State Consumer Disputes Redressal Commission
Surjeet Singh vs State Of Punjab & Ors. on 20 January, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL NO. 1453 OF 2012
Date of Institution: 26.10.2012
Date of Decision: 20.01.2014
Surjeet Singh son of Sh.Kulwant Singh resident of Village Pakho Ke,
Tehsil Tapa, District Barnala.
.....Appellant/Complainant
Versus
1. State of Punjab through Deputy Commissioner, Barnala.
2. Punjab State Power Corporation Ltd., Head Office, the Mall,
Patiala, through its Chairman.
3. Punjab State Power Corporation Ltd., Sub-Urban Division,
Barnala through its Senior Executive, District Barnala.
4. Punjab State Power Corporation Ltd., Sehna through its Sub
Divisional Officer, District Barnala.
5. SDO, Punjab State Power Corporation Ltd. Sangrur, ME Lab,
Sub-Division, Sangrur.
...Respondents/Opposite Parties
First Appeal against the order
dated 10.9.2012 passed by the
District Consumer Disputes
Redressal Forum, Barnala.
Quorum:
Hon'ble Mr. Justice Gurdev Singh, President
Sh. Baldev Singh Sekhon, Member
Smt. Surinder Pal Kaur, Member Present:
For the appellant : Sh.S.K.Bakolia, Advocate
For respondent No.1 : Ex-parte
For respondents No.2-5 : Sh.Vishal Chaudhri, Advocate
BALDEV SINGH SEKHON, MEMBER
This appeal has been filed by the appellant/complainant, against the order dated 10.9.2012 passed by the District Consumer Disputes Redressal Forum, Barnala (in short "District Forum"), vide which his complaint against the respondents/opposite parties was dismissed. First Appeal No. 1453 of 2012 2
2. The facts, as stated in the complaint, are that the complainant was a consumer of the opposite parties and was using electric connection, bearing account No.S64SP250112K and the meter was installed outside his premises. He had been regularly paying the bills for the consumption of electricity. However, 4-5 months back from the date of filing the complaint, the employees of the opposite parties shifted the said meter from its actual site to 20-25 feet ahead upon a pole installed by them. In the month of August, 2011, the employees of the opposite parties told him that his electric meter No.223161 would be checked by them and the same was liable to be changed. They directed him to deposit an amount of Rs.670/-, which was paid by him on 18.7.2011, vide receipt No.6256. On 20/21.9.2011, he received letter No.1271 dated 20.9.2011 from the opposite parties directing him to be present in the office of opposite party No.5 for checking of the removed meter on 23.9.2011 at 10:00 AM. When he visited the ME Lab (opposite party No.5), his signatures were obtained on the printed forms and he was informed that his meter was checked and it was found burnt. The checking report was to be sent to him through opposite party No.4. However, on 26.9.2011, he received a letter/notice No.1378 dated 26.9.2011 under Section 135 of the Electricity Act, 2003, from opposite party No.4 with a copy of challan No.79. He immediately approached opposite party No.4 and informed them that the said meter was not burnt in his premises and that the same was not checked in his presence. Instead of attending to his grievance, he was threatened to deposit an amount of Rs.1,82,289/- on account of alleged theft of electricity by stating that First Appeal No. 1453 of 2012 3 if such amount was not deposited, his connection would be disconnected. Alleging deficiency in service, he filed complaint before the District Forum seeking directions to set aside the notice, checking report challan No.79 dated 23.9.2011 and notice No.1378 dated 26.9.2011. Rs.1,00,000/- was also demanded on account of mental agony and harassment besides Rs.20,000/- as costs of litigation.
3. Upon notice, opposite party No.1 preferred to remain ex-parte.
4. Opposite parties No.2 to 5 filed joint written reply pleading therein that the said connection was taken for commercial purpose only, and therefore, the complainant did not fall under the Consumer Protection Act, 1986. The District Forum had no jurisdiction to entertain the complaint. Under Section 135 of the Electricity Act, 2003, Additional Sessions Judge of every Session Division was competent to decide such complaints as only special courts established for the purpose can try such types of dispute vide notification No.14/60/04-2JUDL(1)/11/2008 issued by the Punjab Government. On merits, it was admitted that the complainant deposited Rs.670/- with them on 18.7.2011. The said meter was changed and a new meter was installed on the specific request of the complainant because the same was reportedly burnt. Sh.Manjit Singh, JE, changed the meter on 20.7.2011 and the removed meter was packed in the box and sealed at the spot and was sent to ME Lab. Notice No.1271 dated 20.9.2011 was issued to the complainant asking him to be present in the ME Lab, Sangrur on 23.9.2011 The said meter was checked in the ME Lab in his presence on 23.9.2011 and First Appeal No. 1453 of 2012 4 the same was found burnt and all the four ME seals were found missing. Only two CTs, out of three, were found in the meter and incoming and outgoing terminals were found bye-passed through a loop. A case of theft of electricity was declared and thereafter a notice No.1378 dated 26.9.2011 under Section 135 of Electricity Act, 2003, raising a demand of Rs.1,83,289/- was issued. Another amount of Rs.1,90,000/- as compounding charges was demanded. Denying all other allegations, dismissal of the complaint was prayed.
5. 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 dismissed by the District Forum by holding that the electric connection used by the complainant was for commercial purpose.
6. Aggrieved by this order, the complainant has come up in appeal on the ground that despite the fact that a case of deficiency in service on the part of the opposite parties was clearly established, still the District Forum, without deciding the merits of the case, has erroneously dismissed his complaint because he was using the electric connection for commercial purposes.
7. We have carefully gone through the records of the case.
8. Section 135 of the Electricity Act, 2003, defines theft of electricity as under::-
"135. Theft of electricity- (1) Whoever, dishonestly,-
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or First Appeal No. 1453 of 2012 5
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(iii) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity."
9. It is the specific averment of the opposite parties that the removed meter of the complainant was packed in the box and sealed at the spot and was sent to ME Lab where the same was checked in his presence on 23.9.2011 and the same was found burnt. All the four ME seals were found missing. Only two CTs, out of three, were found in the meter and incoming and outgoing terminals were found bye-passed through a loop. A case of theft of electricity was declared and thereafter the impugned notice was issued. That clearly shows that the opposite parties proceeded under Section 135 of the Electricity Act, 2003 for making the assessment.
10. 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 First Appeal No. 1453 of 2012 6 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.
(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."
11. 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 Consumer First Appeal No. 1453 of 2012 7 Protection Act, 1986. The same could not have been entertained by the District Forum and was to be dismissed for want of jurisdiction.
12. Accordingly, the appeal filed by the appellant/complainant is dismissed, the order of the District Forum, dismissing the complaint on merits, 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.
13. The arguments in the case were heard on 8.1.2014 and the order was reserved. Now, the order be communicated to the parties.
14. 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 (SURINDER PAL KAUR) MEMBER January 20, 2014 VINAY