State Consumer Disputes Redressal Commission
Bses Yamuna Power Limited vs Kusum Devi on 31 January, 2006
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: 31st January 2006 Appeal No. FA-957/2005 (Arising from the order dated 15-09-2005 passed by District Forum(East), Saini Enclave, Delhi in Complaint Case No.541/2005) BSES Yamuna Power Limited Appellant District Najafgarh Through 220 KV Sub Station, Mr. Syed Mujtaba Hussain, Najafgarh, New Delhi Advocate. Versus Smt. Kusum Devi Respondent R/o 500/22, Bhikam Singh Colony, Vishwas Nagar, Shahdara, Delhi-110092. 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) Appellant conducted a raid on the premises of the respondent on 07-06-2005 and found the respondent dishonestly abstracting electricity by way of artificial means not authorised by the appellant and raised a bill of Rs. 51,660/- on the basis of direct theft.
The respondent challenged the said bill before the District Forum. After hearing both the parties and perusing the material on record the District Forum allowed the complaint with the following directions:-
(i) To correct the bill No. JMENF 080620050002 payable by 13-06-2005.
(ii) Not to follow the chapter VII of DERC in respect of determination of civil liability or compounding fees as it is inconsistent with the part XIV of the Electricity Act 2003.
(iii) Refund the amount if OP i.e. appellant has received on account of impugned bill.
(iv) Pay a sum of Rs. 1,000/- as compensation and Rs. 500/- as cost of litigation.
2. Through this appeal the impugned order has been mainly assailed by the appellant by invoking provisions of 154 (2) of the Electricity Act 2003 and Section 25(v) of the DERC Act. According to counsel of appellant jurisdiction of District Forum and for that purpose State Commission and National Commission has been ousted by Section 154 (2) of Electricity Act from dealing with the offences arising out of allegations of Sections 135 to 139 of the Electricity Act. These offences mainly pertain to direct theft of electricity and dishonest abstraction of energy through tampering of meters.
Section 25(v) of DERC Regulation under the Delhi Electricity Reforms Act, according to the counsel, casts obligation on the appellant-Company to raise the bills five times the ordinary bill in case of direct theft and theft by tampering of meters. In order to appreciate the aforesaid contentions in the proper perspective Sections 154 and 135 of Electricity Act need to be reproduced. These are as under:-
S.154. Procedure and power of Special Court.-(1)
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under sections 135 to 139 shall be triable only by the Special Court within whose jurisdiction such offence has been committed.(2)
Where it appears to any court in the course of any inquiry or trial that an offence punishable under sections 135 to 139 in respect of any offence that the case is one which is triable by a Special Court constituted under the Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act.
3. Section 135 of the Electricity Act provides as under:-
S.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
(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 electronic current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electronic 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 , so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
4. Bare reading of Section 154 shows that the proceedings under these provisions pertain to trial of a person for the offence of theft or the offence punishable u/s 135-139 of the Electricity Act 2003. Special Court as envisaged u/s 154 means a court which has been specially designated for trial of the offences u/s 135-139 for particular area. The object of bringing section 154 on the Statute Book was to constitute a special court having specified territorial jurisdiction where offence u/s 135 to 139 has been committed. Otherwise under Cr.P.C. any court of magistrate can try the offences of the nature as envisaged u/s 135 to 139 of Electricity Act irrespective of whether offence has taken place at a place which does not fall within its jurisdiction or not.
5. Secondly, Section 154 mainly deals with trial of offences under Sections 135 to 139 for the purpose of punishment and that is why non-obstente clause mentions as under:-
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under Sections 135 to 139 shall be triable only by the Special Court within whose jurisdiction such offence has been committed.
6. Section 154 provides that if any court in the course of inquiry or trial under Cr. P.C. finds that an offence punishable u/s 135 to 139 is made out that is triable by a special court constituted for the area in which such offence has been committed; it shall transfer such a case to the concerned special court. It means that any court which means a criminal court shall transfer the case into which it is either making inquiry u/s 202/203 of Cr. P.C. or holding trial, finds that the area in which offence u/s 135 to 139 was committed falls within the jurisdiction of Special Court created under Electricity Act, it shall transfer the said case to that court. Nothing more nothing less.
7. Thus invocation of Section 154 by the Counsel for the appellant in respect of provisions of Consumer Protection Act, 1986 on the presumption that Consumer Fora created under this Act are also Court as envisaged by Section 154 of Electricity Act competent to hold inquiry or trial under Criminal Procedure Code for the offences punishable with sentence of fine or imprisonment or both arising out of Section 135 to 139 is highly misconceived, misdirected, irrelevant and does not touch upon on any of the remedies available under the Consumer Protection Act as these fora are not the Courts that have powers to make inquiry or hold trial under Cr. P.C.. Such courts are only criminal courts having powers to sentence the accused to imprisonment or fine or both. Here complainant is Electricity Company.
8. The remedies under the Consumer Protection Act are of civil nature and are initiated by the consumers for deficiency in service, sale of defective goods and articles, unfair trade practice, restrictive trade practice etc. and the powers conferred upon the Consumer Fora u/s 14 of the Consumer Protection Act are not the powers of the special court that emanate from the provisions of Section 154 or the Court that holds inquiry or trial into the offences punishalble u/s 135 to 139 under the Cr. P.C. Here complainant is the consumer.
9. The powers of the Consumer Fora u/s 14 are in the form of directory, prohibitory, rectificatory, compensatory and even for futuristic actions. It is only the consumer who has the right to invoke the jurisdiction for seeking such remedies whereas u/s 154 of the Electricity Act it is the electricity company or licensee that can initiate proceedings for trial of offences under sections 135 to 139 of the Act.
10. The instant case arose out of denial of allegations of theft and the deficiency in service in not raising proper bill. Here we are concerned with the question whether the bill raised is correct or not and not for trial of offence u/s 135-139 which is the domain of a criminal court. Appellant has the liberty to file a criminal case or a complaint. By no stretch of imagination Electricity Act 2003 can deprive the consumer from getting his grievances redressed under the provisions of Consumer Protection Act 1986 for quashing or revising the bill and even seek compensation as to the loss or injury suffered by him due to negligence or unfair trade practice of the opposite party. Injury includes mental injury also.
11. It appears that the learned Counsel is lost in the cobweb of confusion as to the distinction between trial for offences u/s 135 to 139 under the Cr.PC inviting sentence of fine and imprisonment and the remedies under the provisions of Consumer Protection Act which are of civil nature and under the terms of Section 3 of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Section 3 of the Consumer Protection Act provides as under:-
3. Act not in derogation of any other law.- the Provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
12. Reliance of the following judgments placed by the Counsel is wholly misplaced as facts of none of these cases touch upon the facts of the case in hand and the import of Section 154 of Electricity Act and remedies available under the Consumer Protection Act 1986:-
(i) Sai Air Engineers Ltd. & Anr. Vs. N.K. Modi 1996 (6) SC 385
(ii) Ramaniyan Real Estate Ltd. Vs. Triveni Apartment owners Welfare Association decided on 29-6-98.
13. Now we advert to provision of Section 25(v) of DERC Regulation framed under Delhi Electricity Reforms Act which is, according to counsel of appellant, coming in his way for raising the bills in terms of the impugned order. Section 25 (v) of DERC Regulations provides as under :-
S. 25(v) In case sufficient evidence is found to establish direct theft of energy, the licensee may lodge a report with the local police along with the material evidence including wires/cables, meter, service line, etc., seized from the site, which shall be handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times the rates as per applicable tariff. The consumer shall be required to make the payment within 2 working days of its proper receipt.
14. Bare perusal of these provisions shows that Electricity company can raise the bills in terms of Regulation 25 of DERC if allegations of theft are proved or there is sufficient evidence. However, Section 56 of Electricity Act 2003 which is a Central Act and has in terms of Section 173 and 174 of the Electricity Act superseding or over riding effect of any other law enacted by the State if it is inconsistent with the provisions of Electricity Act 2003 comes in the way of recovery of a bill raised under Regulation 25(5) of DERC during the pendency of dispute.
15. Sections 173 and 174 of Electricity Act provide as under:-
S. 173.
Inconsistency in laws. Nothing contained in this Act or any rule or regulation made thereunder or any instrument having effect by virtue of this Act, rule or regulation shall have effect in so far as it is inconsistent with any other provisions of the Consumer Protection Act, 1986 (68 of 1986) or the Atomic Energy Act, 1962 (33 of 1962) or the Railways Act, 1989 (24 of 1989).
S. 174. Act to have overriding effect.- Save as otherwise provided in section 173, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
16. Thus Section 25(v) of DERC is subservient to Section 56 for disconnection of electricity supply for non-payment of charges/bill raised by the Distcom. Section 56 provides as under-
S. 56. Disconnection of supply in default of payment.-(1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days notice in writing, to such person and without prejudice to his right to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer:
Provided that the supply of electricity shall not be cut off if such person deposits under protest,-
(a) an amount equal to the sum claimed from him, or
(b) the electricity charges for electricity paid by him during the preceding six months, which ever is less, pending disposal of any dispute between him and the licensee.
(2) Nothwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.
