Gujarat High Court
Pashchim Gujarat Vij Company Ltd vs Sarlaben Omprakash Maheshwari & on 26 August, 2014
Author: Vijay Manohar Sahai
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/LPA/506/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 506 of 2013
In SPECIAL CIVIL APPLICATION NO. 8077 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil judge ?
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PASHCHIM GUJARAT VIJ COMPANY LTD....Appellant(s)
Versus
SARLABEN OMPRAKASH MAHESHWARI & 1....Respondent(s)
=============================================
Appearance:
MS LILU K BHAYA, ADVOCATE for the Appellant(s) No. 1
MR PREMAL S RACHH, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 26/08/2014
Page 1 of 7
C/LPA/506/2013 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)
1. We have heard Ms. Lilu K. Bhaya, learned counsel appearing for the appellant and Mr. Premal S. Rachh, learned counsel for the respondent No.1.
2. By the present IntraCourt Letters Patent Appeal, the appellant has challenged the judgment dated 5.11.2012 passed by the learned Single Judge in Special Civil Application No.8077 of 2012 whereby the learned Single Judge dismissed the writ petition filed by the appellants original petitioners.
3. The appellants filed writ petition before the learned Single Judge being aggrieved by the order passed by the Consumer Dispute Redressal Commission, State of Gujarat, Ahmedabad. The main contention of the appellant before the learned Single Judge was that the Consumer Dispute Redressal Forum / Consumer Dispute Redressal Commission does not have jurisdiction to entertain the complaints filed by the consumers under the provisions of the Consumer Act against the action taken by the appellant Licensee Company under Section 124 read with Section 125 and 126 of Electricity Act and/or under Section 135 of the Electricity Act, which means that for unauthorized use of electricity, if any action is taken by the appellant Company, the Consumer Dispute Redressal Commission does not have jurisdiction to entertain the complaints filed by the consumers.
4. Learned counsel Ms. Lilu K. Bhaya appearing for the appellant has placed reliance on the decision of the Apex Court in the case of U. P. Power Corporation Limited and others v. Anis Ahmad, AIR 2013 SUPREME COURT 2766 wherein the Apex Court held that complaint made against assessment of unauthorized use of electricity under Section Page 2 of 7 C/LPA/506/2013 JUDGMENT 126 of the Electricity Act, so also, the complaint made against action taken under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Forum. Paragraphs 45 to 47 of the decision are reproduced below :
45. The National Commission though held that the intention of the Parliament is not to bar the jurisdiction of the Consumer Forum under the Consumer Protection Act and have saved the provisions of the Consumer Protection Act, failed to notice that by virtue of Section 3 of the Consumer Protection Act, 1986 or Sections 173,174 and 175 of the Electricity Act, 2003, the Consumer Forum cannot derive power to adjudicate a dispute in relation to assessment made under Section 126 or offences under Sections 135 to 140 of the Electricity Act, as the acts of indulging in "unauthorized use of electricity" as defined under Section 126 or committing offence under Sections 135 to 140 do not fall within the meaning of complaint" as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.
46. The acts of indulgence in "unauthorized use of electricity" by a person, as defined in clause (b) of the Explanation below Section 126 of the Electricity Act,2003 neither has any relationship with "unfair trade practice" or "restrictive trade practice" or "deficiency in service" nor does it amounts to hazardous services by the licensee. Such acts of "unauthorized use of electricity" has nothing to do with charging price in excess of the price. Therefore, acts of person in Page 3 of 7 C/LPA/506/2013 JUDGMENT indulging in 'unauthorized use of electricity', do not fall within the meaning of "complaint", as we have noticed above and, therefore, the "complaint" against assessment under Section 126 is not maintainable before the Consumer Forum. The Commission has already noticed that the offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted under Section 153 of the Electricity Act, 2003. In that view of the matter also the complaint against any action taken under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Forum.
47. In view of the observation made above, we hold that :
(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 complaintas defined under Section 2(1)(c) of the Consumer Protection Act, 1986.
(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 Page 4 of 7 C/LPA/506/2013 JUDGMENT Consumer Forum.
(iii) 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.
The law laid down by the Apex Court is clearly explained in paragraph 47 (ii) that 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.
5. In the instant case, the action was taken by the Electricity Company under Section 135 of the Electricity Act for the theft of electricity. Therefore, the complaint made by the consumer before the District Consumer Forum was not maintainable. Therefore, the order passed by the District Consumer Redressal Forum was without jurisdiction and deserves to be quashed.
6. Learned counsel for the appellant has fairly pointed out another decision of the Apex Court in Civily Kallarackal v. Vehicle Factory, Page 5 of 7 C/LPA/506/2013 JUDGMENT (2012) 8 SCC 524 wherein in paragraph 4, it has been held by the Apex Court that writ jurisdiction cannot be invoked if a statutory remedy of appeal is provided under the provisions of the Consumer Protection Act, 1986.
We are of the considered opinion that this decision lays down correct law that if a statutory appeal lies, then the aggrieved party has to challenge the order passed by the District Consumer Redressal Forum in an appeal and not by filing a writ petition. But the position will be different when the order is perse without jurisdiction. If the order is per se without jurisdiction, then alternative remedy would not be a bar in entertaining the writ petition in view of the law laid down by the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (2008) 1 SCC 1 wherein the Apex Court held that when the order under challenge is perse without jurisdiction, then the order can be challenged straightway by filing a writ petition under Article 226 of the Constitution of India. The jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, inspite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.
7. Therefore, the impugned order being without jurisdiction in view of the law laid down by the Apex Court in U.P. Power Corporation Limited (Supra), we have no hesitation in allowing the present Letters Patent Appeal.
8. In the result, this Letters Patent Appeal succeeds and is allowed. The judgment dated 5.11.2012 passed by the learned Single Judge in Special Civil Application No.8077 of 2012 as well as the order dated Page 6 of 7 C/LPA/506/2013 JUDGMENT 05.06.2010 passed by the Consumer Dispute Redressal Forum, Jamnagar in Complaint No.125 of 2009 as well as the order dated 01.08.2011 passed by the Consumer Dispute Redressal Commission in C.M.A. No.387 of 2011 are quashed. There shall be no order as to costs.
(V.M.SAHAI, J.) (R.P.DHOLARIA,J.) Jani Page 7 of 7