State Consumer Disputes Redressal Commission
Punjab State Electricity Board vs Vijay Kumar on 19 August, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL NO. 884 OF 2008
Date of Institution: 18.08.2008
Date of Decision: 19.08.2013
1. Punjab State Electricity Board, The Mall, through its Secretary.
2. S.D.O. Fort Sub-Division, Punjab State Electricity Board,
Patiala.
.....Appellants/Opposite Parties
Versus
Vijay Kumar son of Sh.Om Parkash resident of H.No.35, street No.20,
Guru Nanak Nagar, Patiala.
.....Respondent/Complainant
First Appeal against the order
dated 14.7.2008 passed by the
District Consumer Disputes
Redressal Forum, Patiala.
Quorum:
Hon'ble Mr. Justice Gurdev Singh, President
Sh. Baldev Singh Sekhon, Member
Present:
For the appellants : Sh.Rajesh Garg, Advocate For respondent : None BALDEV SINGH SEKHON, MEMBER This appeal has been filed by the appellants/opposite parties, against the order dated 14.7.2008, passed by the District Consumer Disputes Redressal Forum, Patiala (in short "District Forum"), vide which the complaint filed by the respondent/complainant under Section 12 of the Consumer Protection Act, 1986 (in short "the Act") was accepted and the demand of Rs.81,167/- raised by the opposite parties was quashed with Rs.1,000/- as cost of the complaint. First Appeal No. 884 of 2008 2
2. Briefly stated, the facts of the case are that the complainant was having an electricity connection bearing No.VC51/0444K at his residence, which was released in the name of Sh.Prem Singh. He purchased the said premises from one Ved Parkash S/o Ram Chander vide sale deed dated 7.12.2007 alongwith said electric connection with sanctioned load of 5.62 KWs. It was pleaded that officials of the opposite parties came to his premises on 28.1.2008 in his absence and checked his meter, which was functioning properly. However, they alleged that the meter was not functioning properly and there was major defect in it. Defective meter was removed without packing and sealing the same. Nor his signatures were obtained. However, the complainant was shocked to receive a demand notice dated 28.1.2008 from opposite party No.2 for Rs.81,167/-.
3. Upon notice, the opposite parties contested the complaint and filed written reply in which it was pleaded that the connection of the complainant was checked on 28.1.2008 by Er.Iqbal Singh, AEE, Er.Balwant Singh, JE, Er.Harpal Singh, JE and other in the presence of the complainant/his representatives and it was found that the MTC seals were missing and both M&T seals were found tampered and reaffixed and that the impugned demand was raised on the basis of this checking report. Dismissal of the complaint was prayed.
4. After having gone through the evidence produced by the parties in support of their respective averments and hearing learned counsel on their behalf the complaint was accepted by the District Forum, vide aforesaid order.
First Appeal No. 884 of 2008 3
5. We have carefully gone through the records of the case.
6. According to Section 126 of the Electricity Act, 2003, if on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he is required to provisionally assess to the best of his judgment the electricity charges payable by such person. As per the explanation appended to that Section, unauthorized use of electricity means the usage of electricity:-
"(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or
authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of
electricity was authorised; or
(v) for the premises or areas other than those for which the
supply of electricity was authorised."
7. It is the specific averment of the opposite parties that the connection of the complainant was checked on 28.1.2008 in the presence of the complainant/his representatives and it was found that the MTC seals were missing and both M&T seals were found tampered and reaffixed, which was not an authorized use of electricity. Thereafter, the impugned notice was issued. That clearly First Appeal No. 884 of 2008 4 implies that the opposite parties proceeded under Section 126 of the Electricity Act, 2003 for making the assessment.
8. It has recently been held by the Hon'ble Supreme Court in U.P. POWER CORPORATION LTD. & ORS. v. ANIS AHMAD [2013(13) C.L.T. 226] that the Electricity Act, 2003 and the Consumer Protection Act, 1986 runs parallel for giving redressal to any person, who falls within the meaning of "consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986 or the Central Government or the State Government or association of consumers but it is limited to the dispute relating to "unfair trade practice" or a "restrictive trade practice adopted by the service provider"; or "if the consumer suffers from deficiency in service"; or "hazardous service"; or "the service provider has charged a price in excess of the price fixed by or under any law". After having dealt in detail about the different provisions of the Electricity Act, 2003 and the Consumer Protection Act, 1986, the Hon'ble Supreme Court held as under:-
"(i) In case of inconsistency between the Electricity Act, 2003 and the Consumer Protection Act, 1986, the provisions of Consumer Protection Act will prevail, but ipso facto it will not vest the Consumer Forum with the power to redress any dispute with regard to the matters which do not come within the meaning of "service" as defined under Section 2(1)(o) or "complaint" as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.First Appeal No. 884 of 2008 5
(ii) A "complaint" against the assessment made by assessing officer under Section 126 or against the offences committed under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum."
9. In view of the law so laid down by the Hon'ble Supreme Court, the complainant cannot be held to be a "consumer" and the complaint filed by him does not fall within the purview of the Act. The same could not have been entertained by the District Forum and was to be dismissed for want of jurisdiction.
10. Accordingly the appeal filed by the appellants/opposite parties is accepted, the order of the District Forum, accepting the complaint, is set aside without prejudice to the rights of the complainant to seek his appropriate remedy before the proper authority under the Electricity Act, 2003. The time spent by him before the District Forum and in this Commission while prosecuting the complaint and the appeal shall be excluded by that authority while computing the period of limitation for filing the appeal etc.
11. The sum of Rs.500/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellants/opposite parties, in equal shares, by way of a crossed cheque/demand draft after the expiry of 45 days.
12. The arguments in the case were heard on 8.8.2013 and the order was reserved. Now, the order be communicated to the parties. First Appeal No. 884 of 2008 6
13. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER August 19, 2013 VINAY