State Consumer Disputes Redressal Commission
Pradeep Dhawan vs Bses Rajdhani Power Limited on 19 December, 2008
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 19.12.2008 Revision Petition No.2008/42 (Arising from the order dated 17.12.2008 passed by District Forum(South-II) Udyog Sadan, Qutub Institutional Area, New Delhi in Complaint Case No.810/2008) Sh. Pradeep Dhawan .. Petitioner. D-4, G.K. Enclave I, through Mr. S.D. Wadhwa New Delhi advocate. Versus The Officer Incharge Respondent Enforcement Cell, BSES Rajdhani Power Limted, Corporate Legal & Enforcement Cell, Andrews Ganj, New Delhi CORAM: Justice J.D. Kapoor, ... President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL)
1. Complaint of the petitioner was dismissed by the District Forum being not maintainable in view of the judgment of the High Court in CWP No.1240/2002 in D.V.B. Vs Devender Singh because the dispute pertains to the theft of electricity and Dishonest Abstraction of Energy.
2. The latest interim order of the High Court in this regard was passed in matter BSES Vs Neeraj Kumar in C.M. No.362(2007) in CM(M) 46/2007, directing the Consumer Forum not to pass any interim order where the allegations of theft of electricity or dishonest abstraction of energy are involved. High Court has not taken any final decision in this regard as BSES has challenged the order dated 21.11.2006 passed by this Commission in BSES Vs Neeraj Kumar, in Appeal No.1014/2006 whereby it was held that as per judgment of the Supreme Court in Haryana Electricity Board Vs Mam Chand II(2006) CLT in (SC), Consumer Forums/State Commission/ National Commission have jurisdiction to decide the disputes relating to allegations under the Electricity Act 2003 including the disputes involving theft of electricity and dishonest abstraction of energy (DAE) as contemplated by Section 135 or 126 of the Electricity Act 2003, that is the dispute involving theft or dishonest abstraction of energy.
3. However an SLP has been filed before the Honble Supreme Court, whereby status quo has been ordered. The final order of the Supreme Court is awaited. The National Commission has also concurred with the view taken by this Commission that every dispute under the Electricity Act 2003 including the dispute under section 126 of the Electricity Act is consumer disputes adjudicable by the Consumer Fora.
4. In the SLP the Honble Supreme Court had remanded a matter filed by Jharkhand State Electricity Board to the National Consumer Disputes Redressal Commission for deciding the question whether the consumer of energy can seek any remedy under the Consumer Protection Act arising from the Electricity Act 2003 or not in spite of there being any other remedy available under the Electricity Act 2003. The National Commission has vide order dated 10th April 2008 answered the proposition of law in the affirmative by making the following conclusion.
In view of the aforesaid settled law, the Consumer Fora would have jurisdiction to entertain complaint against the final order passed by the assessing officer under Section 126 of the Electricity Act. Further, the jurisdiction of the Consumer Fora is not barred by any provisions of the Electricity Act but the same is expressly saved under Section 173 read with Section 174 and 175 of the Electricity Act.
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 Section 173, 174 and 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 Section 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 thereunder, 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.
5. In view of the foregoing reasons the petition is allowed, impugned order is set aside with the direction that the District Forum shall wait for the final orders of the Supreme Court and as per order of High Court shall not pass any interim order or final order in the matter and shall adjourn the matter sine-die to be revived as and when the orders from the Supreme Court or High Court are received. However, for interim relief sought by the appellant, the appellant may move before National Commission or High Court or Supreme Court.
6. The petitioner shall appear before District Forum on 30.01.2009 for the aforesaid purpose.
7. A copy of this order as per statutory requirement be forwarded to the parties and also to the District Forum and thereafter the file be consigned to Record Room.
8. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 19th day of December 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri