State Consumer Disputes Redressal Commission
Uttarakhand Power Corporation Ltd. vs Smt Babli Devi on 11 October, 2023
Appeal No. Uttarakhand Power Corporation Ltd. 11.10.2023
52 of 2019 & Anr.
Vs.
Smt. Babli Devi
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Admission : 18.04.2022
Date of Final Hearing : 11.09.2023
Date of Pronouncement : 11.10.2023
First Appeal No. 52 / 2019
Uttarakhand Power Corporation Ltd.
Through its Executive Engineer
Electricity Distribution Division, Jawalapur, Haridwar
(Through: Smt. Shashi Yogeshwar, Advocate)
.....Appellant
VERSUS
Smt. Babli Devi W/o Sh. Sube Singh
R/o Raja Garden, Jagjitpur, Kankhal, Haridwar
None for Respondent
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal under Section 15 of Consumer Protection Act, 1986 has been directed against the judgment and order dated 03.10.2018 passed by the learned District Consumer Disputes Redressal Forum, Haridwar (hereinafter to be referred as the District Commission) in consumer complaint No. 219 of 2016 styled as Smt. Babli Devi Vs. Uttarakhand Power Corporation Ltd., EDD, Budhi Mata, Kankhal (Rural), Haridwar, wherein and whereby the District Commission has allowed the complaint.1
Appeal No. Uttarakhand Power Corporation Ltd. 11.10.2023 52 of 2019 & Anr.
Vs. Smt. Babli Devi
2. The facts giving rise to the present appeal, in brief, are as such that the complainant - respondent has filed a consumer complaint against the opposite party - appellant alleging that the opposite party has allotted an electricity connection No. HR2/1410/060023 to the respondent and the electricity charges were regularly paid by the respondent. The said meter was changed by the employees of the Electricity Department and after it, the respondent paid the electricity charges. The Electricity Department added the electricity charges Rs. 4,851/- of the old bill to the current bill about which a complaint was made before the office of the Electricity Department, where it was apprised that after its payment, the complaint shall be heard. Thereupon the respondent has paid the electricity charges and the office of the Electricity Department had apprised that in the next time the electricity bills shall be upright, but the Electricity Department issued an electricity bill amounting to Rs. 1,08,225/- adding the previous arrears of electricity charges. The respondent requested to the Electricity Department to rectify the bill, but in vain, hence the complaint was filed.
3. The opposite party - appellant has averred in its written statement that the respondent obtained the electricity connection for domestic uses of her house, but it was being used for commercial purposes. Therefore, the complaint is not maintainable in law. The meter was found slow in YMPL testing, therefore, the previous meter was sealed and in its place, the new meter was installed. During the checking, the respondent was found to use 2.260KWT electricity for commercial purpose and the respondent was also informed that the meter was to be tested in the checking lab on dated 06.11.2015, but the respondent did not appear. It was found that the meter was tempered by placing the shunt resistant in the meter, so that the electricity may be recorded less in the meter, therefore, the assessment was fixed to the tune of Rs. 96,678/- under Section 126 of Electricity Act, 2003, wherefrom the deposit of Rs. 5,457/- was adjusted in the electricity charges 2 Appeal No. Uttarakhand Power Corporation Ltd. 11.10.2023 52 of 2019 & Anr.
Vs. Smt. Babli Devi and Rs. 91,221/- is remained towards the respondent as outstanding electricity charges. It is also averred and pleaded that as per the judgment of the Hon'ble Supreme Court of India as well as the State Commission in the appeal No. 281 of 2014, Uttarakhand Power Corporation vs. Anil Kumar Arora, the District Commission (Forum) has no right to hear the complaint of respondent. Therefore, there was no deficiency in service on the part of the opposite party - appellant and the complaint is liable to be dismissed.
4. The District Commission after hearing both the parties and taking into consideration the pleadings and evidence available on record, passed the impugned judgment and order on dated 03.10.2018 wherein it is held as under:-
"ifjokfnuh dk ;g ifjokn Lohdkj fd;k tkrk gSA ifjokfnuh dks çsf'kr fcy eqc0&1]08]225@&:0 fujLr fd;k tkrk gS rFkk foi{kh dks vknsf"kr fd;k tkrk gS fd lgh fcy ,d ekg esa ifjokfnuh dks çsf'kr djsAa ifjokfnuh dks ;g vkns"k fn;k tkrk gS fd og ml fcy dh /kujkf"k dk Hkqxrku] fcy çkfIr dh frfFk ls ,d ekg ds vUnj djuk lqfuf"pr djsAa foi{kh 5]000@&:0 dh /kujkf"k ifjokfnuh dks crkSj {kfriwfrZ vnk djsA"
5. Aggrieved by the aforesaid order of the District Commission, the appellant has preferred the present appeal contending that the District Commission has failed to appreciate that the respondent was using electricity for commercial uses, therefore, the complaint was not legally maintainable. It is further contended that the learned District Commission has also failed to appreciate that the matter pertains to unauthorised use of electricity and the assessment was made under Section 126 of the Electricity Act, so it had no jurisdiction to entertain to decide the complaint.
