State Consumer Disputes Redressal Commission
Cesc Limited vs M/S. Foto Art on 30 May, 2008
D R A F T State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : 99/R/2007 DATE OF FILING : 11.12.2007 DATE OF FINAL ORDER: 30.05.2008 REVISION PETITIONER CESC Limited Through the Senior Commercial Executive Central Regional Office having its Registered Office at CESC House, Kolkata-700 001. RESPONDENTS/O.P.S M/s. Foto Art Now known as M/s. PUNCH 8/4B, Hati Bagan Road Kolkata-700 014 P.S. Beniapukur BEFORE : HONBLE JUSTICE MR. A.CHAKRABARTI, PRESIDENT MEMBER : MRS. S.MAJUMDER FOR THE PETITIONER / APPELLANT : MR. S.NAYAK, ADVOCATE FOR THE RESPONDENT / O.P.S.: : O R D E R :
HONBLE JUSTICE MR. A.CHAKRABARTI, PRESIDENT The petitioner, CESC Ltd., has challenged in the present Revisional Application the order dt. 08.11.2007 passed by the Calcutta District Consumer Disputes Redressal Forum, Unit-II, granting ex parte interim order in favour of the complainant. The Ld. Advocate for the petitioner contends that immediately upon filing the complaint, the complainant moved a put-up petition whereupon the matter was taken up ex parte immediately by the Forum below and thereafter by the impugned order ex parte interim order was granted directing payment of the amount of Rs. 5,605/-+Rs. 3,210/- to the office of the Petitioner (OP in the Forum below) within 16.11.07 after which the Petitioner (OP in the Forum below) was directed to restore electricity to the premises of the complainant within 20.11.07 positively.
Grievance of the petitioner is that the Forum under the Consumer Protection Act is not entitled to pass interim order far less ex parte interim order. It is contended that on the main complaint notice has been issued to the OP in the District Forum, who is the present Revision Petitioner, and instead of waiting for the Opposite Party to appear the impugned order was passed even without service of the copy of the application for interim order.
The Ld. Advocate for the petitioner relies on the provisions contained in Section 13(3B) of the Consumer Protection Act showing that the power to grant interim order was not there in the Act originally and only by an amendment incorporated in the year 2002 in the form of Sub-Section (3B) power to grant interim order was created and even this provision does not permit passing of ex parte interim order when read together with the other provisions of Section 13.
The Ld. Advocate for the petitioner further contended that the interim order as passed by the impugned order amounted to relief more than the relief which can be granted in the main proceeding after contest.
In support of the contention of the petitioner reliance was placed on the judgement in the case of Maharashtra State Electricity Distribution Co. Ltd. Vs. Lloyds Steel Industries Ltd. reported in AIR 2008 SC 1042. Relying on the aforesaid judgement it is contended by the Ld. Advocate for the petitioner that the present case relates to a billing dispute on consumption of electricity and in such cases relief is provided under the Electricity Act providing for forum for going into the questions of disputes by persons having expertise in the electricity matters and, therefore, the complainant could not approach the District Forum under the Consumer Protection Act for present relief without approaching the forum provided by the Electricity Act and thus the relief being not available in the final hearing, also impugned interim order to the said extent could not have been passed.
The Ld. Advocate for the petitioner relied on the provisions, which empower the Electricity Authorities to proceed in such cases.
The Ld. Advocate for the OP, who was the complainant before the Forum below, contended that the relief under the Consumer Protection Act is available to the complainant fully in spite of availability of the forum under the Electricity Act as the latter Act does not exclude the applicability of the Consumer Protection Act for granting relief to a consumer in appropriate cases.
While considering the contentions of the parties, it is found that the power of the District Forum to grant interim order was not there in the statute book as it stood originally.
But by an amendment such power was created by introduction of Sub Section (3B) in Section 13 of the Act.
The language of the said Sub-Section newly introduced is as follows :-
Where during the pendency of any proceeding before the District Forum, it appears to it necessary, it may pass such interim order as is just and proper in the facts and circumstances of the case.
On the question as to whether the District Forum was having power to pass ex parte interim order, reliance was placed on the provisions of law contained in Sub-section (3B) of Section 13 for contending that it does not show any power to pass interim order ex parte. It is true that the said Sub-section itself does not indicate either existence or absence of power to grant interim order, but the intention of the law makers is apparent from Regulation 17 of the Consumer Protection Regulations 2005 which runs as follows :-
Any ex parte interim order issued by the Consumer Forum shall stand vacated after 45 days if in the meanwhile the objections to the interim order are not heard and disposed of.
This Regulation 17 when read with Sub-section (3B) of Section 13, the only conclusion one can reach is that Sub-section (3B) provides for power to pass ex parte interim order.
Therefore, this contention of the Appellant against the impugned order cannot be accepted.
With regard to other contention that in view of provisions of the Electricity Act, 2003, the Forum under Consumer Protection Act, 1986 cannot be approached, the law relied on by the Ld. Advocate for the Appellant in the case of Maharashtra State Electricity Distribution Co. Ltd. Vs. Lloyds Steel Industries Ltd. reported in AIR 2008 SC 1042 does not appear to be helpful as the question involved in the said case was totally different and it related to the scope of the proceedings before the Consumer Grievances Redressal Forum and Ombudsman under the Electricity Act, 2003 and the Regulatory Commission under the said Act. The other judgement relied on by the Appellant in the case of CESC Ltd. Vs. Shri N.M.Banka & Others reported in (1997) 1 CHN 50 also does not help the Appellant as the question involved therein was as regards maintainability of a Writ Petition in view of the provisions in the Electricity Act, which is not relevant for deciding the present Appeal.
The other two cases relied on by the Appellant as decided in the case of Haryana State Electricity Board Vs. Mam Chand reported in II (2006) CLT 14 (SC) and the Accounts Officer, Jharkhand State Electricity Board & Another Vs. Anwar Ali reported in VIII (2007) SLT 679 decided by the Apex Court also do not help the Appellant as the question raised therein was not decided by the Apex Court and was left for a decision by the National Commission. We have taken notice of the judgement in the case of Jharkhand State Electricity Board Vs. Anwar Ali as subsequently decided by the National Commission in Revision Petition No. 355 of 2004 deciding therewith various other cases by a judgement dt. 10.4.08 as reported in II (2008) CPJ 284.
Considering all relevant provisions in the said judgement as also the earlier rulings by various fora including the Apex Court, it has been held as follows :-
In the result, we hold as under :
(i) Section 3 of the Consumer Protection Act and Section 175 of the Electricity Act provide that they are in addition and not in derogation of rights under any other law for the time being in force. Therefore, the rights of the consumers under the Consumer Protection act are not affected by the Electricity Act.
(ii) A bare reading of Sections 173, 174, 175 makes it clear that the intent of the Legislature is not to bar the jurisdiction of the Consumer Fora constituted under the Consumer Protection Act. The provisions of the Electricity Act have overriding effect qua provisions of any other law except that of the Consumer Protection Act, 1986, the Atomic Energy Act, 1962 and the Railways Act, 1989.
(iii) Section 42(8) of the Electricity Act specifically provides that the remedies conferred on consumer under Sub-sections (5), (6) and (7) of Sec. 42 are without prejudice to the right which the consumer may have apart from the rights conferred upon him by those Sub-sections.
(iv) Section 145 of the Electricity Act specifically bars the jurisdiction of the Civil Court to entertain any suit or proceedings in respect of any matter which an assessing officer referred to in Section 126 or an Appellate Authority referred to in Section 127 of the Electricity Act or the Adjudicating Officer appointed under the Electricity Act, is empowered to determine.
Second part of Section 145 provides that no injunction shall be granted by any Court or Authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. For this purpose, if we refer to Sections 173 and 174 and apply the principle laid down there-under, it would mean that qua the consumer fora there is inconsistency and, therefore, other Authority would not include consumer fora.
(v) Consumer of electrical energy provided by the Electricity Board or other Private Company, is a consumer as defined under Section 2(1)(o) of the Consumer Protection Act and a complaint alleging any deficiency on the part of the Board or other private company including any fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance which is required to be maintained by or under any law or in pursuance of any contract in relation to service, is maintainable under the Consumer Protection Act.
Against the Assessment Order passed under Section 126 of the Electricity Act, a consumer has option either to file Appeal under Section 127 of the Electricity Act or to approach the Consumer Fora by filing complaint. He has to select either of the remedy.
However, before entertaining the complaint, the Consumer Fora would direct the Consumer to deposit an amount equal to one-third of the assessed amount with the licensee [similar to Section 127(2) of the Electricity Act].
(vi) Consumer Fora have no jurisdiction to interfere with the initiation of criminal proceedings or the final order passed by any Special Court constituted under Sec. 153 or the civil liability determined under Section 154 of the Electricity Act.
Hence, the issue of law which was required to be determined is decided as stated above.
In above view of the law now settled, the second contention of the Appellant that the Complaint cannot at all be entertained by the Forum below also fails. As the matter is pending before the Forum below, we make it clear that no question is being decided at this stage as no other argument was advanced and the contentions urged here by petitioner having not been accepted Revision Petition fails and is hereby dismissed.
MEMBER(L) PRESIDENT