Orissa High Court
The Executive Engineer (Electrical) vs Prakash Chandra Mahapatra & Anr. .... ... on 6 September, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 23-Sep-2024 19:48:02
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.9533 of 2024
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
The Executive Engineer (Electrical), .... Petitioner(s)
Vigilance and Enforcement Cell, City
Circle (TPSODL), Berhampur
-versus-
Prakash Chandra Mahapatra & Anr. .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. S.C. Dash, Adv.
For Opposite Party (s) : Mr. S.R. Mohapatra, Adv. (for O.P.1)
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-30.07.2024
DATE OF JUDGMENT: -06.09.2024
Dr. S.K. Panigrahi, J.
1. In this Writ Petition, the Petitioner requests for a directive from this Court to quash the proceedings before DCDRC, Ganjam and for all DCDRCs in Odisha to refrain from entertaining complaints related to electricity billing disputes and assessments under the Electricity Act, 2003.
Page 1 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the caseare asfollows:
(i) The petitioner is an electrical engineer with the Distribution Licensee (TPCODL) engaged in the retail sale and supply of electricity in the Southern Zone of Odisha since 2021. The opposite party no. 1 has been a consumer of the petitioner since 2004.
(ii) A technician from the petitioner found the meter in the premises of opposite party no. 1 running 80% slow due to technical issues. Opposite party no. 1 paid the assessed amount for the meter's slow running on 04.03.2016 and the company was directed to replace the meter.
(iii) On 28.06.2023, during a routine physical verification, the consumer was found to have been tampering with the energy meter.
(iv) Consequently, on 30.06.2023, the petitioner issued a provisional order under Section 126 of the Electricity Act, 2003, demanding Rs.60,810/- for unauthorized use of electricity. Opposite party No. 1 responded to this order on 26.07.2023, requesting the proceedings be dropped.
(v) Opposite party no. 1 then filed Complaint Case No. 102 of 2023 in the District Consumer Disputes Redressal Commission (DCDRC), Ganjam, and subsequent actions of raising a demand towards Provisional and Final Assessment Orders under Section 126 of the Electricity Act, 2003.
Page 2 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02
(vi) During the pendency of the consumer case, the petitioner disconnected the power supply to opposite party no. 1 in February- March 2024.
(vii) Resultantly, the DCDRC, Ganjam ordered the petitioner to restore the power supply upon payment of 10% of the total arrear amount. But the Opposite Party No.1, could not make the payment, and electricity could not restore.
(viii) Aggrieved by the order of DCDRC, petitioner approached this Court seeking intervention of this Court to quash the proceedings in Complaint Case No.102 of 2023. The petitioner requests a directive for all DCDRCs in Odisha to refrain from entertaining complaints related to electricity billing disputes and assessments under the Electricity Act, 2003.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions:
(i) The petitioner submitted that the DCDRC has overstepped its jurisdiction by entertaining complaints related to electricity billing disputes and assessments, which should be adjudicated under the Electricity Act, 2003.
(ii) He further submitted that the actions of DCDRC are contrary to the Supreme Court's ruling in U.P. Power Corporation Ltd. v. Anis Ahmed1, which held that Consumer Forums under the Consumer 1 2013 (8) SCC 491.
Page 3 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 Protection Act, 1986/2019, do not have the jurisdiction to entertain such complaints.
(iii) He contended that the DCDRC's actions are in violation of Article 141 of the Constitution of India, which mandates adherence to the law declared by the Supreme Court.
(iv) He further contended that the Electricity Act, 2003, provides a specific mechanism for appeal under Section 127 for disputes regarding assessments under Section 126. The consumer should have pursued this statutory remedy instead of approaching the DCDRC.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY NO.1:
4. The Learned Counsel for the Opposite Party No.1 earnestly made the following submissions in support of his contentions:
(i) It is submitted that the Writ Petition is not maintainable as there are alternative and efficacious remedies available under the Consumer Protection Act, 2019, which the Petitioner has not exhausted.
(ii) It is further submitted that the provisional order issued under Section 126 of the Electricity Act, 2003, is invalid as no final order was passed within the stipulated 30 days. Therefore, the Writ Petition, based on this provisional order is baseless.
(iii) It is contended that the petitioner engaged in unfair trade practices and provided deficient service by failing to replace the defective meter despite multiple requests and prior orders. This resulted in inaccurate meter readings and unfair billing for opposite party No.1.Page 4 of 8
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02
(iv) It is further contended that the disconnection of electricity supply was illegal as it was done without serving the mandatory prior notice required under Section 56(1) of the Electricity Act, 2003. This deprived opposite party no. 1 of the opportunity to address the alleged irregularities.
(v) It is argued that the Petitioner had been warned by the court in previous writ petitions (W.P.(C) No. 39617 of 2023, W.P.(C) No. 39620 of 2023, and W.P.(C) No. 671 of 2024) not to file such petitions, yet the Petitioner proceeded with the current writ petition. Accordingly, the Learned Counsel for the opposite party No.1 prays for the dismissal of this Writ Petition. IV. COURT'S REASONING AND ANALYSIS:
5. Heard Learned Counsels for both parties at length and perused the material placed before this Court.
6. The central issue in this Writ Petition is whether the Consumer Forum can summarily decide disputed and complex questions of fact and law under the Electricity Act, 2003, such as assessing unauthorized use of electricity, tampering with meters, and interfering with the calibration or metering of electric current leading to electricity theft under sections 126 of the Act, or if the complainant should be directed to seek resolution from the competent authorities specified in the Electricity Act, 2003.
7. A reference may be made to Section 145 of the Electricity Act, 2003, which stipulates the following:Page 5 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 ‚145. No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."
8. From the perusal of the abovementioned provision, it is abundantly clear that disputes under Section 126 of the Act must be resolved through designated officers and authorities within the framework of the Act and the designated forums are already there for redressal of their grievances.
9. Expounding on a related issue, in the U.P. Power Corporation Ltd.
(Supra), the Apex Court opined in para 47 asunder:
"47..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.
(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, Page 6 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 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".
10. Upon examining the aforementioned judgment, it is evident that the 2003 Act forms a complete and self-contained legal system, meaning that for matters related to the assessment of electricity disputes, the Consumer Forum should have referred the respondent to the designated authority under the Electricity Act, 2003, and its associated regulations, either directly or through integration.
11. Disputes of this nature have repeatedly come before this Court. The parties are directed to diligently pursue all available remedies within the appropriate forums before seeking recourse to the Writ Court.
12. The district consumer forums are encouraged to focus their efforts on disputes that fall within the purview of the Consumer Protection Act, while refraining from adjudicating matters better suited to special legislations and their designated forums. This delineation is crucial for maintaining the efficacy and relevance of consumer forums. Special legislations, such as the Electricity Act, have specialized procedures and expertise tailored to address the nuances of their respective fields. By redirecting cases that fall under these special legislations to the appropriate forums, district consumer forums can concentrate on Page 7 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 consumer protection cases within their jurisdiction, ensuring more effective resolution and adherence to the principles of fair practice.
13. Accordingly, the Writ Petition is admitted, and the Opposite Party No.1 is directed to seek redressal from the appropriate forum.
14. Interim order passed earlier stands vacated.
(Dr.S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 6th Sept., 2024/ Page 8 of 8