3Appeal No. Uttarakhand Power Corporation Ltd. 11.10.2023 52 of 2019 & Anr.
Vs. Smt. Babli Devi The District Commission has also failed to appreciate that in checking on 24.10.2015, the respondent was found using electricity for commercial purposes and the meter was found slow in YMPL testing. The meter was opened in laboratory and checked and it was found that the meter was tempered by placing shunt resistant in the meter, so that the electricity may be recorded less in the meter. Thereupon the assessment was raised.
6. A perusal of the order sheet dated 11.09.2023 has revealed that inspite of sufficient service, the respondent did not appear before this Commission, hence vide order dated 17.02.2023 this Commission has passed an order to hear the appeal against the respondent ex-parte.
7. We have heard learned counsel for the appellant and perused the material available on record.
8. The main question of consideration before us is whether the respondent was unauthorisedly using the electricity connection and the assessment was made under Section 126 of Electricity Act, therefore, the District Commission has no jurisdiction to entertain and decide the complaint or not.
9. The reliance was placed by the learned counsel for the appellant on the cited case law Civil Appeal No. 5466 of 2012, U.P. Power Corporation Ltd. & Ors. vs. Anis Ahmad; arising out of SLP (C) No. 35906 of 2011 wherein the same question was involved in the appeal whether the complaints filed by the respondents before the Consumer Forum were maintainable and whether the Consumer Forum has jurisdiction to entertain the complaint filed by a consumer or any person against the assessment made under Section 126 of the Electricity Act, 2003 or action taken under Sections 135 to 140 of the Electricity Act, 2003.
4Appeal No. Uttarakhand Power Corporation Ltd. 11.10.2023 52 of 2019 & Anr.
Vs. Smt. Babli Devi
10. In the above cited case law, the Hon'ble Supreme Court has held that as under:-
Para No. 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.
Para No. 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 indulging in 5 Appeal No. Uttarakhand Power Corporation Ltd. 11.10.2023 52 of 2019 & Anr.
Vs. Smt. Babli Devi "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.
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 "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.6
Appeal No. Uttarakhand Power Corporation Ltd. 11.10.2023 52 of 2019 & Anr.
Vs. Smt. Babli Devi
(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."
11. Learned counsel for the appellants-Electricity Department has cited a decision of this Commission in the case of Revision Petition No. 33 of 2008; Uttarakhand Power Corporation Limited vs. Ahmed Hussain alias Ravinder Kumar Uppal, Haridwar decided on 15.02.2010. Both the above mentioned decisions are fully applicable in the instant case. Learned counsel has also cited a decision of Hon'ble National Commission in the case of Hari Chand vs. Haryana State Electricity Board; III (2010) CPJ 371 (NC). In this case, it was held that findings of inspection team headed by Executive Engineer of Board, cannot be challenged on mere oral assertions. Implications of refusal of representative of petitioner to sign spot inspection report appropriately analyzed.
12. It is an admitted fact that the electricity meter was changed by the Electricity Department on account of the reason that the meter was running slow and a new meter was installed in place of the old meter. It is also an admitted fact that the notice was given to the complainant - respondent that 7 Appeal No. Uttarakhand Power Corporation Ltd. 11.10.2023 52 of 2019 & Anr.
Vs. Smt. Babli Devi the checking of the meter is about to be held in the checking lab on dated 06.11.2015, but respondent did not appear.
13. As per the lab testing report (Paper No. 25), it was found that the meter was tempered by placing shunt resistance in the meter, so that the electricity may be recorded less in the meter. Thus, the lab found that the sanctioned load was 2KWT whereas at the time of testing, load was found 2.260KWT and on account of tempering of meter and theft of electricity, the assessment was fixed to the tune of Rs. 91,221/- under Section 126 of the Electricity Act, 2003.
14. As per the principle laid down by the Hon'ble Supreme Court in U.P. Power Corporation Ltd. & Ors. vs. Anis Ahmad (supra), it is held that the complaint against the assessment made by the assessing officer under Section 126, 135 and 140 of the Electricity Act is not maintainable before the Consumer Forum.
15. In the case in hand, the assessment was fixed due to the electricity theft, hence on the basis of the above cited case law, the respondent is not a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986, hence, the matter was not entertainable in the Consumer Forum / Consumer Commission.
16. In the above said circumstances, we are of the view that the consumer complaint was not legally maintainable before the District Commission. As a result, the appeal succeeds and is liable to be allowed. The impugned judgment and order dated 03.10.2018 passed by the District Commission, Haridwar is liable to be set aside and the consumer complaint is liable to be dismissed.
8Appeal No. Uttarakhand Power Corporation Ltd. 11.10.2023 52 of 2019 & Anr.
Vs. Smt. Babli Devi
17. For the foregoing reasons aforesaid, the appeal is allowed. Impugned judgment and order dated 03.10.2018 passed by the District Commission, Haridwar is set aside and the consumer complaint is dismissed. No order as to costs.
18. Statutory amount deposited by the appellant be returned to the appellant.
19. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. A copy of this Order be sent to the concerned District Commission for record and necessary information.
20. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 11.10.2023 9