging in 'unauthorized use of electricity'. Although detailed discussion was made in the case of Anis Ahmad (supra), but the same is not applicable in the instant case in view of specific averments/grievance of the complainant pertaining to increase of tariff, which do not fall in the ambit of the Act of 1986.
30. The issue of jurisdiction has not been taken into consideration by the District Commission, whereas as already discussed above, the remedy with the complainant was to file appeal before the Appellate Tribunal under Section 111 of the ELECTRICITY ACT, 2003 and the same has not been availed. The issue of increase in tariff was not maintainable before the District Commission and, as such, while passing the impugned order dated 18.03.2021, the District Commission has exceeded its jurisdiction. The impugned order passed by the District Commission is not sustainable in the eyes of law.
31. Accordingly, the appeal is allowed and the impugned order dated 18.03.2021 passed by the District Commission is First Appeal No.185 of 2021 17 hereby set aside. Consequently, the complaint filed by respondent No.1/complainant before the District Commission is dismissed, being not maintainable. However, the complainant would be at liberty to avail the remedy before the appropriate Court/Authority in accordance with law.
32. The appeal could not be decided within the statutory period due to heavy pendency of court cases and pandemic of COVID-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER November 26, 2021.
(Gurmeet S)