ORAL ORDER
Per – Hon’ble Justice Mr. R. C. Chavan, President
This appeal filed by Appellant/original Opponent – Maharashtra State Electricity Distribution Company Ltd. (hereinafter referred to as ‘the Electricity Distribution Company’ for the sake of brevity) is directed against an order dated 25/06/2014 passed by Additional District Consumer Disputes Redressal Forum, Sangli allowing Consumer Complaint No.27 of 2012 and directing the Electricity Distribution Company to refund to the Respondents/original Complainants (hereinafter referred to as ‘the Complainants’ for the sake of brevity) an amount of Rs.91,577/- and to pay an amount of Rs.20,000/- by way of compensation towards physical and mental agony besides costs quantified at Rs.5,000/-.
[2] Facts, which are material for deciding this appeal, are as under:-
Appellant/Electricity Distribution Company found that there was some theft of electricity from the electricity connection provided to the one of the Complainants, Smt. Swarupa Jawahar Shah. Electricity Distribution Company seems to have recovered from the Complainants an amount of Rs.50,817/- towards Connection No.279940740805 on 17/05/2008. Bill issued by the Electricity Distribution Company made a reference to Section-135 of the Electricity Act, 2003. Another bill for Rs.5,960/- was issued towards a connection in the name of Mr. Virkumar Gulabchand Shaha, who is not the Complainant herein and this amount was recovered on 17/05/2008. Further, a sum of Rs.34,650/- was also recovered possibly on 13/09/2008 from the Complainants. In all, a sum of Rs.91,577/- was recovered from the Complainants. Electricity Distribution Company also prosecuted the Complainants under Section-135 of the Electricity Act, 2003 for theft of electricity. It is not disputed that all the three sessions cases for theft of electricity resulted in acquittal of the Complainants. Complainants filed consumer complaint seeking refund of Rs.91,577/- unlawfully collected from the Complainants.
[3] This consumer complaint was contested by the Electricity Distribution Company by filing a written version, inter-alia contending that the complaint was not tenable. It is barred by limitation. There was no order passed by the Session Court directing refund of the amount and, therefore, complaint ought to be dismissed.
[4] After considering the rival contentions, the District Forum came to pass the impugned order. Aggrieved thereby, Electricity Distribution Company is before us.
[5] We have heard learned counsel Adv. Sandeep S. Jinsiwale on behalf of the Appellant/Electricity Distribution Company and learned counsel Adv. B. M. Patil on behalf of the Respondents/original Complainants. With their help we have also carefully perused the entire material placed on record. We have also considered written notes of arguments filed on behalf of the Complainants.
[6] Learned counsel for the Electricity Distribution Company submitted that once an electricity distribution company takes out proceedings under Sections 126 or 135 of the Electricity Act, 2003 a consumer complaint would not be tenable and for this purpose, sought to rely on decision of the Hon’ble Supreme Court in the matters of U. P. Power Corporation Ltd. & Ors. Vs. Anis Ahmad, reported in 2013-(5)-Bom.C.R.-76. He submitted that in view of this decision of the Hon’ble Supreme Court, such a complaint could not have been entertained.
[7] It is true that the Hon’ble Supreme Court has held in paragraph (47) of the judgment that 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. However, learned counsel for the Electricity Distribution Company could not point to any assessment made under Section-126 of the Electricity Act, 2003. Bill issued, under which the Complainants were coerced to cough-out a sum of Rs.91,577/-, refer to Section-135 of the Electricity Act, 2003. As already recounted, the Complainants were prosecuted for an offence punishable under Section-135 of the Electricity Act, 2003 and the judgments, which have been filed, show that the Complainants were acquitted in all three cases. Thus, as a matter of fact, the Complainants have not been proved to have committed theft of electricity. It would, therefore, logically follow that if the Complainants have not stolen electricity, they could not have been ordered to pay for such allegedly stolen electricity and, therefore, the District Forum was justified in entertaining the complaint.
[8] Learned counsel for the Electricity Distribution Company, however, would still submits that the District Forum should not have passed the impugned order in view of order passed by the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No.4271 of 2010 (In the matters of Nazir Khan Vs. Uttari Haryana Bijli Vitraa Nigam Ltd.). In that case, brother of the Petitioner/Complainant therein was the actual user of electricity and had been acquitted by a criminal court. Hon’ble National Commission, in paragraph (12) of the judgment, observed that mere fact that brother of petitioner, who is the actual user of electric connection, has been acquitted by the criminal court will not have any bearing on the case, since it is a case of civil liability, that is, with regard to the recovery of penalty. National Commission, therefore, proceeded to dismiss the revision petition. Learned counsel for the Electricity Distribution Company submitted that similar are the facts of the present case. This is a case of civil liability under sub-section (5) of Section-154 of the Electricity Act, 2003 and the Special Court could have passed appropriate orders. He submitted that the Complainants ought to have approached Special Court under Section-154(5) of the Electricity Act, 2003. Section-154 of the Electricity Act, 2003 regulates the procedure and powers of the Special Court trying offence punishable under Section-135 of the said Act and in this context provides under sub-section (5) as under:-
“The Special Court shall determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of Civil Court.”
[9] We are at a loss to understand as to how the Complainants were expected to move the Special Court to determine their civil liability since the Special Court had acquitted the Complainants. If, there is no theft, there is no liability. In any case, if the Electricity Distribution Company still felt that there was something recoverable from the Complainants, it was for the Company to move the Special Court.
We, therefore, find no error in the order passed by the District Forum. Hence, we proceed to pass the following order:-
ORDER
Appeal stands dismissed.
Parties shall bear their own costs.
Pronounced and dictated on 20th March, 2015