17. On the face of it Section 56(2) prohibits the Electricity supplying company from disconnecting the electricity for non-payment of bills raised by it in two eventualities during the pendency of a dispute, viz.
(i) if the consumer deposits bill raised by it under protest an amount equal to the sum claimed from him, or
(ii) if he deposits the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less
18. Any and every complaint pending before the Consumer Forum denying the allegation of the Electricity Company as to the correctness or legality of any of its action including raising of the electricity bill is a consumer dispute and during the pendency of such a dispute Electricity Company will be bound by the provision of Section 56 of Electricity Act i.e. it shall be prevented from disconnecting the electricity during the pendency of such a dispute if a consumer opts to deposit the bill on the average of six months preceding period or the whole bill under protest.
19. Consumer Dispute as defined by Section 2(1) (e) means that whenever allegations of the opposite party (in this case opposite party was the appellant) are denied by way of a complaint it becomes a consumer dispute.
We have dealt upon this aspect in extenso in another case decided by us recently on 18-01-2006 in B.S.E.S. Yamuna Power Limited Vs. P.K. Rastogi.
20. Thus from any aspect we may examine the matter in hand, Section 154 of Electricity Act cannot take away the jurisdiction of Consumer Forum from adjudicating the consumer dispute as remedy under the Consumer Protection Act is not only independent and of distinct nature but is in addition to and not in derogation of any law for the time being in force and Section 154 is of no relevance vis--vis provisions of Consumer Protection Act.
21. In nutshell, the following conclusions as to the applicability, import of provisions of Section 154 of Electricity Act 2003 and Regulation 25 of DERC Regulations read with Section 56 of Electricity Act and Section 135 of Electricity Act vis--vis provisions of Consumer Protection Act, 1986 emerge from the above discussion:-
(i) Allegations of theft of energy as contemplated by Section 135 of the Electricity Act 2003 which include tampering of meters, if denied and challenged and bills raised on the basis of theft either on the basis of DT i.e. Direct Theft or through meter on the premise of Section 25(v) of DERC if challenged before the Consumer Forum is a consumer dispute within the meaning of Section 2(1) (e) of the Consumer Protection Act.
(ii) Special Court as envisaged by Section 154 of the Electricity Act is a Court before whom offences under sections 135 to 139 of the Electricity Act are triable which are penal in nature and are initiated by the Electricity Company. These are distinct and independent proceedings than the complaints under the Consumer Protection Act 1986. Under the Consumer Protection Act, complainant is the consumer and remedy sought is of civil nature and opposite party is the Electricity Company.
(iii) Remedy under the Consumer Protection Act is an additional remedy as contemplated u/s 3 of the Consumer Protection Act. Remedies under Consumer Protection Act are of prohibitory, compensatory, rectifactory and futuristic in nature arising out of allegations of deficiency in service, sale of sub-standard goods, unfair or restrictive trade practice etc. Yardsticks and criterion and standard of evidence for determining these charges are altogether different and distinct than the trial for the offences u/s 135 of Electricity Act which are criminal and penal in nature. To prove the criminal offence quality of evidence is beyond reasonable doubt whereas evidence under the provision of Consumer Protection Act is based on preponderance of probabilities.
(iv) Question of charging of bills u/s 25 of the DERC Regulations i.e. on the basis of D.T. or theft through tampering meters will depend upon the final adjudication of the dispute pending before the Consumer Forum and not during the pendency of the dispute. During the pendency of dispute provisions of Section 56 of Electricity Act will be applicable for the purpose of electricity charges i.e. bill shall be raised every month on the average basis of preceding six months period and on payment of such a bill Electricity Company shall not disconnection the electricity.
(v) If Electricity Company is allowed to raise and recover a bill raised on the basis of Section 25 of DERC during the pendency of the dispute not only the proceedings before the Consumer Forum shall be rendered infructuous and meaningless but shall be aborted before adjudication.
(vi) It is upon the Electricity Company to approach the special court for trial of the offences under sections 135 to 139 but it cannot be allowed to shut doors of the Consumer Fora for seeking remedy which is of independent and distinguished nature under the provisions of Consumer Protection Act.
22. Without tarrying further, we, in the given facts and circumstances of the case in had do not find any infirmity in the impugned order as the District Forum after closely perusing the material has returned the finding of fact. However to be fair to the appellant we partly allow the appeal by modifying the direction No. 1 vide which the bill was cancelled by directing the appellant to raise a revised bill on the basis of average consumption during the last six months period and quash direction No.2.
23. Appeal is partly allowed..
24. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
25. 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.
26. Copy of this order be sent to all the Presidents of the District Forums for guidance for levying punitive damages and the quantum of damages in such like cases.
27. Announced on the 31st day of January 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj