Gujarat High Court
Deputy Engineer (O & M) Uttar Gujarat Vij ... vs Consumer Education And Research ... on 24 June, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/7978/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7978 of 2010
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR.JUSTICE A.J.DESAI Sd/-
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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DEPUTY ENGINEER (O & M) UTTAR GUJARAT VIJ COMPANY LTD....Petitioner
Versus
CONSUMER EDUCATION AND RESEARCH SOCIETY & 2....Respondents
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Appearance :
MS LILU K BHAYA, ADVOCATE for the Petitioner.
MR APURVA A DAVE, ADVOCATE for the Respondent No.2.
MS VRUNDA SHAH, AGP for the Respondent No.1.
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CORAM : HONOURABLE MR.JUSTICE A.J.DESAI
Date : 24/06/2016
ORAL JUDGMENT
1. By way of the present petition under Articles 226 and 227 of the Constitution of India, the petitioner - Uttar Gujarat Vij Company Limited has prayed as under :-
Page 1 of 6HC-NIC Page 1 of 6 Created On Fri Jul 01 00:36:02 IST 2016 C/SCA/7978/2010 JUDGMENT "(A) To allow this petition.
(B) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the judgment and order dated 30.11.2009 passed by the Hon'ble Consumer Disputes Redressal Commission in Appeal No.5 of 2006 dismissing the said appeal and confirming the judgment and order dated 22.12.2005 of the Consumer Disputes Redressal Forum, Ahmedabad (Rural) in Complaint No.43 of 2005 and further be pleased to allow the Appeal No.5 of 2006 and dismiss the Complaint No.43 of 2005.
(C) To stay the execution, implementation and operation of the judgment and order dated 30.11.2009 passed by the Hon'ble Consumer Disputes Redressal Commission in Appeal No.5 of 2006 dismissing the said appeal and further be pleased to direct the respondent No.2 to pay the entire amount of the bill, pending admission, hearing and final disposal of this petition.
(D) To grant ad-interim relief in terms of
Para-9 (C)"
2. Pursuant to the notice issued by this Hon'ble Court, the respondent No.2 - consumer has appeared through learned advocate Mr. Apurva A. Dave and filed affidavit-in-reply opposing Page 2 of 6 HC-NIC Page 2 of 6 Created On Fri Jul 01 00:36:02 IST 2016 C/SCA/7978/2010 JUDGMENT any grant of relief.
3. The brief facts arise from the record are as under :-
3.1 That the petitioner is in the business of distribution of electricity in the western region of the State of Gujarat. The respondent No.2 is the consumer of the petitioner Company. A checking was carried out on 31.3.2004 at the place of respondent No.2 where meter etc. were installed. Prima facie, it was found that the meter was subsequently adjusted in such a position that though the consumer was using electricity, the same was not being recorded in the meter installed. The said checking report was prepared in presence of the Officers of the Company as well as in the presence of representative of the consumer.
3.2 The meter was also sent to the Laboratory and by report dated 19.4.2004, the concerned Officer of the Laboratory found that the consumer has committed theft of electricity by using the tactics referred to herein above. The petitioner Company issued supplementary bill of Rs.4,46,932.69 ps. to the respondent No.2 for unauthorized consumption under Section 126 of the Indian Electricity Act, 2003.
3.3 The said bill was challenged by the respondent No.2 by way of filing a complaint being Complaint No.43 of 2005 before the Consumer Disputes Redressal Forum, Ahmedabad (Rural). The Forum accepted the complaint submitted by the respondent No.2 and quashed and set aside the supplementary bill by its order dated 22.12.2005. The said decision was carried further by the petitioner by way of filing Appeal No.5 of 2006 before the Consumer Disputes Redressal Commission, Gujarat State, Page 3 of 6 HC-NIC Page 3 of 6 Created On Fri Jul 01 00:36:02 IST 2016 C/SCA/7978/2010 JUDGMENT Ahmedabad. The State Consumer Commission vide order dated 30.11.2009 dismissed the appeal of the petitioner. Hence, the present petition.
4. Ms. Lilu K. Bhaya, learned advocate appearing for the petitioner would submit that when the inspection was carried out at the place of the respondent No.2, it was found that the respondent No.2 has tampered with the meter and the same was observed in the checking sheet where the respondent No.2 has put his signature. She would further submit that the Laboratory report also supported the prima facie finding recorded on the spot.
4.1 She would further submit that if the respondent No.2 was aggrieved with the supplementary bill, he should have filed appropriate proceedings provided under the provisions of the Indian Electricity Act, 2003. In support of this submission, she has relied upon the decision of the Division Bench of this Court in the case of Manoramaben Kansara Wd/o. Balkrishna Kansara v. Madhya Gujarat Vij Company Limited and others, 2011 (2) GLH 563 wherein it has been held that Consumer Disputes Redressal Forum has no jurisdiction to try cases against assessment made u/S. 126 or theft of energy u/S. 135 of the Electricity Act, 2003. She would further submit that since there was theft of energy, the consumer should have approached the Special Court as per the provisions made under Chapter - XV of the Electricity Act.
4.2 She has further relied upon the decision of the Hon'ble Supreme Court in the case of U. P. Power Corporation Limited and others v. Anis Ahmad, AIR 2013 SC 2766 wherein it has been held by the Hon'ble Supreme Court that complaint made Page 4 of 6 HC-NIC Page 4 of 6 Created On Fri Jul 01 00:36:02 IST 2016 C/SCA/7978/2010 JUDGMENT against assessment of unauthorized use of electricity under Section 126 of the Electricity Act is not maintainable before the Consumer Forum .
5. On the other hand, Mr. Apurva A. Dave, learned advocate appearing for the respondent No.2 - consumer would submit that the respondent No.2 has never committed any theft of electricity as alleged by the petitioner. He would submit that the report does not disclose any mal-practices applied by the petitioner. He would submit that the Officer who had checked the meter was issued a memo by the petitioner Company and by taking me through the said Memo dated 22.12.2004, he would submit that the report itself is not clear. Therefore, the supplementary bill has rightly been quashed and set aside by the Forum. With regard to the jurisdiction, he would submit that when the respondent No.2 has not committed any theft of electricity, Consumer Forum would have jurisdiction to entertain such complaint.
5.1 Mr. Dave has relied upon the decision of the National Consumer Disputes Redressal Commission, New Delhi in the case of Jharkhand State Electricity Board and another v. Anwar Ali, reported in II (2008) Consumer Protection Judgments 284 (NC) and submitted that jurisdiction of consumer forum is not totally debarred and, therefore, when there is no electricity theft, the Forum has rightly quashed the supplementary bill issued by the petitioner.
6. I have heard learned advocates appearing for the respective parties. I have also gone through relevant provisions of the Electricity Act as well as the decisions in case of U. P. Power Corporation Limited and others v. Anis Ahmad and Page 5 of 6 HC-NIC Page 5 of 6 Created On Fri Jul 01 00:36:02 IST 2016 C/SCA/7978/2010 JUDGMENT Mamoramaben Kansara Wd/o. Balkrishna Kansara V. Madhya Gujarat Vij Company Limited (supra), by which it has been held by the Apex Court that in case of grievance with regard to theft of electricity, the aggrieved party has to approach the Special Court or the authority established under the provisions of the Electricity Act. It has also been held that the Consumer Disputes Redressal Forum has no jurisdiction to entertain such complaint by the respondent consumer.
7. Hence, the present petition stands allowed. The order dated 30.11.2009 passed by the Hon'ble Consumer Disputes Redressal Commission in Appeal No.5 of 2006 as well as the order dated 22.12.2005 of the Consumer Disputes Redressal Forum, Ahmedabad (Rural) in Complaint No.43 of 2005 are hereby quashed and set aside. Rule is made absolute. There shall be no order as to costs.
Sd/-
(A.J.DESAI, J.) Savariya Page 6 of 6 HC-NIC Page 6 of 6 Created On Fri Jul 01 00:36:02 IST 2016