State Consumer Disputes Redressal Commission
The B.E.S.& T. Undertaking vs Mr.Jayantilal Kuwarji Gala And Anr. on 19 March, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI REVISION PETITION NO.51 OF 2008 Date of filing : 27/06/2008 IN CONSUMER COMPLAINT NO.97/2007 Date of order : 19/03/2009 DISTRICT CONSUMER FORUM, CENTRAL MUMBAI The B.E.S.& T. Undertaking of Bruhanmumbai Mahanagar Palika BEST Bhavan, BEST Marg Colaba, Mumbai 400 001 ..Petitioner/org.O.P. v/s. 1. Mr.Jayantilal Kuwarji Gala R.no.11, 2nd floor Avantika Co-op.Hsg.Society Ltd. Oak Baug, Kalina (W) Mumbai 421 301 2. Mr.Vasant Bharmal Shah R/o.R.no.1, Abbas Manzil First floor, Chakala (W) Mumbai 400 099 Respondents/org.complainants Corum: Mr.S.R.Khanzode, Honble Presiding Judicial Member Smt.S.P.Lale, Honble Member Present : Mr.A.B.Ketkar-Advocate for the revisionist Ms.Ratna Jaiswal-Advocate for the respondents/ org.complainants O R D E R
Per Mr.S.R.Khanzode, Honble Presiding Judicial Member
1. This revision petition is directed against the order dated 15/4/2008 passed in consumer complaint no.97/2007, Mr.Jayantilal Kuwarji Gala V/s. BEST Undertaking, by Consumer Dispute Redressal Forum, Central Mumbai (Forum below in short). It is the case of respondents/org. complainants that they are consumers of revisionist/org.O.P. in respect of electricity meter installed at the premises i.e. meter bearing no.G-023351. They have taken the premises on Leave and License basis as per Agreement dated 9/11/2005 from the owner/landlord Mr.Navin V.Rita. The energy meter connection stands in the name of Mr.Navin V. Rita and electricity bills are issued accordingly. On 20/9/2007 around 11.00 a.m. some officers of O.P. visited the premises and without checking the meter bearing no.G023351 installed in the premises, they made allegations about theft of electricity and demanded Rs.3,53,210/- and also issued a notice of Intimation Card of even date, under section 135 of Electricity Act 2003 (Herein after referred as Electricity Act for brevity). Those officials also warned the revisionist that if the amount demanded was not paid, they would lodge the criminal complaint with the police for the offence committed by them.
2. Complainant no.2 Mr.Vasant Bharmal Shah paid the said amount i.e. Rs.1 lakh in cash and balance amount by cheques by way of composition of the offence. The officials duly issued the receipt for the amount received. Thereafter, this consumer complaint is filed branding the actions of O.P. illegal and unauthorized and claiming the following reliefs:-
(a) That Opposite party be held responsible for their gross deficiency in service rendered to Complainants;
(b) That this Honble Forum be pleased to quash or cancel the Notice Intimation card dated 20/09/2007 issued by the Opposite party;
(c) Pending the hearing and final disposal of the complaint, that this Honble Forum be pleased to direct the Opposite party not to disconnect the electricity supply in the said shop i.e. shop no.3 situated at Dadar Manish market, Senapati Bapat marg, Dadar, Mumbai 400 028;
(d) That this Honble Forum be pleased to direct to pay a sum of Rs.50,000/- to the complainants for the mental harassment;
(e) Ad-interim & interim reliefs in terms of prayer clause (c ) be granted;
(f) Cost;
(g) Any such reliefs in the nature and circumstances of the case may require be granted;
3. During the pendency of the said complaint, application no.97/2007 claiming interim reliefs, was made inter-alia claiming following reliefs:-
a.
Pending the hearing and final disposal of the complaint, that this Honble Forum be pleased to direct the Opposite party not to disconnect the electricity supply in the said shop i.e. shop no.3 situated at Dadar, Manish market, Senapati Bapat marg, Dadar, Mumbai 400 028;
b.
Ad-interim & interim reliefs in terms of prayer clause (a) be granted;
c.
Cost;
d.
Any such reliefs in the nature and circumstances of the case may require be granted;
4. Hearing both the parties, allowing an application, Forum below granted interim relief as under:-
The interim order dated 10/01/2007 directing maintenance of status quo till the disposal of this application is hereby confirmed and shall continue to operate till the final hearing and disposal of this complaint.
No order as to costs.
The application is allowed and disposed of accordingly.
Complainant shall serve the copy of this order upon the opponent.
5. Heard Mr.A.B.Ketkar-Advocate for the revisionist and Ms.Ratna Jaiswal-Advocate for the respondents/ org.complainants. Perused the record including the one made available at the time of hearing of this revision petition.
6. In the complaint itself in para 2, the complainants alleged that they are in the premises on the basis of Leave and License Agreement dated 9/11/2005 and energy meter therein stands in the name of owner of the premises, namely, Mr.Navin V. Rita and electricity bills are issued in the name of said owner Mr.Navin Rita. This fact can be confirmed from the energy bills placed on record. Copy of Leave and License Agreement dated 9/11/2005, which is made available at the time of hearing to us, shows that it was for the period of 11 months i.e. from 1/10/2005 to 31/8/2006. There is nothing on record to show that said license was extended after its expiry. Thus, at the time of relevant date, though complainants were found as actual user of the premises and the energy from the meter in question, admittedly, they are not the consumers within the meaning of Section 2 (1)(d) of Consumer Protection Act, 1986 (Herein after referred as Consumer Act). Therefore, prima facie there cannot be any deficiency of service on part of opposite party in relation to the present complainants and hence they cannot invoke jurisdiction of Consumer Fora to get any relief per consumer complaint. Learned Forum below, prima facie, failed to consider this important aspect.
7. At the second instance, referring to the judgment of apex court in the matter of Haryana State Electricity Board V/s.Mam Chand, 2006(5) All MR (SC) 121 and consequent resolution of the dispute by National Consumer Disputes Redressal Commission, New Delhi in the matter of Accounts officer, Jharkhand State Electricity Board and Assistant Electricity Engineer, Jharkhand State Electricity Board, Kokar division V/s. Anwar Ali, Proprietor, Pinki Plastic Industrial Area, and Executive Engineer, Gujarat Electricity Board and Deputy Engineer, Gujarat Electricity Board V/s. Madresa Abriyah Talimul Muslin Min decided on 10/4/2008, (Corum M.B.Shah, J (President), Rajyalakshmi Rao and R.C.Jain, Members), it is held inter-alia that at the initial stage, no consumer complaint as to assessment of energy consumption charges could be entertained and only after passing of assessment order under section 126 of Electricity Act, the consumer can either file appeal under section 127of the Electricity Act or may approach the Consumer Fora by filing complaint. The consumer has to elect from either of the remedies i.e. complaint before Consumer Fora or filing an appeal under section 127 of Electricity Act. Similarly, it is held that Consumer Fora have no jurisdiction in respect of initiation of criminal proceedings or the final order passed by any Special Court constituted under section 153 or the civil liability determined under section 154 of the Electricity Act.
8. In the instant case, after inspection of the meter in question, the Vigilance officials of O.P. detected theft of electricity and thereafter issued notice Intimation Card dated 20/9/2007, in respect of which relief is claimed in the consumer complaint. Simple reading of the same shows that thereby the complainants were intimated the facts on the basis of which theft of electricity was confirmed. It is further intimated that such theft of electricity is an offence under section 135, 138 of Electricity Act. Civil liability was determined at Rs.3,19,310/- for loss of 17260 kwh units and it was further intimated that regular legal proceedings were to be instituted against the Consumer or a person who has committed offence of theft of electricity and under section 152 of the Electricity Act, there is a provision of compounding the offence and in case the addressee desired to compound the offence, then they were required to pay Rs.3,19,310/- supra and Rs.33,900/- for the connected load of 3.39 kwh, total amounting to Rs.3,53,210/- and failing which necessary legal proceedings would be initiated. Thus, the alleged notice Intimation Card against which relief is claimed in the consumer complaint, certainly refers to criminal proceeding which were to be initiated against the consumer i.e. owner Mr.Navin V.Rita or a person, who committed theft i.e. may be actual user of the Electricity, as in this case, interalia including the complainants. If this is so, as held by the National Commission in the matter of In re Accounts officer, Jharkhand State Electricity Board, Supra, Consumer Fora has no jurisdiction to interfere with the initiation of criminal proceedings or the final order passed or any action related thereto i.e. one indicated in notice intimation card dated 20/9/2007 or pass any order which directly or indirectly affect the same. If no such relief could be granted in the consumer complaint, then considering grant of any relief related to it by way of interim relief or intermediate relief does not arise at all. Therefore, granting the interim relief application as per impugned order is per se illegal. Grievance of the revisionist that while granting the impugned relief, Forum below exceeded its jurisdiction is well founded. Under the circumstances, one cannot support the impugned order. Holding accordingly, we pass following order:-
ORDER
1.
Revision petition is allowed with cost of Rs.5000/-.
2. Impugned order dated 15/4/2008 is quashed and set aside and in turn, interim relief application bearing no.97/2007 stands dismissed.
3. We make it clear that the observations made by us while disposing of this revision petition are for the purpose of deciding this revision petition only and they will not affect in any way the merits of the case. Issues involved are to be decided as per their own merit as per the law.
4. Copies of the order be furnished to the parties.
(S.P.Lale) (S.R.Khanzode) Member Presiding Judicial Member Ms.